EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.
OUTBACK STEAKHOUSE OF FLORIDA, INC.
AND
XXXXX & ASSOCIATES, INC.
TABLE OF CONTENTS
Page
ARTICLE 1 - PLAN OF ACQUISITION . . . . . . . . . . . . . . . . . . . . . 1
1.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Execution and Delivery of Closing Documents. . . . . . . . . . 2
1.5 Execution and Filing of Merger Documents . . . . . . . . . . . 2
1.6 Effectiveness of Merger. . . . . . . . . . . . . . . . . . . . 3
1.7 Further Assurances . . . . . . . . . . . . . . . . . . . . . . 3
1.8 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.9 Closing of Transfer Books. . . . . . . . . . . . . . . . . . . 3
1.10 Fractional Shares. . . . . . . . . . . . . . . . . . . . . . . 3
1.11 Accounting Treatment . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF WAI AND XXXXX . . . . 3
2.1 Organization and Good Standing . . . . . . . . . . . . . . . . 3
2.2 Power and Authority. . . . . . . . . . . . . . . . . . . . . . 3
2.3 Authority and Validity . . . . . . . . . . . . . . . . . . . . 3
2.4 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . 4
2.5 Compliance with Other Instruments. . . . . . . . . . . . . . . 4
2.6 Capitalization of WAI. . . . . . . . . . . . . . . . . . . . . 4
2.7 Absence of Certain Changes . . . . . . . . . . . . . . . . . . 5
2.8 Tax Liabilities. . . . . . . . . . . . . . . . . . . . . . . . 5
2.9 No Undisclosed Liabilities . . . . . . . . . . . . . . . . . . 6
2.10 Title to Properties. . . . . . . . . . . . . . . . . . . . . . 6
2.11 Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.12 Litigation and Government Claims . . . . . . . . . . . . . . . 6
2.13 No Violation of Any Instrument . . . . . . . . . . . . . . . . 7
2.14 Necessary Approvals and Consents . . . . . . . . . . . . . . . 7
2.15 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . 7
2.16 Accuracy of Information Furnished. . . . . . . . . . . . . . . 7
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF XXXXX . . . . . . . . 8
3.1 Authority and Validity . . . . . . . . . . . . . . . . . . . . 8
3.2 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . 8
3.3 Ownership. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.4 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5 Residency. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.6 Compliance with Other Instruments. . . . . . . . . . . . . . . 8
4.1 Organization and Good Standing . . . . . . . . . . . . . . . . 8
4.2 Foreign Qualification. . . . . . . . . . . . . . . . . . . . . 9
4.3 Power and Authority. . . . . . . . . . . . . . . . . . . . . . 9
4.4 Authority and Validity . . . . . . . . . . . . . . . . . . . . 9
4.5 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . 9
4.6 Compliance with Other Instruments. . . . . . . . . . . . . . . 9
4.7 Capitalization of OSI. . . . . . . . . . . . . . . . . . . . . 9
(i)
4.8 SEC Reports. . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.9 Litigation and Government Claims . . . . . . . . . . . . . . .10
4.10 Necessary Approvals and Consents . . . . . . . . . . . . . . .10
4.11 Absence of Certain Changes or Events . . . . . . . . . . . . .10
ARTICLE 5 - JOINT COVENANTS OF WAI, WIBEL, OSI AND OUTBACK. . . . . . . .10
5.1 Notice of any Material Change. . . . . . . . . . . . . . . . .10
5.2 Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . .11
5.3 Post-Closing Adjustment. . . . . . . . . . . . . . . . . . . .11
5.4 Distribution and Allocation. . . . . . . . . . . . . . . . . .11
5.5 Additional Agreements. . . . . . . . . . . . . . . . . . . . .12
ARTICLE 6 - COVENANTS OF WAI AND XXXXX. . . . . . . . . . . . . . . . . .12
6.1 Securities Law Compliance; Restrictions on Shares. . . . . . .12
6.2 Payment of Liabilities . . . . . . . . . . . . . . . . . . . .14
6.3 Pooling. . . . . . . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE 7 - COVENANTS OF OSI AND OUTBACK. . . . . . . . . . . . . . . . .14
7.1 Mandatory Registration of OSI Common Stock . . . . . . . . . .14
7.2 Registration Procedures. . . . . . . . . . . . . . . . . . . .15
7.3 Expenses of Registration . . . . . . . . . . . . . . . . . . .15
7.4 Adjustments in Number of Shares. . . . . . . . . . . . . . . .15
7.5 Transferees. . . . . . . . . . . . . . . . . . . . . . . . . .16
7.6 Employment Agreements. . . . . . . . . . . . . . . . . . . . .16
7.7 Assumed Liabilities. . . . . . . . . . . . . . . . . . . . . .16
ARTICLE 8 - JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS . . . . . .16
8.1 Consents to Transaction. . . . . . . . . . . . . . . . . . . .16
8.2 Absence of Litigation. . . . . . . . . . . . . . . . . . . . .16
8.3 Dissenter's Rights . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS OF WAI. . . . . . . . . .17
9.1 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . .17
9.2 Representations and Warranties . . . . . . . . . . . . . . . .17
9.3 Material Adverse Changes . . . . . . . . . . . . . . . . . . .17
ARTICLE 10 - CONDITIONS PRECEDENT TO OBLIGATIONSOF OSI AND OUTBACK. . . .17
10.1 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . .17
10.2 Representations and Warranties . . . . . . . . . . . . . . . .17
10.3 Current Financial Status . . . . . . . . . . . . . . . . . . .17
10.4 Material Adverse Changes . . . . . . . . . . . . . . . . . . .17
10.5 Pooling. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
(ii)
ARTICLE 11 - INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . .18
11.1 Securities Laws Indemnification. . . . . . . . . . . . . . . .18
11.2 Indemnification Based on Agreement . . . . . . . . . . . . . .18
11.3 Limitation . . . . . . . . . . . . . . . . . . . . . . . . . .19
11.4 Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . .19
11.5 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
ARTICLE 12 - MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . .19
12.1 Termination. . . . . . . . . . . . . . . . . . . . . . . . . .19
12.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . .20
12.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . .20
12.4 Survival of Representations and Warranties . . . . . . . . . .20
12.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . .20
12.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . .21
12.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . .21
12.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . .21
12.9 Waiver and Other Action. . . . . . . . . . . . . . . . . . . .21
12.10 Severability . . . . . . . . . . . . . . . . . . . . . . . .21
12.11 Headings . . . . . . . . . . . . . . . . . . . . . . . . . .21
12.12 Construction . . . . . . . . . . . . . . . . . . . . . . . .21
12.13 Jurisdiction and Venue . . . . . . . . . . . . . . . . . . .22
12.14 Enforcement. . . . . . . . . . . . . . . . . . . . . . . . .22
12.15 Further Assurances . . . . . . . . . . . . . . . . . . . . .22
12.16 Equitable Remedies . . . . . . . . . . . . . . . . . . . . .22
EXHIBIT A
ARTICLES OF MERGER . . . . . . . . . . . . . . . . . . . . . . . .A-1
EXHIBIT B
DISCLOSURE SCHEDULES. . . . . . . . . . . . . . . . . . . . . . . B-1
(iii)
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of the 6th day of August, 1997, by and among OUTBACK
STEAKHOUSE, INC., a Delaware corporation ("OSI"), OUTBACK STEAKHOUSE OF
FLORIDA, INC., a Florida corporation ("Outback"), XXXXX & ASSOCIATES, INC.,
a Michigan corporation ("WAI") and XXXX X. XXXXX, an individual residing in
the State of Michigan ("Xxxxx").
W I T N E S S E T H:
WHEREAS, Outback is a wholly-owned subsidiary of OSI; and
WHEREAS, Xxxxx is the sole owner of the issued and outstanding common
stock of WAI, and Xxxxx is the sole director, President and is responsible
for the day-to-day operations of WAI; and
WHEREAS, Outback and WAI have entered into that certain Florida limited
partnership known as Outback/Detroit Limited Partnership ("Partnership");
WHEREAS, the Partnership operates Outback Steakhouse restaurants in the
State of Michigan; and
WHEREAS, the Board of Directors of WAI has approved the merger of WAI
into Outback (the "Merger") upon the terms and conditions set forth in this
Agreement; and
WHEREAS, for federal income tax purposes it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, pursuant to the Merger, WAI will be merged with and into
Outback and all of the outstanding shares of capital stock of WAI will be
converted into shares of Common Stock, par value $.01, of OSI (the "OSI
Common Stock"); and
WHEREAS, the parties hereto desire by this Agreement to set forth the
terms and conditions upon which they are willing to consummate the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto covenant and
agree as follows:
ARTICLE 1
PLAN OF ACQUISITION
1.1 The Merger. Subject to and upon the terms and conditions contained
herein, WAI shall be merged with and into Outback, with Outback being the
surviving corporation, in accordance with the Articles of Merger
substantially in the form attached to this Agreement as Exhibit A (the
"Merger Agreement"), which will be executed and delivered by OSI, Outback,
and WAI prior to the Merger. As a result of the Merger, each voting and
nonvoting common share of WAI outstanding immediately before the Effective
Date (as herein defined) shall, by virtue of the Merger and without any
further action being required by the holders thereof, be converted into and
exchanged for 16.6 shares of OSI Common Stock.
1
1.2 Adjustments.
(a) Except as otherwise provided in this Section 1.2, the total number
of shares of OSI Common Stock to be issued pursuant to the Merger shall be
166,000.
(b) If, between the date of this Agreement and the Closing Date or the
Effective Date, as the case may be, (i) the outstanding shares of capital
stock of WAI shall have been changed into a different number of shares or a
different class by reason of any reclassification, recapitalization, split-
up, combination, exchange of shares, or readjustment, with a record date
within such period, or a stock dividend thereon shall be declared with a
record date within such period or (ii) WAI shall have issued additional
shares of its capital stock, the number of shares of OSI Common Stock
received in exchange for each share of WAI's capital stock shall be adjusted
so that the aggregate number of shares of OSI Common Stock received in
exchange for all shares of WAI's capital stock (assuming no Dissenting
Shares) remains at 166,000.
