Agreement and Plan of Reorganization - Outback Steakhouse Inc., Carrabba's Italian Grill Inc., Carolina Restaurant Associates Inc. and William J. Kadow
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.,
CARRABBA'S ITALIAN GRILL, INC.,
CARROLINA RESTAURANT ASSOCIATES, INC.
AND
WILLIAM J. KADOW
<PAGE>
TABLE OF CONTENTS
<CAPTION>
PAGE
----
ARTICLE 1 - PLAN OF ACQUISITION................................................1
1.1 The Merger............................................................1
1.2 Adjustments...........................................................2
1.3 Closing...............................................................2
1.4 Execution and Delivery of Closing Documents...........................2
1.5 Execution and Filing of Merger Documents..............................3
1.6 Effectiveness of Merger...............................................3
1.7 Further Assurances....................................................3
1.8 Certificates..........................................................3
1.9 Closing of Transfer Books.............................................3
1.10 Fractional Shares.....................................................3
1.11 Accounting Treatment..................................................3
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF JVP CORP AND KADOW...............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 JVP CORP............................................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......................................7
2.14 No Violation of Any Instrument........................................7
2.15 Necessary Approvals and Consents......................................8
2.16 Compliance With Laws..................................................8
2.17 Accuracy of Information Furnished.....................................8
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF KADOW............................8
3.1 Authority and Validity................................................8
3.2 Binding Effect........................................................8
3.3 Ownership.............................................................9
3.4 Voting................................................................9
3.5 Residency.............................................................9
3.6 Compliance with Other Instruments.....................................9
i
<PAGE>
TABLE OF CONTENTS (continued)
<CAPTION>
PAGE
----
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF OSI AND CARRABBA'S...............9
4.1 Organization and Good Standing........................................9
4.2 Foreign Qualification.................................................9
4.3 Power and Authority...................................................9
4.4 Authority and Validity................................................9
4.5 Binding Effect........................................................9
4.6 Compliance with Other Instruments.....................................10
4.7 Capitalization of OSI.................................................10
4.8 SEC Reports...........................................................10
4.9 Litigation and Government Claims......................................10
4.10 Necessary Approvals and Consents......................................11
4.11 Absence of Certain Changes or Events..................................11
ARTICLE 5 - JOINT COVENANTS OF JVP CORP, KADOW, OSI AND CARRABBA'S.............11
5.1 Notice of any Material Change.........................................11
5.2 Cooperation...........................................................11
5.3 Post-Closing Adjustment...............................................12
5.4 Distribution and Allocations..........................................12
5.5 Additional Agreements.................................................12
ARTICLE 6 - COVENANTS OF JVP CORP AND KADOW....................................13
6.1 Securities Law Compliance.............................................13
6.2 Payment of Liabilities................................................14
6.3 Resale Restriction....................................................14
ARTICLE 7 - COVENANTS OF OSI AND CARRABBA'S....................................15
7.1 Employment Agreements.................................................15
7.2 Assumed Liabilities...................................................15
ARTICLE 8 - JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS..................15
8.1 Consents to Transaction...............................................15
8.2 Absence of Litigation.................................................15
8.3 Dissenter's Rights....................................................16
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS OF JVP CORP....................16
9.1 Compliance............................................................16
9.2 Representations and Warranties........................................16
9.3 Material Adverse Changes..............................................16
ARTICLE 10 - CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND CARRABBA'S.........16
10.1 Compliance............................................................16
10.2 Representations and Warranties........................................16
10.3 Current Financial Status..............................................17
10.4 Material Adverse Changes..............................................17
ii
<PAGE>
TABLE OF CONTENTS (continued)
<CAPTION>
PAGE
----
ARTICLE 11 - INDEMNIFICATION...................................................17
11.1 Indemnification Based on Agreement....................................17
11.2 Limitation............................................................17
11.3 Cooperation...........................................................17
11.4 Notice................................................................17
ARTICLE 12 - MISCELLANEOUS.....................................................18
12.1 Termination...........................................................18
12.2 Expenses..............................................................18
12.3 Entire Agreement......................................................19
12.4 Survival of Representations and Warranties............................19
12.5 Counterparts..........................................................19
12.6 Notices...............................................................19
12.7 Successors and Assigns................................................20
12.8 Governing Law.........................................................20
12.9 Waiver and Other Action...............................................20
12.10 Severability..........................................................20
12.11 Headings..............................................................20
12.12 Construction..........................................................20
12.13 Jurisdiction and Venue................................................20
12.14 Enforcement...........................................................20
12.15 Further Assurances....................................................20
12.16 Equitable Remedies....................................................21
EXHIBIT A
ARTICLES OF MERGER.............................................................A-1
EXHIBIT B
DISCLOSURE SCHEDULES...........................................................B-1
iii
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made
and entered effective as of April 1, 2001, by and among OUTBACK STEAKHOUSE,
INC., a Delaware corporation ("OSI"), CARRABBA'S ITALIAN GRILL, INC., a Florida
corporation ("Carrabba's"), CARROLINA RESTAURANT ASSOCIATES, INC., a North
Carolina corporation ("JVP CORP"), and WILLIAM J. KADOW, an individual residing
in the State of Georgia ("KADOW").
