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EXHIBIT 4.25
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.
OUTBACK STEAKHOUSE OF FLORIDA, INC.
HOOD & ASSOCIATES, INC.
AND
XXXXXX X. XXXX
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TABLE OF CONTENTS
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ARTICLE 1 - PLAN OF ACQUISITION...................................................................................1
1.1 The Merger......................................................................................1
1.2 Adjustments.....................................................................................2
1.3 Closing.........................................................................................2
1.4 Execution and Delivery of Closing Documents.....................................................2
1.5 Execution and Filing of Merger Documents........................................................2
1.6 Effectiveness of Merger.........................................................................3
1.7 Further Assurances..............................................................................3
1.8 Certificates....................................................................................3
1.9 Closing of Transfer Books.......................................................................3
1.10 Fractional Shares...............................................................................3
1.11 Accounting Treatment............................................................................3
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF HAI AND HOOD........................................................3
2.1 Organization and Good Standing..................................................................3
2.2 Power and Authority.............................................................................3
2.3 Foreign Corporation.............................................................................4
2.4 Authority and Validity..........................................................................4
2.5 Binding Effect..................................................................................4
2.6 Compliance with Other Instruments...............................................................4
2.7 Capitalization of HAI...........................................................................4
2.8 Absence of Certain Changes......................................................................5
2.9 Tax Liabilities.................................................................................5
2.10 No Undisclosed Liabilities......................................................................6
2.11 Title to Properties.............................................................................6
2.12 Contracts.......................................................................................6
2.13 Litigation and Government Claims................................................................6
2.14 No Violation of Any Instrument..................................................................7
2.15 Necessary Approvals and Consents................................................................7
2.16 Compliance With Laws............................................................................7
2.17 Accuracy of Information Furnished...............................................................7
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF HOOD................................................................7
3.1 Authority and Validity..........................................................................8
3.2 Binding Effect..................................................................................8
3.3 Ownership.......................................................................................8
3.4 Voting..........................................................................................8
3.5 Residency.......................................................................................8
3.6 Compliance with Other Instruments...............................................................8
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK.....................................................8
4.1 Organization and Good Standing..................................................................8
4.2 Foreign Qualification...........................................................................8
4.3 Power and Authority.............................................................................8
4.4 Authority and Validity..........................................................................9
4.5 Binding Effect..................................................................................9
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4.6 Compliance with Other Instruments...............................................................9
4.7 Capitalization of OSI...........................................................................9
4.8 SEC Reports.....................................................................................9
4.9 Litigation and Government Claims...............................................................10
4.10 No Violation of Any Instrument.................................................................10
4.11 Necessary Approvals and Consents...............................................................10
4.12 Absence of Certain Changes or Events...........................................................10
ARTICLE 5 - JOINT COVENANTS OF HAI, HOOD, OSI AND OUTBACK........................................................10
5.1 Notice of any Material Change..................................................................11
5.2 Cooperation....................................................................................11
5.3 Post-Closing Adjustment........................................................................11
5.4 Distribution and Allocations...................................................................12
5.5 Additional Agreements..........................................................................12
ARTICLE 6 - COVENANTS OF HAI AND HOOD............................................................................12
6.1 Securities Law Compliance. ....................................................................12
6.2 Restriction on Transfer. ......................................................................14
6.3 Payment of Liabilities.........................................................................14
6.4 Pooling........................................................................................14
ARTICLE 7 - COVENANTS OF OSI AND OUTBACK.........................................................................15
7.1 Mandatory Registration of OSI Common Stock.....................................................15
7.2 Registration Procedures........................................................................16
7.3 Expenses of Registration.......................................................................16
7.4 Adjustments in Number of Shares................................................................16
7.5 Transferees....................................................................................16
7.6 Employment Agreements..........................................................................16
7.7 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 HAI...........................................................17
9.1 Compliance.....................................................................................17
9.2 Representations and Warranties.................................................................17
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
10.5 Pooling........................................................................................18
ARTICLE 11 - INDEMNIFICATION.....................................................................................19
11.1 Indemnification Based on Agreement. .........................................................19
11.2 Limitation.....................................................................................19
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11.3 Cooperation....................................................................................19
11.4 Notice.........................................................................................19
ARTICLE 12 - MISCELLANEOUS.......................................................................................20
12.1 Termination....................................................................................20
12.2 Expenses.......................................................................................20
12.3 Entire Agreement...............................................................................20
12.4 Survival of Representations and Warranties.....................................................20
12.5 Counterparts...................................................................................21
12.6 Notices........................................................................................21
12.7 Successors and Assigns.........................................................................21
12.8 Governing Law..................................................................................21
12.9 Waiver and Other Action........................................................................21
12.10 Severability...................................................................................21
12.11 Headings.......................................................................................22
12.12 Construction...................................................................................22
12.13 Jurisdiction and Venue.........................................................................22
12.14 Enforcement....................................................................................22
12.15 Further Assurances.............................................................................22
12.16 Equitable Remedies.............................................................................22
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 into as of the 1st day of November, 1997, by and among OUTBACK
STEAKHOUSE, INC., a Delaware corporation ("OSI"), OUTBACK STEAKHOUSE OF FLORIDA,
INC., a Florida corporation ("Outback"), HOOD & ASSOCIATES, INC., a Florida
corporation ("HAI") and XXXXXX X. XXXX, an individual residing in the State of
North Carolina ("Hood").