(c) If, between the date of this Agreement and the Closing Date or the
Effective Date, as the case may be, the outstanding shares of OSI Common
Stock shall have been changed into a different number of shares or a
different class by reason of any reclassification, recapitalization, split-
up, combination, exchange of shares, or readjustment, with a record date
within such period, or a stock dividend thereon shall be declared with a
record date within such period, the number of shares of OSI Common Stock
received in exchange for each share of capital stock of WAI (as specified in
Section 1.1 hereof) shall be adjusted to accurately reflect such change.
1.3 Closing. The closing of the transactions contemplated by this
Agreement, including the Merger (the "Closing"), shall take place at 10:00
a.m., Tampa time, at the offices of Outback on July 25, 1997, or on such date
and at such other time and place as is agreed upon by the parties hereto.
The day on which the Closing occurs is herein referred to as the "Closing
Date." If any of the conditions to the obligations of the parties to this
Agreement have not been satisfied or waived by the Closing Date, then the
party to this Agreement that is unable to meet such condition or conditions
shall be entitled to postpone the Closing by written notice to the other
parties until such condition shall have been satisfied (which such party
shall seek to cause to happen at the earliest practicable date) or waived,
but the Closing shall occur not later than July 31, 1997, unless further
extended by written agreement of the parties to this Agreement. The parties
shall use their best efforts to effectuate a timely closing as provided in
this Section 1.3.
1.4 Execution and Delivery of Closing Documents. Before the Closing,
each party shall cause to be prepared and at the Closing the parties shall
execute and deliver each agreement and instrument required by this Agreement
or the Merger Agreement to be so executed and delivered and not theretofore
accomplished. At the Closing, each party also shall execute and deliver such
other appropriate and customary documents as the other parties reasonably may
request for the purpose of consummating the transactions contemplated by this
Agreement and the Merger Agreement. All actions taken at the Closing shall
be deemed to have been taken simultaneously at the time the last of any such
actions is taken or completed.
1.5 Execution and Filing of Merger Documents. At the time of
completion of the Closing, OSI, Outback, WAI and Xxxxx agree to take the
following actions:
(a) to execute and deliver all documents and certificates relating to
the Merger required to be executed by them that have not already been so
executed and that are required under applicable federal, state and local laws
to be filed in order validly to effectuate the Merger; and
2
(b) to cause Articles of Merger to be filed with the Secretary of State
of the State of Florida and the Secretary of State of the State of Michigan
and a Certificate of Merger to be issued by each such officer.
1.6 Effectiveness of Merger. The Merger shall become effective under
the laws of Florida upon the later of (i) filing of these Articles of Merger
with the Secretary of State of the State of Florida and the Secretary of
State of the State of Michigan; or (ii) July 31, 1997 (the "Effective Date").
Such Effective Date shall be indicated on Certificates of Merger issued by
the Secretary of State of the State of Florida and by the Secretary of State
of the State of Michigan pursuant to the Florida Act and Michigan Law.
1.7 Further Assurances. After the Closing, the parties hereto shall
execute and deliver such additional documents and take such additional
actions as may reasonably be deemed necessary or advisable by any party in
order to consummate the transactions contemplated by this Agreement and by
the Merger Agreement, and to vest more fully in Outback the ownership of and
the rights to the business and assets of WAI as existed immediately before
the Effective Date.
1.8 Certificates. As soon as practicable after the Effective Date, OSI
shall make available and each holder of capital stock of WAI shall be
entitled to receive upon surrender of stock certificates of WAI representing
WAI capital stock for cancellation, certificates representing the number of
shares of OSI Common Stock into which such shares are converted in the Merger
as provided in Section 1.1 hereof. The OSI Common Stock into which such WAI
capital stock is converted shall be deemed issued at the Effective Date.
1.9 Closing of Transfer Books. At the Closing Date, the stock transfer
books of WAI shall be closed and no transfer of capital stock of WAI, shall
thereafter be made.
1.10 Fractional Shares. No fractional shares of OSI Common Stock and no
certificates or scrip therefor shall be issued. Instead, one whole share of
OSI Common Stock shall be issued for each fractional share of .5 or more of
one whole share and each fractional share of less than .5 of one whole share
shall be disregarded.
1.11 Accounting Treatment. It is the intention of the parties hereto
that the Merger will be treated for financial reporting purposes as a pooling
of interests.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF WAI AND XXXXX
Each of WAI and Xxxxx, jointly and severally, represent and warrant to
OSI and Outback as follows:
2.1 Organization and Good Standing. WAI is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Michigan.
2.2 Power and Authority. WAI has the requisite power and authority and
all material licenses and permits required by governmental authorities to
own, lease and operate its properties and assets and to carry on its
businesses as currently being conducted.
3
2.3 Authority and Validity.
(a) WAI has the corporate power and authority to execute, deliver and
perform its obligations under this Agreement, the Merger Agreement and the
other documents executed or to be executed by WAI in connection with this
Agreement; and the execution, delivery and performance by WAI of this
Agreement, the Merger Agreement and the other documents executed or to be
executed by WAI in connection with this Agreement have been duly authorized
by all necessary corporate action. The execution, delivery and performance
by WAI of this Agreement, the Merger Agreement and any other documents
executed or to be executed in connection with this Agreement and the
consummation of the transactions provided for herein have been duly
authorized and approved by the board of directors and shareholders of WAI as
required under the laws of the State of Michigan and WAI's corporate
governance documents.
(b) Xxxxx has the power and authority to execute, deliver and perform
his obligations under this Agreement and the other documents executed or to
be executed by Xxxxx in connection with this Agreement.
2.4 Binding Effect. This Agreement, the Merger Agreement and the other
documents executed or to be executed by WAI and Xxxxx in connection with this
Agreement have been or will have been duly executed and delivered by WAI and
Xxxxx, and are or will be, when executed and delivered, the legal, valid and
binding obligations of each of WAI and Xxxxx enforceable in accordance with
their terms except that:
(a) enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited by equitable
principles of general applicability.
2.5 Compliance with Other Instruments. Neither the execution and
delivery by WAI nor Xxxxx of this Agreement and the Merger Agreement, nor the
consummation by them of the transactions contemplated hereby and thereby,
will violate, breach, be in conflict with, or constitute a default under, or
permit the termination or the acceleration of maturity of, or result in the
imposition of any lien, claim or encumbrance upon any material property or
asset of WAI or Xxxxx pursuant to, its articles of incorporation, bylaws,
partnership agreement, operating agreement or other charter or governance
document, or any note, bond, indenture, mortgage, deed of trust, evidence of
indebtedness, loan or lease agreement, other agreement or instrument
(including with customers), judgment, order, injunction or decree by which
WAI or Xxxxx is bound, to which any of them is a party, or to which any
assets of any of them are subject; provided, however, this Section 2.5 shall
not apply with respect to any of the foregoing if WAI is bound thereby, a
party thereto, or its assets subject, solely by reason of its status as a
partner in the Partnership.
2.6 Capitalization of WAI.
(a) The authorized capital stock of WAI consists of Sixty Thousand
(60,000) common shares. There are Ten Thousand (10,000) common shares
issued and outstanding, all of which are owned by Xxxxx. There are no other
shareholders of WAI and no other persons with rights or options to acquire
capital stock of WAI. All of the issued and outstanding shares of capital
stock of WAI have been duly authorized and validly issued and are fully paid
and nonassessable. There are no shares of capital stock of WAI held in its
treasury. 4
(b) There are no voting trusts, shareholder agreements or other voting
arrangements among the shareholders of WAI.
(c) There is no outstanding subscription, contract, convertible or
exchangeable security, option, warrant, call or other right obligating WAI to
issue, sell, exchange or otherwise dispose of, or to purchase, redeem or
otherwise acquire, shares of, or securities convertible into or exchangeable
for, capital stock of WAI.
2.7 Absence of Certain Changes. Since December 31, 1996 to the Closing
Date, (except solely as a result of WAI's status as a partner in the
Partnership) WAI has not:
(a) suffered any material adverse change in its business, results of
operations, working capital, assets, liabilities, or condition (financial or
otherwise) or the manner of conducting its business;
(b) suffered any material damage or destruction to or loss of its
assets not covered by insurance, or any loss of suppliers or employees;
(c) acquired or disposed of any asset, or incurred, assumed,
guaranteed, endorsed, paid or discharged any indebtedness, liability or
obligation, or subjected or permitted to be subjected any material amount of
assets to any lien, claim or encumbrance of any kind, except in the ordinary
course of business or pursuant to agreements in force at the date of this
Agreement and identified in Item 2.7 of the Disclosure Schedules;
(d) forgiven, compromised, canceled, released, waived or permitted to
lapse any material rights or claims;
(e) entered into or terminated any lease, agreement, commitment or
transaction, or agreed to or made any changes in any leases or agreements,
other than transactions and commitments entered into in the ordinary course
of business;
(f) written up, written down or written off the book value of any
assets;
(g) declared, paid or set aside for payment any dividend or
distribution with respect to its capital stock;
(h) redeemed, purchased or otherwise acquired, or sold, granted or
otherwise disposed of, directly or indirectly, any of its capital stock or
securities or any rights to acquire such capital stock or securities, or
agreed to changes in the terms and conditions of any such rights outstanding
as of the date of this Agreement;
(i) except in the ordinary course of business, increased the
compensation of any employee or paid any bonuses to any employee or
contributed to any employee benefit plan;
(j) entered into any employment, consulting, compensation or collective
bargaining agreement with any person or group, except oral employment
agreements which can be terminated at will; or
(k) entered into, adopted or amended any employee benefit plan or
severance agreements.
