Agreement and Plan of Reorganization - Outback Steakhouse Inc., Outback Steakhouse of Florida Inc., Eagle One Inc. and Joseph A. Sumislawski
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
OUTBACK STEAKHOUSE, INC.,
OUTBACK STEAKHOUSE OF FLORIDA, INC.,
EAGLE ONE, INC.
AND
JOSEPH E. SUMISLAWSKI
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TABLE OF CONTENTS
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ARTICLE 1 - PLAN OF ACQUISITION................................................ 1
1.1 The Merger............................................................ 1
1.2 Adjustments........................................................... 2
1.3 Closing............................................................... 2
1.4 Execution and Delivery of Closing Documents........................... 2
1.5 Execution and Filing of Merger Documents.............................. 3
1.6 Effectiveness of Merger............................................... 3
1.7 Further Assurances.................................................... 3
1.8 Certificates.......................................................... 3
1.9 Closing of Transfer Books............................................. 3
1.10 Fractional Shares..................................................... 3
1.11 Accounting Treatment.................................................. 3
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF JVP CORP AND
SUMISLAWSKI........................................................... 4
2.1 Organization and Good Standing........................................ 4
2.2 Power and Authority................................................... 4
2.3 Foreign Corporation................................................... 4
2.4 Authority and Validity................................................ 4
2.5 Binding Effect........................................................ 4
2.6 Compliance with Other Instruments..................................... 5
2.7 Capitalization of JVP CORP............................................ 5
2.8 Absence of Certain Changes............................................ 5
2.9 Tax Liabilities....................................................... 6
2.10 No Undisclosed Liabilities............................................ 7
2.11 Title to Properties................................................... 7
2.12 Contracts............................................................. 7
2.13 Litigation and Government Claims...................................... 7
2.14 No Violation of Any Instrument........................................ 7
2.15 Necessary Approvals and Consents...................................... 8
2.16 Compliance With Laws.................................................. 8
2.17 Accuracy of Information Furnished..................................... 8
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF SUMISLAWSKI...................... 8
3.1 Authority and Validity................................................ 8
3.2 Binding Effect........................................................ 8
3.3 Ownership............................................................. 9
3.4 Voting................................................................ 9
3.5 Residency............................................................. 9
3.6 Compliance with Other Instruments..................................... 9
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TABLE OF CONTENTS (continued)
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ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK.................. 9
4.1 Organization and Good Standing........................................ 9
4.2 Foreign Qualification................................................. 9
4.3 Power and Authority................................................... 9
4.4 Authority and Validity................................................ 9
4.5 Binding Effect........................................................ 10
4.6 Compliance with Other Instruments..................................... 10
4.7 Capitalization of OSI................................................. 10
4.8 SEC Reports........................................................... 10
4.9 Litigation and Government Claims...................................... 11
4.10 Necessary Approvals and Consents...................................... 11
4.11 Absence of Certain Changes or Events.................................. 11
ARTICLE 5 - JOINT COVENANTS OF JVP CORP, SUMISLAWSKI, OSI AND
OUTBACK............................................................... 11
5.1 Notice of any Material Change......................................... 11
5.2 Cooperation........................................................... 12
5.3 Distribution and Allocations.......................................... 12
5.4 Additional Agreements................................................. 12
ARTICLE 6 - COVENANTS OF JVP CORP AND SUMISLAWSKI.............................. 12
6.1 Securities Law Compliance............................................. 12
6.2 Payment of Liabilities................................................ 14
ARTICLE 7 - COVENANTS OF OSI AND OUTBACK....................................... 14
7.1 Employment Agreements................................................. 14
ARTICLE 8 - JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS.................. 14
8.1 Consents to Transaction............................................... 14
8.2 Absence of Litigation................................................. 15
8.3 Dissenter's Rights.................................................... 15
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS OF JVP CORP.................... 15
9.1 Compliance............................................................ 15
9.2 Representations and Warranties........................................ 15
9.3 Material Adverse Changes.............................................. 15
ARTICLE 10 - CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND
OUTBACK............................................................... 15
10.1 Compliance............................................................ 16
10.2 Representations and Warranties........................................ 16
10.3 Current Financial Status.............................................. 16
10.4 Material Adverse Changes.............................................. 16
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TABLE OF CONTENTS (continued)
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ARTICLE 11 - INDEMNIFICATION................................................... 16
11.1 Indemnification Based on Agreement.................................... 16
11.2 Limitation............................................................ 16
11.3 Cooperation........................................................... 17
11.4 Notice................................................................ 17
ARTICLE 12 - MISCELLANEOUS..................................................... 17
12.1 Termination........................................................... 17
12.2 Expenses.............................................................. 18
12.3 Entire Agreement...................................................... 18
12.4 Survival of Representations and Warranties............................ 18
12.5 Counterparts.......................................................... 18
12.6 Notices............................................................... 18
12.7 Successors and Assigns................................................ 19
12.8 Governing Law......................................................... 19
12.9 Waiver and Other Action............................................... 19
12.10 Severability.......................................................... 19
12.11 Headings.............................................................. 19
12.12 Construction.......................................................... 19
12.13 Jurisdiction and Venue................................................ 19
12.14 Enforcement........................................................... 20
12.15 Further Assurances.................................................... 20
12.16 Equitable Remedies.................................................... 20
12.17 Waiver of Jury Trial.................................................. 20
EXHIBIT A
ARTICLES OF MERGER............................................................. A-1
EXHIBIT B
DISCLOSURE SCHEDULES........................................................... B-1
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered effective as of May 7, 2002, by and among OUTBACK STEAKHOUSE, INC., a
Delaware corporation ("OSI"), OUTBACK STEAKHOUSE OF FLORIDA, INC., a Florida
corporation ("Outback"), EAGLE ONE, INC., a Tennessee corporation ("JVP CORP"),
and JOSEPH E. SUMISLAWSKI, an individual residing in the State of Tennessee
("SUMISLAWSKI").
W I T N E S S E T H:
WHEREAS, Outback is a wholly-owned subsidiary of OSI; and
WHEREAS, SUMISLAWSKI is the sole owner of the issued and outstanding
common stock of JVP CORP, and SUMISLAWSKI is the sole director, President and is
responsible for the day-to-day operations of JVP CORP; and
WHEREAS, Outback and JVP CORP have entered into that certain Florida
limited partnership known as Outback/Bluegrass-II, Limited Partnership
("Partnership");
WHEREAS, the Partnership operates Outback Steakhouse(R)restaurants in
the State of Tennessee and Kentucky; and
WHEREAS, the Board of Directors of JVP CORP has approved the merger of
JVP CORP into Outback (the "Merger") upon the terms and conditions set forth in
this Agreement; and
WHEREAS, for federal income tax purposes it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, pursuant to the Merger, JVP CORP will be merged with and into
Outback and all of the outstanding shares of capital stock of JVP CORP will be
converted into shares of common stock, par value $.01, of OSI (the "OSI Common
Stock"); and
WHEREAS, the parties hereto desire by this Agreement to set forth the
terms and conditions upon which they are willing to consummate the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto covenant and agree
as follows:
ARTICLE 1
PLAN OF ACQUISITION
1.1 The Merger. Subject to and upon the terms and conditions
contained herein, JVP CORP shall be merged with and into Outback, with Outback
being the surviving corporation, in accordance with the Articles of
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Merger substantially in the form attached to this Agreement as EXHIBIT A (the
"Articles of Merger"), which will be executed and delivered by OSI, Outback, and
JVP CORP prior to the Merger. As a result of the Merger, each voting and
nonvoting common share of JVP CORP outstanding immediately before the Effective
Date (as herein defined) shall, by virtue of the Merger and without any further
action being required by the holders thereof, be converted into and exchanged
for 93.8 shares of OSI Common Stock.