W I T N E S S E T H:
WHEREAS, Outback is a wholly-owned subsidiary of OSI; and
WHEREAS, Hood is the sole owner of the issued and outstanding common
stock of HAI, and Hood is the sole director, President and is responsible for
the day-to-day operations of HAI; and
WHEREAS, Outback and HAI have entered into that certain Florida limited
partnership known as Outback/Charlotte-I, Limited Partnership dated January 1,
1996 ("Partnership");
WHEREAS, the Partnership operates Outback Steakhouse restaurants in the
States of North Carolina and South Carolina; and
WHEREAS, the Board of Directors of HAI has approved the merger of HAI
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, HAI will be merged with and into
Outback and all of the outstanding shares of capital stock of HAI 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:
ARTICLE 1
PLAN OF ACQUISITION
1.1 The Merger. Subject to and upon the terms and conditions contained
herein, HAI 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 HAI prior to the
Merger. As a result of the Merger, each voting and nonvoting common share of HAI
outstanding immediately before the Effective Date (as herein defined) shall, by
virtue of the Merger and without any further action being
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required by the holders thereof, be converted into and exchanged for 231.725
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 Two
Hundred Thirty-One Thousand Seven Hundred Twenty-Five (231,725).
(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 HAI 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) HAI shall have issued additional shares of its capital
stock, the number of shares of OSI Common Stock received in exchange for each
share of HAI's capital stock shall be adjusted so that the aggregate number of
shares of OSI Common Stock received in exchange for all shares of HAI's capital
stock (assuming no Dissenting Shares) remains at 231,725.
(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 HAI (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 November 1, 1997, 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 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 November
30, 1997, unless further extended by 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, HAI and Hood agree to take the following actions:
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(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 a Certificate of Merger to be issued by such
officer.
1.6 Effectiveness of Merger. The Merger shall become effective under
the laws of Florida upon the later of (i) filing of these Articles of Merger
with the Secretary of State of the State of Florida or (ii) November 1, 1997
(the "Effective Date"). Such Effective Date shall be indicated on Certificate of
Merger issued by the Secretary of State of the State of Florida pursuant to the
Florida Act.
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 HAI 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 HAI shall be entitled
to receive upon surrender of stock certificates of HAI representing HAI 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 HAI capital stock is
converted shall be deemed issued at the Effective Date.
1.9 Closing of Transfer Books. At the Closing Date, the stock transfer
books of HAI shall be closed and no transfer of capital stock of HAI, 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 HAI AND HOOD
Each of HAI and Hood, jointly and severally, represent and warrant to
OSI and Outback as follows:
2.1 Organization and Good Standing. HAI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida.
2.2 Power and Authority. HAI 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.
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2.3 Foreign Corporation. HAI is duly qualified or licensed to do
business and in good standing as a foreign corporation in North Carolina and
South Carolina 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.
2.4 Authority and Validity.
(a) HAI 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 HAI in connection with this Agreement;
and the execution, delivery and performance by HAI of this Agreement, the Merger
Agreement and the other documents executed or to be executed by HAI in
connection with this Agreement have been duly authorized by all necessary
corporate action.
(b) Hood 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 Hood in connection with this Agreement.
2.5 Binding Effect. This Agreement, the Merger Agreement and the other
documents executed or to be executed by HAI and Hood in connection with this
Agreement have been or will have been duly executed and delivered by HAI and
Hood, and are or will be, when executed and delivered, the legal, valid and
binding obligations of each of HAI and Hood 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 HAI nor Hood 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 HAI or
Hood pursuant to, its articles of incorporation, bylaws, 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 HAI or Hood is bound, to which any of them
is a party, or to which any assets of any of them are subject; provided,
however, this SECTION 2.5 shall not apply with respect to any of the foregoing
if HAI 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 HAI.
(a) The authorized capital stock of HAI consists of Ten Thousand
(10,000) common shares. There are One Thousand (1,000) common shares issued and
outstanding, all of which are owned by Hood. There are no other shareholders of
HAI and no other persons with rights or options to acquire capital stock of HAI.
All of the issued and outstanding shares of capital stock of HAI have been duly
authorized and validly issued and are fully paid and non-assessable. There are
no shares of capital stock of HAI held in its treasury.
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(b) There are no voting trusts, shareholder agreements or other voting
arrangements among the shareholders of HAI.
(c) There is no outstanding subscription, contract, convertible or
exchangeable security, option, warrant, call or other right obligating HAI 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 HAI.
2.8 Absence of Certain Changes. From December 31, 1996 to the Closing
Date, (except solely as a result of HAI's status as a partner in the
Partnership) HAI 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 2.7 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;
(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. HAI 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,
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property, withholding, social security, unemployment, franchise, excise and
sales taxes; HAI 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 HAI 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 HAI nor has HAI received notice of any
such deficiency, delinquency or default. HAI has no reason to believe that HAI
has or may have any tax liabilities other than those reflected on the unaudited
balance sheet of HAI as of August 31, 1997, with any notes thereto, and the
related unaudited statements of income for the eight months ended August 31,
1997, together with supplemental information on HAI, each prepared and attested
to by the chief financial officer of HAI (the "Balance Sheets") and those
arising in the ordinary course of business since the date thereof. With regard
to the foregoing, HAI has relied on the accuracy and completeness of the
Schedule K-1 provided by the Partnership.