2.8 Tax Liabilities. WAI has filed all federal, state, county, local
and foreign tax returns and reports required to be filed by them by the date
hereof, including those with respect to income, payroll,
5
property, withholding, social security, unemployment, franchise, excise and
sales taxes; WAI has either paid in full all taxes that have become due as
reflected on any return or report and any interest and penalties with respect
thereto or have fully accrued on their books or have established adequate
reserves for all taxes payable but not yet due; and have made cash deposits
with appropriate governmental authorities representing estimated payments of
taxes, including income taxes and employee withholding tax obligations. No
extension or waiver of any statute of limitations or time within which to
file any return has been granted to WAI with respect to any tax. No unsatisfied
deficiency, delinquency or default for any tax, assessment or governmental
charge has been claimed, proposed or assessed against WAI nor has WAI received
notice of any such deficiency, delinquency or default. WAI has no reason to
believe that WAI has or may have any tax liabilities other than those reflected
on the unaudited balance sheet of WAI as of April 30, 1997, with any notes
thereto, and the related unaudited statements of income for the four months
ended April 30, 1997, together with supplemental information on WAI, each
prepared and attested to by the chief financial officer of WAI (the "Balance
Sheets") and those arising in the ordinary course of business since the date
thereof. With regard to the foregoing, WAI has relied on the accuracy and
completeness of the Schedule K-1 provided by the Partnership.
Xxxxx shall have sole responsibility for filing all required tax returns
for WAI for all periods ending on or prior to the Effective Date. OSI shall
assist Xxxxx in preparing income tax returns and shall cooperate with Xxxxx
to the extent necessary therefor, and Xxxxx shall provide OSI with copies of
all such returns at least fifteen (15) days prior to filing.
2.9 No Undisclosed Liabilities. There are no liabilities or
obligations of WAI (other than material liabilities arising solely by reason
of WAI's status as a partner in the Partnership) of any nature, whether
absolute, accrued, contingent or otherwise, other than liabilities or
obligations indicated in Item 2.9 of the Disclosure Schedules.
2.10 Title to Properties. WAI has good and marketable title to the
assets reflected in their books and records as being owned by them, (except
as they have since been affected by transactions in the ordinary course of
business and consistent with past practices) the real and personal properties
reflected in the Balance Sheets (except for assets subject to financing
leases required to be capitalized under generally accepted accounting
principles, all of which are so reflected in the Balance Sheet or notes
thereto) and all assets purchased by WAI since the date of the Balance Sheet,
in each case free and clear of any lien, claim or encumbrance, except as
reflected in the Balance Sheet or notes thereto and in Item 2.10 of the
Disclosure Schedule and except for liens for taxes, assessments or other
governmental charges not yet due and payable.
Except for those assets acquired since the date of the Balance Sheets,
all material properties and assets owned by WAI are properly reflected on the
applicable Balance Sheets and notes thereto.
2.11 Contracts. Excluding (i) contracts and commitments between Outback
or OSI and WAI or the Partnership, (ii) contracts and commitments entered
into by the Partnership to which Outback or OSI is a party, (iii) contracts
and commitments entered into by WAI in the ordinary course of the
Partnership's business without violation of the provisions of the Partnership
Agreement, and (iv) contracts and commitments entered into with the written
consent of OSI or Outback, Item 2.11 of the Disclosure Schedule is a complete
and accurate list of all of the contracts and commitments (including
summaries of oral contracts) to which WAI is a party or by which WAI is bound.
2.12 Litigation and Government Claims. Except as indicated in Item 2.12
of the Disclosure Schedule, there is no pending suit, claim, action or
litigation or administrative, arbitration or other proceeding or governmental
investigation or inquiry against WAI or the Partnership or to which any of
6
their business or assets is subject. Except as indicated in Item 2.12 of the
Disclosure Schedule, there are no such proceedings threatened or, to the best
knowledge of WAI or Xxxxx, contemplated or, to the best knowledge of WAI or
Xxxxx, any basis for any unasserted claims (whether or not the potential
claimant may be aware of the claim) of any nature that might be asserted
against WAI or the Partnership.
2.13 No Violation of Any Instrument. Except as indicated in Item 2.13
of the Disclosure Schedule, WAI is not in violation of or default under nor
has any event occurred that, with the lapse of time or the giving of notice
or both, would constitute a violation of or default under or permit the
termination or the acceleration of maturity of or result in the imposition of
a lien, claim or encumbrance upon any property or asset of WAI pursuant to,
the articles or certificates of incorporation, bylaws or other chartering or
governance document of WAI or (excluding any of the following entered into by
the Partnership and to which Outback or OSI is a signatory or to which
Outback or OSI consented in writing or which were entered into by WAI in the
ordinary course of business without violation of the provisions of the
Partnership Agreement) any note, bond, indenture, mortgage, deed of trust,
evidence of indebtedness, loan or lease agreement, other material agreement
or instrument (including with customers), judgment, order, injunction or
decree to which WAI is a party, by which WAI is bound or to which any of the
assets of WAI are subject.
2.14 Necessary Approvals and Consents. Other than (a) in connection
with or in compliance with the laws of the States of Florida and Michigan
with respect to effectuating the Merger, (b) consents required to be obtained
from applicable liquor control authorities, (c) consents required to be
obtained from lessors, and (d) under the provisions of the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, or state
securities or blue sky laws, no authorization, consent, permit or license or
approval of or declaration, registration or filing with, any person or
governmental or regulatory authority or agency is necessary for the execution
and delivery by each of WAI and Xxxxx of this Agreement, the Merger Agreement
and the other agreements executed or to be executed by them in connection
with this Agreement, and the consummation by WAI and Xxxxx of the
transactions contemplated by this Agreement and the Merger Agreement, and the
ownership and operation by Outback of the respective businesses and
properties of WAI after the Effective Date in substantially the same manner
as now operated.
2.15 Compliance With Laws. Xxxxx has no actual knowledge that WAI or
the Partnership are not in compliance with any such laws applicable to their
respective business, where failure to so comply would have a material adverse
effect on their business, operations, properties, assets or conditions.
2.16 Accuracy of Information Furnished. No representation or warranty
by WAI or Xxxxx in this Agreement nor any information in the Financial
Statements or in the Disclosure Schedule contains any untrue statement of a
material fact or omits to state any material fact that would make the
statements herein or therein, in light of the circumstances under which they
were made, false or misleading. Each of WAI and Xxxxx have disclosed to OSI
and Outback all facts known to them that are material to WAI's and the
Partnership's respective businesses, operations, financial condition or
prospects.
7
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF XXXXX
In addition to the representations and warranties contained in
Article 2, Xxxxx represents and warrants to OSI and Outback as follows:
3.1 Authority and Validity. He has the capacity and authority to
execute, deliver and perform this Agreement and all other agreements and
documents they are executing or will execute in connection herewith or
therewith.
3.2 Binding Effect. This Agreement and the other documents executed or
to be executed by Xxxxx in connection with this Agreement have been or will
have been duly executed and delivered by him and are or will be, when
executed and delivered, their legal, valid and binding obligations
enforceable in accordance with their terms except that:
(a) enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited by equitable
principles of general applicability.
3.3 Ownership. Xxxxx is the sole record and beneficial shareholder of
WAI and no other person has any rights (in any form) to acquire any capital
stock of WAI.
3.4 Voting. He acknowledges that in his individual capacity as
shareholder and director of WAI, he has voted in favor of the execution and
delivery of this Agreement and the Merger Agreement.
3.5 Residency. Xxxxx is, and has been at all times during the one year
ending on the date hereof, a resident of the State of Michigan.
3.6 Compliance with Other Instruments. Neither the execution and
delivery by Xxxxx of this Agreement and the Merger Agreement, nor the
consummation by him of the transactions contemplated hereby and thereby will
violate, breach, be in conflict with or constitute a default under or permit
the termination or the acceleration of maturity of or result in the
imposition of any lien, claim or encumbrance upon any material property or
asset of Xxxxx pursuant to any note, bond, indenture, mortgage, deed of
trust, evidence of indebtedness, loan or lease agreement, other agreement or
instrument (including with customers), judgment order, injunction or decree
by which Xxxxx is bound, to which he is a party or to which he is subject.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK
OSI and Outback jointly and severally represent and warrant to WAI and
Xxxxx as follows:
4.1 Organization and Good Standing. OSI and Outback are corporations
duly organized, validly existing and in good standing under the laws of the
States of Delaware and Florida, respectively.
8
4.2 Foreign Qualification. Outback is duly qualified or licensed to do
business and in good standing as a foreign corporation in Michigan and in
every other jurisdiction where the failure to so qualify could have a
material adverse effect on its respective business, operations, assets or
financial condition.
4.3 Power and Authority. OSI and Outback each have the corporate power
and authority and all licenses and permits required by governmental
authorities to own, lease and operate their respective properties and assets
and to carry on their respective business as currently being conducted.
4.4 Authority and Validity. OSI and Outback each have the corporate
power and authority to execute, deliver and perform their respective
obligations under this Agreement, the Merger Agreement and the other
documents executed or to be executed by OSI and Outback in connection with
this Agreement and the execution, delivery and performance by OSI and Outback
of this Agreement, the Merger Agreement and the other documents executed or
to be executed by OSI and Outback in connection with this Agreement have been
duly authorized by all necessary corporate action.
4.5 Binding Effect. This Agreement, the Merger Agreement and the other
documents executed or to be executed by OSI and Outback in connection with
this Agreement have been or will have been duly executed and delivered by OSI
and Outback and are or will be, when executed and delivered, the legal, valid
and binding obligations of OSI and Outback, enforceable in accordance with
their terms except that:
(a) enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited by equitable
principles of general applicability.