1.2 Adjustments.
(a) Except as otherwise provided in this SECTION 1.2, the
total number of shares of OSI Common Stock to be issued pursuant to the
Merger shall be Nine Thousand Three Hundred Eighty (9,380).
(b) If, between the date of this Agreement and the
Closing Date or the Effective Date, as the case may be, (i) the
outstanding shares of capital stock of JVP CORP shall have been changed
into a different number of shares or a different class by reason of any
reclassification, recapitalization, split-up, combination, exchange of
shares, or readjustment, with a record date within such period, or a
stock dividend thereon shall be declared with a record date within such
period or (ii) JVP CORP shall have issued additional shares of its
capital stock, the number of shares of OSI Common Stock received in
exchange for each share of JVP CORP's capital stock shall be adjusted
so that the aggregate number of shares of OSI Common Stock received in
exchange for all shares of JVP CORP's capital stock (assuming no
Dissenting Shares) remains at Nine Thousand Three Hundred Eighty
(9,380).
(c) If, between the date of this Agreement and the
Closing Date or the Effective Date, as the case may be, the outstanding
shares of OSI Common Stock shall have been changed into a different
number of shares or a different class by reason of any
reclassification, recapitalization, split-up, combination, exchange of
shares, or readjustment, with a record date within such period, or a
stock dividend thereon shall be declared with a record date within such
period, the number of shares of OSI Common Stock received in exchange
for each share of capital stock of JVP CORP (as specified in SECTION
1.1 hereof) shall be adjusted to accurately reflect such change.
1.3 Closing. The closing of the transactions contemplated by this
Agreement, including the Merger (the "Closing"), shall take place at 10:00 a.m.,
Tampa time, at the offices of Outback on September 15, 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
September 30, 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 Execution and Delivery of Closing Documents. Before the
Closing, each party shall cause to be prepared and at the Closing the parties
shall execute and deliver each agreement and instrument required by this
Agreement or the Articles of Merger to be so executed and delivered and not
theretofore accomplished. At the Closing, each party also shall execute and
deliver such other appropriate and customary documents as the other parties
reasonably may request for the purpose of consummating the transactions
contemplated by this Agreement
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and the Articles of Merger. All actions taken at the Closing shall be deemed to
have been taken simultaneously at the time the last of any such actions is taken
or completed.
1.5 Execution and Filing of Merger Documents. At the time of
completion of the Closing, OSI, Outback, JVP CORP and SUMISLAWSKI agree to take
the following actions:
(a) to execute and deliver all documents and certificates
relating to the Merger required to be executed by them that have not
already been so executed and that are required under applicable
federal, state and local laws to be filed in order validly to
effectuate the Merger; and
(b) to cause Articles of Merger to be filed with the
Secretary of State of the State of Florida and the Secretary of State
of the State of Tennessee and a Certificate of Merger to be issued by
each such officer.
1.6 Effectiveness of Merger. The Merger shall become effective
under the laws of Florida upon filing of the Articles of Merger with the
Secretary of State of the State of Florida and the Secretary of State of the
State of Tennessee (the "Effective Date"). Such Effective Date shall be
indicated on Certificates of Merger issued by the Secretary of State of the
State of Florida and by the Secretary of State of the State of Tennessee
pursuant to the provisions of Sections 607.1101-607.1107 of the Florida Business
Corporation Act (the "Florida Act") and the laws of the State of Tennessee
("Tennessee Law").
1.7 Further Assurances. After the Closing, the parties hereto
shall execute and deliver such additional documents and take such additional
actions as may reasonably be deemed necessary or advisable by any party in order
to consummate the transactions contemplated by this Agreement and by the
Articles of Merger, and to vest more fully in Outback the ownership of and the
rights to the business and assets of JVP CORP as existed immediately before the
Effective Date.
1.8 Certificates. As soon as practicable after the Effective Date,
OSI shall make available and each holder of capital stock of JVP CORP shall be
entitled to receive upon surrender of stock certificates of JVP CORP
representing JVP CORP capital stock for cancellation, certificates representing
the number of shares of OSI Common Stock into which such shares are converted in
the Merger as provided in SECTION 1.1 hereof. The OSI Common Stock into which
such JVP CORP capital stock is converted shall be deemed issued at the Effective
Date.
1.9 Closing of Transfer Books. At the Closing Date, the stock
transfer books of JVP CORP shall be closed and no transfer of capital stock of
JVP CORP, shall thereafter be made.
1.10 Fractional Shares. No fractional shares of OSI Common Stock
and no certificates or scrip therefor shall be issued. Instead, one whole share
of OSI Common Stock shall be issued for each fractional share of .5 or more of
one whole share and each fractional share of less than .5 of one whole share
shall be disregarded.
1.11 Accounting Treatment. It is the intention of the parties
hereto that the Merger will be treated for financial reporting purposes as a
purchase transaction.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF JVP CORP AND SUMISLAWSKI
Each of JVP CORP and SUMISLAWSKI, jointly and severally, represent and
warrant to OSI and Outback as follows:
2.1 Organization and Good Standing. JVP CORP is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Tennessee.
2.2 Power and Authority. JVP CORP has the requisite power and
authority and all material licenses and permits required by governmental
authorities to own, lease and operate its properties and assets and to carry on
its businesses as currently being conducted.
2.3 Foreign Corporation. JVP CORP is duly qualified or licensed to
do business and in good standing as a foreign corporation in every jurisdiction
where the failure to so qualify could have a material adverse effect on its
respective business, operations, assets or financial condition.
2.4 Authority and Validity.
(a) JVP CORP has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
Articles of Merger and the other documents executed or to be executed
by JVP CORP in connection with this Agreement; and the execution,
delivery and performance by JVP CORP of this Agreement, the Articles of
Merger and the other documents executed or to be executed by JVP CORP
in connection with this Agreement have been duly authorized by all
necessary corporate action. The execution, delivery and performance by
JVP CORP of this Agreement, the Articles of Merger and any other
documents executed or to be executed in connection with this Agreement
and the consummation of the transactions provided for herein have been
duly authorized and approved by the board of directors and shareholders
of JVP CORP as required under the laws of the State of Tennessee and
JVP CORP's corporate governance documents.
