Offer To Purchase For Cash All Outstanding Shares Of Common Stock of O’CHARLEY’S INC. at $9.85 NET PER SHARE by FRED MERGER SUB INC. an indirect, wholly-owned subsidiary of FIDELITY NATIONAL FINANCIAL, INC.

Exhibit (a)(1)(A)

Offer To Purchase For Cash

All Outstanding Shares Of Common Stock

O’CHARLEY’S INC.

$9.85 NET PER SHARE

XXXX MERGER SUB INC.

an indirect, wholly-owned subsidiary of

FIDELITY NATIONAL FINANCIAL, INC.

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME,

AT THE END OF MONDAY, APRIL 2, 2012, UNLESS THE OFFER IS EXTENDED.

Xxxx Xxxxxx Sub Inc., a Tennessee corporation (the “Purchaser”) and an indirect, wholly-owned subsidiary of Fidelity National Financial, Inc., a Delaware corporation (“Parent”), is offering to purchase all of the outstanding shares of common stock, without par value (the “Shares”), of O’Charley’s Inc., a Tennessee corporation (“O’Charley’s” or the “Company”), at a purchase price of $9.85 per Share (the “Offer Price”), net to the sellers in cash, without interest thereon and subject to any required withholding taxes, upon the terms and subject to the conditions described in this Offer to Purchase and in the related Letter of Transmittal (which, together with the Offer to Purchase, each as may be amended or supplemented from time to time, collectively constitute the “Offer”).

The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of February 5, 2012 (as it may be amended from time to time, the “Merger Agreement”), among Parent, the Purchaser and O’Charley’s. The Merger Agreement provides, among other things, that following consummation of the Offer and subject to certain conditions, the Purchaser will be merged with and into O’Charley’s (the “Merger”), with O’Charley’s continuing as the surviving corporation and an indirect, wholly-owned subsidiary of Parent. In the Merger, each Share outstanding immediately prior to the effective time of the Merger (other than Shares held by O’Charley’s, Parent, the Purchaser or any wholly-owned subsidiary of O’Charley’s or Parent, including the Purchaser, which Shares will be cancelled and retired and will cease to exist without any consideration being delivered in exchange for those Shares) will be cancelled and converted into the right to receive $9.85 or any greater per Share price paid in the Offer, in cash, without interest thereon and subject to any required withholding taxes. Under no circumstances will interest be paid on the purchase price for the Shares, regardless of any extension of the Offer or any delay in making payment for the Shares.

The Offer is conditioned upon, among other things, (i) satisfaction of the Minimum Condition (as described below), (ii) the expiration or termination of all statutory waiting periods (and any extensions thereof) applicable to the Merger under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) (the “Regulatory Condition”) and (iii) the absence of a legal restraint preventing, or a law, regulation or order prohibiting, the consummation of the transactions contemplated by the Merger Agreement (the “Legal Restraint Condition”). The Minimum Condition requires the number of Shares that have been validly tendered and not validly withdrawn prior to the expiration of the Offer (when added to the Shares already owned by Parent and its subsidiaries) to represent at least the number of Shares required to approve the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement pursuant to the charter and by-laws of O’Charley’s and the Tennessee Business Corporation Act (the “TBCA”) on the date the tendered Shares are accepted for payment, determined on a fully-diluted basis (as defined in the Merger Agreement). The Offer also is subject to other conditions described in this Offer to Purchase. See Section 15 – “Certain Conditions of the Offer.” The Regulatory Condition has been satisfied. See Section 16 – “Certain Legal Matters; Regulatory Approvals.”

After careful consideration, the Board of Directors of O’Charley’s, among other things, has unanimously (i) declared that the Merger Agreement and the transactions contemplated by the Merger Agreement are advisable, fair to and in the best interests of O’Charley’s and the shareholders of O’Charley’s unaffiliated with Parent, (ii) adopted and approved the Merger Agreement and the transactions contemplated by the Merger Agreement, (iii) directed the adoption of the Merger Agreement be submitted to the shareholders of O’Charley’s and (iv) recommended that the shareholders of O’Charley’s accept the Offer, tender their Shares in the Offer and, to the extent required by applicable law, approve the Merger and adopt the Merger Agreement.

A summary of the principal terms of the Offer appears on pages S-i through S-viii. You should read this entire document carefully before deciding whether to tender your Shares in the Offer.

The Information Agent for the Offer is:

The Dealer Manager for the Offer is:

February 27, 2012

IMPORTANT

If you wish to tender all or a portion of your Shares in the Offer, you should either (i) complete and sign the letter of transmittal that accompanies this Offer to Purchase (the “Letter of Transmittal”) in accordance with the instructions in the Letter of Transmittal and mail or deliver the Letter of Transmittal and all other required documents to the Depositary (as defined in this Offer to Purchase), together with certificates representing the Shares tendered or follow the procedure for book-entry transfer set forth in Section 3 – “Procedures for Accepting the Offer and Tendering Shares,” or (ii) request your broker, dealer, commercial bank, trust company or other nominee to effect the transaction for you. If you hold Shares in the name of a broker, dealer, commercial bank, trust company or other nominee, you must contact that institution in order to tender your Shares.

If you wish to tender Shares and cannot deliver certificates representing those Shares and all other required documents to the Depositary on or prior to the Expiration Date (as defined in this Offer to Purchase) or you cannot comply with the procedures for book-entry transfer on a timely basis, you may tender your Shares by following the guaranteed delivery procedures described in Section 3 – “Procedures for Accepting the Offer and Tendering Shares.”

Questions and requests for assistance should be directed to the Information Agent (as defined in this Offer to Purchase) or the Dealer Manager (as defined in this Offer to Purchase) at their respective addresses and telephone numbers set forth on the back cover of this Offer to Purchase. Additional copies of this Offer to Purchase, the related Letter of Transmittal, the related Notice of Guaranteed Delivery and other materials related to the Offer may also be obtained at our expense from the Information Agent or the Dealer Manager. Additionally, copies of this Offer to Purchase, the related Letter of Transmittal, the related Notice of Guaranteed Delivery and any other material related to the Offer may be found at xxx.xxx.xxx.

TABLE OF CONTENTS


	Page
SUMMARY TERM SHEET		S-i
INTRODUCTION		1
THE TENDER OFFER		3
1. Terms of the Offer		3
2. Acceptance for Payment and Payment for Shares		5
3. Procedures for Accepting the Offer and Tendering Shares		6
4. Withdrawal Rights		9
5. Certain United States Federal Income Tax Consequences		9
6. Price Range of Shares; Dividends		10
7. Certain Information Concerning O’Charley’s		11
8. Certain Information Concerning Parent, the Purchaser and Certain Related Persons		13
9. Source and Amount of Funds		15
10. Background of the Offer; Past Contacts or Negotiations with O’Charley’s		16
11. The Merger Agreement; Other Agreements		20
12. Purpose of the Offer; Plans for O’Charley’s		39
13. Certain Effects of the Offer		40
14. Dividends and Distributions		41
15. Certain Conditions of the Offer		42
16. Certain Legal Matters; Regulatory Approvals		43
17. Dissenters’ Rights		44
18. Fees and Expenses		45
19. Miscellaneous		45
SCHEDULE I: Directors and Executive Officers of the Purchaser, Parent and FNSO		47
ANNEX A: Agreement and Plan of Merger		1

SUMMARY TERM SHEET

The information contained in this summary term sheet is a summary only and is not meant to be a substitute for the more detailed description and information contained in the Offer to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery. You are urged to read carefully the Offer of Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery in their entirety. Parent and the Purchaser have included cross-references in this summary term sheet to other sections of the Offer to Purchase where you will find more complete descriptions of the topics mentioned below. The information concerning O’Charley’s contained in this summary term sheet and elsewhere in the Offer to Purchase has been provided to Parent and the Purchaser by O’Charley’s or has been taken from or is based upon publicly available documents or records of O’Charley’s on file with the United States Securities and Exchange Commission (the “SEC”) or other public sources at the time of the Offer. Parent and the Purchaser have not independently verified the accuracy and completeness of that information. Parent and the Purchaser have no knowledge that would indicate that any statements contained in this Offer to Purchase relating to O’Charley’s provided to Parent and the Purchaser or taken from or based upon those documents and records filed with the SEC are untrue or incomplete in any material respect.


Securities Sought:		All of the issued and outstanding shares of common stock, without par value, of O’Charley’s Inc.

Price Offered Per Share:		$9.85 in cash, without interest thereon and subject to any required withholding taxes.

Scheduled Expiration of Offer:		12:00 midnight, New York City time, at the end of Monday, April 2, 2012, unless the Offer is otherwise extended. See Section 1 – “Terms of the Offer.”

Purchaser:		Xxxx Xxxxxx Sub Inc., a Tennessee corporation and an indirect, wholly-owned subsidiary of Fidelity National Financial, Inc., a Delaware corporation.

Who is offering to buy my securities?

We are Fred Merger Sub Inc., a Tennessee corporation, formed for the purpose of making this Offer. We are an indirect, wholly-owned subsidiary of Fidelity National Financial, Inc., a Delaware corporation (“Parent”). Parent is a leading provider of title insurance, mortgage services and diversified services.

Unless the context indicates otherwise, in this Offer to Purchase, we use the terms “us,” “we” and “our” to refer to Xxxx Xxxxxx Sub Inc. and, where appropriate, Parent. We use the term “Parent” to refer to Fidelity National Financial, Inc. alone, the term the “Purchaser” to refer to Xxxx Xxxxxx Sub Inc. alone and the terms “O’Charley’s” or the “Company” to refer to O’Charley’s Inc.

See the “Introduction” to this Offer to Purchase and Section 8 – “Certain Information Concerning Parent, the Purchaser and Certain Related Persons.”

What are the classes and amounts of securities sought in the Offer?

We are offering to purchase all of the outstanding shares of common stock, without par value, of O’Charley’s on the terms and subject to the conditions described in this Offer to Purchase. Unless the context otherwise requires, in this Offer to Purchase we use the term “Offer” to refer to this offer and the term “Shares” to refer to shares of O’Charley’s common stock that are the subject of the Offer.

See the “Introduction” to this Offer to Purchase and Section 1 – “Terms of the Offer.”

How much are you offering to pay? What is the form of payment? Will I have to pay any fees or commissions?

We are offering to pay $9.85 per Share, net to you, in cash, without interest and subject to any required withholding taxes. We refer to this amount as the “Offer Price.” If you are the record owner of your Shares and

S-i

you directly tender your Shares to us in the Offer, you will not have to pay brokerage fees or similar expenses. If you own your Shares through a broker, banker or other nominee, and your broker, banker or other nominee tenders your Shares on your behalf, your broker, banker or other nominee may charge you a fee for doing so. You should consult your broker, banker or other nominee to determine whether any charges will apply.

See the “Introduction” to this Offer to Purchase.

Is there an agreement governing the Offer?

Yes. Parent, the Purchaser and O’Charley’s have entered into an Agreement and Plan of Merger, dated as of February 5, 2012 (as it may be amended from time to time, the “Merger Agreement”). The Merger Agreement provides, among other things, for the terms and conditions of the Offer and the subsequent merger of the Purchaser with and into O’Charley’s (the “Merger”).

See Section 11 – “The Merger Agreement; Other Agreements” and Section 15 – “Certain Conditions of the Offer.”

Do you have the financial resources to make payment?

Yes. We estimate that we will need approximately $225 million to purchase all of the Shares that Parent and its subsidiaries do not already own pursuant to the Offer, to make payments in respect of outstanding in-the-money options, to repay O’Charley’s existing indebtedness and to consummate the Merger, plus related fees and expenses. Parent and its subsidiaries will provide us with sufficient funds (by means of a capital contribution and/or other advancement) to purchase all Shares properly tendered in the Offer and to provide funding for the Merger and the other transactions contemplated by the Merger Agreement, which are expected to follow the successful completion of the Offer in accordance with the terms and conditions of the Merger Agreement. The Offer is not conditioned upon our ability to finance the purchase of Shares pursuant to the Offer or the Merger. Parent expects to obtain the necessary funds from its and its subsidiaries’ available cash and cash equivalents and its existing credit facility.

See Section 9 – “Source and Amount of Funds.”

Is your financial condition relevant to my decision to tender my Shares in the Offer?

No. We do not think our financial condition is relevant to your decision whether to tender Shares and accept the Offer because:

•

the Offer is being made for all outstanding Shares solely for cash;

•

we, through Parent and its subsidiaries, will have sufficient funds available to purchase all Shares successfully tendered in the Offer in light of our financial capacity in relation to the amount of consideration payable;

•

the Offer is not subject to any financing condition; and

•

if we consummate the Offer, we expect to acquire any remaining Shares for the same cash price in the Merger.

See Section 9 – “Source and Amount of Funds.”

How long do I have to decide whether to tender my Shares in the Offer?

You will have until 12:00 midnight, New York City time, at the end of Monday, April 2, 2012 (which is the end of the day on April 2, 2012), to tender your Shares in the Offer, unless we extend the Offer. In addition, if we decide to provide a subsequent offering period for the Offer as described below, you will have an additional opportunity to tender your Shares. We do not currently intend to provide a subsequent offering period, although we reserve the right to do so.

S-ii

If you cannot deliver everything required to make a valid tender by that time, you may still participate in the Offer by using the guaranteed delivery procedure that is described later in this Offer to Purchase prior to that time.

See Section 1 – “Terms of the Offer” and Section 3 – “Procedures for Accepting the Offer and Tendering Shares.”

Can the Offer be extended and under what circumstances?

Yes. We have agreed in the Merger Agreement that, subject to our rights to terminate the Merger Agreement in accordance with its terms:

•

If, on the Expiration Date (as defined in this Offer to Purchase), any condition of the Offer (as described in Section 15 – “Certain Conditions of the Offer”) is not satisfied or waived, then, (i) we may (without O’Charley’s consent), and (ii) we must (if requested in writing by O’Charley’s no less than one business day prior to the scheduled expiration date), extend the Offer for one or more successive periods of time up to five business days per extension until that condition has been satisfied or waived; provided that:

•

we will not be required to extend the Offer beyond June 4, 2012 (the “Outside Date”); and

•

if the only condition which has not been satisfied as of the scheduled Expiration Date is the Minimum Condition (as described below), then we must extend the Offer for one or more successive periods of up to five business days each, with the total of those extensions not to exceed the earlier to occur of (x) ten business days and (y) the Outside Date.

•

The Offer will be extended for any period required by any rule, regulation, interpretation or position of the SEC or its staff that is applicable to the Offer or necessary to resolve any comments of the SEC or its staff applicable to the Offer or any documents pursuant to which the Offer is made.

If necessary to obtain sufficient Shares so that Parent and its subsidiaries hold at least 90% of the Shares outstanding (on a fully-diluted basis, as defined in the Merger Agreement), we may, at our sole discretion, choose to provide for a subsequent offering period in accordance with Rule 14d-11 promulgated under the Securities Exchange Act of 1934, as amended, following the acceptance for payment of the Shares by Parent or the Purchaser or any of their affiliates pursuant to and in accordance with the terms of the Offer (the “Acceptance Time”). A subsequent offering period is different from an extension of the Offer. During a subsequent offering period, you would not be able to withdraw any of the Shares that you had already tendered; you also would not be able to withdraw any of the Shares that you tender during the subsequent offering period.

See Section 1 – “Terms of the Offer” of this Offer to Purchase for more details on our obligation and ability to extend the Offer.

How will I be notified if the Offer is extended?

If we extend the Offer, we will inform American Stock Transfer & Trust Company, LLC, which is the depositary for the Offer (the “Depositary”), of any extension and will issue a press release announcing the extension not later than 9:00 a.m., New York City time, on the next business day after the day on which the Offer was scheduled to expire.

If we elect to provide a subsequent offering period, a public announcement of that determination will be made no later than 9:00 a.m., New York City time, on the next business day following the Expiration Date.

See Section 1 – “Terms of the Offer.”

S-iii

What are the most significant conditions to the Offer?

The Offer is conditioned upon, among other things:

•

The satisfaction of the Minimum Condition. The Minimum Condition requires the number of Shares that have been validly tendered and not validly withdrawn prior to the Expiration Date (when added to the Shares already owned by Parent and its subsidiaries), to represent at least the number of Shares required to approve the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement pursuant to the charter and by-laws of O’Charley’s and the Tennessee Business Corporation Act (the “TBCA”) on the date the tendered Shares are accepted for payment, determined on a fully-diluted basis (as defined in the Merger Agreement); and

•

The satisfaction of the Regulatory Condition. The Regulatory Condition requires the expiration or termination of all statutory waiting periods (and any extensions thereof) applicable to the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”). The Regulatory Condition has been satisfied. See Section 16 – “Certain Legal Matters; Regulatory Approvals.”

•

The satisfaction of the Legal Restraint Condition. The Legal Restraint Condition requires there not to be a legal restraint preventing, or a law, regulation or order prohibiting, the consummation of the transactions contemplated by the Merger Agreement.

The Offer also is subject to a number of other conditions described in this Offer to Purchase. We expressly reserve the right to waive any of those conditions, but we cannot, without O’Charley’s prior written consent, (i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the number of Shares subject to or sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the conditions described in this Offer to Purchase, (iv) waive or amend the Minimum Condition, (v) amend or supplement any of the other conditions described in this Offer to Purchase or any other term of the Offer in a manner adverse to the holders of the Shares, other than Parent, the Purchaser and any of their respective affiliates or (vi) extend or otherwise change the Expiration Date except as required or permitted by the Merger Agreement. There is no financing condition to the Offer.

See Section 15 – “Certain Conditions of the Offer.”

How do I tender my Shares?

If you hold your Shares directly as the registered owner, you can tender your Shares in the Offer by delivering the certificates representing your Shares, together with a completed and signed Letter of Transmittal and any other documents required by the Letter of Transmittal, to the Depositary, not later than the date and time the Offer expires. The Letter of Transmittal is enclosed with this Offer to Purchase.

If you hold your Shares in street name through a broker, dealer, commercial bank, trust company or other nominee, the institution that holds your Shares can tender your Shares on your behalf, and may be able to tender your Shares through the Depositary. You should contact the institution that holds your Shares for more details.

If you are unable to deliver everything that is required to tender your Shares to the Depositary by the expiration of the Offer, you may obtain a limited amount of additional time by having a broker, a bank or another fiduciary that is an eligible institution guarantee that the missing items will be received by the Depositary by using the enclosed Notice of Guaranteed Delivery. To validly tender Shares in this manner, however, the Depositary must receive the missing items within the time period specified in the enclosed Notice of Guaranteed Delivery.

See Section 3 – “Procedures for Accepting the Offer and Tendering Shares.”

S-iv

Until what time may I withdraw previously tendered Shares?

You may withdraw your previously tendered Shares at any time until the Offer has expired. In addition, if we have not accepted your Shares for payment by April 27, 2012, you may withdraw them at any time after that date until we accept Shares for payment. This right to withdraw will not, however, apply to Shares tendered in any subsequent offering period, if one is provided.

See Section 4 – “Withdrawal Rights.”

How do I withdraw previously tendered Shares?

To withdraw previously tendered Shares, you must deliver a written notice of withdrawal, or a facsimile of one, with the required information to the Depositary while you still have the right to withdraw Shares. If you tendered Shares by giving instructions to a broker, banker or other nominee, you must instruct the broker, banker or other nominee to arrange for the withdrawal of your Shares.

See Section 4 – “Withdrawal Rights.”

What does the Company’s Board of Directors think of the Offer?

A more complete description of the reasons for the adoption and the approval of Merger Agreement and the transactions contemplated by the Merger Agreement by the Company’s Board of Directors is set forth in O’Charley’s Solicitation/Recommendation Statement on Schedule 14D-9 that is being mailed to you together with this Offer to Purchase.

If a majority of the Shares are tendered and accepted for payment, will O’Charley’s continue as a public company?

No. Following the purchase of Shares in the Offer, we expect to consummate the Merger. If the Merger takes place, O’Charley’s no longer will be publicly owned. Even if for some reason the Merger does not take place, if we purchase all of the tendered Shares, there may be so few remaining shareholders and publicly held Shares that O’Charley’s common stock will no longer be eligible to be traded through the NASDAQ Global Select Market (“Nasdaq”) or other securities exchanges, there may not be an active public trading market for O’Charley’s common stock, and O’Charley’s may no longer be required to make filings with the SEC or otherwise comply with the SEC’s rules relating to publicly held companies.

See Section 13 – “Certain Effects of the Offer.”

If I decide not to tender, how will the Offer affect my Shares?

If the Offer is consummated and certain other conditions are satisfied, the Purchaser will merge with and into O’Charley’s and each Share outstanding immediately prior to the effective time of the Merger (other than Shares held by O’Charley’s, Parent, the Purchaser or any wholly-owned subsidiary of O’Charley’s or Parent, which Shares will be cancelled and retired and will cease to exist without any consideration being delivered in exchange for those Shares) will be cancelled and converted into the right to receive the Offer Price, in cash,

S-v

without interest thereon and subject to any required withholding taxes. If we purchase Shares in the Offer, we will have sufficient voting power to approve the Merger without the affirmative vote of any other shareholder of O’Charley’s. Furthermore, if pursuant to the Offer or otherwise we own at least 90% of the outstanding Shares, we may effect the Merger without any further action by the shareholders of O’Charley’s no earlier than one month after the date that a copy of the Merger Agreement is mailed to all shareholders of O’Charley’s, which we would mail at the time we acquire 90% ownership.

See Section 11 – “The Merger Agreement; Other Agreements.”

If the Merger is consummated, O’Charley’s shareholders who do not tender their Shares in the Offer will receive the same amount of cash per Share that they would have received had they tendered their Shares in the Offer. Therefore, if the Offer and the Merger are consummated, the only difference to you between tendering your Shares and not tendering your Shares in the Offer is that you will be paid earlier if you tender your Shares in the Offer. However, if the Offer is consummated but the Merger is not consummated, the number of O’Charley’s shareholders and the number of Shares that are still in the hands of the public may be so small that O’Charley’s common stock will no longer be eligible to be traded through Nasdaq or other securities exchanges, there may no longer be an active public trading market for the Shares or O’Charley’s may no longer be required to make filings with the SEC or otherwise comply with the SEC’s rules relating to publicly held companies.

See the “Introduction” to this Offer to Purchase and Section 13 – “Certain Effects of the Offer.”

What is the market value of my Shares as of a recent date?

On February 3, 2012, the last full day of trading before the public announcement of the terms of the Offer and the Merger, the reported closing sales price of the Shares on Nasdaq was $6.92 per Share. On February 24, 2012, the last full day of trading before the commencement of the Offer, the reported closing sales price of the Shares on Nasdaq was $9.88 per Share. The Offer Price represents a premium of 57% over O’Charley’s volume weighted average share price for the 20 trading days immediately preceding the public announcement of the Offer and the Merger and a premium of 42% over the closing price on the last full day of trading before the public announcement of the Offer and the Merger.

We encourage you to obtain a recent quotation for Shares of O’Charley’s in deciding whether to tender your Shares.

See Section 6 – “Price Range of Shares; Dividends.”

Have any stockholders already agreed to tender their Shares in the Offer or to otherwise support the Offer?

