Agreement and Plan of Reorganization - Outback Steakhouse Inc., Outback Steakhouse of Florida Inc., A&J Aussie Restaurant Group Inc. and Ronald S. Duckstein
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.,
OUTBACK STEAKHOUSE OF FLORIDA, INC.,
A&J AUSSIE RESTAURANT GROUP, INC.
AND
RONALD S. DUCKSTEIN
<PAGE> 2
TABLE OF CONTENTS
<CAPTION>
PAGE
----
ARTICLE 1 - PLAN OF ACQUISITION................................................2
1.1 The Merger............................................................2
1.2 Adjustments...........................................................2
1.3 Closing...............................................................2
1.4 Execution and Delivery of Closing Documents...........................3
1.5 Execution and Filing of Merger Documents..............................3
1.6 Effectiveness of Merger...............................................3
1.7 Further Assurances....................................................3
1.8 Certificates..........................................................3
1.9 Closing of Transfer Books.............................................3
1.10 Fractional Shares.....................................................4
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF A&J AUSSIE RESTAURANT
GROUP, INC. AND DUCKSTEIN......................................................4
2.1 Organization and Good Standing........................................4
2.2 Power and Authority...................................................4
2.3 Foreign Corporation...................................................4
2.4 Authority and Validity................................................4
2.5 Binding Effect........................................................4
2.6 Compliance with Other Instruments.....................................5
2.7 Capitalization of A&J AUSSIE RESTAURANT GROUP, INC....................5
2.8 Absence of Certain Changes............................................5
2.9 Tax Liabilities.......................................................6
2.10 No Undisclosed Liabilities............................................7
2.11 Title to Properties...................................................7
2.12 Contracts.............................................................7
2.13 Litigation and Government Claims......................................8
2.14 No Violation of Any Instrument........................................8
2.15 Necessary Approvals and Consents......................................8
2.16 Compliance With Laws..................................................8
2.17 Accuracy of Information Furnished.....................................9
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF DUCKSTEIN........................9
3.1 Authority and Validity................................................9
3.2 Binding Effect........................................................9
3.3 Ownership.............................................................9
3.4 Voting................................................................9
3.5 Residency.............................................................9
3.6 Compliance with Other Instruments.....................................9
i
<PAGE> 3
TABLE OF CONTENTS (CONTINUED)
<CAPTION>
PAGE
----
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK .................10
4.1 Organization and Good Standing........................................10
4.2 Foreign Qualification.................................................10
4.3 Power and Authority...................................................10
4.4 Authority and Validity................................................10
4.5 Binding Effect........................................................10
4.6 Compliance with Other Instruments.....................................10
4.7 Capitalization of OSI.................................................11
4.8 SEC Reports...........................................................11
4.9 Litigation and Government Claims......................................11
4.10 Necessary Approvals and Consents......................................11
4.11 Absence of Certain Changes or Events..................................12
ARTICLE 5 - JOINT COVENANTS OF A&J AUSSIE RESTAURANT GROUP, INC., DUCKSTEIN,
OSI AND OUTBACK................................................................12
5.1 Notice of any Material Change.........................................12
5.2 Cooperation...........................................................12
5.3 Post-Closing Adjustment...............................................13
5.4 Distribution and Allocations..........................................13
5.5 Additional Agreements.................................................13
ARTICLE 6 - COVENANTS OF A&J AUSSIE RESTAURANT GROUP, INC. AND DUCKSTEIN.......14
6.1 Securities Law Compliance.............................................14
6.2 Payment of Liabilities................................................16
ARTICLE 7 - COVENANTS OF OSI AND OUTBACK.......................................16
7.1 Employment Agreements.................................................16
7.2 Assumed Liabilities...................................................16
ARTICLE 8 - JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS..................16
8.1 Consents to Transaction...............................................16
8.2 Absence of Litigation.................................................17
8.3 Dissenter's Rights....................................................17
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS OF A&J AUSSIE RESTAURANT
GROUP, INC.....................................................................17
9.1 Compliance............................................................17
9.2 Representations and Warranties........................................17
9.3 Material Adverse Changes..............................................17
ARTICLE 10 - CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND
OUTBACK...............................................................18
10.1 Compliance............................................................18
10.2 Representations and Warranties........................................18
10.3 Current Financial Status..............................................18
10.4 Material Adverse Changes..............................................18
ii
<PAGE> 4
TABLE OF CONTENTS
<CAPTION>
PAGE
----
ARTICLE 11 - INDEMNIFICATION...................................................18
11.1 Indemnification Based on Agreement....................................18
11.2 Limitation............................................................19
11.3 Cooperation...........................................................19
11.4 Notice................................................................19
ARTICLE 12 - MISCELLANEOUS.....................................................19
12.1 Termination...........................................................19
12.2 Expenses..............................................................20
12.3 Entire Agreement......................................................20
12.4 Survival of Representations and Warranties............................20
12.5 Counterparts..........................................................21
12.6 Notices...............................................................21
12.7 Successors and Assigns................................................21
12.8 Governing Law.........................................................21
12.9 Waiver and Other Action...............................................21
12.10 Severability..........................................................21
12.11 Headings..............................................................21
12.12 Construction..........................................................21
12.13 Jurisdiction and Venue................................................21
12.14 Enforcement...........................................................21
12.15 Further Assurances....................................................21
12.16 Equitable Remedies....................................................21
EXHIBIT A
ARTICLES OF MERGER.............................................................A-1
EXHIBIT B
DISCLOSURE SCHEDULES...........................................................B-1
iii
<PAGE> 5
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made
and entered effective as of September 30, 2000, by and among OUTBACK
STEAKHOUSE, INC., a Delaware corporation ("OSI"), OUTBACK STEAKHOUSE OF
FLORIDA, INC., a Florida corporation ("Outback"), A&J AUSSIE RESTAURANT GROUP,
INC., a New York corporation ("A&J AUSSIE RESTAURANT GROUP, INC."), and RONALD
S. DUCKSTEIN, an individual residing in the State of New York ("DUCKSTEIN").
W I T N E S S E T H:
WHEREAS, Outback is a wholly-owned subsidiary of OSI; and
WHEREAS, DUCKSTEIN is the sole owner of the issued and outstanding
common stock of A&J AUSSIE RESTAURANT GROUP, INC., and DUCKSTEIN is the sole
director, President and is responsible for the day-to-day operations of A&J
AUSSIE RESTAURANT GROUP, INC.; and
WHEREAS, Outback and A&J AUSSIE RESTAURANT GROUP, INC. have entered
into that certain Florida limited partnership known as Outback/Metropolis-I,
Limited Partnership ("Partnership");
WHEREAS, the Partnership operates Outback Steakhouse(R)restaurants in
the State of New York; and
WHEREAS, the Board of Directors of A&J AUSSIE RESTAURANT GROUP, INC.
