Asset Purchase Agreement - OSI International Inc., Outback Steakhouse Inc., Connerty International Inc.
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
OSI INTERNATIONAL, INC.
OUTBACK STEAKHOUSE, INC.
CONNERTY INTERNATIONAL, INC.
AND
THE SHAREHOLDERS OF CONNERTY INTERNATIONAL, INC.
DATED MAY 16, 2002
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ASSET PURCHASE AGREEMENT
TABLE OF CONTENTS
1. PURCHASE OF THE PARTNERSHIP INTEREST .................................. 1
1.1 Purchase and Sale ............................................ 1
1.2 Purchase Price ............................................... 1
1.3 Closing ...................................................... 2
1.4 Further Assurances ........................................... 2
1.5 Certificates ................................................. 2
1.6 Closing of Transfer Books .................................... 2
1.7 Effective Date ............................................... 2
2. LIABILITIES OF SELLER AND PARTNERSHIP.................................. 2
2.1 Liabilities Defined........................................... 2
2.2 No Liabilities of Seller Assumed.............................. 2
2.3 Liabilities of Partnership.................................... 2
2.4 Hold-Back..................................................... 3
2.5 Dissolution of Seller......................................... 3
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND SHAREHOLDERS.......... 3
3.1 General....................................................... 3
3.2 Capitalization of Seller...................................... 3
3.3 Authority..................................................... 4
3.4 No Violation.................................................. 4
3.5 Absence of Liabilities........................................ 4
3.6 Ownership of Partnership Interest............................. 5
3.7 Partnership Subsidiaries...................................... 5
3.8 Financial Statements.......................................... 5
3.9 Tax Liabilities............................................... 5
3.10 Absence of Undisclosed Liabilities............................ 6
3.11 No Litigation................................................. 6
3.12 Compliance With Laws and Orders............................... 6
3.13 Employee Benefit Plans........................................ 7
3.14 Absence of Certain Changes.................................... 7
3.15 No Brokers or Finders......................................... 8
3.16 Disclosure.................................................... 8
3.17 Contracts..................................................... 8
3.18 Necessary Approvals and Consents.............................. 8
3.19 Compliance with Laws.......................................... 9
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS..................... 9
4.1 Authority and Validity.......................................... 9
4.2 Binding Effect ................................................. 9
4.3 Ownership....................................................... 9
4.4 Voting.......................................................... 9
4.5 Compliance with Other Instruments............................... 9
4.6 Securities Law Compliance....................................... 9
4.7 Payment of Liabilities.......................................... 11
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5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER............................................................11
5.1 Corporate...............................................................................................11
5.2 Authority...............................................................................................11
5.3 No Brokers or Finders...................................................................................11
5.4 Disclosure..............................................................................................11
5.5 Other Action............................................................................................12
6. REPRESENTATIONS AND WARRANTIES OF OSI AND BUYER...............................................................12
6.1 Organization and Good Standing..........................................................................12
6.2 Foreign Qualification...................................................................................12
6.3 Power and Authority.....................................................................................12
6.4 Authority and Validity..................................................................................12
6.5 Binding Effect..........................................................................................12
6.6 Compliance with Other Instruments.......................................................................12
6.7 Capitalization of OSI...................................................................................13
6.8 SEC Reports.............................................................................................13
6.9 Absence of Certain Changes or Events....................................................................13
7. COVENANTS OF SHAREHOLDERS.....................................................................................13
7.1 Noncompetition..........................................................................................13
7.2 Confidentiality.........................................................................................14
7.3 Non-Solicitation........................................................................................14
7.4 Reasonableness of Restrictions; Reformation; Enforcement................................................14
7.5 Specific Performance....................................................................................14
8. FURTHER COVENANTS OF SHAREHOLDERS.............................................................................15
8.1 Access to Information and Records.......................................................................15
8.2 Conduct of Business Pending the Closing.................................................................15
8.3 Consents................................................................................................16
8.4 Other Action............................................................................................16
8.5 Disclosure..............................................................................................16
9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS...................................................................16
9.1 Representations and Warranties True on the
Closing Date............................................................................................16
9.2 Compliance With Agreement...............................................................................16
9.3 Absence of Litigation...................................................................................16
9.4 Consents and Approvals..................................................................................16
9.5 Delivery of Closing Documents...........................................................................16
10. CONDITIONS PRECEDENT TO SELLER'S AND SHAREHOLDERS' OBLIGATIONS................................................17
10.1 Representations and Warranties True on the
Closing Date............................................................................................17
10.2 Compliance With Agreement...............................................................................17
10.3 Absence of Litigation...................................................................................17
11. INDEMNIFICATION...............................................................................................17
11.1 By the Shareholders ....................................................................................17
11.2 By Buyer................................................................................................18
11.3 Indemnification of Third-Party Claims...................................................................18
11.4 Payment.................................................................................................18
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11.5 No Waiver..............................................................................................19
11.6 Survival of Indemnification............................................................................19
12. CLOSING.......................................................................................................19
12.1 Closing Date...........................................................................................19
12.2 Place of Closing.......................................................................................19
12.3 Documents to be Delivered by the Seller and Shareholders...............................................19
12.4 Documents to be Delivered by Buyer and OSI.............................................................19
13. TERMINATION...................................................................................................20
13.1 Right of Termination Without Breach....................................................................20
13.2 Termination for Breach.................................................................................20
14. MISCELLANEOUS.................................................................................................21
14.1 Further Assurance......................................................................................21
14.2 Disclosures and Announcements..........................................................................21
14.3 Assignment; Parties in Interest........................................................................21
14.4 Governing Law .........................................................................................21
14.5 Consent to Personal Jurisdiction and Venue; Waiver of Jury Trial
Attorney's Fees.....................................................................21
14.6 Amendment and Modification.............................................................................21
14.7 Notice.................................................................................................21
14.8 Expenses...............................................................................................23
14.9 Cost of Litigation.....................................................................................23
14.10 Entire Agreement.......................................................................................23
14.11 Counterparts...........................................................................................23
14.12 Headings...............................................................................................23
III
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is dated this 16th day
of May 2002, and entered into by and among OSI INTERNATIONAL, INC., a Florida
corporation ("Buyer"), OUTBACK STEAKHOUSE, INC., a Delaware corporation ("OSI"),
CONNERTY INTERNATIONAL, INC. a Florida corporation ("Seller"), and the
shareholders of Seller as indicated on the signature pages hereof and listed on
Exhibit A attached hereto and made a part hereof (individually a "Shareholder"
and collectively the "Shareholders").
RECITALS
A. Buyer is a wholly owned subsidiary of OSI.
B. Outback Steakhouse International, Inc. (a wholly owned subsidiary of
OSI) and Seller have entered into that certain Agreement of Limited
Partnership of Outback Steakhouse International, L.P. dated May 1, 1995
("Partnership Agreement") pursuant to which Outback Steakhouse
International, Inc. and Seller formed Outback Steakhouse International,
L.P., a Georgia limited partnership ("Partnership").
C. Outback Steakhouse International, Inc. is the owner of an eighty
percent (80%) interest in the Partnership as a limited partner.
D. Seller is the owner of a twenty percent (20%) interest in the
Partnership as a general partner ("Partnership Interest").
E. The Partnership Interest represents substantially all of the assets of
Seller.
F. The Shareholders own all of the issued and outstanding shares of
capital stock of Seller.
G. Pursuant to the provisions hereof, Buyer desires to purchase from
Seller, and Seller desires to sell to Buyer, all right, title and
interest in and to the Partnership Interest.
H. The parties intend that the sale of the Partnership Interest shall
qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended ("Code").
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows.
1. PURCHASE OF THE PARTNERSHIP INTEREST
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, on the Closing Date (as defined in SECTION 12.1), Seller shall sell,
transfer, convey, assign and deliver to Buyer, and Buyer shall purchase and
accept, all of the Partnership Interest, free and clear of any liens, claims, or
encumbrances whatsoever ("Purchase").
1.2. Purchase Price.
1.2(a) Subject to adjustment as provided in SECTION 2.4, the
purchase price ("Purchase Price") for the Partnership Interest shall be
Two Hundred Twenty Three Thousand Six (223,006) shares of common stock,
par value $.01, of OSI ("OSI Common Stock"). The Purchase Price shall
be paid as provided in SECTION 2.
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1.2(b) If, between the date of this Agreement and the
Closing Date 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 constituting the Purchase Price shall be adjusted to accurately
reflect such change.
1.3. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing"), shall take place at 10:00 a.m., Tampa time, at the
offices of OSI on May 20, 2002, or on such date and at such other time and place
as is agreed upon by the parties hereto. The day on which the Closing occurs is
herein referred to as the "Closing Date". If any of the conditions to the
obligations of the parties to this Agreement have not been satisfied or waived
by the Closing Date, then the party to this Agreement that is unable to meet
such condition or conditions shall be entitled to postpone the Closing by
written notice to the other parties until such condition shall have been
satisfied (which such party shall seek to cause to happen at the earliest
practicable date) or waived, but the Closing shall occur not later than May 31,
2002, 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 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 to vest more
fully in Buyer the ownership of and the rights to the Partnership Interest.