WITNESSETH:
WHEREAS, Carrabba's is a wholly-owned subsidiary of OSI; and
WHEREAS, KADOW is the sole owner of the issued and outstanding common
stock of JVP CORP, and KADOW is the sole director, President and is responsible
for the day-to-day operations of JVP CORP; and
WHEREAS, Carrabba's and JVP CORP have entered into that certain
Florida limited partnership known as Carrabba's/Carolina-I, Limited
Partnership, a Florida limited partnership and Carrabba's/Georgia-I, Limited
Partnership, a Florida limited partnership (collectively, the "Partnership");
WHEREAS, the Partnership operates Carrabba's Italian Grill(R)
restaurants in the State of Georgia, North Carolina and Virginia; and
WHEREAS, the Board of Directors of JVP CORP has approved the merger of
JVP CORP into Carrabba's (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, JVP CORP will be merged with and into
Carrabba's and all of the outstanding shares of capital stock of JVP CORP 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, JVP CORP shall be merged with and into Carrabba's, with
Carrabba's being the surviving corporation, in accordance with
1
<PAGE>
the Articles of Merger substantially in the form attached to this Agreement as
EXHIBIT A (the "Articles of Merger"), which will be executed and delivered by
OSI, Carrabba's, and JVP CORP prior to the Merger. As a result of the Merger,
each voting and nonvoting common share of JVP CORP 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 539.64 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 Fifty-three Thousand Nine Hundred Sixty-four
(53,964).
(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 JVP CORP 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) JVP CORP shall have issued
additional shares of its capital stock, the number of shares of OSI
Common Stock received in exchange for each share of JVP CORP's capital
stock shall be adjusted so that the aggregate number of shares of OSI
Common Stock received in exchange for all shares of JVP CORP's capital
stock (assuming no Dissenting Shares) remains at Fifty-three Thousand
Nine Hundred Sixty-four (53,964).
(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 JVP CORP (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 Carrabba's on April 1, 2001, 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 October 1, 2001, unless further extended by written
agreement of the parties to this Agreement. The parties shall use their best
efforts to effectuate a timely closing as provided in this SECTION 1.3.
1.4 Execution and Delivery of Closing Documents. Before the
Closing, each party shall cause to be prepared and at the Closing the parties
shall execute and deliver each agreement and instrument required by this
Agreement or the Articles of Merger 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
2
<PAGE>
and the Articles of Merger. 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, Carrabba's, JVP CORP and KADOW 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 North Carolina 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 North Carolina (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 North Carolina
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 North
Carolina ("North Carolina 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
Articles of Merger, and to vest more fully in Carrabba's the ownership of and
the rights to the business and assets of JVP CORP 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 JVP CORP
shall be entitled to receive upon surrender of stock certificates of JVP CORP
representing JVP CORP 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 JVP CORP 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 JVP CORP shall be closed and no transfer of capital stock of
JVP CORP, shall thereafter be made.
