EXHIBIT 4.46
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.,
OUTBACK STEAKHOUSE OF FLORIDA, INC.,
EMPIRE ASSOCIATES, INC.
AND
XXXXX X. XXXXXXX
TABLE OF CONTENTS
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ARTICLE 1 - PLAN OF ACQUISITION.....................................................................1
1.1 The Merger.................................................................................1
1.2 Adjustments................................................................................2
1.3 Closing....................................................................................2
1.4 Execution and Delivery of Closing Documents................................................2
1.5 Execution and Filing of Merger Documents...................................................3
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.......................................................................4
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF EMPIRE
ASSOCIATES, INC. AND XXXXXXX...............................................................4
2.1 Organization and Good Standing.............................................................4
2.2 Power and Authority........................................................................4
2.3 Foreign Corporation........................................................................4
2.4 Authority and Validity.....................................................................4
2.5 Binding Effect.............................................................................4
2.6 Compliance with Other Instruments..........................................................5
2.7 Capitalization of EMPIRE ASSOCIATES, INC...................................................5
2.8 Absence of Certain Changes.................................................................5
2.9 Tax Liabilities............................................................................6
2.10 No Undisclosed Liabilities.................................................................7
2.11 Title to Properties........................................................................7
2.12 Contracts..................................................................................7
2.13 Litigation and Government Claims...........................................................8
2.14 No Violation of Any Instrument.............................................................8
2.15 Necessary Approvals and Consents...........................................................8
2.16 Compliance With Laws.......................................................................8
2.17 Accuracy of Information Furnished..........................................................8
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF XXXXXXX...............................................9
3.1 Authority and Validity.....................................................................9
3.2 Binding Effect.............................................................................9
3.3 Ownership..................................................................................9
3.4 Voting.....................................................................................9
3.5 Residency..................................................................................9
3.6 Compliance with Other Instruments..........................................................9
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ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK......................................10
4.1 Organization and Good Standing............................................................10
4.2 Foreign Qualification.....................................................................10
4.3 Power and Authority.......................................................................10
4.4 Authority and Validity....................................................................10
4.5 Binding Effect............................................................................10
4.6 Compliance with Other Instruments.........................................................10
4.7 Capitalization of OSI.....................................................................11
4.8 SEC Reports...............................................................................11
4.9 Litigation and Government Claims..........................................................11
4.10 Necessary Approvals and Consents..........................................................11
4.11 Absence of Certain Changes or Events......................................................12
ARTICLE 5 - JOINT COVENANTS OF EMPIRE ASSOCIATES, INC., XXXXXXX, OSI
AND OUTBACK...............................................................................12
5.1 Notice of any Material Change.............................................................12
5.2 Cooperation...............................................................................12
5.3 Post-Closing Adjustment...................................................................13
5.4 Distribution and Allocations..............................................................13
5.5 Additional Agreements.....................................................................13
ARTICLE 6 - COVENANTS OF EMPIRE ASSOCIATES, INC. AND XXXXXXX.......................................14
6.1 Securities Law Compliance.................................................................14
6.2 Payment of Liabilities....................................................................15
6.3 Pooling...................................................................................15
ARTICLE 7 - COVENANTS OF OSI AND OUTBACK...........................................................16
7.1 Employment Agreements.....................................................................16
7.2 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........................................................................17
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS OF EMPIRE
ASSOCIATES, INC...........................................................................17
9.1 Compliance................................................................................17
9.2 Representations and Warranties............................................................17
9.3 Material Adverse Changes..................................................................17
ARTICLE 10 - CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND
OUTBACK...................................................................................17
10.1 Compliance................................................................................17
10.2 Representations and Warranties............................................................17
10.3 Current Financial Status..................................................................18
10.4 Material Adverse Changes..................................................................18
10.5 Pooling...................................................................................18
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ARTICLE 11 - INDEMNIFICATION.......................................................................18
11.1 Indemnification Based on Agreement........................................................18
11.2 Limitation................................................................................18
11.3 Cooperation...............................................................................19
11.4 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...................................................................................20
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
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered effective as of December 12, 2000, by and among OUTBACK STEAKHOUSE,
INC., a Delaware corporation ("OSI"), OUTBACK STEAKHOUSE OF FLORIDA, INC., a
Florida corporation ("Outback"), EMPIRE ASSOCIATES, INC., a Florida corporation,
and XXXXX X. XXXXXXX, an individual residing in the State of New York
("XXXXXXX").