1.5 Certificates. As soon as practicable after the Effective Date,
OSI shall deliver to Seller certificates representing the number of shares of
OSI Common Stock constituting the Purchase Price as provided in SECTION 1.2
hereof, reduced by the number of Retained Shares as provided in SECTION 2.4
hereof. The OSI Common Stock constituting the Purchase Price shall be deemed
issued at the Closing Date.
1.6 Closing of Transfer Books. Upon execution of this Agreement,
the stock transfer books of Seller shall be closed and no transfer of capital
stock of Seller shall thereafter be made.
1.7 Effective Date. The parties agree that the purchase of the
Partnership Interest shall be deemed effective as of January 1, 2002 and Buyer
shall be allocated all taxable income or loss, and Buyer shall be entitled to
all distributions, from the Partnership from and after January 1, 2002.
2. LIABILITIES OF SELLER AND PARTNERSHIP
2.1 Liabilities Defined. As used in this Agreement, the term
"Liability" shall mean and include any direct or indirect indebtedness,
guaranty, endorsement, claim, loss, damage, deficiency, cost, expense,
obligation or responsibility, fixed or unfixed, known or unknown, asserted or
unasserted, liquidated or unliquidated, secured or unsecured.
2.2 No Liabilities of Seller Assumed. Buyer and OSI are not
assuming any Liabilities of Seller whatsoever (other than Liabilities of Seller
arising solely from Seller's status as general partner of the Partnership) and
all such Liabilities shall be and remain the responsibility of Seller.
2.3 Liabilities of Partnership. Seller has been the only general
partner of Partnership. The balance sheet of the Partnership as of December 31,
2001 ("Balance Sheet") is attached hereto as Exhibit B and made a part hereof.
Subject to and except as otherwise provided in SECTION 2.4 and SECTION 11
hereof, Seller and the Shareholders shall indemnify, defend and hold Buyer, OSI
and the Partnership harmless from and against any Liability of the Partnership
that (i) is not included on the Balance Sheet, or (ii) is not specified on
DISCLOSURE SCHEDULE ITEM 3.10.
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2.4. Hold-Back. Of the 223,006 shares of OSI Common Stock
constituting the Purchase Price, Buyer shall deliver One Hundred Ninety Four
Thousand Four Hundred Thirty Six (194,436) shares of OSI Common Stock to Seller
as provided in SECTION 1.5 hereof. Buyer shall retain Twenty Eight Thousand Five
Hundred Seventy (28,570) shares of OSI Common Stock ("Retained Shares"). In the
event Buyer is entitled to indemnification from Seller pursuant to SECTION 11
hereof, the amount of such indemnification shall be paid by reducing the number
of Retained Shares to be delivered to Seller. The number of Retained Shares to
be delivered to Seller shall be reduced by a number equal to the number obtained
by dividing the amount of indemnification by 35.00. For example, if the amount
of indemnification is $500,000, the number of Retained Shares to be delivered to
Seller shall be reduced by 14,286 shares ($500,000 divided by 35.00). The
Retained Shares, reduced by any indemnification amount as provided in the
preceding sentence, shall be delivered to Seller on the earlier of (i) five
years from the Closing Date or (ii) the expiration of the statute of limitations
for any Liabilities of the Partnership existing as of January 1, 2002, or (iii)
the determination by the Buyer that all Liabilities for which Seller would be
obligated to indemnify Buyer have been resolved. The portion of the Retained
Shares which are not delivered to Seller as a result of Seller's indemnification
shall be cancelled and shall revert to unissued shares of OSI. Seller (and its
shareholders) shall retain the exclusive right to vote and receive any dividends
or distributions with respect to the Retained Shares until cancelled as a result
of indemnification as provided in the preceding sentence.
2.5. Dissolution of Seller. Nothing contained in this Agreement
shall be construed as prohibiting Seller from dissolving after the Closing Date
and transferring to each Shareholder their proportionate right to receive
Retained Shares as provided in SECTION 2.4.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND SHAREHOLDERS
Seller and each Shareholder represents and warrants to Buyer and OSI
that each of the following is true and correct in all material respects as of
the Closing Date, except to the extent identified in disclosure schedules
attached to or accompanying this Agreement (the "Disclosure Schedules").
3.1 General.
3.1(a) Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida. The Articles of Incorporation and By-Laws of Seller attached
hereto as EXHIBIT 3.1(A) are true and accurate copies thereof and are
in full force and effect and have not be modified or amended.
3.1(b) Power. Seller has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its
businesses as and where such are now being conducted.
3.1(c) Qualification. Seller is duly licensed or qualified
to do business and is in good standing as a foreign corporation in
every jurisdiction where the failure to so qualify would have a
material adverse effect on Seller's business, operations, assets or
financial condition.
3.1(d) Subsidiaries. Seller does not own any interest in any
corporation, partnership, limited liability company or other entity,
except for ownership of the Partnership Interest.
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3.2 Capitalization of Seller.
3.2(a) The authorized capital stock of Seller
consists of Ten Thousand (10,000) common shares, par value
$0.1. There are One Thousand Twenty (1,020) common shares
issued and outstanding. There are no rights or options to
acquire capital stock of Seller. All of the issued and
outstanding shares of capital stock of Seller have been duly
authorized and validly issued and are fully paid and
nonassessable. There are no shares of capital stock of Seller
held in its treasury.
3.2(b) There are no voting trusts, shareholder
agreements or other voting arrangements to which Seller or any
shareholder of Seller is a party.
3.2(c) There is no outstanding subscription,
contract, convertible or exchangeable security, option,
warrant, call or other right obligating Seller 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 Seller.
3.3 Authority. Seller has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement. The execution
and delivery of this Agreement and the other documents and instruments to be
executed and delivered by Seller pursuant hereto and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate and shareholder action on the part of Seller. The execution,
delivery and performance by Seller of this Agreement and all 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 Seller as required by
the laws of the State of Florida and Seller's corporate governance documents. No
other or further act or proceeding on the part of Seller, its directors or
shareholders is necessary to authorize this Agreement or the other documents and
instruments to be executed and delivered by Seller pursuant hereto or the
consummation of the transactions contemplated hereby and thereby. This Agreement
constitutes, and when executed and delivered, the other documents and
instruments to be executed and delivered by Seller pursuant hereto will
constitute, valid binding agreements of Seller, enforceable in accordance with
their respective terms, except as such may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally, and the
availability of equitable remedies may be limited by general equitable
principles.
3.4 No Violation. Neither the execution and delivery of this
Agreement or the other documents and instruments to be executed and delivered by
the Seller and the Shareholders pursuant hereto, nor the consummation by the
Seller of the transactions contemplated hereby and thereby (a) will violate any
applicable statute, ordinance, rule or regulation (collectively "Laws") or any
applicable order, writ, injunction, judgment, plan or decree (collectively
"Orders"), (b) will require any authorization, consent, approval, exemption or
other action by or notice to any court, arbitrator, department, commission,
board, bureau, agency, authority, instrumentally or other body, whether federal,
state, municipal, foreign country or other (collectively "Government Entities"),
or (c) will violate or conflict with, or constitute a default or breach (or an
event which, with notice or lapse of time, or both, would constitute a default
or breach) under, or will result in the termination of, or accelerate the
performance required by, or result in the creation of any Lien (as defined in
SECTION 3.6(B)) upon any of the assets of Seller, the Partnership or any
Partnership Subsidiary under any term or provision of the articles of
incorporation, by-laws, partnership agreement or other governing document of
Seller, the Partnership, or any Partnership Subsidiary or of any material
contract, commitment, understanding, arrangement, agreement or restriction of
any kind or character to which Seller, the Partnership or any Partnership
Subsidiary is a party or by which Seller, the Partnership, any Partnership
Subsidiary or any of their respective assets or properties may be bound or
affected.
3.5 Absence of Liabilities. Seller does not have any Liabilities
that would in any manner impair the Partnership Interest or result in any Lien
on the Partnership Interest. Except for Liabilities of Seller arising solely
from Seller's status as general partner of the Partnership and reflected on the
Balance Sheet, the Shareholders
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have no knowledge of any basis for the assertion against Seller of any Liability
and to the knowledge of the Shareholders, there are no circumstances,
conditions, happenings, events or arrangements, contractual or otherwise, which
may give rise to Liabilities that would result in any Lien on the Partnership
Interest or have a material adverse effect on the Partnership Interest.
3.6 Ownership of Partnership Interest.
3.6(a) Exclusive Ownership. Seller is the sole and exclusive
owner of the Partnership Interest. No person or entity other than
Seller has any right, title or interest in or to the Partnership
Interest. No Person or entity other than Seller and Buyer has any
right, title or interest in or to the Partnership.
3.6(b) Title to Partnership Interest. Seller has, and will
have on the Closing Date, good and valid title to the Partnership
Interest, free and clear of all mortgages, liens (statutory or
otherwise), security interests, claims, pledges, licenses, equities,
options, conditional sales contracts, assessments, levies, covenants,
charges or encumbrances of any nature whatsoever, perfected or
unperfected (collectively "Liens"). The Partnership Interest is not
subject to any restrictions with respect to the transferability
thereof, except those restrictions contained in the Partnership
Agreement. Seller has complete and unrestricted power and right to
sell, assign, convey and deliver the Partnership Interest to Buyer as
contemplated hereby. On the Closing Date, Buyer will receive good and
valid title to all the Partnership Interest, free and clear of all
Liens of any nature whatsoever.