Yes. Concurrently with the execution of the Merger Agreement, Crescendo Investments II, LLC, in its capacity as general partner of Crescendo Partners II, L.P., Series Z, Crescendo Investments III, LLC, in its capacity as general partner of Crescendo Partners III, L.P., Xxxxxx Xxxxxx, and Xxxxxxx Xxxxxxx (each, a “Supporting Shareholder”), entered into a Tender and Support Agreement with Parent and the Purchaser (the “Support Agreement”) pursuant to which each Supporting Shareholder has agreed, among other things, (i) to tender in the Offer all of such Supporting Shareholder’s Shares; and (ii) that, in the event a vote of O’Charley’s shareholders is required in furtherance of the Merger Agreement or the transactions contemplated by the Merger Agreement, including the Merger, such Supporting Shareholder will vote all of such Supporting Shareholder’s Shares (to the extent any such Shares are not purchased in the Offer) in favor of the approval of the Merger and the adoption of the Merger Agreement and against any proposal inconsistent therewith. The Support Agreement will terminate upon certain circumstances, including upon termination of the Merger Agreement.

See Section 11 – “The Merger Agreement; Other Agreements.”

S-vi

What is the “Top-Up Option” and when will it be exercised?

Under the Merger Agreement, if we do not hold at least 90% of the outstanding Shares (on a fully-diluted basis, as defined in the Merger Agreement) after consummation of the Offer, Parent has the option, subject to certain limitations, to purchase (in cash or by promissory note) from O’Charley’s up to that number of newly issued Shares sufficient to cause Parent (together with any of its subsidiaries, including us) to own one Share more than 90% of the Shares then outstanding (on a fully-diluted basis, as defined in the Merger Agreement), at a price per Share equal to the Offer Price, to enable us to effect a “short-form merger” pursuant to Section 00-00-000 of the TBCA. We refer to this option as the “Top-Up Option.”

See Section 11 – “The Merger Agreement; Other Agreements – Top-Up Option.”

Will I have dissenters’ rights in connection with the Offer?

No dissenters’ rights will be available to you in connection with the Offer or the Merger. See Section 17 – “Dissenters’ Rights.”

What will happen to my employee stock options in the Offer?

The Offer is made only for Shares and is not made for any employee stock options to purchase Shares that were granted under any O’Charley’s stock plan (“Options”). Pursuant to the Merger Agreement, each Option (whether or not vested or unexercisable) will become fully vested and exercisable at the Acceptance Time. Pursuant to the Merger Agreement, each Option (whether or not vested or exercisable) that is outstanding as of the effective time of the Merger will be cancelled and converted into the right to receive an amount in cash, without interest and subject to any required withholding taxes, equal to the product of (i) the excess of the Offer Price over the per Share exercise price under such Option and (ii) the number of Shares subject to such Option.

See Section 11 – “The Merger Agreement; Other Agreements – O’Charley’s Stock Options and Restricted Stock.”

What will happen to my employee restricted stock in the Offer?

Pursuant to the Merger Agreement, the restrictions on each Share of restricted stock that is subject to forfeiture, vesting or other restrictions as of immediately prior to the acceptance of the Shares for payment in the Offer will lapse upon acceptance of Shares for payment in the Offer. Pursuant to the Merger Agreement, each Share that is outstanding as of the effective time of the Merger will be cancelled and converted into the right to receive an amount in cash, without interest and subject to any required withholding taxes, equal to the Offer Price.

See Section 11 – “The Merger Agreement; Other Agreements – O’Charley’s Stock Options and Restricted Stock.”

What are the material United States federal income tax consequences of tendering Shares?

The receipt of cash in exchange for your Shares in the Offer or the Merger will be a taxable transaction for U.S. federal income tax purposes and may also be a taxable transaction under applicable state, local or foreign income or other tax laws. In general, you will recognize gain or loss in an amount equal to the difference between the amount of cash you receive and your adjusted tax basis in the Shares sold pursuant to the Offer or exchanged for cash pursuant to the Merger. This gain or loss will be a capital gain or loss if you hold your Shares as capital assets at the time of the sale or exchange.

See Section 5 – “Certain United States Federal Income Tax Consequences” for a more detailed discussion of the tax treatment of the Offer. Certain limitations apply to the use of any capital losses.

S-vii

We urge you to consult with your own tax advisor as to the particular tax consequences to you of the Offer and the Merger.

Who should I call if I have questions about the Offer?

You may call Xxxxxxxxx Inc. at (000) 000-0000 (Toll Free) or Xxxxxxxxx & Company, Inc. (“Jefferies”) at (000) 000-0000. Xxxxxxxxx Inc. is acting as the information agent (the “Information Agent”) and Jefferies is acting as the dealer manager (the “Dealer Manager”) in connection with the Offer. See the back cover of this Offer to Purchase for additional contact information.

S-viii

To the Holders of Shares of

Common Stock of O’Charley’s Inc.:

INTRODUCTION

We, Xxxx Xxxxxx Sub Inc., a Tennessee corporation (the “Purchaser”) and an indirect, wholly-owned subsidiary of Fidelity National Financial, Inc., a Delaware corporation (“Parent”), are offering to purchase for cash all outstanding shares of common stock, without par value (the “Shares”), of O’Charley’s Inc., a Tennessee corporation (“O’Charley’s” or the “Company”), at a price of $9.85 per Share (the “Offer Price”), net to the sellers in cash, without interest thereon and subject to any required withholding taxes, upon the terms and subject to the conditions described in this Offer to Purchase and in the related Letter of Transmittal (which collectively, as each may be amended or supplemented from time to time, constitute the “Offer”).

We are making the Offer pursuant to an Agreement and Plan of Merger, dated as of February 5, 2012 (as it may be amended from time to time, the “Merger Agreement”), among Parent, the Purchaser and O’Charley’s. The Merger Agreement provides, among other things, for the making of the Offer and also provides that, following consummation of the Offer and subject to certain conditions, the Purchaser will be merged with and into O’Charley’s (the “Merger”) with O’Charley’s continuing as the surviving corporation and an indirect, wholly-owned subsidiary of Parent. In the Merger, each Share outstanding immediately prior to the effective time of the Merger (the “Effective Time”) (other than Shares held by O’Charley’s, Parent, Purchaser or any wholly-owned subsidiary of O’Charley’s or Parent, which Shares will be cancelled and retired and will cease to exist without any consideration being delivered in exchange for those Shares) will be cancelled and converted into the right to receive $9.85 or any greater per Share price paid in the Offer, in cash, without interest thereon and subject to any required withholding taxes. The Merger Agreement is more fully described in Section 11 – “The Merger Agreement; Other Agreements,” which also contains a discussion of the treatment of employee stock options and employee restricted stock.

Tendering shareholders who are record owners of their Shares and who tender directly to the Depositary (as defined below) will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in Instruction 6 of the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by the Purchaser pursuant to the Offer. Shareholders who hold their Shares through a broker, banker or other nominee should consult that institution as to whether it charges any service fees or commissions.

A more complete description of the O’Charley’s Board of Directors’ reasons for authorizing and approving the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Offer and the Merger, is set forth in O’Charley’s Solicitation/Recommendation Statement on Schedule 14D-9 (the “Schedule 14D-9”) under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), that is being furnished to shareholders in connection with the Offer. Shareholders should carefully read the information set forth in the Schedule 14D-9, including the information set forth under the sub-heading “Background of the Offer and the Merger; Reasons for Recommendation.”

“Regulatory Condition”) and (iii) the absence of a legal restraint preventing, or a law, regulation or order prohibiting, the consummation of the transactions contemplated by the Merger Agreement (the “Legal Restraint Condition”). The Minimum Condition requires the number of Shares that have been validly tendered and not validly withdrawn prior to the expiration of the Offer (when added to the Shares already owned by Parent and its subsidiaries) to represent at least the number of Shares required to approve the Merger Agreement and the other transactions contemplated by the Merger Agreement pursuant to the charter and by-laws of O’Charley’s and the Tennessee Business Corporation Act (the “TBCA”) on the date the tendered Shares are accepted for payment, determined on a fully-diluted basis (as defined in the Merger Agreement). The Regulatory Condition has been satisfied. See Section 16 – “Certain Legal Matters; Regulatory Approvals.”

The Offer also is subject to other conditions described in this Offer to Purchase. See Section 15 – “Certain Conditions of the Offer.”

O’Charley’s has advised Parent that, on February 5, 2012, Evercore Group L.L.C. (“Evercore”), which was retained by the Company’s Board of Directors to act as O’Charley’s financial advisor in connection with the potential sale of O’Charley’s, rendered its oral opinion to the Company’s Board of Directors, subsequently confirmed in writing, that, as of that date and based upon and subject to assumptions made, matters considered and limitations on the scope of review undertaken by Evercore as set forth in that opinion, the $9.85 per Share to be received by holders of Shares other than Parent, Purchaser and any of their respective affiliates in the Offer and the Merger, pursuant to the Merger Agreement, was fair from a financial point of view to those holders. The full text of the written opinion of Evercore, dated as of February 5, 2012, which sets forth, among other things, assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of the review undertaken by Evercore in rendering that opinion, is attached as an annex to O’Charley’s Solicitation/Recommendation Statement on Schedule 14D-9 to be filed with the United States Securities and Exchange Commission (the “SEC”), which will be mailed to O’Charley’s shareholders with this Offer to Purchase. Evercore’s opinion was directed to the Company’s Board of Directors and addresses only the fairness, from a financial point of view, of the $9.85 per Share to be received by the holders of Shares other than Parent, Purchaser and any of their respective affiliates in the Offer and the Merger, pursuant to the Merger Agreement, as of the date of the opinion. Evercore’s opinion does not address any other aspect of the transactions contemplated by the Merger Agreement and does not constitute a recommendation to O’Charley’s Board of Directors or to any other person in respect of the transactions contemplated by the Merger Agreement, including to you or any other O’Charley’s shareholder as to whether you or such shareholder should tender any Shares pursuant to the Offer. Evercore’s opinion does not address the relative merits of the transactions contemplated by the Merger as compared to other business or financial strategies that might be available to O’Charley’s, nor does it address the underlying business decision of O’Charley’s to engage in the transactions contemplated by the Merger Agreement. All statements included in this Offer to Purchase summarizing the contents of the Evercore opinion are qualified in their entirety by reference to the full text of the opinion attached as an annex to the Schedule 14D-9.

Consummation of the Merger is conditioned upon, among other things, the adoption of the Merger Agreement by the requisite vote of the shareholders of O’Charley’s at a shareholders meeting convened for that purpose in accordance with the TBCA, if required by the TBCA. Under Tennessee law, the affirmative vote of a majority of all the votes entitled to be cast at such meeting of O’Charley’s shareholders is required to approve the Merger Agreement. If we purchase Shares in the Offer, we will have sufficient voting power to approve the Merger without the affirmative vote of any other shareholder of O’Charley’s. In addition, Tennessee law provides that if a corporation owns at least 90% of the outstanding voting shares of each class and series of a subsidiary corporation, the corporation holding such stock may merge such subsidiary into itself, itself into such subsidiary or two or more such subsidiaries with and into each other, without any action or vote on the part of the shareholders of such other corporation. Under the Merger Agreement, if, after the expiration of the Offer or the expiration of the subsequent offering period, if any, the Purchaser directly or indirectly owns at least 90% of the outstanding Shares (including Shares issued pursuant to the Top-Up Option and Shares tendered in any

subsequent offering period), Parent, the Purchaser and O’Charley’s are required to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the acceptance for payment of the Shares by us pursuant to and in accordance with the terms of the Offer (the “Acceptance Time”), without a meeting of the holders of Shares in accordance with the applicable provisions of the TBCA.

This Offer to Purchase and the related Letter of Transmittal contain important information that should be read carefully before any decision is made with respect to the Offer.

THE TENDER OFFER

1.	Terms of the Offer.

The Purchaser is offering to purchase all of the outstanding Shares of O’Charley’s. According to O’Charley’s, as of February 20, 2012, there were 21,947,206 Shares issued and outstanding (inclusive of restricted stock awards issued pursuant to any O’Charley’s equity incentive plan), and 1,580,231 Shares issuable upon the exercise of outstanding options.

Upon the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of any extension or amendment), we will accept for payment and promptly pay for all Shares validly tendered prior to the Expiration Date and not properly withdrawn as permitted under Section 4 – “Withdrawal Rights.” The term “Expiration Date” means 12:00 midnight, New York City time, at the end of Monday, April 2, 2012, unless we, in accordance with the Merger Agreement, extend the period during which the Offer is open, in which event the term “Expiration Date” means the latest time and date at which the Offer, as so extended, expires.

The Offer is conditioned upon, among other things, the satisfaction of the Minimum Condition, the Regulatory Condition, the Legal Restraint Condition and the other conditions described in Section 15 – “Certain Conditions of the Offer.” The Regulatory Condition has been satisfied. See Section 16 – “Certain Legal Matters; Regulatory Approvals.”

The Merger Agreement provides that on the scheduled Expiration Date, if any condition to the Offer (as described in Section 15 – “Certain Conditions of the Offer”) is not satisfied or waived, then, (i) we may (without O’Charley’s consent), and (ii) we must (if requested in writing by O’Charley’s no less than one business day prior to the scheduled Expiration Date), extend the Offer for one or more successive periods of time up to five business days per extension until that condition has been satisfied or waived; provided that:

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we will not be required to extend the Offer beyond June 4, 2012 (the “Outside Date”); and

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if the only condition which has not been satisfied as of the scheduled Expiration Date is the Minimum Condition (as described below), then we must extend the Offer for one or more successive periods of up to five business days each, with the total of such extensions not to exceed the earlier to occur of (x) ten business days and (y) the Outside Date.

Under the Merger Agreement, we also will extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or necessary to resolve any comments of the SEC or its staff applicable to the Offer or the documents pursuant to which the Offer is made. The Merger Agreement also provides that we may, at our sole discretion, choose to provide for a subsequent offering period for at least three business days in accordance with Rule 14d-11 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), if, following the expiration of the Offer, all the conditions to the Offer described in Section 15 – “Certain Conditions of the Offer” are satisfied but the number of Shares validly tendered and not validly withdrawn in the Offer and accepted for payment (when added to the Shares already owned by Parent and its subsidiaries, including the Purchaser) is less than 90% of the outstanding Shares (on a fully-diluted basis, as defined in the Merger Agreement).

We have agreed in the Merger Agreement that, without the prior written consent of O’Charley’s, we will not (i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the number of Shares subject to or sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the conditions described in this Offer to Purchase (see Section 15 – “Certain Conditions of the Offer”), (iv) waive or amend the Minimum Condition, (v) amend or supplement any of the other conditions described in this Offer to Purchase or any other term of the Offer in a manner adverse to the holders of the Shares, other than Parent, the Purchaser and any of their respective affiliates, or (vi) extend or otherwise change the Expiration Date except as required or permitted by the Merger Agreement.

If we extend the Offer, are delayed in our acceptance for payment of or payment (whether before or after our acceptance for payment) for Shares or are unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to our rights under the Offer, the depositary for the Offer (the “Depositary”) may retain tendered Shares on our behalf, and those Shares may not be withdrawn except to the extent that tendering shareholders are entitled to withdrawal rights as described herein under Section 4 – “Withdrawal Rights.” However, our ability to delay the payment for Shares that we have accepted for payment is limited by Rule 14e-1(c) under the Exchange Act, which requires us to pay the consideration offered or return the securities deposited by or on behalf of shareholders promptly after the termination or withdrawal of the Offer.

Except as described above, and subject to the applicable rules and regulations of the SEC, we expressly reserve the right to waive any condition to the Offer (other than the Minimum Condition, which may not be waived without O’Charley’s prior written consent), increase the Offer Price and/or modify the other terms and conditions of the Offer. Any extension, delay, termination or amendment of the Offer will be followed promptly by public announcement of any extension, delay, termination or amendment, and that announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. Without limiting the manner in which we may choose to make any public announcement, we currently intend to make announcements regarding the Offer by issuing a press release and making any appropriate filing with the SEC.

If we make a material change in the terms of the Offer or the information concerning the Offer or if we waive a material condition of the Offer, we will disseminate additional tender offer materials and extend the Offer if and to the extent required by Rules 14d-4(d)(1), 14d-6(c) and 14e-1 under the Exchange Act. The minimum period during which an offer must remain open following material changes in the terms of the Offer or information concerning the Offer, other than a change in price or a change in percentage of securities sought, will depend upon the facts and circumstances, including the relative materiality of the terms or information changes. In the SEC’s view, an offer should remain open for a minimum of five business days from the date the material change is first published, sent or given to shareholders, and with respect to a change in price or a change in percentage of securities sought, a minimum ten business day period generally is required to allow for adequate dissemination to shareholders and investor response.

If, on or before the Expiration Date, we increase the consideration being paid for Shares accepted for payment in the Offer, that increased consideration will be paid to all shareholders whose Shares are purchased in the Offer, whether or not those Shares were tendered before the announcement of the increase in consideration.

We expressly reserve the right, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, not to accept for payment any Shares if, at the expiration of the Offer, any of the conditions to the Offer have not been satisfied or waived or upon the occurrence of any of the events described in Section 15 – “Certain Conditions of the Offer.” Under certain circumstances, we may terminate the Merger Agreement and the Offer.

After the expiration of the Offer and acceptance for payment of the Shares validly tendered in, and not validly withdrawn from, the Offer, we may decide pursuant to the Merger Agreement to commence a subsequent offering period. A subsequent offering period, if included, will be an additional period beginning on the next

business day following the Expiration Date, during which any remaining shareholders may tender, but not withdraw, their Shares and receive the Offer Price. If we provide a subsequent offering period, we will accept for payment and promptly pay for all Shares that were validly tendered during the initial offering period. During a subsequent offering period, tendering shareholders will not have withdrawal rights, and we will accept and pay for any Shares validly tendered during the subsequent offering period.

Other than as may be required by the terms of the Merger Agreement, we do not currently intend to provide a subsequent offering period for the Offer, although we reserve the right to do so. If we elect to provide or extend any subsequent offering period, a public announcement of that provision or extension will be made no later than 9:00 a.m., New York City time, on the next business day following the Expiration Date or date of termination of any prior subsequent offering period.

Under the Merger Agreement, if we do not own at least 90% of the outstanding Shares (on a fully-diluted basis, as defined in the Merger Agreement) after our acceptance for payment of Shares pursuant to the Offer, Parent has the option (the “Top-Up Option”), subject to certain limitations, to purchase from O’Charley’s up to that number of newly-issued Shares sufficient to cause Parent (together with any of its subsidiaries, including us) to own one Share more than 90% of the Shares then outstanding (on a fully-diluted basis, as defined in the Merger Agreement) at a price per Share equal to the Offer Price.

O’Charley’s has provided us with O’Charley’s shareholder list and security position listings for the purpose of disseminating the Offer to holders of Shares. This Offer to Purchase and the related Letter of Transmittal, together with the Solicitation/Recommendation Statement on Schedule 14D-9, will be mailed to record holders of Shares whose names appear on O’Charley’s shareholder list and will be furnished, for subsequent transmittal to beneficial owners of Shares, to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the shareholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing.

2.	Acceptance for Payment and Payment for Shares.

Subject to the satisfaction or waiver of all the conditions to the Offer described in Section 15 – “Certain Conditions of the Offer,” we will accept for payment and promptly pay for Shares validly tendered and not validly withdrawn pursuant to the Offer on or after the Expiration Date. If we commence a subsequent offering period in connection with the Offer, we will immediately accept for payment and promptly pay for all additional Shares validly tendered during that subsequent offering period, subject to and in compliance with the requirements of Rule 14d-11(e) under the Exchange Act. Subject to compliance with Rule 14e-1(c) under the Exchange Act, we expressly reserve the right to delay payment for Shares in order to comply in whole or in part with any applicable law, including, without limitation, the HSR Act. See Section 16 – “Certain Legal Matters; Regulatory Approvals.”

In all cases, we will pay for Shares accepted for payment pursuant to the Offer only after timely receipt by the Depositary of (i) the Share certificates evidencing tendered Shares (the “Share Certificates”) or confirmation of a book-entry transfer of those Shares (a “Book-Entry Confirmation”) into the Depositary’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in Section 3 – “Procedures for Accepting the Offer and Tendering Shares,” (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees or, in the case of a book-entry transfer, an Agent’s Message (as defined below) in lieu of the Letter of Transmittal and (iii) any other documents required by the Letter of Transmittal. Accordingly, tendering shareholders may be paid at different times depending upon when Share Certificates or Book-Entry Confirmations with respect to Shares are actually received by the Depositary.

The term “Agent’s Message” means a message, transmitted by DTC to and received by the Depositary and forming a part of a Book-Entry Confirmation, that states that DTC has received an express acknowledgment from the participant in DTC tendering the Shares that are the subject of that Book-Entry Confirmation, that the participant has received and agrees to be bound by the terms of the Letter of Transmittal and that the Purchaser may enforce that agreement against that participant.

For purposes of the Offer, we will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not withdrawn as, if and when we give oral or written notice to the Depositary of our acceptance for payment of those Shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for those Shares with the Depositary, which will act as agent for tendering shareholders for the purpose of receiving payments from us and transmitting those payments to tendering shareholders whose Shares have been accepted for payment. If we extend the Offer, are delayed in our acceptance for payment of or payment (whether before or after our acceptance for payment for Shares) for Shares or are unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to our rights under the Offer, the Depositary may retain tendered Shares on our behalf, and those Shares may not be withdrawn except to the extent that tendering shareholders are entitled to withdrawal rights as described herein under Section 4 – “Withdrawal Rights” and as otherwise required by Rule 14e-1(c) under the Exchange Act. Under no circumstances will we pay interest on the purchase price for Shares by reason of any extension of the Offer or any delay in making that payment.

If any tendered Shares are not accepted for payment for any reason pursuant to the terms and conditions of the Offer, or if Share Certificates are submitted evidencing more Shares than are tendered, Share Certificates evidencing unpurchased Shares will be returned, without expense to the tendering shareholder (or, in the case of Shares tendered by book-entry transfer into the Depositary’s account at DTC pursuant to the procedure set forth in Section 3 – “Procedures for Accepting the Offer and Tendering Shares,” those Shares will be credited to an account maintained at DTC), promptly following the expiration or termination of the Offer.

3.	Procedures for Accepting the Offer and Tendering Shares.

Valid Tenders. In order for a shareholder to tender Shares validly pursuant to the Offer, either (i) the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees (or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal) and any other documents required by the Letter of Transmittal must be received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase and either (A) the Share Certificates evidencing tendered Shares must be received by the Depositary at that address or (B) those Shares must be tendered pursuant to the procedure for book-entry transfer described below and a Book-Entry Confirmation must be received by the Depositary, in each case prior to the Expiration Date, or (ii) the tendering shareholder must comply with the guaranteed delivery procedures described below under “Guaranteed Delivery.”

Book-Entry Transfer. The Depositary will establish an account with respect to the Shares at DTC for purposes of the Offer within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in the system of DTC may make a book-entry delivery of Shares by causing DTC to transfer those Shares into the Depositary’s account at DTC in accordance with DTC’s procedures for that transfer. However, although delivery of Shares may be effected through book-entry transfer at DTC, either the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or an Agent’s Message in lieu of the Letter of Transmittal, and any other required documents, must, in any case, be received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Date, or the tendering shareholder must comply with the guaranteed delivery procedure described below under “Guaranteed Delivery.” Delivery of documents to DTC does not constitute delivery to the Depositary.