W I T N E S S E T H:
WHEREAS, Outback is a wholly-owned subsidiary of OSI; and
WHEREAS, XXXXXXX is the sole owner of the issued and outstanding common
stock of EMPIRE ASSOCIATES, INC., and XXXXXXX is the sole director, President
and is responsible for the day-to-day operations of EMPIRE ASSOCIATES, INC.; and
WHEREAS, Outback and EMPIRE ASSOCIATES, INC. have entered into that
certain Florida limited partnership known as Outback/Empire-I, Limited
Partnership ("Partnership");
WHEREAS, the Partnership operates Outback Steakhouse(R)restaurants in
the State of Florida; and
WHEREAS, the Board of Directors of EMPIRE ASSOCIATES, INC. has approved
the merger of EMPIRE ASSOCIATES, INC. 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, EMPIRE ASSOCIATES, INC. will be merged
with and into Outback and all of the outstanding shares of capital stock of
EMPIRE ASSOCIATES, INC. 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, EMPIRE ASSOCIATES, INC. shall be merged with and into Outback,
with Outback being the surviving corporation, in
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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 EMPIRE ASSOCIATES, INC. prior to the Merger. As a
result of the Merger, each voting and nonvoting common share of EMPIRE
ASSOCIATES, INC. 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 67,377
shares of OSI Common Stock.
1.2 Adjustments.
(a) Except as otherwise provided in this SECTION 1.2, the
total number of shares of OSI Common Stock to be issued pursuant to the
Merger shall be 67,377.
(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 EMPIRE ASSOCIATES, INC. 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) EMPIRE ASSOCIATES, INC. shall
have issued additional shares of its capital stock, the number of
shares of OSI Common Stock received in exchange for each share of
EMPIRE ASSOCIATES, INC.'s capital stock shall be adjusted so that the
aggregate number of shares of OSI Common Stock received in exchange for
all shares of EMPIRE ASSOCIATES, INC.'s capital stock (assuming no
Dissenting Shares) remains at 67,377.
(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 EMPIRE ASSOCIATES, INC. (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 December 12, 2000, 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 June 30,
2001, 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
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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, EMPIRE ASSOCIATES, INC. and XXXXXXX
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
(b) to cause the Merger Agreement to be filed with the
Secretary of State of the State of Florida 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 filing of the Merger Agreement with the Secretary
of State of the State of Florida (the "Effective Date"). Such Effective Date
shall be indicated on Certificates of Merger issued by the Secretary of State of
the State of Florida pursuant to the provisions of Sections 607.1101-607.1107 of
the Florida Business Corporation Act (the "Florida Act").
1.7 Further Assurances. After the Closing, the parties hereto
shall execute and deliver such additional documents and take such additional
actions as may reasonably be deemed necessary or advisable by any party in order
to consummate the transactions contemplated by this Agreement and by the Merger
Agreement, and to vest more fully in Outback the ownership of and the rights to
the business and assets of EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES,
INC. shall be entitled to receive upon surrender of stock certificates of EMPIRE
ASSOCIATES, INC. representing EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC. shall be closed and no transfer of
capital stock of EMPIRE ASSOCIATES, INC., 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 EMPIRE ASSOCIATES, INC. AND XXXXXXX
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Each of EMPIRE ASSOCIATES, INC. and XXXXXXX, jointly and severally,
represent and warrant to OSI and Outback as follows:
2.1 Organization and Good Standing. EMPIRE ASSOCIATES, INC. is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida.
2.2 Power and Authority. EMPIRE ASSOCIATES, INC. 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.
2.3 Foreign Corporation. EMPIRE ASSOCIATES, INC. is duly qualified
or licensed to do business and in good standing as a foreign corporation in
every jurisdiction where the failure to so qualify could have a material adverse
effect on its respective business, operations, assets or financial condition.