(b) SUMISLAWSKI has the power and authority to execute,
deliver and perform his obligations under this Agreement and the other
documents executed or to be executed by SUMISLAWSKI in connection with
this Agreement.
2.5 Binding Effect. This Agreement, the Articles of Merger and the
other documents executed or to be executed by JVP CORP and SUMISLAWSKI in
connection with this Agreement have been or will have been duly executed and
delivered by JVP CORP and SUMISLAWSKI, and are or will be, when executed and
delivered, the legal, valid and binding obligations of each of JVP CORP and
SUMISLAWSKI enforceable in accordance with their terms except that:
(a) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited
by equitable principles of general applicability.
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2.6 Compliance with Other Instruments. Neither the execution and
delivery by JVP CORP nor SUMISLAWSKI of this Agreement and the Articles of
Merger, nor the consummation by them of the transactions contemplated hereby and
thereby, will violate, breach, be in conflict with, or constitute a default
under, or permit the termination or the acceleration of maturity of, or result
in the imposition of any lien, claim or encumbrance upon any material property
or asset of JVP CORP or SUMISLAWSKI pursuant to, its certificate of
incorporation, bylaws, partnership agreement, operating agreement or other
charter or governance document, or any note, bond, indenture, mortgage, deed of
trust, evidence of indebtedness, loan or lease agreement, other agreement or
instrument (including with customers), judgment, order, injunction or decree by
which JVP CORP or SUMISLAWSKI is bound, to which either of them is a party, or
to which any assets of either of them are subject; provided, however, this
SECTION 2.5 shall not apply with respect to any of the foregoing if JVP CORP is
bound thereby, a party thereto, or its assets subject, solely by reason of its
status as a partner in the Partnership.
2.7 Capitalization of JVP CORP.
(a) The authorized capital stock of JVP CORP consists of
One Hundred (100) common shares. There are One Hundred (100) common
shares issued and outstanding, all of which are owned by SUMISLAWSKI.
There are no other shareholders of JVP CORP and no other persons with
rights or options to acquire capital stock of JVP CORP All of the
issued and outstanding shares of capital stock of JVP CORP have been
duly authorized and validly issued and are fully paid and
nonassessable. There are no shares of capital stock of JVP CORP held in
its treasury.
(b) There are no voting trusts, shareholder agreements or
other voting arrangements to which the shareholder of JVP CORP is a
party.
(c) There is no outstanding subscription, contract,
convertible or exchangeable security, option, warrant, call or other
right obligating JVP CORP to issue, sell, exchange or otherwise dispose
of, or to purchase, redeem or otherwise acquire, shares of, or
securities convertible into or exchangeable for, capital stock of JVP
CORP.
2.8 Absence of Certain Changes. From December 31, 2001 to the
Closing Date, (except solely as a result of JVP CORP's status as a partner in
the Partnership) JVP CORP has not:
(a) suffered any material adverse change in its business,
results of operations, working capital, assets, liabilities, or
condition (financial or otherwise) or the manner of conducting its
business;
(b) suffered any material damage or destruction to or
loss of its assets not covered by insurance, or any loss of suppliers
or employees;
(c) acquired or disposed of any asset, or incurred,
assumed, guaranteed, endorsed, paid or discharged any indebtedness,
liability or obligation, or subjected or permitted to be subjected any
material amount of assets to any lien, claim or encumbrance of any
kind, except in the ordinary course of business or pursuant to
agreements in force at the date of this Agreement and identified in
Item 2.8(c) of the Disclosure Schedules;
(d) forgiven, compromised, canceled, released, waived or
permitted to lapse any material rights or claims;
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(e) entered into or terminated any lease, agreement,
commitment or transaction, or agreed to or made any changes in any
leases or agreements, other than transactions and commitments entered
into in the ordinary course of business;
(f) written up, written down or written off the book
value of any assets;
(g) declared, paid or set aside for payment any dividend
or distribution with respect to its capital stock;
(h) redeemed, purchased or otherwise acquired, or sold,
granted or otherwise disposed of, directly or indirectly, any of its
capital stock or securities or any rights to acquire such capital stock
or securities, or agreed to changes in the terms and conditions of any
such rights outstanding as of the date of this Agreement;
(i) except in the ordinary course of business, increased
the compensation of any employee or paid any bonuses to any employee or
contributed to any employee benefit plan;
(j) entered into any employment, consulting, compensation
or collective bargaining agreement with any person or group, except
oral employment agreements which can be terminated at will; or
(k) entered into, adopted or amended any employee benefit
plan or severance agreements.
2.9 Tax Liabilities. JVP CORP has filed all federal, state,
county, local and foreign tax returns and reports required to be filed by them
by the date hereof, including those with respect to income, payroll, property,
withholding, social security, unemployment, franchise, excise and sales taxes;
JVP CORP has either paid in full all taxes that have become due as reflected on
any return or report and any interest and penalties with respect thereto or have
fully accrued on their books or have established adequate reserves for all taxes
payable but not yet due; and have made cash deposits with appropriate
governmental authorities representing estimated payments of taxes, including
income taxes and employee withholding tax obligations. No extension or waiver of
any statute of limitations or time within which to file any return has been
granted to JVP CORP with respect to any tax. No unsatisfied deficiency,
delinquency or default for any tax, assessment or governmental charge has been
claimed, proposed or assessed against JVP CORP nor has JVP CORP received notice
of any such deficiency, delinquency or default. JVP CORP has no reason to
believe that JVP CORP has or may have any tax liabilities other than those
reflected on the unaudited balance sheet of JVP CORP as of December 31, 2001,
with any notes thereto, and the related unaudited statements of income for the
twelve months ended December 31, 2001, together with supplemental information on
JVP CORP, each prepared and attested to by the chief financial officer of JVP
CORP (the "Balance Sheets") and those arising in the ordinary course of business
since the date thereof. With regard to the foregoing, JVP CORP has relied on the
accuracy and completeness of the Schedule K-1 provided by the Partnership.
SUMISLAWSKI shall have sole responsibility for filing all required tax
returns for JVP CORP. OSI shall assist SUMISLAWSKI in preparing income tax
returns and shall cooperate with SUMISLAWSKI to the extent necessary therefor,
and SUMISLAWSKI shall provide OSI with copies of all such returns at least
fifteen (15) days prior to filing.
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2.10 No Undisclosed Liabilities. There are no liabilities or
obligations of JVP CORP (other than material liabilities arising solely by
reason of JVP CORP's status as a partner in the Partnership) of any nature,
whether absolute, accrued, contingent or otherwise, other than liabilities or
obligations indicated in Items 2.10(a) and 2.10(b) of the Disclosure Schedules.
2.11 Title to Properties. JVP CORP has good and marketable title to
the assets reflected in its books and records as being owned by it, (except as
they have since been affected by transactions in the ordinary course of business
and consistent with past practices) the real and personal properties reflected
in the Balance Sheets (except for assets subject to financing leases required to
be capitalized under generally accepted accounting principles, all of which are
so reflected in the Balance Sheet or notes thereto) and all assets purchased by
JVP CORP since the date of the Balance Sheet, in each case free and clear of any
lien, claim or encumbrance, except as reflected in the Balance Sheet or notes
thereto and in Item 2.11 of the Disclosure Schedule and except for liens for
taxes, assessments or other governmental charges not yet due and payable.
