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UNITED
STATES |
OMB
APPROVAL |
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SECURITIES
AND EXCHANGE COMMISSION |
OMB
Number: 3235-00595 |
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Washington,
D.C. 20549 |
Expires:
January 31, 2008 |
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SCHEDULE
14A |
Estimated
average burden
hours
per response......... 12.75 |
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment
No. )
Filed
by the Registrant |X| |
Filed
by a Party other than the
Registrant |_| |
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Check
the appropriate box: |
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Preliminary
Proxy Statement |
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Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2)) |
|X| |
Definitive
Proxy Statement |
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Definitive
Additional Materials |
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Soliciting
Material Pursuant to Rule 14a-12 |
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Outback
Steakhouse, Inc. |
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(Name
of Registrant as Specified In Its Charter) |
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________________________________________________________________________ |
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(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant) |
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![](osilogo.jpg)
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD ON APRIL 27, 2005
Notice is
hereby given that the Annual Meeting of Stockholders of OUTBACK STEAKHOUSE, INC.
(the "Company") will be held at the A la Carte Event Pavilion, 4050-B Dana
Shores Drive, Tampa, Florida 33634, on Wednesday, April 27, 2005 at 10:00 A.M.,
Tampa time, for the following purposes:
1. |
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To
elect four directors, three to serve for a term of three years and one to
serve for a term of two years, and until his or her successor is duly
elected and qualified; |
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2. |
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To
approve an amendment and restatement of the Company's Managing Partner
Stock Plan ("Plan"). The amendment allows for the grant of shares of
restricted Common Stock under the Plan, but does not increase the number
of shares under the Plan ; and |
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3. |
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To
transact such other business as may properly come before the
meeting. |
Only
stockholders of record at the close of business on March 4, 2005 are entitled to
notice of and to vote at the meeting or any adjournment or postponement of the
meeting.
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By
Order of the Board of Directors |
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March
31, 2005 |
Joseph
J. Kadow |
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Secretary |
An
admission ticket is attached to the accompanying proxy card. The admission
ticket is required for admission to the meeting. Shareholders
holding stock in brokerage accounts ("street name" holders) will need to
bring a copy of a brokerage statement reflecting stock ownership as of the
record date. In addition, each shareholder may be asked to present valid
picture identification, such as a driver's license or passport. Cameras
(including cellular phones with photographic capabilities), recording
devices and other electronic devices will not be permitted at the
meeting. |
Stockholders
are urged to complete, date and sign the enclosed proxy and return it in the
enclosed postage-paid envelope.
OUTBACK
STEAKHOUSE, INC.
PROXY
STATEMENT
This
statement is furnished in connection with the solicitation of proxies for use at
the Annual Meeting of Stockholders of OUTBACK STEAKHOUSE, INC., a Delaware
corporation (the "Company"), to be held on Wednesday, April 27, 2005 at 10:00
A.M., Tampa time, at the A la Carte Event Pavilion, 4050-B Dana Shores Drive,
Tampa, Florida 33634, and at any adjournment or postponement of the meeting
("Annual Meeting"). This solicitation is being made by the Board of Directors.
The Notice of Annual Meeting, this statement and the accompanying proxy,
together with the Company's Annual Report to Stockholders for the year ended
December 31, 2004, are first being sent to stockholders on or about March 31,
2005.
The close
of business on March 4, 2005 has been fixed as the record date for the
determination of stockholders entitled to notice of and to vote at the Annual
Meeting. At that date, the Company had outstanding 73,802,513 shares of Common
Stock, $.01 par value ("Common Stock"), each of which will be entitled to
one vote.
GOVERNANCE
OF THE COMPANY
On
January 28, 2004, the Board of Directors (the "Board") adopted Corporate
Governance Guidelines. The Board has three standing committees: an Audit
Committee, a Compensation Committee and a Nominating and Corporate Governance
Committee (collectively, the "Committees"). The Corporate Governance Guidelines
and the charters for each Committee of the Board may be viewed in full text on
the Company's website located at:
http://www.outback.com/companyinfo/corporategovernance.asp. In addition, the
Board adopted a Code of Ethics for Senior Financial Officers and a Code of
Business Conduct and Ethics for its directors, officers and employees. These
Codes may also be viewed in full text on the Company's website located at:
http://www.outback.com/companyinfo/corporategovernance.asp.
Independence
of Directors
Effective
as of the Annual Meeting and assuming the election of the nominees, the Board
will consist of ten (10) persons, of whom a majority is independent. The Board
has determined that the following six directors have no material relationship
with the Company and satisfy the requirements to be considered "independent" as
defined in the applicable rules of the New York Stock Exchange ("NYSE"):
John A. Brabson, Jr., William R. Carey, Jr., Debbi Fields, General
(Ret) Tommy Franks, Thomas A. James and Toby S. Wilt. The Board has
determined that Thomas A. James is an Audit Committee Financial Expert within
the meaning of Item 401 (h) of Regulation S-K of the Securities Exchange Act of
1934 (the "Exchange Act"). See "Certain Relationships and Related Transactions"
for further information.
Nominating
and Corporate Governance Committee
The
members of the Nominating and Corporate Governance Committee during 2004 were
Messrs. Brabson, Carey and Wilt. Mr. Brabson serves as Chairman of the
Nominating and Corporate
Governance
Committee. The primary duties and responsibilities of the Nominating and
Corporate Governance Committee are to determine (in consultation with the full
Board) the desired skills and characteristics for Board members as well as the
composition of the Board as a whole; make recommendations to the Board regarding
all nominees for Board membership and recommend to the Board a slate of nominees
for election at the Annual Meeting of stockholders; recommend to the Board
directors to serve on the Board's Committees and as Chairpersons of the
Committees; develop and oversee annual performance reviews of the Board and its
Committees; evaluate potential successors to the position of CEO and oversee
succession planning; review and assess the adequacy of the Corporate Governance
Guidelines and advise the Board on corporate governance matters.
In
evaluating and selecting nominees for Board membership, the Nominating and
Corporate Governance Committee considers the nominee's qualification as
independent and the diversity, age, skill and experience of the nominee in the
context of the needs of the Board as a whole. The Committee conducts searches
for prospective Board members and may consider candidates proposed by directors,
the CEO and other members of management. The Committee selects nominees who have
the highest personal and professional integrity, demonstrated exceptional
ability and judgment and whom the Committee believes will be effective, in
conjunction with the other members of the Board, in collectively serving the
long-term interests of the stockholders.
The
Committee will consider candidates submitted by stockholders, directors,
officers, third party search firms and other sources, all of who will be
evaluated by applying the criteria described above. The
Committee received the recommendation that General (Ret) Tommy Franks be
considered as a director nominee from an executive officer of the Company.
General Franks met all of the criteria to be nominated for election as a
director. The
Nominating Committee did not receive any candidate submissions from stockholders
during the year 2004. The Committee will consider individuals submitted by
stockholders for nomination as a director in accordance with the procedures
described under "Stockholder Proposals and Nominations."
The
Company's non-management directors meet at regularly scheduled executive
sessions without management. Ms. Fields has been designated as the Lead
Independent Director and presides over these executive sessions.
ELECTION
OF DIRECTORS
The Board
has fixed the number of directors of the Company, pursuant to the Company's
Bylaws, at 10. The 10 directors are divided into one class of four directors and
two classes of three directors. At the meeting, the stockholders will vote on
the election of the four nominees named below. To maintain the proper number of
directors in each class, if elected three of the nominees will serve for a term
of three years and one nominee will serve for a term of two years, and until his
or her successor is duly elected and qualified. A plurality of the shares of
Common Stock present in person or represented by proxy at the meeting is
required for the election of directors. Consequently, the four nominees who
receive the greatest number of votes will be elected as directors of the
Company. Common Stock represented by proxies appointed by the Board, unless
otherwise specified on the proxy card, will be voted for the election of the
four nominees named below. Abstentions and broker non-votes will not count for
or against any nominee for director.
The
following information identifies the persons nominated for election as a
director and each director of the Company whose term of office will continue
after the meeting.
Nominees
for Election at the Annual Meeting
|
|
Director |
Term |
Name |
Age |
Since |
Expires |
|
|
|
|
Robert
D. Basham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . |
57 |
1991 |
2008 |
W.
R. Carey, Jr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . |
57 |
1992 |
2008 |
General
(Ret) Tommy Franks . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . |
59 |
2005 |
2007 |
Toby
S. Wilt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . |
60 |
1997 |
2008 |
Robert
D. Basham . . . . . . . . . . . |
Founder
and Chief Operating Officer of the Company from
its formation in 1991 until March 2005, at which time he resigned as Chief
Operating Officer and was appointed Vice Chairman. Mr. Basham is a
director of MarineMax, Inc., a recreational boat
dealer. |
|
|
W.
R. Carey, Jr. . . . . . . . . . . . . . |
President
and Founder of Corporate Resource Development, a sales and marketing
consulting and training firm, since 1981. Mr. Carey is a director of
Kforce, Inc., a national provider of professional and technical specialty
staffing services. |
|
|
General
(Ret) Tommy Franks . . |
President
of Franks & Associates, LLC., a private consulting firm, since 2003.