3.6(c) No Default. Seller is not in default under any
agreement, contract or commitment, nor has any event or omission
occurred which through the passage of time or the giving of notice, or
both, would constitute a default thereunder or cause the acceleration
of any of its obligations or result in the creation of any Lien on any
of the Partnership Interest.
3.7 Partnership Subsidiaries.
3.7(a) Ownership. The Partnership is the owner of the
interests ("Subsidiary Interests") in the entities (individually a
"Partnership Subsidiary" and collectively the "Partnership
Subsidiaries") as shown on Exhibit C attached hereto and made a part
hereof. The Partnership is the sole and exclusive owner of the
Subsidiary Interests. No person or entity other than Seller has any
right, title or interest in or to the Subsidiary Interests.
3.7(b) Title to Subsidiary Interests. The Partnership has,
and will have on the Closing Date, good and valid title to all the
Subsidiary Interests, free and clear of all Liens (as defined in
SECTION 3.6(B).
3.7(c) No Default. The Partnership is not in default under
any agreement, contract or commitment, nor has any event or omission
occurred which through the passage of time or the giving of notice, or
both, would constitute a default thereunder or cause the acceleration
of any of its obligations or result in the creation of any Lien on any
of the Subsidiary Interests.
3.8 Financial Statements. DISCLOSURE SCHEDULE ITEM 3.8 are true
and complete copies of the financial statements of each of Seller, the
Partnership and each Partnership Subsidiary consisting of unaudited balance
sheets as of December 31 2001 ("Recent Balance Sheets") and for the prior
calendar year (or since creation of the entity if not in existence for such
time), and the related unaudited statements of income and cash flows for the
years then ended. All of such financial statements (including all notes and
schedules contained therein or annexed thereto) are true, complete and accurate
as of their respective dates, have been prepared in accordance with the books
and records of each entity, and fairly present the assets, liabilities and
financial position, the results of operations and cash flows of each entity as
of the dates and for the years and periods indicated.
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3.9 Tax Liabilities. Seller, the Partnership and each Partnership
Subsidiary have timely filed or caused to be filed all federal, foreign country,
state, county and local tax returns and reports required to be filed by them by
the Closing Date, including those with respect to income, payroll, property,
withholding, social security, unemployment, franchise, excise and sales taxes.
All such tax returns and reports were true and correct in all material respects.
Seller, the Partnership and each Partnership Subsidiary have either paid or
caused to be paid in full all taxes that have become due as reflected on any tax
return or report required to be filed by them by the Closing Date and any
interest and penalties with respect thereto. Seller, the Partnership and the
Partnership Subsidiaries have fully accrued on their Recent Balance Sheets and
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 required to be paid over or withheld. No extension or waiver of any
statute of limitations or time within which to file any return has been granted
to Seller, the Partnership or any Partnership Subsidiary with respect to any
tax. To the knowledge of the Shareholders, no unsatisfied deficiency,
delinquency or default for any tax, assessment or governmental charge has been
claimed, proposed or assessed against Seller, the Partnership or any Partnership
Subsidiary nor has Seller, the Partnership or any Partnership Subsidiary
received written notice of any such deficiency, delinquency or default. The
Shareholders have no reason to believe that any of Seller, the Partnership or
any Partnership Subsidiary has or may have any tax liabilities other than those
reflected on the Recent Balance Sheets, with any notes thereto, and those
arising in the ordinary course of business since the date of the Recent Balance
Sheets.
Seller shall have sole responsibility for filing or causing to be filed
all required tax returns for Seller for all periods up to and including the
Closing Date.
3.10 Absence of Undisclosed Liabilities. Except as and to the
extent disclosed on the Recent Balance Sheets, or in the DISCLOSURE SCHEDULE
ITEM 3.10, Seller, the Partnership and the Partnership Subsidiaries do not have
any Liabilities other than liabilities and obligations incurred since the date
of the Recent Balance Sheets in the ordinary course of business and none of
which has or will have a material adverse effect on the business, assets,
financial condition or results of operations of Seller, the Partnership or any
Partnership Subsidiary. Except as and to the extent described in the Recent
Balance Sheets or in DISCLOSURE SCHEDULE ITEM 3.10, the Shareholders have no
knowledge of any basis for the assertion against any of Seller, the Partnership
or any Partnership Subsidiary of any Liability and to the knowledge of the
Shareholders, there are no circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may give rise to Liabilities of
Seller, the Partnership, or any Partnership Subsidiary, except for liabilities
and obligations incurred in the ordinary course of business.
3.11 Litigation and Government Claims. Except as set forth in
DISCLOSURE SCHEDULE ITEM 3.11, there is no action, suit, claim, proceeding,
arbitration, investigation or inquiry, whether civil, criminal or administrative
("Litigation") pending or, to the knowledge of the Shareholders, threatened
against any of Seller, the Partnership or any Partnership Subsidiary, or to
which any of their business or assets is subject, nor does any Shareholder know,
or have grounds to know, of any basis for any unasserted Litigation of any
nature that might be asserted against Seller, the Partnership or any Partnership
Subsidiary. Except as set forth in DISCLOSURE SCHEDULE ITEM 3.11, none of
Seller, the Partnership or any Partnership Subsidiary nor their respective
business or assets is subject to any Order of any Governmental Entity that would
have a material adverse effect on any of Seller, the Partnership or any
Partnership Subsidiary.
3.12 Compliance With Laws and Orders.
3.12(a) Compliance. Except as set forth in DISCLOSURE
SCHEDULE ITEM 3.12(A), to the knowledge of the Shareholders, each of
Seller, the Partnership and the Partnership Subsidiaries is in material
compliance with all applicable Laws and Orders, including, without
limitation, those applicable to franchising, foreign country operations
and corrupt practices, discrimination in employment, occupational
safety and health, trade practices, competition and pricing, product
warranties, zoning, building and sanitation, employment, retirement and
labor relations and product advertising. Except as set forth in
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DISCLOSURE SCHEDULE ITEM 3.12(A), none of Seller, the Partnership or
any Partnership Subsidiary has received notice of any violation or
alleged violation of, and is subject to no Liability for past or
continuing violation of, any Laws or Orders. All reports and returns
required to be filed by each of Seller, the Partnership and each
Partnership Subsidiary with any Government Entity have been filed, and
were accurate and complete when filed.
3.13 Employee Benefit Plans.
Except for plans maintained by OSI and for plans specified DISCLOSURE
SCHEDULE ITEM 3.13, none of Seller, the Partnership or any Partnership
Subsidiary maintains any "employee benefit plan," as defined in Section 3(3) of
ERISA which (i) is subject to any provision of ERISA and (ii) is or was at any
time during the last 5 years maintained, administered or contributed to by any
of Seller, the Partnership or any Partnership Subsidiary and covers any employee
or former employee of any of Seller, the Partnership or any Partnership
Subsidiary or under which any of Seller, the Partnership or any Partnership
Subsidiary has any liability. Such plans are referred to collectively herein as
the "Employee Plans".
Each Employee Plan has been maintained in compliance with its terms and
the requirements prescribed by any and all statutes, orders, rules and
regulations, including but not limited to, ERISA and the Internal Revenue Code,
which are applicable to such Plan. No assets of any of Seller, the Partnership
or any Partnership Subsidiary are or could be subject, directly or indirectly,
to any liability or lien by reason of any action or inaction taken with respect
to any Employee Plan maintained by any of Seller, the Partnership or any
Partnership Subsidiary.
Seller, the Partnership and the Partnership Subsidiaries have no
liability in respect of post-retirement health and medical benefits for retired
employees of Seller, the Partnership or any Partnership Subsidiary, determined
using assumptions that are reasonable in the aggregate, over the fair market
value of any fund, reserve or other assets segregated for the purpose of
satisfying such liability (including for such purposes any fund established
pursuant to Section 401(h) of the Code). Seller, the Partnership and each
Partnership Subsidiary have reserved their right to amend or terminate any
Employee Plan or other benefit arrangement providing health or medical benefits
in respect of any active employee of Seller, the Partnership or any Partnership
Subsidiary under the terms of any such plan and descriptions thereof given to
employees. With respect to any Employee Plans which are "group health plans"
under Section 4980B of the Code and Section 607(l) of ERISA, there has been
timely compliance in all material respects with all requirements imposed
thereunder, and under Parts 6 and 7 of Title I of ERISA generally, so that
Seller, the Partnership or any Partnership Subsidiary have no (and will not
incur any) loss, assessment, tax penalty or other sanction with respect to any
such plan.
There has been no amendment to, written interpretation or announcement
(whether or not written) by Seller, the Partnership or any Partnership
Subsidiary relating to, or change in employee participation or coverage under,
any Employee Plan which would increase the expense of maintaining such Employee
Plan above the level of the expense incurred in respect thereof for the fiscal
year ended immediately prior to the Closing Date.