Except for those assets acquired since the date of the Balance Sheets,
all material properties and assets owned by JVP CORP are properly reflected on
the applicable Balance Sheets and notes thereto.
2.12 Contracts. Excluding (i) contracts and commitments between
Outback or OSI and JVP CORP or the Partnership, (ii) contracts and commitments
entered into by the Partnership to which Outback or OSI is a party, (iii)
contracts and commitments entered into by JVP CORP in the ordinary course of the
Partnership's business without violation of the provisions of the Partnership
Agreement, and (iv) contracts and commitments entered into with the written
consent of OSI or Outback, Item 2.12 of the Disclosure Schedule is a complete
and accurate list of all of the contracts and commitments (including summaries
of oral contracts) to which JVP CORP is a party or by which JVP CORP is bound:
2.13 Litigation and Government Claims. Except as indicated in Item
2.13 of the Disclosure Schedule, there is no pending suit, claim, action or
litigation or administrative, arbitration or other proceeding or governmental
investigation or inquiry against JVP CORP or the Partnership or to which any of
their business or assets is subject. Except as indicated in Item 2.13 of the
Disclosure Schedule, there are no such proceedings threatened or, to the best
knowledge of JVP CORP or SUMISLAWSKI, contemplated or, to the best knowledge of
JVP CORP or SUMISLAWSKI, any basis for any unasserted claims (whether or not the
potential claimant may be aware of the claim) of any nature that might be
asserted against JVP CORP or the Partnership.
2.14 No Violation of Any Instrument. Except as indicated in Item
2.14 of the Disclosure Schedule, JVP CORP is not in violation of or default
under nor has any event occurred that, with the lapse of time or the giving of
notice or both, would constitute a violation of or default under or permit the
termination or the acceleration of maturity of or result in the imposition of a
lien, claim or encumbrance upon any property or asset of JVP CORP pursuant to,
the articles or certificates of incorporation, bylaws or other chartering or
governance document of JVP CORP or (excluding any of the following entered into
by the Partnership and to which Outback or OSI is a signatory or to which
Outback or OSI consented in writing or which were entered into by JVP CORP in
the ordinary course of business without violation of the provisions of the
Partnership Agreement) any note, bond, indenture, mortgage, deed of trust,
evidence of indebtedness, loan or lease agreement, other material agreement or
instrument (including with customers), judgment, order, injunction or decree to
which JVP CORP is a party, by which JVP CORP is bound or to which any of the
assets of JVP CORP are subject.
2.15 Necessary Approvals and Consents. Other than (a) in connection
with or in compliance with the laws of the States of Florida and Tennessee with
respect to effectuating the Merger, (b) consents required to be
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obtained from applicable liquor control authorities, (c) consents required to be
obtained from lessors, and (d) under the provisions of the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, or state
securities or blue sky laws, no authorization, consent, permit or license or
approval of or declaration, registration or filing with, any person or
governmental or regulatory authority or agency is necessary for the execution
and delivery by each of JVP CORP and SUMISLAWSKI of this Agreement, the Articles
of Merger and the other agreements executed or to be executed by them in
connection with this Agreement, and the consummation by JVP CORP and SUMISLAWSKI
of the transactions contemplated by this Agreement and the Articles of Merger,
and the ownership and operation by Outback of the respective businesses and
properties of JVP CORP after the Effective Date in substantially the same manner
as now operated.
2.16 Compliance With Laws. SUMISLAWSKI has no actual knowledge that
JVP CORP or the Partnership is not in compliance with any such laws applicable
to their respective business, where failure to so comply would have a material
adverse effect on their business, operations, properties, assets or conditions.
2.17 Accuracy of Information Furnished. No representation or
warranty by JVP CORP or SUMISLAWSKI in this Agreement nor any information in the
Financial Statements or in the Disclosure Schedule contains any untrue statement
of a material fact or omits to state any material fact that would make the
statements herein or therein, in light of the circumstances under which they
were made, false or misleading. Each of JVP CORP and SUMISLAWSKI have disclosed
to OSI and Outback all facts known to them that are material to JVP CORP's and
the Partnership's respective businesses, operations, financial condition or
prospects.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SUMISLAWSKI
In addition to the representations and warranties contained in ARTICLE
2, SUMISLAWSKI represents and warrants to OSI and Outback as follows:
3.1 Authority and Validity. He has the capacity and authority to
execute, deliver and perform this Agreement and all other agreements and
documents he is executing or will execute in connection herewith or therewith.
3.2 Binding Effect. This Agreement and the other documents
executed or to be executed by SUMISLAWSKI in connection with this Agreement have
been or will have been duly executed and delivered by him and are or will be,
when executed and delivered, his legal, valid and binding obligations
enforceable in accordance with their terms except that:
(a) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights; and
(b) the availability of equitable remedies may be limited
by equitable principles of general applicability.
3.3 Ownership. SUMISLAWSKI is the sole record and beneficial
shareholder of JVP CORP and no other person has any rights (in any form) to
acquire any capital stock of JVP CORP
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3.4 Voting. He acknowledges that in his individual capacity as
shareholder and director of JVP CORP, he has voted in favor of the execution and
delivery of this Agreement and the Articles of Merger.
3.5 Residency. SUMISLAWSKI is, and has been at all times during
the one year period ending on the date hereof, a resident of the State of
Tennessee.
3.6 Compliance with Other Instruments. Neither the execution and
delivery by SUMISLAWSKI of this Agreement and the Articles of Merger, nor the
consummation by him of the transactions contemplated hereby and thereby will
violate, breach, be in conflict with or constitute a default under or permit the
termination or the acceleration of maturity of or result in the imposition of
any lien, claim or encumbrance upon any material property or asset of
SUMISLAWSKI 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
SUMISLAWSKI is bound, to which he is a party or to which he is subject.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF OSI AND OUTBACK
OSI and Outback, jointly and severally, represent and warrant to JVP
CORP and SUMISLAWSKI as follows:
4.1 Organization and Good Standing. OSI and Outback are
corporations duly organized, validly existing and in good standing under the
laws of the States of Delaware and Florida, respectively.
4.2 Foreign Qualification. Outback is duly qualified or licensed
to do business and in good standing as a foreign corporation in Tennessee and in
every other jurisdiction where the failure to so qualify could have a material
adverse effect on its respective business, operations, assets or financial
condition.
4.3 Power and Authority. OSI and Outback each have the corporate
power and authority and all licenses and permits required by governmental
authorities to own, lease and operate their respective properties and assets and
to carry on their respective business as currently being conducted.