4.6 Compliance with Other Instruments. Neither the execution and
delivery by OSI and/or Outback of this Agreement, the Merger Agreement, nor
the consummation by it of the transactions contemplated hereby and thereby
will violate, breach, be in conflict with or constitute a default under or
permit the termination or the acceleration of maturity of or result in the
imposition of any lien, claim or encumbrance upon any property or asset of
OSI or Outback pursuant to, the certificate of incorporation or bylaws of OSI
or Outback or any note, bond, indenture, mortgage, deed of trust, evidence of
indebtedness, loan or lease agreement, other agreement or instrument,
judgment order, injunction or decree by which OSI or Outback is bound, to
which it is a party or to which its assets are subject.
4.7 Capitalization of OSI. The authorized capital stock of OSI
consists of Two Hundred Million (200,000,000) shares of Common Stock, $.01
par value and Two Million (2,000,000) shares of Preferred Stock, $.01 par
value, of which approximately 48,030,588 shares of Common Stock and no shares
of Preferred Stock were issued and outstanding as of March 7, 1997. All of
the issued and outstanding shares of OSI Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable. The
shares of OSI Common Stock to be issued in exchange for WAI's capital stock
at the Effective Date, when issued and delivered, will be duly authorized,
validly issued, fully paid and nonassessable. As of the date hereof, except
for (i) employee and director stock options to acquire shares of OSI Common
Stock and (ii) employee stock ownership plans, there are no options, warrants
or other rights, agreements or commitments outstanding obligating Outback or
OSI to issue shares of its capital stock. All of the outstanding shares of
capital stock of Outback are owned by OSI, free and clear of any lien or
encumbrance.
4.8 SEC Reports. OSI has delivered to WAI and Xxxxx true and complete
copies of its (i) Annual Report on Form 10-K for the year ended December 31,
1996; (ii) Proxy Statement used in
9
connection with its 1997 Annual Meeting of Shareholders; (iii) 1997 Annual
Report to Shareholders; (iv) all periodic reports, if any, on Form 8-K filed
with the Securities and Exchange Commission since December 31, 1996 to the
date hereof; and (v) all Forms 10-Q, if any, filed with the Securities and
Exchange Commission since December 31, 1996, to the date hereof. Such
documents and reports did not on their dates or the date of filing, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. OSI
has filed all material documents required to be filed by it with the SEC and
all such documents complied as to form with the applicable requirements of law.
Copies of all other reports filed by OSI with the SEC from the date hereof to
and including the Effective Date have been or will be delivered to WAI and
Xxxxx. All financial statements and schedules included in the documents
referred to in this Section 4.8 were prepared in accordance with generally
accepted accounting principles, applied on a consistent basis except as noted
therein and fairly present the information purported to be shown therein.
4.9 Litigation and Government Claims. There is no pending suit, claim,
action or litigation or administrative, arbitration or other proceeding or
governmental investigation or inquiry against OSI or Outback which would,
severally or in the aggregate, have a material adverse effect on the
business, results of operations, assets or the condition, financial or
otherwise, of OSI and its subsidiaries, taken as a whole. There are no such
proceedings threatened or, to the knowledge of OSI or Outback, contemplated
or any unasserted claims (whether or not the potential claimant may be aware
of the claim), which might, severally or in the aggregate have a material
adverse effect on the business, results of operations, assets or the
condition, financial or otherwise, of OSI and its subsidiaries, taken as a
whole.
4.10 Necessary Approvals and Consents. Other than (a) in connection
with or in compliance with the laws of the States of Florida and Michigan
with respect to effectuating the Merger, (b) consents required to be obtained
from applicable liquor control authorities and (c) consents required to be
obtained from lessors, no authorization, consent, permit or license or
approval of or declaration, registration or filing with, any person or
governmental or regulatory authority or agency is necessary for the execution
and delivery by OSI and Outback of this Agreement, the Merger Agreement and
the other agreements executed or to be executed by either of them in
connection with this Agreement and the consummation by OSI and Outback of the
transactions contemplated by this Agreement and the Merger Agreement.
4.11 Absence of Certain Changes or Events. Except as disclosed in
public filings by OSI with the Securities and Exchange Commission prior to
the date hereof and the Closing Date, since December 31, 1995, there has not
been any material adverse change in the financial condition, results of
operations or the business, properties, assets or liabilities of Outback or
OSI.
ARTICLE 5
JOINT COVENANTS OF WAI, WIBEL, OSI AND OUTBACK
WAI and Xxxxx, jointly and severally, on the one hand, and OSI and
Outback, jointly and severally on the other hand, covenant with each other as
follows:
5.1 Notice of any Material Change. Until the Effective Date, each of
WAI, Wibel, OSI and Outback shall, promptly after the first notice or
occurrence thereof but prior to the Effective Date, advise the others in
writing of any event or the existence of any state of facts that:
(a) would make any of its representations and warranties in this
Agreement untrue in any material respect; or
10
(b) would otherwise constitute a material adverse change in the
business, results of operation, working capital, assets, liabilities or
condition (financial or otherwise) of OSI, Outback or WAI and their
respective subsidiaries, taken as a whole. No supplement or amendment to any
Disclosure Schedule shall have any effect for the purpose of determining the
satisfaction of or compliance with the conditions to the obligations of the
parties to consummate the Merger set forth elsewhere in this Agreement.
5.2 Cooperation. Until the Effective Date, each of the parties hereto
shall and shall cause each of its affiliates to use its best efforts to:
(a) proceed promptly to make or give the necessary applications,
notices, requests and filings to obtain at the earliest practicable date and,
in any event, before the Closing Date, the approvals, authorizations and
consents necessary to consummate the transactions contemplated by this
Agreement;
(b) cooperate with and keep the other informed in connection with this
Agreement; and
(c) take such actions as the other parties may reasonably request to
consummate the transactions contemplated by this Agreement and use its best
efforts and diligently attempt to satisfy, to the extent within its control,
all conditions precedent to the obligations to close this Agreement.
5.3 Post-Closing Adjustment. As soon as practicable after the
Effective Date, but in no event more than forty-five (45) days thereafter,
OSI shall determine and report in writing to all parties hereto:
(a) the amount of current assets of WAI as of the Effective Date;
(b) the amount of all liabilities of WAI (other than liabilities
specified in Item 11.2 of the WAI Disclosure Schedule to the extent assumed
by Outback) which were not paid in full prior to the Effective Date;
(c) the estimated amount of all federal and state taxes, including, but
not limited to, federal and state income taxes, payable by WAI for the short
tax year ending on the Effective Date;
Upon receipt of such report, Xxxxx (by notice to OSI as provided herein)
shall have a period of ten (10) days in which to object in writing to any
portion or item of such report. In the event no objection is timely made,
OSI's report shall be final and binding on all parties. If timely objection
is made, the chief financial officer of OSI and Xxxxx (and at the expense of
Xxxxx) shall meet and attempt to agree on the items to which objection was
made. If such persons cannot agree within thirty (30) days from the date of
written objection, the items on which agreement has not been reached shall be
submitted to the Tampa, Florida office of Price Waterhouse (or other agreed
upon independent "Big Six" accounting firm) for a resolution of such items
and whose decision shall be final and binding on all parties. The fees and
expenses of Price Waterhouse (or other accounting firm) shall be paid by the
non-prevailing party.
If, as finally determined, the sum of Subsection (a) above exceeds the
sum of Subsections (b) and (c), OSI shall pay such excess to Xxxxx within ten
(10) days of such final determination. If, as finally determined, the sum of
Subsections (b) and (c) exceeds the sum of Subsection (a), Xxxxx shall pay
such excess to OSI within ten (10) days of the final determination.
5.4 Distribution and Allocations. The parties acknowledge and agree
that notwithstanding the effective date of the Merger, Outback shall be
entitled to WAI's entire share of Partnership distributions of cash flow, and
shall be allocated WAI's shares of profit and loss, from and after April 1,
1997. 11
5.5 Additional Agreements.
(a) Subject to the terms and conditions herein provided, each of the
parties hereto agrees to use all reasonable efforts to take or cause to be
taken, all actions and to do or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement, including
using all reasonable efforts to obtain all necessary waivers, consents and
approvals, to effect all necessary registrations and filings and to lift any
injunction or other legal bar to the Merger (and, in such case, to proceed
with the Merger as expeditiously as possible), subject, however, to the
appropriate vote of the shareholders of WAI.
(b) In case at any time after the Effective Date any further action is
necessary or desirable to carry out the purposes of this Agreement, the
proper officers and/or directors of OSI and Outback and Xxxxx shall take all
such necessary action.
(c) Neither Outback, OSI, WAI nor Xxxxx shall take any action which
would jeopardize the characterization of the Merger as a reorganization
within the meaning of Section 368(a) of the Code or the treatment of the
Merger for financial reporting purposes as a pooling of interests.
ARTICLE 6
COVENANTS OF WAI AND XXXXX
XXX and Xxxxx covenant and agree with OSI as follows:
6.1 Securities Law Compliance; Restrictions on Shares. Xxxxx
represents and warrants, and covenants to Outback and OSI that:
(a) Xxxxx has received all schedules and exhibits and the documents
furnished to WAI pursuant to Section 4.8;
(b) Xxxxx has had the opportunity to ask questions of and receive
answers from representatives of the management of OSI concerning the terms
and conditions of the transactions contemplated hereby and to obtain all
additional information that OSI possesses or could acquire without
unreasonable expense that is necessary to verify the accuracy of information
furnished to Xxxxx.
(c) OSI and Outback have furnished him with all information requested
and full access to materials concerning OSI and Outback which the Xxxxx
and/or his advisors deemed necessary to properly evaluate the Merger. Such
information and access have been made available and utilized to the extent
Xxxxx considers necessary and advisable in making an informed investment
decision, and Xxxxx has consulted his own tax advisor and understands the
evaluation of such materials may require the assistance of experts and Xxxxx
has utilized such experts to the extent deemed necessary.
(d) Xxxxx understands that the OSI Common Stock to be received is an
investment of a speculative nature and Xxxxx must bear the risks thereof for
an indefinite period of time. Xxxxx has adequate means for providing for his
needs, is able to bear the economic risk of the investment and has no need
for liquidity in the OSI Common Stock to be received in the Merger.