has approved the merger of A&J AUSSIE RESTAURANT GROUP, INC. into Outback (the
"Merger") upon the terms and conditions set forth in this Agreement; and
WHEREAS, for federal income tax purposes it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, pursuant to the Merger, A&J AUSSIE RESTAURANT GROUP, INC.
will be merged with and into Outback and all of the outstanding shares of
capital stock of A&J AUSSIE RESTAURANT GROUP, INC. will be converted into
shares of common stock, par value $.01, of OSI (the "OSI Common Stock"); and
WHEREAS, the parties hereto desire by this Agreement to set forth the
terms and conditions upon which they are willing to consummate the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto covenant and
agree as follows:
1
<PAGE> 6
ARTICLE 1
PLAN OF ACQUISITION
1.1 THE MERGER. Subject to and upon the terms and conditions contained
herein, A&J AUSSIE RESTAURANT GROUP, INC. 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 A&J AUSSIE RESTAURANT GROUP, INC. prior to the Merger. As a
result of the Merger, each voting and nonvoting common share of A&J AUSSIE
RESTAURANT GROUP, INC. outstanding immediately before the Effective Date (as
herein defined) shall, by virtue of the Merger and without any further action
being required by the holders thereof, be converted into and exchanged for
2,775 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 One Hundred Thirty-eight Thousand Seven Hundred Fifty
(138,750).
(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 A&J AUSSIE RESTAURANT GROUP, INC. shall have
been changed into a different number of shares or a different class by
reason of any reclassification, recapitalization, split-up,
combination, exchange of shares, or readjustment, with a record date
within such period, or a stock dividend thereon shall be declared with
a record date within such period or (ii) A&J AUSSIE RESTAURANT GROUP,
INC. shall have issued additional shares of its capital stock, the
number of shares of OSI Common Stock received in exchange for each
share of A&J AUSSIE RESTAURANT GROUP, INC.'s capital stock shall be
adjusted so that the aggregate number of shares of OSI Common Stock
received in exchange for all shares of A&J AUSSIE RESTAURANT GROUP,
INC.'s capital stock (assuming no Dissenting Shares) remains at One
Hundred Thirty-eight Thousand Seven Hundred Fifty (138,750).
(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 A&J AUSSIE RESTAURANT GROUP, INC.
(as specified in SECTION 1.1 hereof) shall be adjusted to accurately
reflect such change.
1.3 CLOSING. The closing of the transactions contemplated by this
Agreement, including the Merger (the "Closing"), shall take place at 10:00
a.m., Tampa time, at the offices of Outback on September 30, 2000, or on such
date and at such other time and place as is agreed upon by the parties hereto.
The day on which the Closing occurs is herein referred to as the "Closing
Date". If any of the conditions to the obligations of the parties to this
Agreement have not been satisfied or waived by the Closing Date, then the party
to this Agreement that is unable to meet such condition or conditions shall be
entitled to postpone the Closing by written notice to the other parties until
such condition shall have been satisfied (which such party shall seek to cause
to happen at the earliest practicable date) or waived, but the Closing shall
occur not later than March 30, 2001, unless further extended by written
agreement of the parties to this Agreement. The parties shall use their best
efforts to effectuate a timely closing as provided in this SECTION 1.3.
2
<PAGE> 7
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, A&J AUSSIE RESTAURANT GROUP, INC. and
DUCKSTEIN 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 New York and a Certificate of Merger to be issued by
each such officer.
1.6 EFFECTIVENESS OF MERGER. The Merger shall become effective under
the laws of Florida upon filing of the Articles of Merger with the Secretary of
State of the State of Florida and the Secretary of State of the State of New
York (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 New York pursuant to the
provisions of Sections 607.1101-607.1107 of the Florida Business Corporation
Act (the "Florida Act") and the laws of the State of New York ("New York 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 A&J AUSSIE RESTAURANT GROUP, INC. as existed
immediately before the Effective Date.
1.8 CERTIFICATES. As soon as practicable after the Effective Date, OSI
shall make available and each holder of capital stock of A&J AUSSIE RESTAURANT
GROUP, INC. shall be entitled to receive upon surrender of stock certificates
of A&J AUSSIE RESTAURANT GROUP, INC. representing A&J AUSSIE RESTAURANT GROUP,
INC. capital stock for cancellation, certificates representing the number of
shares of OSI Common Stock into which such shares are converted in the Merger
as provided in SECTION 1.1 hereof. The OSI Common Stock into which such A&J
AUSSIE RESTAURANT GROUP, INC. capital stock is converted shall be deemed issued
at the Effective Date.
1.9 CLOSING OF TRANSFER BOOKS. At the Closing Date, the stock transfer
books of A&J AUSSIE RESTAURANT GROUP, INC. shall be closed and no transfer of
capital stock of A&J AUSSIE RESTAURANT GROUP, INC., shall thereafter be made.
3
<PAGE> 8
1.10 FRACTIONAL SHARES. No fractional shares of OSI Common Stock and
no certificates or scrip therefor shall be issued. Instead, one whole share of
OSI Common Stock shall be issued for each fractional share of .5 or more of one
whole share and each fractional share of less than .5 of one whole share shall
be disregarded.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF A&J AUSSIE
RESTAURANT GROUP, INC. AND DUCKSTEIN
Each of A&J AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN, jointly and
severally, represent and warrant to OSI and Outback as follows:
2.1 ORGANIZATION AND GOOD STANDING. A&J AUSSIE RESTAURANT GROUP, INC.
is a corporation duly organized, validly existing and in good standing under
the laws of the State of New York.
2.2 POWER AND AUTHORITY. A&J AUSSIE RESTAURANT GROUP, INC. has the
requisite power and authority and all material licenses and permits required by
governmental authorities to own, lease and operate its properties and assets
and to carry on its businesses as currently being conducted.
