AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the
"Agreement") is made and entered into as of the 8th day
of May, 1996, by and among OUTBACK STEAKHOUSE, INC., a
Delaware corporation ("OSI"), OUTBACK STEAKHOUSE OF
FLORIDA, INC., a Florida corporation ("Outback"), NEVADA
SUMMIT CORPORATION ("NSC") and XXXXXXX X. XXXXXX, an
individual residing in the State of Nevada ("Grappo").
W I T N E S S E T H:
WHEREAS, Outback is a wholly-owned subsidiary of
OSI; and
WHEREAS, the individuals identified on Exhibit B
attached hereto, including Grappo (collectively, the
"Shareholders") are the sole owners of the issued and
outstanding common stock of NSC, and Grappo is the sole
director, President and is responsible for the day-to-day
operations of NSC; and
WHEREAS, Outback and NSC have entered into that
certain Florida general partnership known as
Outback/Nevada Joint Venture ("Partnership");
WHEREAS, the Partnership operates Outback Steakhouse
restaurants in the State of Nevada as a franchisee of
Outback; and
WHEREAS, the Board of Directors of NSC has approved
the merger of NSC 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, NSC will be merged
with and into Outback and all of the outstanding shares
of capital stock of NSC 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, NSC 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 NSC prior to
the Merger. As a result of the Merger, each voting and
nonvoting common share of NSC 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 11.44 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 143,000.
(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 NSC
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) NSC shall
have issued additional shares of its capital stock, the
number of shares of OSI Common Stock received in exchange
for each share of NSC's capital stock shall be adjusted
so that the aggregate number of shares of OSI Common
Stock received in exchange for all shares of NSC's
capital stock (assuming no Dissenting Shares) remains at
143,000.
(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 NSC (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 May 10, 1996, 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 May 15, 1996, 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,
NSC and Grappo 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 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 Nevada 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 Nevada; or (ii) June
1, 1996 (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 Nevada pursuant to the
Florida Act and Nevada 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 NSC and the Partnership, as it
or they existed immediately before the Effective Date.
1.8 Dissenters' Rights. Notwithstanding any
provision of this Agreement to the contrary, any shares
of capital stock of NSC outstanding immediately prior to
the Effective Date held by a holder who has demanded and
perfected the right, if any, for appraisal of those
shares of stock in accordance with the provisions of
Nevada or Florida law, as applicable ("State Law"), and
as of the Effective Date has not withdrawn or lost such
right to such appraisal ("Dissenting Shares") shall not
be converted into or represent a right to receive OSI
Common Stock pursuant to Section 1.1, but the holder
shall only be entitled to such rights as are granted by
State Law. If a holder of shares of capital stock of NSC
who demands appraisal of those shares or interests under
State Law shall effectively withdraw or lose (through
failure to perfect or otherwise) the right to appraisal,
then, as of the Effective Date or the occurrence of such
event, whichever last occurs, those shares of capital
stock of NSC shall be converted into and represent only
the right to receive OSI Common Stock as provided in
Section 1.1, upon the surrender of the Certificate or
Certificates representing those shares of capital stock
of NSC. NSC shall give OSI (a) prompt notice of any
written demands for appraisal of any shares of capital
stock of NSC, attempted withdrawals of such demands and
any other instruments served pursuant to State Law
received by NSC relating to shareholders' or rights of
appraisal and (b) the opportunity to direct all
negotiations and proceedings with respect to demands for
appraisal under State Law. NSC shall not, except with
the prior written consent of OSI, voluntarily make any
payment with respect to any demands for appraisals of
capital stock of NSC, offer to settle or settle any such
demands or approve any withdrawal of any such demands.
Notwithstanding any contrary provision of this Agreement,
Outback and OSI shall have the right to terminate this
Agreement and be released from all obligations hereunder
if Outback and OSI, in their sole and absolute
discretion, determine that shareholders of NSC have
demanded appraisal rights in an amount which jeopardizes
the accounting treatment specified in Section 1.12 or
otherwise is not in the best interests of Outback or OSI
in their sole and absolute discretion.
1.9 Certificates. As soon as practicable after
the Effective Date, OSI shall make available and each
holder of capital stock of NSC shall be entitled to
receive upon surrender of stock certificates of NSC
representing NSC 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 NSC capital stock is converted
shall be deemed issued at the Effective Date.
1.10 Closing of Transfer Books. At the Closing
Date, the stock and partnership transfer books of NSC and
the Partnership shall be closed and no transfer of
capital stock of NSC, nor partnership interests in
Partnership, shall thereafter be made.
1.11 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.
1.12 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 NSC AND GRAPPO
Each of NSC and Grappo, jointly and severally,
represent and warrant to OSI and Outback as follows:
2.1 Organization and Good Standing. NSC is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada.
2.2 Power and Authority. NSC 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 Authority and Validity.
(a) NSC 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 NSC in connection with this
Agreement; and the execution, delivery and performance by
NSC of this Agreement, the Merger Agreement and the other
documents executed or to be executed by NSC in connection
with this Agreement have been duly authorized by all
necessary corporate action. The execution, delivery and
performance by NSC 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 NSC as required under the
laws of the State of Nevada and NSC's corporate
governance documents.