Hood shall have sole responsibility for filing all required tax returns
for HAI for all periods ending on or prior to the Effective Date. OSI shall
assist Hood in preparing income tax returns and shall cooperate with Hood to the
extent necessary therefor, and Hood 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 HAI (other than material liabilities arising solely by reason of
HAI's status as a partner in the Partnership) of any nature, whether absolute,
accrued, contingent or otherwise, other than liabilities or obligations
indicated in Item 2.9 of the Disclosure Schedules.
2.11 Title to Properties. HAI has good and marketable title to the
assets reflected in their books and records as being owned by them, (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 notes thereto) and all assets purchased by
HAI 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 2.10 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 HAI are properly reflected on the
applicable Balance Sheets and notes thereto.
2.12 Contracts. Excluding (i) contracts and commitments between Outback
or OSI and HAI 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 HAI 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 2.11 of the Disclosure Schedule is a complete and accurate list of
all of the contracts and commitments (including summaries of oral contracts) to
which HAI is a party or by which HAI is bound:
2.13 Litigation and Government Claims. Except as indicated in Item 2.12
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 HAI or the Partnership or to which any of their
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business or assets is subject. Except as indicated in Item 2.12 of the
Disclosure Schedule, there are no such proceedings threatened or, to the best
knowledge of HAI or Hood, contemplated or, to the best knowledge of HAI or Hood,
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 HAI or the
Partnership.
2.14 No Violation of Any Instrument. Except as indicated in Item 2.13
of the Disclosure Schedule, HAI 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 HAI pursuant to, the articles or
certificates of incorporation, bylaws or other chartering or governance document
of HAI 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 HAI 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 HAI is a party, by
which HAI is bound or to which any of the assets of HAI 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, North Carolina and
South Carolina 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, 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 HAI and Hood 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 HAI and Hood 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 HAI after the Effective
Date in substantially the same manner as now operated.
2.16 Compliance With Laws. Hood has no actual knowledge that HAI 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 HAI or Hood 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 HAI and Hood have disclosed to OSI and Outback all facts
known to them that are material to HAI's and the Partnership's respective
businesses, operations, financial condition or prospects.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF HOOD
In addition to the representations and warranties contained in ARTICLE
2, Hood represents and warrants to OSI and Outback as follows:
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3.1 Authority and Validity. He has the capacity and authority to
execute, deliver and perform this Agreement and all other agreements and
documents they are 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 Hood 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
(b) the availability of equitable remedies may be limited by equitable
principles of general applicability.
3.3 Ownership. Hood is the sole record and beneficial shareholder of
HAI and no other person has any rights (in any form) to acquire any capital
stock of HAI.
3.4 Voting. He acknowledges that in his individual capacity as
shareholder and director of HAI, he has voted in favor of the execution and
delivery of this Agreement and the Merger Agreement.
3.5 Residency. Hood is, and has been at all times during the one year
ending on the date hereof, a resident of the State of North Carolina.
3.6 Compliance with Other Instruments. Neither the execution and
delivery by Hood 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 Hood
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 Hood 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 HAI and
Hood 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 North Carolina and
South Carolina 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.
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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 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 48,536,158 shares of Common Stock and no shares of Preferred Stock
were issued and outstanding as of October 9, 1997. All of the issued and
outstanding shares of OSI Common Stock have been duly authorized and validly
issued and are fully paid and non-assessable. The shares of OSI Common Stock to
be issued in exchange for HAI's capital stock at the Effective Date, when issued
and delivered, will be duly authorized, validly issued, fully paid and
non-assessable. 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 HAI and Hood true and complete
copies of its (i) Annual Report on Form 10-K for the year ended December 31,
1996; (ii) Proxy Statement used in connection with its 1997 Annual Meeting of
Shareholders; (iii) 1997 Annual Report to Shareholders; (iv) all periodic
reports, if any, on Form 8-K filed with the Securities and Exchange Commission
since December 31, 1996 to the date hereof; and (v) all Forms 10-Q, if any,
filed with the Securities and Exchange Commission since December 31, 1996, 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 material documents required to be filed
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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 HAI and Hood. 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, Outback , or, to the best of
our knowledge, the partnership 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 No Violation of Any Instrument. Other than as would not materially
impair the practical realization by Hood of the benefits intended to be
conferred by this Agreement, OSI and Outback are 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 OSI or Outback pursuant
to, the articles or certificates of incorporation, bylaws or other chartering or
governance document of OSI and Outback or 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 OSI or Outback is a party, by which OSI or Outback is bound
or to which any of the assets of OSI or Outback are subject.
4.11 Necessary Approvals and Consents. Other than (a) in connection
with or in compliance with the laws of the States of Florida, North Carolina and
South Carolina 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 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 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.
4.12 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, 1996, 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 HAI, HOOD, OSI AND OUTBACK
HAI and Hood, jointly and severally, on the one hand, and OSI and
Outback, jointly and severally on the other hand, covenant with each other as
follows:
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5.1 Notice of any Material Change. Until the Effective Date, each of
HAI, Hood, 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:
(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 HAI 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 Effective
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 HAI as of the Effective Date;
(b) the amount of all liabilities of HAI (other than liabilities
specified in Item 11.1 of the HAI Disclosure Schedule to the extent assumed by
Outback) which were not paid in full prior to the Effective Date;
(c) the estimated amount of all federal and state taxes, including, but
not limited to, federal and state income taxes, payable by HAI for the short tax
year ending on the Effective Date;
Upon receipt of such report, Hood (by notice to OSI as provided herein)
shall have a period of thirty (30) 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 Hood (and at the expense of Hood) shall
meet at the offices of OSI 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 Price Waterhouse (or other agreed upon
independent professional certified public accounting firm, which OSI and Hood
shall use their reasonable best efforts to select) for a resolution of such
items and whose decision shall be final and binding on all parties. The fees and
expenses of Price Waterhouse (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 Hood 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), Hood 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 HAI's entire share of Partnership distributions of cash flow, and shall be
allocated HAI's shares of profit and loss, from and after November 1, 1997.