4.4 Authority and Validity. OSI and Outback each have the
corporate power and authority to execute, deliver and perform their respective
obligations under this Agreement, the Articles of Merger and the other documents
executed or to be executed by OSI and Outback in connection with this Agreement
and the execution, delivery and performance by OSI and Outback of this
Agreement, the Articles of Merger and the other documents executed or to be
executed by OSI and Outback in connection with this Agreement have been duly
authorized by all necessary corporate action.
4.5 Binding Effect. This Agreement, the Articles of Merger and the
other documents executed or to be executed by OSI and Outback in connection with
this Agreement have been or will have been duly executed and delivered by OSI
and Outback and are or will be, when executed and delivered, the legal, valid
and binding obligations of OSI and Outback, enforceable in accordance with their
terms except that:
(a) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights; and
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(b) the availability of equitable remedies may be limited
by equitable principles of general applicability.
4.6 Compliance with Other Instruments. Neither the execution and
delivery by OSI and/or Outback of this Agreement, the Articles of Merger, nor
the consummation by it of the transactions contemplated hereby and thereby will
violate, breach, be in conflict with or constitute a default under or permit the
termination or the acceleration of maturity of or result in the imposition of
any lien, claim or encumbrance upon any property or asset of OSI or Outback
pursuant to, the certificate of incorporation or bylaws of OSI or Outback or any
note, bond, indenture, mortgage, deed of trust, evidence of indebtedness, loan
or lease agreement, other agreement or instrument, judgment order, injunction or
decree by which OSI or Outback is bound, to which it is a party or to which its
assets are subject.
4.7 Capitalization of OSI. The authorized capital stock of OSI
consists of Two Hundred Million (200,000,000) shares of Common Stock, $.01 par
value and Two Million (2,000,000) shares of Preferred Stock, $.01 par value, of
which approximately 78,554,186 outstanding shares of Common Stock and no shares
of Preferred Stock were issued and outstanding as of April 30, 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 in exchange for JVP CORP's capital stock at the Effective
Date, when issued and delivered, will be duly authorized, validly issued, fully
paid and nonassessable. As of the date hereof, except for (i) employee and
director stock options to acquire shares of OSI Common Stock and (ii) employee
stock ownership plans, there are no options, warrants or other rights,
agreements or commitments outstanding obligating Outback or OSI to issue shares
of its capital stock. All of the outstanding shares of capital stock of Outback
are owned by OSI, free and clear of any lien or encumbrance.
4.8 SEC Reports. OSI has delivered to JVP CORP and SUMISLAWSKI
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) 2001 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 Effective Date have been or will be
delivered to JVP CORP and SUMISLAWSKI. All financial statements and schedules
included in the documents referred to in this SECTION 4.8 were prepared in
accordance with generally accepted accounting principles, applied on a
consistent basis except as noted therein and fairly present the information
purported to be shown therein.
4.9 Litigation and Government Claims. There is no pending suit,
claim, action or litigation or administrative, arbitration or other proceeding
or governmental investigation or inquiry against OSI or Outback which would,
severally or in the aggregate, have a material adverse effect on the business,
results of operations, assets or the condition, financial or otherwise, of OSI
and its subsidiaries, taken as a whole. There are no such proceedings threatened
or, to the knowledge of OSI or Outback, contemplated or any unasserted claims
(whether or not the potential claimant may be aware of the claim), which might,
severally or in the aggregate have a
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material adverse effect on the business, results of operations, assets or the
condition, financial or otherwise, of OSI and its subsidiaries, taken as a
whole.
4.10 Necessary Approvals and Consents. Other than (a) in connection
with or in compliance with the laws of the States of Florida and Tennessee with
respect to effectuating the Merger, (b) consents required to be obtained from
applicable liquor control authorities, (c) consents required to be obtained from
lessors, and (d) under the provisions of the Securities Act of 1933, as amended,
the Securities Exchange Act of 1934, or state securities or blue sky laws, no
authorization, consent, permit or license or approval of or declaration,
registration or filing with, any person or governmental or regulatory authority
or agency is necessary for the execution and delivery by OSI and Outback of this
Agreement, the Articles of Merger and the other agreements executed or to be
executed by either of them in connection with this Agreement and the
consummation by OSI and Outback of the transactions contemplated by this
Agreement and the Articles of Merger.
4.11 Absence of Certain Changes or Events. Except as disclosed in
public filings by OSI with the Securities and Exchange Commission prior to the
date hereof and the Closing Date, since December 31, 2001, there has not been
any material adverse change in the financial condition, results of operations or
the business, properties, assets or liabilities of Outback or OSI.
ARTICLE 5
JOINT COVENANTS OF JVP CORP, SUMISLAWSKI, OSI AND OUTBACK
JVP CORP and SUMISLAWSKI, jointly and severally, on the one hand, and
OSI and Outback, jointly and severally, on the other hand, covenant with each
other as follows:
5.1 Notice of any Material Change. Until the Effective Date, each
of JVP CORP, SUMISLAWSKI, OSI and Outback shall, promptly after the first notice
or occurrence thereof but prior to the Effective Date, advise the others in
writing of any event or the existence of any state of facts that:
(a) would make any of its representations and warranties
in this Agreement untrue in any material respect; or
(b) would otherwise constitute a material adverse change
in the business, results of operation, working capital, assets,
liabilities or condition (financial or otherwise) of OSI, Outback or
JVP CORP and their respective subsidiaries, taken as a whole. No
supplement or amendment to any Disclosure Schedule shall have any
effect for the purpose of determining the satisfaction of or compliance
with the conditions to the obligations of the parties to consummate the
Merger set forth elsewhere in this Agreement.
5.2 Cooperation. Until the Effective Date, each of the parties
hereto shall and shall cause each of its affiliates to use its best efforts to:
(a) proceed promptly to make or give the necessary
applications, notices, requests and filings to obtain at the earliest
practicable date and, in any event, before the Closing Date, the
approvals, authorizations and consents necessary to consummate the
transactions contemplated by this Agreement;
(b) cooperate with and keep the other informed in
connection with this Agreement; and
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(c) take such actions as the other parties may reasonably
request to consummate the transactions contemplated by this Agreement
and use its best efforts and diligently attempt to satisfy, to the
extent within its control, all conditions precedent to the obligations
to close this Agreement.
5.3 Distribution and Allocations. The parties acknowledge and
agree that notwithstanding the effective date of the Merger, Outback shall be
entitled to JVP CORP's entire share of Partnership distributions of cash flow,
and shall be allocated JVP CORP's shares of profit and loss, from and after May
6, 2002.
5.4 Additional Agreements.
(a) Subject to the terms and conditions herein provided,
each of the parties hereto agrees to use all reasonable efforts to take
or cause to be taken, all actions and to do or cause to be done, all
things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Agreement, including using all reasonable efforts
to obtain all necessary waivers, consents and approvals, to effect all
necessary registrations and filings and to lift any injunction or other
legal bar to the Merger (and, in such case, to proceed with the Merger
as expeditiously as possible), subject, however, to the appropriate
vote of the shareholders of JVP CORP.