3.14 Absence of Certain Changes. Except as and to the extent set
forth in DISCLOSURE SCHEDULE ITEM 3.14, since the date of the Recent Balance
Sheets there has not been:
3.14(a) No Adverse Change. Any material adverse change in the
financial condition, assets, Liabilities, business, prospects or
operations of the Partnership or any Partnership Subsidiary;
3.14(b) No Damage. Any material loss, damage or destruction,
whether covered by insurance or not, affecting any business or
properties of the Partnership or any Partnership Subsidiary;
3.14(c) No Increase in Compensation. Other than in the
ordinary course of business, any increase in the compensation, salaries
or wages payable or to become payable to any officer of the Partnership
or any Partnership Subsidiary (including, without limitation, any
increase or change pursuant
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to any bonus, pension, profit sharing, retirement or other plan or
commitment), or any bonus or other employee benefit granted, made or
accrued;
3.14(d) No Labor Disputes. Any labor dispute or disturbance,
other than routine individual grievances which are not material to the
business, financial condition or results of operations of any
Partnership Subsidiary;
3.14(e) No Commitments. Any material commitment or
transaction by the Partnership or any Partnership Subsidiary
(including, without limitation, any borrowing or capital expenditure)
other than in the ordinary course of business;
3.14(f) No Disposition of Property. Any sale, lease or other
transfer or disposition of any properties or assets of the Partnership
or any Partnership Subsidiary, except in the ordinary course of
business;
3.14(g) No Indebtedness. Any indebtedness for borrowed money
incurred, assumed or guaranteed by the Partnership or any Partnership
Subsidiary;
3.14(h) No Liens. Any Lien made on any of the properties or
assets of the Partnership or any Partnership Subsidiary other than
liens for taxes not yet due and payable;
3.14(i) No Amendment of Contracts. Any entering into,
amendment or termination by the Partnership or any Partnership
Subsidiary of any contract, or any waiver of material rights
thereunder, other than in the ordinary course of business;
3.14(j) No Unusual Events. Any other event or condition not
in the ordinary course of business of the partnership or any
Partnership Subsidiary.
3.15 No Brokers or Finders. No Shareholder nor any of their
respective managers, officers, employees, members or agents have retained,
employed or used any broker or finder in connection with the transaction
provided for herein or in connection with the negotiation thereof.
3.16 Disclosure. No representation or warranty by the Shareholders
in this Agreement, nor any statement, certificate, schedule, document or exhibit
hereto furnished or to be furnished by or on behalf of the Shareholders pursuant
to this Agreement or in connection with the transactions contemplated hereby,
contains or shall contain (when considered in light of the entirety of all
information provided by the Shareholders to Buyer) any misstatement of any
material fact or omits any material fact necessary to make the statements
contained therein not misleading. Each of Seller and the Shareholders has
disclosed to OSI and Buyer all facts known to them that are material to
Seller's, the Partnership's or any Partnership Subsidiary's respective
businesses, assets, operations, financial condition or prospects.
3.17 Contracts. Excluding (i) contracts between Buyer or OSI, on the
one hand, and Seller or the Partnership, on the other hand (ii) contracts and
commitments entered into by the Partnership to which Buyer or OSI is a party,
and (iii) contracts and commitments entered into with the written consent of OSI
or Buyer, ITEM 3.17 of the Disclosure Schedule is a complete and accurate list
of all of the contracts and commitments (including summaries of oral contracts)
to which any of Seller, the Partnership or any Partnership Subsidiary is a party
or by which any of them is bound.
3.18 Necessary Approvals and Consents. Other than (a) consents required
to be obtained from applicable liquor control authorities, (b) consents required
to be obtained from lessors, and (c) 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
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or filing with, any person or governmental or regulatory authority or agency is
necessary for the execution and delivery by each of Seller and the Shareholders
of this Agreement and the other agreements executed or to be executed by them in
connection with this Agreement, and the consummation by Seller and the
Shareholders of the transactions contemplated by this Agreement and the
ownership and operation by Buyer of the respective businesses and properties of
the Partnership and the Partnership Subsidiaries after the Closing Date in
substantially the same manner as now operated.
3.19 Compliance With Laws. Seller and the Shareholders have no
actual knowledge that Seller, the Partnership or any Partnership Subsidiary 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.
4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
In addition to the representations and warranties contained in SECTION
3, each Shareholder represents and warrants to Buyer as follows:
4.1 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.
4.2 Binding Effect. This Agreement and the other documents
executed or to be executed by him 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:
4.2(a) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights; and
4.2(b) the availability of equitable remedies may be limited
by equitable principles of general applicability.
4.3 Ownership. The Shareholders are record and beneficial
shareholders of Seller and own the number of shares of common stock of Seller
and representing the percentages of common stock of Seller issued and
outstanding, as indicated on Exhibit A attached hereto and made a part hereof.
No person or entity has any rights (in any form) to acquire any capital stock of
Seller from any of the Shareholders.
4.4 Voting. Each Shareholder acknowledges that in his individual
capacity as a shareholder (and as a director, if applicable) of Seller, he has
voted in favor of the execution and delivery of this Agreement.
4.5 Compliance with Other Instruments. Neither the execution and
delivery by him of this 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 any Shareholder 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 any Shareholder is
bound, to which he is a party or to which he is subject.
4.6 Securities Law Compliance. Each Shareholder represents,
warrants and covenants to Buyer and OSI that:
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4.6(a) the Shareholder has received all schedules and
exhibits and the documents furnished to pursuant to SECTION 6.8;
4.6(b) the Shareholder has had the opportunity to ask
questions of and receive answers from representatives of the management
of OSI concerning the terms and conditions of the transactions
contemplated hereby and to obtain all additional information that OSI
possesses or could acquire without unreasonable expense that is
necessary to verify the accuracy of information furnished to the
Shareholder.
4.6(c) OSI and Buyer have furnished the Shareholder with all
information requested and full access to materials concerning OSI and
Buyer which the Shareholder and/or his advisors deemed necessary to
properly evaluate the purchase of the Partnership Interest in exchange
for common stock of OSI. Such information and access have been made
available and utilized to the extent the Shareholder considers
necessary and advisable in making an informed investment decision, and
the Shareholder has consulted his own tax advisor and understands the
evaluation of such materials may require the assistance of experts and
the Shareholder has utilized such experts to the extent deemed
necessary.
4.6(d) The Shareholder understands that the OSI Common Stock
to be received is an investment of a speculative nature and the
Shareholder must bear the risks thereof for an indefinite period of
time. The Shareholder has adequate means for providing for his needs,
is able to bear the economic risk of the investment and has no need for
liquidity in the OSI Common Stock to be received in the transactions
provided for in this Agreement.
4.6(e) The Shareholder and/or his representatives or
advisors who have acted with or on behalf of the Shareholder and who
have advised the Shareholder in this matter have such knowledge and
experience in financial and business matters that the Shareholder
and/or his representatives are capable of evaluating the merits and
risks of the Purchase and receipt of OSI Common Stock.
4.6(f) The Shareholder is participating in the Purchase
solely for his account as a private investment, and the Shareholder has
no present agreement, understanding, arrangement or intention to sell
or transfer all or any portion of the shares of OSI Common Stock to be
issued in the Purchase to any other person or persons. The Shareholder
does not presently intend to enter into any such agreement or
undertaking and there are no present circumstances which will compel
the Shareholder to sell any OSI Common Stock so received. The
Shareholder will not sell or otherwise transfer the shares (except for
de minimis gifts of shares) unless they are registered under the
Securities Act and applicable state securities laws or, in the opinion
of OSI and its counsel, an exemption from registration is available
therefore.
4.6(g) The investment by the Shareholder in OSI Common Stock
pursuant to the Purchase is a suitable investment for the Shareholder
given the investment goals and objectives of the Shareholder.
4.6(h) The Shareholders agrees to indemnify and hold OSI and
Buyer and each of their respective officers, directors and advisors
harmless against all liability arising out of or in connection with any
purchase, resale or distribution by the Shareholder of any OSI Common
Stock received hereby which is effected other than in strict compliance
with the terms hereof and applicable law.
4.6(i) The Shareholder understands that the shares of OSI
Common Stock to be issued in the Purchase 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 Buyer will have any obligation to register any
such OSI Common Stock.
4.6(j) The Shareholder understands that OSI will place an
appropriate legend on the certificate representing OSI Common Stock to
be received restricting the transfer of the shares and stop-transfer
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instructions will be given to the transfer agent for the OSI Common
Stock with respect to such certificates.
4.6(k) Each of those Shareholders who own a majority of the
issued and outstanding capital stock of Seller is a natural person (i)
whose net worth (the excess of total assets over total liabilities),
individually or jointly with his/her 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
his/her 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.
4.6(l) The Shareholder is a resident of the state indicated
on Exhibit A.
4.7 Payment of Liabilities. Seller and the Shareholders covenant
and agree that all debts and liabilities of Seller relating to periods prior to
the Closing Date shall be paid or satisfied in full prior to the Effective Date.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents and warrants to the Seller and Shareholders that each
of the following is true and correct in all material respects as of the Closing
Date.
5.1 Corporate.
5.1(a) Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida.
5.1(b) Corporate Power. Buyer has all requisite corporate
power and authority to own, operate and lease its properties, to carry
on its businesses as and where such are now being conducted.