(b) Grappo 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 Grappo in connection with this Agreement.
2.4 Binding Effect. This Agreement, the Merger
Agreement and the other documents executed or to be
executed by NSC and Grappo in connection with this
Agreement have been or will have been duly executed and
delivered by NSC and Grappo, and are or will be, when
executed and delivered, the legal, valid and binding
obligations of each of NSC and Grappo 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 NSC nor Grappo 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 NSC or Grappo 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 NSC or Grappo 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 NSC 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 NSC.
(a) The authorized capital stock of NSC consists
of 25,000 common shares. All of the issued and
outstanding shares of NSC are owned by the persons and in
the amounts specified on Exhibit B attached hereto and
made a part hereof. There are no other Shareholders of
NSC and no other persons with rights or options to
acquire capital stock of NSC. All of the issued and
outstanding shares of capital stock of NSC have been duly
authorized and validly issued and are fully paid and
nonassessable. There are no shares of capital stock of
NSC held in its treasury.
(b) There are no voting trusts, shareholder
agreements or other voting arrangements among the
Shareholders of NSC.
(c) There is no outstanding subscription,
contract, convertible or exchangeable security, option,
warrant, call or other right obligating NSC 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
NSC.
2.7 Absence of Certain Changes. Since December
31, 1995 to the Closing Date, neither NSC nor the
Partnership has:
(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. Each of NSC and the
Partnership 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; each of NSC and the Partnership 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 NSC or the
Partnership 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 NSC or the Partnership nor
have NSC or the Partnership received notice of any such
deficiency, delinquency or default. NSC and the
Partnership have no reason to believe that either NSC or
the Partnership has or may have any tax liabilities other
than those reflected on the unaudited balance sheet of
NSC as of April 30, 1996, with any notes thereto, and the
related unaudited statements of income for the four
months ended April 30, 1996, together with supplemental
information on NSC, each prepared and attested to by the
chief financial officer of NSC (the "Balance Sheets") and
those arising in the ordinary course of business since
the date thereof.
Grappo shall have sole responsibility for filing all
required tax returns for NSC and the Partnership for all
periods ending on or prior to the Effective Date. OSI
shall assist Grappo in preparing income tax returns and
shall cooperate with Grappo to the extent necessary
therefor, and Grappo 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
material liabilities or obligations of the Partnership of
any nature, whether absolute, accrued, contingent or
otherwise, other than liabilities or obligations
indicated in Item 2.9(a) of the Disclosure Schedules.
There are no liabilities or obligations of NSC (other
than material liabilities arising solely by reason of
NSC'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(b) of the Disclosure Schedules.
2.10 Title to Properties. Each of NSC and the
Partnership 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 NSC
or the Partnership 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 NSC and the Partnership are properly reflected
on the applicable Balance Sheets and notes thereto.
2.11 Contracts. Excluding (i) Outback
Steakhouse franchise agreements, (ii) other contracts and
commitments between Outback or OSI and NSC or the
Partnership, (iii) contracts and commitments entered into
by the Partnership to which Outback or OSI is a party,
(iv) contracts and commitments entered into by NSC in the
ordinary course of the Partnership's business without
violation of the provisions of the Outback/Nevada Joint
Venture Agreement, and (v) 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 following categories of
contracts and commitments (including summaries of oral
contracts) to which NSC and the Partnership is a party or
by which NSC or the Partnership is bound:
(a) contracts with any labor union; employee
benefit plans or contracts; and employment, consulting or
similar contracts, including confidentiality agreements;
(b) leases, whether as lessor or lessee; loan
agreements, mortgages, indentures, instruments of
indebtedness or commitments in each case involving
indebtedness for borrowed money or money loaned to
others; and guaranty or suretyship, performance bond,
indemnification or contribution agreements involving
obligations;
(c) contracts with suppliers that involve
aggregate payments of more than Ten Thousand Dollars
($10,000) and which cannot be terminated without penalty
with 30 days' prior notice; and marketing agreements;
(d) insurance policies; and
(e) other contracts not made in the ordinary
course of business or that are material to the
operations, business or financial condition of NSC or the
Partnership.
To the extent requested, NSC and the Partnership
have each furnished or made available accurate and
complete copies of the foregoing contracts and agreements
to OSI. All such contracts are valid, binding and
enforceable in accordance with their terms except that:
(i) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors'
rights; and (ii) the availability of equitable remedies
may be limited by equitable principles of general
application; and (iii) NSC and Grappo make no
representation as to the reasonableness of the time
periods and geographic areas of any covenants against
competition contained in employment agreements.
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 NSC or the
Partnership or to which any of 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 NSC or Grappo,
contemplated or, to the best knowledge of NSC or Grappo,
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 NSC or the
Partnership.