2.4 Authority and Validity.
(a) EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC. in connection with this
Agreement; and the execution, delivery and performance by EMPIRE
ASSOCIATES, INC. of this Agreement, the Merger Agreement and the other
documents executed or to be executed by EMPIRE ASSOCIATES, INC. in
connection with this Agreement have been duly authorized by all
necessary corporate action. The execution, delivery and performance by
EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC. as required under the laws of
the State of Florida and EMPIRE ASSOCIATES, INC.'s corporate governance
documents.
(b) XXXXXXX 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 XXXXXXX in connection with this
Agreement.
2.5 Binding Effect. This Agreement, the Merger Agreement and the
other documents executed or to be executed by EMPIRE ASSOCIATES, INC. and
XXXXXXX in connection with this Agreement have been or will have been duly
executed and delivered by EMPIRE ASSOCIATES, INC. and XXXXXXX, and are or will
be, when executed and delivered, the legal, valid and binding obligations of
each of EMPIRE ASSOCIATES, INC. and XXXXXXX enforceable in accordance with their
terms except that:
(a) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited
by equitable principles of general applicability.
2.6 Compliance with Other Instruments. Neither the execution and
delivery by EMPIRE ASSOCIATES, INC. nor XXXXXXX 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
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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 EMPIRE ASSOCIATES, INC. or XXXXXXX pursuant to, its
certificate 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 EMPIRE ASSOCIATES, INC. or XXXXXXX is bound, to which either
of them is a party, or to which any assets of either of them are subject;
provided, however, this SECTION 2.5 shall not apply with respect to any of the
foregoing if EMPIRE ASSOCIATES, INC. is bound thereby, a party thereto, or its
assets subject, solely by reason of its status as a partner in the Partnership.
2.7 Capitalization of EMPIRE ASSOCIATES, INC.
(a) The authorized capital stock of EMPIRE ASSOCIATES,
INC. consists of Fifty Thousand (50,000) common shares. There are one
hundred (100) common shares issued and outstanding, all of which are
owned by XXXXXXX. There are no other shareholders of EMPIRE ASSOCIATES,
INC. and no other persons with rights or options to acquire capital
stock of EMPIRE ASSOCIATES, INC. All of the issued and outstanding
shares of capital stock of EMPIRE ASSOCIATES, INC. have been duly
authorized and validly issued and are fully paid and nonassessable.
There are no shares of capital stock of EMPIRE ASSOCIATES, INC. held in
its treasury.
(b) There are no voting trusts, shareholder agreements or
other voting arrangements to which the shareholder of EMPIRE
ASSOCIATES, INC. is a party.
(c) There is no outstanding subscription, contract,
convertible or exchangeable security, option, warrant, call or other
right obligating EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC.
2.8 Absence of Certain Changes. From December 31, 1999 to the
Closing Date, (except solely as a result of EMPIRE ASSOCIATES, INC.'s status as
a partner in the Partnership) EMPIRE ASSOCIATES, INC. 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 2.8(c) of the Disclosure Schedules;
(d) forgiven, compromised, canceled, released, waived or
permitted to lapse any material rights or claims;
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(e) entered into or terminated any lease, agreement,
commitment or transaction, or agreed to or made any changes in any
leases or agreements, other than transactions and commitments entered
into in the ordinary course of business;
(f) written up, written down or written off the book
value of any assets;
(g) declared, paid or set aside for payment any dividend
or distribution with respect to its capital stock;
(h) redeemed, purchased or otherwise acquired, or sold,
granted or otherwise disposed of, directly or indirectly, any of its
capital stock or securities or any rights to acquire such capital stock
or securities, or agreed to changes in the terms and conditions of any
such rights outstanding as of the date of this Agreement;
(i) except in the ordinary course of business, increased
the compensation of any employee or paid any bonuses to any employee or
contributed to any employee benefit plan;
(j) entered into any employment, consulting, compensation
or collective bargaining agreement with any person or group, except
oral employment agreements which can be terminated at will; or
(k) entered into, adopted or amended any employee benefit
plan or severance agreements.