General Franks served in the United States Army from 1966 to 2003. In
August 2003, he retired as a four star general after commanding Operation
Enduring Freedom in Afghanistan and Operation Iraqi Freedom in Iraq.
|
|
|
Toby
S. Wilt . . . . . . . . . . . . . . . . |
Chairman
of Christie Cookie Company, a privately owned gourmet cookie manufacturer,
retailer and wholesaler, since 1989, and President of TSW Investment
Company, a privately owned investment company, since 1987. Mr. Wilt
is a director of 1st
Source Corporation, a registered bank holding company, and TLC Vision
Corp, a diversified healthcare service company whose primary business is
eye care. |
Directors
Whose Terms Will Continue After the Annual Meeting
|
|
Director |
Term |
Name |
Age |
Since |
Expires |
|
|
|
|
John
A. Brabson, Jr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . |
64 |
1992 |
2007 |
Debbi
Fields . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . |
48 |
1996 |
2006 |
Thomas
A. James . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . |
62 |
2002 |
2006 |
Robert
S. Merritt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . |
53 |
1992 |
2006 |
Lee
Roy Selmon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . |
50 |
1994 |
2007 |
Chris
T. Sullivan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . |
57 |
1991 |
2006 |
John
A. Brabson, Jr. . . . . . . . . . |
Partner,
Everest Partners, LLC, a real estate development company, and President of
Brabson Investments, Inc., a privately owned investment company, since
January 2000. From 1996 to January 2000, Mr. Brabson served as Chairman of
the Board of Lykes Bros. Inc., a privately owned diversified agricultural
company. From 1990 to 1996, Mr. Brabson served as Chairman, Chief
Executive Officer and President of Peoples Gas System,
Inc. |
|
|
Debbi
Fields . . . . . . . . . . . . . . . . |
Founder
of Mrs. Fields, Inc., an international franchisor and operator of
retail dessert stores, serving as Chairman of the Board from 1992 to
1996. |
|
|
Thomas
A. James . . . . . . . . . . . . |
Chairman
and Chief Executive Officer of Raymond James Financial, Inc., a financial
services company, since 1983, and Chief Executive Officer of its
subsidiary, Raymond James and Associates, Inc., since
1969. |
|
|
Robert
S. Merritt . . . . . . . . . . . . |
Senior
Vice-President, Chief Financial Officer and Treasurer of the Company since
1991. |
|
|
Lee
Roy Selmon .
. . . . . . . . . . . |
President
of University of South Florida ("USF") Foundation Partnership for
Athletics, since February 2004. USF is a state university. From May 2001
to February 2004, Mr. Selmon was the Director of Athletics for USF. From
1993 to May 2001, Mr. Selmon served as Associate Athletic Director for
External Affairs, University of South Florida. Mr. Selmon is a director of
First National Bankshares of Florida, Inc., a national banking
association. |
|
|
Chris
T. Sullivan . . . . . . . . . . . . |
Founder
and Chairman of the Company since its formation in 1991. Chief Executive
Officer of the Company from 1991 until March 2005.
|
In 2004,
the Board held four meetings. The standing Audit Committee, Compensation
Committee and Nominating and Corporate Governance Committee held 12, two and
four meetings, respectively, during 2004. Each director attended 75% or more of
the aggregate number of Board meetings and committee meetings on which such
director served. The Company schedules a meeting of the directors immediately
following the Annual Meeting and expects all directors to attend the Annual
Meeting. All directors attended the April 21, 2004 Annual Meeting.
The
members of the Audit Committee during 2004 were Messrs. Brabson, Carey,
James and Wilt (until April 21, 2004). Mr. James serves as Chairman of
the Audit Committee, replacing Mr. Carey as Chairman as of
April 21, 2004. The Audit Committee is responsible for appointing the
Company's independent auditors and reviewing their audit plans, evaluating the
adequacy of and monitoring compliance with the Company's accounting policies and
reviewing the Company's annual financial statements. The Board of Directors has
adopted the Audit Committee Charter, which was provided to stockholders as an
attachment to the Proxy Statement for the 2004 Annual Meeting.
The
members of the Compensation Committee during 2004 were Ms. Fields and
Messrs. Bridges (until April 21, 2004), James (commencing April 21, 2004)
and Wilt (commencing April 21, 2004). Mr. Wilt serves as Chairman of the
Compensation Committee, replacing Mr. Selmon as of April 21, 2004. The
Compensation Committee is responsible for establishing the compensation of
executive officers, administers the Company's Amended and Restated Stock Plan
and the Company's Managing Partner Stock Option Plan.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The
following table describes the beneficial ownership of the Company's Common Stock
as of March 4, 2005 (except as noted) by each person known to the
Company to beneficially own more than five percent of the Company's Common
Stock, each director, each nominee for election as a director, each executive
officer named in the Summary Compensation Table, and all directors and executive
officers as a group.
|
|
Amount |
Percent |
|
|
Beneficially |
of |
Name
of Beneficial Owner |
|
Owned
(1) |
Class |
Chris
T. Sullivan (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . |
|
2,792,624 |
3.78% |
Robert
D. Basham (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . |
|
4,415,704 |
5.98% |
J.
Timothy Gannon (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . |
|
1,465,303 |
1.99% |
Robert
S. Merritt (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . |
|
683,531 |
* |
A.
William Allen III (6) . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . |
|
100,000 |
* |
Paul
E. Avery (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . |
|
439,000 |
* |
John
A. Brabson, Jr. (8) . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . |
|
37,034 |
* |
W.
R. Carey, Jr. (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . |
|
45,000 |
* |
Debbi
Fields (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . |
|
625 |
* |
General
(Ret) Tommy Franks . . . . . . . . . . . . . . . . . . . . . . . . . . .
. |
|
0 |
* |
Thomas
A. James (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . |
|
36,361 |
* |
Joseph
J. Kadow (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . |
|
100,000 |
* |
Benjamin
P. Novello (13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . |
|
111,961 |
* |
Nancy
Schneid (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . |
|
200,526 |
* |
Lee
Roy Selmon (15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . |
|
0 |
* |
Steven
T. Shlemon (16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . |
|
301,608 |
* |
Toby
S. Wilt (17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . |
|
75,000 |
* |
Capital
Research and Management Company (18) . . . . . . . . . . .
. |
|
7,131,500 |
9.66% |
FMR
Corp. (19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . |
|
7,037,846 |
9.54% |
JP
Morgan Chase & Co. (20) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . |
|
4,078,046 |
5.53% |
|
|
|
|
All
directors and executive officers as a group (16 persons) . . .
. |
|
10,804,277 |
14.64% |
---------------------------------
*Less
than one percent.
|
|
(1) |
The
named stockholders have sole voting and dispositive power with respect to
all shares shown as being beneficially owned by them, except as otherwise
indicated. |
|
|
(2) |
Includes
2,762,934 shares owned by CTS Equities, Limited Partnership, an investment
partnership ("CTSLP"). Mr. Sullivan is a limited partner of CTSLP and the
sole member of CTS Equities, LLC, the sole general partner of CTSLP. Also
includes 2,568 shares owned by Mr. Sullivan's children for whom
Mr. Sullivan serves as custodian. |
|
|
(3) |
Includes
2,924,378 shares owned by RDB Equities, Limited Partnership, an
investment partnership ("RDBLP"). Mr. Basham is a limited partner of RDBLP
and the sole member of RDB Equities, LLC, the sole general partner of
RDBLP. Also includes 1,491,326 shares owned by the Robert D. Basham
Revocable Trust of which Mr. Basham is the sole beneficiary.
|
|
|
(4) |
Includes
(i) 1,465,303 shares owned by JTG Equities, Limited Partnership, an
investment partnership ("JTGLP"). Mr. Gannon is a limited partner of JTGLP
and the sole member of JTG Equities, LLC, the sole general partner of
JTGLP. |
|
|
(5) |
Includes
550,000 shares subject to stock options that Mr. Merritt
currently has the right to acquire at an exercise price of $24.875 per
share. |
|
|
(6) |
Does
not include 400,000 shares subject to stock options that are not
exercisable within 60 days of March 4, 2005. |
|
|
(7) |
Includes
83,000, 200,000 and 120,000 shares subject to stock options that
Mr. Avery currently has the right to acquire at exercise prices of
$15.00, $24.94 and $28.06 per share, respectively. Does not include
480,000 shares subject to stock options that are not exercisable within 60
days of March 4, 2005. |
|
|
(8) |
Includes
15,003 shares subject to stock options that Mr. Brabson currently has the
right to acquire at an exercise price of $38.42 per share. Does not
include share equivalents representing value of shares held under the
Directors' Deferred Compensation and Stock Plan. |
|
|
(9) |
Does
not include share equivalents representing value of shares held under the
Directors' Deferred Compensation and Stock Plan. |
|
|
(10) |
Does
not include share equivalents representing value of shares held under the
Directors' Deferred Compensation and Stock Plan. |
|
|
(11) |
Includes
30,000 shares subject to stock options that Mr. James currently has the
right to acquire at an exercise price of $30.60 per share. Does not
include 15,000 shares subject to stock options that are not exercisable
within 60 days of March 4, 2005. |
|
|
(12) |
Includes
100,000 shares subject to stock options that Mr. Kadow currently has the
right to acquire at an exercise price of $24.875 per share. Does not
include 125,000 shares subject to stock options that are not exercisable
within 60 days of March 4, 2005. |
|
|
(13) |
Includes
45,000, 28,074 and 15,000 shares subject to stock options that Mr. Novello
currently has the right to acquire at exercise prices of $21.44, $15.67
and $36.56 per share, respectively. Does not include 260,000 shares
subject to stock options that are not exercisable within 60 days of March
4, 2005. |
|
|
(14) |
Includes
15,000, 75,000 and 100,000 shares subject to stock options that
Ms. Schneid currently has the right to acquire at exercise prices of
$15.00, $24.875 and $24.94 per share, respectively. |
|
|
(15) |
Does
not include share equivalents representing value of shares held under the
Directors' Deferred Compensation and Stock Plan. |
|
|
(16) |
Includes
1,608 shares owned by Mr. Shlemon as custodian for a minor child and
300,000 shares subject to stock options that Mr. Shlemon currently has the
right to acquire at an exercise price of $19.00 per share.
|
|
|
(17) |
Includes
45,000 shares subject to stock options that Mr. Wilt currently has the
right to acquire at an exercise price of $15.00 per share. Does not
include share equivalents representing value of shares held under the
Directors' Deferred Compensation and Stock
Plan. |
(18) |
Based
on a Schedule 13G filed by Capital Research and Management Company, a
Delaware corporation ("CRMC"), with the Securities and Exchange Commission
(the "SEC") on February 14, 2005, reflecting beneficial ownership as of
December 31, 2004. These shares are owned by various individual and
institutional investors for which CRMC serves as investment adviser with
power to direct investments. CRMC has no sole power to vote the
shares. |
|
|
(19) |
Based
on a Schedule 13G filed by FMR Corp., a Delaware corporation, with the SEC
on February 14, 2005, reflecting beneficial ownership as of December
31, 2004. Includes: (i) 6,374,710 shares beneficially owned by Fidelity
Management & Research Company; (ii) 523,400 shares beneficially owned
by Fidelity Management Trust Company; (iii) 139,100 shares beneficially
owned by Fidelity International Limited; and (iv) 636 shares beneficially
owned by Strategic Advisers, Inc. FMR Corp. has the sole power to vote or
direct the vote of 663,436 shares and no shared voting power. FMR Corp.