Signature Guarantees. No signature guarantee is required on the Letter of Transmittal (i) if the Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Section 3, includes any participant in DTC’s systems whose name appears on a security position listing as the owner of the Shares) of the Shares tendered therewith, unless that holder has completed either the box entitled “Special Delivery Instructions” or the box entitled “Special Payment Instructions” on the Letter of Transmittal or (ii) if the Shares are tendered for the account of a financial institution (including most commercial banks, savings and loan

associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion Program or any other “eligible guarantor institution,” as that term is defined in Rule 17Ad-15 of the Exchange Act (each, an “Eligible Institution” and, collectively, “Eligible Institutions”). In all other cases, all signatures on a Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 1 of the Letter of Transmittal. If a Share Certificate is registered in the name of a person or persons other than the signer of the Letter of Transmittal, or if payment is to be made or delivered to, or a Share Certificate not accepted for payment or not tendered is to be issued in, the name(s) of a person other than the registered holder(s), then the Share Certificate must be endorsed or accompanied by appropriate duly executed stock powers, in either case, signed exactly as the name(s) of the registered holder(s) appear on the Share Certificate, with the signature(s) on that Share Certificate or stock powers guaranteed by an Eligible Institution as provided in the Letter of Transmittal. See Instructions 1 and 5 of the Letter of Transmittal.

Guaranteed Delivery. If a shareholder desires to tender Shares pursuant to the Offer and the Share Certificates evidencing that shareholder’s Shares are not immediately available or that shareholder cannot deliver the Share Certificates and all other required documents to the Depositary prior to the Expiration Date, or that shareholder cannot complete the procedure for delivery by book-entry transfer on a timely basis, then those Shares may nevertheless be tendered, provided that all of the following conditions are satisfied:

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that tender is made by or through an Eligible Institution;

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a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form made available by us, is received prior to the Expiration Date by the Depositary as provided below; and

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the Share Certificates (or a Book-Entry Confirmation) evidencing all tendered Shares, in proper form for transfer, in each case, together with the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees (or, in the case of a book-entry transfer, an Agent’s Message), and any other documents required by the Letter of Transmittal are received by the Depositary within three trading days after the date of execution of that Notice of Guaranteed Delivery.

The Notice of Guaranteed Delivery may be delivered by overnight courier, transmitted by manually signed facsimile transmission or mailed to the Depositary and must include a guarantee by an Eligible Institution in the form set forth in the form of Notice of Guaranteed Delivery made available by us.

Notwithstanding any other provision of this Offer, payment for Shares accepted pursuant to the Offer will in all cases only be made after timely receipt by the Depositary of (i) Share Certificates evidencing those Shares or a Book-Entry Confirmation of a book-entry transfer of those Shares into the Depositary’s account at DTC pursuant to the procedures set forth in this Section 3, (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal and (iii) any other documents required by the Letter of Transmittal. Accordingly, tendering shareholders may be paid at different times depending upon when Share Certificates or Book-Entry Confirmations with respect to Shares are actually received by the Depositary.

The method of delivery of Share Certificates, the Letter of Transmittal and all other required documents, including delivery through DTC, is at the option and risk of the tendering shareholder, and the delivery will be deemed made only when actually received by the Depositary (including, in the case of a book-entry transfer, receipt of a Book-Entry Confirmation). If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.

The tender of Shares pursuant to any one of the procedures described above will constitute the tendering shareholder’s acceptance of the Offer, as well as the tendering shareholder’s representation and warranty that, among other things, the shareholder has the full power and authority to tender and assign the Shares tendered and that, upon acceptance for payment, the Purchaser will acquire good, marketable and unencumbered title to those Shares, free and clear of all liens, restrictions, charges and encumbrances, in each case, as specified in the Letter

of Transmittal. Our acceptance for payment of Shares tendered pursuant to the Offer will constitute a binding agreement between the tendering shareholder and us upon the terms and subject to the conditions of the Offer.

Determination of Validity. All questions as to the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Shares will be determined by us. We reserve the right to reject any and all tenders determined by us not to be in proper form or the acceptance for payment of which may, in the opinion of our counsel, be unlawful. We also reserve the absolute right to waive any defect or irregularity in the tender of any Shares of any particular shareholder, whether or not similar defects or irregularities are waived in the case of other shareholders. No tender of Shares will be deemed to have been validly made until all defects and irregularities have been cured or waived to our satisfaction. None of Parent, the Purchaser, the Depositary, the Dealer Manager, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Subject to any applicable legal requirements, any determination by us concerning any condition or event relating to this Offer, including the interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions thereto), may be challenged by O’Charley’s shareholders in a court of competent jurisdiction. A nonappealable determination with respect to such matter by a court of competent jurisdiction will be final and binding upon all persons.

Appointment. By executing the Letter of Transmittal as set forth above, the tendering shareholder will irrevocably appoint designees of the Purchaser as that shareholder’s attorneys-in-fact and proxies in the manner set forth in the Letter of Transmittal, each with full power of substitution, to the full extent of that shareholder’s rights with respect to the Shares tendered by that shareholder and accepted for payment by the Purchaser and with respect to any and all other Shares or other securities or rights issued or issuable in respect of those Shares. All those powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Shares. That appointment will be effective when, and only to the extent that, we accept for payment Shares tendered by that shareholder as provided herein. Upon that appointment, all prior powers of attorney, proxies and consents given by that shareholder with respect to those Shares or other securities or rights will, without further action, be revoked and no subsequent powers of attorney, proxies, consents or revocations may be given by that shareholder (and, if given, will not be deemed effective). The designees of the Purchaser will thereby be empowered to exercise all voting and other rights with respect to those Shares and other securities or rights, including, without limitation, in respect of any annual, special or adjourned meeting of O’Charley’s shareholders, actions by written consent in lieu of any such meeting or otherwise, as they in their sole discretion deem proper. We reserve the right to require that, in order for Shares to be deemed validly tendered, immediately upon our acceptance for payment of those Shares, the Purchaser must be able to exercise full voting, consent and other rights with respect to those Shares and other related securities or rights, including voting at any meeting of shareholders.

Backup Withholding. Under the “backup withholding” provisions of United States federal income tax law, the Depositary may be required to withhold and pay over to the Internal Revenue Service a portion of the amount of any payments pursuant to the Offer. In order to prevent backup federal income tax withholding with respect to payments to certain shareholders of the Offer Price for Shares purchased pursuant to the Offer, each of those shareholders must provide the Depositary with that shareholder’s correct taxpayer identification number (“TIN”) and certify that the shareholder is not subject to backup withholding by completing the Form W-9 in the Letter of Transmittal. Certain shareholders may not be subject to backup withholding. If a shareholder does not provide its correct TIN or fails to provide the certifications described above, the Internal Revenue Service may impose a penalty on the shareholder and payment to the shareholder pursuant to the Offer may be subject to backup withholding. All shareholders surrendering Shares pursuant to the Offer who are U.S. persons (as defined for U.S. federal income tax purposes) should complete and sign the Form W-9 included in the Letter of Transmittal to provide the information necessary to avoid backup withholding. Foreign shareholders should complete and sign the appropriate Form W-8 (a copy of which may be obtained from the Depositary) in order to avoid backup withholding. Those shareholders should consult a tax advisor to determine which Form W-8 is appropriate. See Instruction 9 of the Letter of Transmittal.

4.	Withdrawal Rights.

Except as otherwise provided in this Section 4, tenders of Shares made pursuant to the Offer are irrevocable.

Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Date and, unless theretofore accepted for payment by the Purchaser pursuant to the Offer, may also be withdrawn at any time after April 27, 2012.

For a withdrawal to be effective, a written or facsimile transmission notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover page of this Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder of those Shares, if different from that of the person who tendered those Shares. If Share Certificates evidencing Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of those Share Certificates, the serial numbers shown on those Share Certificates must be submitted to the Depositary and the signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution, unless those Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedure for book-entry transfer as set forth in Section 3 – “Procedures for Accepting the Offer and Tendering Shares,” any notice of withdrawal must also specify the name and number of the account at DTC to be credited with the withdrawn Shares.

Withdrawals of Shares may not be rescinded. Any Shares properly withdrawn will thereafter be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by again following one of the procedures described in Section 3 – “Procedures for Accepting the Offer and Tendering Shares” at any time prior to the Expiration Date.

No withdrawal rights will apply to Shares tendered during a subsequent offering period and no withdrawal rights apply during the subsequent offering period with respect to Shares tendered in the Offer and accepted for payment. See Section 1 – “Terms of the Offer.”

We will determine all questions as to the form and validity (including time of receipt) of any notice of withdrawal. Subject to any applicable legal requirements, any such determination by us may be challenged by O’Charley’s shareholders in a court of competent jurisdiction. A nonappealable determination with respect to such matter by a court of competent jurisdiction will be final and binding upon all persons. None of Parent, the Purchaser, the Depositary, the Dealer Manager, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.

5.	Certain United States Federal Income Tax Consequences.

The following is a summary of certain United States federal income tax consequences of the Offer and the Merger to shareholders of O’Charley’s whose Shares are tendered and accepted for payment pursuant to the Offer or whose Shares are converted into the right to receive cash in the Merger. The discussion is for general information only and does not purport to consider all aspects of United States federal income taxation that might be relevant to shareholders of O’Charley’s. The discussion is based on current provisions of the Internal Revenue Code of 1986, as amended (the “Code”), existing, proposed and temporary regulations thereunder and administrative and judicial interpretations thereof, all of which are subject to change, possibly with a retroactive effect. The discussion applies only to shareholders of O’Charley’s in whose hands Shares are capital assets within the meaning of Section 1221 of the Code. This discussion does not apply to Shares held as part of a hedge, straddle or conversion transaction, Shares acquired under O’Charley’s stock incentive plans or Shares received pursuant to the exercise of employee stock options or otherwise as compensation, or to certain types of shareholders (such as insurance companies, tax-exempt organizations, financial institutions and broker-dealers, partnerships and other entities treated as partnerships for U.S. federal income tax purposes and partners in such partnerships) who may be subject to special

rules. This discussion applies only to a beneficial holder of Shares which is one of the following: (i) an individual who is a citizen or resident of the United States; (ii) a corporation, or other entity taxable as a corporation for United States federal income tax purposes, created or organized in or under the laws of the United States, any state thereof or the District of Columbia; (iii) an estate the income of which is subject to United States federal income taxation regardless of its source; or (iv) a trust, if a court within the United States is able to exercise primary jurisdiction over its administration and one or more U.S. persons have authority to control all of its substantial decisions, or if the trust has a valid election in effect under applicable Treasury regulations to be treated as a U.S. person. This discussion does not consider the effect of any foreign, state or local tax laws.

Because individual circumstances may differ, each shareholder should consult its, his or her own tax advisor to determine the applicability of the rules discussed below and the particular tax effects of the Offer and the Merger on a beneficial holder of Shares, including the application and effect of the alternative minimum tax and any state, local and foreign tax laws and of changes in those laws.

The exchange of Shares for cash pursuant to the Offer or the Merger will be a taxable transaction for United States federal income tax purposes. In general, a shareholder who sells Shares pursuant to the Offer or receives cash in exchange for Shares pursuant to the Merger will recognize gain or loss for United States federal income tax purposes in an amount equal to the difference, if any, between the amount of cash received (determined before the deduction of any withholding tax) and the shareholder’s adjusted tax basis in the Shares sold pursuant to the Offer or exchanged for cash pursuant to the Merger. Gain or loss will be determined separately for each block of Shares (that is, Shares acquired at the same cost in a single transaction) tendered pursuant to the Offer or exchanged for cash pursuant to the Merger. That gain or loss will be long-term capital gain or loss provided that a shareholder’s holding period for those Shares is more than one year at the time of consummation of the Offer or the Merger, as the case may be. Capital gains recognized by an individual upon a disposition of a Share that has been held for more than one year generally will be subject to a maximum United States federal income tax rate of 15%. In the case of a Share that has been held for one year or less, that capital gain generally will be subject to tax at ordinary income tax rates. Certain limitations apply to the use of a shareholder’s capital losses.

A shareholder whose Shares are purchased in the Offer or exchanged for cash pursuant to the Merger is subject to information reporting and may be subject to backup withholding unless certain information is provided to the Depositary or an exemption applies. See Section 3 – “Procedures for Accepting the Offer and Tendering Shares.”

6.	Price Range of Shares; Dividends.

The Shares currently trade on the NASDAQ Global Select Market (“Nasdaq”) under the symbol “CHUX.” According to O’Charley’s, as of February 20, 2012, there were 21,947,206 Shares issued and outstanding (inclusive of restricted stock awards issued pursuant to any O’Charley’s equity incentive plan), and 1,580,231 Shares issuable upon the exercise of outstanding options.

The following table sets forth, for the periods indicated, the high and low sale prices per Share for each quarterly period within the three preceding fiscal years, as reported by Nasdaq based on published financial sources.


	High		Low
Year Ended December 27, 2009
First Quarter	$	4.95	$	1.83
Second Quarter		10.20		4.18
Third Quarter		11.41		7.45
Fourth Quarter		10.10		5.32
Year Ended December 26, 2010
First Quarter	$	9.95	$	6.35
Second Quarter		10.00		4.38
Third Quarter		7.49		5.28
Fourth Quarter		7.98		6.65
Year Ended December 25, 2011
First Quarter	$	8.26	$	5.66
Second Quarter		7.99		5.98
Third Quarter		7.82		4.51
Fourth Quarter		6.84		4.85
Year Ended December 30, 2012
First Quarter (through February 24, 2012)		10.30		5.34

7.	Certain Information Concerning O’Charley’s.

Except as specifically described herein, the information concerning O’Charley’s contained in this Offer to Purchase has been taken from or is based upon information furnished by O’Charley’s or its representatives or upon publicly available documents and records on file with the SEC and other public sources. The summary information set forth below is qualified in its entirety by reference to O’Charley’s public filings with the SEC (which may be obtained and inspected as described below) and should be considered in conjunction with the more comprehensive financial and other information in those reports and other publicly available information. We have no knowledge that would indicate that any statements contained herein based on those documents and records are untrue. However, we do not assume any responsibility for the accuracy or completeness of the information concerning O’Charley’s, whether furnished by O’Charley’s or contained in those documents and records, or for any failure by O’Charley’s to disclose events which may have occurred or which may affect the significance or accuracy of any of that information but which are unknown to us.

General. O’Charley’s is a multi-concept restaurant company with its principal offices located at 0000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 XXX. The telephone number for O’Charley’s is (000) 000-0000. O’Charley’s owns and operates three restaurant concepts under the “O’Charley’s,” “Ninety Nine” and “Stoney River Legendary Steaks” trade names. According to O’Charley’s Quarterly Report on Form 10-Q for the fiscal quarter ended October 2, 2011, as of October 2, 2011, O’Charley’s operated 221 full-service restaurant facilities in 17 states in the East, Southeast and Midwest under the trade name “O’Charley’s,” 106 full-service restaurant

facilities in seven states throughout New England and upstate New York under the trade name “Ninety Nine Restaurants” and 10 full-service restaurant facilities in six states in the Southeast and Midwest under the trade name “Stoney River Legendary Steaks.” As of October 2, 2011, O’Charley’s had six franchised O’Charley’s restaurants in four states.

Available Information. The Shares are registered under the Exchange Act. Accordingly, O’Charley’s is subject to the information reporting requirements of the Exchange Act, which require O’Charley’s to file periodic reports, proxy statements and other information with the SEC relating to its business, financial condition and other matters. Information as of particular dates concerning O’Charley’s directors and officers, their remuneration, stock options granted to them, the principal holders of O’Charley’s securities, any material interests of those persons in transactions with O’Charley’s and other matters is required to be disclosed in proxy statements, the last one having been filed with the SEC on April 8, 2011 and distributed to O’Charley’s shareholders. That information also will be available in O’Charley’s Solicitation/ Recommendation Statement on Schedule 14D-9 and the Information Statement annexed thereto. Those reports, proxy statements and other information are available for inspection at the SEC’s Public Reference Room at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. Please call the SEC at 0-000-XXX-0000 for further information on the public reference room. Copies of that information may be obtainable by mail, upon payment of the SEC’s customary charges, by writing to the SEC at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0213. The SEC also maintains a web site on the Internet at xxxx://xxx.xxx.xxx that contains reports, proxy statements and other information regarding registrants, including O’Charley’s, that file electronically with the SEC.

Summary Financial Information. Set forth below is certain summary financial information for O’Charley’s and its consolidated subsidiaries excerpted from O’Charley’s Annual Report on Form 10-K for the fiscal year ended December 26, 2010, its Quarterly Report on Form 10-Q for the quarterly period ended October 2, 2011 and its Quarterly Report on Form 10-Q for the quarterly period ended October 3, 2010. More comprehensive financial information is included in those reports and other documents filed by O’Charley’s with the SEC, and the following summary is qualified in its entirety by reference to those reports and other documents and all of the financial information and notes contained therein. Copies of those reports and other documents may be examined at or obtained from the SEC in the manner described above.


	Quarter Ended						Year Ended
	October 2, 2011			October 3, 2010			December 26, 2010			December 27, 2009
	(In thousands, except per share amounts)
Operating Data
Total revenues	$	186,588		$	188,642		$	830,109		$	866,273
Income (loss) from continuing operations	$	(3,953	)	$	(7,030	)	$	(27,285	)	$	(3,167	)
Net income (loss)	$	(4,012	)	$	(7,438	)	$	(34,915	)	$	(7,325	)
Basic and diluted net income (loss) per share	$	(0.19	)	$	(0.35	)	$	(1.65	)	$	(0.35	)


	Quarter Ended				Year Ended
	October 2, 2011		October 3, 2010		December 26, 2010		December 27, 2009
	(In thousands)
Balance Sheet Data
Total assets	$	402,916		$ 432,395		$ 422,741	$	462,255
Total liabilities	$	226,919		234,024		$ 244,507	$	253,136
Shareholders’ equity	$	175,997		$ 198,371		$ 178,234	$	209,119

Financial Projections. In connection with our due diligence review of O’Charley’s, O’Charley’s made available to us certain non-public financial information about O’Charley’s, including unaudited financial projections prepared in December 2011 based solely on information available at that time by O’Charley’s management with respect to the fiscal year ending December 30, 2012.

O’Charley’s has advised us that its financial projections reflect numerous judgments, estimates and assumptions with respect to industry performance, general business, economic, regulatory, legal, market and financial conditions and other future events, as well as matters specific to O’Charley’s business, all of which are difficult to predict and many of which are beyond O’Charley’s control and that the continuing turmoil in general economic conditions also creates significant uncertainty around the projections. These financial projections are subjective in many respects and thus are susceptible to multiple interpretations and periodic revisions based on actual experience and business developments. As a result, these financial projections constitute forward-looking information and are subject to risks and uncertainties that could cause actual results to differ materially from the results forecasted in those projections, including the various risks set forth in O’Charley’s periodic reports filed with the SEC. There can be no assurance that the projected results will be realized or that actual results will not be significantly higher or lower than projected. The financial projections cover multiple years and that information by its nature becomes less reliable with each successive year.

O’Charley’s has advised us that the financial projections were not prepared with a view toward public disclosure and some of the financial projections were not prepared in accordance with U.S. generally accepted accounting principles (“GAAP”). Additionally, O’Charley’s has informed us that the financial projections were not prepared with a view to compliance with the published guidelines of the SEC regarding projections or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information. The financial projections included below were prepared by O’Charley’s management. Neither O’Charley’s independent registered public accounting firm, nor any other independent accountants, have compiled, examined or performed any procedures with respect to the financial projections included below, nor have they expressed any opinion or any other form of assurance on that information or its achievability, and they assume no responsibility for, and disclaim any association with, the financial projections.

The inclusion of the financial projections herein will not be deemed an admission or representation by O’Charley’s or us that they are viewed by O’Charley’s or us as material information of O’Charley’s. nor that O’Charley’s or we considered or consider these financial projections to be necessarily predictive of actual future results.

The financial projections do not take into account any circumstances or events occurring after the date they were prepared, including the announcement of the acquisition of O’Charley’s by us pursuant to the Offer and the Merger. Further, the financial projections do not take into account the effect of any failure to occur of the Offer or the Merger and should not be viewed as accurate or continuing in that context. O’Charley’s has not updated or revised nor does O’Charley’s intend to update or otherwise revise the financial projections to reflect circumstances existing since their preparation or to reflect the occurrence of unanticipated events even in the event that any or all of the underlying assumptions are shown to be in error.

O’Charley’s Financial Projections


	Fiscal Year 2012E
	(In millions)
Total Revenues	$	838.7
Income from Operations	$	3.0
EBITDA	$	35.1
Adjusted EBITDA	$	37.9

8.	Certain Information Concerning Parent, the Purchaser and Certain Related Persons

Parent is a Delaware corporation. Parent’s principal office is located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and its telephone number at that address is (000) 000-0000. Parent is a leading provider of title insurance, mortgage services and diversified services. Parent currently owns 2,079,542 Shares, or approximately 9.5% of all of the issued and outstanding Shares of O’Charley’s.

The Purchaser is a Tennessee corporation and an indirect, wholly-owned subsidiary of Parent. The Purchaser was organized by Parent to acquire O’Charley’s and has not conducted any unrelated activities since its organization. The Purchaser’s principal office is located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and its telephone number at that address is (000) 000-0000.

The Purchaser is a wholly-owned subsidiary of Fidelity National Special Opportunities, Inc. (“FNSO”), a Delaware corporation. FNSO is a wholly-owned subsidiary of Parent. FNSO is a holding company that also currently holds a minority interest in American Blue Ribbon Holdings, LLC, the owner and operator of the Village Inn, Bakers Square and Max & Erma’s restaurants. FNSO’s principal office is located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and its telephone number at that address is (000) 000-0000.

The name, citizenship, business address, present principal occupation or employment and five-year employment history of each of the directors and executive officers of Parent, the Purchaser and FNSO are listed in Schedule I to this Offer to Purchase.

During the last five years, neither Parent, the Purchaser, FNSO nor, to the best knowledge of the Purchaser, Parent and FNSO, any of the persons listed in Schedule I to this Offer to Purchase (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of those laws.

Except as otherwise described in this Offer to Purchase or Schedule I hereto, (i) neither Parent, the Purchaser, FNSO nor, to the best knowledge of Parent, the Purchaser and FNSO, any of the persons listed in Schedule I to this Offer to Purchase or any associate or majority-owned subsidiary of Parent, the Purchaser, FNSO or any of the persons so listed beneficially owns or has any right to acquire, directly or indirectly, any Shares, other than the 2,079,542 Shares currently owned by Parent and (ii) neither Parent, the Purchaser, FNSO nor, to the best knowledge of Parent, the Purchaser and FNSO, any of the persons or entities referred to Schedule I hereto nor any director, executive officer or subsidiary of any of the foregoing has effected any transaction in the Shares during the past 60 days.

Except as provided in the Merger Agreement or as otherwise described in this Offer to Purchase, neither Parent, the Purchaser, FNSO nor, to the best knowledge of Parent, the Purchaser and FNSO, any of the persons listed in Schedule I to this Offer to Purchase, has any contract, arrangement, understanding or relationship with any other person with respect to any securities of O’Charley’s, including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or voting of those securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss, guarantees of profits, division of profits or loss or the giving or withholding of proxies.