(b) In case at any time after the Effective Date any
further action is necessary or desirable to carry out the purposes of
this Agreement, the proper officers and/or directors of OSI and Outback
and SUMISLAWSKI shall take all such necessary action.
(c) Neither Outback, OSI, JVPCORP nor SUMISLAWSKI shall
take any action which would jeopardize the characterization of the
Merger as a reorganization within the meaning of Section 368(a) of the
Code.
ARTICLE 6
COVENANTS OF JVP CORP AND SUMISLAWSKI
JVP CORP and SUMISLAWSKI covenant and agree with OSI as follows:
6.1 Securities Law Compliance. SUMISLAWSKI represents, warrants
and covenants to Outback and OSI that:
(a) SUMISLAWSKI has received all schedules and exhibits
and the documents furnished to JVP CORP pursuant to SECTION 4.8;
(b) SUMISLAWSKI 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 SUMISLAWSKI.
(c) OSI and Outback have furnished him with all
information requested and full access to materials concerning OSI and
Outback which SUMISLAWSKI and/or his advisors deemed necessary to
properly evaluate the Merger. Such information and access have been
made available and utilized to the
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extent SUMISLAWSKI considers necessary and advisable in making an
informed investment decision, and SUMISLAWSKI has consulted his own tax
advisor and understands the evaluation of such materials may require
the assistance of experts and SUMISLAWSKI has utilized such experts to
the extent deemed necessary.
(d) SUMISLAWSKI understands that the OSI Common Stock to
be received is an investment of a speculative nature and SUMISLAWSKI
must bear the risks thereof for an indefinite period of time.
SUMISLAWSKI has adequate means for providing for his needs, is able to
bear the economic risk of the investment and has no need for liquidity
in the OSI Common Stock to be received in the Merger.
(e) SUMISLAWSKI and/or his representatives or advisors
who have acted with or on behalf of SUMISLAWSKI and who have advised
SUMISLAWSKI in this matter have such knowledge and experience in
financial and business matters that SUMISLAWSKI is capable of
evaluating the merits and risks of the Merger for OSI Common Stock.
(f) SUMISLAWSKI is participating in the Merger solely for
his account as a private investment, and SUMISLAWSKI has no present
agreement, understanding, arrangement or intention to sell or transfer
all or any portion of the shares of OSI Common Stock to be issued in
the Merger to any other person or persons. SUMISLAWSKI does not
presently intend to enter into any such agreement or undertaking and
there are no present circumstances which will compel SUMISLAWSKI to
sell any OSI Common Stock so received. SUMISLAWSKI will not sell or
otherwise transfer the shares (except for de minimis gifts of shares)
unless they are registered under the Securities Act and applicable
state securities laws or, in the opinion of OSI and its counsel, an
exemption from registration is available therefor.
(g) The investment by SUMISLAWSKI in OSI Common Stock
pursuant to the Merger is a suitable investment for SUMISLAWSKI given
the investment goals and objectives of SUMISLAWSKI.
(h) SUMISLAWSKI agrees to indemnify and hold OSI and
Outback and each of their respective officers, directors and advisors
harmless against all liability arising out of or in connection with any
purchase, resale or distribution by SUMISLAWSKI of any OSI Common Stock
received hereby which is effected other than in strict compliance with
the terms hereof and applicable law.
(i) SUMISLAWSKI understands that the shares of OSI Common
Stock to be issued in the Merger will not be registered under the
Securities Act, nor any state securities laws, and such OSI Common
Stock may not be sold or transferred except in compliance with such
laws. Neither OSI nor Outback will have any obligation to register any
such OSI Common Stock.
(j) SUMISLAWSKI understands that OSI will place an
appropriate legend on the certificate representing OSI Common Stock to
be received restricting the transfer of the shares and stop-transfer
instructions will be given to the transfer agent for the OSI Common
Stock with respect to such certificates.
(k) SUMISLAWSKI is a natural person (i) whose net worth
(the excess of total assets over total liabilities), individually or
jointly with his spouse, exceeds $1,000,000 (inclusive of the value of
home, home furnishings and automobiles); or (ii) who had an Individual
Annual Adjusted Gross Income
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in excess of $200,000 in each of the two most recent tax years or joint
income with SUMISLAWSKI's spouse in excess of $300,000 in each of those
years and reasonably expects to reach the same income level in the
current tax year.
6.2 Payment of Liabilities. JVP CORP and SUMISLAWSKI covenant and
agree that all debts and liabilities of JVP CORP relating to periods prior to
the Closing Date shall be paid or satisfied in full prior to the Effective Date.
ARTICLE 7
COVENANTS OF OSI AND OUTBACK
OSI and Outback, jointly and severally, covenant and agree with JVP
CORP and SUMISLAWSKI as follows:
7.1 Employment Agreements. Solely with respect to the Merger, and
any consequential termination of any partnership by operation of law, Outback
agrees not to elect to terminate the Employment Agreements between the
Partnership, as employer, and the general managers of the Partnership's Outback
Steakhouse restaurants, as employees. Outback or its affiliate shall succeed to
all rights and obligations of the Partnership under such Employment Agreements.
Nothing contained herein shall be construed as in any way limiting Outback's or
its affiliate's right to terminate any such Employment Agreement as a result of
any circumstance or event other than the Merger and consequential termination of
the Partnership by operation of law.
ARTICLE 8
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by OSI, the obligations of JVP CORP,
SUMISLAWSKI, OSI and Outback to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction, on or before the Closing Date,
of each of the following conditions:
8.1 Consents to Transaction. JVP CORP, Outback and OSI shall have
received all consents or approvals and made all applications, requests, notices
and filings with, any person, governmental authority or governmental agency
required to be obtained or made in connection with the consummation of the
transactions contemplated by this Agreement. There shall have been obtained from
all state and local governments and governmental agencies all approvals and
consents necessary to enable JVP CORP and/or the Partnership, as applicable, to
transfer their liquor licenses and permits to Outback, to enable Outback to
assume such licenses and permits or to enable Outback to operate restaurants (of
the kind and quality customarily operated by Outback) using such permits or
licenses. Copies of all consents and approvals received by any party pursuant to
this SECTION 8.1 shall be furnished to the other party.
8.2 Absence of Litigation. No governmental agency or authority
shall have instituted or threatened in writing to institute, any action or
proceeding seeking to delay, restrain, enjoin or prohibit the consummation of
the transactions contemplated by this Agreement and no order, judgment or decree
by any court or governmental agency or authority shall be in effect that
enjoins, restrains or prohibits the same or otherwise would materially interfere
with the operation of the assets and business of JVP CORP or the Partnership or
OSI and its subsidiaries, including the surviving corporation in the Merger,
after the Closing Date.