2.13 No Violation of Any Instrument. Except as
indicated in Item 2.13 of the Disclosure Schedule,
neither NSC nor the Partnership is 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 NSC or the Partnership pursuant
to, the articles or certificates of incorporation,
bylaws, partnership agreement, operating agreement or
other chartering or governance document of NSC or the
Partnership, 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 NSC in the ordinary course
of business without violation of the provisions of the
Outback/Nevada Joint Venture 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 NSC or the
Partnership is a party, by which NSC or the Partnership
is bound or to which any of the assets of NSC or the
Partnership 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 Nevada 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 NSC and Grappo 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 NSC and Grappo 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
NSC and the Partnership after the Effective Date in
substantially the same manner as now operated.
2.15 Compliance With Laws. NSC and the
Partnership are in compliance with all laws applicable to
their businesses, including, without limitation, all
applicable ERISA and labor laws, where failure to so
comply would have a material adverse effect on its
business, operations, properties, assets or conditions.
Further, Grappo has no actual knowledge that NSC 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 No Further Rights. Except as specifically
provided herein, after the Merger, neither NSC nor the
Partnership nor any shareholder, officer or director of
NSC will have any rights, contractual or otherwise, to
develop, own, manage, franchise or operate Outback
Steakhouse restaurants. Notwithstanding the foregoing,
however, the parties acknowledge that Outback intends to
enter into a management agreement with Grappo whereby
Grappo will receive management fees for supervision of
the restaurants currently owned by the Partnership and a
limited partnership agreement with an entity wholly owned
by Grappo for the development of additional Outback
Steakhouse restaurants in Nevada.
2.17 Status as S Corporation. NSC has validly
elected to be taxed as "S" corporations for federal
income tax purposes for all periods since its date of
formation to the date hereof. Such "S" elections have
not been terminated, revoked or cancelled. Until the
Effective Date, such "S" elections shall remain in full
force and effect.
2.18 Accuracy of Information Furnished. No
representation or warranty by NSC or Grappo 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 NSC and Grappo
have disclosed to OSI and Outback all facts known to them
that are material to NSC's and the Partnership's
respective businesses, operations, financial condition or
prospects.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF GRAPPO
In addition to the representations and warranties
contained in Article 2, Grappo 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 Grappo 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. The persons specified on Exhibit
B are the sole record and beneficial shareholders of NSC
in the amounts specified on Exhibit B, and no other
person has any rights (in any form) to acquire any
capital stock of NSC. NSC is the sole owner of a fifty
percent (50%) interest in the Partnership and has not
granted any options or other rights to acquire all or
part of its Partnership interest.
3.4 Voting. He acknowledges that in his
individual capacity as shareholder and director of NSC,
he has voted in favor of the execution and delivery of
this Agreement and the Merger Agreement.
3.5 Residency. Grappo is, and has been at all
times during the one year ending on the date hereof, a
resident of the State of Nevada.
3.6 Compliance with Other Instruments. Neither
the execution and delivery by Grappo 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 Grappo 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 Grappo is bound, to which
he is a party or to which he is subject.
3.7 Securities Laws Representations and
Warranties. Grappo represents and warrants, as of the
date hereof, the Closing Date, and the Effective Date
that:
(a) OSI and Outback have furnished him with all
information requested and full access to materials
concerning OSI and Outback which the Grappo and/or his
advisors deemed necessary to properly evaluate the
Merger. Such information and access have been made
available and utilized to the extent Grappo considers
necessary and advisable in making an informed investment
decision, and Grappo has consulted his own tax advisor
and understands the evaluation of such materials may
require the assistance of experts and Grappo has utilized
such experts to the extent deemed necessary.
(b) Grappo understands that the OSI Common Stock
to be received is an investment of a speculative nature
and Grappo must bear the risks thereof for an indefinite
period of time. Grappo 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.
(c) Grappo and/or his representatives or
advisors who have acted with or on behalf of Grappo and
who have advised Grappo in this matter have such
knowledge and experience in financial and business
matters that Grappo is capable of evaluating the merits
and risks of the Merger for OSI Common Stock.
(d) Grappo is participating in the Merger solely
for the account of Grappo as a private investment, and
Grappo 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. Grappo does
not presently intend to enter into any such agreement or
undertaking and there are no present circumstances which
will compel Grappo to sell any OSI Common Stock so
received.
(e) The investment by Grappo in OSI Common Stock
pursuant to the Merger is a suitable investment for
Grappo given the investment goals and objectives of
Grappo.
(f) Grappo 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 Grappo of any OSI Common Stock received
hereby which is effected other than in strict compliance
with the terms hereof and applicable law.
(g) Grappo 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.
Grappo understands that the shares of OSI Common Stock
issued to Grappo in the Merger will be subject to the
limited registration rights described herein and Grappo
agrees to the terms hereof. Such rights shall be
personal to Grappo and shall automatically terminate with
respect to any shares of OSI Common Stock which Grappo
assigns or transfers, upon attachment or seizure by or
for the benefit of any creditors of Grappo, 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.