Except as otherwise described in this Offer to Purchase, neither Parent, the Purchaser nor FNSO or, to the best knowledge of Parent, the Purchaser and FNSO, any of the persons listed on Schedule I hereto, has had any business relationship or transaction with O’Charley’s or any of its executive officers, directors or affiliates that is required to be reported under the rules and regulations of the SEC applicable to the Offer. Except as otherwise described in this Offer to Purchase, there have been no contacts, negotiations or transactions between Parent, the Purchaser, FNSO or any of its subsidiaries or, to the best knowledge of Parent, the Purchaser, FNSO or any of the persons listed in Schedule I to this Offer to Purchase, on the one hand, and O’Charley’s or its affiliates, on the other hand, concerning a merger, consolidation or acquisition, tender offer or other acquisition of securities, an election of directors or a sale or other transfer of a material amount of assets during the past two years.

Available Information. Pursuant to Rule 14d-3 under the Exchange Act, we have filed with the SEC a Tender Offer Statement on Schedule TO (the “Schedule TO”), of which this Offer to Purchase forms a part, and exhibits to the Schedule TO. The Schedule TO and the exhibits thereto, as well as other information filed by the

Purchaser with the SEC, are available for inspection at the SEC’s Public Reference Room at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. Please call the SEC at 0-000-XXX-0000 for further information on the public reference room. Copies of that information may be obtainable by mail, upon payment of the SEC’s customary charges, by writing to the SEC at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0213. The SEC also maintains a web site on the Internet at xxxx://xxx.xxx.xxx that contains the Schedule TO and the exhibits thereto and other information that the Purchaser has filed electronically with the SEC.

9.	Source and Amount of Funds.

The Offer is not conditioned on the procurement of any financing. We estimate that we will need approximately $225 million to purchase all of the Shares that Parent and its subsidiaries do not already own pursuant to the Offer, to make payments in respect of outstanding in-the-money options, to repay O’Charley’s existing indebtedness and to consummate the Merger, plus related fees and expenses. Parent and its subsidiaries will provide us with sufficient funds (by means of a capital contribution and/or other advancement) to purchase all Shares properly tendered in the Offer and to provide funding for the Merger and the other transactions contemplated by the Merger Agreement, which are expected to follow the successful completion of the Offer in accordance with the terms and conditions of the Merger Agreement.

Parent expects to obtain the necessary funds from its and its subsidiaries’ available cash and cash equivalents and through borrowings under its unsecured revolving bank credit facility under the Amendment and Restatement Agreement, dated as of March 5, 2010, to the Credit Agreement among Parent, Bank of America, N.A., and certain agents and other lenders party thereto (the “Credit Agreement”), and the Commitment Increase Agreement, dated as of March 5, 2010, among Parent, Bank of America, N.A. as Administrative Agent, and the other financial institutions party thereto (together with the Credit Agreement, the “Credit Facility”). At December 31, 2011, Parent had $825.0 million of unused capacity, and outstanding debt with a principal amount of $100.0 million (due March 2013) with interest payable monthly at LIBOR plus 2.00% (2.28% at December 31, 2011), under the Credit Agreement. As of the date of this Offer to Purchase, Parent and the Purchaser do not have any alternative committed financing arrangements or financing plans with respect to the Offer and the Merger in the event that borrowings under the Credit Facility are not available.

Effective March 5, 2010, we amended and extended our then existing credit agreement and agreed to change the aggregate size of the Credit Facility. These agreements reduced the total size of the existing credit facility from $1.1 billion to $951.2 million, with an option to increase the size of the Credit Facility to $1.1 billion, and created a new tranche, representing $925.0 million of the total Credit Facility, with an extended maturity date of March 5, 2013. Pricing for the new tranche is based on an applicable margin between 160 basis points to 240 basis points over LIBOR, depending on the senior debt ratings of Parent. The Credit Agreement remains subject to affirmative, negative and financial covenants customary for financings of this type, including, among other things, limits on the creation of liens, sales of assets, the incurrence of indebtedness, restricted payments, transactions with affiliates, and certain amendments. The Credit Agreement prohibits Parent from paying dividends to our stockholders if an event of default has occurred and is continuing or would result therefrom. The Credit Agreement requires Parent to maintain certain financial ratios and levels of capitalization. The Credit Agreement includes customary events of default for facilities of this type (with customary grace periods, as applicable). These events of default include a cross-default provision that, subject to limited exceptions, permits the lenders to declare the Credit Agreement in default if: (i) (A) we fail to make any payment after the applicable grace period under any indebtedness with a principal amount (including undrawn committed amounts) in excess of 3% of our net worth, as defined in the Credit Agreement, or (B) we fail to perform any other term under any such indebtedness, or any other event occurs, as a result of which the holders thereof may cause it to become due and payable prior to its maturity; or (ii) certain termination events occur under significant interest rate, equity or other swap contracts. The Credit Agreement provides that, upon the occurrence of an event of default, the interest rate on all outstanding obligations will be increased and payments of all outstanding loans may be accelerated and/or the lenders’ commitments may be terminated. In addition, upon the occurrence of certain insolvency or bankruptcy related events of default, all amounts payable under the Credit Agreement shall automatically become immediately due and payable, and the lenders’ commitments will automatically terminate.

Copies of the agreements that comprise the Credit Facility have been filed as exhibits to the Tender Offer Statement on Schedule TO to which this Offer to Purchase is attached as an exhibit, and the foregoing summary is qualified in its entirety by reference to the terms and conditions of the Credit Facility, and those exhibits are incorporated herein by reference.

The Purchaser does not think its financial condition is relevant to a decision by the holders of Shares whether to tender Shares and accept the Offer because:

•

the Offer is being made for all outstanding Shares solely for cash;

•

the Purchaser, through Parent and its subsidiaries, will have sufficient funds available to purchase all Shares successfully tendered in the Offer in light of its financial capacity in relation to the amount of consideration payable;

•

the Offer is not subject to any financing condition; and

•

if the Purchaser consummates the Offer, it expects to acquire any remaining Shares for the same cash price in the Merger.

10.	Background of the Offer; Past Contacts or Negotiations with O’Charley’s.

The following is a description of Parent’s participation in a process with O’Charley’s that culminated in the execution of the Merger Agreement. For a review of the activities of O’Charley’s relating to that process, you are referred to the Schedule 14D-9 of O’Charley’s being mailed to shareholders with this Offer to Purchase. The information set forth below regarding O’Charley’s was provided by O’Charley’s, and none of Parent, Purchaser nor any of their affiliates takes any responsibility for the accuracy or completeness of any information regarding meetings or discussions in which Parent or its affiliates or representatives did not participate.

Parent is a leading provider of title insurance, mortgage services and diversified services and uses its cash flow and other resources for, among other things, making and managing equity investments across a number of industries. Parent, through its wholly-owned subsidiary FNSO, owns a 45% interest in American Blue Ribbon Holdings, LLC (“ABRH”), an owner and operator of the Village Inn, Bakers Square and Max & Erma’s restaurants. From time to time, Parent engages in discussions relating to potential transactions of public and private restaurant companies, both by approaching potential targets directly and by participating in target-initiated sale processes.

In March and April 2011, Xxxxxx’s financial advisor Jefferies introduced several restaurant combination ideas for ABRH.

In early April 2011, Xxxxx X. Xxxxxxx, Parent’s Executive Vice President of Corporate Finance, sent an email to O’Charley’s Chairman Xxxx Xxxxxx, requesting a telephone call between Xx. Xxxxxx and Xx. Xxxxxxx. Xx. Xxxxxx agreed, and the call took place on April 6, 2011. In that call, Xx. Xxxxxxx introduced himself, gave some background on Parent’s operations and sought to schedule a meeting among Xx. Xxxxxx, Xx. Xxxxxxx and Xxxxx Xxx, the Chief Executive Officer of ABRH, an affiliate of Parent that operates multiple restaurant concepts, relating to a possible strategic transaction between O’Charley’s and Parent or ABRH. Noting that O’Charley’s was not for sale and was focused on pursuing its strategic plan as a standalone entity, Xx. Xxxxxx declined the offer of an in-person meeting, but agreed to a telephone conversation with Messrs. Xxxxxxx and Xxx.

On May 23, 2011, Messrs. Xxxxxx, Xxxxxxx and Ouf spoke by telephone, with Messrs. Xxxxxxx and Ouf offering background information regarding the operations of ABRH and its restaurant concepts and claiming their complementary nature with the restaurant concepts operated by O’Charley’s. Messrs. Xxxxxxx and Ouf did not make any specific proposal regarding an acquisition or other strategic combination transaction between Parent, ABRH and O’Charley’s. Xx. Xxxxxx reiterated that O’Charley’s was not for sale and was focused on pursuing its strategic plan as a standalone entity. Following that conversation, no further contact between Xx. Xxxxxx and any representatives of Parent or ABRH was had for several months.

Over the course of several months and as reported on a Schedule 13D filed with the SEC on September 9, 2011, Parent (acting on its own as well as through one of its subsidiaries) accumulated 1,849,354 Shares (or 8.4% of the then outstanding Shares) through open market purchases. That Schedule 13D announced that Parent may, among other things, engage in discussions with O’Charley’s management, and propose a business combination.

Subsequently, on September 10, 2011, Xx. Xxxxxxx sent Xx. Xxxxxx an email noting that Xxxxxx had filed a Schedule 13D and requesting a meeting between Xx. Xxxxxx and Xxxxxxx X. Xxxxx, XX, the Chairman of the Board of Directors of Parent, in Nashville, Tennessee in late October 2011. Xx. Xxxxxx agreed to meet with Xx. Xxxxx, and a meeting was set for October 21, 2011.

On September 22, 2011, Parent reported additional open market purchases for an aggregate stake of 2,079,542 Shares (or 9.5% of the then outstanding Shares).

On October 6, 2011, Xxxxxx’s Chairman and Executive Vice President of Corporate Finance participated in a call arranged by Jefferies with Crescendo Partners, a shareholder of O’Charley’s with two designees serving as directors on the O’Charley’s Board of Directors, to introduce Crescendo Partners to Parent and to explain Xxxxxx’s interest in the restaurant industry in general and its investment in O’Charley’s, in particular. Crescendo Partners stated that O’Charley’s was not for sale. Crescendo Partners neither encouraged nor discouraged Parent from making an offer to purchase O’Charley’s.

On October 19, 2011, Xx. Xxxxxxx emailed Xx. Xxxxxx to cancel the meeting between Messrs. Xxxxxx and Xxxxx due to scheduling conflicts.

After a preliminary review of publicly available information for O’Charley’s, on October 24, 2011 Jefferies submitted to the Board of Directors of O’Charley’s a preliminary, non-binding expression of interest on behalf of Parent to acquire 100% of O’Charley’s, for a purchase price between $9.17 to $9.80 per Share, based on publicly available information and other assumptions, with the consideration to be in the form of half cash and half shares of Parent’s common stock, subject to completion of due diligence, among other things. The expression of interest included a request for exclusivity and discussed in general terms an intention to combine O’Charley’s with Parent’s investment in ABRH.

On October 27, 2011, Xx. Xxxxxx telephoned Xxxxxx Xxxxxxx, the Chief Executive Officer of Parent, to relay that the Board had conducted a preliminary review of the letter and the terms of Parent’s offer and that O’Charley’s was not for sale, but that the Board of Directors would engage in a further review of Parent’s indication of interest and respond in due course. Xx. Xxxxxx also stated that he would call Xx. Xxxxxxx again during the week beginning November 6, 2011, to provide any update on the Board of Directors’ further consideration of Parent’s indication of interest.

On November 7, 2011, Xx. Xxxxxx spoke with Xx. Xxxxxxx via telephone and expressed the Board of Directors’ view that O’Charley’s was not for sale but that, subject to the parties’ execution of an appropriate confidentiality and standstill agreement, the Board of Directors would be willing to provide limited due diligence information to Parent in order to allow Parent to consider improving its proposal.

On November 8, 2011, Evercore provided a draft confidentiality and standstill agreement to Parent and Jefferies. Over the succeeding two weeks, representatives of Bass, Xxxxx & Xxxx PLC (“BBS”), outside legal counsel to O’Charley’s, and Parent exchanged drafts and negotiated various terms of the confidentiality and standstill agreement, including the extent to which employees and representatives of Parent and ABRH would be allowed access to confidential information of O’Charley’s. On November 23, 2011, Parent, ABRH and O’Charley’s executed a definitive confidentiality and standstill agreement. That confidentiality and standstill agreement is described in more detail below.

On December 4, 2011, representatives of ABRH, Xxxxxx and Jefferies met with Xx. Xxxxxx, Xxxxxxx Xxxxxx, one of O’Charley’s independent directors, members of O’Charley’s management team and

representatives of Evercore at the offices of BBS in Nashville, Tennessee to discuss management’s overview and strategic plan for the business. At the meeting, Messrs. Xxxxxx, Xxxx and Xxxxxxxx presented certain details of O’Charley’s financial condition, operational performance and strategic plan, and the representatives of O’Charley’s at the meeting responded to questions from the representatives of Parent and ABRH. Following the general meeting, Messrs. Xxxxxx and Xxxxxx and a representative of Evercore met with Messrs. Xxxxxxx and Xxxxxxx and representatives of Jefferies. Messrs. Xxxxxx and Xxxxxx and the Evercore representative answered various additional questions from the Parent representatives and informed them that the Board of Directors’ position remained that O’Charley’s was not for sale, that the Board of Directors would not be interested in a transaction in which Parent’s common stock would comprise a portion of the consideration, and that the valuation range set forth in the October 24, 2011 letter from Parent was insufficient for the Board of Directors to pursue further discussions regarding a possible transaction. In response, the Parent representatives indicated they intended to submit a revised proposal based on the additional information they had received.

On December 15, 2011, Xxxxxx submitted to the O’Charley’s Board of Directors an updated, non-binding expression of interest for an acquisition of 100% of the Shares for a purchase price between $9.65 to $10.00 per Share, in cash, based on a refined view of the Company’s projected adjusted EBITDA for 2011 and other assumptions, and targeting completion of outstanding due diligence and negotiating and signing a definitive merger agreement on or before January 31, 2012.

On December 21, 2011, representatives of Evercore conveyed to Jefferies the O’Charley’s Board of Directors’ desire for additional information relating to the structure of the transaction proposed by Parent, including confirmation that any transaction would not include any financing contingency, and a single-point price proposal in lieu of the range previously provided. Evercore and BBS also shared with Parent a statement of the terms—including a “go-shop” period—that O’Charley’s would propose to include in any definitive acquisition agreement in the event the Board of Directors determined to grant Parent exclusivity or the Board of Directors determined to enter into a definitive acquisition agreement with Parent without having contacted other potentially interested parties.

Over the next several days, Xxxxxx’s team discussed the statement of terms internally with Jefferies and Xxxxxx’s legal counsel from Xxxx, Gotshal & Xxxxxx LLP (“Weil”).

On December 23, 2011, Jefferies responded to Evercore that Parent was not prepared to revise its proposed offer price or propose a single-point value until it had the opportunity to review certain additional due diligence information.

On December 28, 2011, Parent sent its non-binding response to the statement of terms to O’Charley’s and Evercore.

On December 29, 2011, Evercore and O’Charley’s legal counsel from BBS requested a conference call with Xxxxxx, Weil and Jefferies to clarify two matters in Parent’s revised statement of terms. BBS and Evercore reiterated that deal certainty was a priority of the Board of Directors of O’Charley’s and requested, and received, confirmation that financing was neither a condition nor necessary to complete the transaction. The parties discussed using a first-step tender offer, back-end merger deal structure. Parent also confirmed its willingness to agree to a 30-day “go-shop period” following execution of a definitive transaction agreement, that Parent itself would be the counterparty to the proposed transaction, and that Xxxxxx was willing to commit the resources necessary to close an all-cash transaction approximately 45 days following the execution of a definitive acquisition agreement. The revised statement of terms was not revised further or signed by any of the parties.

On December 31, 2011, Evercore conveyed to Jefferies that the Board of Directors had made no definitive decision as to whether to pursue Xxxxxx’s proposal but that O’Charley’s would be willing to provide certain additional due diligence information to Parent and its representatives through a virtual data room to be established the following week for the purpose of allowing Parent to refine its proposal on price. Evercore asked Jefferies to provide Xxxxxx’s list of individuals for whom access to the data room would be sought.

On January 3, 2012, Jefferies provided an initial list, and, following a review by O’Charley’s management and advisors of the individuals for whom access was requested, on January 4, 2012, the data room was opened to the requested individuals. On that date, O’Charley’s provided to Parent, ABRH and Jefferies store-level data and continued to respond to the follow-up due diligence questions. During the month, O’Charley’s management team addressed several diligence questions through conference calls and additional information posted to an electronic data room. As requested, O’Charley’s management and advisors provided data room access to additional individuals representing Parent and ABRH.

On January 6, 2012, Xxxxxx and Xxxx received an initial draft of the Merger Agreement from BBS. Internal revised drafts were circulated to Parent and Jefferies.

For the next two weeks, Parent and its representatives conducted a review of the due diligence materials provided through the virtual data room, made additional requests for information and asked various follow-up questions regarding materials provided.

On January 18, 2012, Xxxxxx and Xxxx provided to BBS comments to the initial draft of the Merger Agreement. Although the revised draft Merger Agreement presented points of divergence from O’Charley’s draft, it did reflect Parent’s agreement to engage in a two-step tender offer and merger transaction structure as well as to O’Charley’s proposal of a 30-day “go-shop” period following execution of a definitive agreement.

On January 20, 2012, O’Charley’s provided Xxxxxx’s team with fourth quarter and full year 2011 financial statements.

On January 24, 2012, Jefferies submitted to O’Charley’s a revised offer of $9.75 per share in cash, on behalf of Parent, that noted key areas in which due diligence remained to be completed.

On January 27, 2012, Xxxx provided to BBS a draft tender and support agreement that Xxxxxx proposed to enter into with certain shareholders of O’Charley’s affiliated with Crescendo Partners, including two of O’Charley’s directors, Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxx (the “Crescendo Shareholders”). Under the proposed draft tender and support agreement, the Crescendo Shareholders would, among other things, agree, unless the tender and support agreement is earlier terminated, including upon the termination of the related Merger Agreement, to tender their shares in the tender offer and, if shareholder approval of the Merger were required by applicable law, to vote for the Merger.

On January 31, 2012, Xxxx and BBS discussed open issues in the revised draft of the Merger Agreement.

On February 1, 2012, BBS and outside legal counsel to the Crescendo Shareholders delivered a revised draft of the tender and support agreement to Xxxx.

On the evening of February 1, 2012, Xxxx sent a revised draft of the Merger Agreement to BBS and O’Charley’s. A representative of Evercore also contacted Jefferies to request that Jefferies provide Parent’s response on price.

On the morning of February 2, 2012, Jefferies contacted Evercore with Xxxxxx’s response to O’Charley’s position on price. Jefferies indicated that Xxxxxx’s offer of $9.75 per share remained unchanged, and was, in fact, Parent’s “best and final” offer on price. Later on February 2, 2012, Xx. Xxxxxx and a representative of Evercore had a telephone conversation with Xx. Xxxxxxx and a representative of Jefferies in which Xx. Xxxxxx and the Evercore representative conveyed the Board of Directors’ belief that the analysis by Evercore and O’Charley’s using Parent’s own valuation methodology as outlined in Parent’s initial indication of interest, O’Charley’s fiscal 2011 financial results and certain other financial and tax aspects of O’Charley’s supported a higher price than the $9.75 offer made by Parent. Xx. Xxxxxxx reiterated that $9.75 was Parent’s “best and final” offer on price. Soon after the conclusion of that telephone conversation, Xx. Xxxxxx and Xx. Xxxxxxx had a further telephone conversation along similar lines, with Xx. Xxxxxx reiterating the Board’s view on price. In that conversation, Xx. Xxxxxxx agreed to consult with Xx. Xxxxx, Xxxxxx’s Chairman, and respond to Xx. Xxxxxx in due course.

On the afternoon of February 2, 2012, Xxxx and BBS discussed, among other things, the length of the “go shop” period, the size of the “go shop” termination fee, limitations on the Company’s fiduciary out, Company remedies and certain “bring down” closing conditions, in the revised draft of the Merger Agreement.

On the morning of February 3, 2012, Xx. Xxxxxx had multiple discussions with Xx. Xxxxxxx regarding Parent’s price proposal. Xx. Xxxxxxx indicated that he had consulted with Xx. Xxxxx and that Parent continued to believe that $9.75 per share was a full and fair price, but that, in order to bring discussions to a close and as its “best and final” offer, Parent was willing to increase its offer price to $9.85 per share, subject to approval by its Board of Directors.

On February 4, 2012, BBS sent a revised draft of the Merger Agreement to Parent and Xxxx, which was finalized over the course of the next two days.

On February 4, 2012, representatives of O’Charley’s, BBS, Evercore, Parent, XXXX, Xxxx and Jefferies conducted final due diligence conference calls to resolve open issues.

On February 5, 2012, after careful consideration, at a meeting of Parent’s Board of Directors, Xxxxxx’s Board of Directors (and in a written consent in lieu of a meeting of the Purchaser’s Board of Directors, the Purchaser’s Board of Directors) unanimously adopted and declared advisable the Merger Agreement and unanimously determined that the Merger is in the best interests of Parent (and the Purchaser) and its shareholders. The Purchaser’s Board of Directors recommended that its sole shareholder, FNSO, vote for adoption of the Merger and approval of the Merger Agreement and the transactions contemplated by the Merger Agreement, which FNSO did by written consent in lieu of a meeting of the sole shareholder.

On February 5, 2012, the applicable representatives of Parent and the Purchaser and representatives of O’Charley’s signed the definitive Merger Agreement, and Parent, Merger Sub and the Crescendo Shareholders executed the tender and support agreement, described further below under Section 11 – The Merger Agreement; Other Agreements – Other Agreements.”

On February 6, 2012, before the opening of trading on Nasdaq, Parent and O’Charley’s each issued separate press releases announcing the execution of the Merger Agreement and the transactions contemplated thereby.

On February 27, 2012, Purchaser commenced the Offer.

For information on the Merger Agreement and the other agreements between O’Charley’s and Purchaser and their respective related parties, see Section 8 — “Certain Information Concerning Parent, the Purchaser and Certain Related Persons,” Section 9 — “Source and Amount of Funds,” and Section 11 — “The Merger Agreement, Other Agreements.”

11.	The Merger Agreement; Other Agreements

Merger Agreement

The following is a summary of the material provisions of the Merger Agreement. The following description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached hereto as Annex A and incorporated herein by reference. For a complete understanding of the Merger Agreement, you are strongly encouraged to read and understand the full text of the Merger Agreement. The Merger Agreement has been provided solely to inform investors of its terms. The representations, warranties and covenants contained in the Merger Agreement were made only for the purposes of that agreement and as of specific dates, were made solely for the benefit of the parties to the Merger Agreement and may be intended not as statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate. In addition, the representations, warranties and covenants may have been qualified by certain disclosures not reflected in the text of the Merger Agreement and may apply standards of materiality in a way that is different from what may be viewed as material by shareholders of, or

other investors in, O’Charley’s. O’Charley’s shareholders and other investors are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of O’Charley’s, Parent, the Purchaser or any of their respective subsidiaries or affiliates.