2.3 FOREIGN CORPORATION. A&J AUSSIE RESTAURANT GROUP, INC. is duly
qualified or licensed to do business and in good standing as a foreign
corporation in every jurisdiction where the failure to so qualify could have a
material adverse effect on its respective business, operations, assets or
financial condition.
2.4 AUTHORITY AND VALIDITY.
(a) A&J AUSSIE RESTAURANT GROUP, INC. has the corporate power
and authority to execute, deliver and perform its obligations under
this Agreement, the Merger Agreement and the other documents executed
or to be executed by A&J AUSSIE RESTAURANT GROUP, INC. in connection
with this Agreement; and the execution, delivery and performance by
A&J AUSSIE RESTAURANT GROUP, INC. of this Agreement, the Merger
Agreement and the other documents executed or to be executed by A&J
AUSSIE RESTAURANT GROUP, INC. in connection with this Agreement have
been duly authorized by all necessary corporate action. The execution,
delivery and performance by A&J AUSSIE RESTAURANT GROUP, INC. of this
Agreement, the Merger Agreement and any other documents executed or to
be executed in connection with this Agreement and the consummation of
the transactions provided for herein have been duly authorized and
approved by the board of directors and shareholders of A&J AUSSIE
RESTAURANT GROUP, INC. as required under the laws of the State of New
York and A&J AUSSIE RESTAURANT GROUP, INC.'s corporate governance
documents.
(b) DUCKSTEIN 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 DUCKSTEIN in connection with
this Agreement.
2.5 BINDING EFFECT. This Agreement, the Merger Agreement and the other
documents executed or to be executed by A&J AUSSIE RESTAURANT GROUP, INC. and
DUCKSTEIN in connection with this Agreement have been or will have been duly
executed and delivered by A&J AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN, and
4
<PAGE> 9
are or will be, when executed and delivered, the legal, valid and binding
obligations of each of A&J AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN
enforceable in accordance with their terms except that:
(a) enforceability may be limited by bankruptcy, insolvency
or other similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited by
equitable principles of general applicability.
2.6 COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution and
delivery by A&J AUSSIE RESTAURANT GROUP, INC. nor DUCKSTEIN 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 A&J AUSSIE RESTAURANT GROUP, INC. or
DUCKSTEIN pursuant to, its certificate of incorporation, bylaws, partnership
agreement, operating agreement or other charter or governance document, or any
note, bond, indenture, mortgage, deed of trust, evidence of indebtedness, loan
or lease agreement, other agreement or instrument (including with customers),
judgment, order, injunction or decree by which A&J AUSSIE RESTAURANT GROUP,
INC. or DUCKSTEIN is bound, to which either of them is a party, or to which any
assets of either of them are subject; PROVIDED, HOWEVER, this SECTION 2.5 shall
not apply with respect to any of the foregoing if A&J AUSSIE RESTAURANT GROUP,
INC. is bound thereby, a party thereto, or its assets subject, solely by reason
of its status as a partner in the Partnership.
2.7 CAPITALIZATION OF A&J AUSSIE RESTAURANT GROUP, INC..
(a) The authorized capital stock of A&J AUSSIE RESTAURANT
GROUP, INC. consists of Two Hundred (200) common shares. There are
fifty (50) common shares issued and outstanding, all of which are
owned by DUCKSTEIN. There are no other shareholders of A&J AUSSIE
RESTAURANT GROUP, INC. and no other persons with rights or options to
acquire capital stock of A&J AUSSIE RESTAURANT GROUP, INC. All of the
issued and outstanding shares of capital stock of A&J AUSSIE
RESTAURANT GROUP, INC. have been duly authorized and validly issued
and are fully paid and nonassessable. There are no shares of capital
stock of A&J AUSSIE RESTAURANT GROUP, INC. held in its treasury.
(b) There are no voting trusts, shareholder agreements or
other voting arrangements to which the shareholder of A&J AUSSIE
RESTAURANT GROUP, INC. is a party.
(c) There is no outstanding subscription, contract,
convertible or exchangeable security, option, warrant, call or other
right obligating A&J AUSSIE RESTAURANT GROUP, INC. to issue, sell,
exchange or otherwise dispose of, or to purchase, redeem or otherwise
acquire, shares of, or securities convertible into or exchangeable
for, capital stock of A&J AUSSIE RESTAURANT GROUP, INC..
2.8 ABSENCE OF CERTAIN CHANGES. From December 31, 1999 to the Closing
Date, (except solely as a result of A&J AUSSIE RESTAURANT GROUP, INC.'s status
as a partner in the Partnership) A&J AUSSIE RESTAURANT GROUP, INC. has not:
5
<PAGE> 10
(a) suffered any material adverse change in its business,
results of operations, working capital, assets, liabilities, or
condition (financial or otherwise) or the manner of conducting its
business;
(b) suffered any material damage or destruction to or loss of
its assets not covered by insurance, or any loss of suppliers or
employees;
(c) acquired or disposed of any asset, or incurred, assumed,
guaranteed, endorsed, paid or discharged any indebtedness, liability
or obligation, or subjected or permitted to be subjected any material
amount of assets to any lien, claim or encumbrance of any kind, except
in the ordinary course of business or pursuant to agreements in force
at the date of this Agreement and identified in Item 2.8(c) of the
Disclosure Schedules;
(d) forgiven, compromised, canceled, released, waived or
permitted to lapse any material rights or claims;
(e) entered into or terminated any lease, agreement,
commitment or transaction, or agreed to or made any changes in any
leases or agreements, other than transactions and commitments entered
into in the ordinary course of business;
(f) written up, written down or written off the book value of
any assets;
(g) declared, paid or set aside for payment any dividend or
distribution with respect to its capital stock;
(h) redeemed, purchased or otherwise acquired, or sold,
granted or otherwise disposed of, directly or indirectly, any of its
capital stock or securities or any rights to acquire such capital
stock or securities, or agreed to changes in the terms and conditions
of any such rights outstanding as of the date of this Agreement;
(i) except in the ordinary course of business, increased the
compensation of any employee or paid any bonuses to any employee or
contributed to any employee benefit plan;
(j) entered into any employment, consulting, compensation or
collective bargaining agreement with any person or group, except oral
employment agreements which can be terminated at will; or
(k) entered into, adopted or amended any employee benefit
plan or severance agreements.