(h) Grappo 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 Grappo's spouse in excess of $300,000
in each of those years and reasonably expects to reach
the same income level in the current tax year.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK
OSI and Outback jointly and severally represent and
warrant to NSC and Grappo 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 Nevada 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 One Hundred Million
(100,000,000) shares of Common Stock, $.01 par value and
Two Million (2,000,000) shares of Preferred Stock, $.01
par value, of which approximately 47,168,230 shares of
Common Stock and no shares of Preferred Stock were issued
and outstanding as of March 8, 1996. 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 NSC'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 NSC and
Grappo true and complete copies of its (i) Annual Report
on Form 10-K for the year ended December 31, 1995; (ii)
Proxy Statement used in connection with its 1996 Annual
Meeting of Shareholders; (iii) 1996 Annual Report to
Shareholders; (iv) all periodic reports, if any, on Form
8-K filed with the Securities and Exchange Commission
since December 31, 1995 to the date hereof; and (v) all
Forms 10-Q, if any, filed with the Securities and
Exchange Commission since December 31, 1995, 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 NSC and Grappo. 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 Nevada 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 NSC, GRAPPO, OSI AND OUTBACK
NSC and Grappo, 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 NSC, Grappo, 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 NSC 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 NSC as of
the Effective Date;
(b) the amount of all liabilities of NSC (other
than liabilities specified in Item 11.2 of the NSC
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 NSC for the short tax year
ending on the Effective Date;
Upon receipt of such report, Grappo (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 Grappo (and at the expense
of Grappo) 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 Grappo 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), Grappo shall pay such excess to OSI
within ten (10) days of the final determination.
5.4 Termination of Agreements. At the Effective
Date all existing Franchise Agreements between Outback,
as franchisor and any of NSC, the Partnership or Grappo
as franchisees, shall be, without further action by any
party, terminated; provided, however, no party (or other
person bound thereby) shall be released from any post-termination covenant
contained in Article VI of any Outback Steakhouse Restaurant Franchise
Agreement nor be released with respect to acts and events occurring prior
to such termination in any agreement or guaranty executed
by Grappo pursuant to a Franchise Agreement.
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 NSC.
(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 Grappo shall take
all such necessary action.
(c) Neither Outback, OSI, NSC nor Grappo 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 NSC AND GRAPPO
NSC and Grappo covenant and agree with OSI as
follows:
6.1 Access; Confidentiality. During the period
pending the Closing Date, NSC shall afford to OSI and to
OSI officers, employees, accountants, counsel and other
authorized representatives, full access during regular
business hours to their assets, properties, books,
contracts, commitments and records and will furnish or
use their best efforts to cause representatives to
furnish promptly to OSI such additional financial and
operating data and other documents and information
(certified if requested and reasonably susceptible to
certification) relating to their respective businesses
and properties as OSI or its duly authorized
representatives may from time to time reasonably request.
OSI shall cause all information obtained by it or its
representatives pursuant to this Agreement or in
connection with the negotiation hereof to be treated as
proprietary and confidential (other than information that
is a matter of public knowledge or is already known by
OSI) and shall not use in its business or for any other
purpose or disclose or knowingly permit others to use or
disclose, any such information in a manner detrimental to
NSC or Grappo and, if for any reason the transactions
contemplated by this Agreement are not consummated, will
return all such information to NSC. As soon as
practicable after the Effective Date, Grappo shall
deliver to Outback all books and records of NSC.
6.2 Shareholders' Consent. NSC shall use its
best efforts to obtain shareholder approval for the
Merger. The Board of Directors of NSC shall recommend
that the shareholders vote in favor of and approve the
Merger and the adoption of this Agreement; provided,
however, that such recommendation may be withdrawn,
modified or amended to the extent the Board of Directors,
in the exercise of its fiduciary obligations under
applicable law after consultation with and advice from
outside counsel concerning such fiduciary obligations,
deems it necessary to do so.
6.3 Conduct of Business Prior to Closing Date.
From the date hereof to the Effective Date, NSC and
Grappo:
(a) shall conduct the business operations of NSC
and the Partnership in the ordinary and usual course of
business consistent with past and current practices and
shall use their best efforts to maintain and preserve
intact their business organizations and goodwill, to
retain the services of their key officers and employees
and to maintain satisfactory relationships with
suppliers, distributors and others having business
relationships with them;
(b) shall confer on a regular and frequent basis
with one or more representatives of OSI to report
material operational matters and the general status of
ongoing operations;
(c) shall notify OSI of any emergency or other
change in the normal course of the business of NSC or the
Partnership and of any governmental complaints,
investigations or hearings (or communications indicating
that the same may be contemplated) if such emergency,
change, complaint, investigation or hearing would be
material to the business or properties of NSC or the
Partnership including, without limitation, complaints,
investigations or hearings relating to any liquor
licenses or permits held by NSC or the Partnership or to
the transfer to or assumption by Outback of such licenses
or permits;
(d) shall not solicit or authorize any person to
solicit or encourage, directly or indirectly, any inquiry
or proposal for the acquisition of all or any material
part of the capital stock of NSC, the assets or business
of NSC or the Partnership, or for the merger or other
acquisition of NSC or the Partnership with or by any
other person or entity or enter into negotiations for any
such proposal or provide any person with information or
assistance in furtherance of any such inquiry or proposal
and shall promptly notify OSI orally and in writing of
all inquiries or proposals received with respect to such
matters; and
(e) shall take no action (or fail to take any
action) which would cause or permit their representations
and warranties contained in this Agreement to be untrue
in any material respect at the Effective Date.