has the sole power to dispose of all 7,037,846 shares. |
|
|
(20) |
Based
on a Schedule 13G filed by JP Morgan Chase & Co., a Delaware
corporation ("JPMC"), with the SEC on February 11, 2005, reflecting
beneficial ownership as of December 31, 2004. These shares are owned by
various individual and institutional investors for which JPMC serves as
investment adviser with power to direct investments. JPMC has sole power
to vote 2,723,507 shares and the shared power to vote 877,558 shares. JPMC
has sole dispositive power with respect to 3,197,613 of such shares and
shared dispositive power of 879,458 shares. |
|
|
Unless
otherwise indicated, the mailing address of the Company, and of persons
identified in the above table is 2202 North West Shore Boulevard, Suite 500,
Tampa, Florida 33607. The mailing address of CTSLP, RDBLP and JTGLP is 3111
South Valley View, Suite B-101, Las Vegas, Nevada 89102. The address
of CRMC is 333 South Hope Street, Los Angeles, California 90071. The address of
FMR Corp. is 82 Devonshire Street, Boston, Massachusetts 02109. The address of
JPMC is 270 Park Avenue, New York, New York 10017.
EXECUTIVE
COMPENSATION
The
following table describes the compensation earned by the Chief Executive Officer
and the four most highly compensated executive officers of the Company and its
subsidiaries (each, a "Named Executive Officer") during the past three (3)
fiscal years:
Summary
Compensation Table
|
|
Long-Term
Compensation |
|
|
|
` Annual
Compensation |
Awards |
Payouts |
|
|
|
|
|
|
|
Securities |
|
|
|
|
|
|
Other |
|
Under- |
|
|
|
|
|
|
Annual |
Restricted |
Lying |
|
All
Other |
|
|
|
|
Compen- |
Stock |
Options/ |
LTIP |
Compen- |
|
|
Salary |
Bonus |
sation |
Award(s) |
SARs |
Payouts |
sation |
Name
and Principal Position |
Year |
($) |
($)(1) |
($)(2) |
($) |
(#) |
($) |
($)(3) |
|
|
|
|
|
|
|
|
|
Chris
T. Sullivan |
2004 |
655,962 |
0 |
99,000 |
|
|
|
0 |
Chairman and Chief
|
2003 |
600,000 |
0 |
74,654 |
|
|
|
0 |
Executive
Officer(4) |
2002 |
465,586 |
0 |
|
|
|
|
10,952 |
|
|
|
|
|
|
|
|
|
Paul
E. Avery |
2004 |
621,154 |
1,262,500 |
5,200 |
|
|
|
0 |
President(4) |
2003 |
546,317 |
800,000 |
4,800 |
|
300,000 |
|
0 |
|
2002 |
454,230 |
522,645 |
|
|
|
|
2,619 |
|
|
|
|
|
|
|
|
|
A.
William Allen III |
2004 |
407,692 |
474,028 |
5,600 |
|
|
|
|
President - West Coast
|
2003 |
300,000 |
346,311 |
4,800 |
|
|
|
|
Concepts(4) |
2002 |
282,143 |
128,047 |
4,800 |
|
500,000 |
|
|
|
|
|
|
|
|
|
|
|
Benjamin
P. Novello |
2004 |
400,962 |
397,500 |
5,200 |
|
150,000 |
|
|
President of
subsidiary |
2003 |
260,577 |
433,120 |
4,800 |
|
|
|
|
Outback Steakhouse of Florida,
Inc. |
2002 |
210,813 |
388,463 |
4,800 |
|
125,000 |
|
|
|
|
|
|
|
|
|
|
|
Steven
T. Shlemon |
2004 |
247,855 |
430,803 |
5,200 |
|
|
|
|
President of
subsidiary |
2003 |
204,225 |
266,956 |
4,800 |
|
|
|
|
Carrabba's Italian Grill,
Inc. |
2002 |
204,225 |
306,555 |
4,800 |
|
|
|
|
(1) |
Bonus
amounts paid in 2004 to Messrs. Avery, Allen, Novello and Shlemon
represent amounts paid under the revised quarterly bonus plans established
for each of them by the Compensation Committee. Bonus amounts paid in 2002
and 2003 to Messrs. Avery, Allen, Novello and Shlemon represent
amounts paid under the former quarterly bonus plans established for each
of them respectively by the Compensation Committee and the Company's
Corporate Employee Bonus Plan. See "Executive Compensation-Report by the
Compensation Committee on Executive Compensation-Cash Incentives" for a
discussion of the plan for the year 2004. |
|
|
|
|
(2) |
Other
annual compensation includes car allowances, except for Mr. Sullivan who
received a car allowance of $6,500 and personal use of the Company's
aircraft of up to 50 hours for the year 2004. The amount of $92,500 of
income imputed to Mr. Sullivan for personal use of Company aircraft was
based on the variable operating costs to the Company, i.e., fuel costs,
mileage, trip-related maintenance, landing/ramp fees and other
miscellaneous variable costs. Fixed costs which do not change based on
usage, such as pilot salaries and the cost of maintenance not related to
trips, are excluded. |
|
|
|
|
(3) |
Reflects
the dollar value of insurance premiums previously paid by the Company with
respect to term life insurance for the benefit of the named individual,
and the present value of the economic benefit for the remainder of the
premium previously paid by the Company with respect to the split-dollar
life insurance agreement for the named individual (see "Employee
Agreements" below for a description of such agreements), based on the time
period between the date on which the premium was paid by the Company and
December 31, 2003. Under the split-dollar life insurance agreement, the
Company was obligated to pay the premium for the split-dollar policy for
only one year, and may pay the premiums annually for ten years, ending in
November 7, 2009. The Company ceased paying the premiums for the split
dollar policy in July 2002, in compliance with the Sarbanes-Oxley Act of
2002. |
|
|
|
|
(4) |
As
of March 7, 2005, Mr. Allen replaced Mr. Sullivan as Chief Executive
Officer, and Mr. Avery replaced Robert Basham as Chief Operating Officer,
as indicated in the Company's Form 8-K dated March 11, 2004, filed with
the SEC. |
|
Option/SAR
Grants in Last Fiscal Year
|
|
%
of |
|
|
|
|
Number
of |
Total |
|
|
Potential
Realizable Value at |
|
Shares |
Options/SARs |
Exercise |
|
Assumed
Annual Rates of |
|
Underlying |
Granted
to |
Or
Base |
|
Stock
Price Appreciation |
|
Options/SARs |
Employees
in |
Price |
Expiration |
For
Option Term |
Name |
Granted
(#) |
Fiscal
Year |
($/Sh) |
Date |
5% |
10% |
Benjamin
P. Novello (1) |
150,000 |
13.7% |
$43.90 |
04/21/2014 |
$4,141,271 |
$10,494,794 |
-----------------------
Messrs.
Sullivan, Avery, Allen and Shlemon did not receive option grants during
2004.
|
|
(1) |
Exercisable
as follows: (a) 30,000 shares on or after April 21, 2007; (b) 30,000
shares on or after April 21, 2008; and (c) 90,000 shares on or
April 21, 2009. |
|
|
Aggregated
Option/SAR Exercises in Last Fiscal Year
and
FY-End Options/SAR Value Table
|
|
|
Number
of |
|
|
|
|
Securities |
Value
of |
|
|
|
Underlying |
Unexercised |
|
|
|
Unexercised |
In-the-Money |
|
Shares |
|
Options/SARs |
Options/SARs
at |
|
Acquired |
Value |
At
FY-End (#)(1)(2) |
FY-End
($)* |
Name |
on
Exercise |
Realized |
Exercisable /Unexercisable |
Exercisable /Unexercisable |
Chris
T. Sullivan (1) |
0 |
0 |
0 |
0 |
$ 0 |
$ 0 |
A.
William Allen (2) |
0 |
0 |
0 |
500,000 |
$ 0 |
$ 8,587,500 |
Paul
E. Avery (3) |
100,000 |
2,768,000 |
273,000 |
660,000 |
$6,631,945 |
$10,109,700 |
Benjamin
P. Novello (4) |
15,000 |
410,250 |
28,074 |
320,000 |
$ 839,272 |
$ 2,869,500 |
Steven
T. Shlemon (5) |
150,000 |
4,289,220 |
300,000 |
0 |
$7,969,500 |
$ 0 |
-----------------------
*Based on
$45.565, the average high and low sales of prices of the Company's Common Stock
on December 31, 2004 as quoted on the composite price history of the
NYSE.
|
|
(1) |
Mr.