1.10 Fractional Shares. No fractional shares of OSI Common Stock
and no certificates or scrip therefor shall be issued. Instead, one whole share
of OSI Common Stock shall be issued for each fractional share of .5 or more of
one whole share and each fractional share of less than .5 of one whole share
shall be disregarded.
1.11 Accounting Treatment. It is the intention of the parties
hereto that the Merger will be treated for financial reporting purposes as a
purchase transaction.
3
<PAGE>
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF JVP CORP AND KADOW
Each of JVP CORP and KADOW, jointly and severally, represent and
warrant to OSI and Carrabba's as follows:
2.1 Organization and Good Standing. JVP CORP is a corporation
duly organized, validly existing and in good standing under the laws of the
State of North Carolina.
2.2 Power and Authority. JVP CORP 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. JVP CORP 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) JVP CORP has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
Articles of Merger and the other documents executed or to be executed
by JVP CORP in connection with this Agreement; and the execution,
delivery and performance by JVP CORP of this Agreement, the Articles
of Merger and the other documents executed or to be executed by JVP
CORP in connection with this Agreement have been duly authorized by
all necessary corporate action. The execution, delivery and
performance by JVP CORP of this Agreement, the Articles of Merger 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 JVP CORP as required under the laws of the State of
North Carolina and JVP CORP's corporate governance documents.
(b) KADOW 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 KADOW in connection with this
Agreement.
2.5 Binding Effect. This Agreement, the Articles of Merger and
the other documents executed or to be executed by JVP CORP and KADOW in
connection with this Agreement have been or will have been duly executed and
delivered by JVP CORP and KADOW, and are or will be, when executed and
delivered, the legal, valid and binding obligations of each of JVP CORP and
KADOW 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
<PAGE>
2.6 Compliance with Other Instruments. Neither the execution and
delivery by JVP CORP nor KADOW of this Agreement and the Articles of Merger,
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 JVP CORP or KADOW 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 JVP CORP or KADOW 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 JVP CORP 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 JVP CORP.
(a) The authorized capital stock of JVP CORP consists of
One Hundred Thousand authorized (100,000) common shares. There are One
Hundred (100) common shares issued and outstanding, all of which are
owned by KADOW. There are no other shareholders of JVP CORP and no
other persons with rights or options to acquire capital stock of JVP
CORP All of the issued and outstanding shares of capital stock of JVP
CORP have been duly authorized and validly issued and are fully paid
and nonassessable. There are no shares of capital stock of JVP CORP
held in its treasury.
(b) There are no voting trusts, shareholder agreements
or other voting arrangements to which the shareholder of JVP CORP is a
party.
(c) There is no outstanding subscription, contract,
convertible or exchangeable security, option, warrant, call or other
right obligating JVP CORP 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 JVP
CORP.
2.8 Absence of Certain Changes. From December 31, 2000 to the
Closing Date, (except solely as a result of JVP CORP's status as a partner in
the Partnership) JVP CORP has not:
(a) suffered any material adverse change in its
business, results of operations, working capital, assets, liabilities,
or condition (financial or otherwise) or the manner of conducting its
business;
(b) suffered any material damage or destruction to or
loss of its assets not covered by insurance, or any loss of suppliers
or employees;
(c) acquired or disposed of any asset, or incurred,
assumed, guaranteed, endorsed, paid or discharged any indebtedness,
liability or obligation, or subjected or permitted to be subjected any
material amount of assets to any lien, claim or encumbrance of any
kind, except in the ordinary course of business or pursuant to
agreements in force at the date of this Agreement and identified in
Item 2.8(c) of the Disclosure Schedules;
(d) forgiven, compromised, canceled, released, waived or
permitted to lapse any material rights or claims;
5
<PAGE>
(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. JVP CORP 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;
JVP CORP 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 JVP CORP 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 JVP CORP nor has JVP CORP received notice
of any such deficiency, delinquency or default. JVP CORP has no reason to
believe that JVP CORP has or may have any tax liabilities other than those
reflected on the unaudited balance sheet of JVP CORP as of December 31, 2000,
with any notes thereto, and the related unaudited statements of income for the
twelve months ended December 31, 2000, together with supplemental information
on JVP CORP, each prepared and attested to by the chief financial officer of
JVP CORP (the "Balance Sheets") and those arising in the ordinary course of
business since the date thereof. With regard to the foregoing, JVP CORP has
relied on the accuracy and completeness of the Schedule K-1 provided by the
Partnership.