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 HAI.
(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 Hood shall take all such
necessary action.
(c) Neither Outback, OSI, HAI nor Hood 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 HAI AND HOOD
HAI and Hood covenant and agree with OSI as follows:
6.1 Securities Law Compliance. Hood represents and warrants, and
covenants to Outback and OSI that:
(a) Hood has received all schedules and exhibits and the documents
furnished to HAI pursuant to SECTION 4.8;
(b) Hood 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 could acquire without unreasonable expense
that is necessary to verify the accuracy of information furnished to Hood.
(c) OSI and Outback have furnished him with all information requested
and full access to materials concerning OSI and Outback which Hood and/or his
advisors deemed necessary to properly evaluate the Merger. Such information and
access have been made available and utilized to the extent Hood considers
necessary and advisable in making an informed investment decision, and Hood has
consulted his own tax advisor and understands the evaluation of such materials
may require the assistance of experts and Hood has utilized such experts to the
extent deemed necessary.
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(d) Hood understands that the OSI Common Stock to be received is an
investment of a speculative nature and Hood must bear the risks thereof for an
indefinite period of time. Hood 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) Hood and/or his representatives or advisors who have acted with or
on behalf of Hood and who have advised Hood in this matter have such knowledge
and experience in financial and business matters that Hood is capable of
evaluating the merits and risks of the Merger for OSI Common Stock.
(f) Hood is participating in the Merger solely for his account as a
private investment, and Hood 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. Hood
does not presently intend to enter into any such agreement or undertaking and
there are no present circumstances which will compel Hood to sell any OSI Common
Stock so received. Hood 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 Hood in OSI Common Stock pursuant to the Merger
is a suitable investment for Hood given the investment goals and objectives of
Hood.
(h) Hood 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
Hood of any OSI Common Stock received hereby which is effected other than in
strict compliance with the terms hereof and applicable law.
(i) Hood 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. Hood understands that the shares of OSI Common
Stock issued to Hood in the Merger will be subject to the limited registration
rights described herein and Hood agrees to the terms hereof. Such rights shall
be personal to Hood (except as provided in Section 7.5) and shall automatically
terminate with respect to any shares of OSI Common Stock which Hood assigns or
transfers, upon attachment or seizure by or for the benefit of any creditors of
Hood, or upon the occurrence of any other event which results in a succession to
the ownership of any such OSI Common Stock by operation of law. Neither OSI nor
Outback will have any obligation to register any such OSI Common Stock other
than as provided in ARTICLE VII hereof. Hood agrees to comply with the
restrictions on transfer contained in Section 6.2 hereof.
(j) Hood 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) Hood 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 Hood's 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.
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6.2 Restriction on Transfer.
(a) Hood covenants and agrees not to sell, convey, pledge, grant a
security interest in, assign or otherwise transfer or encumber any of the OSI
Common Stock to be issued in the Merger except in accordance with state and
federal securities laws and with the following provisions:
(i) Hood may transfer twenty percent (20%) of the OSI Common
Stock received in the Merger at any time after November 1, 1997;
(ii) Hood may transfer an additional twenty percent (20%) of
the OSI Common Stock received in the Merger at any time after November
1, 1998;
(iii) Hood may transfer an additional twenty percent (20%) of
the OSI Common Stock received in the Merger at any time after November
1, 1999;
(iv) Hood may transfer an additional twenty percent (20%) of
the OSI Common Stock received in the Merger at any time after November
1, 2000;
(v) Hood may transfer the remaining twenty percent (20%) of
the OSI Common Stock received in the Merger at any time after November
1, 2001.
(b) Notwithstanding the provisions of (a) above, Hood may make bona
fide gifts both inter vivos and testamentary of OSI Common Stock to immediate
family members or trusts of which immediate family members are the exclusive
beneficiaries provided, however, the donees of such gifts shall take such OSI
Common Stock subject to the restrictions contained in (a) above. For purposes of
determining Hood's compliance with (i) through (v) above, any transfers by
donees shall be aggregated with, and shall be considered as, transfers by Hood
for purposes of calculating compliance with (i) through (v) of subsection (a).
(c) OSI's transfer agent shall maintain stop transfer instructions on
the OSI Common Stock issued in the Merger and the certificates representing such
shares shall bear an appropriate legend evidencing the restrictions contained in
(a) above.
6.3 Payment of Liabilities. HAI and Hood covenant and agree that all
debts and liabilities of HAI 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 HAI specified in Item 11.1 of the
Disclosure Schedules.
6.4 Pooling. Hood agrees that until such time as financial results of
OSI covering at least thirty (30) days of combined operations of OSI and HAI
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.