Sullivan does not have any options to acquire Common Stock of the
Company. |
|
|
(2) |
The
500,000 stock options held by Mr. Allen as of December 31, 2004, were
granted on July 24, 2002, expire on July 24, 2012, have an exercise price
of $28.39 per share and vest in annual 100,000 share increments beginning
May 1, 2005. |
|
|
(3) |
Of
the 933,000 stock options held by Mr. Avery as of December 31, 2004:
(i) 150,000 were granted on January 25, 1995, expire on January 25,
2005, and were exercisable in full as of December 31, 2004 at an exercise
price of $17.67 per share; (ii) 83,000 were granted on July 23, 1997,
expire on July 23, 2007, and were exercisable in full as of December 31,
2004 at an exercise price of $15.00 per share; (iii) 200,000 were granted
on February 2, 2000, expire on February 2, 2010, and are exercisable
as follows at an exercise price of $24.94 per share: (a) 40,000 shares on
or after January 1, 2003, (b) 40,000 shares on or after
January 1, 2004, and (c) 120,000 shares on or after January 1,
2005; (iv) 300,000 were granted on April 25, 2001, expire on
April 25, 2011, and are exercisable as follows at an exercise
price of $28.06 per share: (a) 60,000 shares on or after
April 25, 2004, (b) 60,000 shares on or after April 25, 2005, and (c)
180,000 shares on or after April 25, 2006; and (v) 300,000
shares were granted on January 22, 2003, expire on January 22, 2013, and
are exercisable as follows at an exercise price of $34.12 per share:
60,000 shares on or after January 22, 2006; (b) 60,000 shares on or after
January 22, 2007; and (c) 180,000 shares on or after January 22,
2008. |
|
|
(4) |
Of
the 348,074 stock options held by Mr. Novello as of December 31,
2004: (i) 28,074 were granted on June 26, 1994, expire on June 26,
2009, and were exercisable in full as of December 31, 2004 at an exercise
price of $15.67 per share; (ii) 45,000 were granted on October 27, 1999,
expire on October 27, 2009, and are exercisable as follows at an exercise
price of $21.44 per share: (a) 45,000 shares on or after January 1,
2005; (iii) 75,000 were granted on January 23, 2002, expire on January 23,
2012, and are exercisable as follows at an exercise price of $36.56 per
share: (a) 15,000 shares on or after January 1, 2005, (b) 15,000
shares on or after January 1, 2006, and (c) 45,000 shares on or after
January 1, 2007; (iv) 50,000 were granted on July 24, 2002, expire on July
24, 2012, and are exercisable as follows at an exercise price of $28.39
per share: (a) 10,000 shares on or after July 1, 2005, (b) 10,000
shares on or after July 1, 2006, and (c) 30,000 shares on or after July 1,
2007; and (v) 150,000 shares were granted on April 21, 2004, expire on
April 21, 2014, and are exercisable as follows at an exercise price of
$43.90 per share: 30,000 shares on or after April 21, 2007; (b) 30,000
shares on or after April 21, 2008; and (c) 90,000 shares on or after April
21, 2009. |
|
|
(5) |
Of
the 300,000 stock options held by Mr. Shlemon as of December 31,
2004: (i) 300,000 were granted on October 1, 1995, expire on October
1, 2005, and were exercisable in full as of December 31, 2004 at an
exercise price of $19.00 per share. |
Report
by the Compensation Committee
on
Executive Compensation
The
Company's executive compensation program is administered by the Compensation
Committee of the Board, which has responsibility for all aspects of the
compensation program for the executive officers of the Company. The Compensation
Committee consists of three directors whose names are listed at the end of this
report,
each of whom is a Non-Employee Director within the meaning of Rule 16b-3 under
the Exchange Act and an Outside Director within the meaning of Section 162(m) of
the Internal Revenue Code of 1986 ("IRC").
The
Compensation Committee's primary objective with respect to executive
compensation is to establish programs that attract and retain key managers and
align their compensation with the Company's overall business strategies, values
and performance. To this end, the Compensation Committee established, and the
Board endorsed, an executive compensation philosophy for 2004 that included the
following considerations:
|
* a
"pay-for-performance" feature that differentiates compensation results
based upon the Company's annual financial performance; |
|
|
|
|
|
*
stock incentives, in certain cases, as a component of total compensation
to closely align the interests of the Company's executives with the
long-term interests of stockholders that facilitate the retention of
talented executives and encourage Company stock ownership and capital
accumulation; and |
|
|
|
|
|
*
emphasis on total compensation versus cash compensation, under which base
salaries are generally set somewhat lower than competitive levels but that
motivates and rewards Company executives with total compensation
(including incentive programs) at or above competitive levels, if the
financial performance of the Company meets or exceeds goals established
for the year. |
|
For 2004,
the Company's executive compensation program was comprised of the following
primary components: (a) base salaries; (b) cash incentive
opportunities; and (c) long-term incentive opportunities in the form of stock
options and/or restricted stock for certain executives. Each of those components
is discussed below.
Base
Salaries. The
Compensation Committee generally attempts to set base salaries of executive
officers at levels that are below "market" rates, as determined from information
gathered by the Company from companies that are similar in size and in the same
industry group as the Company and that were used by Dow Jones in compiling the
Dow Jones U.S. Restaurants and Bars Index. Base salaries are subject to annual
review and adjustment on the basis of individual and Company performance, level
of responsibility, individual experience, and competitive, inflationary and
internal equity considerations. In 2004, the base salary of Chris T. Sullivan,
the Company's Chief Executive Officer, was increased from $600,000 to $655,962
and was based on such factors as the Company's profitability, cash flow and
capital spending for the prior fiscal year, the aggregate number of new
restaurants opened during the prior fiscal year, increases in percentage of same
store sales versus budget forecasts, and subjective considerations such as
positive overall employee morale, his attention to succession planning and the
Company's competitive position. The Compensation Committee believes that the
executive salaries established by the Compensation Committee, including the
salary paid to Mr. Sullivan, the Company's Chief Executive Officer as of
December 31, 2004, are at the lower end of the range of salaries paid by the
companies surveyed.
As of
March 7, 2005, Mr. Allen replaced Mr. Sullivan as Chief Executive Officer
and Mr. Avery replaced Mr. Basham as Chief Operating Officer, as indicated in
the Company's Form 8-K dated March 11, 2004, and filed with the
SEC.
Cash
Incentives. In 2004,
Company executives were eligible to receive cash bonus awards to focus their
attention on achieving key goals pursuant to the following bonus plans that are
designed to provide competitive incentive pay only in the event performance
objectives are met or exceeded. Messrs. Sullivan and Basham were not eligible to
receive bonus awards in 2004.
During
the year 2004, the Compensation Committee of the Board of Directors of Outback
Steakhouse, Inc. (the "Company") established an incentive compensation program
intended to provide incentives to officers of the Company, including the
Company's named executive officers, for achieving certain objective performance
goals, including comparable sales increases, average unit volume growth, net
income increases and development, and subjective criteria determined by the
Compensation Committee.
Quarterly
Cash Incentives for Messrs. Avery, Novello and Shlemon. Messrs.
Avery, Novello and Shlemon were eligible to receive a quarterly bonus based upon
the Company and the brands for which they are responsible meeting their
objective and subjective operational goals as stated above. If the operational
goals for a specific quarter were met, (i) Mr. Avery was entitled to earn a
bonus of up to $400,000 for the applicable calendar quarter and an additional
amount payable at year end equal to 25% of the quarterly bonuses earned;
(2) Mr. Novello was entitled to earn a bonus of up to $150,000 for each
calendar quarter; and (3) Mr. Shlemon was entitled to earn a bonus of up to
$125,000 for each calendar quarter. In 2004, Messrs. Avery, Novello and Shlemon
earned bonuses aggregating $1,262,500, $397,500 and $430,803, respectively,
under this plan.
Quarterly
Cash Incentives for Mr. Allen. In 2004,
Mr. Allen was entitled to earn quarterly bonuses equal to 2% of EBITDA
attributable to each Fleming's Prime Steakhouse and Roy's restaurants if
sales and EBITDA for such restaurant exceeded the previous year's performance
for the same period. For Fleming's Prime Steakhouse and Roy's restaurants opened
after January 1, 2003, Mr. Allen's quarterly bonus was based upon 2% of EBITDA
if a restaurant generated a 25% or greater return on investment capital. If a
restaurant failed to generate a 25% return on invested capital for two (2)
consecutive quarters, bonuses ceased until the restaurant generated at least
a 25% return on capital for two (2) consecutive quarters. The EBITDA
calculations are net of pre-opening expenses. In addition, if the existing 13
Roy's restaurants generate $10 million EBITDA for two (2) consecutive
years, a bonus of $1 million would be awarded. In connection with Mr. Allen's
promotion to Chief Executive Officer, this plan has been eliminated and will be
replaced by a revised plan as described in Exhibit 10.31 to the Company's Form
10-K dated March 16, 2005, and filed with the SEC.
Long-Term
Stock Incentives. The
Company's Amended and Restated Stock Plan (the "Stock Plan") provides for the
issuance of "incentive stock options," within the meaning of Section 422 of
the Internal Revenue Code, and nonqualified stock options and restricted stock
to officers and other employees of the Company. The Stock Plan was originally
adopted by the Board and stockholders in 1992 and has been amended from time to
time. Grants to executives under the Company's Stock Plan are designed to align
a portion of the executive compensation package with the long-term interests of
the Company's stockholders by providing an incentive that focuses attention on
managing the Company from the perspective of an owner with an equity stake in
the business.
Grants of
stock options and/or restricted stock generally are limited to officers (other
than Mr. Sullivan and Basham) and other key employees and managers of the
Company or its subsidiaries who are in a position to contribute substantially to
the growth and success of the Company and its subsidiaries. Stock options and/or
restricted stock are designed to reward exceptional performance with a long-term
benefit, facilitate stock ownership and deter recruitment of key Company
personnel by competitors and others. In evaluating annual compensation of
executive officers (other than Messrs. Sullivan and Basham), the
Compensation Committee takes into consideration stock options and/or restricted
stock as a percentage of total compensation, consistent with its philosophy that
stock incentives more closely align the interests of Company employees with the
long-term interests of stockholders. In granting stock options and/or restricted
stock to executive officers, the
Compensation
Committee has considered the number and size of stock options and/or restricted
stock already held by an executive officer when determining the size of stock
awards to be made to the officer in a given fiscal year. The terms of stock
options and restricted stock are established by the Compensation
Committee.
Mr.
Novello is the only named executive officer of the Company who was granted stock
options in 2004. As of March 4, 2005, the named executive officers appearing in
the Summary Compensation Table held stock or the right to acquire stock
representing five percent (5%) of the Company's outstanding Common Stock,
assuming the exercise of all outstanding options held by executive officers that
are exercisable within 60 days of March 4, 2005. Neither
Messrs. Sullivan, Basham nor Gannon, the Company's founders, have ever been
granted options to acquire shares of the Company's Common Stock.
Section
162(m) of the IRC prohibits a deduction to any publicly held corporation for
compensation paid to a "covered employee" in excess of $1 million per year
("Dollar Limitation"). A covered employee is any employee who appears in the
Summary Compensation Table who is also employed by the Company on the last day
of the Company's calendar year. The
Company generally is entitled to a tax deduction upon an employee's exercise of
nonqualified options in an amount equal to the excess of the value of the shares
over the exercise price. The tax deduction for nonqualified options is
considered compensation for purposes of the Dollar Limitation with respect to
options that do not qualify as "performance based" as defined in the IRC.