KADOW shall have sole responsibility for filing all required tax
returns for JVP CORP. OSI shall assist KADOW in preparing income tax returns
and shall cooperate with KADOW to the extent necessary therefor, and KADOW
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 JVP CORP (other than material liabilities arising solely by
reason of JVP CORP's status as a partner in the Partnership) of any nature,
6
<PAGE>
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. JVP CORP 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 JVP CORP 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 JVP CORP are properly reflected on
the applicable Balance Sheets and notes thereto.
2.12 Contracts. Excluding (i) contracts and commitments between
Carrabba's or OSI and JVP CORP or the Partnership, (ii) contracts and
commitments entered into by the Partnership to which Carrabba's or OSI is a
party, (iii) contracts and commitments entered into by JVP CORP 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 Carrabba's, Item 2.12 of the Disclosure Schedule is a
complete and accurate list of all of the contracts and commitments (including
summaries of oral contracts) to which JVP CORP is a party or by which JVP CORP
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 JVP CORP 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 JVP CORP or KADOW, contemplated or, to the best knowledge of JVP
CORP or KADOW, 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 JVP CORP or the Partnership.
2.14 No Violation of Any Instrument. Except as indicated in Item
2.14 of the Disclosure Schedule, JVP CORP 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 JVP CORP pursuant to,
the articles or certificates of incorporation, bylaws or other chartering or
governance document of JVP CORP or (excluding any of the following entered into
by the Partnership and to which Carrabba's or OSI is a signatory or to which
Carrabba's or OSI consented in writing or which were entered into by JVP CORP
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 JVP CORP is a party, by which JVP CORP is bound or to which any of the
assets of JVP CORP 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
North Carolina 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
7
<PAGE>
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 JVP CORP and KADOW of this Agreement, the
Articles of Merger and the other agreements executed or to be executed by them
in connection with this Agreement, and the consummation by JVP CORP and KADOW
of the transactions contemplated by this Agreement and the Articles of Merger,
and the ownership and operation by Carrabba's of the respective businesses and
properties of JVP CORP after the Effective Date in substantially the same
manner as now operated.
2.16 Compliance With Laws. KADOW has no actual knowledge that JVP
CORP or the Partnership is not in compliance with any such laws applicable to
their respective business, where failure to so comply would have a material
adverse effect on their business, operations, properties, assets or conditions.
2.17 Accuracy of Information Furnished. No representation or
warranty by JVP CORP or KADOW 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 JVP CORP and KADOW have
disclosed to OSI and Carrabba's all facts known to them that are material to
JVP CORP's and the Partnership's respective businesses, operations, financial
condition or prospects.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF KADOW
In addition to the representations and warranties contained in ARTICLE
2, KADOW represents and warrants to OSI and Carrabba's 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 KADOW 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. KADOW is the sole record and beneficial
shareholder of JVP CORP and no other person has any rights (in any form) to
acquire any capital stock of JVP CORP
3.4 Voting. He acknowledges that in his individual capacity as
shareholder and director of JVP CORP, he has voted in favor of the execution
and delivery of this Agreement and the Articles of Merger.
8
<PAGE>
3.5 Residency. KADOW is, and has been at all times during the one
year period ending on the date hereof, a resident of the State of Georgia.