5.2 Authority. The execution and delivery of this Agreement and
the other documents and instruments to be executed and delivered by Buyer
pursuant hereto and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by the Board of Directors of Buyer. No other
corporate act or proceeding on the part of Buyer or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Buyer pursuant hereto or the consummation of the
transactions contemplated hereby and thereby. This Agreement constitutes, and
when executed and delivered, the other documents and instruments to be executed
and delivered by Buyer pursuant hereto will constitute, valid and binding
agreements of Buyer, enforceable in accordance with their respective terms,
except as such may be limited by bankruptcy, insolvency, reorganization or other
laws affecting creditors' rights generally, and by general equitable principles.
5.3 No Brokers or Finders. Neither Buyer nor any of its directors,
officers, employees or agents have retained, employed or used any broker or
finder in connection with the transaction provided for herein or in connection
with the negotiation thereof.
5.4 Disclosure. No representation or warranty by Buyer in this
Agreement, nor any statement, certificate, schedule, document or exhibit hereto
furnished or to be furnished by or on behalf of Buyer pursuant to this Agreement
or in connection with transactions contemplated hereby, contains or shall
contain any untrue statement of material fact or omits or shall omit a material
fact necessary to make the statements contained therein not misleading.
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5.5 Other Action. The Buyer shall use its best efforts to cause
the fulfillment at the earliest practicable date of all the conditions to the
parties' obligations to consummate the transactions contemplated in this
Agreement.
6. REPRESENTATIONS AND WARRANTIES OF OSI AND BUYER
OSI and Buyer, jointly and severally, represent and warrant to Seller
and the Shareholders as follows:
6.1 Organization and Good Standing. OSI and Buyer are corporations
duly organized, validly existing and in good standing under the laws of the
States of Delaware and Florida, respectively.
6.2 Foreign Qualification. OSI and Buyer are 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 their respective business, operations, assets or financial condition.
6.3 Power and Authority. OSI and Buyer 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.
6.4 Authority and Validity. OSI and Buyer each have the corporate
power and authority to execute, deliver and perform their respective obligations
under this Agreement and the other documents executed or to be executed by OSI
and Buyer in connection with this Agreement and the execution, delivery and
performance by OSI and Buyer of this Agreement and the other documents executed
or to be executed by OSI and Buyer in connection with this Agreement have been
duly authorized by all necessary corporate action.
6.5 Binding Effect. This Agreement and the other documents
executed or to be executed by OSI and Buyer in connection with this Agreement
have been or will have been duly executed and delivered by OSI and Buyer and are
or will be, when executed and delivered, the legal, valid and binding
obligations of OSI and Buyer, enforceable in accordance with their terms except
that:
6.5(a) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights; and
6.5(b) the availability of equitable remedies may be limited
by equitable principles of general applicability.
6.6 Compliance with Other Instruments. Neither the execution and
delivery of this Agreement or the other documents and instruments to be executed
and delivered by the Buyer and OSI pursuant hereto, nor the consummation of the
transactions contemplated hereby and thereby (a) will violate any applicable
statute, ordinance, rule or regulation (collectively "Laws") or any applicable
order, writ, injunction, judgment, plan or decree (collectively "Orders"), (b)
will require any authorization, consent, approval, exemption or other action by
or notice to any court, arbitrator, department, commission, board, bureau,
agency, authority, instrumentally or other body, whether federal, state,
municipal, foreign country or other (collectively "Government Entities"), or (c)
will violate or conflict with, or constitute a default or breach (or an event
which, with notice or lapse of time, or both, would constitute a default or
breach) under, or will result in the termination of, or accelerate the
performance required by, or result in the creation of any Lien (as defined in
SECTION 3.6(B)) upon any of the assets of Buyer or OSI under any term or
provision of the articles of incorporation, by-laws, partnership agreement or
other governing document of Buyer or OSI or of any material contract,
commitment, understanding, arrangement, agreement or restriction of any kind or
character to which Buyer or OSI is a party or by which Buyer or OSI or any of
their respective assets or properties may be bound or affected.
6.7 Capitalization of OSI. The authorized capital stock of OSI
consists of Two Hundred Million
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(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 77,302,000
shares of Common Stock and no shares of Preferred Stock were issued and
outstanding as of February 28, 2002. 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 pursuant to the
Purchase, when issued and delivered, will be duly authorized, validly issued,
fully paid and non-assessable. 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 Buyer or OSI to issue shares of
its capital stock. All of the outstanding shares of capital stock of Buyer are
owned by OSI, free and clear of any lien or encumbrance.
6.8 SEC Reports. OSI has delivered to Seller and the Shareholders
true and complete copies of its (i) Annual Report on Form 10-K for the year
ended December 31, 2001; (ii) Proxy Statement used in connection with its 2002
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, 2001 to the date hereof; and (v) all Forms 10-Q,
if any, filed with the Securities and Exchange Commission since December 31,
2001 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 Closing Date have been or will be delivered
to Seller and the Shareholders. All financial statements and schedules included
in the documents referred to in this SECTION 6.8 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.
6.9 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, 2001, there has not been
any material adverse change in the financial condition, results of operations or
the business, properties, assets or liabilities of Buyer or OSI.
7. COVENANTS OF SHAREHOLDERS
7.1 Noncompetition. For a two (2) year period commencing on the
Closing Date Seller, each Shareholder and their respective Affiliates shall not,
individually or jointly with others, directly or indirectly, whether for his,
her or its own account or for that of any other person or entity, engage in or
own or hold any ownership interest in, have any interest in or lend any
assistance to, steakhouse restaurant or any person or entity engaged in a
business owning, operating, franchising or controlling a steakhouse restaurant
business, regardless of the geographic location of such person, entity or
business, and neither Seller, any Shareholder or their respective Affiliates
shall act as an officer, director, employee, partner, independent contractor,
consultant, principal, agent, proprietor, or in any other capacity for, nor lend
any assistance (financial or otherwise) or cooperation to, any such person, or
entity; PROVIDED, HOWEVER, that it shall not be a violation of this SECTION 7.1
for Seller, any Shareholder or their respective Affiliates to own a one percent
(1%) or smaller interest in any corporation required to file periodic reports
with the Securities and Exchange Commission under the Securities Exchange Act of
1934, or successor statute. For purposes of this ARTICLE 7, the term "steakhouse
restaurant" shall mean any restaurant for which: (i) the word "steak", "beef",
or "prime rib" or any variation thereof is used in its name or logo; or (ii) the
sale of steak, beef or prime rib is featured in its advertising or marketing
efforts, or (iii) the sale of steak, beef and prime rib collectively constitute
twenty five percent (30%) or more of its entree sales, computed on a dollar
basis. This SECTION 7.1 shall not apply to any employment of a Shareholder by
any affiliate of OSI.
7.2 Confidentiality.
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7.2(a) Definition. For the purpose of this Agreement,
"Proprietary Information" shall include that part of the Partnership
Interest that consists of all information which reasonably would be
considered proprietary or confidential to the business of operating
Outback Steakhouse restaurants including but not limited to suppliers,
customers, trade or industrial practices, marketing and technical
plans, technology, personnel, organization or internal affairs, plans
for products and ideas, recipes, menus, wine lists and proprietary
techniques and other trade secrets. Notwithstanding the foregoing,
"Proprietary Information" shall not include information which has
entered the public domain.
7.2(b) No Disclosure, Use, or Circumvention. The
Shareholders and their respective members and Affiliates shall not
disclose any Proprietary Information to any third parties. Except in
connection with their employment with Buyer or Buyer's Affiliates, the
Shareholders will not use any Proprietary Information in the
Shareholders' business or any affiliated business without the prior
written consent of the Buyer and then only to the extent specified in
that consent. Consent may be granted or withheld at the sole
discretion of the Buyer.
7.2(c) Maintenance of Confidentiality. The Shareholders
shall take all steps reasonably necessary or appropriate to maintain
the confidentiality of the Proprietary Information in accordance with
this Agreement.
7.3 Non-Solicitation. For a five (5) year period commencing on the
Closing Date, Seller, each Shareholder and their respective Affiliates shall not
offer employment to any employee of the Buyer, OSI or their Affiliates or
otherwise solicit or induce any employee of the Buyer, OSI or their Affiliates
to terminate his or her employment, nor shall Seller, any Shareholder or any of
their respective Affiliates act as partner, consultant, agent, owner or part
owner, for any person or entity which solicits or otherwise induces any employee
of the Buyer, OSI or their Affiliates to terminate his or her employment with
the Buyer, OSI or their Affiliates, except for non-management personnel
recruited through general solicitations in print or other media.