The
Company generally structures its compensation programs to avoid limitation on
deductibility of compensation paid to covered employees.
Conclusion.
As
described above, the Company's executive compensation program is designed to
provide a link between total compensation and the Company's performance and
long-term stock price appreciation consistent with the compensation philosophies
set forth above. This program has been established since the Company's
inception, and the Compensation Committee believes it has been a significant
factor in the Company's growth and profitability and the resulting gains
achieved by the Company's stockholders.
Compensation
Committee
Debbi
Fields
Thomas A.
James
Toby
S.Wilt, Chairman
Compensation
Committee Interlocks and Insider Participation
Since
April 21, 2004, the Compensation Committee has consisted of Debbi Fields, Thomas
A. James and Toby S.Wilt, none of whom is or was an officer or employee of the
Company or any of its subsidiaries. From January 1, 2004, to April 21, 2004, the
Compensation Committee consisted of Charles Bridges, Debbi Fields and Lee Roy
Selmon.
Until
April 21, 2004, Mr. Selmon served on the Compensation Committee. On November 7,
2000, the Company opened a restaurant named "Lee Roy Selmon's." This restaurant
is owned by Selmon's/Florida-I, Limited Partnership ("Selmon's Partnership"). OS
Southern, Inc., a wholly-owned subsidiary of the Company, is the sole general
partner and 70% owner of the Selmon's Partnership. Lee Roy Selmon, a director of
the Company and Chair of the Compensation Committee, owns a 10% limited partner
interest in the Selmon's Partnership solely with respect to the first Lee Roy
Selmon's restaurant opened by the partnership. Mr. Selmon acquired his interest
in the restaurant in exchange for the use of his name and a
capital
contribution of $101,000. The purchase price was established by the Board based
on the value of Mr. Selmon's name and the partnership's cash expenditure
necessary to open the restaurant. The Company opened a second Lee Roy Selmon's
restaurant on June 24, 2003. Mr. Selmon has no ownership interest in the
second restaurant, but receives a royalty of 1% of the second restaurant's gross
sales. Mr. Selmon will receive a royalty of 1% of the gross sales from any
future Lee Roy Selmon's restaurants opened by the Company or its affiliates. In
2004, Mr. Selmon received distributions from the Selmon's Partnership in the
amount of $55,163.68 and royalties in the amount of $31,685.07.
Toby S.
Wilt through his wholly-owned corporation TSW Investments, Inc., has investments
in seven limited partnerships, each of which owns and operates one Carrabba's
Italian Grill restaurant as a franchisee of Carrabba's Italian Grill, Inc.
("Carrabba's"), a subsidiary of the Company. These investments were made in the
years 1999 to 2002. Carrabba's owns a 45% interest as a general partner in each
of these limited partnerships. In 2004, Mr. Wilt received distributions from
these partnerships in the aggregate amount of $47,427.
Report
by the Audit Committee
The Audit
Committee of the Board is responsible for overseeing the Company's financial
reporting process on behalf of the Board and operates under a written charter
adopted by the Board, which was provided to stockholders as an attachment to the
Proxy Statement for the 2004 Annual Meeting. For the year 2004, the Audit
Committee was comprised of the following individuals: Messrs. Brabson,
Carey, James and Wilt (until April 21, 2004). Mr. James serves as
Chairman of the Audit Committee replacing Mr. Carey as Chairman as of
April 21, 2004. The Audit
Committee annually recommends to the Board the selection of the Company's
independent auditors. For the year 2004, PricewaterhouseCoopers LLP was the
Company's independent auditor.
Management
is responsible for the Company's financial statements and the financial
reporting process, including the systems of internal controls. The independent
auditors are responsible for performing an independent audit of the Company's
consolidated financial statements in accordance with generally accepted auditing
standards and expressing an opinion on the conformity of those audited financial
statements with generally accepted accounting principles, their judgments as to
the quality, not just the acceptability, of the accounting principles, the
reasonableness of significant judgments and the clarity of disclosures in the
financial statements.
The
Committee reviewed with the independent auditors the Company's accounting
principles and such other matters as are required to be discussed with the
Committee under generally accepted auditing standards and under SAS 61
(Codification of Statements on Auditing Standards, AU Sec. 380). In addition,
the Committee has discussed with the independent auditors the auditors'
independence from management and the Company and has received the written
disclosures and the letter from the independent auditors required by the
Independence Standards Board Standard No. 1 (Independence Discussions with Audit
Committees). The Audit Committee further considered whether the provision by
PricewaterhouseCoopers LLP of the non-audit services described elsewhere in this
Proxy Statement is compatible with maintaining the auditors'
independence.
Based
upon (i) the Audit Committee's review and discussion of the audited financial
statements with management and the independent auditors, (ii) the Audit
Committee's review of the representation of management, and (iii) the
disclosures by the independent auditors to the Audit Committee, the Audit
Committee recommended to the Board that the Company's audited consolidated
financial statements be
included
in the Company's Annual Report on Form 10-K for the year ended December 31,
2004, for filing with the SEC. The Audit Committee and the Board selected
PricewaterhouseCoopers LLP as the Company's independent auditors for 2004.
Audit
Committee
John A.
Brabson, Jr.
W. R.
Carey, Jr.
Thomas A.
James, Chairman
Principal
Accountant Fees and Services
The
following table sets forth the aggregate fees billed or expected to be billed by
PricewaterhouseCoopers LLP for 2004 and 2003 for audit and non-audit services
(as well as all "out-of-pocket" costs incurred in connection with these
services) and are categorized as Audit Fees, Audit-Related Fees, Tax Fees and
All Other Fees. The nature of the services provided in each such category is
described following the table:
|
|
|
|
2004 |
|
|
2003 |
|
|
|
|
|
|
|
|
|
|
|
Audit |
|
$ |
796,900 |
|
$ |
288,000 |
|
|
Audit-Related |
|
|
17,000 |
|
|
20,000 |
|
|
Tax |
|
|
- |
|
|
- |
|
|
All
Other |
|
|
3,600 |
|
|
- |
|
|
Total |
|
$ |
817,500 |
|
$ |
308,000 |
|
Audit fees for
the years ended December 31, 2004 and 2003 include professional
services rendered for the audits of the consolidated financial statements of the
Company, including review of quarterly filings with the SEC and benefit plan
audits, as well as statutory audits, consents, income tax provision procedures,
and assistance with review of documents filed with the SEC. For 2004, audit fees
includes $385,000 related to PricewaterhouseCooper's audit of the Company's
management's assessment of internal controls over financial reporting as
required by the Sarbanes-Oxley Act of 2002.
The
Audit-Related fees for
the years ended December 31, 2004 and 2003 include accounting consultations and
assistance with review of the Company's periodic reports by the SEC,
respectively.
The
All
Other fees for
the years ended December 31, 2004 and 2003 include annual subscription licenses
for an accounting research tool, which the Company licenses from
PricewaterhouseCoopers.
Prior to
the adoption of the current Audit Committee Charter adopted January 28, 2004,
the Audit Committee policy was that consulting fees to independent auditor could
not exceed 25% of the audit fee without approval of the Audit
Committee.
The Audit
Committee of the Board has considered whether provision of other services is
compatible with maintaining the independent accountant's independence and has
determined that such services have not adversely affected PricewaterhouseCoopers
LLP's independence.
Audit
Committee Pre-Approval Policies and Procedures
The Audit
Committee requires that each engagement of the Company's independent auditor to
perform auditing services and permitted non-audit services must be approved by
the Audit Committee in advance, including the fees and principal terms thereof.
However, the Audit Committee has pre-approved $20,000 of annual accounting
consulting services that may be used at management's discretion if
necessary.
Directors'
Compensation
Prior to
April 1, 2004, directors of the Company who were not employees of the Company
received fees of $15,000 per year paid quarterly, $1,000 per Board meeting
attended, and $500 per committee meeting attended, plus reimbursement of the
expenses of attending meetings. As of April 1, 2004, the Company pays its
directors who are not employees of the Company fees as follows:
|
|
|
|
|
Annual
retainer paid in quarterly installments: |
$60,000 |
|
|
Committee
Chair (other than Audit) fee |
5,000 |
|
|
Audit
Committee Chair fee |
8,000 |
|
|
Board
meeting fee |
1,500 |
|
|
Committee
meeting (other than Audit) fee |
1,000 |
|
|
Audit
Committee meeting fee |
2,000 |
|
|
Telephonic
Board or Committee meeting fee |
500 |
|
In July
1997, the Board adopted the Outback Steakhouse, Inc. Directors' Deferred
Compensation and Stock Plan ("Deferred Compensation Plan"). Under the terms of
the Deferred Compensation Plan, directors who are not employees of the Company
are required to receive at least 50% of their total fees in Common Stock of the
Company and may choose to receive the remaining 50% in cash and/or shares of
Common Stock in the Company. The receipt of any portion in shares of Common
Stock of the Company may be deferred and held as share equivalents under the
Deferred Compensation Plan for a period of time, as determined by each director.
Before April 21, 2004, all dividends paid on the Company Common Stock were
credited to their deferral accounts. As of April 21, 2004, all dividends were
paid in cash directly by the Company. In 2004, Mr. Brabson received $35,500
in cash, $1,085.15 of which was dividend payments, and $34,548 in Common Stock.
Mr. Carey and Mrs. Fields each elected to receive their fees of
$67,310 and $57,321, respectively, all in Common Stock and each received
dividend payments in the respective amounts of $2,063.09 and $2,023.89.
Mr. James received $35,625 in cash and $32,875 in Common Stock. Mr. Selmon
received $29,223 in cash, $1,223 of which was dividend payments, and $28,357 in
Common Stock; and Mr. Wilt received $33,398.15 in cash, $1,273 of which was
dividend payments, and $31,992 in Common Stock. All of the fees received in the
form of Common Stock have been deferred for the year 2004.