3.6 Compliance with Other Instruments. Neither the execution and
delivery by KADOW of this Agreement and the Articles of Merger, 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 KADOW
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 KADOW is bound,
to which he is a party or to which he is subject.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF OSI AND CARRABBA'S
OSI and Carrabba's, jointly and severally, represent and warrant to
JVP CORP and KADOW as follows:
4.1 Organization and Good Standing. OSI and Carrabba's 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. Carrabba's is duly qualified or
licensed to do business and in good standing as a foreign corporation in North
Carolina 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 Carrabba's 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 Carrabba's each have the
corporate power and authority to execute, deliver and perform their respective
obligations under this Agreement, the Articles of Merger and the other
documents executed or to be executed by OSI and Carrabba's in connection with
this Agreement and the execution, delivery and performance by OSI and
Carrabba's of this Agreement, the Articles of Merger and the other documents
executed or to be executed by OSI and Carrabba's in connection with this
Agreement have been duly authorized by all necessary corporate action.
4.5 Binding Effect. This Agreement, the Articles of Merger and
the other documents executed or to be executed by OSI and Carrabba's in
connection with this Agreement have been or will have been duly executed and
delivered by OSI and Carrabba's and are or will be, when executed and
delivered, the legal, valid and binding obligations of OSI and Carrabba's,
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.
9
<PAGE>
4.6 Compliance with Other Instruments. Neither the execution and
delivery by OSI and/or Carrabba's of this Agreement, the Articles of Merger,
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 Carrabba's pursuant to, the certificate of incorporation or bylaws of OSI or
Carrabba's 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 Carrabba's is bound, to which it is
a party or to which its assets are subject.
4.7 Capitalization of OSI. The authorized capital stock of OSI
consists of Two Hundred Million (200,000,000) shares of Common Stock, $.01 par
value and Two Million (2,000,000) shares of Preferred Stock, $.01 par value, of
which approximately 76,712,574 outstanding shares of Common Stock and no shares
of Preferred Stock were issued and outstanding as of March 1, 2001. 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 JVP CORP'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 Carrabba's or OSI to issue
shares of its capital stock. All of the outstanding shares of capital stock of
Carrabba's are owned by OSI, free and clear of any lien or encumbrance.
4.8 SEC Reports. OSI has delivered to JVP CORP and KADOW true and
complete copies of its (i) Annual Report on Form 10-K for the year ended
December 31, 2000; (ii) Proxy Statement used in connection with its 2001 Annual
Meeting of Shareholders; (iii) 2000 Annual Report to Shareholders; (iv) all
periodic reports, if any, on Form 8-K filed with the Securities and Exchange
Commission since December 31, 2000 to the date hereof; and (v) all Forms 10-Q,
if any, filed with the Securities and Exchange Commission since December 31,
2000 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 JVP CORP and KADOW. 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 Carrabba's 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 Carrabba's, 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.
10
<PAGE>
4.10 Necessary Approvals and Consents. Other than (a) in
connection with or in compliance with the laws of the States of Florida and
North Carolina 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 Carrabba's of this Agreement, the Articles of Merger
and the other agreements executed or to be executed by either of them in
connection with this Agreement and the consummation by OSI and Carrabba's of
the transactions contemplated by this Agreement and the Articles of Merger.
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, 2000, there has not been
any material adverse change in the financial condition, results of operations
or the business, properties, assets or liabilities of Carrabba's or OSI.
ARTICLE 5
JOINT COVENANTS OF JVP CORP, KADOW, OSI AND CARRABBA'S
JVP CORP and KADOW, jointly and severally, on the one hand, and OSI
and Carrabba's, 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 JVP CORP, KADOW, OSI and Carrabba's 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, Carrabba's
or JVP CORP 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
11
<PAGE>
(c) take such actions as the other parties may
reasonably request to consummate the transactions contemplated by this
Agreement and use its best efforts and diligently attempt to satisfy,
to the extent within its control, all conditions precedent to the
obligations to close this Agreement.
5.3 Post-Closing Adjustment. As soon as practicable after the
Closing Date, but in no event more than forty-five (45) days thereafter, OSI
shall determine and report in writing to all parties hereto:
(a) the amount of current assets of JVP CORP as of the
Effective Date; and
(b) the amount of all liabilities of JVP CORP (other
than liabilities specified in Item 6.2 of the JVP CORP Disclosure
Schedule to the extent assumed by Carrabba's) which were not paid in
full prior to the Effective Date.