2.9 TAX LIABILITIES. A&J AUSSIE RESTAURANT GROUP, INC. has filed all
federal, state, county, local and foreign tax returns and reports required to
be filed by them by the date hereof, including those with respect to income,
payroll, property, withholding, social security, unemployment, franchise,
excise and sales taxes; A&J AUSSIE RESTAURANT GROUP, INC. has either paid in
full all taxes that have become due as reflected on any return or report and
any interest and penalties with respect thereto or have fully accrued on their
books or have established adequate reserves for all taxes payable but not yet
due; and have made cash deposits with appropriate governmental authorities
representing estimated payments of taxes, including income taxes and employee
6
<PAGE> 11
withholding tax obligations. No extension or waiver of any statute of
limitations or time within which to file any return has been granted to A&J
AUSSIE RESTAURANT GROUP, INC. with respect to any tax. No unsatisfied
deficiency, delinquency or default for any tax, assessment or governmental
charge has been claimed, proposed or assessed against A&J AUSSIE RESTAURANT
GROUP, INC. nor has A&J AUSSIE RESTAURANT GROUP, INC. received notice of any
such deficiency, delinquency or default. A&J AUSSIE RESTAURANT GROUP, INC. has
no reason to believe that A&J AUSSIE RESTAURANT GROUP, INC. has or may have any
tax liabilities other than those reflected on the unaudited balance sheet of
A&J AUSSIE RESTAURANT GROUP, INC. as of December 31, 1999, with any notes
thereto, and the related unaudited statements of income for the twelve months
ended December 31, 1999, together with supplemental information on A&J AUSSIE
RESTAURANT GROUP, INC., each prepared and attested to by the chief financial
officer of A&J AUSSIE RESTAURANT GROUP, INC. (the "Balance Sheets") and those
arising in the ordinary course of business since the date thereof. With regard
to the foregoing, A&J AUSSIE RESTAURANT GROUP, INC. has relied on the accuracy
and completeness of the Schedule K-1 provided by the Partnership.
DUCKSTEIN shall have sole responsibility for filing all required tax
returns for A&J AUSSIE RESTAURANT GROUP, INC. OSI shall assist DUCKSTEIN in
preparing income tax returns and shall cooperate with DUCKSTEIN to the extent
necessary therefor, and DUCKSTEIN shall provide OSI with copies of all such
returns at least fifteen (15) days prior to filing.
2.10 NO UNDISCLOSED LIABILITIES. There are no liabilities or
obligations of A&J AUSSIE RESTAURANT GROUP, INC. (other than material
liabilities arising solely by reason of A&J AUSSIE RESTAURANT GROUP, INC.'s
status as a partner in the Partnership) of any nature, whether absolute,
accrued, contingent or otherwise, other than liabilities or obligations
indicated in Items 2.10(a) and 2.10(b) of the Disclosure Schedules.
2.11 TITLE TO PROPERTIES. A&J AUSSIE RESTAURANT GROUP, INC. has good
and marketable title to the assets reflected in its books and records as being
owned by it, (except as they have since been affected by transactions in the
ordinary course of business and consistent with past practices) the real and
personal properties reflected in the Balance Sheets (except for assets subject
to financing leases required to be capitalized under generally accepted
accounting principles, all of which are so reflected in the Balance Sheet or
notes thereto) and all assets purchased by A&J AUSSIE RESTAURANT GROUP, INC.
since the date of the Balance Sheet, in each case free and clear of any lien,
claim or encumbrance, except as reflected in the Balance Sheet or notes thereto
and in Item 2.11 of the Disclosure Schedule and except for liens for taxes,
assessments or other governmental charges not yet due and payable.
Except for those assets acquired since the date of the Balance Sheets,
all material properties and assets owned by A&J AUSSIE RESTAURANT GROUP, INC.
are properly reflected on the applicable Balance Sheets and notes thereto.
2.12 CONTRACTS. Excluding (i) contracts and commitments between
Outback or OSI and A&J AUSSIE RESTAURANT GROUP, INC. or the Partnership, (ii)
contracts and commitments entered into by the Partnership to which Outback or
OSI is a party, (iii) contracts and commitments entered into by A&J AUSSIE
RESTAURANT GROUP, INC. in the ordinary course of the Partnership's business
without violation of the provisions of the Partnership Agreement, and (iv)
contracts and commitments entered into with the written consent of OSI or
Outback, Item 2.12 of the Disclosure Schedule is a complete and accurate list
7
<PAGE> 12
of all of the contracts and commitments (including summaries of oral contracts)
to which A&J AUSSIE RESTAURANT GROUP, INC. is a party or by which A&J AUSSIE
RESTAURANT GROUP, INC. is bound:
2.13 LITIGATION AND GOVERNMENT CLAIMS. Except as indicated in Item
2.13 of the Disclosure Schedule, there is no pending suit, claim, action or
litigation or administrative, arbitration or other proceeding or governmental
investigation or inquiry against A&J AUSSIE RESTAURANT GROUP, INC. or the
Partnership or to which any of their business or assets is subject. Except as
indicated in Item 2.13 of the Disclosure Schedule, there are no such
proceedings threatened or, to the best knowledge of A&J AUSSIE RESTAURANT
GROUP, INC. or DUCKSTEIN, contemplated or, to the best knowledge of A&J AUSSIE
RESTAURANT GROUP, INC. or DUCKSTEIN, 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 A&J AUSSIE RESTAURANT GROUP, INC. or the
Partnership.
2.14 NO VIOLATION OF ANY INSTRUMENT. Except as indicated in Item 2.14
of the Disclosure Schedule, A&J AUSSIE RESTAURANT GROUP, INC. is not in
violation of or default under nor has any event occurred that, with the lapse
of time or the giving of notice or both, would constitute a violation of or
default under or permit the termination or the acceleration of maturity of or
result in the imposition of a lien, claim or encumbrance upon any property or
asset of A&J AUSSIE RESTAURANT GROUP, INC. pursuant to, the articles or
certificates of incorporation, bylaws or other chartering or governance
document of A&J AUSSIE RESTAURANT GROUP, INC. or (excluding any of the
following entered into by the Partnership and to which Outback or OSI is a
signatory or to which Outback or OSI consented in writing or which were entered
into by A&J AUSSIE RESTAURANT GROUP, INC. in the ordinary course of business
without violation of the provisions of the Partnership Agreement) any note,
bond, indenture, mortgage, deed of trust, evidence of indebtedness, loan or
lease agreement, other material agreement or instrument (including with
customers), judgment, order, injunction or decree to which A&J AUSSIE
RESTAURANT GROUP, INC. is a party, by which A&J AUSSIE RESTAURANT GROUP, INC.
is bound or to which any of the assets of A&J AUSSIE RESTAURANT GROUP, INC. are
subject.