(e) Xxxxx and/or his representatives or advisors who have acted with
or on behalf of Xxxxx and who have advised Xxxxx in this matter have such
knowledge and experience in financial and business matters that Xxxxx is
capable of evaluating the merits and risks of the Merger for OSI Common
Stock. 12
(f) Xxxxx is participating in the Merger solely for his account as a
private investment, and Xxxxx has no present agreement, understanding,
arrangement or intention to sell or transfer all or any portion of the shares
of OSI Common Stock to be issued in the Merger to any other person or
persons. Xxxxx does not presently intend to enter into any such agreement or
undertaking and there are no present circumstances which will compel Xxxxx to
sell any OSI Common Stock so received. Xxxxx will not sell or otherwise
transfer the shares (except for de minimis gifts of shares) unless they are
registered under the Securities Act and applicable state securities laws or,
in the opinion of OSI and its counsel, an exemption from registration is
available therefor.
(g) The investment by Xxxxx in OSI Common Stock pursuant to the Merger
is a suitable investment for Xxxxx given the investment goals and objectives
of Xxxxx.
(h) Xxxxx agrees to indemnify and hold OSI and Outback and each of
their respective officers, directors and advisors harmless against all
liability arising out of or in connection with any purchase, resale or
distribution by Xxxxx of any OSI Common Stock received hereby which is
effected other than in strict compliance with the terms hereof and applicable
law.
(i) Xxxxx understands that the shares of OSI Common Stock to be issued
in the Merger will not be registered under the Securities Act, nor any state
securities laws, and such OSI Common Stock may not be sold or transferred
except in compliance with such laws. Xxxxx understands that the shares of
OSI Common Stock issued to Xxxxx in the Merger will be subject to the limited
registration rights described herein and Xxxxx agrees to the terms hereof.
Such rights shall be personal to Xxxxx (except as provided in Section 7.5)
and shall automatically terminate with respect to any shares of OSI Common
Stock which Xxxxx assigns or transfers, upon attachment or seizure by or for
the benefit of any creditors of Xxxxx, or upon the occurrence of any other
event which results in a succession to the ownership of any such OSI Common
Stock by operation of law. Neither OSI nor Outback will have any obligation
to register any such OSI Common Stock other than as provided in Article VII
hereof.
(j) Xxxxx understands that OSI will place an appropriate legend on the
certificate representing OSI Common Stock to be received restricting the
transfer of the shares and stop-transfer instructions will be given to the
transfer agent for the OSI Common Stock with respect to such certificates.
(k) Xxxxx is a natural person (i) whose net worth (the excess of total
assets over total liabilities), individually or jointly with his spouse,
exceeds $1,000,000 (inclusive of the value of home, home furnishings and
automobiles); or (ii) who had an Individual Annual Adjusted Gross Income in
excess of $200,000 in each of the two most recent tax years or joint income
with Xxxxx'x spouse in excess of $300,000 in each of those years and
reasonably expects to reach the same income level in the current tax year.
6.2 Payment of Liabilities. WAI and Xxxxx covenant and agree that all
debts and liabilities of WAI relating to periods prior to the Closing Date
shall be paid or satisfied in full prior to the Effective Date, except only
current liabilities and those debts and liabilities of WAI specified in Item
11.2 of the Disclosure Schedules.
6.3 Pooling. Xxxxx agrees that until such time as financial results of
OSI covering at least thirty (30) days of combined operations of OSI and WAI
subsequent to the Effective Date have been published, he will not sell or
otherwise dispose of any shares of OSI Common Stock held by him as of the
Effective Date or any of such shares thereafter acquired by him at any time
or from time to time prior to the date of such publication. OSI shall give
instructions to its transfer agent and registrar, Bank of New York, Inc.,
with respect to the shares of OSI Common Stock issued pursuant to the Merger,
to the effect 13
that no transfer of such shares shall be effected until the
date on which the requisite financial results have been published and OSI and
the transfer agent may take any action, including placing an appropriate
legend on the certificates, they deem necessary to enforce this provision.
ARTICLE 7
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and agree with WAI and
Xxxxx as follows:
7.1 Mandatory Registration of OSI Common Stock.
(a) Xxxxx shall have the right to require OSI, by written notice to OSI
at any time during: (i) the ten day period commencing on publication of
financial results of OSI which include at least thirty (30) days of combined
operations of OSI and WAI subsequent to the Merger; or (ii) the ten day
period commencing upon public release of OSI's net income for calendar year
1997; or (iii) the ten day period commending upon public release of OSI's net
income for the first quarter of 1998, to use its best efforts to cause a
registration, qualification or compliance under any federal or state
securities laws to be effected as soon as practical, but not later than
thirty (30) days after receipt of Xxxxx'x written notice, with respect to all
or any portion of the OSI Common Stock then held by Xxxxx and specified in
such notice (hereinafter, collectively the "Registrable Shares") and OSI will
use its best reasonable efforts to cause such registration, qualification or
compliance as may be so requested to be effective and to be kept effective
for a period (not to exceed forty-five (45) days) as would permit or
facilitate, to the extent so requested, the sale and distribution of the
Registrable Shares, including, without limitation, registration under the
Securities Act of 1933, as then in effect or under any similar statute then
in effect (the "Act"), and appropriate related qualification under applicable
state securities laws and appropriate compliance with any other governmental
requirements; provided, however, that the maximum number of Registrable
Shares under this Section 7.1(a) shall be a number of shares equal to
twenty-five percent (25%) of the total number of shares of OSI Common Stock
issued pursuant to the Merger, but reduced by the number of shares of such
OSI Common Stock sold or transferred other than pursuant to the provisions of
this Section 7.1. Once OSI shall have fully complied with one registration
request Xxxxx shall not have any right to request any additional registrations.
(b) Notwithstanding the foregoing, OSI shall not be required to effect
any registration, qualification or compliance under this Section 7.1 if and
to the extent, in the opinion of counsel for OSI (which opinion shall also be
addressed to Xxxxx requesting registration of Registrable Shares), the
proposed public offering or transfer of the number of Registered Shares, as
to which registration is requested, is exempt from registration under the Act
and the securities laws of the states in which the Registrable Shares are to
be sold or transferred and the Registrable Shares would not constitute
restricted securities in the hands of the purchaser or transferee.
(c) OSI shall be entitled to postpone the filing or effectiveness of
any registration statement otherwise required to be prepared and filed by OSI
pursuant to this Section 7.1, for a reasonable period of time, but not in
excess of ninety (90) days (a "Blackout Period"), if the chief executive
officer or chief financial officer of OSI determines that in such executive
officer's reasonable judgment and good faith that the registration and
distribution of the Registrable Shares would materially interfere with any
pending financing, acquisition, or corporate reorganization or other
corporate development involving OSI or any of its subsidiaries or would
require premature disclosure thereof and promptly gives Xxxxx written notice
of such determination containing a general statement of the reasons for such
postponement and an 14
approximation of the anticipated delay; provided, however, that the aggregate
number of days included in all Blackout Periods during any consecutive twelve
(12) months during the shall not exceed one hundred eight (180) days; and
provided, further, however, that a period of at least forty-five (45) days
shall elapse between the termination of any Blackout Period and the
commencement of the immediately succeeding Blackout Period. If OSI shall so
postpone the filing of a registration statement Xxxxx shall have the right to
withdraw the request for registration by giving written notice to OSI within
twenty (20) days after receipt of the notice of postponement (and, in the event
of such withdrawal, such request shall not be counted for purposes of
determining the number of, or required timing for, requests for registration to
which the holders of the Registrable Shares are entitled pursuant to
Section 7.1.
(d) Notwithstanding the foregoing, OSI shall not be required by this
Section 7.1 to register Registrable Shares under the Securities Act or under
any state securities law at any time after the date one year following the
Effective Date (or such other date as coincides with the expiration of the
general holding period requirement under Rule 144, should the general holding
period requirement of Rule 144 or any successor rule be modified), if OSI is
then and has been throughout such period, current in all filings required to
comply with the current public information requirement of Rule 144. OSI will
cooperate with Xxxxx in delivering opinions necessary to effect transfers
under Rule 144.
7.2 Registration Procedures. In the case of each registration,
qualification or compliance effected by OSI pursuant to Section 7.1, OSI
will:
(a) keep each holder of Registrable Shares advised in writing at the
initiation of proceedings of each registration, qualification or compliance
and as to the completion thereof,
(b) furnish each holder of Registrable Shares with such number of
prospectuses and such other documents as may be reasonably requested, and
(c) keep such registration, qualification or compliance effective until
all sales or distributions contemplated in connection therewith are
completed; provided that OSI shall not be obligated to keep such
registration, qualification or compliance effective for more than forty-five
(45) days.
7.3 Expenses of Registration. All expenses incurred in connection with
any registration, qualification or compliance effected by OSI pursuant to
this Article 7, including, without limitation, all registration and filing
fees, fees and expenses of complying with securities and blue sky laws,
printing expenses, fees and disbursements of counsel for OSI and all expenses
of any special audits incidental to or required by such registration
(collectively, the "Registration Expenses") shall be borne by OSI.
7.4 Adjustments in Number of Shares. If the outstanding shares of OSI
Common Stock shall have been changed into a different number of shares or a
different class by reason of any reclassification, recapitalization, split-
up, combination, exchange of shares or readjustment, or a stock dividend
thereon shall be declared, with a record date subsequent to the Effective
Date and prior to the sale of all Registrable Shares, the number of
Registrable Shares shall be adjusted to accurately reflect such change.
7.5 Transferees. The rights of Xxxxx under Section 7.1 are personal
to Xxxxx and shall not inure to the benefit of any other person nor any
transferees or assignees of Xxxxx'x OSI Common Stock; provided, however, such
rights shall inure to the benefit of donees of bona fide gifts who are
members of the donor's immediate family.