7.4 Reasonableness of Restrictions; Reformation; Enforcement. The
parties hereto recognize and acknowledge that the geographical and time
limitations contained in SECTIONS 7.1, 7.2 and 7.3 hereof are reasonable and
properly required for the adequate protection of the Buyer's interests. It is
agreed by the parties hereto that if any portion of the restrictions contained
in SECTIONS 7.1, 7.2 or 7.3 are held to be unreasonable, arbitrary, or against
public policy, then the restrictions shall be considered divisible, both as to
the time and to the geographical area, with each month of the specified period
being deemed a separate period of time and each radius mile of the restricted
territory being deemed a separate geographical area, so that the lesser period
of time or geographical area shall remain effective so long as the same is not
unreasonable, arbitrary, or against public policy. The parties hereto agree that
in the event any court of competent jurisdiction determines the specified period
or the specified geographical area of the restricted territory to be
unreasonable, arbitrary, or against public policy, a lesser time period or
geographical area that is determined to be reasonable, nonarbitrary, and not
against public policy may be enforced. If any of the covenants contained herein
are violated and if any court action is instituted by the Buyer to prevent or
enjoin such violation, then the period of time during which the business
activities shall be restricted, as provided in this Agreement, shall be
lengthened by a period of time equal to the period between the date of the
breach of the terms or covenants contained in this Agreement and the date on
which the decree of the court disposing of the issues upon the merits shall
become final and not subject to further appeal.
7.5 Specific Performance. The parties agree that a breach of any
of the covenants contained in SECTIONS 7.1, 7.2 and 7.3 hereof will cause
irreparable injury to the Buyer for which the remedy at law will be inadequate
and would be difficult to ascertain and therefore, in the event of the breach or
threatened breach of any such covenants, the Buyer shall be entitled, in
addition to any other rights and remedies it may have at law or in equity, to
obtain an injunction to restrain any threatened or actual activities in
violation of any such covenants. The parties hereby consent and agree that
temporary and permanent injunctive relief may be granted in any proceedings that
might be brought to enforce any such covenants without the necessity of proof of
actual
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damages, and in the event the Buyer does apply for such an injunction, that the
Buyer has an adequate remedy at law shall not be raised as a defense.
8. FURTHER COVENANTS OF SHAREHOLDERS
The Shareholders covenant and agree as follows:
8.1 Access to Information and Records. Prior to the Closing Date,
the Shareholders shall give Buyer, its counsel, accountants and other
representatives (i) access during normal business hours to all of the
properties, books, records, contracts and documents of the Seller relating to
the Partnership Interest for the purpose of such inspection, investigation and
testing as Buyer deems appropriate (and Seller shall furnish or cause to be
furnished to Buyer and its representatives all information with respect to the
business and affairs of Seller as Buyer may request); (ii) access to employees,
agents and representatives for the purposes of such meetings and communications
as Buyer reasonably desires; and (iii) access to vendors, customers,
manufacturers of its machinery and equipment, and others having business
dealings with Seller. Through the Closing Date, the Buyer and its Affiliates
shall not disclose any Proprietary Information obtained pursuant to this
paragraph to any third parties and until the Closing Date will not use any such
Proprietary Information in the Buyer's business or any affiliated business
without the prior written consent of the Seller and then only to the extent
specified in that consent. Consent may be granted or withheld at the sole
discretion of the Seller. The Buyer shall not contact any suppliers, customers,
employees, affiliates or associates to circumvent the purposes of this
provision. The Buyer shall take all steps reasonably necessary or appropriate to
maintain the strict confidentiality of the Proprietary Information through the
Closing Date.
8.2 Conduct of Business Pending the Closing. From the date hereof
until the Closing Date, except as otherwise approved in writing by Buyer, which
approval shall not be unreasonably withheld:
8.2(a) No Changes. Seller, as general partner of the
Partnership, will cause the Partnership and the Partnership
Subsidiaries, in all material respects, to carry on their business
diligently and in the same manner as heretofore and will not make or
institute any material changes in its methods of purchase, sale,
management, accounting or operation.
8.2(b) Maintain Organization. The Seller will take such
action as may be necessary to maintain, preserve, renew and keep in
favor the material rights and franchises of the Partnership and the
Partnership Subsidiaries and will use its commercially reasonable best
efforts, to the extent material hereto, to preserve the business
organization of the Partnership and the Partnership Subsidiaries
intact, to keep available to Buyer the present officers and employees,
and to preserve for Buyer its present relationships with suppliers and
customers and others having business relationships with the Partnership
and the Partnership Subsidiaries.
8.2(c) No Breach. The Shareholders will not do or omit any
act, or permit any omission to act, which would reasonably be expected
to cause a breach of any material contract, commitment or obligation,
or any breach of any representation, warranty, covenant or agreement
made by the Shareholders herein.
8.2(d) No Material Contracts. No contract or commitment will
be entered into, by or on behalf of the Partnership or any Partnership
Subsidiary, except contracts, commitments, purchases or sales which are
in the ordinary course of business and consistent with past practice,
are not material to the Partnership or any Partnership Subsidiary
(individually or in the aggregate) and would not have been required to
be disclosed in the Disclosure Schedule had they been in existence on
the date of this Agreement.
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8.2(e) No Organizational Changes. Seller shall not
materially amend its Articles of Incorporation or By-Laws or make any
changes in ownership percentages.
8.2(f) Maintenance of Insurance. Seller shall cause the
Partnership and partnership Subsidiaries to maintain all of the
insurance in effect as of the date hereof.
8.2(g) No Negotiations. The Shareholders will not directly
or indirectly (through a representative or otherwise) solicit or
furnish any information to any prospective buyer, commence, or conduct
presently ongoing, negotiations with any other party or enter into any
agreement with any other party concerning the sale of the Partnership
Interest, or any capital stock in Seller (an "acquisition proposal"),
and the Shareholders shall immediately advise Buyer of the receipt of
any acquisition proposal.
8.3 Consents. The Shareholders will use commercially reasonable
efforts to obtain all consents necessary for the consummation of the
transactions contemplated hereby prior to the Closing Date.
8.4 Other Action. The Shareholders shall use commercially
reasonable efforts to cause the fulfillment at the earliest practicable date of
all of the conditions to the parties' obligations to consummate the transactions
contemplated in this Agreement.
8.5 Disclosure. Through the Closing Date, the Shareholders shall
have a continuing obligation to promptly notify Buyer in writing with respect to
any matter hereafter arising or discovered which, if existing or known at the
date of this Agreement, would have been required to be set forth or described in
the Disclosure Schedule, but no such disclosure shall cure any breach of any
representation or warranty which is inaccurate.
9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
Each and every obligation of Buyer to be performed on the Closing Date
shall be subject to the satisfaction prior to or on the Closing Date of each of
the following conditions:
9.1 Representations and Warranties True on the Closing Date. Each
of the representations and warranties made by the Shareholders in this
Agreement, and the statements contained in the Disclosure Schedule or in any
instrument, list, certificate or writing delivered by the Shareholders pursuant
to this Agreement, shall be true and correct in all material respects as of the
Closing Date, except for any changes permitted by the terms of this Agreement or
consented to in writing by Buyer.
9.2 Compliance With Agreement. Seller and the Shareholders shall
have performed and complied with all of their agreements and obligations under
this Agreement which are to be performed or complied with by it prior to or on
the Closing Date.
9.3 Absence of Litigation. No Litigation shall have been commenced
or threatened, and no material investigation by any Government Entity shall have
been commenced, against Buyer, the Shareholders or any of the Affiliates,
officers, directors or managers of any of them, with respect to the transactions
contemplated hereby.
9.4 Consents and Approvals. Except as otherwise specifically
provided in this Agreement, all approvals, consents and waivers that are
required to effect the transactions contemplated hereby shall have been
received, and copies thereof shall have been delivered to Buyer on or prior to
the Closing Date.
9.5 Delivery of Closing Documents. The Seller and the Shareholders
shall have delivered the closing documents specified in SECTION 12.3.
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10. CONDITIONS PRECEDENT TO SELLER'S AND SHAREHOLDERS' OBLIGATIONS
Each and every obligation of the Shareholders to be performed on the
Closing Date shall be subject to the satisfaction prior to or on the Closing
Date of the following conditions:
10.1 Representations and Warranties True on the Closing Date. Each
of the representations and warranties made by Buyer and OSI in this Agreement
shall be true and correct in all material respects as of the Closing Date.
10.2 Compliance With Agreement. Buyer and OSI shall have in all
material respects performed and complied with all of their respective agreements
and obligations under this Agreement which are to be performed or complied with
by Buyer and OSI prior to or on the Closing Date, including the delivery of the
closing documents specified in SECTION 12.4.
10.3 Absence of Litigation. No material Litigation shall have been
commenced or threatened, and no material investigation by any Government
Entity shall have been commenced, against Buyer or OSI, or the Seller or any
Shareholder or any of the affiliates, officers, managers, directors or
shareholders of either of them, with respect to the transactions contemplated
hereby.