2.9 Tax Liabilities. EMPIRE ASSOCIATES, INC. 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, property, withholding, social security, unemployment, franchise, excise
and sales taxes; EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC. nor has EMPIRE ASSOCIATES, INC. received notice
of any such deficiency, delinquency or default. EMPIRE ASSOCIATES, INC. has no
reason to believe that EMPIRE ASSOCIATES, INC. has or may have any tax
liabilities other than those reflected on the unaudited balance sheet of EMPIRE
ASSOCIATES, INC. as of December 31, 1999, with any notes thereto, and the
related unaudited statements of income for the twelve months ended December 31,
1999, together with supplemental information on EMPIRE ASSOCIATES, INC., each
prepared and attested to by the chief financial officer of EMPIRE ASSOCIATES,
INC. (the "Balance Sheets") and those arising in the ordinary course of business
since the date thereof. With regard to the foregoing, EMPIRE ASSOCIATES, INC.
has relied on the accuracy and completeness of the Schedule K-1 provided by the
Partnership.
XXXXXXX shall have sole responsibility for filing all required tax
returns for EMPIRE ASSOCIATES, INC. OSI shall assist XXXXXXX in preparing income
tax returns and shall cooperate with XXXXXXX to the extent necessary therefor,
and XXXXXXX shall provide OSI with copies of all such returns at least fifteen
(15) days prior to filing.
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2.10 No Undisclosed Liabilities. There are no liabilities or
obligations of EMPIRE ASSOCIATES, INC. (other than material liabilities arising
solely by reason of EMPIRE ASSOCIATES, INC.'s status as a partner in the
Partnership) of any nature, whether absolute, accrued, contingent or otherwise,
other than liabilities or obligations indicated in Items 2.10(a) and 2.10(b) of
the Disclosure Schedules.
2.11 Title to Properties. EMPIRE ASSOCIATES, INC. has good and
marketable title to the assets reflected in its books and records as being owned
by it, (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 EMPIRE ASSOCIATES, INC. 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 2.11 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 EMPIRE ASSOCIATES, INC. are properly
reflected on the applicable Balance Sheets and notes thereto.
2.12 Contracts. Excluding (i) contracts and commitments between
Outback or OSI and EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC.
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 2.12 of the
Disclosure Schedule is a complete and accurate list of all of the contracts and
commitments (including summaries of oral contracts) to which EMPIRE ASSOCIATES,
INC. is a party or by which EMPIRE ASSOCIATES, INC. is bound:
2.13 Litigation and Government Claims. Except as indicated in Item
2.13 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 EMPIRE ASSOCIATES, INC. or the Partnership or
to which any of their business or assets is subject. Except as indicated in Item
2.13 of the Disclosure Schedule, there are no such proceedings threatened or, to
the best knowledge of EMPIRE ASSOCIATES, INC. or XXXXXXX, contemplated or, to
the best knowledge of EMPIRE ASSOCIATES, INC. or XXXXXXX, 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 EMPIRE ASSOCIATES, INC. or
the Partnership.
2.14 No Violation of Any Instrument. Except as indicated in Item
2.14 of the Disclosure Schedule, EMPIRE ASSOCIATES, INC. 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 EMPIRE
ASSOCIATES, INC. pursuant to, the articles or certificates of incorporation,
bylaws or other chartering or governance document of EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC. 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
7
(including with customers), judgment, order, injunction or decree to which
EMPIRE ASSOCIATES, INC. is a party, by which EMPIRE ASSOCIATES, INC. is bound or
to which any of the assets of EMPIRE ASSOCIATES, INC. are subject.
2.15 Necessary Approvals and Consents. Other than (a) in connection
with or in compliance with the laws of the States of Florida 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 EMPIRE ASSOCIATES, INC. and XXXXXXX 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 EMPIRE ASSOCIATES, INC.
and XXXXXXX 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 EMPIRE ASSOCIATES, INC. after the Effective Date in
substantially the same manner as now operated.