6.4 Securities Law Compliance; Restrictions on
Shares. At the Closing, Grappo shall obtain and deliver
to Outback and OSI the written agreement of each
Shareholder of NSC (except that OSI acknowledges and
agrees that Grappo shall not be required and may not be
able to obtain such agreement from Shareholders who
exercise their dissenter's rights under applicable state
law), wherein such Shareholder shall:
(a) acknowledge receipt of this Agreement and
all schedules and exhibits and the documents furnished to
NSC pursuant to Section 4.8;
(b) acknowledge and agree that:
(i) The Shareholder 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 the Shareholder.
(ii) OSI and Outback have furnished him
with all information requested and full access to
materials concerning OSI and Outback which the Grappo
and/or his advisors deemed necessary to properly evaluate
the Merger. Such information and access have been made
available and utilized to the extent the Shareholder
considers necessary and advisable in making an informed
investment decision, and the Shareholder has consulted
his own tax advisor and understands the evaluation of
such materials may require the assistance of experts and
Shareholder has utilized such experts to the extent
deemed necessary.
(iii) The Shareholder understands that
the OSI Common Stock to be received is an investment of
a speculative nature and the Shareholder must bear the
risks thereof for an indefinite period of time. The
Shareholder 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.
(iv) The Shareholder and/or his
representatives or advisors who have acted with or on
behalf of the Shareholder and who have advised the
Shareholder in this matter have such knowledge and
experience in financial and business matters that the
Shareholder is capable of evaluating the merits and risks
of the Merger for OSI Common Stock.
(v) The Shareholder is participating in
the Merger solely for the account of the Shareholder as
a private investment, and the Shareholder 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. The Shareholder does not presently
intend to enter into any such agreement or undertaking
and there are no present circumstances which will compel
the Shareholder to sell any OSI Common Stock so received.
The Shareholder 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.
(vi) The investment by the Shareholder in
OSI Common Stock pursuant to the Merger is a suitable
investment for the Shareholder given the investment goals
and objectives of the Shareholder.
(vii) The Shareholder 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 the Shareholder of
any OSI Common Stock received hereby which is effected
other than in strict compliance with the terms hereof and
applicable law.
(viii) The Shareholder 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. The Shareholder understands that the shares of OSI
Common Stock issued to Grappo in the Merger will be
subject to the limited registration rights described
herein and the Shareholder agrees to the terms hereof.
Such rights shall be personal to the Shareholder and
shall automatically terminate with respect to any shares
of OSI Common Stock which the Shareholder assigns or
transfers, upon attachment or seizure by or for the
benefit of any creditors of the Shareholder, 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.
(ix) The Shareholder 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.
(x) The Shareholder will provide such
information as may be requested by OSI in order for OSI
to determine if such Shareholder is an accredited
investor for purposes of Regulation D promulgated under
the Securities Act of 1933, as amended.
6.5 Payment of Liabilities. NSC and Grappo
covenant and agree that all debts and liabilities of NSC
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 NSC specified in Item 11.2 of the
Disclosure Schedules.
6.6 Pooling. At the Closing Date, Grappo shall
obtain and deliver to Outback and OSI the written
agreement of each Shareholder, that until such time as
financial results of OSI covering at least thirty (30)
days of combined operations of OSI and NSC subsequent to
the Effective Date have been published, he will not sell
or otherwise dispose of any shares of OSI Common Stock
held by him as of the Effective Date or any of such
shares thereafter acquired by him at any time or from
time to time prior to the date of such publication. OSI
shall give instructions to its transfer agent and
registrar, Bank of New York, Inc., with respect to the
shares of OSI Common Stock issued pursuant to the Merger,
to the effect that no transfer of such shares shall be
effected until the date on which the requisite financial
results have been published and OSI and the transfer
agent may take any action, including placing an
appropriate legend on the certificates, they deem
necessary to enforce this provision. OSI shall use its
best efforts to publish such financial results on or
before August 15, 1996.
6.7 Agreement of Shareholders. At the Closing
each Shareholder shall deliver to Outback the
Shareholder's written agreement whereby the Shareholder:
(a) agrees to waive any right of first refusal
or other option to purchase shares of NSC; and
(b) agrees to maintain the confidentiality of
all information regarding the Outback Steakhouse System;
and
(c) agrees not to solicit any employees of
Outback, its franchisees or affiliates; and
(d) agrees not to compete with Outback in the
casual dining restaurant business for a period of two
years following the Closing Date, except as otherwise may
be agreed by Outback in writing.