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ARTICLE 7
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and agree with HAI and
Hood as follows:
7.1 Mandatory Registration of OSI Common Stock.
(a) Hood shall have the right to require OSI, by written notice to OSI
at any time during: (i) the ten day period commencing on publication of
financial results of OSI which include at least thirty (30) days of combined
operations of OSI and HAI subsequent to the Merger; or (ii) the ten day period
commencing upon public release of OSI's net income for calendar year 1997; or
(iii) the ten day period commending upon public release of OSI's net income for
the first quarter of 1998, to use its best efforts to cause a registration,
qualification or compliance under any federal or state securities laws to be
effected as soon as practical, but not later than thirty (30) days after receipt
of Hood's written notice, with respect to all or any portion of the OSI Common
Stock then held by Hood and specified in such notice (hereinafter, collectively
the "Registrable Shares") and OSI will use its best reasonable efforts to cause
such registration, qualification or compliance as may be so requested to be
effective and to be kept effective for a period (not to exceed forty-five (45)
days) as would permit or facilitate, to the extent so requested, the sale and
distribution of the Registrable Shares, including, without limitation,
registration under the Securities Act of 1933, as then in effect or under any
similar statute then in effect (the "Act"), and appropriate related
qualification under applicable state securities laws and appropriate compliance
with any other governmental requirements; provided, however, that the maximum
number of Registrable Shares under this SECTION 7.1(A) shall be a number of
shares equal to twenty percent (20%) of the total number of shares of OSI Common
Stock issued pursuant to the Merger, but reduced by the number of shares of such
OSI Common Stock sold or transferred other than pursuant to the provisions of
this SECTION 7.1. Once OSI shall have fully complied with one registration
request Hood shall not have any right to request any additional registrations.
(b) Notwithstanding the foregoing, OSI shall not be required to effect
any registration, qualification or compliance under this SECTION 7.1 if and to
the extent, in the opinion of counsel for OSI (which opinion shall also be
addressed to Hood requesting registration of Registrable Shares), the proposed
public offering or transfer of the number of Registered Shares, as to which
registration is requested, is exempt from registration under the Act and the
securities laws of the states in which the Registrable Shares are to be sold or
transferred and the Registrable Shares would not constitute restricted
securities in the hands of the purchaser or transferee.
(c) OSI shall be entitled to postpone the filing or effectiveness of
any registration statement otherwise required to be prepared and filed by OSI
pursuant to this SECTION 7.1, for a reasonable period of time, but not in excess
of ninety (90) days (a "Blackout Period"), if the chief executive officer or
chief financial officer of OSI determines that in such executive officer's
reasonable judgment and good faith that the registration and distribution of the
Registrable Shares would materially interfere with any pending financing,
acquisition, or corporate reorganization or other corporate development
involving OSI or any of its subsidiaries or would require premature disclosure
thereof and promptly gives Hood written notice of such determination containing
a general statement of the reasons for such postponement and an approximation of
the anticipated delay; provided, however, that the aggregate number of days
included in all Blackout Periods during any consecutive twelve (12) months
during the shall not exceed one hundred eight (180) days; and provided, further,
however, that a period of at least forty-five (45) days shall elapse between the
termination of any Blackout Period and the commencement of the immediately
succeeding Blackout Period. If OSI shall so postpone the filing of a
registration statement Hood shall have the right to withdraw the request for
registration by giving written notice to OSI within twenty (20) days after
receipt
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of the notice of postponement (and, in the event of such withdrawal, such
request shall not be counted for purposes of determining the number of, or
required timing for, requests for registration to which the holders of the
Registrable Shares are entitled pursuant to SECTION 7.1.
(d) Notwithstanding the foregoing, OSI shall not be required by this
SECTION 7.1 to register Registrable Shares under the Securities Act or under any
state securities law at any time after the date one year following the Effective
Date (or such other date as coincides with the expiration of the general holding
period requirement under Rule 144, should the general holding period requirement
of Rule 144 or any successor rule be modified), if OSI is then and has been
throughout such period, current in all filings required to comply with the
current public information requirement of Rule 144. OSI will cooperate with Hood
in delivering opinions necessary to effect transfers under Rule 144.
7.2 Registration Procedures. In the case of each registration,
qualification or compliance effected by OSI pursuant to SECTION 7.1, OSI will:
(a) keep each holder of Registrable Shares advised in writing at the
initiation of proceedings of each registration, qualification or compliance and
as to the completion thereof,
(b) furnish each holder of Registrable Shares with such number of
prospectuses and such other documents as may be reasonably requested, and
(c) keep such registration, qualification or compliance effective until
all sales or distributions contemplated in connection therewith are completed;
provided that OSI shall not be obligated to keep such registration,
qualification or compliance effective for more than forty-five (45) days.
7.3 Expenses of Registration. All expenses incurred in connection with
any registration, qualification or compliance effected by OSI pursuant to this
ARTICLE 7, including, without limitation, all registration and filing fees, fees
and expenses of complying with securities and blue sky laws, printing expenses,
fees and disbursements of counsel for OSI and all expenses of any special audits
incidental to or required by such registration (collectively, the "Registration
Expenses") shall be borne by OSI.
7.4 Adjustments in Number of Shares. If 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, or a stock dividend thereon
shall be declared, with a record date subsequent to the Effective Date and prior
to the sale of all Registrable Shares, the number of Registrable Shares shall be
adjusted to accurately reflect such change.
7.5 Transferees. The rights of Hood under SECTION 7.1 are personal to
Hood and shall not inure to the benefit of any other person nor any transferees
or assignees of Hood's OSI Common Stock; provided, however, such rights shall
inure to the benefit of donees of bona fide gifts (both inter vivos and
testamentary) who are members of the donor's immediate family.