Generally,
upon election to the Board, each director who is not an employee was granted a
one-time stock option to acquire 45,000 shares of Common Stock. The exercise
price for such shares is equal to the closing sale price of the Common Stock on
the date of the grant as reported on the NYSE. Options granted to directors
generally were granted upon the same terms and conditions as options granted to
executive officers and key employees.
Commencing
on April 1, 2004, upon election to the Board, any new director who is not an
employee will not receive stock options, and shall instead receive restricted
stock having a value at time of grant of $100,000. The restricted stock will
vest in equal installments over a five-year term.
EXECUTIVE
OFFICERS OF REGISTRANT
A.
William Allen, 45, has served as Chief Executive Officer of the Company since
March 7, 2005. Mr. Allen has been in the restaurant industry for 26 years and
has been associated with the Company since 1999 as the President of Fleming's
Prime Steakhouse and Wine Bar, which he co-founded. In 2002, he took on the
additional responsibility of overseeing the operation of the Company's Roy's
restaurants. In 2004, he was promoted to the President of West Coast Concepts
and has been involved with the development of the Company's latest joint
venture, Paul Lee's Chinese Kitchen.
Paul E.
Avery, 45, has served as Chief Operating Officer of the Company since March 7,
2005. Mr. Avery has been in the restaurant industry for over 20 years and has
been with the Company since 1989 when he started as the Managing Partner of one
of the Company's first Outback Steakhouse restaurants. He became Director of
Operations in 1990, Senior Vice President of Operations in 1993, and President
of the Outback Steakhouse concept in 1997. He was promoted to Company President
in 2004 when he took on the additional responsibility of overseeing the
operations of three of the Company's other mid-scale casual dining
concepts.
Benjamin
P. Novello, 47, has served as President of Outback Steakhouse of Florida, Inc.,
a wholly-owned subsidiary of the Company since January 1, 2004, managing the
Outback Steakhouse brand of over 750 restaurants. Mr. Novello has been in
the restaurant industry for over 20 years and has been with the Company since
1991. From 1985 though 1991, he was employed by Steak & Ale Corp in Dallas,
Texas. In 1991, he joined the Company as a Managing Partner in one of the
Outback Steakhouse restaurants. Mr. Novello was promoted to Joint Venture
Partner in October, 1997, overseeing 13 Outback Steakhouse restaurants. He
became Vice President of Operations of Outback Steakhouse in 2002 overseeing
approximately 100 restaurants.
Steven T.
Shlemon, 45, has served as President of Carrabba's Italian Grill, Inc., a
wholly-owned subsidiary of the Company since April 27, 2000, managing the
Carrabba's brand of over 120 restaurants. Mr. Shlemon has been in the restaurant
industry for over 25 years and has been with the Company since 1990. During the
years 1979 through 1990, Mr. Shlemon was employed by Steak & Ale Corp.,
Bennigan's and Dalt's, a concept owned by TGI Friday's. In 1990, he joined the
Company as an Outback Steakhouse Joint Venture Partner in Dallas. In 1995, he
was promoted to Carrabba's Director of Operations, and in 1997, he was promoted
to Carrabba's Vice President and Director of Operations.
Joseph J.
Kadow, 48, has served as Senior Vice President, Secretary and General Counsel of
the Company since April, 1994.
Nancy
Schneid, 46, has served as the Senior Vice President - Marketing of the Company
since April, 2002, and Ms. Schneid served as Senior Vice President - Marketing
of Outback Steakhouse of Florida, Inc., from October, 2000 to April,
2002.
EMPLOYMENT
CONTRACTS AND TERMINATION OF EMPLOYMENT
AND
CHANGE-IN-CONTROL ARRANGEMENTS
Effective
February 29, 1996, the Company entered into Stock Redemption Agreements (each an
"Agreement") with each of Chris T. Sullivan, Robert D. Basham and
J. Timothy Gannon, all of whom are executive officers, directors, and
founders of the Company (individually, an "Executive"), Under the terms of each
Agreement, following the Executive's death, the Personal Representative of the
Executive will have the right to require the Company to purchase up to $30
million worth of Common Stock beneficially owned by the Executive at the date of
death, for a per share price equal to the mean (rounded to the nearest one-tenth
of one cent) of the last sale price of the Company's Common Stock as quoted on
the NYSE or the principal exchange on which the Company's Common Stock is then
traded for 30 consecutive trading days ending on the business day before the
Executive's death. If, however, that the Executive's death results (i) from an
illness that was diagnosed or an accident that occurred within one year of the
Executive's death, and (ii) the accident or illness was publicly disclosed, then
the per share purchase price will be equal to the mean (rounded to the nearest
one-tenth of one cent) of the last sale price of the Company's Common Stock as
quoted on the NYSE or the principal exchange on which the Company's Common Stock
is then traded for 30 consecutive trading days ending on the business day before
the date of public disclosure of the accident or illness. The maximum dollar
amount of Common Stock that the Company is obligated to purchase from the estate
of the Executive is $30,000,000. The Company's obligation to purchase Common
Stock beneficially owned by a deceased Executive is funded by an insurance
policy on the life of the Executive owned by the Company providing a death
benefit of $30,000,000. The Agreements will remain in place for so long as the
Board deems appropriate.
The
Company entered into a Split Dollar Agreement and Limited Collateral Assignment
("Split Dollar Agreements") as of November 7, 1999, with each of the
respective trusts established by Messrs. Sullivan, Basham, Gannon, Merritt
and Avery ("Policy Employees"), pursuant to which the Company was to pay the
premium costs of life insurance policies that pay a death benefit of not less
than $5 million to one or more members of a Policy Employee's family upon the
death of that Policy Employee. Under the Split Dollar Agreements, the Company
was to pay that portion of each annual policy premium that, in general terms, is
equal to the annual increase in the cash value of the policy. The Company may
cause the Split Dollar Agreements to be terminated and the policies to be
surrendered at any time upon 30 days' prior notice. Upon surrender of the policy
or payment of the death benefit under the policy, the Company is entitled to
repayment of an amount equal to the cumulative premiums previously paid by the
Company, with all remaining payments to be made to the respective trusts. See
footnote (2) to the "Summary Compensation Table" above for further information
on premium payments made by the Company under these policies. The Company ceased
paying the premiums for the split dollar policies in July 2002, in compliance
with the Sarbanes-Oxley Act of 2002.
As of
March 7, 2005, Mr. Allen replaced Mr. Sullivan as Chief Executive Officer
and Mr. Avery replaced Mr. Basham as Chief Operating Officer, as indicated in
the Company's Form 8-K dated March 11, 2005, and filed with the
SEC.
Prior to
March 7, 2005, Mr. Allen was employed with OS Restaurant Services, Inc., which
leased his services to OS Prime, Inc., and OS Pacific, Inc., each a wholly owned
subsidiary of the Company, pursuant to an Employment Agreement dated May 1,
2002, with a term of seven years with automatic
renewal for successive renewal terms of one (1) year each. The
Employment Agreement restricted the ability of Mr. Allen to compete with the
Company and any of its affiliates for a period of three years following
termination of his
employment.
As of
this date, the Company has not finalized an employment agreement with Mr. Allen.
It is anticipated Mr. Allen's employment agreement will contain the following
provisions. Mr. Allen's employment agreement will have a 10 year term. Mr.
Allen's base salary is $750,000 per year, plus certain other incentives and
benefits, including a one time signing bonus of $2 MM in consideration of
his employment, which is to be paid on May 1, 2005. Mr. Allen is also eligible
to receive an annual bonus based on the Company meeting its objective and
subjective operational goals. If the operational goals for the year are met,
Mr. Allen is entitled to earn a bonus of up to $1 MM for that calendar
year. Mr. Allen will receive 450,000 shares of restricted stock subject to
the following time and performance vesting schedule: (i) 135,000 shares
will vest as of December 31, 2009, and an additional 45,000 shares will
vest if the market capitalization of the Company exceeds an established target
as of December 31, 2009; (ii) 135,000 shares as of December 31, 2011,
and an additional 45,000 shares will vest if the market capitalization of the
Company exceeds an established target as of December 31, 2011; and (iii) the
balance of the shares as of December 31, 2014. Vesting on each vesting date is
contingent on Mr. Allen being employed as Chief Executive Officer of the Company
on the respective vesting dates.
Mr. Avery
is employed with the OS Restaurant Services, Inc., a wholly owned subsidiary of
Outback Steakhouse of Florida, Inc., a Florida corporation, which is a wholly
owned subsidiary of the Company, pursuant to an Employment Agreement dated
January 1, 2004 with a term of a five-year period ending January 1, 2009,
with automatic renewal for successive terms of one (1) year each. The Employment
Agreement restricts the ability of Mr. Avery to compete with Company and
any of its affiliates for a period of two years following termination of his
employment. Mr. Avery's existing Employment Agreement was filed as
Exhibit 10.19 to the Company's 2003 Form 10-K and more fully described in the
Company's 2004 Proxy Statement. Mr. Avery's base salary is approximately
$600,000 per year, plus certain other incentives and benefits. Mr. Avery is also
eligible to receive quarterly bonuses based on the Company meeting its objective
and subjective operational goals. If the operational goals for a specific
quarter are met, Mr. Avery is entitled to earn a bonus of up to $400,000
for that calendar quarter and a year end bonus of up to 25% of each quarterly
bonus.
Mr.
Novello is employed with OS Restaurant Services, Inc. and leased to Outback
Steakhouse of Florida, Inc., a wholly owned subsidiary of the Company pursuant
to an Employment Agreement dated January 1, 2004, with a term of five years with
automatic
renewal for successive renewal terms of one (1) year each. The
Employment Agreement restricts the ability of Mr. Novello to compete with the
Company and any of its affiliates for a period of two (2) years following
termination of his employment.
Mr.
Shlemon is employed with OS Restaurant Services, Inc. and leased to Carrabba's
Italian Grill, Inc., Inc., a wholly owned subsidiary of the Company pursuant to
an Employment Agreement dated April 27, 2000, with a term of five years with
automatic
renewal for successive renewal terms of one (1) year each. The
Employment Agreement restricts the ability of Mr. Shlemon to compete with the
Company and any of its affiliates for a period of two (2) years following
termination of his employment.