7.6 Employment Agreements. Solely with respect to the Merger, and any
consequential termination of any partnership by operation of law, Outback
agrees not to elect to terminate the
15
Employment Agreements between the
Partnership, as employer, and the general managers of the Partnership's
Outback Steakhouse(R) restaurants, as employees. Outback shall succeed to all
rights and obligations of the Partnership under such Employment Agreements.
Nothing contained herein shall be construed as in any way limiting Outback's
right to terminate any such Employment Agreement as a result of any
circumstance or event other than the Merger and consequential termination of
the Partnership by operation of law.
7.7 Assumed Liabilities. OSI and Outback agree to assume and pay the
liabilities specified in Item 11.2 (subject to the amount limits specified in
Item 11.2 of the Disclosure Schedules) and to indemnify and hold harmless
Xxxxx from any loss or liability therefor.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of WAI, Wibel, OSI and
Outback to consummate the transactions contemplated by this Agreement shall
be subject to the satisfaction, on or before the Closing Date, of each of the
following conditions:
8.1 Consents to Transaction. WAI, Outback and OSI shall have received
all consents or approvals and made all applications, requests, notices and
filings with, any person, governmental authority or governmental agency
required to be obtained or made in connection with the consummation of the
transactions contemplated by this Agreement. There shall have been obtained
from all state and local governments and governmental agencies all approvals
and consents necessary to enable WAI and/or the Partnership, as applicable,
to transfer their liquor licenses and permits to Outback, to enable Outback
to assume such licenses and permits or to enable Outback to operate
restaurants (of the kind and quality customarily operated by Outback) using
such permits or licenses. Copies of all consents and approvals received by
any party pursuant to this Section 8.1 shall be furnished to the other party.
8.2 Absence of Litigation. No governmental agency or authority shall
have instituted or threatened in writing to institute, any action or
proceeding seeking to delay, restrain, enjoin or prohibit the consummation of
the transactions contemplated by this Agreement and no order, judgment or
decree by any court or governmental agency or authority shall be in effect
that enjoins, restrains or prohibits the same or otherwise would materially
interfere with the operation of the assets and business of WAI or the
Partnership or OSI and its subsidiaries, including the surviving corporation
in the Merger, after the Closing Date.
8.3 Dissenter's Rights. The number of shares of capital stock of WAI
for which shareholders have exercised appraisal or dissenters' rights under
applicable law shall be a number which, in the sole and absolute discretion
of OSI, does not jeopardize the financial reporting and accounting treatment
of the Merger specified in Section 1.12 or is otherwise not contrary to the
best interests of Outback or OSI.
16
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF WAI
The obligations of WAI and Xxxxx to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction on or
before the Closing Date of each of the following conditions:
9.1 Compliance. OSI and Outback shall have, or shall have caused to
be, satisfied or complied with and performed in all material respects all
terms, covenants and conditions of this Agreement to be complied with or
performed by OSI and Outback on or before the Closing Date.
9.2 Representations and Warranties. All of the representations and
warranties made by OSI and Outback in this Agreement, and in all certificates
and other documents delivered by OSI and Outback to WAI and Xxxxx pursuant
hereto or in connection with the transactions contemplated hereby, shall have
been true and correct in all material respects as of the date hereof and
shall be true and correct in all material respects at the Closing Date with
the same force and effect as if such representations and warranties had been
made at and as of the Closing Date, except for changes permitted or
contemplated by this Agreement.
9.3 Material Adverse Changes. Since the date hereof, there shall have
occurred no material adverse change in the business, properties, assets,
liabilities, results of operations or condition, financial or otherwise, of
OSI and Outback, taken as a whole.
ARTICLE 10
CONDITIONS PRECEDENT TO OBLIGATIONS
OF OSI AND OUTBACK
Except as may be waived by OSI and Outback, the obligations of OSI and
Outback to consummate the transactions contemplated by this Agreement shall
be subject to the satisfaction, on or before the Closing Date, of each of the
following conditions:
10.1 Compliance. WAI and Xxxxx shall have or shall have caused to be
satisfied or complied with and performed in all material respects all terms,
covenants and conditions of this Agreement to be complied with or performed
by any of them on or before the Closing Date.
10.2 Representations and Warranties. All of the representations and
warranties made by WAI and/or Xxxxx in this Agreement, the Disclosure
Schedule, and in all certificates and other documents delivered by WAI or
Xxxxx pursuant hereto or in connection with the transactions contemplated
hereby, shall have been true and correct in all material respects as of the
date hereof and shall be true and correct in all material respects at the
Closing Date with the same force and effect as if such representations and
warranties had been made at and as of the Closing Date, except for changes
permitted or contemplated by this Agreement.
10.3 Current Financial Status. OSI shall have received the unaudited
financial statements of WAI as of April 30, 1996, for the month then ended.
10.4 Material Adverse Changes. Since December 31, 1996, there shall
have occurred no material adverse change in the business, properties, assets,
liabilities, results of operations or condition, financial or otherwise, of
WAI or the Partnership.
17
10.5 Pooling. OSI shall have received a letter from Deloitte & Touche,
in form and substance satisfactory to OSI and dated not more than five days
prior to the Closing Date, to the effect that the Merger shall qualify as a
pooling of interests for financial reporting purposes.
ARTICLE 11
INDEMNIFICATION
Xxxxx, on the one hand, and OSI and Outback, jointly and severally, on
the other hand, agree as follows:
11.1 Securities Laws Indemnification. With respect to a registration
pursuant to Section 7.1:
(a) OSI shall indemnify, to the extent permitted by law, Xxxxx against
all losses, claims, damages or liabilities which arise out of or are based
upon any untrue or alleged untrue statement of material fact contained in any
registration statement (including any post-effective amendment thereto),
prospectus or preliminary prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as the same are
caused by or contained in any written information furnished to OSI by Xxxxx
for use therein or by the failure of Xxxxx to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after OSI has furnished Xxxxx with a sufficient number of copies of the same.
(b) Notwithstanding any contrary provision of this Agreement as a
condition to receiving the registration rights provided for in Section 7.1
hereof, each holder of Registrable Shares, severally, not jointly, shall
indemnify in writing, to the extent permitted by law, OSI, its directors and
officers and each person who controls OSI (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act) against any losses,
claims, damages, liabilities and expenses which arise out of or are based
upon any untrue or alleged omission of a material fact required to be stated
in the registration statement or prospectus or any amendment thereof or
supplement thereto or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
contained in any written information furnished by such holder of Registrable
Shares for inclusion in the registration statement except that the holders of
Registrable Shares shall not be required to so indemnify Outback or OSI if
such shareholder shall have furnished to Outback or OSI not less than five
(5) business days prior to the registration statement becoming effective,
written information correcting such material misstatement or omission and
Outback or OSI shall have failed to include such information in an amendment
or supplement to the prospectus.
11.2 Indemnification Based on Agreement. Subject to the limitations
contained in Section 11.3 hereof, Xxxxx shall indemnify and hold harmless
OSI, Outback and WAI, and OSI, Outback and WAI, jointly and severally, shall
indemnify and hold harmless Xxxxx, against any losses, claims, damages or
liabilities to which such indemnified party may become subject, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any facts or circumstances that would
constitute a breach by the other of any representation, warranty or covenant
contained herein or in any agreement executed pursuant hereto and will
reimburse any legal or other expenses reasonably incurred by any indemnified
party in connection with investigating or defending any such loss, claim,
damage, liability or action.
In addition to the above, Xxxxx shall indemnify OSI, Outback and WAI, as
provided in the first paragraph of this Section 11.2, against any loss,
claim, damage or liability arising out of (i) any tax
18
liability of WAI for any period prior to and including April 1, 1997 and
(ii) any debt of WAI (other than the debts specified in Item 11.2 of the
Disclosure Schedule to the extent assumed by Outback), and (iii) all claims,
obligations, causes of action and liabilities, of whatever kind or character,
of any of WAI which arise out of or are based upon events first occurring on
or before the Effective Date, except only the liabilities assumed by Outback
as specified in Item 11.2 of the Disclosure Schedule.
11.3 Limitation. Xxxxx shall have no obligation under Section 11.2 to
indemnify OSI, Outback or WAI for any liability, loss, claim or damage
arising out of or based upon facts or actions first occurring after the
Effective Date. All obligations of indemnity (other than those relating to
tax obligations of WAI under Section 11.2 above which shall continue for the
period specified in Section 12.4(b) hereof) shall terminate two (2) years
from the Closing Date; provided, however, the obligations of indemnity shall
not terminate with respect to any matter for which indemnification is claimed
within two (2) years from the Closing Date.
11.4 Cooperation. If any claim, demand, action, suit, proceeding or
investigation arising out of or pertaining to this Agreement or the
transactions contemplated hereby is begun or asserted, whether begun or
asserted before or after the Closing Date, the parties hereto will cooperate
and use their best efforts to defend against and respond thereto.
11.5 Notice. An indemnified party shall give notice to the indemnifying
party or parties within ten (10) business days after actual receipt of
service or summons to appear in any action begun in respect of which
indemnity may be sought hereunder. Failure to so notify the indemnifying
party or parties shall cause the indemnified party to be liable for any
damage caused by failure to give timely notice. The indemnifying party or
parties may participate at their own expense and with their counsel in the
defense of such action. If the indemnifying party or parties so elect within
a reasonable time after receipt of such notice, they may assume the defense
of such action with counsel chosen by the indemnifying party or parties and
approved by the indemnified party in such action, unless the indemnified
party reasonably objects to such assumption on the ground that its counsel
has advised it that there may be legal defenses available to it that are
different from or in addition to those available to the indemnifying party or
parties, in which case the indemnified party shall have the right to employ
counsel approved by the indemnifying party or parties. If the indemnifying
party or parties assume the defense of such action, the indemnifying party or
parties shall not be liable for fees and expenses of counsel for the
indemnified party incurred thereafter in connection with such action. In no
event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel for the indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances
unless, in the reasonable opinion of such counsel, there is, under applicable
standards of professional conduct, a conflict on any significant issue
between the positions of any two or more indemnified parties.