7.6 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(R)
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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7.7 Assumed Liabilities. OSI and Outback agree to assume and pay the
liabilities specified in Item 11.1 (subject to the amount limits specified in
Item 11.1 of the Disclosure Schedules) and to indemnify and hold harmless Hood
from any loss or liability therefor.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of HAI, Hood, 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. HAI, 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 HAI 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 HAI 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 HAI
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 1.12 or is otherwise not contrary to the best
interests of Outback or OSI.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF HAI
The obligations of HAI and Hood 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:
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 HAI and Hood pursuant hereto
or in connection with the transactions contemplated hereby, shall have
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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 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. HAI and Hood 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 HAI and/or Hood in this Agreement, the Disclosure Schedule,
and in all certificates and other documents delivered by HAI or Hood 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 HAI as of August 31, 1997, for the period then ended.
10.4 Material Adverse Changes. Since December 31, 1996, there shall
have occurred no material adverse change in the business, properties, assets,
liabilities, results of operations or condition, financial or otherwise, of HAI
or the Partnership.
10.5 Pooling. OSI shall have received a letter from Deloitte & Touche,
in form and substance satisfactory to OSI and dated not more than five days
prior to the Closing Date, to the effect that the Merger shall qualify as a
pooling of interests for financial reporting purposes.
ARTICLE 11
INDEMNIFICATION
Hood, on the one hand, and OSI and Outback, jointly and severally, on
the other hand, agree as follows:
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11.1 Indemnification Based on Agreement. Subject to the limitations
contained in SECTION 11.2 hereof, Hood shall indemnify and hold harmless OSI,
Outback and HAI, and OSI, Outback and HAI, jointly and severally, shall
indemnify and hold harmless Hood, 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, Hood shall indemnify OSI, Outback and HAI, 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 HAI for any period
prior to and including November 1, 1997 and (ii) any debt of HAI (other than the
debts specified in Item 11.1 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 HAI 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 11.1 of the Disclosure
Schedule.
11.2 Limitation. Hood shall have no obligation under SECTION 11.1 to
indemnify OSI, Outback or HAI 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
HAI 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 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.
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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 HAI:
(a) by mutual consent of Hood, HAI and OSI;
(b) by OSI if there has been a material misrepresentation or breach of
warranty in the representations and warranties of HAI or Hood set forth herein
or if there has been any material failure on the part of HAI or Hood to comply
with their obligations hereunder;
(c) by HAI or Hood 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 its obligations hereunder;
(d) by either OSI, HAI or Hood, if the transactions contemplated by
this Agreement have not been consummated by November 30, 1997, 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, or HAI 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 HAI or OSI if the transactions contemplated hereby
violate any non-appealable final order, decree or judgment of any court or
governmental body or agency having competent jurisdiction.
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 7 and 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 Hood contained
herein or in any exhibit, schedule, certificate,
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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 2.7 shall survive the
Closing for a period ending four years after the filing of HAI'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 HAI or Hood: HOOD & ASSOCIATES, INC.
0000 Xxxx Xxxxxxxxx - Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
If to OSI or Outback: OUTBACK STEAKHOUSE, INC.
000 Xxxxx Xxx Xxxxxx, Xxxxx 000
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
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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.
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 XXXXXX X. XXXXXX
Title: Secretary Title: President
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"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
By: By:
----------------------------- --------------------------------
XXXXXX X. XXXXX XXXX X. XXXXX
Title: Secretary Title: President
"HAI"
Attest: HOOD & ASSOCIATES, INC.
a Florida corporation
By: By:
----------------------------- --------------------------------
XXXXXX X. XXXX XXXXXX X. XXXX
Title: Secretary Title: President
Witness: "Hood"
------------------------------------
XXXXXX X. XXXX, individually
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EXHIBIT A
ARTICLES OF MERGER
THIS AGREEMENT, PLAN AND ARTICLES OF MERGER ("Articles of Merger"),
dated as of November 1, 1997, is entered into by and among HOOD & ASSOCIATES,
INC., a Florida corporation ("HAI"); OUTBACK STEAKHOUSE, INC., a Delaware
corporation ("OSI"); and OUTBACK STEAKHOUSE OF FLORIDA, INC., a Florida
corporation ("Outback").
W I T N E S E T H:
WHEREAS, HAI is a corporation duly organized and validly existing under
the laws of the State of Florida, and the authorized and outstanding capital
stock of HAI is as follows:
Authorized Shares Issued
HAI Capital Stock and Outstanding
--- ------------- ---------------
HOOD & ASSOCIATES, INC. 10,000 Common Shares 1,000 Common Shares
WHEREAS, OSI is a corporation duly organized and validly existing under
the laws of the State of Delaware; and
WHEREAS, OSI is authorized to issue 2,000,000 shares of Preferred
Stock, par value $.01, none of which are outstanding and 200,000,000 shares of
Common Stock, $.01 par value (the "OSI Common Stock"), of which approximately
48,030,588 shares of OSI Common Stock are issued and outstanding as of March 7,
1997; and
WHEREAS, Outback is a wholly owned subsidiary of OSI; and
WHEREAS, the respective Boards of Directors of each of HAI, Outback,
and OSI deem it advisable, for the benefit of their respective corporations and
shareholders, that HAI be merged into Outback, with Outback as the surviving
corporation (in its capacity as surviving corporation, Outback is hereinafter
sometimes referred to as the "Surviving Corporation"), pursuant to the
provisions of Sections 607.1101-607.1107 of the Florida Business Corporation Act
(the "Florida Act") and have approved these Articles of Merger; and
WHEREAS, the Board of Directors of HAI has directed that these Articles
of Merger be submitted to its voting shareholder for approval and adoption and
the voting shareholder of HAI has approved and adopted these Articles of Merger
in accordance with Florida Law and the corporate governance documents of HAI by
unanimous written consent dated September , 1997; and
WHEREAS, OSI as the sole shareholder of Outback has approved and
adopted these Articles of Merger by written consent on September 30, 1997; and
WHEREAS, the Agreement and Plan of Reorganization (the "Reorganization
Agreement"), which Outback, OSI, and HAI have entered, contemplates the
execution and delivery of these Articles of Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein and for the purpose of prescribing the terms and
conditions of the merger and such other details and provisions as are deemed
necessary or desirable, the parties hereto agree as follows:
1
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1. MERGER. The names of the corporations which propose to merge are
HOOD & ASSOCIATES, INC., a North Carolina corporation ("HAI"), and OUTBACK
STEAKHOUSE OF FLORIDA, INC. ("Outback"). In accordance with the provisions of
the Florida Act at the Effective Date (as hereinafter defined), HAI shall be
merged into Outback, and Outback shall be the Surviving Corporation and as such
shall continue to be governed by the laws of the State of Florida. The plan of
merger set forth in these Articles of Merger was duly authorized by each of
Outback and HAI, respectively, by all action required by the laws under which it
was incorporated or organized and by its constituent documents.
