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AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT,
dated as of May 21, 2007 (this “
Amendment ”),
among Kangaroo Holdings, Inc., a Delaware corporation
(“
Parent ”),
Kangaroo Acquisition, Inc., a Delaware corporation and a direct
wholly owned subsidiary of Parent (“
Merger Sub ”),
and OSI Restaurant Partners, Inc., a Delaware corporation (the
“
Company ”),
to the Agreement and Plan of Merger, dated as of November 5, 2006
(the “Merger Agreement”), among Parent, Merger Sub and
the Company. Unless otherwise specifically defined in this
Amendment, each capitalized term used in this Amendment shall have
the meaning assigned to such term in the Merger
Agreement.
WHEREAS,
Section 8.11 of the Merger Agreement provides that the Merger
Agreement may be amended in a writing signed by the Company
(acting through the Special Committee), Parent and Merger
Sub;
WHEREAS,
the Special Committee has determined, and the Board of
Directors has determined, that it is in the best interests of
the Company and its stockholders, and declared it advisable,
to enter into this Amendment, and each of the Special
Committee and the Board of Directors has, as of the date of
this Amendment, approved and adopted this Amendment, and
recommended adoption of the Merger Agreement, as amended by
this Amendment, by the stockholders of the
Company;
WHEREAS,
the board of directors of Merger Sub has approved and adopted
this Amendment;
WHEREAS,
the board of directors of Parent, and Parent, as the sole
stockholder of Merger Sub, in each case, have approved and
adopted this Amendment; and
WHEREAS,
Parent, Merger Sub and the Company desire to amend the Merger
Agreement as set forth below.
NOW,
THEREFORE, in consideration of the foregoing and the
representations, warranties and agreements contained in this
Amendment, and intending to be legally bound, Parent, Merger
Sub and the Company agree as follows:
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1. |
Amendment to Section 1.2. Section
1.2 of the Merger Agreement is amended by restating Section 1.2 in
its entirety to read as follows:
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“The
closing of the Merger (the “
Closing ”)
shall take place at the offices of Wachtell, Lipton, Rosen &
Katz, 51 West 52nd Street, New York, New York at 9:00 a.m., local
time, on a date to be specified by the parties (the “
Closing Date ”)
which shall be no later than the seventh business day after the
satisfaction or waiver (to the extent permitted by applicable Law)
of the conditions set forth in Article VI (other than those
conditions that by their nature are to be satisfied at the Closing,
but subject to the satisfaction or waiver of such conditions) (the
“
Satisfaction Date ”),
or at such other place, date and time as the Company and Parent may
agree in writing.”
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2. |
Amendment to Section 2.1(a). Section
2.1(a) of the Merger Agreement is amended by replacing the phrase
“$40.00 in cash (the “
Merger Consideration ”)”
with the phrase “$41.15 in cash (the “
Merger Consideration ”)”.
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3. |
Amendment to Section 3.17. Section
3.17 of the Merger Agreement is amended by restating Section 3.17
in its entirety to read as follows:
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“On
November 5, 2006, the Special Committee received the separate
opinions of Wachovia Securities LLC and Piper Jaffray &
Co. (the “
Advisors ”)
to the effect that, as of such date, the $40 per Share in cash to
be received by the holders of the Company Common Stock (other than
Participating Holders) pursuant to the Merger Agreement (as in
effect on November 5, 2006) was fair to such holders from a
financial point of view. On May 21, 2007, the Special Committee
received an opinion of Wachovia Securities LLC to the effect that,
as of such date, the $41.15 per Share in cash to be received by the
holders of the Company Common Stock (other than Participating
Holders) pursuant to the Merger Agreement (upon giving effect this
Amendment) is fair to such holders from a financial point of view.
An executed copy of each such opinion has been made available to
Parent. The Company has been authorized by the Advisors to permit
the inclusion in full of each such opinion in the Proxy Statement
(including any supplement). As of the date of this Agreement, no
such opinion has been withdrawn, revoked or
modified.”
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4. |
Amendment to Section 6.1(a). Section
6.1(a) of the Merger Agreement is amended by restating Section
6.1(a) in its entirety to read as follows:
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“The
Company shall have obtained both (i) the Company Stockholder
Approval and (ii) the affirmative vote of the holders, as of
the record date, of a majority of the number of shares of
Company Common Stock held by holders that are not
Participating Holders, voting together as a single class, to
adopt the Agreement and the Merger.”
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5. |
Amendment to Section 7.1(b). Section
7.1(b) of the Merger Agreement is amended by replacing the phrase
“on or before April 30, 2007 (the “
End Date ”)”
with the phrase “on or before 5:00 p.m. New York City time on
June 19, 2007 (the “
End Date ”)”.
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6. |
Amendment to Section 7.1(h). Section
7.1(h) of the Merger Agreement is amended by restating Section
7.1(h) in its entirety to read as follows:
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“by
the Company, if Parent does not (i) satisfy the
condition
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