The Offer. The Merger Agreement provides for the commencement of the Offer as promptly as practicable, but in no event later than February 27, 2012. The Offer was commenced on February 27, 2012. The obligations of the Purchaser to (and the obligations of Parent to cause the Purchaser to) commence the Offer and to accept for payment, and pay for, Shares tendered pursuant to the Offer are subject to the satisfaction or waiver of certain conditions that are described in Section 15 – “Certain Conditions of the Offer.” The Merger Agreement provides that each O’Charley’s shareholder who validly tenders Shares in the Offer will receive $9.85 for each Share tendered, net to the shareholder in cash, without interest and less any required withholding tax. Parent and the Purchaser expressly reserve the right to waive any condition to the Offer (as described in Section 15 – “Certain Conditions of the Offer”), increase the Offer Price or to make any other changes to the terms and conditions of the Offer, except that without the prior written consent of O’Charley’s, the Purchaser shall not:

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decrease the Offer Price or change the form of consideration payable in the Offer;

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decrease the number of Shares subject to or sought to be purchased in the Offer;

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impose conditions on the Offer in addition to the conditions described in this Offer to Purchase (see Section 15 – “Certain Conditions of the Offer”);

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waive or amend the Minimum Condition;

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amend or supplement any of the other conditions described in this Offer to Purchase or any other term of the Offer in a manner adverse to the holders of the Shares, other than Parent, the Purchaser and any of their respective affiliates; or

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extend or otherwise change the Expiration Date except as required or permitted by the Merger Agreement.

Extensions of the Offer/Subsequent Offering Period. The Merger Agreement provides that on the initial expiration date or any subsequent date on which the Offer is scheduled to expire, if any of the conditions to the Offer (as described in Section 15 – “Certain Conditions of the Offer”) are not satisfied or waived, then, (i) we may (without O’Charley’s consent), and (ii) we must (if requested in writing by O’Charley’s no less than one business day prior to the scheduled expiration date), extend the Offer for one or more successive periods of time up to five business days per extension until such condition(s) have been satisfied or waived; provided that:

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we will not be required to extend the Offer beyond June 4, 2012 (the “Outside Date”); and

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if the only condition that has not been satisfied as of the scheduled expiration date of the Offer is the Minimum Condition (as described below), then we must extend the Offer for one or more successive periods of up to five business days each, with the total of such extensions not to exceed the earlier to occur of (x) ten business days and (y) the Outside Date.

The Minimum Condition requires the number of Shares that have been validly tendered and not validly withdrawn prior to the expiration of the Offer (when added to the Shares already owned by Parent and its subsidiaries) to represent at least the number of Shares required to approve the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement pursuant to the charter and by-laws of O’Charley’s and the Tennessee Business Corporation Act on the date the tendered Shares are accepted for payment, determined on a fully-diluted basis (as defined in the Merger Agreement). Under the Merger Agreement, we also will extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or necessary to resolve any comments of the SEC or its staff applicable to the Offer or the documents pursuant to which the Offer is made. The Merger Agreement also provides that we may, at our sole discretion, choose to provide for a subsequent offering period in accordance with Rule 14d-11 promulgated under the Exchange Act, if, following the expiration of the Offer, all of the

conditions to the Offer described in Section 15 – “Certain Conditions of the Offer” are satisfied but the number of Shares validly tendered and not validly withdrawn in the Offer and accepted for payment (when added to the Shares already owned by Parent and its subsidiaries, including the Purchaser) is less than 90% of the outstanding Shares (on a fully-diluted basis, as defined in the Merger Agreement).

Top-Up Option. O’Charley’s has also granted to Parent and the Purchaser an irrevocable right (the “Top-Up Option”), which Parent or the Purchaser may exercise following consummation of the Offer, if necessary, to purchase from O’Charley’s, at a price per share equal to the Offer Price, payable in cash or by the issuance of a promissory note in the form attached as an exhibit to the Merger Agreement, up to that number of newly-issued Shares (the “Top-Up Shares”) that, when added to the number of Shares owned by Parent (or any of its subsidiaries, including the Purchaser) at the time of exercise of the Top-Up Option, would constitute one Share more than 90% of the Shares then outstanding on a fully-diluted basis (as defined in the Merger Agreement) after giving effect to the issuance of the Top-Up Shares (excluding from Parent’s (and its subsidiaries’, including the Purchaser’s) ownership, but not from the Shares outstanding, those Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of that guarantee). The Merger Agreement provides that the Top-Up Option may not be exercised if:

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the number of Shares subject to the Top-Up Option exceeds the number of authorized and unissued Shares available for issuance;

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any temporary restraining order or preliminary or permanent injunction or other order by any federal or state court or other tribunal of competent jurisdiction (collectively, “Restraints”) or applicable law prohibits the exercise of the Top-Up Option or the delivery of the Top-Up Shares;

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immediately after the exercise of the Top-Up Option and the issuance of the Top-Up Shares, Parent (and its subsidiaries, including the Purchaser) would not own more than 90% of the Shares then outstanding on a fully-diluted basis (as defined in the Merger Agreement); or

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the Purchaser has not accepted for payment the Shares validly tendered in the Offer (or during any subsequent offering period) and not validly withdrawn.

The Merger. The Merger Agreement provides that, at the Effective Time, the Purchaser will be merged with and into O’Charley’s, with O’Charley’s being the surviving corporation (the “Surviving Corporation”). Following the Merger, the separate existence of the Purchaser will cease, and O’Charley’s will continue as the Surviving Corporation and as an indirect, wholly-owned subsidiary of Parent. The directors of the Purchaser immediately prior to the Effective Time will be the directors of the Surviving Corporation.

Pursuant to the Merger Agreement, at the Effective Time, each Share that is owned by O’Charley’s or Parent or any wholly-owned subsidiary of O’Charley’s or Parent, including the Purchaser, shall be cancelled and retired and will cease to exist without any consideration being delivered in exchange for those Shares.

Each Share issued and outstanding immediately prior to the Effective Time, other than Shares to be cancelled in accordance with the preceding paragraph, shall be converted into the right to receive an amount of cash, without interest, equal to the Offer Price (the “Merger Consideration”), subject to any required withholding of taxes, payable to the holder thereof in accordance with the terms of the Merger Agreement described herein. At the Effective Time, all of those Shares shall no longer be outstanding and shall automatically be cancelled and cease to exist, and each holder of a certificate or evidence of Shares in book-entry form that immediately prior to the Effective Time represented any of those Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration, without interest.

As promptly as reasonably practicable after the Effective Time, Parent shall cause the Exchange Agent (as defined in the Merger Agreement) to mail to each holder of record of Share certificates a letter of transmittal and instructions for use in effecting the surrender of Share certificates in exchange for the Merger Consideration. The Exchange Agent will pay the Merger Consideration to the shareholders upon receipt of (1) surrendered

certificates representing the Shares and (2) a signed letter of transmittal and any other items specified by the Exchange Agent. Interest will not be paid or accrue in respect of the Merger Consideration. The Surviving Corporation will reduce the amount of any Merger Consideration paid to the shareholders by any applicable withholding taxes.

O’Charley’s Stock Options and Restricted Stock. The Merger Agreement provides that each then outstanding unexercised stock option (whether or not then vested or exercisable) that represents the right to acquire Shares (each, an “Option”) will become fully vested and exercisable, and the forfeiture, vesting and other restrictions applicable to Shares that constitute restricted stock shall lapse, on the date the tendered Shares are accepted for payment. Pursuant to the Merger Agreement, each Option (whether or not vested or exercisable) that is outstanding as of the Effective Time will be cancelled and converted into the right to receive an amount in cash, without interest and subject to any required withholding taxes, equal to the product of (i) the excess of the Offer Price over the exercise price per Share under that Option and (ii) the number of Shares subject to that Option, which amount shall be paid at the Effective Time by O’Charley’s.

Representations and Warranties. In the Merger Agreement, O’Charley’s has made customary representations and warranties to Parent and the Purchaser, including representations relating to:

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organization and good standing;

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the capitalization of O’Charley’s;

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corporate power and authorization;

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no conflicts with or consents required in connection with the Merger Agreement;

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required government approvals, filings and consents;

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O’Charley’s SEC filings, financial statements and controls;

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undisclosed liabilities;

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the information supplied to Parent and the Purchaser by O’Charley’s;

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labor matters;

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the absence of certain changes or events;

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compliance with laws;

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permits;

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litigation;

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taxes;

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employee benefit plans and related matters;

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material contracts;

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intellectual property;

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real and personal property;

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environmental matters;

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the applicability of takeover statutes to the transactions contemplated by the Merger Agreement;

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brokers’ and finders’ fees;

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the opinion of the Company’s financial advisor;

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the Company’s suppliers;

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insurance;

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franchise matters; and

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the quality and safety of food and beverage products.

In the Merger Agreement, Parent and the Purchaser have made customary representations and warranties to O’Charley’s, including representations relating to:

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organization and good standing;

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corporate power and authorization;

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no conflicts with or consents required in connection with the Merger Agreement;

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required government approvals, filings and consents;

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information supplied to O’Charley’s by Parent and the Purchaser;

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litigation;

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that no Parent shareholder vote is required;

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available funds; and

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ownership of Shares.

Operating Covenants. The Merger Agreement provides that, from the date of the Merger Agreement to the Effective Time or the earlier termination of the Merger Agreement, except as contemplated by the Merger Agreement (including in the Company’s disclosure schedules to the Merger Agreement) or as required by law, and unless Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed), O’Charley’s shall, and shall cause each of its subsidiaries to, conduct its operations in the ordinary course in all material respects and, to the extent consistent therewith, use its commercially reasonable efforts to:

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preserve intact in all material respects its business organization;

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preserve its assets, rights and properties in good repair and condition;

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retain the services of its current officers, employees and consultants; and

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preserve the goodwill and relationship of O’Charley’s and each of its subsidiaries with franchisees, customers, suppliers, licensors, licensees, lessors and other persons with which it has material business dealings.

From the date of the Merger Agreement to the Effective Time, O’Charley’s (and each of its subsidiaries) is subject to customary operating covenants and restrictions, including restrictions relating to:

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amendments to its charter or bylaws;

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setting aside for payment of dividends or other distributions;

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the adjustment, split, combination, subdivision or reclassification of its capital stock;

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the repurchase, redemption or other acquisition of its capital stock or other equity interests;

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the issuance, sale, grant, disposition, pledge or other encumbrance of its stock or other securities, or changes to its capital structure;

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any merger or consolidation with a third party;

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the acquisition of any equity interests in or material assets of any third party, and certain investments in any third party;

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the sale, transfer, assignment, abandonment, lease, sublease, license, guarantee, or other disposition or encumbrance of material properties, rights, assets, product lines or businesses;

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loans or capital contributions;

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the incurrence, prepayment or other acquisition or modification of indebtedness;

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certain capital expenditures;

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the cancellation of any material debts owed to it;

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taking certain actions with respect to employment and employee compensation and benefits;

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the settlement or release of pending or threatened claims;

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entry into, or modification or termination of, certain types of material contracts and the waiver, delay, release or assignment of material rights;

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intellectual property rights;

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tax matters;

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changes in accounting methods or practices;

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liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization;

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deferment of payment of accounts payable;

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issuance of coupons, gift certificates or complimentary rights for dining;

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material increases or decreases to inventory;

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the adoption of any “shareholder rights plan,” “poison pill” or similar arrangement;

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failure to maintain in full force and effect material insurance policies consistent with past practice;

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changes to its fiscal year;

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new lines of business;

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the implementation or announcement of any material reductions in labor force, mass layoffs or plant closings;

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early retirement programs or new severance programs or policies;

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entry into agreements with certain types of obligations or restrictions; and

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amendment or modification of the letter of engagement of Evercore or the engagement of any other financial advisor.

Shareholders Meeting. The Merger Agreement provides that O’Charley’s will, if the approval of the Merger Agreement by its shareholders is required by law, prepare and file with the SEC, subject to the prior review and comment of Parent and the Purchaser, a proxy statement relating to the required shareholder approval (the “Proxy Statement”).

The Merger Agreement provides that O’Charley’s will, if required by applicable law in order to consummate the Merger, (i) duly call, give notice of, convene and hold a meeting of its shareholders (the “Shareholders Meeting”) for the purpose of approving the Merger and the Merger Agreement as soon as reasonably practicable after the Acceptance Time (and the expiration of any subsequent offering period), (ii) subject to the ability of the Company’s Board of Directors to make a Recommendation Withdrawal (as defined below), include in the Proxy Statement the recommendation of the Company’s Board of Directors that the Company’s shareholders vote in favor of the approval of the Merger and the Merger Agreement, and (iii) take all other reasonable actions necessary or advisable to secure the vote of the Company’s shareholders in favor of the approval of the Merger and the Merger Agreement.

Under the Merger Agreement, if the Purchaser acquires at least 90% of the then outstanding Shares (calculated in accordance with the TBCA), Parent, the Purchaser and O’Charley’s shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the Acceptance Time without a shareholders meeting in accordance with the applicable provisions of the TBCA.

Go Shop and No Solicitation Provisions.

Go Shop Provisions.

The Merger Agreement provides that during the period beginning on the date of the Merger Agreement and continuing until 11:59 p.m. (New York City time) on March 6, 2012 (the “Go-Shop Period”), O’Charley’s and its subsidiaries and their respective directors, officers, employees, affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) shall have the right to:

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initiate, solicit, facilitate and encourage (publicly or otherwise) any inquiry or the making of any proposals or offers that could constitute Acquisition Proposals (as defined below), including by way of providing access to non-public information or the business, properties, assets or personnel of O’Charley’s or any of its subsidiaries to any party and its Representatives, its affiliates and its prospective equity and debt financing sources pursuant to (but only pursuant to) a confidentiality agreement that contains terms limiting the use and disclosure of non-public information and imposing standstill obligations that, in each case, are not less favorable in the aggregate to O’Charley’s than those contained in the Confidentiality Agreement (as defined below), and that does not prohibit O’Charley’s from providing information to Parent and the Purchaser that it is obligated under the Merger Agreement to provide (an “Acceptable Confidentiality Agreement”); provided that O’Charley’s shall promptly make available to Parent and the Purchaser, prior to or concurrently with providing that information to any such party(ies), any non-public information concerning O’Charley’s or its subsidiaries that O’Charley’s intends to provide to any party given that access that was not previously made available to Parent or the Purchaser; and

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engage or enter into, continue or otherwise participate in any discussions or negotiations with any parties and their Representatives and their prospective equity and debt financing sources with respect to any Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any of those inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposals.

No Solicitation Provisions.

Except as expressly permitted by the non-solicitation provisions in the Merger Agreement and except as may relate to any Excluded Party (as defined below) only for so long as they are Excluded Parties, O’Charley’s and its subsidiaries and their respective officers and directors shall, and O’Charley’s shall cause its and its subsidiaries’ other Representatives to:

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at 12:00 a.m. (New York City time) on March 7, 2012 (the “No-Shop Period Start Date”) immediately cease and terminate any solicitation, encouragement (including by way of providing access to non-public information or the business, properties, assets or personnel of O’Charley’s or any of its subsidiaries to any party and its Representatives, its affiliates and its prospective equity and debt financing sources), discussions or negotiations (or any other actions described under the heading “Go Shop Provisions” above) with any parties that may be ongoing with respect to any inquiry, proposal or Acquisition Proposal, and as promptly as practicable thereafter deliver a written notice to each such party to the effect that O’Charley’s is ending all discussions and negotiations with that party with respect to any inquiry, proposal or Acquisition Proposal, effective immediately, which notice shall also request that party to return or destroy promptly all confidential information concerning O’Charley’s and its subsidiaries, and

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from the No-Shop Period Start Date until the earlier of the Effective Time or the termination of the Merger Agreement, not directly or indirectly:

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initiate, solicit, knowingly facilitate or knowingly encourage (publicly or otherwise) (including by way of providing access to non-public information or the business, properties, assets or personnel of O’Charley’s or any of its subsidiaries to any party and its Representatives, its affiliates and its

prospective equity and debt financing sources) any inquiries regarding, or the making, submission or announcement of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal;

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engage or enter into, continue or otherwise participate in any discussions or negotiations with respect to, or provide any non-public information or data concerning O’Charley’s or its subsidiaries or the business, properties, assets or personnel of O’Charley’s or any of its subsidiaries to any party relating to, or that would reasonably be expected to lead to, any Acquisition Proposal or otherwise cooperate with or assist or participate in, or knowingly facilitate such inquiries, proposals, discussions or negotiations;

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xxxxx to any party any waiver, amendment or release under any standstill or confidentiality agreement or any takeover statute, other than (if the Company’s Board of Directors determines that the failure to take such action would be inconsistent with the Company’s directors’ fiduciary duties under applicable law) a limited waiver, amendment or release under any standstill agreement for the sole purpose of allowing any party or parties to make an Acquisition Proposal or an offer that would reasonably be expected to lead to an Acquisition Proposal; or

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otherwise knowingly facilitate any such inquiries, proposals, discussion or negotiations or any effort or attempt by any party to make an Acquisition Proposal.

Not later than 24 hours after the expiration of the Go-Shop Period, O’Charley’s shall certify to Parent and the Purchaser the number and identity of any Excluded Parties and, subject to the ability of O’Charley’s to make a Recommendation Withdrawal pursuant to and in accordance with the non-solicitation provisions under the Merger Agreement, the Company’s Board of Directors shall publicly and expressly reaffirm the Company Board Recommendation.

Permitted Activities During No-Shop Period.

Notwithstanding anything in the Merger Agreement to the contrary but subject to the last sentence of the paragraph below titled “Obligation to Keep Parent Informed,” at any time following the No-Shop Period Start Date and prior to the Acceptance Time, if O’Charley’s receives an Acquisition Proposal from any party(ies) that did not result from a material breach of the non-solicitation provisions under the Merger Agreement, then:

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O’Charley’s and its Representatives may contact that party or those parties solely to clarify the terms and conditions of that Acquisition Proposal;

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O’Charley’s and its Representatives may provide non-public information and data concerning O’Charley’s and its subsidiaries to that party or those parties and their Representatives and their prospective equity and debt financing sources if O’Charley’s first receives from that party an executed Acceptable Confidentiality Agreement; provided that O’Charley’s shall promptly make available to Parent and the Purchaser, prior to or concurrently with providing such information to any such party(ies), any non-public information concerning O’Charley’s or its subsidiaries that O’Charley’s made available to any such party or parties and their Representatives and their prospective equity and debt financing sources if such information was not previously made available to Parent or the Purchaser, and

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O’Charley’s and its Representatives may engage or participate in any discussions or negotiations with that party regarding that Acquisition Proposal, if that Acquisition Proposal did not result from a material breach of the non-solicitation provisions under the Merger Agreement, and prior to taking any action described in the preceding two bullet points above:

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that party first executes an Acceptable Confidentiality Agreement with O’Charley’s and the Company’s Board of Directors determines in good faith (after consultation with its financial advisor and outside counsel) that (A) the failure to take such action would be inconsistent with the Company’s directors’ fiduciary duties under applicable law and (B) the Acquisition Proposal either constitutes a Superior Proposal (defined below) or would reasonably be expected to result in a Superior Proposal; and

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O’Charley’s provides prompt notice to Parent of each such determination by the Company’s Board of Directors and of its intent to provide that information or engage in those negotiations or discussions.

For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, O’Charley’s may continue to engage in the activities permitted under the Merger Agreement with respect to any Excluded Parties, including with respect to any amended proposal that is submitted by any Excluded Parties following the No-Shop Period Start Date, and the restrictions in the prior paragraph shall not apply with respect to those Excluded Parties; provided that certain other provisions, described below, shall apply.

Obligation to Keep Parent Informed.

Following the No-Shop Period Start Date and until the Acceptance Time or, if earlier, the termination of the Merger Agreement, O’Charley’s shall notify Parent promptly (and, in any event within 24 hours) of (x) any request for information, discussions or negotiations relating to an Acquisition Proposal or (y) any Acquisition Proposal that is received by O’Charley’s, its subsidiaries or any of their Representatives, and, if O’Charley’s or any of its Representatives is still in negotiations with respect to that request or Acquisition Proposal, (i) the identity of the party or parties making that request or Acquisition Proposal, (ii) a copy of any Acquisition Proposal made in writing provided to O’Charley’s or any of its subsidiaries and (iii) a written summary of the material terms of any such Acquisition Proposal not made in writing. From and after the No-Shop Period Start Date, O’Charley’s shall keep Parent and its Representatives reasonably informed of any material changes in the status or terms of any Acquisition Proposal (whether made before or after the No-Shop Period Start Date, and whether solicited in accordance with the non-solicitation provisions under the Merger Agreement or unsolicited) on a current basis (and, in any event within 24 hours of any material changes).

Limitations on Ability to Effect Recommendation Withdrawal and Enter into an Alternative Acquisition Agreement.

Except as described under the heading “Fiduciary Duty Exceptions” below, the Company’s Board of Directors may not:

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change, withhold, withdraw, qualify or modify (or resolve or publicly propose to change, withhold, withdraw, qualify or modify), in a manner adverse to Parent, the Company Board Recommendation;

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fail to include the Company Board Recommendation in the Schedule 14D-9 or the Proxy Statement;

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adopt, approve, authorize, declare advisable or recommend to propose to adopt, approve, authorize or declare advisable (whether publicly or otherwise) any Acquisition Proposal;

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take formal action, make any recommendation or public statement in connection with, or fail to recommend against, any Acquisition Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 relating thereto within ten business days after the commencement of such Acquisition Proposal (any such action described in this and the preceding three bullet points, a “Recommendation Withdrawal”); or

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approve or recommend, or resolve or publicly propose to approve or recommend, or cause or permit O’Charley’s or any of its subsidiaries to enter into, any letter of intent, memorandum of understanding, acquisition agreement, merger agreement or similar definitive agreement relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to the paragraphs above) (an “Alternative Acquisition Agreement”), except if it concurrently terminates the Merger Agreement and immediately prior to or concurrently with that termination pays to Parent or its designees the termination fee (as described below).

Fiduciary Duty Exceptions.

Notwithstanding anything to the contrary set forth in the Merger Agreement, prior to the Acceptance Time, but not after, so long as none of O’Charley’s, its subsidiaries or their Representatives has breached in any material respect the non-solicitation provisions under the Merger Agreement, the Company’s Board of Directors may, if it determines that the failure to take that action would be inconsistent with O’Charley’s Board of Directors’ fiduciary duties under applicable law:

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effect a Recommendation Withdrawal in response to an Acquisition Proposal that the Company’s Board of Directors determines in good faith (after consultation with its financial advisor and outside counsel) is a Superior Proposal (including any Superior Proposal made by an Excluded Party) made after the date of the Merger Agreement (giving effect to all of the binding written adjustments, if any, offered to Parent pursuant to the provisions described below),

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subject to prior or concurrent payment of the termination fee required under the Merger Agreement, terminate the Merger Agreement if the Board of Directors of O’Charley’s determines in good faith (after consultation with its financial advisor and outside counsel) that the Acquisition Proposal that is the subject of the Alternative Acquisition Agreement is a Superior Proposal; or

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effect a Recommendation Withdrawal in response to an Intervening Event.

Applicable Definitions.