2. CONTINUATION OF CORPORATE EXISTENCE. The corporate existence and
identity of Outback, with all its purposes, powers, franchises, privileges,
rights and immunities, shall continue unaffected and unimpaired by the merger
and the corporate existence and identity of HAI with all its purposes, powers,
franchises, privileges, rights and immunities at the Effective Date shall be
merged with and into that of Outback, and Outback as the Surviving Corporation
shall be vested fully therewith, and the separate corporate existence and
identity of HAI shall thereafter cease except to the extent continued by
statute.
3. EFFECTIVE DATE. The merger shall become effective (hereinbefore and
hereinafter called the "Effective Date") upon the later of (i) filing of these
Articles of Merger with the Secretary of State of the State of Florida; or (ii)
November 1, 1997. Such Effective Date shall be indicated on Certificate of
Merger issued by the Secretary of State of the State of Florida pursuant to the
Florida Act.
4. CORPORATE GOVERNMENT.
(a) The Certificate of Incorporation of Outback, as in effect
on the Effective Date, shall continue in full force and effect and
shall be the Certificate of Incorporation of the Surviving Corporation.
(b) The Bylaws of Outback, as in effect as of the Effective
Date, shall continue in full force and effect and shall be the Bylaws
of the Surviving Corporation.
(c) The members of the Board of Directors and the officers of
the Surviving Corporation shall be the persons holding such positions
for Outback as of the Effective Date.
5. CONVERSION OF SHARES. The manner and basis of converting the capital
stock of HAI into OSI Common Stock, subject to SECTION 5(C) below with respect
to fractional shares, shall be as follows:
(a) Each share of HAI common stock which shall be outstanding
immediately prior to the Effective Date shall at the Effective Date, by
virtue of the merger and without any action on the part of the holder
thereof, be converted into and exchanged for 231.725 shares of OSI
Common Stock.
(b) The Outback Capital Stock outstanding immediately prior to
the Effective Date shall be unaffected by the merger.
(c) The stock transfer books of HAI shall be closed as of the
close of business on the Effective Date and no transfer of record of
any of its capital stock shall take place thereafter.
(d) 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 to each holder of shares of common
stock of the merging corporations whose fractional share interest is .5
or more of one whole share; each fraction of less than .5 of one whole
share shall be disregarded.
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(e) Notwithstanding the foregoing, the OSI shall not be
required to issue or distribute more than 231,725 shares of OSI Common
Stock pursuant to the merger, less any shares reserved for dissenters'
rights, as described in Article 1 of the Reorganization Agreement.
(f) All of the shares of OSI Common Stock, when delivered
pursuant to the provisions of these Articles of Merger, shall be
validly issued, fully paid and non-assessable.
(g) At the Effective Date, each holder of certificates
representing shares of the common stock of HAI shall thereupon cease to
have any rights with respect to such shares and shall be deemed to be a
shareholder of OSI to the extent of the number of shares of OSI Common
Stock to which such shareholder shall be entitled in accordance with
these Articles of Merger; and shall surrender certificates representing
shares of the common stock of HAI to the OSI, whereupon such holder
shall receive a certificate or certificates for the number of shares of
OSI Common Stock to which such holder is entitled hereunder.
6. RIGHTS AND LIABILITIES OF THE SURVIVING CORPORATION. The Surviving
Corporation shall have the following rights and obligations:
(a) The Surviving Corporation shall have all the rights,
privileges, immunities and powers and shall be subject to all the
duties and liabilities of a corporation organized under the laws of the
State of Florida.
(b) The Surviving Corporation shall possess all of the rights,
privileges, immunities and franchises, of either a public or private
nature, of Outback, and HAI and all property, real, personal and mixed
and all debts due on whatever account, including subscription to shares
and all other chooses in action and every other interest of or
belonging or due to HAI shall be taken and deemed to be transferred or
invested in the Surviving Corporation without further act or deed.
(c) At the Effective Date, the Surviving Corporation shall
thenceforth be responsible and liable for all liabilities and
obligations of HAI and any claim existing or action or proceeding
pending by or against HAI or Outback may be prosecuted as if the merger
had not occurred or the Surviving Corporation may be substituted in its
place. Neither the rights of creditors nor any liens upon the property
of HAI or Outback shall be impaired by the merger.