2.16 Compliance With Laws. XXXXXXX has no actual knowledge that
EMPIRE ASSOCIATES, INC. or the Partnership are not in compliance with any such
laws applicable to their respective business, where failure to so comply would
have a material adverse effect on their business, operations, properties, assets
or conditions.
2.17 Accuracy of Information Furnished. No representation or
warranty by EMPIRE ASSOCIATES, INC. or XXXXXXX 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 EMPIRE ASSOCIATES, INC. and
XXXXXXX have disclosed to OSI and Outback all facts known to them that are
material to EMPIRE ASSOCIATES, INC.'s and the Partnership's respective
businesses, operations, financial condition or prospects.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF XXXXXXX
In addition to the representations and warranties contained in ARTICLE
2, XXXXXXX 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 he is 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 XXXXXXX in connection with this Agreement have
been or will have been duly executed and delivered by him and are or will be,
when executed and delivered, his legal, valid and binding obligations
enforceable in accordance with their terms except that:
(a) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights; and
8
(b) the availability of equitable remedies may be limited
by equitable principles of general applicability.
3.3 Ownership. XXXXXXX is the sole record and beneficial
shareholder of EMPIRE ASSOCIATES, INC. and no other person has any rights (in
any form) to acquire any capital stock of EMPIRE ASSOCIATES, INC.
3.4 Voting. He acknowledges that in his individual capacity as
shareholder and director of EMPIRE ASSOCIATES, INC., he has voted in favor of
the execution and delivery of this Agreement and the Merger Agreement.
3.5 Residency. XXXXXXX is, and has been at all times during the
one year period ending on the date hereof, a resident of the State of Florida.
3.6 Compliance with Other Instruments. Neither the execution and
delivery by XXXXXXX 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 XXXXXXX
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 XXXXXXX 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 EMPIRE
ASSOCIATES, INC. and XXXXXXX as follows:
4.1 Organization and Good Standing. OSI and Outback are
corporations duly organized, validly existing and in good standing under the
laws of the States of Delaware and Florida, respectively.
4.2 Foreign Qualification. Outback is duly qualified or licensed
to do business and in good standing as a foreign corporation in Florida 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.
9
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 78,353,322 outstanding shares of Common Stock and no shares
of Preferred Stock were issued and outstanding as of November 30, 2000. 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 EMPIRE ASSOCIATES, INC.'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 EMPIRE ASSOCIATES, INC. and
XXXXXXX true and complete copies of its (i) Annual Report on Form 10-K for the
year ended December 31, 1999; (ii) Proxy Statement used in connection with its
2000 Annual Meeting of Shareholders; (iii) 1999 Annual Report to Shareholders;
(iv) all periodic reports, if any, on Form 8-K filed with the Securities and
Exchange Commission since December 31, 1999 to the date hereof; and (v) all
Forms 10-Q, if any, filed with the Securities and Exchange Commission since
December 31, 1999 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 EMPIRE ASSOCIATES, INC. and XXXXXXX. 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.
10
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 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, or state securities or blue sky laws, no
authorization, consent, permit or license or approval of or declaration,
registration or filing with, any person or governmental or regulatory authority
or agency is necessary for the execution and delivery by OSI and Outback of this
Agreement, the Merger Agreement and the other agreements executed or to be
executed by either of them in connection with this Agreement and the
consummation by OSI and Outback of the transactions contemplated by this
Agreement and the Merger Agreement.
4.11 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 September 30, 2000, 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 EMPIRE ASSOCIATES, INC., XXXXXXX, OSI AND OUTBACK
EMPIRE ASSOCIATES, INC. and XXXXXXX, 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 EMPIRE ASSOCIATES, INC., XXXXXXX, OSI and Outback shall, promptly after the
first notice or occurrence thereof but prior to the Effective Date, advise the
others in writing of any event or the existence of any state of facts that:
(a) would make any of its representations and warranties
in this Agreement untrue in any material respect; or
(b) would otherwise constitute a material adverse change
in the business, results of operation, working capital, assets,
liabilities or condition (financial or otherwise) of OSI, Outback or
EMPIRE ASSOCIATES, INC. 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.