11. INDEMNIFICATION
11.1 By the Shareholders. Subject to the terms and conditions of
this SECTION 11, Seller, and each Shareholder jointly and severally, hereby
agree to indemnify, defend and hold harmless Buyer, OSI, the Partnership, each
Partnership Subsidiary and each of their respective directors, officers,
employees and Affiliates (hereinafter "Buyer's Indemnitees"), from and against
all Claims asserted against, resulting to, imposed upon, or incurred by Buyer's
Indemnitees or the Partnership Interest transferred to Buyer pursuant to this
Agreement, directly or indirectly, by reason of, arising out of or resulting
from (a) the inaccuracy or breach of any representation or warranty of any of
Seller or the Shareholders contained in or made pursuant to this Agreement
(regardless of whether such breach is deemed "material"); (b) the breach of any
covenant of any of Seller or the Shareholders contained in this Agreement
(regardless of whether such breach is deemed "material"); or (c) except as
incurred in the ordinary course of business between the execution of this
Agreement and the Closing Date, any Liability of the Partnership or any
Partnership Subsidiary not included on the Recent Balance Sheet or the
Disclosure Schedules and which arises out of or relates to events first
occurring prior to the Closing Date; provided, however, that regardless of any
disclosure on the Recent Balance Sheets or the Disclosure Schedules, Seller
shall indemnify Buyer's Indemnitees from and against any Claim relating to,
arising out of, or in any way connected with: (i) OBS Investors and (ii) Marc
Westerhorstmann, Helvag and its principals and agents, and Outback Steakhouse
restaurants in Germany. Notwithstanding any other provision hereof,
Shareholder's liability under this SECTION 11.1 for claims relating to (i) OBS
Investors and (ii) Marc Westerhorstmann, Helvag and its principals and agents,
and Outback Steakhouse restaurants in Germany shall be limited to the Retained
Shares (as defined in SECTION 2.4 hereof), in the aggregate. As used in this
SECTION 11, the term "Claim" shall include (i) all Liabilities and Liens; (ii)
all losses, damages, judgments, awards, settlements approved by the Buyer (such
approval shall not be unreasonably withheld or delayed), costs and expenses
(including, without limitation, interest (including prejudgment interest in any
litigated matter), penalties, court costs and reasonable attorneys' fees and
expenses); and (iii) all demands, claims, suits, actions, costs of
investigation, costs of defense, causes of action, proceedings and assessments,
whether or not ultimately determined to be valid.
11.2 By Buyer. Subject to the terms and conditions of this SECTION
11, Buyer hereby agrees to indemnify, defend and hold harmless the Shareholders
and their directors, officers, employees and Affiliates from and against all
Claims asserted against, resulting to, imposed upon or incurred by any such
person, directly or indirectly, by reason of or resulting from (a) the
inaccuracy or breach of any representation or warranty of Buyer contained in or
made pursuant to this Agreement (regardless of whether such breach is deemed
"material"); (b) the
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breach of any covenant of Buyer contained in this Agreement (regardless of
whether such breach is deemed "material").
11.3 Indemnification of Third-Party Claims. The obligations and
liabilities of any party to indemnify any other under this SECTION 11 with
respect to Claims relating to third parties shall be subject to the following
terms and conditions:
11.3(a) Notice and Defense. The party or parties to be
indemnified (whether one or more, the "Indemnified Party") will give
the party from whom indemnification is sought (the "Indemnifying
Party") written notice of any such Claim, and the Indemnified Party
shall have the right to undertake the defense thereof, at the expense
of the Indemnifying Party, by representatives and counsel approved by
the Indemnified Party in its sole and absolute discretion. Failure to
give such notice shall not affect the Indemnifying Party's duty or
obligations under this SECTION 11, except to the extent the
Indemnifying Party is prejudiced thereby. The Indemnified Party shall
have the right to settle any Claim asserted by a third party and shall
be entitled to indemnification therefore. Each party shall make
available to the other all records and other materials required by them
and in the possession or under the control of such party, for the use
of the other party in defending any such Claim, and shall in other
respects give reasonable cooperation in such defense.
11.3(b) Right to Settle The Indemnified Party shall have the
right to undertake the defense, compromise or settlement of any Claim
asserted by a third party or consent to the entry of a judgment with
respect to such Claim, on behalf of and for the account and risk of the
Indemnifying Party, and the Indemnifying Party shall thereafter have no
right to challenge the Indemnified Party's defense, compromise,
settlement or consent to judgment.
11.3(c) Indemnified Party's Rights. Anything in this SECTION
11 to the contrary notwithstanding, (i) if there is a reasonable
probability that a Claim may materially and adversely affect the
Indemnified Party other than as a result of money damages or other
money payments, the Indemnified Party shall have the right to defend,
compromise or settle such Claim, and (ii) the Indemnifying Party shall
not, without the written consent of the Indemnified Party, settle or
compromise any Claim or consent to the entry of any judgment which does
not include as an unconditional term thereof the giving by the claimant
or the plaintiff to the Indemnified Party of a release from all
Liability in respect of such Claim.
11.4 Payment. The Indemnifying Party shall promptly pay the
Indemnified Party any amount due under this SECTION 11, which payment may be
accomplished in whole or in part, at the option of the Indemnified Party, by the
Indemnified Party setting off any amount owed to the Indemnifying Party by the
Indemnified Party. In the event Seller or the Shareholders are the Indemnifying
Party, OSI shall have the right to effect indemnification by the reduction and
cancellation of the Retained Shares as provided in SECTION 2.4 hereof. To the
extent set-off is made by an Indemnified Party in satisfaction or partial
satisfaction of an indemnity obligation under this SECTION 11 that is disputed
by the Indemnifying Party, upon a subsequent determination by final judgment not
subject to appeal that all or a portion of such indemnity obligation was not
owed to the Indemnified Party, the Indemnified Party shall pay the Indemnifying
Party the amount which was set off and not owed together with interest from the
date of set-off until the date of such payment at an annual rate equal to the
average annual rate in effect as of the date of the set-off, on those three
maturities of United States Treasury obligations having a remaining life, as of
such date, closest to the period from the date of the set-off to the date of
such judgment. Upon judgment, determination, settlement or compromise of any
third party Claim, the Indemnifying Party shall pay promptly on behalf of the
Indemnified Party, and/or to the Indemnified Party in reimbursement of any
amount theretofore required to be paid by it, the amount so determined by
judgment, determination, settlement or compromise and all other Claims of the
Indemnified Party with respect thereto, unless in the case of a judgment an
appeal is made from the judgment. If the Indemnifying Party desires to appeal
from an adverse judgment, then the Indemnifying Party shall post and pay the
cost of the security or bond to stay execution of the judgment pending appeal.
Upon the payment in full by the Indemnifying Party of such amounts, the
Indemnifying Party shall
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succeed to the rights of such Indemnified Party, to the extent not waived in
settlement, against the third party who made such third party Claim.
11.5 No Waiver. The closing of the transactions contemplated by
this Agreement shall not constitute a waiver by any party of its rights to
indemnification hereunder, regardless of whether the party seeking
indemnification has knowledge of the breach, violation or failure of condition
constituting the basis of the Claim at or before the closing, and regardless of
whether such breach, violation or failure is deemed to be "material".
11.6 Survival of Indemnification. The indemnification obligations
of the parties contained in this SECTION 11 shall survive the date of this
Agreement and the Closing Date for all Claims brought or demands for
indemnification made prior to the expiration of five (5) years from the Closing
Date.
12. CLOSING
12.1 Closing Date. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place ten (10) days after the
satisfaction of all conditions precedent required by this Agreement or upon such
other date as Buyer and Seller may agree (the "Closing Date").
12.2 Place of Closing. The Closing shall take place at Buyer's
corporate office or at such other place as the parties hereto shall agree upon.
12.3 Documents to be Delivered by the Seller and Shareholders. On
the Closing Date, the Seller and Shareholders shall deliver to Buyer the
following documents, in each case duly executed or otherwise in proper form:
12.3(a) Bills of Sale. Bills of sale and such other
instruments of assignment, transfer, conveyance and endorsement as will
be sufficient in the opinion of Buyer and its counsel to transfer,
assign, convey and deliver to Buyer the Partnership Interest as
contemplated hereby.
12.3(b) Compliance Certificate. A certificate signed by each
of the Shareholders that each of the representations and warranties
made by the Shareholders in this Agreement is true and correct in all
material respects on and as of the Closing Date (except for any changes
permitted by the terms of this Agreement or consented to in writing by
Buyer), and that the Shareholders have performed and complied with all
of the Shareholders' obligations under this Agreement which are to be
performed or complied with on or prior to the Closing Date.
12.3(c) Certified Resolutions. A certified copy of the
resolutions of the shareholders, directors, managers and members of the
Shareholders, as appropriate, authorizing and approving this Agreement
and the consummation of the transactions contemplated by this
Agreement.
12.3(d) Incumbency Certificate. Incumbency certificates
relating to each person executing any document executed and delivered
to Buyer pursuant to the terms hereof.
12.3(e) Other Documents. All other documents, instruments or
writings required to be delivered to Buyer on or prior to the Closing
Date pursuant to this Agreement and such other certificates of
authority and documents as Buyer may reasonably request.
12.4 Documents to be Delivered by Buyer and OSI. At the Closing,
Buyer and OSI shall deliver to the Seller the following documents, in each case
duly executed or otherwise in proper form:
12.4(a) Compliance Certificate. A certificate signed by the
president of Buyer and OSI, respectively, that the representations and
warranties made by Buyer and OSI in this Agreement are true
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and correct on and as of the Closing Date (except for any changes
permitted by the terms of this Agreement or consented to in writing by
the Shareholders), and that Buyer and OSI have performed and complied
with all of their respective obligations under this Agreement which are
to be performed or complied with on or prior to the Closing Date.