Upon receipt of such report, KADOW (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 KADOW (and at the expense of
KADOW) shall meet and attempt to agree on the items to which objection was
made. If such persons cannot agree within thirty (30) days from the date of
written objection, the items on which agreement has not been reached shall be
submitted to the Tampa, Florida office of PricewaterhouseCoopers (or other
agreed upon independent "Big Five" accounting firm) for a resolution of such
items and whose decision shall be final and binding on all parties. The fees
and expenses of PricewaterhouseCoopers (or other accounting firm) shall be paid
by the non-prevailing party.
If, as finally determined, the sum of Subsection (a) above exceeds the
sum of Subsection (b), OSI shall pay such excess to KADOW within ten (10) days
of such final determination. If, as finally determined, the sum of Subsection
(b) exceeds the sum of Subsection (a), KADOW 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, Carrabba's shall
be entitled to JVP CORP's entire share of Partnership distributions of cash
flow, and shall be allocated JVP CORP's shares of profit and loss, from and
after April 1, 2001.
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 JVP CORP.
(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
Carrabba's and KADOW shall take all such necessary action.
12
<PAGE>
(c) Neither Carrabba's, OSI, JVP CORP nor KADOW 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.
ARTICLE 6
COVENANTS OF JVP CORP AND KADOW
JVP CORP and KADOW covenant and agree with OSI as follows:
6.1 Securities Law Compliance. KADOW represents, warrants and
covenants to Carrabba's and OSI that:
(a) KADOW has received all schedules and exhibits and
the documents furnished to JVP CORP pursuant to SECTION 4.8;
(b) KADOW 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 KADOW.
(c) OSI and Carrabba's have furnished him with all
information requested and full access to materials concerning OSI and
Carrabba's which KADOW and/or his advisors deemed necessary to
properly evaluate the Merger. Such information and access have been
made available and utilized to the extent KADOW considers necessary
and advisable in making an informed investment decision, and KADOW has
consulted his own tax advisor and understands the evaluation of such
materials may require the assistance of experts and KADOW has utilized
such experts to the extent deemed necessary.
(d) KADOW understands that the OSI Common Stock to be
received is an investment of a speculative nature and KADOW must bear
the risks thereof for an indefinite period of time. KADOW has adequate
means for providing for his needs, is able to bear the economic risk
of the investment and has no need for liquidity in the OSI Common
Stock to be received in the Merger.
(e) KADOW and/or his representatives or advisors who
have acted with or on behalf of KADOW and who have advised KADOW in
this matter have such knowledge and experience in financial and
business matters that KADOW is capable of evaluating the merits and
risks of the Merger for OSI Common Stock.
(f) KADOW is participating in the Merger solely for his
account as a private investment, and KADOW 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. KADOW does not presently intend to
enter into any such agreement or undertaking and there are no present
circumstances which will compel KADOW to sell any OSI Common Stock so
received. KADOW 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.
13
<PAGE>
(g) The investment by KADOW in OSI Common Stock pursuant
to the Merger is a suitable investment for KADOW given the investment
goals and objectives of KADOW.
(h) KADOW agrees to indemnify and hold OSI and
Carrabba's 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 KADOW of any
OSI Common Stock received hereby which is effected other than in
strict compliance with the terms hereof and applicable law.
(i) KADOW 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 Carrabba's will have any obligation to register
any such OSI Common Stock.
(j) KADOW understands that OSI will place an appropriate
legend on the certificate representing OSI Common Stock to be received
restricting the transfer of the shares and stop-transfer instructions
will be given to the transfer agent for the OSI Common Stock with
respect to such certificates.
(k) KADOW 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 KADOW'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. JVP CORP and KADOW covenant and agree
that all debts and liabilities of JVP CORP 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 JVP CORP
assumed by Carrabba's as specified in Item 6.2 of the Disclosure Schedules.
6.3 Resale Restriction. KADOW agrees that until such time as
financial results of OSI covering at least thirty (30) days of combined
operations of OSI and JVP CORP 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.