For purposes of the Merger Agreement:

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“Acquisition Proposal” means any bona fide inquiry, proposal or offer from any party or parties other than Parent or one of its subsidiaries for, in one transaction or a series of related transactions:

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a merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving an acquisition of O’Charley’s;

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the acquisition in any manner, directly or indirectly, of 20% or more of the equity securities (or securities convertible into 20% or more of the equity securities) or assets (including capital stock of any subsidiaries of O’Charley’s) of O’Charley’s or any of its subsidiaries representing 20% or more of the consolidated assets of O’Charley’s (based on the fair market value thereof, as determined in good faith by the Company’s Board of Directors) or of the consolidated revenues, net income or operating cash flow of O’Charley’s;

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any tender offer or exchange offer that results in or, if consummated, would result in any party or parties, directly or indirectly, beneficially owning 20% or more of the equity securities (or securities convertible into 20% or more of the equity securities) of O’Charley’s; or

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any combination of the foregoing, in the case of each of the three preceding bullets.

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“Excluded Party” means any party or parties (including, with respect thereto, their Representatives, their affiliates and their prospective equity and debt financing sources) from whom O’Charley’s or any of its Representatives has received during the Go-Shop Period a written Acquisition Proposal that the Company’s Board of Directors determines in its good faith judgment prior to the No-Shop Period Start Date, after consultation with O’Charley’s financial advisor and outside counsel, is bona fide and is, or would reasonably be expected to result in, a Superior Proposal; provided that any such party(ies) shall cease to be an “Excluded Party” if those party(ies) cease to be engaged in active discussions concerning an acquisition of O’Charley’s.

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“Intervening Event” means any event, fact, development or occurrence that affects the business, assets or operations of O’Charley’s that is unknown to, and is not reasonably foreseeable by, the Company’s Board of Directors as of the date of the Merger Agreement, that becomes known to the Company’s Board of Directors after the date of the Merger Agreement; provided, however, that in no event shall the receipt, existence or terms of an Acquisition Proposal or any matter relating thereto or consequence thereof constitute an Intervening Event.

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“Superior Proposal” means a bona fide written Acquisition Proposal (with the percentages set forth in the definition of that term changed from 20% to 50%) that did not result from a breach of the non-solicitation provisions under the Merger Agreement and that the Company’s Board of Directors has determined in its good faith judgment, after consultation with its financial advisor and outside counsel:

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is reasonably likely to be, and reasonably capable of being, consummated in accordance with its terms, and

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if consummated, would be more favorable to the Company’s shareholders from a financial point of view than the Offer, the Merger and the other transactions contemplated by the Merger Agreement (including written and complete amendments to the terms and conditions of the Merger Agreement proposed in response to that Acquisition Proposal or otherwise by Parent that, if accepted by O’Charley’s, would be binding upon Parent and the Purchaser), taking into account and without limitation, (A) all financial considerations, (B) the identity of the party making that Acquisition Proposal, (C) the anticipated timing, conditions and prospects for completion of that Acquisition Proposal, (D) the other terms and conditions of that Acquisition Proposal and the implications thereof on O’Charley’s, including all relevant legal, regulatory and financial aspects of that Acquisition Proposal and the party making the proposal, and (E) any other aspects of that Acquisition Proposal deemed relevant by the Company’s Board of Directors.

Exceptions for Compliance with Other Laws.

Nothing contained in the non-solicitation provisions under the Merger Agreement shall be deemed to prohibit O’Charley’s or the Company’s Board of Directors from (i) complying with its disclosure obligations under United States federal or state law with regard to an Acquisition Proposal, including taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to shareholders) or (ii) making any “stop-look-and-listen” communication to the shareholders of O’Charley’s pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communications to the shareholders of O’Charley’s); provided that (x) such provisions in the Merger Agreement shall not permit the Company’s Board of Directors to make a Recommendation Withdrawal or take any other actions contemplated by the non-solicitation restrictions under the Merger Agreement except, in each case, to the extent permitted by, and subject to the terms and conditions of, the non-solicitation provisions under the Merger Agreement, and (y) in any such disclosure or communication, O’Charley’s publicly states that there has been no change in the Company Board Recommendation.

Parent’s Match Rights.

O’Charley’s shall not be entitled to effect a Recommendation Withdrawal with respect to a Superior Proposal or an Intervening Event or to terminate the Merger Agreement to enter an Alternative Acquisition Agreement with respect to a Superior Proposal unless:

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O’Charley’s has provided a written notice to Parent and the Purchaser at least three business days in advance (the “Notice Period”), which notice in the case of:

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a Superior Proposal (a “Notice of Superior Proposal”) shall specify that O’Charley’s intends to take such action and include copies of all relevant documents relating to that Superior Proposal, or if either the Superior Proposal or financing terms were not made in writing, a description of the material terms and conditions of the Superior Proposal or financing, as applicable, that is the basis of such action (including the identity of the party making that proposal), or

•

an Intervening Event (a “Notice of Intervening Event”) shall describe in reasonable detail that Intervening Event;

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if requested by Xxxxxx and the Purchaser, O’Charley’s shall, and shall direct its financial advisor and outside counsel to, during the Notice Period, negotiate with Parent and the Purchaser and their Representatives in good faith to make amendments to the terms and conditions of the Merger Agreement;

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following the end of the Notice Period, the Company’s Board of Directors shall have determined in good faith after consultation with its financial advisor and outside counsel, taking into account any written and complete amendments to the terms and conditions of the Merger Agreement proposed by Xxxxxx and the Purchaser that, if accepted by O’Charley’s, would be binding upon Parent and the Purchaser in response to the Notice of Superior Proposal, the Notice of Intervening Event or otherwise, that (1) the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal or (2) those changes would not change the determination of O’Charley’s Board of Directors of the need for a Recommendation Withdrawal in response to that Intervening Event, as applicable. In the event of any material revisions to that Superior Proposal or material changes related to that Intervening Event, O’Charley’s shall be required to deliver a new written notice to Parent and the Purchaser and to comply with the requirements of such provisions of the Merger Agreement with respect to that new written notice, except that the deadline for that new written notice shall be reduced to two business days.

Reasonable Best Efforts. The parties agreed in the Merger Agreement to use reasonable best efforts to (i) cause the conditions to the Offer and the conditions to the parties’ obligations to effect the Merger to be satisfied as promptly as practicable, (ii) take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements which may be imposed on that party or its subsidiaries with respect to the Offer, the Merger and the other transactions contemplated by the Merger Agreement, and subject to the conditions to the Offer and the conditions to the parties’ obligations to effect the Merger, to consummate the Offer, the Merger and the other transactions contemplated by the Merger Agreement as promptly as practicable, and (iii) obtain as promptly as practicable any consent of, or any exemption or waiver by, any governmental entity or any other third-party consent which is required to be obtained by the parties or their respective subsidiaries in connection with the Offer, the Merger and the other transactions contemplated by the Merger Agreement, and to comply with the terms and conditions of any such consent. The parties agreed to, as promptly as practicable following the date of the Merger Agreement, make all filings and notifications with all governmental entities that may be or may become reasonably necessary, proper or advisable under the Merger Agreement and applicable law to consummate and make effective the Offer, the Merger, and the other transactions contemplated by the Merger Agreement, and to use reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be reasonably requested by a governmental entity pursuant to the HSR Act or applicable law. O’Charley’s and Parent agreed to promptly notify the other of any communication it or any of its affiliates receives from any governmental entity relating to the matters that are the subject of the Merger Agreement, and prior to submitting any substantive written communication, correspondence or filing by that party or any of its Representatives, on the one hand, to any governmental entity, or members of the staff of any governmental entity, on the other hand, the submitting party shall permit the other party and its counsel a reasonable opportunity to review in advance, and consider in good faith the views of the other party provided in a timely manner, in connection with any such communication. To the extent practicable under the circumstances, none of the parties shall agree to participate in any substantive meeting with any governmental entity in respect of any filings, investigation, litigation or other inquiry unless it consults with the other party in advance and, where permitted, allows the other party to participate. The parties further agreed not to voluntarily extend any waiting period associated with any consent of any governmental entity or enter into any agreement with any governmental entity not to consummate the Merger and the other transactions contemplated by the Merger Agreement, except with the prior written consent of the other party. Notwithstanding anything in the Merger Agreement to the contrary, in no event shall Parent, O’Charley’s or their affiliates be required to agree to take or enter into any action required by any governmental entity which is not conditioned upon the consummation of the Merger.

Indemnification and Insurance. The Merger Agreement provides that from and after the Effective Time, to the fullest extent permitted by law, Parent shall, and shall cause O’Charley’s or the Surviving Corporation (as the case may be) to, indemnify, defend and hold harmless (and advance expenses from time to time as incurred to the fullest extent permitted by law, provided the party to whom expenses are advanced complies with the provisions of Section 00-00-000 of the TBCA and provides statements and reasonable documentation therefor) the present and former directors and officers of O’Charley’s, any party acting as director, officer, trustee, fiduciary,

employee or agent of another entity or enterprise (including any O’Charley’s benefit plan) at the request of O’Charley’s (each an “Indemnified Party”) from and against any and all actual, documented costs or expenses (including reasonable attorneys’ fees, expenses and disbursements), judgments, fines, losses, claims, damages, penalties, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative, regulatory or investigative, arising out of, relating to or in connection with any circumstances, developments or matters in existence, or acts or omissions occurring or alleged to occur prior to or at the Effective Time, whether asserted or claimed prior to, at or after the Effective Time; provided that the party to whom expenses are advanced provides written affirmation of the Indemnified Party’s good faith determination that any applicable standard of conduct required by the TBCA has been met. Any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable law, O’Charley’s charter or bylaws or a written contract between an Indemnified Party and O’Charley’s or one of its subsidiaries, as the case may be, shall be made by independent special legal counsel selected by the Board of Directors of the Surviving Corporation or a committee thereof in the manner prescribed by Section 00-00-000 of the TBCA, the fees of which counsel shall be paid by the Surviving Corporation.

Subject to the following sentence, O’Charley’s or the Surviving Corporation (or any successor), as the case may be, shall, and Parent shall cause O’Charley’s or the Surviving Corporation (or any successor), as the case may be, to purchase, at no expense to the beneficiaries, a six year extended reporting period endorsement with respect to directors’ and officers’ liability insurance and fiduciary liability insurance having terms and conditions at least as favorable to the Indemnified Parties as the Company’s currently existing directors’ and officers’ liability insurance and fiduciary liability insurance (a “Reporting Tail Endorsement”) and maintain this endorsement in full force and effect for its full term. To the extent purchased after the date of the Merger Agreement and prior to the Effective Time, such insurance policies shall be placed through such broker(s) and with such insurance carriers as may be specified by Parent and as are reasonably acceptable to O’Charley’s; provided that such insurance carrier has at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance. Notwithstanding the first sentence of this paragraph, but subject to the second and last sentence of this paragraph, O’Charley’s shall be permitted at its sole and exclusive option to purchase a Reporting Tail Endorsement prior to the Effective Time. Notwithstanding any of the foregoing, (i) in no event shall Parent or the Surviving Corporation be required to (or O’Charley’s be able to) expend an aggregate amount in excess of 300% of the annual premium currently payable by O’Charley’s for that policy, it being understood that if the premiums payable for that insurance coverage exceed that amount, Parent and the Surviving Corporation shall be obligated to (or O’Charley’s may only) obtain a policy with the greatest coverage available for a cost equal to that amount.

Employee Matters. The Merger Agreement provides that until the first anniversary of the Effective Time (the “Benefits Continuation Period”), Parent shall, and shall cause the Surviving Corporation and its affiliates to, provide, for those employees of O’Charley’s and its subsidiaries who continue as employees of the Surviving Corporation or any of its affiliates during all or a portion of the Benefits Continuation Period (the “Continuing Employees”), compensation (including base salary, bonus and other incentive compensation opportunities) and employee benefits (excluding severance) that in the aggregate with respect to each Continuing Employee shall not be any less favorable than the compensation and employee benefits provided by, (i) in the case of salaried Continuing Employees, Parent to similarly situated employees of Parent and its subsidiaries and, (ii) in the case of hourly Continuing Employees, O’Charley’s or the applicable subsidiary of O’Charley’s to that Continuing Employee immediately prior to the Acceptance Time.

Subject to certain limitations, Parent also agreed to, and to cause the Surviving Corporation and its affiliates to, (i) waive any applicable pre-existing condition exclusions and waiting periods with respect to participation and coverage requirements in any replacement or successor welfare benefit plan of Parent or the Surviving Corporation or any of its affiliates that a Continuing Employee is eligible to participate in following the Effective Time to the extent those exclusions or waiting periods were inapplicable to, or had been satisfied by, that Continuing Employee immediately prior to the Effective Time under the analogous O’Charley’s benefit plan in

which that Continuing Employee participated, (ii) provide each Continuing Employee with credit for any co-payments and deductibles paid prior to the Effective Time (to the same extent that credit was given under the analogous O’Charley’s benefit plan prior to the Effective Time) in satisfying any applicable deductible or out-of-pocket requirements and (iii) recognize service prior to the Effective Time with O’Charley’s or any of its subsidiaries for purposes of eligibility to participate, vesting, determination of level of benefits and benefits accrual to the same extent that service was recognized by O’Charley’s or any of its subsidiaries under the analogous O’Charley’s benefit plan in which that Continuing Employee participated immediately prior to the Effective Time.

Notwithstanding any other provision of the Merger Agreement to the contrary, Parent has agreed to, and to cause the Surviving Corporation and any of its affiliates to, provide certain specified Continuing Employees whose employment terminates during the Benefits Continuation Period with retention benefits at levels no less than the levels agreed to by the parties.

Section 16 Matters. The Merger Agreement provides that O’Charley’s and its Board of Directors shall take all steps reasonably necessary to cause the transactions contemplated by the Merger Agreement and any other disposition of equity securities of the Company and acquisitions of equity securities by Parent in connection with the transactions contemplated by the Merger Agreement by each individual who is a director or executive officer of O’Charley’s or Parent to be exempt under Rule 16b-3 promulgated under the Exchange Act.

State Takeover Laws. The Merger Agreement provides that (i) no state or federal anti-takeover statute (other than the HSR Act) is applicable to O’Charley’s, the Shares, the Merger, the Top-Up Option, or the other transactions contemplated by the Merger Agreement or the Support Agreement (described below) and (ii) O’Charley’s and the Company’s Board of Directors shall take such action as is necessary to assure that none of the Offer, the Merger, the Top-Up Option or the other transactions contemplated by the Merger Agreement will be a “takeover offer” under the Tennessee Investor Protection Act.

Shareholder Litigation. O’Charley’s has agreed to give Parent the opportunity to participate in the defense or settlement of any shareholder litigation against O’Charley’s and/or its directors or executive officers relating to the Merger Agreement or the transactions contemplated by the Merger Agreement, whether commenced prior to or after the execution and delivery of the Merger Agreement, and shall not settle or offer to settle any such litigation without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). See Section 16 – “Certain Legal Matters; Regulatory Approvals.”

Directors after the Acceptance Time. Promptly upon the Acceptance Time and from time to time thereafter, pursuant to the Merger Agreement, Parent shall be entitled to designate the number of directors on the Company’s Board of Directors equal to the product of (i) the total number of directors on the Company’s Board of Directors, and (ii) the percentage that the number of Shares owned directly or indirectly by Parent immediately following the Acceptance Time represents out of the total number of Shares outstanding, and O’Charley’s has agreed to take all actions necessary to enable Xxxxxx’s designees to be so elected or appointed to the Company’s Board of Directors. O’Charley’s also agreed to cause individuals designated by Parent to have the same proportionate representation on (i) each committee of the Company’s Board of Directors and (ii) each board of directors (or similar body) and each committee thereof (or similar body) of each subsidiary of the Company. Prior to the Effective Time, the Company’s Board of Directors shall always have at least three members of the Company’s Board of Directors who were members of the Company’s Board of Directors as of the effective date of the Merger Agreement (“Continuing Directors”) and until the Effective Time, the approval of a majority of the Continuing Directors shall be required to authorize O’Charley’s to, among other things:

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amend, modify, supplement or terminate the Merger Agreement;

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extend the time for performance of, or waive, any of the obligations or other acts of Parent or the Purchaser under the Merger Agreement;

•

waive or exercise any of the Company’s rights under the Merger Agreement;

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waive any condition to the Company’s obligations under the Merger Agreement;

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amend the Company’s charter or bylaws;

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authorize any agreement between O’Charley’s, or its subsidiaries, on the one hand, and Parent, the Purchaser or their affiliates, on the other hand, that is effective before the Effective Time; or

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make any other determination with respect to any action to be taken or not to be taken by or on behalf of O’Charley’s relating to the Merger Agreement or the transactions contemplated by the Merger Agreement.

Directors and Officers after the Effective Time. The Merger Agreement provides that the directors of the Purchaser immediately prior to the Effective Time will become the directors of the Surviving Corporation. The officers of O’Charley’s immediately prior to the Effective Time shall be the officers of the Surviving Corporation.

Conditions to the Merger. The Merger Agreement provides that the obligations of O’Charley’s, Parent and the Purchaser are subject to the satisfaction at or prior to the date on which the merger closes of the following:

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the O’Charley’s shareholder approval of the Merger Agreement, if required by applicable law, and if not required under applicable law, the passage of at least one month since the date a copy of the Merger Agreement was mailed to holders of the Shares;

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Parent or the Purchaser shall have accepted for payment and paid for the Shares pursuant to the Offer in accordance with the Merger Agreement;

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no Restraint and no law shall be in effect preventing or prohibiting consummation of the Merger; and

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the Regulatory Condition shall have been satisfied.

Note that the Regulatory Condition has been satisfied. See Section 16 – “Certain Legal Matters; Regulatory Approvals.”

Termination. The Merger Agreement may be terminated and the Merger and the other transactions contemplated by the Merger Agreement may be abandoned at any time prior to the Effective Time, whether before or after obtaining the approval of the O’Charley’s shareholders, as follows:

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by mutual written consent of Xxxxxx and O’Charley’s;

•

by either Parent or O’Charley’s, if the Acceptance Time shall not have occurred on or before the Outside Date; provided, however, that this right to terminate the Merger Agreement will not be available to a party if its action or failure to act constitutes a material breach or violation of any of its covenants, agreements or other obligations under the Merger Agreement, and any such material breach or violation or failure has been the principal cause of or directly resulted in the failure of the Acceptance Time to occur on or before the Outside Date;

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by either Parent or O’Charley’s, if any governmental entity of competent jurisdiction shall have issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting any of the transactions contemplated by the Merger Agreement, including the Merger, and such order or other action shall have become final and non-appealable; provided, however, that this right to terminate the Merger Agreement will not be available to a party if its action or failure to act constitutes a material breach or violation of any of its covenants, agreements or other obligations under the Merger Agreement, and any such material breach or violation or failure has been the principal cause of or directly resulted in such order or other action permanently restraining, enjoining or otherwise prohibiting any of the transactions contemplated by the Merger Agreement, including the Merger;

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by either Parent or O’Charley’s, if the Offer expires as a result of the non-satisfaction of any condition to the Offer or is terminated or withdrawn pursuant to its terms in accordance with the Merger

Agreement without any Shares being purchased thereunder and Parent has not extended, and the Company has not otherwise requested that Parent and the Purchaser extend the Offer; provided, however, that this right to terminate the Merger Agreement will not be available to a party if its action or failure to act constitutes a material breach or violation of any of its covenants, agreements or other obligations under the Merger Agreement, and any such material breach or violation or failure has been the principal cause of or directly resulted in the failure of any condition to the Offer or any Shares to be purchased;

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by Parent, if prior to the Acceptance Time, O’Charley’s shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in the Merger Agreement, which breach or failure to perform (1) would result in any condition to the Offer relating to such representations, warranties, covenants or agreements not being satisfied and (2) is not curable or, if curable, is not cured by the earlier to occur of the Outside Date and the date that is 30 days following O’Charley’s receipt of Parent’s written notice of such breach; provided, that O’Charley’s shall use reasonable best efforts to cure such breach as promptly as practicable; provided, however, that this right to terminate the Merger Agreement will not be available to Parent if its action or failure to act constitutes a material breach or violation of any of its covenants, agreements or other obligations under the Merger Agreement, and any such material breach or violation or failure constitutes a Parent Material Adverse Effect (as defined below);

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by Parent, if prior to the Acceptance Time, (1) a Recommendation Withdrawal shall have occurred, or (2) O’Charley’s enters into an Alternative Acquisition Agreement;

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by Parent, if prior to the Acceptance Time, there shall have occurred a Company Material Adverse Effect (as defined below);

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by O’Charley’s, if Parent or the Purchaser shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in the Merger Agreement, which breach or failure to perform (1) gives rise to a Parent Material Adverse Effect, (2) is not curable or, if curable, is not cured by the earlier to occur of the Outside Date and the date that is 30 days following Parent’s receipt of O’Charley’s written notice of such breach; provided, that Parent shall use reasonable best efforts to cure such breach as promptly as practicable, and (3) would reasonably be expected to prevent or delay the Acceptance Time beyond the Outside Date; and

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by O’Charley’s, if prior to the Acceptance Time, (1) immediately prior to or concurrently with the termination of the Merger Agreement, subject to complying with the terms of the Merger Agreement, O’Charley’s enters into one or more Alternative Acquisition Agreements with respect to a Superior Proposal and (2) O’Charley’s immediately prior to or concurrently with such termination pays to Parent or its designees any termination fee required to be paid pursuant to the Merger Agreement.

As used in the Merger Agreement:

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“Company Material Adverse Effect” means any event, change, effect, development or occurrence that, individually or in the aggregate, has or would be reasonably expected to have a material adverse effect on the business, results of operations or financial condition of O’Charley’s and its subsidiaries, taken as a whole; provided, however, that (subject to the next proviso) no event, change, effect, development or occurrence, shall be deemed (individually or in the aggregate) to constitute, nor shall any of the foregoing be taken into account in determining whether there has been, a Company Material Adverse Effect, to the extent that such event, change, effect, development or occurrence results from, arises out of, or relates to: (i) any general United States or global economic conditions, (ii) any conditions generally affecting the restaurant industry, (iii) any decline in the market price or trading volume of the Shares (it being understood that the foregoing shall not preclude Parent from asserting that the facts or occurrences giving rise to or contributing to such decline that are not otherwise excluded from the definition of a Company Material Adverse Effect should be deemed to constitute, or be taken into account in determining whether there has been, or would reasonably be expected to be, a Company

Material Adverse Effect), (iv) any regulatory, legislative or political conditions or securities, credit, financial, debt or other capital markets conditions, or the economy in each case in the United States or any foreign jurisdiction, (v) any failure, in and of itself, by O’Charley’s to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the foregoing shall not preclude Parent from asserting that the facts or occurrences giving rise to or contributing to such failure that are not otherwise excluded from the definition of Company Material Adverse Effect should be deemed to constitute, or be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect), (vi) the public announcement or pendency of the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, the taking of any action required or specifically contemplated by the Merger Agreement or the identity of, or any facts or circumstances relating to, Parent, Purchaser, and certain of their affiliates, including the impact of any of the foregoing on the relationships, contractual or otherwise, of O’Charley’s or any of its subsidiaries with customers, suppliers, officers or employees (provided, however, that pursuant to the Merger Agreement, the exceptions in this clause (vi) shall not apply to certain of O’Charley’s representations and warranties), (vii) any adoption, implementation, promulgation, repeal, modification, amendment, reinterpretation, change or proposal of any rule, regulation, ordinance, order, protocol or any other law of or by any governmental entity, (viii) any change in applicable law, regulation or GAAP (or authoritative interpretations thereof), (ix) any geopolitical conditions, the outbreak or escalation of hostilities, any acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism threatened or underway as of the date of the Merger Agreement, (x) any taking of any action at the written request of Parent or the Purchaser, (xi) any reduction in the credit rating of the Company or any of its subsidiaries to the extent attributable to the expected consummation of the Merger (it being understood and agreed that the foregoing shall not preclude Parent and the Purchaser from asserting that the facts or occurrences giving rise to or contributing to such change that are not otherwise excluded from the definition of Company Material Adverse Effect should be deemed to constitute, or be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect) or (xii) any hurricane, earthquake, flood or other natural disasters, acts of God or any change resulting from weather conditions; provided, however, that with respect to clauses (i), (ii), (iv), (vii), (viii), (ix) or (xii), any such event, change, effect, development or occurrence shall be taken into account only to the extent it is disproportionately adverse to the Company and its subsidiaries, taken as a whole, when compared to other similarly situated persons operating in the geographies and industry in which Company and its subsidiaries operate.