SECTION
16(a)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
The
Company believes that during the fiscal year 2004, all filings with the SEC of
its officers, directors and 10% stockholders complied with requirements for
reporting ownership and changes in ownership of the Company's Common Stock
pursuant to Section 16(a) of the Exchange Act, except that Mr. Shlemon filed one
Form 4 late.
PERFORMANCE GRAPH
The
following line graph compares the Company's cumulative total stockholder return
with the cumulative total stockholder return of the Dow Jones U.S. Total Market
Index and the Dow Jones U.S. Restaurants Index for the last five full fiscal
years of the Company ended December 31, 2004:
COMPARISON
OF 5 YEAR CUMULATIVE TOTAL RETURN*
AMONG
OUTBACK STEAKHOUSE, INC., THE DOW JONES US EQUITY MARKET INDEX
AND
THE DOW JONES US RESTAURANTS & BARS INDEX
|
*100
invested on 12/31/99 in stock or index-including reinvestment of
dividends. Fiscal year ending December 31. |
|
1999 |
2000 |
2001 |
2002 |
2003 |
2004 |
OUTBACK
STEAKHOUSE INC. |
100 |
99.76 |
132.05 |
133.25 |
173.38 |
181.77 |
DOW
JONES US EQUITY MARKET |
100 |
90.73 |
79.92 |
62.27 |
81.42 |
91.20 |
DOW
JONES US RESTAURANTS & BARS |
100 |
93.94 |
91.87 |
74.52 |
106.79 |
139.28 |
Certain
Relationships and Related Transactions
On May
12, 2004, Mr.
Sullivan, through his corporation Out of the Park, Inc., and Mr. Basham,
through his corporation Touch 'Em All, Inc., each sold all of their ownership
interests as general and limited partner of Tampa Bay Devil Rays, Ltd., the
owner of the Tampa Bay Devil Rays Major League Baseball Franchise. Each of
Messrs. Sullivan and Basham own all of the outstanding Common Stock and serves
as the sole director and officer of his respective corporation. In 2004, Outback
Steakhouse of Florida, Inc., a Florida corporation and wholly-owned subsidiary
of the Company ("OSF") paid to Tampa Bay Devil Rays, Ltd. the aggregate amount
of $230,000 to lease four signs for advertising pursuant to a contract entered
into on September 9, 1996 that ended in 2003. OSF renewed this contract on March
4, 2003. The amounts to be paid to the Tampa Bay Devil Rays, Ltd., under the
contract in future years are: $236,900 for 2004, $244,007 for 2005, $251,327 for
2006, $258,867 for 2007 and $266,633 for 2008. On February 20, 1995, OSF entered
into a Private Suite License Agreement with Tampa Bay Devil Rays, Ltd., for a
private suite at Tropicana Field located in St. Petersburg, Florida, commencing
on March 31, 1998, and ending on December 31, 2007. In 2004, the Company paid a
license fee of $117,435.
On
November 7, 2000, the Company opened a restaurant named "Lee Roy Selmon's." This
restaurant is owned by Selmon's/Florida-I, Limited Partnership ("Selmon's
Partnership"). OS Southern, Inc., a wholly-owned subsidiary of the Company, is
the sole general partner and 70% owner of the Selmon's Partnership. Lee Roy
Selmon, a director of the Company and Chair of the Compensation Committee, owns
a 10% limited partner interest in the Selmon's Partnership solely with respect
to the first Lee Roy Selmon's restaurant opened by the partnership. Mr. Selmon
acquired his interest in the restaurant in exchange for the use of his name and
a capital contribution of $101,000. The purchase price was established by the
Board based on the value of Mr. Selmon's name and the partnership's cash
expenditure necessary to open the restaurant. The Company opened a second Lee
Roy Selmon's restaurant on June 24, 2003. Mr. Selmon has no ownership
interest in the second restaurant, but receives a royalty of 1% of the second
restaurant's gross sales. Mr. Selmon will receive a royalty of 1% of the gross
sales from any future Lee Roy Selmon's restaurants opened by the Company or its
affiliates. In 2004, Mr. Selmon received distributions from the Selmon's
Partnership in the amount of $55,163.68 and royalties in the amount of
$31,685.07.
Toby S.
Wilt, a member of the Board, through his wholly-owned corporation, TSW
Investments, Inc., invested in seven limited partnerships, each of which owns
and operates one Carrabba's Italian Grill restaurant as a franchisee of
Carrabba's Italian Grill, Inc. ("Carrabba's"), a subsidiary of the Company.
These investments were made in the years 1999 to 2002. Carrabba's owns a 45%
interest as a general partner in each of these limited partnerships. In 2004,
Mr. Wilt received distributions from these partnerships in the aggregate amount
of $47,427. The Board has determined that these relationships are not material
and Mr. Wilt satisfies the requirements to be considered "independent" as
defined in the applicable rules of the NYSE.
A.
William Allen, an executive officer and Named Executive Officer of the Company,
through his revocable trust in which he and his wife are the grantors and
trustees, and are the sole beneficiaries, own a 92% interest in AWA III
Steakhouses, Inc., which owns 2.5% of Outback/Flemings, LLC, a Delaware limited
liability company. Outback/Flemings, LLC serves as the general partner of
limited partnerships that own certain Fleming's Prime Steakhouse and Wine Bar.
As disclosed in the September 10, 2004 Form 8-K filing, the Company acquired an
additional 39% ownership interest in the Outback/Fleming's, LLC,
the
joint
venture that operates Fleming's Prime Steakhouse and Wine Bars, from its
partners, FPSH Limited Partnership and AWA III Steakhouses, Inc., for
$39,000,000, effective September 1, 2004. Mr. Allen is the majority owner and
president of AWA III Steakhouses, Inc., which sold the Company a 9.75% interest
in the LLC. Mr. Allen continues to own a 2.5% interest in the LLC through AWA
III Steakhouses, Inc.
Paul E.
Avery, a Named Executive Officer of the Company, invested in 10 limited
partnerships, each of which owns and operates one Carrabba's Italian Grill
restaurant as a franchisee of Carrabba's and in which Carrabba's owns a 45%
interest as a general partner. These investments were made in the years 2001 and
2002. In 2004, Mr. Avery received distributions from these Carrabba's
partnerships in the aggregate amount of $41,615. In 2003, Mr. Avery invested (i)
$81,395 in two limited partnerships, each of which owns and operates one
Bonefish Grill restaurant as a franchisee of Bonefish Grill, Inc. ("Bonefish"),
a subsidiary of the Company, and in which Bonefish owns a 45% interest as
general partner; (ii) $109,000 in 11 limited partnerships, each of which owns
and operates a Bonefish Grill restaurant and of which Bonefish or Bonefish Grill
of Florida, LLC is the sole general partner and majority owner; and (iii)
$40,000 in one unaffiliated limited partnership which owns and operates one
Bonefish Grill restaurant as a franchisee of Bonefish. In 2002, Mr. Avery
invested (i) $81,395 in two limited partnerships, each of which owns and
operates one Bonefish Grill restaurant as a franchisee of Bonefish and in which
Bonefish owns a 45% interest as general partner; and (ii) $87,500 in an
unaffiliated limited partnership which owns and operates one Bonefish Grill
restaurant as a franchisee of Bonefish. In 2004, Mr. Avery received
distributions from these Bonefish partnerships in the aggregate amount of
$85,313.95. Mr. Avery made no investments in Carrabba's Italian Grill and
Bonefish Grill restaurants in 2004 or 2005.
Benjamin
P. Novello, an executive officer of OSF, a subsidiary of the Company, and a
Named Executive Officer, invested in 10 limited partnerships, each of which owns
and operates one Carrabba's Italian Grill restaurant as a franchisee of
Carrabba's and in which Carrabba's owns a 45% interest as a general partner.
These investments were made in the years 2000 to 2002. In 2004, Mr. Novello
received distributions from these partnerships in the aggregate amount of
$37,363. Mr. Novello invested (i) $46,000 in four limited partnerships in
connection with six restaurants in 2003; and (ii) $116,175 in six limited
partnerships in connection with 11 stores in 2004, each of which owns and
operates a Bonefish Grill restaurant and of which Bonefish or Bonefish Grill of
Florida, LLC is the sole general partner and majority owner. In 2004, Mr.
Novello received distributions from these partnerships in the aggregate amount
of $36,549. Mr. Novello invested in one limited partnership, which owns and
operates an Outback Steakhouse restaurant and of which OSF is the sole general
partner and majority owner. This investment was made in 1991. In 2004, Mr.
Novello received distributions from this partnership in the aggregate amount of
$7,879.
On
January 1, 2005, the Company entered into two Purchase Agreements to acquire
four (4) joint venture restaurants from limited partnerships in which Messrs.
Avery and Novello each had ownership interests. The
approximate amounts to be received by Messrs. Avery and Novello as a result of
their ownership interest in those joint venture restaurants are $141,000 and
$202,000, respectively.
Steven T.
Shlemon, an executive officer of Carrabba's Italian Grill, Inc., a subsidiary of
the Company, and a Named Executive Officer, has made investments in three
unaffiliated limited partnerships each of which owns and operates an Outback
Steakhouse restaurant pursuant to a franchise agreement with OSF. These
investments were made in 1998. In 2004, Mr. Shlemon received distributions
from these partnership in the aggregate amount of $15,561. Mr. Shlemon
invested in four limited partnerships, each of which owns and operates one
Carrabba's Italian Grill restaurant as a franchisee of Carrabba's and in which
Carrabba's owns a 45% interest as a general partner. These investments were made
in the years 1999 to
2000. In 2004, Mr.
Shlemon received distributions from these partnerships in the aggregate amount
of $8,920. A sibling of Mr. Shlemon has made an investment in two limited
partnerships, each of which owns and operates one Outback Steakhouse restaurant
and of which OSF is the sole general partner and majority owner. These
investments were made in the years 1996 and 2001. In 2004, Mr. Shlemon's sibling
received distributions in these partnerships in the aggregate amount of
$146,459.