ARTICLE 12
MISCELLANEOUS
12.1 Termination. This Agreement and the transactions contemplated
hereby may be terminated at any time on or before the Closing Date
(notwithstanding approval by the shareholders of WAI:
(a) by mutual consent of WAI and OSI;
19
(b) by OSI if there has been a material misrepresentation or breach of
warranty in the representations and warranties of WAI or Xxxxx set forth
herein or if there has been any material failure on the part of WAI or Xxxxx
to comply with their obligations hereunder;
(c) by WAI if there has been a material misrepresentation or breach of
warranty in the representations and warranties of OSI or Outback set forth
herein or if there has been any material failure on the part of OSI or
Outback to comply with its obligations hereunder;
(d) by either OSI, WAI or Xxxxx, if the transactions contemplated by
this Agreement have not been consummated by July 31, 1997, unless such
failure of consummation is due to the failure of the terminating party to
perform or observe the covenants, agreements and conditions hereof to be
performed or observed by it at or before the Closing Date;
(e) by either OSI, or WAI if the conditions precedent to its
obligations to close this Agreement have not been satisfied or waived by it
at or before the Closing Date; and
(f) by either WAI or OSI if the transactions contemplated hereby
violate any nonappealable final order, decree or judgment of any court or
governmental body or agency having competent jurisdiction.
12.2 Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
12.3 Entire Agreement. This Agreement and the exhibits and Disclosure
Schedule hereto constitute and contain the complete agreement among the
parties with respect to the transactions contemplated hereby and supersede
all prior agreements and understandings among the parties with respect to
such transactions. The parties hereto have not made any representation or
warranty except as expressly set forth in this Agreement, the Merger
Agreement or in any certificate or schedule delivered pursuant hereto. The
obligations of any party under any agreement executed pursuant to this
Agreement shall not be affected by this Section 12.3.
12.4 Survival of Representations and Warranties.
(a) The representations, warranties and indemnification obligations of
OSI and Outback contained herein or in any exhibit, certificate, document or
instrument delivered pursuant to this Agreement shall survive the Closing for
a period of two years; provided, however, that the obligations of OSI and
Outback under Article 7 and Article 11 hereof shall survive for the periods
provided therein.
(b) Except where otherwise specifically provided in this Agreement, the
representations, warranties and indemnification obligations of Xxxxx
contained herein or in any exhibit, schedule, certificate, document or
instrument delivered pursuant to this Agreement shall survive the Closing for
a period of three years from the Effective Date; provided, however, the
representations and warranties contained in Section 2.7 shall survive the
Closing for a period ending four years after the filing of WAI's federal
income tax return for the period including the Effective Date.
12.5 Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which when so executed and delivered shall be
deemed an original and such counterparts together shall constitute only one
original. 20
12.6 Notices. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by any party to any
other party pursuant to this Agreement shall be in writing and shall be
mailed by registered or certified mail, return receipt requested, postage
prepaid or transmitted by hand delivery, recognized national overnight
delivery service, telegram or telex, addressed as follows:
If to WAI or Xxxxx: XXXXX & ASSOCIATES, INC.
0000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
If to OSI or Outback: OUTBACK STEAKHOUSE, INC.
000 Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx General Counsel
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request or communication that is mailed,
delivered or transmitted in the manner described above shall be deemed
sufficiently given, served, sent and received for all purposes at such time
as it is delivered to the addressee (with the return receipt, the delivery
receipt, the affidavit of messenger or (with respect to a telex) the answer
back being deemed conclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
12.7 Successors and Assigns. This Agreement and the rights, interests
and obligations hereunder shall be binding upon and shall inure to the
benefit of the parties hereto and, except as otherwise specifically provided
for herein, their respective successors and assigns.
12.8 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida without giving effect to
principles of comity or conflicts of law thereof.
12.9 Waiver and Other Action. This Agreement may be amended, modified
or supplemented only by a written instrument executed by the parties against
which enforcement of the amendment, modification or supplement is sought.
12.10 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable
and this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision were never a part hereof; the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance; and in lieu of such illegal, invalid or unenforceable provision,
there shall be added automatically as part of this Agreement, a provision as
similar in its terms to such illegal, invalid or unenforceable provision as
may be possible and be legal, valid and enforceable.
12.11 Headings. All headings and captions in this Agreement are
intended solely for the convenience of the parties and none shall be deemed
to affect the meaning or construction of any provision hereof.
12.12 Construction. All references herein to the masculine, neuter or
singular shall be construed to include the masculine, feminine, neuter or
plural, where applicable.
21
12.13 Jurisdiction and Venue. The parties agree that any action
brought by either party against the other in any court, whether federal or
state, shall be brought within the State of Florida in the judicial circuit
in which OSI has its principal place of business. Each party hereby agrees
to submit to the personal jurisdiction of such courts and hereby waives all
questions of personal jurisdiction or venue for the purpose of carrying out
this provision, including, without limitation, the claim or defense therein
that such courts constitute an inconvenient forum.
12.14 Enforcement. In the event it is necessary for any party to
retain legal counsel or institute legal proceedings to enforce the terms of
this Agreement, including, without limitation, obligations upon expiration or
termination, the prevailing party shall be entitled to receive from the non-
prevailing party, in addition to all other remedies, all costs of such
enforcement including, without limitation, attorney's fees and court costs
and including appellate proceedings.
12.15 Further Assurances. Each party covenants and agrees to execute
and deliver, prior to or after the Merger, such further documents as may
reasonably be requested by another party to fully effectuate the transactions
provided for herein.
12.16 Equitable Remedies. The parties hereto acknowledge that a
refusal by a party to consummate the transactions contemplated hereby will
cause irreparable harm to the other parties, for which there may be no
adequate remedy at law. A party not in default at the time of such refusal
shall be entitled, in addition to other remedies at law or in equity, to
specific performance of this Agreement by the party that refused to
consummate the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"OSI"
Attest: OUTBACK STEAKHOUSE, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXX XXXXXX X. XXXXXX
Title: Secretary Title: Chief Operating Officer
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC., a
Florida corporation
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
XXXXXX X. XXXXX XXXX X. XXXXX
Title: Secretary Title: President
22
Witness: "Xxxxx"
/s/ Xxxxx X. XxXxxxxxxx /s/ Xxxx X. Xxxxx
XXXX X. XXXXX
/s/ Xxxxx Xxxxx Xxxxx
"WAI"
Attest: XXXXX & ASSOCIATES, INC.
a Michigan corporation
By: By: /s/ Xxxx X. Xxxxx
XXXX X. XXXXX
Title: Secretary Title: President
23
EXHIBIT A
ARTICLES OF MERGER
THIS AGREEMENT, PLAN AND ARTICLES OF MERGER ("Articles of Merger"),
dated as of August ___, 1997, is entered into by and among XXXXX &
ASSOCIATES, INC., a Michigan corporation ("WAI"); OUTBACK STEAKHOUSE, INC.,
a Delaware corporation ("OSI"); and OUTBACK STEAKHOUSE OF FLORIDA, INC., a
Florida corporation ("Outback").
W I T N E S E T H:
WHEREAS, WAI is a corporation duly organized and validly existing under
the laws of the State of Michigan, and the authorized and outstanding capital
stock of WAI is as follows:
Authorized Shares Issued
Corporation Capital Stock and Outstanding
XXXXX & ASSOCIATES, 60,000 Common Shares 10,000 Common Shares
INC.
WHEREAS, OSI is a corporation duly organized and validly existing under
the laws of the State of Delaware; and
WHEREAS, OSI is authorized to issue 2,000,000 shares of Preferred Stock,
par value $.01, none of which are outstanding and 200,000,000 shares of
Common Stock, $.01 par value (the "OSI Common Stock"), of which approximately
48,030,588 shares of OSI Common Stock are issued and outstanding as of March
7, 1997; and
WHEREAS, Outback is a wholly owned subsidiary of OSI; and
WHEREAS, the respective Boards of Directors of each of WAI, Outback, and
OSI deem it advisable, for the benefit of their respective corporations and
shareholders, that WAI be merged into Outback, with Outback as the surviving
corporation (in its capacity as surviving corporation, Outback is hereinafter
sometimes referred to as the "Surviving Corporation"), pursuant to the
provisions of Sections 607.1101-607.1107 of the Florida Business Corporation
Act (the "Florida Act") and the laws of the State of Michigan ("Michigan
Law"), and have approved these Articles of Merger; and
WHEREAS, the Board of Directors of WAI has directed that these Articles
of Merger be submitted to its voting shareholder for approval and adoption
and the voting shareholder of WAI has approved and adopted these Articles of
Merger in accordance with Michigan Law and the corporate governance documents
of WAI by unanimous written consent dated May 6, 1996; and
WHEREAS, OSI as the sole shareholder of Outback has approved and adopted
these Articles of Merger by written consent on April 30, 1996; and
WHEREAS, the Agreement and Plan of Reorganization (the "Reorganization
Agreement"), which Outback, OSI, and WAI have entered, contemplates the
execution and delivery of these Articles of Merger.
A-1
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein and for the purpose of prescribing the terms and
conditions of the merger and such other details and provisions as are deemed
necessary or desirable, the parties hereto agree as follows:
Merger. The names of the corporations which propose to merge are
XXXXX & ASSOCIATES, INC., a Michigan corporation ("WAI"), and OUTBACK
STEAKHOUSE OF FLORIDA, INC. ("Outback"). In accordance with the provisions
of the Florida Act and Michigan Law at the Effective Date (as hereinafter
defined), WAI shall be merged into Outback, and Outback shall be the
Surviving Corporation and as such shall continue to be governed by the laws
of the State of Florida. The plan of merger set forth in these Articles of
Merger was duly authorized by each of Outback and WAI, respectively, by all
action required by the laws under which it was incorporated or organized and
by its constituent documents.