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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
Closing 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 EMPIRE ASSOCIATES,
INC. as of the Effective Date; and
(b) the amount of all liabilities of EMPIRE ASSOCIATES,
INC. (other than liabilities specified in Item 6.2 of the EMPIRE
ASSOCIATES, INC. Disclosure Schedule to the extent assumed by Outback)
which were not paid in full prior to the Effective Date.
Upon receipt of such report, XXXXXXX (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 XXXXXXX (and at the expense of
XXXXXXX) 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 PricewaterhouseCoopers (or other
agreed upon independent "Big Five" accounting firm) for a resolution of such
items and whose decision shall be final and binding on all parties. The fees and
expenses of PricewaterhouseCoopers (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 Subsection (b), OSI shall pay such excess to XXXXXXX within ten (10) days
of such final determination. If, as finally determined, the sum of Subsection
(b) exceeds the sum of Subsection (a), XXXXXXX 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 EMPIRE ASSOCIATES, INC.'s entire share of Partnership distributions
of cash flow, and shall be allocated EMPIRE ASSOCIATES, INC.'s shares of profit
and loss, from and after December 12, 2000.
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
12
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 EMPIRE ASSOCIATES, INC.
(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 XXXXXXX shall take all such necessary action.
(c) Neither Outback, OSI, EMPIRE ASSOCIATES, INC. nor
XXXXXXX 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 EMPIRE ASSOCIATES, INC. AND XXXXXXX
EMPIRE ASSOCIATES, INC. and XXXXXXX covenant and agree with OSI as
follows:
6.1 Securities Law Compliance. XXXXXXX represents, warrants and
covenants to Outback and OSI that:
(a) XXXXXXX has received all schedules and exhibits and
the documents furnished to EMPIRE ASSOCIATES, INC. pursuant to SECTION
4.8;
(b) XXXXXXX 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 XXXXXXX.
(c) OSI and Outback have furnished him with all
information requested and full access to materials concerning OSI and
Outback which XXXXXXX and/or his advisors deemed necessary to properly
evaluate the Merger. Such information and access have been made
available and utilized to the extent XXXXXXX considers necessary and
advisable in making an informed investment decision, and XXXXXXX has
consulted his own tax advisor and understands the evaluation of such
materials may require the assistance of experts and XXXXXXX has
utilized such experts to the extent deemed necessary.
(d) XXXXXXX understands that the OSI Common Stock to be
received is an investment of a speculative nature and XXXXXXX must bear
the risks thereof for an indefinite period of time. XXXXXXX 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) XXXXXXX and/or his representatives or advisors who
have acted with or on behalf of XXXXXXX and who have advised XXXXXXX in
this matter have such knowledge and experience in financial and
business matters that XXXXXXX is capable of evaluating the merits and
risks of the Merger for OSI Common Stock.
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(f) XXXXXXX is participating in the Merger solely for his
account as a private investment, and XXXXXXX 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. XXXXXXX does not presently intend to enter
into any such agreement or undertaking and there are no present
circumstances which will compel XXXXXXX to sell any OSI Common Stock so
received. XXXXXXX 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 XXXXXXX in OSI Common Stock
pursuant to the Merger is a suitable investment for XXXXXXX given the
investment goals and objectives of XXXXXXX.
(h) XXXXXXX 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 XXXXXXX of any OSI Common Stock
received hereby which is effected other than in strict compliance with
the terms hereof and applicable law.
(i) XXXXXXX 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. Neither OSI nor Outback will have any obligation to register any
such OSI Common Stock.
(j) XXXXXXX 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) XXXXXXX 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 XXXXXXX'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. EMPIRE ASSOCIATES, INC. and XXXXXXX
covenant and agree that all debts and liabilities of EMPIRE ASSOCIATES, INC.
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 EMPIRE ASSOCIATES, INC. assumed by Outback as specified in Item
6.2 of the Disclosure Schedules.