2.15 NECESSARY APPROVALS AND CONSENTS. Other than (a) in connection
with or in compliance with the laws of the States of Florida and New York 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 A&J AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN 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 A&J AUSSIE RESTAURANT
GROUP, INC. and DUCKSTEIN 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 A&J AUSSIE RESTAURANT GROUP, INC. after
the Effective Date in substantially the same manner as now operated.
2.16 COMPLIANCE WITH LAWS. DUCKSTEIN has no actual knowledge that A&J
AUSSIE RESTAURANT GROUP, INC. or the Partnership are not in compliance with any
such laws applicable to their respective business, where failure to so comply
would have a material adverse effect on their business, operations, properties,
assets or conditions.
8
<PAGE> 13
2.17 ACCURACY OF INFORMATION FURNISHED. No representation or warranty
by A&J AUSSIE RESTAURANT GROUP, INC. or DUCKSTEIN 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 A&J AUSSIE RESTAURANT
GROUP, INC. and DUCKSTEIN have disclosed to OSI and Outback all facts known to
them that are material to A&J AUSSIE RESTAURANT GROUP, INC.'s and the
Partnership's respective businesses, operations, financial condition or
prospects.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF DUCKSTEIN
In addition to the representations and warranties contained in ARTICLE
2, DUCKSTEIN represents and warrants to OSI and Outback as follows:
3.1 AUTHORITY AND VALIDITY. He has the capacity and authority to
execute, deliver and perform this Agreement and all other agreements and
documents he is executing or will execute in connection herewith or therewith.
3.2 BINDING EFFECT. This Agreement and the other documents executed or
to be executed by DUCKSTEIN in connection with this Agreement have been or will
have been duly executed and delivered by him and are or will be, when executed
and delivered, his legal, valid and binding obligations enforceable in
accordance with their terms except that:
(a) enforceability may be limited by bankruptcy, insolvency
or other similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited by
equitable principles of general applicability.
3.3 OWNERSHIP. DUCKSTEIN is the sole record and beneficial shareholder
of A&J AUSSIE RESTAURANT GROUP, INC. and no other person has any rights (in any
form) to acquire any capital stock of A&J AUSSIE RESTAURANT GROUP, INC.
3.4 VOTING. He acknowledges that in his individual capacity as
shareholder and director of A&J AUSSIE RESTAURANT GROUP, INC., he has voted in
favor of the execution and delivery of this Agreement and the Merger Agreement.
3.5 RESIDENCY. DUCKSTEIN is, and has been at all times during the one
year period ending on the date hereof, a resident of the State of New York.
3.6 COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution and
delivery by DUCKSTEIN 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
DUCKSTEIN pursuant to any note, bond, indenture, mortgage, deed of trust,
9
<PAGE> 14
evidence of indebtedness, loan or lease agreement, other agreement or
instrument (including with customers), judgment order, injunction or decree by
which DUCKSTEIN is bound, to which he is a party or to which he is subject.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK
OSI and Outback, jointly and severally, represent and warrant to A&J
AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN 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 New York 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.
10
<PAGE> 15
4.7 CAPITALIZATION OF OSI. The authorized capital stock of OSI
consists of Two Hundred Million (200,000,000) shares of Common Stock, $.01 par
value and Two Million (2,000,000) shares of Preferred Stock, $.01 par value, of
which approximately 78,233,125 outstanding shares of Common Stock and no shares
of Preferred Stock were issued and outstanding as of September 30, 2000. All of
the issued and outstanding shares of OSI Common Stock have been duly authorized
and validly issued and are fully paid and nonassessable. The shares of OSI
Common Stock to be issued in exchange for A&J AUSSIE RESTAURANT GROUP, INC.'s
capital stock at the Effective Date, when issued and delivered, will be duly
authorized, validly issued, fully paid and nonassessable. As of the date
hereof, except for (i) employee and director stock options to acquire shares of
OSI Common Stock and (ii) employee stock ownership plans, there are no options,
warrants or other rights, agreements or commitments outstanding obligating
Outback or OSI to issue shares of its capital stock. All of the outstanding
shares of capital stock of Outback are owned by OSI, free and clear of any lien
or encumbrance.
4.8 SEC REPORTS. OSI has delivered to A&J AUSSIE RESTAURANT GROUP,
INC. and DUCKSTEIN true and complete copies of its (i) Annual Report on Form
10-K for the year ended December 31, 1999; (ii) Proxy Statement used in
connection with its 2000 Annual Meeting of Shareholders; (iii) 1999 Annual
Report to Shareholders; (iv) all periodic reports, if any, on Form 8-K filed
with the Securities and Exchange Commission since December 31, 1999 to the date
hereof; and (v) all Forms 10-Q, if any, filed with the Securities and Exchange
Commission since December 31, 1999 to the date hereof. Such documents and
reports did not on their dates or the date of filing, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. OSI has filed all
material documents required to be filed by it with the SEC and all such
documents complied as to form with the applicable requirements of law. Copies
of all other reports filed by OSI with the SEC from the date hereof to and
including the Effective Date have been or will be delivered to A&J AUSSIE
RESTAURANT GROUP, INC. and DUCKSTEIN. 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 New York with
respect to effectuating the Merger, (b) consents required to be obtained from
applicable liquor control authorities, (c) consents required to be obtained
from lessors, and (d) under the provisions of the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, or state securities or blue sky
laws, no authorization, consent, permit or license or approval of or
declaration, registration or filing with, any person or governmental or
regulatory authority or agency is necessary for the execution and delivery by
OSI and Outback of this Agreement, the Merger Agreement and the other
11
<PAGE> 16
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, 1999, 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 A&J AUSSIE RESTAURANT GROUP, INC.,
DUCKSTEIN, OSI AND OUTBACK
A&J AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN, 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
A&J AUSSIE RESTAURANT GROUP, INC., DUCKSTEIN, 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
A&J AUSSIE RESTAURANT GROUP, INC. and their respective subsidiaries,
taken as a whole. No supplement or amendment to any Disclosure
Schedule shall have any effect for the purpose of determining the
satisfaction of or compliance with the conditions to the obligations
of the parties to consummate the Merger set forth elsewhere in this
Agreement.