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“Parent Material Adverse Effect” means any event, change, effect, development or occurrence that, individually or in the aggregate, prevents or materially impedes or delays, or is reasonably likely to prevent or materially impede or delay, the consummation by Parent or Purchaser of the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement on a timely basis or the performance by Parent or Purchaser of their respective covenants and obligations under the Merger Agreement.

Termination Fees and Expense Reimbursement. The Merger Agreement contemplates that a termination fee will be payable by O’Charley’s to Parent if the Merger Agreement is terminated under certain circumstances, as follows:

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If the Merger Agreement is terminated by Parent for a Recommendation Withdrawal or O’Charley’s entry into an Alternative Acquisition Agreement or by O’Charley’s in order to enter into an Alternative Acquisition Agreement in respect of a Superior Proposal, then O’Charley’s shall pay Parent a termination fee of $6,740,000; provided, however, that if the Merger Agreement is terminated by Parent for O’Charley’s entry into an Alternative Acquisition Agreement or by O’Charley’s in order to enter into an Alternative Acquisition Agreement in respect of a Superior Proposal, and either (x) that termination occurs on or before the No-Shop Period Start Date, or (y) O’Charley’s enters into a

definitive agreement with respect to a Superior Proposal as permitted under the Merger Agreement on or before the Acceptance Time, then the termination fee shall instead be $3,370,000;

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If Parent or O’Charley’s terminates the Merger Agreement because no Shares were purchased in the Offer, an uncured material Company breach or the failure to close before the Outside Date, and (i) if prior to the date of that termination (but after the date of the Merger Agreement) an Acquisition Proposal is publicly announced or is otherwise communicated to the Company’s Board of Directors, and (ii) within twelve months after the date of that termination, O’Charley’s enters into a definitive agreement with respect to or otherwise consummates any Acquisition Proposal, O’Charley’s shall pay to Parent a termination fee of $6,740,000 no later than two business days after the earlier of the execution of that definitive agreement or consummation of that Acquisition Proposal, as the case may be; provided, that solely for purposes of this paragraph, the term Acquisition Proposal shall have the meaning ascribed to that term above, except that all references to 20% shall be changed to 50%; and

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If Parent terminates the Merger Agreement for an uncured material Company breach, as described above, then O’Charley’s shall reimburse Parent for any expenses incurred by it, Purchaser or any of their affiliates or permitted assignees, in an aggregate amount not to exceed $2,000,000, not later than two business days after the date of that termination (any such payment will be credited against any termination fee that becomes payable in the future).

Amendment. The Merger Agreement may be amended or modified by written agreement of the parties at any time prior to the Effective Time, subject to applicable law.

Specific Enforcement. The parties have agreed that irreparable damage would occur for which monetary damages would not be an adequate remedy in the event that any of the provisions of the Merger Agreement are not performed in accordance with their specific terms or are otherwise breached. Therefore, the parties have agreed that, if for any reason Parent, the Purchaser or O’Charley’s has failed to perform its obligations under the Merger Agreement, then the party seeking to enforce the Merger Agreement against the nonperforming party under the Merger Agreement shall be entitled to specific performance and the issuance of injunctive and other equitable relief.

Fees and Expenses. Except for the provisions described under “Termination Fees and Expense Reimbursement” above and certain expenses related to financing cooperation, all fees and expenses incurred in connection with the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement will be paid by the party incurring such fees or expenses, whether or not the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement are consummated.

Governing Law. The Merger Agreement is governed by Delaware law.

Other Agreements

Confidentiality Agreement. On November 23, 2011, Xxxxxx, O’Charley’s and ABRH executed a confidentiality agreement (the “Confidentiality Agreement”), pursuant to which the parties agreed, subject to certain exceptions, to, among other things, keep confidential certain information provided by the parties for purposes of evaluating a possible transaction between Parent and O’Charley’s. Parent also agreed to a standstill provision placing restrictions on, among other things, the ability of Parent and its affiliates to acquire securities of O’Charley’s or to enter into, or propose to enter into, a merger or certain other combination or acquisition transactions involving O’Charley’s, except with O’Charley’s prior written consent. These restrictions automatically terminate under the Confidentiality Agreement upon the earlier to occur of two years from the date the Confidentiality Agreement or the date of a consummation of a transaction between the parties.

The foregoing description of the material provisions of the Confidentiality Agreement does not purport to be complete and is qualified in its entirety by reference to the Confidentiality Agreement, a copy of which is filed as

an exhibit to the Tender Offer Statement on Schedule TO filed by Parent on February 27, 2012 and is incorporated herein by reference. For a complete understanding of the Confidentiality Agreement, you are encouraged to read the full text of the Confidentiality Agreement.

Tender and Support Agreement. On February 5, 2012, Crescendo Investments II, LLC, in its capacity as general partner of Crescendo Partners II, L.P., Series Z, Crescendo Investments III, LLC, in its capacity as general partner of Crescendo Partners III, L.P., Xxxxxx Xxxxxx, and Xxxxxxx Xxxxxxx (each, a “Supporting Shareholder”), entered into a Tender and Support Agreement with Parent and the Purchaser (the “Support Agreement”).

Pursuant to the Support Agreement, each Supporting Shareholder has agreed, among other things, (i) to validly tender, as promptly as practicable and in any event no later than 5:00 p.m., New York City time, on the second business day prior to the initial expiration date of the Offer, and not withdraw that Supporting Shareholder’s Shares in the Offer, pursuant to the terms of the Offer, (ii) to vote (or cause to be voted) all of that Supporting Shareholder’s Shares (a) in favor of adopting the Merger Agreement, unless a Recommendation Withdrawal has been made in accordance with the Merger Agreement, (b) for the approval of any proposal to postpone a shareholder meeting to a later date if there are not sufficient votes for the adoption and approval of the Merger Agreement and the transactions contemplated by the Merger Agreement, (c) against any action or agreement that would result in (1) a breach of any representation, warranty, covenant, agreement or other obligation of the Company under the Merger Agreement and/or (2) the failure of any of the conditions to the Offer, (d) against any Acquisition Proposal, unless a Recommendation Withdrawal has been made in accordance with the Merger Agreement in favor of a Superior Proposal, and (e) against any agreement, amendment to the Company’s charter or bylaws or other action that would prevent, impede, interfere with or delay the consummation of the Offer or the Merger.

Each Supporting Shareholder granted an irrevocable right to Parent, as that Supporting Shareholder’s proxy and attorney-in-fact, to vote all that Supporting Shareholder’s Shares, or to grant a consent or approval in respect of that Supporting Shareholder’s Shares, in a manner consistent with the provisions discussed above. The proxy is automatically revoked upon termination of the Support Agreement.

Until termination of the Support Agreement, each Supporting Shareholder shall not (i) sell, transfer (including by operation of law), give, pledge, encumber, assign or otherwise dispose of (each, a “Transfer”), or enter into any contract, option or other arrangement or understanding with respect to the Transfer, of any of that Supporting Shareholder’s Shares except (a) to Parent, the Purchaser or their respective affiliates or (b) to an affiliate of that Supporting Shareholder, provided that the affiliate agrees to be bound by the terms and conditions of the Support Agreement, (ii) deposit any Shares into a voting trust, grant any proxies, or enter into any voting agreement, power of attorney or voting trust with respect to any of that Supporting Shareholder’s Shares, (iii) take any action that would make any representation or warranty of that Supporting Shareholder set forth in the Support Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying that Supporting Shareholder from performing any of its obligations under the Support Agreement, or (iv) agree to take any action contained in clauses (i) through (iii) (in writing or otherwise).

Except with respect to certain provisions which survive termination of the Support Agreement, the Support Agreement and the obligations thereunder terminate automatically on the first to occur of (i) the termination of the Merger Agreement in accordance with its terms, (ii) the Effective Time, (iii) the date on which the Supporting Shareholder and their affiliates cease to own any Shares (provided that any transfer of Shares did not violate the transfer restrictions discussed above), and (iv) the mutual written consent of the parties to the Support Agreement. Each Supporting Shareholder may terminate the Support Agreement immediately following (x) any decrease in the Offer Price payable in the Offer or in the Merger Consideration payable in the Merger or (y) any change to the form of consideration payable in the Offer or the Merger.

The 2,241,400 Shares currently owned by the Supporting Shareholders represent in the aggregate approximately 10.2% of the currently outstanding Shares.

The foregoing description of the material provisions of the Support Agreement does not purport to be complete and is qualified in its entirety by reference to the Support Agreement, a copy of which is filed as an exhibit to the Form 8-K filed by O’Charley’s on February 6, 2012 and is incorporated herein by reference. For a complete understanding of the Support Agreement, you are encouraged to read the full text of the Support Agreement.

12.	Purpose of the Offer; Plans for O’Charley’s.

Purpose of the Offer. The purpose of the Offer is for Parent, through the Purchaser, to acquire control of, and the entire equity interest in, O’Charley’s. The Offer, as the first step in the acquisition of O’Charley’s, is intended to facilitate the acquisition of all outstanding Shares. The purpose of the Merger is to acquire all of the outstanding Shares not tendered and purchased pursuant to the Offer. If the Offer is successful, the Purchaser intends to consummate the Merger as promptly as practicable.

If you sell your Shares in the Offer, you will cease to have any equity interest in O’Charley’s or any right to participate in its earnings and future growth. If you do not tender your Shares, but the Merger is consummated, you also will no longer have an equity interest in O’Charley’s. Similarly, after selling your Shares in the Offer or the subsequent Merger, you will not bear the risk of any decrease in the value of O’Charley’s.

Short-form Merger. The TBCA provides that if a parent company owns at least 90% of each class of outstanding voting shares of a subsidiary, the parent company can effect a short-form merger with that subsidiary without the action of the other shareholders of that subsidiary. Accordingly, if as a result of the Offer, the Top-Up Option or the subsequent offering period, if any, the Purchaser directly or indirectly owns at least 90% of the Shares, Parent and the Purchaser expect to effect the Merger as a “short-form merger” pursuant to Section 00-00-000 of the TBCA, no earlier than one month after the date that a copy of the plan of merger was mailed to all shareholders of O’Charley’s. Under those circumstances, neither the approval of any holder of Shares other than the Purchaser, or of the Company’s Board of Directors, would be required. Furthermore, no dissenters’ rights would be available under Section 00-00-000 of the TBCA in connection with a short-form merger, unless the Shares are no longer listed on Nasdaq on the date of the consummation of the short-form merger. See Section 17 – “Dissenters’ Rights.” Even if Parent and the Purchaser do not own 90% of the outstanding Shares following consummation of the Offer, Parent and the Purchaser could seek to purchase additional Shares in the open market, from O’Charley’s or otherwise in order to reach the 90% threshold and effect a short-form merger. The price per Share that may be paid for any Shares so acquired will be at least equal to that paid in the Offer.

Plans for O’Charley’s. Except as otherwise provided herein, it is expected that, initially following the Merger, the business and operations of O’Charley’s will, except as described in this Offer to Purchase, be continued substantially as they are currently being conducted. Parent will continue to evaluate the business and operations of O’Charley’s during the pendency of the Offer and after the consummation of the Offer and the Merger and will take such actions as it deems appropriate under the circumstances existing at the time. Thereafter, Parent intends to review information as part of a comprehensive review of the Company’s business, operations, capitalization and management with a view to optimizing development of the Company’s potential in conjunction with Parent’s investment in ABRH.

Upon the Acceptance Time and from time to time thereafter, pursuant to the Merger Agreement, Parent shall be entitled to designate the number of directors on the Company’s Board of Directors equal to the product of (i) the total number of directors on Company’s Board of Directors and (ii) the percentage that the number of Shares owned directly or indirectly by Parent (and its subsidiaries, including the Purchaser) immediately following the Acceptance Time represents out of the total number of Shares then outstanding. Parent intends to choose its designees from the persons listed in Schedule I to this Offer to Purchase. O’Charley’s has agreed to take all actions necessary to enable Xxxxxx’s designees to be so elected or appointed to the Company’s Board of Directors. O’Charley’s also agreed to cause individuals designated by Parent to have the same proportionate representation on (i) each committee of the Company’s Board of Directors and (ii) each board of directors (or similar body) and each committee thereof (or similar body) of each subsidiary of O’Charley’s. Prior to the

Effective Time, the Company’s Board of Directors shall always have at least three members of the Company’s Board of Directors who were members of the Company’s Board of Directors as of the effective date of the Merger Agreement (“Continuing Directors”) and until the effective time of the Merger, the approval of a majority of the Continuing Directors shall be required to authorize O’Charley’s to, among other things:

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amend, modify, supplement or terminate the Merger Agreement;

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extend the time for performance of, or waive, any of the obligations or other acts of Parent or the Purchaser under the Merger Agreement;

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waive or exercise any of the Company’s rights under the Merger Agreement;

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waive any condition to the Company’s obligations under the Merger Agreement;

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amend the Company’s charter or bylaws;

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Except as described in this Offer to Purchase, the Purchaser and Parent have no present plans or proposals that would relate to or result in (i) any extraordinary corporate transaction involving O’Charley’s or any of its subsidiaries (such as a merger, reorganization, liquidation, relocation of any operations or sale or other transfer of a material amount of assets), (ii) any sale or transfer of a material amount of assets of O’Charley’s or any of its subsidiaries, (iii) any material change in the Company’s capitalization or dividend policy or (iv) any other material change in the Company’s corporate structure or business.

13.	Certain Effects of the Offer.

Market for the Shares. The purchase of Shares pursuant to the Offer will reduce the number of holders of Shares and the number of Shares that might otherwise trade publicly, which could adversely affect the liquidity and market value of the remaining Shares. We cannot predict whether the reduction in the number of Shares that might otherwise trade publicly would have an adverse or beneficial effect on the market price for, or marketability of, the Shares or whether that reduction would cause future market prices to be greater or less than the Offer Price.

Stock Quotation. Depending upon the number of Shares purchased pursuant to the Offer, the Shares may no longer meet the requirements for continued listing on Nasdaq. According to the published guidelines of The Nasdaq Stock Market, LLC (the “Nasdaq Stock Market”), the Nasdaq Stock Market would consider disqualifying the Shares for listing on Nasdaq (though not necessarily for listing on The Nasdaq Capital Market) if, among other possible grounds:

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the number of publicly held Shares falls below 750,000;

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the total number of beneficial holders of round lots of Shares falls below 400;

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the market value of publicly held Shares over a 30 consecutive business day period is less than $5 million;

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there are fewer than two active and registered market makers in the Shares over a ten consecutive business day period;

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O’Charley’s has shareholders’ equity of less than $10 million; or

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the bid price for the Shares over a 30 consecutive business day period is less than $1.

Furthermore, the Nasdaq Stock Market would consider delisting the Shares from Nasdaq altogether if, among other possible grounds:

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the number of publicly held Shares falls below 500,000;

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the total number of beneficial holders of round lots of Shares falls below 300;

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the market value of publicly held Shares over a 30 consecutive business day period is less than $1 million;

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there are fewer than two active and registered market makers in the Shares over a ten consecutive business day period;

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the bid price for the Shares over a 30 consecutive business day period is less than $1; or

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(i) O’Charley’s has shareholders’ equity of less than $2.5 million, (ii) the market value of the Company’s listed securities is less than $35 million over a ten consecutive business day period, and (iii) the Company’s net income from continuing operations is less than $500,000 for the most recently completed fiscal year and two of the last three most recently completed fiscal years.

Shares held by officers or directors of O’Charley’s, or by any beneficial owner of more than 10% of the Shares, will not be considered as being publicly held for this purpose. According to O’Charley’s, as of February 20, 2012, there were 21,947,206 Shares issued and outstanding. If, as a result of the purchase of Shares pursuant to the Offer or otherwise, the Shares are either no longer eligible for Nasdaq or are delisted from Nasdaq altogether, the market for Shares will be adversely affected.

Margin Regulations. The Shares are currently “margin securities” under the Regulations of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), which has the effect, among other things, of allowing brokers to extend credit on the collateral of the Shares. Depending upon factors similar to those described above regarding the market for the Shares and stock quotations, it is possible that, following the Offer, the Shares would no longer constitute “margin securities” for purposes of the margin regulations of the Federal Reserve Board and, therefore, could no longer be used as collateral for loans made by brokers.

Exchange Act Registration. The Shares are currently registered under the Exchange Act. That registration may be terminated upon application of O’Charley’s to the SEC if the Shares are neither listed on a national securities exchange nor held by 300 or more holders of record. Termination of registration of the Shares under the Exchange Act would substantially reduce the information required to be furnished by O’Charley’s to its shareholders and to the SEC and would make certain provisions of the Exchange Act no longer applicable to O’Charley’s, such as the short-swing profit recovery provisions of Section 16(b) of the Exchange Act, the requirement of furnishing a proxy statement pursuant to Section 14(a) of the Exchange Act in connection with shareholders’ meetings and the related requirement of furnishing an annual report to shareholders and the requirements of Rule 13e-3 under the Exchange Act with respect to “going private” transactions. Furthermore, the ability of “affiliates” of O’Charley’s and persons holding “restricted securities” of O’Charley’s to dispose of those securities pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended, may be impaired or eliminated. If registration of the Shares under the Exchange Act were terminated, the Shares would no longer be “margin securities” or be eligible for listing on Nasdaq. We intend and will cause O’Charley’s to terminate the registration of the Shares under the Exchange Act as soon after consummation of the Offer as the requirements for termination of registration are met. If registration of the Shares is not terminated prior to the Merger, the registration of the Shares under the Exchange Act will be terminated following the consummation of the Merger.

14.	Dividends and Distributions.

The Merger Agreement provides that from the date of the Merger Agreement to the Effective Time, without the prior written consent of Parent, O’Charley’s will not, and will not allow its subsidiaries to, declare, set aside, make or pay any dividend or other distribution (whether in cash, stock and/or property) in respect of O’Charley’s capital stock.

15.	Certain Conditions of the Offer.

For the purposes of this Section 15, capitalized terms used but not defined in this Offer to Purchase will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions of the Offer and in addition to the Purchaser’s rights to extend, amend or terminate the Offer in accordance with the provisions of the Merger Agreement and applicable law, neither Parent nor the Purchaser shall be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, pay for any tendered Shares unless:

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the Minimum Condition shall have been satisfied;

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the Regulatory Condition shall have been satisfied;

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the Legal Restraint Condition shall have been satisfied;

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each representation or warranty of O’Charley’s set forth in the Merger Agreement other than the Fundamental Representations shall be true and correct in all respects (without giving effect to any materiality or Company Material Adverse Effect qualifier therein), as of the date of the Merger Agreement and as of the Acceptance Time as though made on or as of that date (or in the case of representations and warranties that address matters only as of a particular date, as of that date), except to the extent that breaches thereof, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect; (ii) each of the Fundamental Representations shall be true and correct in all material respects, as of the date of the Merger Agreement and as of the Acceptance Time as though made on or as of that date (or, in the case of representations and warranties that address matters only as of a particular date, as of that date); (iii) each of the Capitalization Representations shall be true and correct in all respects (other than inaccuracies that do not and would not result in an increase in the amounts payable by Parent, Merger Sub, O’Charley’s, the surviving corporation or any of their respective subsidiaries pursuant to the Merger Agreement of more than $625,000 in the aggregate), as of the date of the Merger Agreement and as of the Acceptance Time as though made on or as of that date (or, in the case of representations and warranties that address matters only as of a particular date, as of that date); and (iv) there shall not have occurred any Company Material Adverse Effect since the date of the Merger Agreement;

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O’Charley’s shall have performed or complied in all material respects with all agreements and covenants required to be performed by it under the Merger Agreement at or prior to the Acceptance Time;

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O’Charley’s shall have furnished Parent with a certificate dated as of the date of the Acceptance Time signed on its behalf by its Chief Executive Officer or Chief Financial Officer to the effect that the conditions described in the preceding two bullet points have been satisfied; and

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The Merger Agreement shall not have been validly terminated in accordance with its terms.

To the extent permitted by the rules and regulations of the SEC which require the satisfaction or waiver of conditions prior to the expiration of the Offer (or thereafter in relation to any condition dependent upon the receipt of government approvals), the foregoing conditions are for the sole benefit of Parent and the Purchaser, may be asserted by either Parent or the Purchaser, regardless of the circumstances giving rise to any of those conditions (provided that nothing shall relieve any party to the Merger Agreement from any obligation or liability that party has under the Merger Agreement), and, except for the Minimum Condition, may be waived by Parent or the Purchaser in whole or in part at any time and from time to time, subject to the terms of the Merger Agreement and applicable law. The failure by Parent or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.

The Regulatory Condition has been satisfied. See Section 16 – “Certain Legal Matters; Regulatory Approvals.”

16.	Certain Legal Matters; Regulatory Approvals.

General. Except as described in this Section 16, based on our examination of publicly available information filed by O’Charley’s with the SEC and other information concerning O’Charley’s, we are not aware of any governmental license or regulatory permit that appears to be material to the Company’s business that might be adversely affected by our acquisition of Shares as contemplated herein or of any approval or other action by any governmental, administrative or regulatory authority or agency, domestic or foreign, that would be required for the acquisition or ownership of Shares by the Purchaser or Parent as contemplated herein. Should any such approval or other action be required, we currently contemplate that, except as described below under “State Takeover Statutes,” such approval or other action will be sought. While we do not currently intend to delay acceptance for payment of Shares tendered pursuant to the Offer pending the outcome of any such matter, there can be no assurance that any such approval or other action, if needed, would be obtained or would be obtained without substantial conditions or that if those approvals were not obtained or such other actions were not taken, adverse consequences might not result to the Company’s business, any of which under certain conditions specified in the Merger Agreement, could cause us to elect to terminate the Offer without the purchase of Shares under certain conditions. See Section 15 – “Certain Conditions of the Offer.”

Antitrust Compliance. Under the HSR Act, and the related rules and regulations that have been issued by the United States Federal Trade Commission (the “FTC”), certain transactions may not be consummated until specified information and documentary material (“Premerger Notification and Report Forms”) have been furnished to the FTC and the Antitrust Division of the Department of Justice (the “Antitrust Division”) and certain waiting period requirements have been satisfied. These requirements of the HSR Act apply to the acquisition of Shares in the Offer and the Merger.