6.3 Pooling. XXXXXXX agrees that until such time as financial
results of OSI covering at least thirty (30) days of combined operations of OSI
and EMPIRE ASSOCIATES, INC. 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.,
14
with respect to the shares of OSI Common Stock issued pursuant to the Merger, to
the effect that no transfer of such shares shall be effected until the date on
which the requisite financial results have been published and OSI and the
transfer agent may take any action, including placing an appropriate legend on
the certificates, they deem necessary to enforce this provision.
ARTICLE 7
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and agree with EMPIRE
ASSOCIATES, INC. and XXXXXXX as follows:
7.1 Employment Agreements. Solely with respect to the Merger, and
any consequential termination of any partnership by operation of law, Outback
agrees not to elect to terminate the Employment Agreements between the
Partnership, as employer, and the general managers of the Partnership's Outback
Steakhouse 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.
7.2 Assumed Liabilities. OSI and Outback agree to assume and pay
the liabilities specified in Item 6.2 (subject to the amount limits specified in
Item 6.2 of the Disclosure Schedules) and to indemnify and hold harmless XXXXXXX
from any loss or liability therefor.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of EMPIRE ASSOCIATES,
INC., XXXXXXX, 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. EMPIRE ASSOCIATES, INC., 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 EMPIRE ASSOCIATES, INC.
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
15
interfere with the operation of the assets and business of EMPIRE ASSOCIATES,
INC. 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
EMPIRE ASSOCIATES, INC. 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 1.11 or is otherwise not
contrary to the best interests of Outback or OSI.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF EMPIRE ASSOCIATES, INC.
The obligations of EMPIRE ASSOCIATES, INC. and XXXXXXX 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 EMPIRE ASSOCIATES, INC. and
XXXXXXX 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 of OSI's most recent
10-Q, as filed with the Securities and Exchange Commission, through the date
hereof, there shall have occurred no material adverse change in the business,
properties, assets, liabilities, results of operations or condition, financial
or otherwise, of OSI and Outback, taken as a whole.
ARTICLE 10
CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND OUTBACK
Except as may be waived by OSI and Outback, the obligations of OSI and
Outback to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions:
10.1 Compliance. EMPIRE ASSOCIATES, INC. and XXXXXXX 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 EMPIRE ASSOCIATES, INC. and/or XXXXXXX in this Agreement, the
Disclosure Schedule, and in all certificates and other documents delivered by
EMPIRE ASSOCIATES, INC. or XXXXXXX 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
16
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 EMPIRE ASSOCIATES, INC. as of November 30,
2000, for the month then ended.
10.4 Material Adverse Changes. Since November 30, 2000, there shall
have occurred no material adverse change in the business, properties, assets,
liabilities, results of operations or condition, financial or otherwise, of
EMPIRE ASSOCIATES, INC. or the Partnership.
ARTICLE 11
INDEMNIFICATION
XXXXXXX, on the one hand, and OSI and Outback, jointly and severally,
on the other hand, agree as follows:
11.1 Indemnification Based on Agreement. Subject to the limitations
contained in SECTION 11.2 hereof, XXXXXXX shall indemnify and hold harmless OSI,
Outback and EMPIRE ASSOCIATES, INC., and OSI, Outback and EMPIRE ASSOCIATES,
INC., jointly and severally, shall indemnify and hold harmless XXXXXXX, 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, XXXXXXX shall indemnify OSI, Outback and
EMPIRE ASSOCIATES, INC., as provided in the first paragraph of this SECTION
11.1, against any loss, claim, damage or liability arising out of (i) any tax
liability of EMPIRE ASSOCIATES, INC. for any period prior to and including the
Effective Date and (ii) any debt of EMPIRE ASSOCIATES, INC. (other than the
debts specified in Item 6.2 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 EMPIRE ASSOCIATES, INC. 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 6.2 of the
Disclosure Schedule.
11.2 Limitation. XXXXXXX shall have no obligation under SECTION
11.1 to indemnify OSI, Outback or EMPIRE ASSOCIATES, INC. 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 EMPIRE ASSOCIATES, INC. under SECTION 11.1
above which shall continue for the period specified in SECTION 12.4(B) hereof)
shall terminate two (2) years from the Effective 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 Effective Date.