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.
12
<PAGE> 17
5.3 POST-CLOSING ADJUSTMENT. As soon as practicable after the Closing
Date, but in no event more than forty-five (45) days thereafter, OSI shall
determine and report in writing to all parties hereto:
(a) the amount of current assets of A&J AUSSIE RESTAURANT
GROUP, INC. as of the Effective Date; and
(b) the amount of all liabilities of A&J AUSSIE RESTAURANT
GROUP, INC. (other than liabilities specified in Item 6.2 of the A&J
AUSSIE RESTAURANT GROUP, INC. Disclosure Schedule to the extent
assumed by Outback) which were not paid in full prior to the Effective
Date.
Upon receipt of such report, DUCKSTEIN (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 DUCKSTEIN (and at the expense of
DUCKSTEIN) shall meet and attempt to agree on the items to which objection was
made. If such persons cannot agree within thirty (30) days from the date of
written objection, the items on which agreement has not been reached shall be
submitted to the Tampa, Florida office of PricewaterhouseCoopers (or other
agreed upon independent "Big Five" accounting firm) for a resolution of such
items and whose decision shall be final and binding on all parties. The fees
and expenses of PricewaterhouseCoopers (or other accounting firm) shall be paid
by the non-prevailing party.
If, as finally determined, the sum of Subsection (a) above exceeds the
sum of Subsections (b) and (c), OSI shall pay such excess to DUCKSTEIN 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), DUCKSTEIN shall
pay such excess to OSI within ten (10) days of the final determination.
5.4 DISTRIBUTION AND ALLOCATIONS. The parties acknowledge and agree
that notwithstanding the effective date of the Merger, Outback shall be
entitled to A&J AUSSIE RESTAURANT GROUP, INC.'s entire share of Partnership
distributions of cash flow, and shall be allocated A&J AUSSIE RESTAURANT GROUP,
INC.'s shares of profit and loss, from and after September 30, 2000.
5.5 ADDITIONAL AGREEMENTS.
(a) Subject to the terms and conditions herein provided, each
of the parties hereto agrees to use all reasonable efforts to take or
cause to be taken, all actions and to do or cause to be done, all
things 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 A&J AUSSIE RESTAURANT GROUP,
INC.
(b) In case at any time after the Effective Date any further
action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and/or directors of OSI and Outback and
DUCKSTEIN shall take all such necessary action.
13
<PAGE> 18
(c) Neither Outback, OSI, A&J AUSSIE RESTAURANT GROUP, INC.
nor DUCKSTEIN shall take any action that would jeopardize the
characterization of the Merger as a reorganization within the meaning
of Section 368(a) of the Code.
ARTICLE 6
COVENANTS OF A&J AUSSIE RESTAURANT GROUP, INC. AND DUCKSTEIN
A&J AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN covenant and agree
with OSI as follows:
6.1 SECURITIES LAW COMPLIANCE. DUCKSTEIN represents, warrants and
covenants to Outback and OSI that:
(a) DUCKSTEIN has received all schedules and exhibits and the
documents furnished to A&J AUSSIE RESTAURANT GROUP, INC. pursuant to
SECTION 4.8;
(b) DUCKSTEIN 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
14
<PAGE> 19
(c) without unreasonable expense that is necessary to verify
the accuracy of information furnished to DUCKSTEIN.
(d) OSI and Outback have furnished him with all information
requested and full access to materials concerning OSI and Outback
which DUCKSTEIN and/or his advisors deemed necessary to properly
evaluate the Merger. Such information and access have been made
available and utilized to the extent DUCKSTEIN considers necessary and
advisable in making an informed investment decision, and DUCKSTEIN has
consulted his own tax advisor and understands the evaluation of such
materials may require the assistance of experts and DUCKSTEIN has
utilized such experts to the extent deemed necessary.
(e) DUCKSTEIN understands that the OSI Common Stock to be
received is an investment of a speculative nature and DUCKSTEIN must
bear the risks thereof for an indefinite period of time. DUCKSTEIN 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.
(f) DUCKSTEIN and/or his representatives or advisors who have
acted with or on behalf of DUCKSTEIN and who have advised DUCKSTEIN in
this matter have such knowledge and experience in financial and
business matters that DUCKSTEIN is capable of evaluating the merits
and risks of the Merger for OSI Common Stock.
(g) DUCKSTEIN is participating in the Merger solely for his
account as a private investment, and DUCKSTEIN 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. DUCKSTEIN does not
presently intend to enter into any such agreement or undertaking and
there are no present circumstances which will compel DUCKSTEIN to sell
any OSI Common Stock so received. DUCKSTEIN 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.
(h) The investment by DUCKSTEIN in OSI Common Stock pursuant
to the Merger is a suitable investment for DUCKSTEIN given the
investment goals and objectives of DUCKSTEIN.
(i) DUCKSTEIN 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 DUCKSTEIN of any OSI Common Stock
received hereby which is effected other than in strict compliance with
the terms hereof and applicable law.
(j) DUCKSTEIN understands that the shares of OSI Common Stock
to be issued in the Merger will not be registered under the Securities
Act, nor any state securities laws, and such OSI Common Stock may not
be sold or transferred except in compliance with such laws. Neither
OSI nor Outback will have any obligation to register any such OSI
Common Stock.
15
<PAGE> 20
(k) DUCKSTEIN 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.
(l) DUCKSTEIN 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 DUCKSTEIN'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.
6.2 PAYMENT OF LIABILITIES. A&J AUSSIE RESTAURANT GROUP, INC. and
DUCKSTEIN covenant and agree that all debts and liabilities of A&J AUSSIE
RESTAURANT GROUP, INC. relating to periods prior to the Closing Date shall be
paid or satisfied in full prior to the Effective Date, except only current
liabilities and those debts and liabilities of A&J AUSSIE RESTAURANT GROUP,
INC. assumed by Outback as specified in Item 6.2 of the Disclosure Schedules.