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8.3 Dissenter's Rights. The number of shares of capital stock of
JVP CORP for which shareholders have exercised appraisal or dissenters' rights
under applicable law shall be a number which, in the sole and absolute
discretion of OSI, does not jeopardize the financial reporting and accounting
treatment of the Merger specified in SECTION 1.11 or is otherwise not contrary
to the best interests of Outback or OSI.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF JVP CORP
The obligations of JVP CORP and SUMISLAWSKI to consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction
on or before the Closing Date of each of the following conditions:
9.1 Compliance. OSI and Outback shall have, or shall have caused
to be, satisfied or complied with and performed in all material respects all
terms, covenants and conditions of this Agreement to be complied with or
performed by OSI and Outback on or before the Closing Date.
9.2 Representations and Warranties. All of the representations and
warranties made by OSI and Outback in this Agreement, and in all certificates
and other documents delivered by OSI and Outback to JVP CORP and SUMISLAWSKI
pursuant hereto or in connection with the transactions contemplated hereby,
shall have been true and correct in all material respects as of the date hereof
and shall be true and correct in all material respects at the Closing Date with
the same force and effect as if such representations and warranties had been
made at and as of the Closing Date, except for changes permitted or contemplated
by this Agreement.
9.3 Material Adverse Changes. Since the date of OSI's most recent
10-Q, as filed with the Securities and Exchange Commission, through the date
hereof, there shall have occurred no material adverse change in the business,
properties, assets, liabilities, results of operations or condition, financial
or otherwise, of OSI and Outback, taken as a whole.
ARTICLE 10
CONDITIONS PRECEDENT TO OBLIGATIONS OF OSI AND OUTBACK
Except as may be waived by OSI and Outback, the obligations of OSI and
Outback to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions:
10.1 Compliance. JVP CORP and SUMISLAWSKI shall have or shall have
caused to be satisfied or complied with and performed in all material respects
all terms, covenants and conditions of this Agreement to be complied with or
performed by any of them on or before the Closing Date.
10.2 Representations and Warranties. All of the representations and
warranties made by JVP CORP and/or SUMISLAWSKI in this Agreement, the Disclosure
Schedule, and in all certificates and other documents delivered by JVP CORP or
SUMISLAWSKI pursuant hereto or in connection with the transactions contemplated
hereby, shall have been true and correct in all material respects as of the date
hereof and shall be true and correct in all material respects at the Closing
Date with the same force and effect as if such representations and warranties
had been made at and as of the Closing Date, except for changes permitted or
contemplated by this Agreement.
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10.3 Current Financial Status. OSI shall have received the
unaudited financial statements of JVP CORP as of April 30, 2002, for the month
then ended.
10.4 Material Adverse Changes. Since December 31, 2001, there shall
have occurred no material adverse change in the business, properties, assets,
liabilities, results of operations or condition, financial or otherwise, of JVP
CORP or the Partnership.
ARTICLE 11
INDEMNIFICATION
SUMISLAWSKI, on the one hand, and OSI and Outback, jointly and
severally, on the other hand, agree as follows:
11.1 Indemnification Based on Agreement. Subject to the limitations
contained in SECTION 11.2 hereof, SUMISLAWSKI shall indemnify and hold harmless
OSI, Outback and JVP CORP, and OSI, Outback and JVP CORP, jointly and severally,
shall indemnify and hold harmless SUMISLAWSKI, against any losses, claims,
damages or liabilities to which such indemnified party may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any facts or circumstances that would
constitute a breach by the other of any representation, warranty or covenant
contained herein or in any agreement executed pursuant hereto and will reimburse
any legal or other expenses reasonably incurred by any indemnified party in
connection with investigating or defending any such loss, claim, damage,
liability or action.
In addition to the above, SUMISLAWSKI shall indemnify OSI, Outback and
JVP CORP, as provided in the first paragraph of this SECTION 11.1, against any
loss, claim, damage or liability arising out of (i) any tax liability of JVP
CORP for any period prior to and including the Effective Date and (ii) any debt
of JVP CORP, and (iii) all claims, obligations, causes of action and
liabilities, of whatever kind or character, of any of JVP CORP which arise out
of or are based upon events first occurring on or before the Effective Date.
11.2 Limitation. SUMISLAWSKI shall have no obligation under SECTION
11.1 to indemnify OSI, Outback or JVP CORP for any liability, loss, claim or
damage arising out of or based upon facts or actions first occurring after the
Effective Date. All obligations of indemnity (other than those relating to tax
obligations of JVP CORP under SECTION 11.1 above which shall continue for the
period specified in SECTION 12.4(b) hereof) shall terminate two (2) years from
the Effective Date; provided, however, the obligations of indemnity shall not
terminate with respect to any matter for which indemnification is claimed within
two (2) years from the Effective Date.
11.3 Cooperation. If any claim, demand, action, suit, proceeding or
investigation arising out of or pertaining to this Agreement or the transactions
contemplated hereby is begun or asserted, whether begun or asserted before or
after the Closing Date, the parties hereto will cooperate and use their best
efforts to defend against and respond thereto.
11.4 Notice. An indemnified party shall give notice to the
indemnifying party or parties within ten (10) business days after actual receipt
of service or summons to appear in any action begun in respect of which
indemnity may be sought hereunder. Failure to so notify the indemnifying party
or parties shall cause the indemnified party to be liable for any damage caused
by failure to give timely notice. The indemnifying party or
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parties may participate at their own expense and with their counsel in the
defense of such action. If the indemnifying party or parties so elect within a
reasonable time after receipt of such notice, they may assume the defense of
such action with counsel chosen by the indemnifying party or parties and
approved by the indemnified party in such action, unless the indemnified party
reasonably objects to such assumption on the ground that its counsel has advised
it that there may be legal defenses available to it that are different from or
in addition to those available to the indemnifying party or parties, in which
case the indemnified party shall have the right to employ counsel approved by
the indemnifying party or parties. If the indemnifying party or parties assume
the defense of such action, the indemnifying party or parties shall not be
liable for fees and expenses of counsel for the indemnified party incurred
thereafter in connection with such action. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one counsel
for the indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances unless, in the reasonable opinion of such
counsel, there is, under applicable standards of professional conduct, a
conflict on any significant issue between the positions of any two or more
indemnified parties.
ARTICLE 12
MISCELLANEOUS
12.1 Termination. This Agreement and the transactions contemplated
hereby may be terminated at any time on or before the Closing Date
(notwithstanding approval by the shareholders of JVP CORP):
(a) by mutual consent of JVP CORP and OSI;
(b) by OSI if there has been a material misrepresentation
or breach of warranty in the representations and warranties of JVP CORP
or SUMISLAWSKI set forth herein or if there has been any material
failure on the part of JVP CORP or SUMISLAWSKI to comply with their
obligations hereunder;
(c) by JVP CORP if there has been a material
misrepresentation or breach of warranty in the representations and
warranties of OSI or Outback set forth herein or if there has been any
material failure on the part of OSI or Outback to comply with their
obligations hereunder;
(d) by either OSI, JVP CORP or SUMISLAWSKI, if the
transactions contemplated by this Agreement have not been consummated
by November 6, 2002, unless such failure of consummation is due to the
failure of the terminating party to perform or observe the covenants,
agreements and conditions hereof to be performed or observed by it at
or before the Closing Date;
(e) by either OSI or JVP CORP if the conditions precedent
to its obligations to close this Agreement have not been satisfied or
waived by it at or before the Closing Date; or
(f) by either JVP CORP or OSI if the transactions
contemplated hereby violate any nonappealable final order, decree or
judgment of any court or governmental body or agency having competent
jurisdiction.