(e) makes representations and warranties to
Outback and OSI, and covenants and agreements, identical
to those provided for in Section 3.7 and Section 6.4; and
(f) acknowledges that the number of shares of
OSI Common Stock to be received by NSC has been
determined by mutual agreement of NSC, Outback and OSI
without arm's-length negotiations between Outback and
Shareholders (other than Grappo) or between OSI and the
Shareholders (other than Grappo).
ARTICLE 7
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and
agree with NSC and Grappo as follows:
7.1 Mandatory Registration of OSI Common Stock.
(a) The Shareholders, by vote of the
Shareholders who own a majority of the OSI Common Stock
received by all of the Shareholders pursuant to the
Merger, shall have the right to require OSI, by written
notice to OSI at any time after September 1, 1996 and
prior to September 15, 1996 to use its best efforts to
cause a registration, qualification or compliance under
any federal or state securities laws to be effected not
later than October 15, 1996, with respect to all or any
portion of the OSI Common Stock then held by the
Shareholders 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, allocated among the Shareholders
pro rata based on the number of shares of OSI Common
Stock received by each of the Shareholders pursuant to
the Merger, but reduced as to the Shareholders by the
number of shares of such OSI Common Stock sold or
transferred by such Shareholders other than pursuant to
the provisions of this Section 7.1, and subject to the
further limitation contained in Section 7.3 hereof.
(b) The Shareholders, by vote of the
Shareholders who own a majority of the OSI Common Stock
received by all of the Shareholders pursuant to the
Merger, shall have the right to require OSI, by written
notice to OSI at any time after April 1, 1997 and prior
to April 15, 1997 to use its best efforts to cause a
registration, qualification or compliance under any
federal or state securities laws to be effected not later
than May 15, 1997, with respect to all or any portion of
the OSI Common Stock then held by the Shareholders 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 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(b) 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, allocated among the
Shareholders pro rata based on the number of shares of
OSI Common Stock received by each of the Shareholders
pursuant to the Merger, but reduced as to the
Shareholders by the number of shares of such OSI Common
Stock sold or transferred by such Shareholders other than
pursuant to the provisions of this Section 7.1, and
subject to the further limitation contained in Section
7.3 hereof.
(c) 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 the Shareholders 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.
(d) 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 the
Shareholders and Partners holding the Registrable Shares
written notice of such determination containing a general
statement of the reasons for such postponement and an
approximation of the anticipated delay; provided,
however, that the aggregate number of days included in
all Blackout Periods during any consecutive twelve (12)
months during the shall not exceed one hundred eight
(180) days; and provided, further, however, that a period
of at least forty-five (45) days shall elapse between the
termination of any Blackout Period and the commencement
of the immediately succeeding Blackout Period. If OSI
shall so postpone the filing of a registration statement
the Shareholders and the Partners holding the Registrable
Shares shall have the right to withdraw the request for
registration by giving written notice from the holders of
a majority of the Registrable Shares 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.
(e) 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 two years
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.
7.2 Piggy-Back Registrations; Notice of
Requested Registration. If OSI shall at any time after
the Closing Date determine to register any of its
securities under the Act, other than by way of Securities
and Exchange Commission Forms S-4 or S-8 or any successor
form thereto or to qualify such securities under the
securities laws of any state, which registration or
qualification involves securities to be sold by OSI, OSI,
at its own initiative, will give prompt written notice
thereof to each of the Shareholders. If so requested in
writing by any of the Shareholders to which such notice
shall have been properly provided, OSI will include among
the securities which it then endeavors to register under
the Act or to qualify under such state securities laws
all or any part of such shares of OSI Common Stock issued
pursuant to the Merger and owned by a Shareholder as
shall be specified in such request (hereinafter the
"Designated Shares"); provided, however, that (i) the
total number of Designated Shares which the Shareholder
shall have the right to request to be included in any one
registration under this Section 7.2 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, and (ii) the cumulative total number of
Designated Shares which the Shareholders shall have the
right to request to be included in all registrations
under this Section 7.2 shall be a number of shares equal
to fifty percent (50%) of the total number of shares of
OSI Common Stock issued pursuant to the Merger, in each
case allocated among the Shareholders pro rata based on
the number of shares of OSI Common Stock received by each
of the Shareholders pursuant to the Merger, but in each
case reduced as to each of the Shareholders by the number
of shares of such OSI Common Stock sold or transferred by
such Shareholder other than pursuant to the provisions of
Section 7.1 and this Section 7.2 and subject to the
further limitations contained in Section 7.3 hereof; and
provided, further, however, that the number of Designated
Shares to be included in such registration shall be
subject, in the case of an underwritten offering, to the
approval of the managing underwriters; and OSI will use
its best efforts to cause all such registrations,
qualifications or compliances to be effected and to be
kept effective as provided in Section 7.4.