12.4(b) Certified Resolutions. A certified copy of the
resolutions of the Board of Directors of Buyer and OSI authorizing and
approving this Agreement and the consummation of the transactions
contemplated by this Agreement, including the issuance of shares of OSI
common stock as the purchase price.
12.4(c) Incumbency Certificate. Incumbency certificates
relating to each person executing any document executed and delivered
to the Seller by Buyer pursuant to the terms hereof.
12.4(d) Other Documents. All other documents, instruments or
writings required to be delivered to the Shareholders on or prior to
the Closing Date pursuant to this Agreement and such other certificates
of authority and documents as the Shareholders may reasonably request.
13. TERMINATION
13.1 Right of Termination Without Breach.
13.1(a) Mutual Agreement. This Agreement may be terminated
without further liability of either party at any time prior to the
closing by mutual written agreement of Buyer and the Seller.
13.1(b) By Either Party. This Agreement may be terminated
without further liability of any party, by either Buyer or the Seller
if the Closing Date of the transaction contemplated in SECTION 1.1
shall not have occurred on or before June 30, 2002, provided the
terminating party has not, through breach of a representation, warranty
or covenant, prevented such closing from occurring on or before such
date.
13.2 Termination for Breach.
13.2(a) Termination by Buyer. This Agreement may be
terminated by Buyer if (i) there has been a material violation or
breach by any of the Shareholders of any of the agreements,
representations or warranties contained in this Agreement which has not
been waived in writing by Buyer, or (ii) there has been a failure of
satisfaction of a condition to the obligations of Buyer which has not
been so waived.
13.2(b) Termination by the Seller. The Seller may terminate
this Agreement if (i) there has been a material violation or breach by
Buyer or OSI of any of the agreements, representations or warranties
contained in this Agreement which has not been waived in writing by the
Seller, or (ii) there has been a failure of satisfaction of a condition
to the obligations of the Seller and Shareholders which has not been so
waived.
13.2(c) Effect of Termination. Termination of this Agreement
pursuant to this SECTION 13.2 shall not in any way terminate, limit or
restrict the rights and remedies of any party hereto against any other
party which has violated, breached or failed to satisfy any of the
representations, warranties, covenants, agreements, conditions or other
provisions of this Agreement prior to termination hereof.
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14. MISCELLANEOUS
14.1 Further Assurance. From time to time, upon request and without
further consideration, the parties will execute and deliver such documents and
take such other action as may be reasonably requested in order to consummate
more effectively the transactions contemplated hereby, including, but not
limited to, vesting in Buyer good and valid title to the Partnership Interest
being transferred hereunder.
14.2 Disclosures and Announcements. Both the timing and the content
of all disclosure to third parties and public announcements concerning the
transactions provided for in this Agreement by the Buyer or Seller shall be
subject to the approval of the other in all essential respects, except that
Seller's approval shall not be required as to any statements and other
information which Buyer may submit to the Securities and Exchange Commission,
NYSE or the stockholders of Buyer or Buyer's Affiliates, or be required to make
pursuant to any rule or regulation of the Securities and Exchange Commission or
NYSE, or otherwise required by law.
14.3 Assignment; Parties in Interest.
14.3(a) Assignment. Except as expressly provided herein, the
rights and obligations of a party hereunder may not be assigned,
transferred or encumbered without the prior written consent of the
other parties. Notwithstanding the foregoing, Buyer may, without
consent of any other party, cause one or more subsidiaries or
Affiliates of Buyer to carry out all or part of the transactions
contemplated hereby (except for the issuance of the OSI common stock by
OSI); provided, however, that Buyer shall, nevertheless, remain liable
for all of its obligations, and those of any such subsidiary, to the
Seller and Shareholders hereunder.
14.3(b) Parties in Interest. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the respective
successors and permitted assigns of the parties hereto. Nothing
contained herein shall be deemed to confer upon any other person any
right or remedy under or by reason of this Agreement.
14.4 Governing Law. The validity, interpretation, and performance
of this Agreement shall be governed by the laws of the State of Florida without
giving effect to the principles of comity or conflicts of laws thereof.
14.5 Consent to Personal Jurisdiction and Venue; Waiver of Jury
Trial; Attorney's Fees. Seller, Buyer and the Shareholders hereby consent to
personal jurisdiction and venue, for any action arising out of a breach or
threatened breach of this Agreement or out of the relationship established by
this Agreement, exclusively in the United States District Court for the Middle
District of Florida, Tampa Division, or in the Circuit Court in and for
Hillsborough County, Florida. Seller, Buyer and the Shareholders hereby agree
that any action brought by such person or entity, alone or in combination with
others, whether arising out of this Agreement or otherwise, shall be brought
exclusively in the United States District Court for the Middle District of
Florida, Tampa Division, or in the Circuit Court in and for Hillsborough County,
Florida. Seller, Buyer and the Shareholders hereby agree that any controversy
that may arise of this Agreement would involve complicated and difficult factual
and legal issues and that, as a result, any action shall be determined by a
judge and not a jury. In the event of any legal proceeding arising, directly or
indirectly, from this Agreement, the prevailing party in such legal proceedings
shall be entitled to attorney's fees and costs from the non-prevailing party.
14.6 Amendment and Modification. Buyer and the Shareholders may
amend, modify and supplement this Agreement in such manner as may be agreed upon
by them in writing.
14.7 Notice. All notices, requests, demands and other
communications hereunder shall be given in writing and shall be: (a) personally
delivered; or (b) sent to the parties at their respective addresses indicated
herein by registered or certified U.S. mail, return receipt requested and
postage prepaid, or by private overnight mail courier service. The respective
addresses to be used for all such notices, demands or requests are as follows:
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(a) If to Buyer or OSI, to:
Outback Steakhouse, Inc.
2202 North West Shore Boulevard, Suite 500
Tampa, Florida 33607
Attention: Chris Sullivan, CEO
(with a copy to)
Joseph J. Kadow, Vice President and General Counsel
Outback Steakhouse, Inc.
2202 North West Shore Boulevard, Suite 500
Tampa, Florida 33607
or to such other person or address as Buyer shall furnish to the Shareholders in
writing.
(b) If to Seller or any Shareholder, to:
Connerty International, Inc.
c/o Hugh H. Connerty, Jr.
119 Lakeview Avenue
Atlanta, Georgia 30305
(With a copy to)
LaBoeuf, Lamb, Greene & McRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, Florida 32202
Attn: Mallory Gayle Holm, Esq.
(And)
Greg Walther
3355 Lenox Road, Suite 600
Atlanta, Georgia 30326
or to such other person or address as Seller shall furnish to Buyer in writing.
If personally delivered, such communication shall be deemed delivered
upon actual receipt; if sent by overnight courier pursuant to this paragraph,
such communication shall be deemed delivered upon receipt; and if sent by U.S.
mail pursuant to this paragraph, such communication shall be deemed delivered as
of the date of delivery indicated on the receipt issued by the relevant postal
service, or, if the addressee fails or refuses to accept delivery, as of the
date of such failure or refusal. Any party to this Agreement may change its
address for the purposes of this Agreement by giving notice thereof in
accordance with this Section. Notices sent by facsimile or other electronic
means shall not constitute notice under this Agreement.
14.8 Expenses. Regardless of whether or not the transactions
contemplated hereby are consummated each of the parties shall bear its own
expenses and the expenses of its counsel, accountants, and other agents in
connection with the transactions contemplated hereby.
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14.9 Costs of Litigation. The parties agree that the prevailing
party in any action brought with respect to or to enforce any right or remedy
under this Agreement shall be entitled to recover from the other party or
parties all reasonable costs and expenses of any nature whatsoever incurred by
the prevailing party in connection with such action, including without
limitation reasonable attorneys' fees and prejudgment interest.
14.10 Entire Agreement. This instrument and the agreements referred to
herein embody the entire agreement between the parties hereto with respect to
the transactions contemplated herein, and there have been and are no agreements,
representations or warranties between the parties other than those set forth or
provided for herein.
14.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.12 Headings. The headings of Sections in this Agreement are provided
for convenience only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement. All words used in this Agreement will be construed
to be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding words or
terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
ATTEST: "BUYER"
OSI INTERNATIONAL, INC., a Florida corporation
---------------------------------------- By:
Robert S. Merritt, Assistant Secretary ---------------------------------------------------
Chris Sullivan, CEO
"OSI"
OUTBACK STEAKHOUSE, INC., a Delaware corporation
---------------------------------------- By:
Robert S. Merritt, Assistant Secretary ---------------------------------------------------
Chris Sullivan, CEO
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ATTEST: "SELLER"
CONNERTY INTERNATIONAL, INC., a Florida corporation
----------------------------------- By:
--------------------------------------
Hugh Connerty, President
"SHAREHOLDERS"
----------------------------------------
HUGH CONNERTY, individually
----------------------------------------
LYDIA CONNERTY, individually
----------------------------------------
BURLEY MOSS, individually
----------------------------------------
GREG WALTHER, individually
----------------------------------------
DONNIE EVERTS, individually
----------------------------------------
BILL DANIELS, individually
----------------------------------------
DON GAYLE, individually
----------------------------------------
BETH BOSWELL, individually
----------------------------------------
STACY GARDELLA, individually
----------------------------------------
JAYME GOODSELL, individually
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