ARTICLE 7
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and agree with A&J
AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN as follows:
7.1 EMPLOYMENT AGREEMENTS. Solely with respect to the Merger, and any
consequential termination of any partnership by operation of law, Outback
agrees not to elect to terminate the Employment Agreements between the
Partnership, as employer, and the general managers of the Partnership's Outback
Steakhouse restaurants, as employees. Outback shall succeed to all rights and
obligations of the Partnership under such Employment Agreements. Nothing
contained herein shall be construed as in any way limiting Outback's right to
terminate any such Employment Agreement as a result of any circumstance or
event other than the Merger and consequential termination of the Partnership by
operation of law.
7.2 ASSUMED LIABILITIES. OSI and Outback agree to assume and pay the
liabilities specified in Item 6.2 (subject to the amount limits specified in
Item 6.2 of the Disclosure Schedules) and to indemnify and hold harmless
DUCKSTEIN from any loss or liability therefor.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of A&J AUSSIE
RESTAURANT GROUP, INC., DUCKSTEIN, 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. A&J AUSSIE RESTAURANT GROUP, INC.,
Outback and OSI shall have received all consents or approvals and made all
applications, requests, notices and filings with, any person, governmental
authority or governmental agency required to be obtained or made in connection
with the consummation of the transactions contemplated by this Agreement. There
shall have been obtained from all state and local governments and governmental
16
<PAGE> 21
agencies all approvals and consents necessary to enable A&J AUSSIE RESTAURANT
GROUP, INC. and/or the Partnership, as applicable, to transfer their liquor
licenses and permits to Outback, to enable Outback to assume such licenses and
permits or to enable Outback to operate restaurants (of the kind and quality
customarily operated by Outback) using such permits or licenses. Copies of all
consents and approvals received by any party pursuant to this SECTION 8.1 shall
be furnished to the other party.
8.2 ABSENCE OF LITIGATION. No governmental agency or authority shall
have instituted or threatened in writing to institute, any action or proceeding
seeking to delay, restrain, enjoin or prohibit the consummation of the
transactions contemplated by this Agreement and no order, judgment or decree by
any court or governmental agency or authority shall be in effect that enjoins,
restrains or prohibits the same or otherwise would materially interfere with
the operation of the assets and business of A&J AUSSIE RESTAURANT GROUP, INC.
or the Partnership or OSI and its subsidiaries, including the surviving
corporation in the Merger, after the Closing Date.
8.3 DISSENTER'S RIGHTS. The number of shares of capital stock of A&J
AUSSIE RESTAURANT GROUP, INC. for which shareholders have exercised appraisal
or dissenters' rights under applicable law shall be a number which, in the sole
and absolute discretion of OSI, does not jeopardize the financial reporting and
accounting treatment of the Merger specified in SECTION 1.11 or is otherwise
not contrary to the best interests of Outback or OSI.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF A&J AUSSIE RESTAURANT GROUP, INC.
The obligations of A&J AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN 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 A&J AUSSIE RESTAURANT
GROUP, INC. and DUCKSTEIN pursuant hereto or in connection with the
transactions contemplated hereby, shall have been true and correct in all
material respects as of the date hereof and shall be true and correct in all
material respects at the Closing Date with the same force and effect as if such
representations and warranties had been made at and as of the Closing Date,
except for changes permitted or contemplated by this Agreement.
9.3 MATERIAL ADVERSE CHANGES. Since the date of OSI's most recent
10-Q, as filed with the Securities and Exchange Commission, through the date
hereof, there shall have occurred no material adverse change in the business,
properties, assets, liabilities, results of operations or condition, financial
or otherwise, of OSI and Outback, taken as a whole.
17
<PAGE> 22
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. A&J AUSSIE RESTAURANT GROUP, INC. and DUCKSTEIN 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 A&J AUSSIE RESTAURANT GROUP, INC. and/or DUCKSTEIN in this
Agreement, the Disclosure Schedule, and in all certificates and other documents
delivered by A&J AUSSIE RESTAURANT GROUP, INC. or DUCKSTEIN 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 A&J AUSSIE RESTAURANT GROUP, INC. as of September 30,
2000, for the month then ended.
10.4 MATERIAL ADVERSE CHANGES. Since December 31, 1999, there shall
have occurred no material adverse change in the business, properties, assets,
liabilities, results of operations or condition, financial or otherwise, of A&J
AUSSIE RESTAURANT GROUP, INC. or the Partnership.
ARTICLE 11
INDEMNIFICATION
DUCKSTEIN, on the one hand, and OSI and Outback, jointly and
severally, on the other hand, agree as follows:
11.1 INDEMNIFICATION BASED ON AGREEMENT. Subject to the limitations
contained in SECTION 11.2 hereof, DUCKSTEIN shall indemnify and hold harmless
OSI, Outback and A&J AUSSIE RESTAURANT GROUP, INC., and OSI, Outback and A&J
AUSSIE RESTAURANT GROUP, INC., jointly and severally, shall indemnify and hold
harmless DUCKSTEIN, 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, DUCKSTEIN shall indemnify OSI, Outback and
A&J AUSSIE RESTAURANT GROUP, INC., as provided in the first paragraph of this
SECTION 11.1, against any loss, claim, damage or liability arising out of (i)
18
<PAGE> 23
any tax liability of A&J AUSSIE RESTAURANT GROUP, INC. for any period prior to
and including the Effective Date and (ii) any debt of A&J AUSSIE RESTAURANT
GROUP, INC. (other than the debts specified in Item 6.2 of the Disclosure
Schedule to the extent assumed by Outback), and (iii) all claims, obligations,
causes of action and liabilities, of whatever kind or character, of any of A&J
AUSSIE RESTAURANT GROUP, INC. which arise out of or are based upon events first
occurring on or before the Effective Date, except only the liabilities assumed
by Outback as specified in Item 6.2 of the Disclosure Schedule.
11.2 LIMITATION. DUCKSTEIN shall have no obligation under SECTION 11.1
to indemnify OSI, Outback or A&J AUSSIE RESTAURANT GROUP, INC. for any
liability, loss, claim or damage arising out of or based upon facts or actions
first occurring after the Effective Date. All obligations of indemnity (other
than those relating to tax obligations of A&J AUSSIE RESTAURANT GROUP, INC.
under SECTION 11.1 above which shall continue for the period specified in
SECTION 12.4(B) hereof) shall terminate two (2) years from the Closing Date;
PROVIDED, HOWEVER, the obligations of indemnity shall not terminate with
respect to any matter for which indemnification is claimed within two (2) years
from the Closing Date.