11.3 Cooperation. If any claim, demand, action, suit, proceeding or
investigation arising out of or pertaining to this Agreement or the transactions
contemplated hereby is begun or asserted, whether begun or
17
asserted before or after the Closing Date, the parties hereto will cooperate and
use their best efforts to defend against and respond thereto.
11.4 Notice. An indemnified party shall give notice to the
indemnifying party or parties within ten (10) business days after actual receipt
of service or summons to appear in any action begun in respect of which
indemnity may be sought hereunder. Failure to so notify the indemnifying party
or parties shall cause the indemnified party to be liable for any damage caused
by failure to give timely notice. The indemnifying party or parties may
participate at their own expense and with their counsel in the defense of such
action. If the indemnifying party or parties so elect within a reasonable time
after receipt of such notice, they may assume the defense of such action with
counsel chosen by the indemnifying party or parties and approved by the
indemnified party in such action, unless the indemnified party reasonably
objects to such assumption on the ground that its counsel has advised it that
there may be legal defenses available to it that are different from or in
addition to those available to the indemnifying party or parties, in which case
the indemnified party shall have the right to employ counsel approved by the
indemnifying party or parties. If the indemnifying party or parties assume the
defense of such action, the indemnifying party or parties shall not be liable
for fees and expenses of counsel for the indemnified party incurred thereafter
in connection with such action. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel for the
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances unless, in the reasonable opinion of such counsel,
there is, under applicable standards of professional conduct, a conflict on any
significant issue between the positions of any two or more indemnified parties.
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 EMPIRE ASSOCIATES, INC.):
(a) by mutual consent of EMPIRE ASSOCIATES, INC. and OSI;
(b) by OSI if there has been a material misrepresentation
or breach of warranty in the representations and warranties of EMPIRE
ASSOCIATES, INC. or XXXXXXX set forth herein or if there has been any
material failure on the part of EMPIRE ASSOCIATES, INC. or XXXXXXX to
comply with their obligations hereunder;
(c) by EMPIRE ASSOCIATES, INC. 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 their
obligations hereunder;
(d) by either OSI, EMPIRE ASSOCIATES, INC. or XXXXXXX, if
the transactions contemplated by this Agreement have not been
consummated by June 30, 2001, 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;
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(e) by either OSI or EMPIRE ASSOCIATES, INC. 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; or
(f) by either EMPIRE ASSOCIATES, INC. 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 for a period of two years from the Effective
Date; provided, however, that the obligations of OSI and Outback under
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 XXXXXXX 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 2.9 (TAX LIABILITIES) shall survive the
Closing for a period ending four years after the filing of EMPIRE
ASSOCIATES, INC.'s federal income tax return for the period including
the Effective Date.
12.5 Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which when so executed and delivered shall be
deemed an original and such counterparts together shall constitute only one
original.
12.6 Notices. All notices, demands, requests or other
communications that may be or are required to be given, served or sent by any
party to any other party pursuant to this Agreement shall be in writing and
shall be mailed by registered or certified mail, return receipt requested,
postage prepaid or transmitted by hand delivery or recognized national overnight
delivery service addressed as follows:
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If to EMPIRE ASSOCIATES, INC. or XXXXXXX:
EMPIRE ASSOCIATES, INC.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: XXXXX X. XXXXXXX
If to OSI or Outback: OUTBACK STEAKHOUSE, INC.
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, 0xx Xxxxx
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 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.
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
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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, Secretary XXXXXX X. XXXXXX, President
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------------- ---------------------------------
XXXXXX X. XXXXX, Secretary XXXXXX X. XXXXXX, Chief Operating
Officer
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Attest: EMPIRE ASSOCIATES, INC.,
a Florida corporation
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
---------------------------------- ---------------------------------
XXXXX X. XXXXXXX, Secretary XXXXX X. XXXXXXX, President
Witness: "XXXXXXX"
/s/ Xxxxx X. Xxxxxxx
------------------------------------- -------------------------------------
XXXXX X. XXXXXXX
-------------------------------------
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