Notwithstanding the foregoing, OSI shall not be
required by this Section 7.2 to register Designated
Shares under the Securities Act or under any state
securities law (1) at any time after the date two years
after the Effective Date (or such later 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
extended), 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,
or (2) if, in the opinion of counsel for OSI (which
opinion shall also be addressed to the holder requesting
registration of Designated Shares), the proposed public
offering or transfer of the number of Designated Shares,
as to which registration is requested, is exempt from the
registration provisions of the Securities Act and the
securities laws of the states in which the Designated
Shares are to be sold or transferred and the Designated
Shares would not constitute restricted securities in the
hands of the purchaser or transferee.
7.3 Additional Limitations.
(a) Once OSI shall have fully complied with one
registration under Section 7.1 OSI shall have no further
obligations under the provisions of Section 7.1. Once
OSI shall have fully complied with one registration under
Section 7.2, OSI shall have no further obligations under
the provisions of Section 7.2.
(b) Notwithstanding any contrary provision of
this Agreement, the cumulative total number of
Registrable Shares and Designated Shares which the
shareholders shall have the right to sell under all
provisions of this Article 7 shall be limited to a number
of shares equal to fifty percent (50%) of the total
number of shares of OSI Common Stock issued pursuant to
the Merger, allocated to each of the Shareholders pro
rata based on the number of shares of OSI Common Stock
received by each of the Shareholders pursuant to the
Merger; provided, however, said cumulative total number
of Registrable Shares and Designated Shares, and an
Shareholder's allocated portion thereof, shall be reduced
by the number of shares of OSI Common Stock sold or
transferred by Shareholder other than pursuant to the
provisions of Section 7.1 or Section 7.2.
(c) Additionally, OSI will not be obligated
under this Agreement to file or cause to become effective
any registration statement within a period of six (6)
months after the effective date of any previous
registration statement filed by OSI with respect to which
the Shareholders were given the opportunity to include
therein all OSI Common Stock which they requested to be
included therein. OSI may include, on its own behalf, in
the registration statement filed pursuant to a request
under Section 7.1, previously authorized but unissued
shares of OSI's Common Stock or other previously
authorized but unissued securities, and may include
shares owned by other shareholders.
7.4 Registration Procedures. In the case of
each registration, qualification or compliance effected
by OSI pursuant to Section 7.1 or Section 7.2, OSI will:
(a) keep each holder of Registrable Shares and
Designated 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
and Designated 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. In the case of each
registration effected by OSI involving an underwritten
public offering, OSI, if requested by the holders of
Designated Shares, will request the managing
underwriter(s) of such offering to include the securities
to be offered and sold by such holders among those to be
distributed by the underwriter(s).
Notwithstanding the foregoing, if at any time after
the date hereof OSI registers any of its securities in
connection with a bona fide underwritten public offering
of the same, then (a) any Designated Shares which shall
have been registered under the Act for future sale or
which are, in connection with such registration, being
registered pursuant to Section 7.2, shall, if so
requested by the managing underwriter(s), be offered for
sale through the underwriters on the same terms and
conditions under which OSI's securities are to be
distributed; provided, however, that if the managing
underwriter(s) elect to include less than all the
Designated Shares to be offered by the Shareholders and
all other shares offered by selling shareholders other
than OSI, then the Designated Shares of the Shareholders
and the shares of all other selling shareholders other
than OSI shall first be eliminated (with any elimination
of less than all on a pro rata basis in accordance with
the number of shares proposed to be registered by each
such person) before any securities of OSI are eliminated,
(b) those Designated Shares which are not being
distributed by the underwriters in such public offering
shall be withheld from the market by the Shareholders for
a period, not to exceed 180 days, measured from the
effective date of the registration statement by which
such public offering is being effected which the managing
underwriter(s) determine necessary in order to stabilize
the market for the underwritten shares.
7.5 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, but each
holder of Designated Shares shall be responsible for that
portion of any underwriting commission or discount
incurred in connection with the underwritten distribution
of the securities made the subject of such registration
effort as shall bear the same ratio to such commission as
the value of the Designated Shares sold by the holder in
the offering bears to the value of all OSI securities
sold in the same transaction and each holder of
Designated Shares shall be responsible for all fees and
disbursements of counsel retained by such holders to
provide necessary opinions or otherwise.
7.6 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 and/or Designated Shares, the number of
Registrable Shares or Designated Shares shall be adjusted
to accurately reflect such change.
7.7 Transferees. The rights of the Shareholders
under Section 7.1 and Section 7.2 are personal to each of
the Shareholders and shall not inure to the benefit of
any other Shareholder nor any transferees or assignees of
an Shareholder's 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.
7.8 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.
7.9 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 Grappo from any loss or liability therefor.
Outback shall also pay all current liabilities of the
Partnership (subject to reimbursement to Outback under
Section 5.3) and all obligations under contracts assumed
by Outback as same become due.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of
NSC, Grappo, 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. NSC, 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 NSC 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 NSC 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 NSC for which shareholders have
exercised appraisal or dissenters' rights under
applicable law shall be a number which, in the sole and
absolute discretion of OSI, does not jeopardize the
financial reporting and accounting treatment of the
Merger specified in Section 1.12 or is otherwise not
contrary to the best interests of Outback or OSI.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF NSC
The obligations of NSC and Grappo 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 NSC and Grappo
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.