11.3 COOPERATION. If any claim, demand, action, suit, proceeding or
investigation arising out of or pertaining to this Agreement or the
transactions contemplated hereby is begun or asserted, whether begun or
asserted before or after the Closing Date, the parties hereto will cooperate
and use their best efforts to defend against and respond thereto.
11.4 NOTICE. An indemnified party shall give notice to the
indemnifying party or parties within ten (10) business days after actual
receipt of service or summons to appear in any action begun in respect of which
indemnity may be sought hereunder. Failure to so notify the indemnifying party
or parties shall cause the indemnified party to be liable for any damage caused
by failure to give timely notice. The indemnifying party or parties may
participate at their own expense and with their counsel in the defense of such
action. If the indemnifying party or parties so elect within a reasonable time
after receipt of such notice, they may assume the defense of such action with
counsel chosen by the indemnifying party or parties and approved by the
indemnified party in such action, unless the indemnified party reasonably
objects to such assumption on the ground that its counsel has advised it that
there may be legal defenses available to it that are different from or in
addition to those available to the indemnifying party or parties, in which case
the indemnified party shall have the right to employ counsel approved by the
indemnifying party or parties. If the indemnifying party or parties assume the
defense of such action, the indemnifying party or parties shall not be liable
for fees and expenses of counsel for the indemnified party incurred thereafter
in connection with such action. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel for the
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances unless, in the reasonable opinion of such counsel,
there is, under applicable standards of professional conduct, a conflict on any
significant issue between the positions of any two or more indemnified parties.
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 A&J AUSSIE RESTAURANT GROUP,
INC.):
(a) by mutual consent of A&J AUSSIE RESTAURANT GROUP, INC.
and OSI;
19
<PAGE> 24
(b) by OSI if there has been a material misrepresentation or
breach of warranty in the representations and warranties of A&J AUSSIE
RESTAURANT GROUP, INC. or DUCKSTEIN set forth herein or if there has
been any material failure on the part of A&J AUSSIE RESTAURANT GROUP,
INC. or DUCKSTEIN to comply with their obligations hereunder;
(c) by A&J AUSSIE RESTAURANT GROUP, INC. if there has been a
material misrepresentation or breach of warranty in the
representations and warranties of OSI or Outback set forth herein or
if there has been any material failure on the part of OSI or Outback
to comply with their obligations hereunder;
(d) by either OSI, A&J AUSSIE RESTAURANT GROUP, INC. or
DUCKSTEIN, if the transactions contemplated by this Agreement have not
been consummated by March 30, 2001, unless such failure of
consummation is due to the failure of the terminating party to perform
or observe the covenants, agreements and conditions hereof to be
performed or observed by it at or before the Closing Date;
(e) by either OSI or A&J AUSSIE RESTAURANT GROUP, INC. if the
conditions precedent to its obligations to close this Agreement have
not been satisfied or waived by it at or before the Closing Date; and
(f) by either A&J AUSSIE RESTAURANT GROUP, INC. or OSI if the
transactions contemplated hereby violate any nonappealable final
order, decree or judgment of any court or governmental body or agency
having competent jurisdiction.
12.2 EXPENSES. Each party hereto shall pay its own expenses incurred
in connection with this Agreement and the transactions contemplated hereby.
12.3 ENTIRE AGREEMENT. This Agreement and the exhibits and Disclosure
Schedule hereto constitute and contain the complete agreement among the parties
with respect to the transactions contemplated hereby and supersede all prior
agreements and understandings among the parties with respect to such
transactions. The parties hereto have not made any representation or warranty
except as expressly set forth in this Agreement, the Merger Agreement or in any
certificate or schedule delivered pursuant hereto. The obligations of any party
under any agreement executed pursuant to this Agreement shall not be affected
by this SECTION 12.3.
12.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) The representations, warranties and indemnification
obligations of OSI and Outback contained herein or in any exhibit,
certificate, document or instrument delivered pursuant to this
Agreement shall survive the Closing for a period of two years;
PROVIDED, HOWEVER, that the obligations of OSI and Outback under
ARTICLE 11 hereof shall survive for the periods provided therein.
(b) Except where otherwise specifically provided in this
Agreement, the representations, warranties and indemnification
obligations of DUCKSTEIN 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
20
<PAGE> 25
warranties contained in SECTION 2.9 (TAX LIABILITIES) shall survive
the Closing for a period ending four years after the filing of A&J
AUSSIE RESTAURANT GROUP, INC.'s federal income tax return for the
period including the Effective Date.
12.5 COUNTERPARTS. This Agreement may be executed in any number of
identical counterparts, each of which when so executed and delivered shall be
deemed an original and such counterparts together shall constitute only one
original.
12.6 NOTICES. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by any party to any
other party pursuant to this Agreement shall be in writing and shall be mailed
by registered or certified mail, return receipt requested, postage prepaid or
transmitted by hand delivery, recognized national overnight delivery service,
telegram or telex, addressed as follows:
If to A&J AUSSIE RESTAURANT GROUP, INC. or DUCKSTEIN:
A&J AUSSIE RESTAURANT GROUP, INC.
1134 Gambelli Drive
Yorktown, NY 10598
Attention: RONALD S. DUCKSTEIN
If to OSI or Outback: OUTBACK STEAKHOUSE, INC.
2202 North Westshore Boulevard, 5th Floor
Tampa, Florida 33607
Attention: Joseph J. Kadow, 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
21
<PAGE> 26
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: By:
--------------------------------- ----------------------------------
JOSEPH J. KADOW, Secretary ROBERT D. BASHAM, President
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
By: By:
--------------------------------- ----------------------------------
JOSEPH J. KADOW, Secretary ROBERT D. BASHAM, Chief Operating
Officer
22
<PAGE> 27
"A&J AUSSIE RESTAURANT GROUP, INC."
Attest: A&J AUSSIE RESTAURANT GROUP, INC.,
a New York corporation
By: By:
--------------------------------- ----------------------------------
RONALD S. DUCKSTEIN, Secretary RONALD S. DUCKSTEIN, President
Witness: "DUCKSTEIN"
------------------------------------ -----------------------------------
RONALD S. DUCKSTEIN
------------------------------------
23