12.2 Expenses. Each party hereto shall pay its own expenses
incurred in connection with this Agreement and the transactions contemplated
hereby.
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12.3 Entire Agreement. This Agreement and the exhibits and
Disclosure Schedule hereto constitute and contain the complete agreement among
the parties with respect to the transactions contemplated hereby and supersede
all prior agreements and understandings among the parties with respect to such
transactions. The parties hereto have not made any representation or warranty
except as expressly set forth in this Agreement, the Articles of Merger or in
any certificate or schedule delivered pursuant hereto. The obligations of any
party under any agreement executed pursuant to this Agreement shall not be
affected by this SECTION 12.3.
12.4 Survival of Representations and Warranties.
(a) The representations, warranties and indemnification
obligations of OSI and Outback contained herein or in any exhibit,
certificate, document or instrument delivered pursuant to this
Agreement shall survive for a period of two years from the Effective
Date; provided, however, that the obligations of OSI and Outback under
ARTICLE 11 hereof shall survive for the periods provided therein.
(b) Except where otherwise specifically provided in this
Agreement, the representations, warranties and indemnification
obligations of SUMISLAWSKI contained herein or in any exhibit,
schedule, certificate, document or instrument delivered pursuant to
this Agreement shall survive the Closing for a period of two years from
the Effective Date; provided, however, the representations and
warranties contained in SECTION 2.9 (TAX LIABILITIES) shall survive the
Closing for a period ending four years after the filing of JVP CORP's
federal income tax return for the period including the Effective Date.
12.5 Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which when so executed and delivered shall be
deemed an original and such counterparts together shall constitute only one
original.
12.6 Notices. All notices, demands, requests or other
communications that may be or are required to be given, served or sent by any
party to any other party pursuant to this Agreement shall be in writing and
shall be mailed by registered or certified mail, return receipt requested,
postage prepaid or transmitted by hand delivery or recognized national overnight
delivery service addressed as follows:
If to JVP CORP or SUMISLAWSKI: EAGLE ONE, INC.
8110 Victory Trail
Brentwood, TN 37027
Attention: Joseph E. Sumislawski
If to OSI or Outback: OUTBACK STEAKHOUSE, INC.
2202 North West Shore Boulevard,
5th Floor
Tampa, FL 33607
Attention: Joseph J. Kadow,
General Counsel
Each party may designate by notice in writing a new address to which
any notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request or communication that is mailed, delivered
or transmitted in the manner described above shall be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee (with the return receipt, the delivery receipt, the affidavit of
messenger or at such time as delivery is refused by the addressee upon
presentation.
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12.7 Successors and Assigns. This Agreement and the rights,
interests and obligations hereunder shall be binding upon and shall inure to the
benefit of the parties hereto and, except as otherwise specifically provided for
herein, their respective successors and assigns.
12.8 Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida without giving effect to
principles of comity or conflicts of law thereof.
12.9 Waiver and Other Action. This Agreement may be amended,
modified or supplemented only by a written instrument executed by the parties
against which enforcement of the amendment, modification or supplement is
sought.
12.10 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable and
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision were never a part hereof; the remaining provisions
hereof shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance; and in lieu of
such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
12.11 Headings. All headings and captions in this Agreement are
intended solely for the convenience of the parties and none shall be deemed to
affect the meaning or construction of any provision hereof.
12.12 Construction. All references herein to the masculine, neuter
or singular shall be construed to include the masculine, feminine, neuter or
plural, where applicable.
12.13 Jurisdiction and Venue. The parties agree that any action
brought by either party against the other in any court, whether federal or
state, shall be brought within the State of Florida in the judicial circuit in
which OSI has its principal place of business. Each party hereby agrees to
submit to the personal jurisdiction of such courts and hereby waives all
questions of personal jurisdiction or venue for the purpose of carrying out this
provision, including, without limitation, the claim or defense therein that such
courts constitute an inconvenient forum.
12.14 Enforcement. In the event it is necessary for any party to
retain legal counsel or institute legal proceedings to enforce the terms of this
Agreement, including, without limitation, obligations upon expiration or
termination, the prevailing party shall be entitled to receive from the
non-prevailing party, in addition to all other remedies, all costs of such
enforcement including, without limitation, attorney's fees and court costs and
including appellate proceedings.
12.15 Further Assurances. Each party covenants and agrees to execute
and deliver, prior to or after the Merger, such further documents as may
reasonably be requested by another party to fully effectuate the transactions
provided for herein.
12.16 Equitable Remedies. The parties hereto acknowledge that a
refusal by a party to consummate the transactions contemplated hereby will cause
irreparable harm to the other parties, for which there may be no adequate remedy
at law. A party not in default at the time of such refusal shall be entitled, in
addition to other
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remedies at law or in equity, to specific performance of this Agreement by the
party that refused to consummate the transactions contemplated hereby.
12.17 WAIVER OF JURY TRIAL. ALL PARTIES TO THIS AGREEMENT KNOW AND
UNDERSTAND THAT THEY HAVE A CONSTITUTIONAL RIGHT TO A JURY TRIAL. THE PARTIES
ACKNOWLEDGE THAT ANY DISPUTE OR CONTROVERSY THAT MAY ARISE OUT OF THIS AGREEMENT
WILL INVOLVE COMPLICATED AND DIFFICULT FACTUAL AND LEGAL ISSUES.
THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED
TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY
OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY
AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY
AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR
ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
THE PARTIES INTEND THIS WAIVER OF THE RIGHT TO A JURY TRIAL BE AS BROAD
AS POSSIBLE. BY THEIR SIGNATURES BELOW, THE PARTIES PROMISE, WARRANT AND
REPRESENT THAT THEY WILL NOT PLEAD FOR, REQUEST OR OTHERWISE SEEK TO HAVE A JURY
TO RESOLVE ANY AND ALL DISPUTES THAT MAY ARISE BY, BETWEEN OR AMONG THEM.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"OSI"
Attest: OUTBACK STEAKHOUSE, INC.,
a Delaware corporation
By:____________________________________ By: __________________________________
JOSEPH J. KADOW, Secretary ROBERT D. BASHAM, President
"Outback"
Attest: OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
By:____________________________________ By: __________________________________
JOSEPH J. KADOW, Secretary ROBERT D. BASHAM, Chief Operating
Officer
"JVP CORP"
Attest: EAGLE ONE, INC.,
a Tennessee corporation
By:____________________________________ By: _________________________________
JOSEPH E. SUMISLAWSKI, Secretary JOSEPH E. SUMISLAWSKI, President
Witness: "SUMISLAWSKI"
_______________________________________ ______________________________________
JOSEPH E. SUMISLAWSKI
_______________________________________
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