Under the HSR Act, our purchase of Shares in the Offer may not be completed until the expiration of a 15 calendar day waiting period following the filing by Parent, as the ultimate parent entity of the Purchaser, of a Premerger Notification and Report Form concerning the Offer with the FTC and the Antitrust Division, unless the waiting period is earlier terminated by the FTC and the Antitrust Division. If the 15th calendar day of the waiting period is not a business day, the waiting period is extended until the next business day. Parent filed Premerger Notification and Report Forms with the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer and the Merger on February 17, 2012. The required waiting period with respect to the Offer and the Merger was terminated by the FTC and the Antitrust Division on February 24, 2012. The Merger will not require an additional filing under the HSR Act if the Purchaser owns more than 50% of the outstanding Shares at the time of the Merger or if the Merger occurs within one year after the HSR Act waiting period applicable to the Offer expires or is terminated. Accordingly, the Regulatory Condition has been satisfied. The Offer continues to be conditioned upon the other conditions described in Section 15 – “Certain Conditions of the Offer,” including, among other things, the satisfaction of the Minimum Condition.

Other Foreign Competition Filings. Parent and Purchaser do not believe that any foreign regulatory filings or approvals will be required in connection with the consummation of the Offer.

State Takeover Laws. O’Charley’s is incorporated under the laws of the State of Tennessee. A number of states have adopted laws and regulations applicable to attempts to acquire securities of corporations that are incorporated, or have substantial assets, shareholders, principal executive offices or principal places of business, or whose business operations otherwise have substantial economic effects, in those states. In 1982, in Xxxxx x. MITE Corp., the Supreme Court of the United States invalidated on constitutional grounds the Illinois Business Takeover Statute which, as a matter of state securities law, made takeovers of corporations meeting certain requirements more difficult. However, in 1987, in CTS Corp. v. Dynamics Corp. of America, the Supreme Court held that the State of Indiana could, as a matter of corporate law, constitutionally disqualify a potential acquiror from voting shares of a target corporation without the prior approval of the remaining shareholders where, among other things, the corporation is incorporated, and has a substantial number of shareholders, in the state. Subsequently, in TLX Acquisition Corp. v. Telex Corp., a U.S. federal district court in Oklahoma ruled that the Oklahoma statutes were unconstitutional as applied to corporations incorporated outside Oklahoma in that they would subject those corporations to inconsistent regulations. Similarly, in Tyson Foods, Inc. x. XxXxxxxxxx, a U.S. federal district court in Tennessee ruled that four

Tennessee takeover statutes were unconstitutional as applied to corporations incorporated outside Tennessee. This decision was affirmed by the United States Court of Appeals for the Sixth Circuit. In December 1988, a U.S. federal district court in Florida held in Grand Metropolitan PLC x. Xxxxxxxxxxx that the provisions of the Florida Affiliated Transactions Act and the Florida Control Share Acquisition Act were unconstitutional as applied to corporations incorporated outside of Florida. The state law before the Supreme Court was by its terms applicable only to corporations that had a substantial number of shareholders in the state and were incorporated there.

O’Charley’s, directly or through subsidiaries, conducts business in a number of states throughout the United States, some of which have enacted takeover laws. We do not know whether any of these laws will, by their terms, apply to the Offer or the Merger and have not attempted to comply with any such laws. O’Charley’s has represented and warranted to the Purchaser and Parent that (i) other than the HSR Act, no state or federal anti-takeover or regulation is applicable to O’Charley’s, the Shares, the Offer, the Merger, the Top-Up Option and the other transactions contemplated by the Merger Agreement and (ii) the Company’s Board of Directors has duly taken all action necessary to assure that none of the Offer, the Merger, the Top-Up Option and the other transactions contemplated by the Merger Agreement will be a “takeover offer” under the Tennessee Investor Protection Act. The Tennessee Investor Protection Act does not apply to the proposed transaction because the Offer is made on substantially equal terms to all shareholders of O’Charley’s, those terms have been disclosed to those shareholders and the Company’s Board of Directors has recommended acceptance of the Offer to the Company’s shareholders. The Purchaser reserves the right to challenge the applicability or validity of any state law purportedly applicable to the Offer and nothing in this Offer to Purchase or any action taken in connection with the Offer is intended as a waiver of that right.

Should any person seek to apply any state takeover law, we will take such action as then appears desirable, which may include challenging the validity or applicability of any such statute in appropriate court proceedings. In the event any person asserts that the takeover laws of any state are applicable to the Offer or the Merger, and an appropriate court does not determine that it is inapplicable or invalid as applied to the Offer or the Merger, we may be required to file certain information with, or receive approvals from, the relevant state authorities. In addition, if enjoined, we may be unable to accept for payment any Shares tendered pursuant to the Offer, or be delayed in continuing or consummating the Offer and the Merger. In such case, we may not be obligated to accept for payment any Shares tendered in the Offer. See Section 15 – “Certain Conditions of the Offer.”

Litigation.

O’Charley’s, its Board of Directors, Parent, the Purchaser, and in one instance, Crescendo Partners, one of O’Charley’s shareholders, are named as defendants in five purported class action lawsuits brought by O’Charley’s shareholders in the Court of Chancery for Davidson County in the Twentieth Judicial District of Tennessee (Kaniecki x. X’Xxxxxxx’x Inc., et al., filed on February 9, 2012, Xxxxx x. X’Xxxxxxx’x Inc., et al., Xxxxxxx x. X’Xxxxxxx’x Inc., et al., and White x. X’Xxxxxxx’x Inc., et al., each filed on February 15, 2012) and in the Circuit Court for Davidson County in the Twentieth Judicial District of Tennessee (Xxxxxxxx x. X’Xxxxxxx’x Inc., et al., filed on February 13, 2012), challenging the Merger. On February 23, 2012, the Davidson County Circuit Court entered an agreed order transferring the Xxxxxxxx action to the Davidson County Chancery Court. The shareholders actions generally allege, among other things, that (i) each member of O’Charley’s Board of Directors breached his or her fiduciary duties to the O’Charley’s and its shareholders in authorizing the Merger, (ii) the Merger does not maximize value to the O’Charley’s stockholders, and (iii) O’Charley’s, Parent, the Purchaser and Crescendo Partners aided and abetted the breaches of fiduciary duty allegedly committed by O’Charley’s Board of Directors. The shareholders actions seek, among other things, class certification and equitable relief, including judgments enjoining the defendants from consummating the Merger on the agreed-upon terms.

17.	Dissenters’ Rights.

No dissenters’ rights are available under Section 48–23–102 of the TBCA in connection with the Offer. Shareholders who sell Shares in the Offer will not be entitled to exercise dissenters’ rights with respect thereto, but, rather, will receive the Offer Price.

Furthermore, no dissenters’ rights are available under Section 48–23–102 of the TBCA in connection with the Merger, unless the Shares are no longer listed on Nasdaq on the date of the consummation of the Merger. If the Shares are delisted from Nasdaq prior to the date of the consummation of the Merger such that holders of the Shares are entitled to dissenters’ rights in connection with the Merger, such holders will receive additional information concerning dissenters’ rights and the procedures to be followed in connection therewith before they have to take any action relating thereto.

18.	Fees and Expenses.

Jefferies is acting as Dealer Manager in connection with the Offer and has provided certain financial advisory services to Parent in connection with the proposed acquisition of O’Charley’s, for which services Jefferies will receive customary compensation. Jefferies will be reimbursed for its reasonable fees and expenses, including the reasonable fees and disbursements of Xxxxxxxxx’x counsel, incurred in connection with Jefferies’ engagement, and will be indemnified, along with certain related parties, against specified liabilities, including liabilities under the federal securities laws. In the ordinary course of business, Jefferies and its respective affiliates may actively trade or hold securities or loans of Parent and O’Charley’s for their own accounts or for the accounts of customers and, accordingly, Jefferies and/or its respective affiliates may at any time hold long or short positions in these securities or loans.

The Purchaser has retained Xxxxxxxxx Inc. to be the Information Agent and American Stock Transfer & Trust Company, LLC to be the Depositary in connection with the Offer. The Information Agent may contact holders of Shares by mail, telephone, telecopy, telegraph and personal interview and may request banks, brokers, dealers and other nominees to forward materials relating to the Offer to beneficial owners of Shares.

The Information Agent and the Depositary each will receive reasonable and customary compensation for their respective services in connection with the Offer, will be reimbursed for reasonable out-of-pocket expenses and will be indemnified against certain liabilities and expenses in connection therewith, including certain liabilities under federal securities laws.

Neither Parent nor the Purchaser will pay any fees or commissions to any broker or dealer or to any other person (other than to the Depositary and the Information Agent) in connection with the solicitation of tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust companies will, upon request, be reimbursed by the Purchaser for customary mailing and handling expenses incurred by them in forwarding offering materials to their customers. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of the Purchaser by the Dealer Manager or one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by the Purchaser.

19.	Miscellaneous.

The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of the Purchaser by the Dealer Manager or one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by the Purchaser.

No person has been authorized to give any information or to make any representation on behalf of Parent or the Purchaser not contained herein or in the Letter of Transmittal, and, if given or made, such information or representation must not be relied upon as having been authorized. No broker, dealer, bank, trust company, fiduciary or other person shall be deemed to be the agent of the Purchaser, the Depositary, the Dealer Manager or the Information Agent for the purpose of the Offer.

Parent and the Purchaser have filed with the SEC a Tender Offer Statement on Schedule TO pursuant to Rule 14d-3 of the General Rules and Regulations under the Exchange Act, together with exhibits furnishing certain additional information with respect to the Offer, and may file amendments thereto. In addition, O’Charley’s has filed with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9, together with exhibits, pursuant to Rule 14d-9 under the Exchange Act, setting forth the recommendation of the Company’s Board of Directors with respect to the Offer and the reasons for such recommendation and furnishing certain additional related information. A copy of such documents, and any amendments thereto, may be examined at, and copies may be obtained from, the SEC in the manner set forth under Section 7 – “Certain Information Concerning O’Charley’s” above.

Xxxx Xxxxxx Sub Inc.

February 27, 2012

SCHEDULE I

DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER, PARENT AND FNSO.

1.	DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER.

The name, business address, present principal occupation or employment and material occupations, positions, offices or employment for the past five years of each of the directors and executive officers of Xxxx Xxxxxx Sub Inc. are set forth below. The business address and phone number of each such director and executive officer is 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000, (000) 000-0000. Unless otherwise indicated, each director and executive officer is a citizen of the United States of America.


NAME AND POSITION		PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT

Xxxxxx X. Xxxxxxx Director and President		Xx. Xxxxxxx is the Chief Executive Officer of Parent and he has served in that capacity since October 2010. Previously Xx. Xxxxxxx served as Chief Operating Officer of Parent since June 2010. Prior to that, Xx. Xxxxxxx served as Corporate Executive Vice President and Chief Financial Officer of Fidelity Information Services, Inc. (“FIS”) since July 2008 and before then as Executive Vice President, Finance of FIS since February 2008. Prior to joining FIS, Xx. Xxxxxxx served as Executive Vice President and Chief Financial Officer of Woodbridge Holdings Corporation (formerly known as Xxxxxx Corporation) since August 2004 and Executive Vice President and Chief Financial Officer of BFC Financial Corporation since April 2007. Prior to joining Xxxxxx, Xx. Xxxxxxx was the Chief Financial Officer of Datacore Software Corporation, an independent software vendor, from December 2001 to August 2004. Prior to joining Datacore, Xx. Xxxxxxx was the Chief Financial Officer at Seisint, Inc., a technology company specializing in providing data search and processing products, from November 2000 to September 2001.

Xxxxxxx X. Xxxx Director and Chief Financial Officer		Xx. Xxxx is the Executive Vice President and Chief Financial Officer of Parent and he has served in that position since October 2005. Prior to being appointed CFO of Parent, Xx. Xxxx served as Controller and Assistant Controller of Parent from 1991 to 2000 and served as the Chief Accounting Officer of Parent from 2000 to 2005.

Xxxxxxx X. Xxxxxx Secretary		Xx. Xxxxxx is Senior Vice President, Legal of Parent and has served in that capacity since September, 2006.

2.	DIRECTORS AND EXECUTIVE OFFICERS OF PARENT.

The name, business address, present principal occupation or employment and material occupations, positions, offices or employment for the past five years of each of the directors and executive officers of Parent are set forth below. The business address and phone number of each such director and executive officer is 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000, (000) 000-0000. Unless otherwise indicated, each director and executive officer is a citizen of the United States of America.


NAME AND POSITION		PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND EMPLOYMENT HISTORY

Xxxxxxx X. Xxxxx, XX Executive Chairman of the Board and Chairman of Executive Committee		Xx. Xxxxx has served as the executive Chairman of Parent since October 2006 and, prior to that, as Chairman of the Board since 1984. Xx. Xxxxx also served as Chief Executive Officer of Parent from 1984 until May 2007. Xx. Xxxxx also served as President of Parent from 1984 until December 1994. Xx. Xxxxx also serves as the Chairman of the Board of FIS and was its Executive Chairman from February 2006 to February 2011. Xx. Xxxxx also served as the Chairman of the Board of Lender Processing Services, Inc. from July 2008 until March 2009, and, within the past five years, has served as a director of Florida Rock Industries, Inc.. He also serves on the board of directors of the Xxxxx Family Charitable Foundation and the Cummer Museum of Arts and Gardens.

Xxxxxx X. Xxxxxxx Chief Executive Officer		See description above.

Xxxxxxx X. Xxxxx President		Xx. Xxxxx is the President of Parent and he has served in that position since April 2008. Previously, Xx. Xxxxx served as Co-President since May 2007 and Co-Chief Operating Officer of Parent from October 2006 until May 2007. Xx. Xxxxx was appointed as President of Parent in 2002. Since joining Parent in 1985, Xx. Xxxxx has served in numerous executive and management positions, including Executive Vice President, Co-Chief Operating Officer and Division Manager and Regional Manager, with responsibilities for managing direct and agency operations nationally.

Xxxxx X. Xxxxxxx Executive Vice President, Corporate Finance		Xx. Xxxxxxx has served as Executive Vice President, Corporate Finance of Parent since April 2008. He joined Parent in 1999 as a Senior Vice President, Corporate Finance and has served as an executive officer of Parent since that time. Xx. Xxxxxxx also serves as Corporate Executive Vice President, Corporate Finance of FIS.

Xxxxxxx X. Xxxx Executive Vice President and Chief Financial Officer		See description above.

Xxxxx X. Xxxxxxxx Executive Vice President and Chief Legal Officer		Xx. Xxxxxxxx is Executive Vice President and Chief Legal Officer of Parent and has served in that position since 2008. Prior to that, Xx. Xxxxxxxx served as Executive Vice President and General Counsel of Parent since 1999.


NAME AND POSITION		PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND EMPLOYMENT HISTORY

Xxxxxxx X. Xxxxxxxx Executive Vice President, General Counsel and Corporate Secretary		Xx. Xxxxxxxx has served as the Executive Vice President, General Counsel and Corporate Secretary of Parent since January 2010 and served in the capacity of Executive Vice President, Legal since May 2006 and Corporate Secretary since April 2008. Xx. Xxxxxxxx joined Parent in 2003, serving as Senior Vice President. Xx. Xxxxxxxx joined a subsidiary of Parent in 1993, where he served as Vice President, General Counsel and Secretary beginning in 1996 and as Senior Vice President, General Counsel and Corporate Secretary beginning in 2000. Xx. Xxxxxxxx also serves as Corporate Executive Vice President, Chief Legal Officer and Secretary of FIS.

Xxxxxxx X. Xxxxxxxx Director and Chairman of the Audit Committee		Xx. Xxxxxxxx has served as a director of Parent since July 2005. Xx. Xxxxxxxx is a retired partner of KPMG LLP, where he became a partner in 1984. Xx. Xxxxxxxx formally retired from KPMG in 2002. He also serves as a director of Quiksilver, Inc., Xxxxxxx Xxxx Homes, El Pollo Loco, Inc. and Stantec, Inc.

Xxxxxx X. Xxxxxxx Director Chairman of the Corporate Governance and Nominating Committee and Member of the Executive Committee		Xx. Xxxxxxx has served as a director of Parent since 2005. Xx. Xxxxxxx is a Managing Director of Xxxxxx X. Xxx Partners, L.P. Xx. Xxxxxxx has been employed by Xxxxxx X. Xxx Partners, L.P. and its predecessor, Xxxxxx X. Xxx Company, since 1988. From July 2000 through April 2001, Xx. Xxxxxxx also served as the Interim Chief Financial Officer of Conseco, Inc. On December 17, 2002, Conseco, Inc. voluntarily commenced a case under Chapter 11 of the United States Code in the United States Bankruptcy Court, Northern District of Illinois, Eastern Division. Xx. Xxxxxxx currently serves as a director of MGIC Investment Corp., MoneyGram International, Inc., Ceridian Corporation, FIS, First Bancorp and several private companies.

Xxxxx X. Xxxx, Xx. Director and Member of the Corporate Governance and Nominating Committee		Xx. Xxxx has served as a director of Parent since April 2006. Xx. Xxxx is also the President and Chief Executive Officer of X.X. Xxxx Co., Inc. and he previously served as Chief Operating Officer of X.X. Xxxx Co., Inc. for more than five years. X.X. Xxxx Co., Inc. is a private company with operations in home building, commercial property development and management and heavy civil construction.

Xxxxx X. Xxxxxx Vice Chairman of the Board		Xx. Xxxxxx is the Vice Chairman of the Board of Parent and has been a director since 1984. Xx. Xxxxxx served as Parent’s President from January 1, 1995 through March 20, 2000. Prior to that, he served as an Executive Vice President and General Counsel of Parent until December 31, 1994. Xx. Xxxxxx also serves as a director of PennyMac Mortgage Investment Trust. Xx. Xxxxxx previously served as a director of CKE Restaurants, Inc. until July, 2010.

Xxxxxx X. Xxxxx Director and Member of the Audit Committee		Xxxxxx X. Xxxxx has served as a director of Parent since 2003. Xx. Xxxxx has served as the President and as a director of All-Pro Broadcasting, Inc., a holding company that operates several radio stations, since 1976. Xx. Xxxxx also serves on the Board of Directors of MGM Mirage, Inc., and, within the past five years, has served as a director of Xxxx Xxx Corporation, Dow Chemical Company, Alliance Bank, Xxxxxxx Controls, Inc., Manpower, Inc., and Checkers Drive-In Restaurants, Inc.


NAME AND POSITION		PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND EMPLOYMENT HISTORY

Xxxxxx X. (Xxx) Xxxx Director, Chairman of the Compensation Committee and Member of the Audit Committee		Xx. Xxxx has served as a director of Parent since 1989. Since February 1983, Xx. Xxxx has been a principal, Chairman and Chief Executive Officer of Lane/Xxxx Pacific, Inc., a corporation that comprises several community development and home building partnerships, all of which are headquartered in Newport Beach, California. Xx. Xxxx also served as a director of CKE Restaurants, Inc. from 1993 to 2010 and served as a director of FIS from February 2006 to July 2008, and as a director of Lender Processing Services, Inc. (“LPS”) from July 2008 until March 2009.

General Xxxxxxx Xxxx Director		General Xxxx has served as a director of Parent since 1998. General Xxxx has served as the Chairman of the board of directors and Chief Executive Officer of Xxxxxxx Xxxx Homes, Inc. and its predecessors since 1954. General Lyon also serves as the Chairman of the board of directors of Commercial Bank of California. Xx. Xxxx also serves as a director of Segerstrom Center for the Arts and Orangewood Children’s Foundation, and as a Life Trustee of the University of Southern California.

Xxxxxxx X. Xxxxxx Director and Member of the Compensation Committee		Xx. Xxxxxx has served as a director of Parent since February 2006. Xx. Xxxxxx has been a partner of Westrock Capital, LLC, a private investment partnership, since January 2009. Xx. Xxxxxx was Chief Strategy Officer and General Counsel of Alltel Corporation from January 2006 to January 2009. From 2000 until 2006, Xx. Xxxxxx served as Managing Director of Xxxxxxxx Inc., a private investment bank, during which time his financial advisory practice focused on software and information technology companies. Xx. Xxxxxx also serves as a director of FIS and First Federal Bancshares of Arkansas, Inc.

Xxxx X. Xxxxxxxx Director and Member of the Compensation Committee and the Executive Committee		Xx. Xxxxxxxx has served as a director of Parent since 1992. Xx. Xxxxxxxx currently is Vice Chairman of Global Corporate and Investment Banking, Bank of America Xxxxxxx Xxxxx, having joined that firm in May 2008. From 1999 to May 2008, Xx. Xxxxxxxx was Senior Managing Director and Head of West Coast Investment Banking at Bear Xxxxxxx & Co., Inc. Xx. Xxxxxxxx also serves on the board of directors of SonicWall Corporation and served as a director of FIS from February 2006 to July 2008, and as a director of LPS from July 2008 until March 2009.

3.	DIRECTORS AND EXECUTIVE OFFICERS OF FNSO.

The name, business address, present principal occupation or employment and material occupations, positions, offices or employment for the past five years of each of the directors and executive officers of FNSO are set forth below. The business address and phone number of each such director and executive officer is 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000, (000) 000-0000. Unless otherwise indicated, each director and executive officer is a citizen of the United States of America.


NAME AND POSITION		PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND EMPLOYMENT HISTORY

Xxxxxxx X. Xxxxx Director, President and Chief Executive Officer		See description above.

Xxxxx X. Xxxxxxx Director and Executive Vice President		See description above.

Xxxxxxx X. Xxxxxxxx Director and Executive Vice President, General Counsel and Corporate Secretary		See description above.

Xxxxxxx X. Xxxx Executive Vice President and Chief Financial Officer		See description above.

The Letter of Transmittal, certificates for Shares and any other required documents should be sent by each shareholder of O’Charley’s or such shareholder’s broker, dealer, commercial bank, trust company or other nominee to the Depositary as follows:

The Depositary for the Offer is:

AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC


If delivering by mail:	Facsimile transmission:	If delivering by hand or courier:

American Stock Transfer & Trust Company, LLC Operations Center Attn: Reorganization Department P.O. Box 2042 New York, New York 10272- 2042	For Eligible Institutions Only: 000-000-0000 For Confirmation Only Telephone: 000-000-0000	American Stock Transfer & Trust Company, LLC Operations Center Attn: Reorganization Department 0000 00^xx Xxxxxx Xxxxxxxx, Xxx Xxxx 00000

Other Information:

Questions or requests for assistance or additional copies of this Offer to Purchase, the Letter of Transmittal, and the Notice of Guaranteed Delivery may be directed to the Information Agent at its location and telephone numbers set forth below. Stockholders may also contact their broker, dealer, commercial bank or trust company for assistance concerning the Offer.

The Information Agent for the Offer is:

Xxxxxxxxx Inc.

000 Xxxxx Xxxxxx, 00^xx Floor

New York, NY 10038

(000) 000-0000 (Toll Free)

Banks and Brokerage Firms please call:

(000) 000-0000

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Offer To Purchase For Cash All Outstanding Shares Of Common Stock of O’CHARLEY’S INC. at $9.85 NET PER SHARE by FRED MERGER SUB INC. an indirect, wholly-owned subsidiary of FIDELITY NATIONAL FINANCIAL, INC.

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