ARTICLE 7
COVENANTS OF OSI AND CARRABBA'S
OSI and Carrabba's, jointly and severally, covenant and agree with JVP
CORP and KADOW as follows:
7.1 Employment Agreements. Solely with respect to the Merger, and
any consequential termination of any partnership by operation of law,
Carrabba's agrees not to elect to terminate the Employment Agreements
14
<PAGE>
between the Partnership, as employer, and the general managers of the
Partnership's Carrabba's Italian Grill(R) restaurants, as employees. Carrabba's
or its affiliate 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 Carrabba's Italian Grill(R) or its affiliate'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 Carrabba's 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 KADOW from any loss or liability therefor.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of JVP CORP, KADOW,
OSI and Carrabba's 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. JVP CORP, Carrabba's 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 JVP CORP and/or the Partnership, as
applicable, to transfer their liquor licenses and permits to Carrabba's, to
enable Carrabba's to assume such licenses and permits or to enable Carrabba's
to operate restaurants (of the kind and quality customarily operated by
Carrabba's) 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 JVP CORP 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
JVP CORP 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 Carrabba's or OSI.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF JVP CORP
The obligations of JVP CORP and KADOW 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:
15
<PAGE>
9.1 Compliance. OSI and Carrabba's 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 Carrabba's on or before the Closing Date.
9.2 Representations and Warranties. All of the representations
and warranties made by OSI and Carrabba's in this Agreement, and in all
certificates and other documents delivered by OSI and Carrabba's to JVP CORP
and KADOW 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 Carrabba's, taken as a whole.
ARTICLE 10
CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND CARRABBA'S
Except as may be waived by OSI and Carrabba's, the obligations of OSI
and Carrabba's 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. JVP CORP and KADOW 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 JVP CORP and/or KADOW in this Agreement, the Disclosure
Schedule, and in all certificates and other documents delivered by JVP CORP or
KADOW 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 JVP CORP as of March 31, 2001, for the month
then ended.
10.4 Material Adverse Changes. Since December 31, 2000, there
shall have occurred no material adverse change in the business, properties,
assets, liabilities, results of operations or condition, financial or
otherwise, of JVP CORP or the Partnership.
ARTICLE 11
INDEMNIFICATION
KADOW, on the one hand, and OSI and Carrabba's, jointly and severally,
on the other hand, agree as follows:
16
<PAGE>
11.1 Indemnification Based on Agreement. Subject to the
limitations contained in SECTION 11.2 hereof, KADOW shall indemnify and hold
harmless OSI, Carrabba's and JVP CORP, and OSI, Carrabba's and JVP CORP,
jointly and severally, shall indemnify and hold harmless KADOW, 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, KADOW shall indemnify OSI, Carrabba's and
JVP CORP, as provided in the first paragraph of this SECTION 11.1, against any
loss, claim, damage or liability arising out of (i) any tax liability of JVP
CORP for any period prior to and including the Effective Date and (ii) any debt
of JVP CORP (other than the debts specified in Item 6.2 of the Disclosure
Schedule to the extent assumed by Carrabba's), and (iii) all claims,
obligations, causes of action and liabilities, of whatever kind or character,
of any of JVP CORP which arise out of or are based upon events first occurring
on or before the Effective Date, except only the liabilities assumed by
Carrabba's as specified in Item 6.2 of the Disclosure Schedule.
11.2 Limitation. KADOW shall have no obligation under SECTION 11.1
to indemnify OSI, Carrabba's or JVP CORP 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 JVP CORP under SECTION 11.1 above which shall continue for the
period specified in SECTION 12.4(B) hereof) shall terminate two (2) years from
the Effective Date; provided, however, the obligations of indemnity shall not
terminate with respect to any matter for which indemnification is claimed
within two (2) years from the Effective Date.