1. Continuation of Corporate Existence. The corporate existence and
identity of Outback, with all its purposes, powers, franchises, privileges,
rights and immunities, shall continue unaffected and unimpaired by the merger
and the corporate existence and identity of WAI with all its purposes,
powers, franchises, privileges, rights and immunities at the Effective Date
shall be merged with and into that of Outback, and Outback as the Surviving
Corporation shall be vested fully therewith, and the separate corporate
existence and identity of WAI shall thereafter cease except to the extent
continued by statute.
2. Effective Date. The merger shall become effective (hereinbefore
and hereinafter called the "Effective Date") upon the later of (i) filing of
these Articles of Merger with the Secretary of State of the State of Florida
and the Secretary of State of the State of Michigan; or (ii) July 1, 1997.
Such Effective Date shall be indicated on Certificates of Merger issued by
the Secretary of State of the State of Florida and by the Secretary of State
of the State of Michigan pursuant to the Florida Act and Michigan Law.
3. Corporate Government.
(a) The Certificate of Incorporation of Outback, as in effect on
the Effective Date, shall continue in full force and effect and shall be
the Certificate of Incorporation of the Surviving Corporation.
(b) The Bylaws of Outback, as in effect as of the Effective Date,
shall continue in full force and effect and shall be the Bylaws of the
Surviving Corporation.
(c) The members of the Board of Directors and the officers of the
Surviving Corporation shall be the persons holding such positions for
Outback as of the Effective Date.
4. Conversion of Shares. The manner and basis of converting the
capital stock of WAI into OSI Common Stock, subject to Section 5(c) below
with respect to fractional shares, shall be as follows:
(a) Each share of WAI common stock which shall be outstanding
immediately prior to the Effective Date shall at the Effective Date, by
virtue of the merger and without any action on the part of the holder
thereof, be converted into and exchanged for 16.6 shares of OSI Common
Stock.
(b) The Outback Capital Stock outstanding immediately prior to the
Effective Date shall be unaffected by the merger.
A-2
(c) The stock transfer books of WAI shall be closed as of the
close of business on the Effective Date and no transfer of record of any
of its capital stock shall take place thereafter.
(d) No fractional shares of OSI Common Stock and no certificates
or scrip therefor shall be issued. Instead one whole share of
OSI Common Stock shall be issued to each holder of shares of common
stock of the merging corporations whose fractional share interest is .5
or more of one whole share; each fraction of less than .5 of one whole
share shall be disregarded.
(e) Notwithstanding the foregoing, the OSI shall not be required
to issue or distribute more than 166,000 shares of OSI Common Stock
pursuant to the merger, less any shares reserved for dissenters' rights,
as described in Article 1 of the Reorganization Agreement.
(f) All of the shares of OSI Common Stock, when delivered pursuant
to the provisions of these Articles of Merger, shall be validly issued,
fully paid and nonassessable.
(g) At the Effective Date, each holder of certificates
representing shares of the common stock of WAI shall thereupon cease to
have any rights with respect to such shares and shall be deemed to be a
shareholder of OSI to the extent of the number of shares of OSI Common
Stock to which such shareholder shall be entitled in accordance with
these Articles of Merger; and shall surrender certificates representing
shares of the common stock of WAI to the OSI, whereupon such holder
shall receive a certificate or certificates for the number of shares of
OSI Common Stock to which such holder is entitled hereunder.
5. Rights and Liabilities of the Surviving Corporation. The Surviving
Corporation shall have the following rights and obligations:
(a) The Surviving Corporation shall have all the rights,
privileges, immunities and powers and shall be subject to all the duties
and liabilities of a corporation organized under the laws of the State
of Florida.
(b) The Surviving Corporation shall possess all of the rights,
privileges, immunities and franchises, of either a public or private
nature, of Outback, and WAI and all property, real, personal and mixed
and all debts due on whatever account, including subscription to shares
and all other chooses in action and every other interest of or belonging
or due to WAI shall be taken and deemed to be transferred or invested in
the Surviving Corporation without further act or deed.
(c) At the Effective Date, the Surviving Corporation shall
thenceforth be responsible and liable for all liabilities and
obligations of WAI and any claim existing or action or proceeding
pending by or against WAI or Outback may be prosecuted as if the merger
had not occurred or the Surviving Corporation may be substituted in its
place. Neither the rights of creditors nor any liens upon the property
of WAI or Outback shall be impaired by the merger.
6. Consent of Shareholders. These Articles of Merger has been adopted
by the shareholders of WAI in accordance with Michigan Law and its corporate
governance documents by unanimous written consent effective as of July 8,
1997. These Articles of Merger has been adopted by the written consent of the
sole shareholder of Outback dated July 23, 1997, pusruant to the Florida Act.
7. Dissenting Shareholders. If any shareholder of WAI files a written
objection to these Articles of Merger before a vote of the shareholders is
taken hereon and complies with the further provisions of the Florida Act or
Michigan Law, as applicable, he may be paid the fair value of his shares.
A-3
If any shareholder of WAI lawfully elects, pursuant to the Florida Act or
Michigan Law, as applicable, to exercise or pursue his right to dissent from
any of the corporate actions referred to in these Articles of Merger with
respect to the shares of common stock of WAI owned by such shareholder (the
"Dissenting Shares"), such shareholder shall be entitled to exercise only
those rights available to him as set forth in the Florida Act or Michigan
Law, as applicable, and, in that event, only in the manner set forth therein.
During the period in which any such shareholder shall be exercising or
pursuing any of such shareholder's rights of dissent as specified in the
Florida Act or Michigan Law, as applicable, such shareholder shall have no
other rights pursuant to or arising from these Articles of Merger.
8. Reorganization Agreement. These Articles of Merger is intended to
supplement the Reorganization Agreement and is not intended to conflict with
or supersede that agreement and, in the event of any conflict, the provisions
of the Reorganization Agreement shall control.
9. Copies. A copy of these Articles of Merger shall be on file at the
principal place of business of the Surviving Corporation located at 000 Xxxxx
Xxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000. A copy of these Articles of
Merger will be furnished by the Surviving Corporation, on request and without
cost, to any shareholder of any corporation that is a party hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement, Plan
and Articles of Merger as of the day and year first above written.
"OSI"
Attest: OUTBACK STEAKHOUSE, INC.
a Delaware corporation
By: By:
XXXXXX X. XXXXX XXXXXX X. XXXXXX
Title: Secretary Title: Chief Operating Officer
STATE OF FLORIDA )
) ss
COUNTY OF HILLSBOROUGH )
On this ______ day of August, 1997, before me, personally came XXXXXX X.
XXXXXX and XXXXXX X. XXXXX, Chief Operating Officer and Secretary,
respectively, of OUTBACK STEAKHOUSE, INC., a Delaware corporation, who are
personally known to me, and each being first duly sworn, did depose and say
that they executed the foregoing on behalf of said corporation by order of
the Board of Directors of said corporation.
(NOTARY SEAL)
(Notary Signature)
NOTARY PUBLIC
Commission No.
A-4
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC., a
Florida corporation
By: By:
XXXXXX X. XXXXX XXXX X. XXXXX
Title: Secretary Title: President
STATE OF FLORIDA )
) ss
COUNTY OF HILLSBOROUGH )
On this ______ day of August, 1997, before me, personally came XXXX X.
XXXXX and XXXXXX X. XXXXX, President and Secretary, respectively, of OUTBACK
STEAKHOUSE OF FLORIDA, INC., a Florida corporation, who are personally known
to me, and each being first duly sworn, did depose and say that they executed
the foregoing on behalf of said corporation by order of the Board of
Directors of said corporation.
(NOTARY SEAL)
(Notary Signature)
NOTARY PUBLIC
Commission No.
"WAI"
Attest: XXXXX & ASSOCIATES, INC.
a Michigan corporation
By: By:
XXXX X. XXXXX
Title: Secretary Title: President
STATE OF MICHIGAN )
) ss
COUNTY OF XXXXX )
On this ______ day of August, 1997, before me, personally came XXXX X.
XXXXX and ___________________________, President and Secretary, respectively,
of XXXXX & ASSOCIATES, INC., a Michigan corporation, who are personally known
to me, and each being first duly sworn, did depose and say that they executed
the foregoing on behalf of said corporation by order of the Board of
Directors of said corporation.
(NOTARY SEAL)
(Notary Signature)
NOTARY PUBLIC
Commission No.
A-5
EXHIBIT B
DISCLOSURE SCHEDULES
Item 2.7 Any asset acquired or disposed of, or indebtedness incurred,
assumed, guaranteed, endorsed, paid or discharged; any material
amount of assets subjected or permitted to be subjected to any
liability or obligation or to any lien, claim or encumbrance of
any kind, except in the ordinary course of business or pursuant
to agreements in force at the date of this Agreement and
identified below:
None, except pursuant to the Assignment and Assumption
Agreement with Xxxxx Enterprises.
Item 2.9(a) Material liabilities or obligations, contingent or
otherwise of the Partnership of any nature:
None, except pursuant to the Assignment and Assumption
Agreement with Xxxxx Enterprises.
Item 2.9(b) Liabilities or obligations of WAI (other than
material liabilities arising solely by reason of
WAI's status as a partner in the Partnership) of
any nature, whether absolute, accrued, contingent
or otherwise:
None.
Item 2.10 Liens and encumbrances on real and personal
property purchased by WAI or the Partnership since
the date of the Balance Sheet, except for liens for
taxes, assessments or other governmental charges
not yet due and payable.
None.
Item 2.11 Contracts and committments not in the ordinary
course of the Partnership's business.
None.
Item 2.12 Pending suits, claims, actions or litigation or
administrative, arbitration or other proceedings or
governmental investigations or inquiries against
WAI or the Partnership to which any of their
business or assets is subject.
None.
B-1
Item 2.13 Violations and defaults of WAI and the Partnership.
None.
Item 11.2 Current liabilities and those debts and liabilities
of WAI agreed to be assumed by Outback:
None.
08/07/97
B-2