7. CONSENT OF SHAREHOLDERS. These Articles of Merger has been adopted
by the shareholders of HAI in accordance with Florida Law and its corporate
governance documents by unanimous written consent effective as of September ,
1997. These Articles of Merger has been adopted by the written consent of the
sole shareholder of Outback dated September 30, 1997 pursuant to the Florida
Act.
8. DISSENTING SHAREHOLDERS. If any shareholder of HAI files a written
objection to these Articles of Merger before a vote of the shareholders is taken
hereon and complies with the further provisions of the Florida Act, he may be
paid the fair value of his shares. If any shareholder of HAI lawfully elects,
pursuant to the Florida Act, to exercise or pursue his right to dissent from any
of the corporate actions referred to in these Articles of Merger with respect to
the shares of common stock of HAI owned by such shareholder (the "Dissenting
Shares"), such shareholder shall be entitled to exercise only those rights
available to him as set forth in the Florida Act, and, in that event, only in
the manner set forth therein. During the period in which any such shareholder
shall be exercising or pursuing any of such shareholder's rights of dissent as
specified in the Florida Act, as applicable, such shareholder shall have no
other rights pursuant to or arising from these Articles of Merger.
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9. REORGANIZATION AGREEMENT. These Articles of Merger is intended to
supplement the Reorganization Agreement and is not intended to conflict with or
supersede that agreement and, in the event of any conflict, the provisions of
the Reorganization Agreement shall control.
10. COPIES. A copy of these Articles of Merger shall be on file at the
principal place of business of the Surviving Corporation located at 000 Xxxxx
Xxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000. A copy of these Articles of Merger
will be furnished by the Surviving Corporation, on request and without cost, to
any shareholder of any corporation that is a party hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement, Plan
and Articles of Merger as of the day and year first above written.
"OSI"
Attest: OUTBACK STEAKHOUSE, INC.
a Delaware corporation
By: By:
----------------------------- --------------------------------
XXXXXX X. XXXXX XXXXXX X. XXXXXX
Title: Secretary Title: President
STATE OF FLORIDA )
) ss
COUNTY OF HILLSBOROUGH )
On this ______ day of January, 1998, before me, personally came XXXXXX X.
XXXXXX and XXXXXX X. XXXXX, President and Secretary, respectively, of OUTBACK
STEAKHOUSE, INC., a Delaware corporation, who are personally known to me, and
each being first duly sworn, did depose and say that they executed the foregoing
on behalf of said corporation by order of the Board of Directors of said
corporation.
(NOTARY SEAL)
------------------------------------
(Notary Signature)
NOTARY PUBLIC
Commission No.
---------------------
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
By: By:
----------------------------- --------------------------------
XXXXXX X. XXXXX XXXX X. XXXXX
Title: Secretary Title: President
4
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STATE OF FLORIDA )
) ss
COUNTY OF HILLSBOROUGH )
On this ______ day of January, 1998, before me, personally came XXXX X.
XXXXX and XXXXXX X. XXXXX, President and Secretary, respectively, of OUTBACK
STEAKHOUSE OF FLORIDA, INC., a Florida corporation, who are personally known to
me, and each being first duly sworn, did depose and say that they executed the
foregoing on behalf of said corporation by order of the Board of Directors of
said corporation.
(NOTARY SEAL)
------------------------------------
(Notary Signature)
NOTARY PUBLIC
Commission No.
---------------------
"HAI"
Attest: HOOD & ASSOCIATES, INC.
a Florida corporation
By: By:
----------------------------- --------------------------------
XXXXXX X. XXXX XXXXXX X. XXXX
Title: Secretary Title: President
STATE OF NORTH CAROLINA )
) ss
COUNTY OF )
On this ______ day of January, 1998, before me, personally came XXXXXX X.
XXXX and XXXXXX X. XXXX as President and Secretary of HOOD & ASSOCIATES, INC., a
North Carolina corporation, who are personally known to me, and each being first
duly sworn, did depose and say that they executed the foregoing on behalf of
said corporation by order of the Board of Directors of said corporation.
(NOTARY SEAL)
------------------------------------
(Notary Signature)
NOTARY PUBLIC
Commission No.
---------------------
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EXHIBIT B
DISCLOSURE SCHEDULES
Item 2.7 Any asset acquired or disposed of, or indebtedness incurred,
assumed, guaranteed, endorsed, paid or discharged; any material
amount of assets subjected or permitted to be subjected to any
liability or obligation or 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 below:
None.
Item 2.9(a) Material liabilities or obligations, contingent or otherwise of
the Partnership of any nature:
None.
Item 2.9(b) Liabilities or obligations of HAI (other than material
liabilities arising solely by reason of HAI's status as a
partner in the Partnership) of any nature, whether absolute,
accrued, contingent or otherwise:
None.
Item 2.10 Liens and encumbrances on real and personal property purchased
by HAI or the Partnership since the date of the Balance Sheet,
except for liens for taxes, assessments or other governmental
charges not yet due and payable.
None.
Item 2.11 Contracts and commitments not in the ordinary course of the
Partnership's business.
None.
Item 2.12 Pending suits, claims, actions or litigation or administrative,
arbitration or other proceedings or governmental investigations
or inquiries against HAI or the Partnership to which any of
their business or assets is subject.
None.
Item 2.13 Violations and defaults of HAI and the Partnership.
None.
Item 11.1 Current liabilities and those debts and liabilities of HAI
agreed to be assumed by Outback:
None.
08/07/97
B-1