11.3 Cooperation. If any claim, demand, action, suit, proceeding
or investigation arising out of or pertaining to this Agreement or the
transactions contemplated hereby is begun or asserted, whether begun or
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
17
<PAGE>
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 JVP CORP):
(a) by mutual consent of JVP CORP and OSI;
(b) by OSI if there has been a material
misrepresentation or breach of warranty in the representations and
warranties of JVP CORP or KADOW set forth herein or if there has been
any material failure on the part of JVP CORP or KADOW to comply with
their obligations hereunder;
(c) by JVP CORP if there has been a material
misrepresentation or breach of warranty in the representations and
warranties of OSI or Carrabba's set forth herein or if there has been
any material failure on the part of OSI or Carrabba's to comply with
their obligations hereunder;
(d) by either OSI, JVP CORP or KADOW, if the
transactions contemplated by this Agreement have not been consummated
by October 1, 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 JVP CORP if the conditions
precedent to its obligations to close this Agreement have not been
satisfied or waived by it at or before the Closing Date; or
(f) by either JVP CORP 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 Articles of Merger 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 Carrabba's contained herein or in any exhibit,
certificate, document or instrument delivered pursuant to this
18
<PAGE>
Agreement shall survive for a period of two years from the Effective
Date; provided, however, that the obligations of OSI and Carrabba's
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 KADOW contained herein or in any exhibit, schedule,
certificate, document or instrument delivered pursuant to this
Agreement shall survive the Closing for a period of three years from
the Effective Date; provided, however, the representations and
warranties contained in SECTION 2.9 (TAX LIABILITIES) shall survive
the Closing for a period ending four years after the filing of JVP
CORP's federal income tax return for the period including the
Effective Date.
12.5 Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which when so executed and delivered shall be
deemed an original and such counterparts together shall constitute only one
original.
12.6 Notices. All notices, demands, requests or other
communications that may be or are required to be given, served or sent by any
party to any other party pursuant to this Agreement shall be in writing and
shall be mailed by registered or certified mail, return receipt requested,
postage prepaid or transmitted by hand delivery or recognized national
overnight delivery service addressed as follows:
If to JVP CORP or KADOW: CARROLINA RESTAURANT ASSOCIATES,
INC.
225 Ketton Downs
Duluth, Georgia 30097
Attention: William J. Kadow,
President
If to OSI or Carrabba's: OUTBACK STEAKHOUSE, INC.
2202 North Westshore Boulevard,
5th Floor
Tampa, Florida 33607
Attention: Robert S. Merritt,
Chief Financial Officer
Each party may designate by notice in writing a new address to which
any notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request or communication that is mailed,
delivered or transmitted in the manner described above shall be deemed
sufficiently given, served, sent and received for all purposes at such time as
it is delivered to the addressee (with the return receipt, the delivery
receipt, the affidavit of messenger or at such time as delivery is refused by
the addressee upon presentation.
12.7 Successors and Assigns. This Agreement and the rights,
interests and obligations hereunder shall be binding upon and shall inure to
the benefit of the parties hereto and, except as otherwise specifically
provided for herein, their respective successors and assigns.
12.8 Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida without giving effect to
principles of comity or conflicts of law thereof.
12.9 Waiver and Other Action. This Agreement may be amended,
modified or supplemented only by a written instrument executed by the parties
against which enforcement of the amendment, modification or supplement is
sought.
19
<PAGE>
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.
20
<PAGE>
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/ Joseph J. Kadow By: /s/ Robert D. Basham
------------------------------------ -------------------------------
JOSEPH J. KADOW, Secretary ROBERT D. BASHAM, President
"Carrabba's"
Attest: CARRABBA'S ITALIAN GRILL, INC.,
a Florida corporation
By: /s/ Joseph J. Kadow By: /s/ Robert D. Basham
------------------------------------ -------------------------------
JOSEPH J. KADOW, Secretary ROBERT D. BASHAM,
Chief Operating Officer
"JVP CORP"
Attest: CARROLINA RESTAURANT ASSOCIATES,
INC., a North Carolina corporation
By: /s/ William J. Kadow By: /s/ William J. Kadow
------------------------------------ -------------------------------
WILLIAM J. KADOW, Secretary WILLIAM J. KADOW, President
Witness: "KADOW"
/s/ William J. Kadow
--------------------------------------- ----------------------------------
WILLIAM J. KADOW
---------------------------------------
21