9.4 Certificates. NSC and Grappo shall have
received a certificate or certificates, executed on
behalf of OSI by the President or the Senior Vice
President-Chief Financial Officer of OSI, to the effect
that the conditions contained in Section 8.1 and Section
8.2 hereof with respect to matters therein relating to
OSI and in Section 9.1, Section 9.2 and Section 9.3
hereof, have been satisfied.
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. NSC and Grappo 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 NSC and/or Grappo
in this Agreement, the Disclosure Schedule, and in all
certificates and other documents delivered by NSC or
Grappo 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 NSC as of
April 30, 1996, for the month then ended.
10.4 Material Adverse Changes. Since December
31, 1995, there shall have occurred no material adverse
change in the business, properties, assets, liabilities,
results of operations or condition, financial or
otherwise, of NSC or the Partnership.
10.5 Pooling. OSI shall have received a letter
from Deloitte & Touche, in form and substance
satisfactory to OSI and dated not more than five days
prior to the Closing Date, to the effect that the Merger
shall qualify as a pooling of interests for financial
reporting purposes.
10.6 Certificates. OSI shall have received a
certificate or certificates, executed on behalf of NSC
and Grappo to the effect that the conditions in Section
8.1 and Section 8.2 with respect to matters therein
relating to NSC, and/or Grappo, and Section 10.1, Section
10.2, and Section 10.4 hereof, have been satisfied.
10.7 Shareholders. OSI shall have received an
agreement satisfying the requirements of Section 6.4 and
Section 6.7 hereof by each Shareholder.
ARTICLE 11
INDEMNIFICATION
Grappo, 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 each Shareholder participating in a
registration pursuant to Section 7.1 or Section 7.2:
(a) OSI shall indemnify, to the extent permitted
by law, the Shareholders 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 the Shareholders for use therein or
by the failure of a Shareholder to deliver a copy of the
registration statement or prospectus or any amendments or
supplements thereto after OSI has furnished the
Shareholders 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 and
Section 7.2 hereof, each of the Shareholders, 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 Shareholder for inclusion
in the registration statement except that the
Shareholders 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 and
Section 11.6 hereof, Grappo shall indemnify and hold
harmless OSI, Outback and NSC, and OSI, Outback and NSC,
jointly and severally, shall indemnify and hold harmless
Grappo, 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, Grappo shall indemnify
OSI, Outback and NSC, as provided in the first paragraph
of this Section 11.2, against any loss, claim, damage or
liability arising out of (i) any tax liability of NSC for
any period prior to and including the Effective Date and
(ii) any debt of NSC or the Partnership (other than the
debts specified in Item 11.2 of the Disclosure Schedule
to the extent assumed by OSF), and (iii) all claims,
obligations, causes of action and liabilities, of
whatever kind or character, of any of NSC 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. Grappo shall have no
obligation under Section 11.2 to indemnify OSI, Outback
or NSC 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 NSC and
the Partnership 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 NSC:
(a) by mutual consent of NSC and OSI;
(b) by OSI if there has been a material
misrepresentation or breach of warranty in the
representations and warranties of NSC or Grappo set forth
herein or if there has been any material failure on the
part of NSC or Grappo to comply with their obligations
hereunder;
(c) by NSC 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, NSC or Grappo, if the
transactions contemplated by this Agreement have not been
consummated by May 15, 1996, 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, NSC or Grappo 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 NSC, Grappo 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 Grappo 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 NSC's federal income tax return for the period
including the Effective Date.
12.5 Counterparts. This Agreement may be
executed in any number of identical counterparts, each of
which when so executed and delivered shall be deemed an
original and such counterparts together shall constitute
only one original.
12.6 Notices. All notices, demands, requests or
other communications that may be or are required to be
given, served or sent by any party to any other party
pursuant to this Agreement shall be in writing and shall
be mailed by registered or certified mail, return receipt
requested, postage prepaid or transmitted by hand
delivery, recognized national overnight delivery service,
telegram or telex, addressed as follows:
If to NSC or Grappo: NEVADA SUMMIT CORPORATION
0000 Xxxxx Xxxxxx Xxxx, Xxxxx X-000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to: XXXXXX X. XXXXXXX, ESQUIRE
Xxxxxx, O'Reilly & Xxxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
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.
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: President
"Outback"
Attest: OUTBACK STEAKHOUSE OF
FLORIDA, INC., a Florida
corporation
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXX XXXXXX X. XXXXXX
Title: Secretary Title: President
"Grappo"
/s/ Xxxxxxx X. Xxxxxx
XXXXXXX X. XXXXXX
"NSC"
NEVADA SUMMIT CORPORATION
a Nevada corporation
By: /s/Xxxxxxx X. Xxxxxx
XXXXXXX X. XXXXXX
Title: President