From 1994
to 2001, the parents and certain siblings of Chris T. Sullivan, a member of the
Board and Named Executive Officer of the Company, made investments in four
unaffiliated limited partnerships that own and operate four Outback Steakhouse
restaurants pursuant to franchise agreements with OSF and received distributions
from these partnerships in the aggregate amount of $75,667 during the year 2004.
In 2002,
Mel and Jackie Danker, relatives of Robert D. Basham, a member of the Board of
the Company, made investments of $66,232 in one unaffiliated limited partnership
that owns and operates two Bonefish Grill restaurants as a franchisee of
Bonefish, and received distributions in this partnership in the aggregate amount
of $13,159 during the year 2004.
PROPOSAL
TWO
Proposed
Amendment and Restatement of the Company's
Managing
Partner Stock Plan
In 2002,
the Board adopted the 2002 Managing Partner Stock Option Plan (the "Plan").
Under the Plan, options cannot be granted to directors or officers of the
Company or its subsidiaries and affiliated partnerships. The Board has approved
an amendment and restatement (the "Amendment") of the Plan to allow for the
grant of shares of restricted Common Stock under the Plan. The Amendment does
not increase the number of shares under the Plan. A copy of the proposed Amended
and Restated Managing Partner Stock Plan is attached as Exhibit A and the
description of the Plan is qualified in its entirety by reference to
Exhibit A.
The Board
believes the change to the Plan to allow for the grant of shares of restricted
Common Stock is necessary to provide the Compensation Committee the ability to
offer incentive packages to restaurant managing partners, restaurant chef
partners and other non-officer key employees that are more conducive to
long-term ownership of the Company's Common Stock.
Although
stockholder approval of the Amendment is not required under Delaware law, such
approval is required by the rules and regulations of the NYSE and under the IRC,
to allow certain options granted under the Plan to qualify as incentive stock
options under the IRC, and to permit options granted under the Plan to qualify
as "performance based compensation" for purposes of Section 162(m) of the
Code.
The
Compensation Committee (the "Committee") of the Board administers the Plan.
Incentive and nonqualified stock options may be granted under the Plan at any
time until the expiration of the Plan on April 27, 2025, as amended. The
maximum number of options or shares of restricted stock that may be granted
pursuant to the Plan is 7,500,000, and the maximum number of options or shares
of restricted stock that may be granted during the term of this Plan to any one
individual is 250,000, in each case subject to adjustment for stock dividends,
stock splits and certain other changes in the Company's capitalization.
Options
have been in the past and the Company anticipates that in the future options
and/or shares of restricted stock will be granted to certain restaurant managing
partners, restaurant chef partners and other non-
officer
key employees of the Company or its subsidiaries who are in a position to
contribute substantially to the growth and success of the Company and its
subsidiaries. As of December 31, 2004, options to purchase
approximately 6,101,081 shares had been granted under the Plan, 480 of which
have been exercised and 5,775,277 of which were outstanding. Options remaining
available for grant under the Plan as of December 31, 2004 were 1,724,243. As of
December 31, 2004, managing partners and chef partners have been granted
options under the Plan. Any shares not purchased under an option that has
terminated or lapsed or shares of restricted stock that are forfeited may be
used for the further grant of options or shares of restricted stock under the
Plan. The
following table sets forth certain information regarding all of the Company's
existing equity compensation plans as of December 31, 2004 (in thousands, except
option prices):
|
|
|
|
|
|
(c) |
|
|
|
|
|
|
|
Number
of |
|
|
|
|
|
|
|
securities
remaining |
|
|
|
(a) |
|
|
|
available
for |
|
|
|
Number
of |
|
(b) |
|
future
issuance under |
|
|
|
securities
to be issued |
|
Weighted-average |
|
equity
compensation |
|
|
|
upon
exercise of |
|
exercise
price of |
|
plans
(excluding |
|
|
|
outstanding
options, |
|
outstanding
options, |
|
securities
reflected |
|
Plan
Category |
|
warrants
and rights |
|
warrants
and rights |
|
in
column(a)) |
|
Equity
compensation plans approved by security holders (1) |
|
|
11,704 |
|
$ |
26.81 |
|
|
444 |
|
Equity
compensation plans not approved by security holders (2) |
|
|
6,155 |
|
$ |
37.46 |
|
|
1,724 |
|
|
|
|
17,859 |
|
$ |
30.47 |
|
|
2,168 |
|
____________
|
(1) Outback
Steakhouse, Inc. 2004 Amended and Restated Stock Option
Plan. |
|
|
(2) Outback
Steakhouse, Inc. 2002 Managing Partner Stock Option Plan. |
|
The term
of each Incentive stock option granted under the Plan shall not exceed 10 years
from the date of grant (or five years in the case of an option granted to an
individual who at the time of the grant owns more than 10% of the total combined
voting power of all classes of stock of the grantee's employer corporation and
its parent or subsidiary corporations (a "10% Owner")). Nonqualified stock
options granted under the Plan may be exercised within such time period as the
Committee determines at the time of grant. The aggregate fair market value
(determined at the time the option is granted) of the stock with respect to
which incentive stock options are exercisable for the first time by any employee
during any calendar year may not exceed $100,000. The Plan provides that the
option price in the case of incentive stock options shall be not less than 100%
of the fair market value of the Company's Common Stock at the time the option is
granted or 110% of such fair market value in the case of an option granted to a
10% Owner. In the case of nonqualified stock options the option price may be
less than the fair market value of the Company's Common Stock on the date of
grant. The purchase price must be paid in full by the grantee at the time of
exercise in either cash or Common Stock.
No cash
consideration will be received by the Company for granting options or shares of
restricted stock under the Plan. Options and shares of restricted stock will be
granted in consideration of the services rendered or to be rendered to the
Company by the grantee.
With
respect to nonqualified stock options granted with an exercise price not less
than fair market value, in general, for federal income tax purposes under
present law:
(i) The
grant of a nonqualified stock option, by itself, will not result in income to
the grantee.
(ii)
Except as provided in (v) below, the exercise of a nonqualified stock option (in
whole or in part, according to its terms) will result in ordinary income to the
grantee at the time of exercise in an amount equal to the excess (if any) of the
fair market value of the stock on the date of exercise over the option
price.
(iii)
Except as provided in (v) below, the tax basis of the stock acquired upon
exercise of a nonqualified stock option, which will be used to determine the
amount of any capital gain or loss on a future taxable disposition of such
stock, will be the fair market value of the shares on the date of
exercise.
(iv) No
deduction will be allowable to the Company upon the grant of a nonqualified
stock option, but upon exercise of a nonqualified stock option, a deduction will
be allowable to the Company at that time in an amount equal to the amount of
ordinary income realized by the grantee exercising such option if the Company
satisfies appropriate federal withholding or reporting
requirements.
(v) With
respect to the exercise of a nonqualified stock option and the payment of the
option price by the delivery of Common Stock, to the extent that the number of
shares received does not exceed the number of shares surrendered, no taxable
income will be realized by the grantee at that time, the tax basis of the shares
received will be the same as the tax basis of the shares surrendered, and the
holding period of the grantee in the shares received will include his holding
period in the shares surrendered. To the extent that the number of shares
received exceeds the number of shares surrendered, ordinary income will be
realized by the grantee at that time in the amount of the fair market value of
such excess shares, the tax basis of such excess shares will be such fair market
value, and the holding period of the grantee in such shares will begin on the
date such shares are transferred to the grantee.
With
respect to incentive stock options, in general, for federal income tax purposes
under present law:
(i)
Neither the grant nor the exercise of an incentive stock option, by itself, will
result in income to the grantee; however, the excess of the fair market value of
the stock at the time of exercise over the option price is an item of tax
preference (unless there is a disposition of the shares acquired upon exercise
of an incentive stock option in the taxable year of exercise) that may, under
certain circumstances, result in an alternative minimum tax liability to the
grantee.
(ii)
Except as provided in (v) below, if the shares acquired upon exercise of an
incentive stock option are disposed of in a taxable transaction after the later
of two years from the date on which the option is granted or one year from the
date on which such shares are transferred to the grantee, long-term capital gain
or loss will be realized by the grantee in an amount equal to the difference
between the option price and the amount realized by the grantee.
(iii)
Except as provided in (v) below, if the shares acquired upon exercise of an
incentive stock option are disposed of within the two-year period from the date
of grant or the one-year period after the transfer of the shares to the
grantee:
(a)
Ordinary income will be realized by the grantee at the time of such disposition
in the amount of the excess, if any, of the fair market value of the shares at
the time of such exercise over the option price, but not in an amount exceeding
the excess, if any, of the amount realized by the grantee over the option
price.
(b)
Short-term or long-term capital gain will be realized by the grantee at the time
of any such taxable disposition in an amount equal to the excess, if any, of the
amount realized over the fair market value of the shares at the time of such
exercise.
(c)
Short-term or long-term capital loss will be realized by the grantee at the time
of any such taxable disposition in an amount equal to the excess, if any, of the
option price over the amount realized.
(iv) No
deduction will be allowed to the Company with respect to incentive stock options
granted or shares transferred upon exercise of incentive stock options, except
that if a disposition is made by the grantee within the two-year period or the
one-year period referred to above, the Company will be entitled to a deduction
in the taxable year in which the disposition occurred in an amount equal to the
amount of ordinary income realized by the grantee making the disposition
provided the Company satisfies appropriate withholding or reporting
requirements.
(v) With
respect to the exercise of an incentive stock option and the payment of the
option price by the delivery of Common Stock, to the extent that the number of
shares received does not exceed the number of shares surrendered, no taxable
income will be realized by the grantee at the time, the tax basis of the shares
received will be the same as the tax basis of the shares surrendered and the
holding period (except for purposes of the one-year period referred to above) of
the grantee in shares received will include his holding period in the shares
surrendered. To the extent that the number of shares received exceeds the number
of shares surrendered, no taxable income will be realized by the grantee at that
time, such excess shares will be considered incentive stock option stock with a
zero basis and the holding period of the grantee in such shares will begin on
the date such shares are transferred to the grantee. If the shares surrendered
were acquired as the result of the exercise of an incentive stock option and the
surrender takes place within two years from the date the option relating to the
surrendered shares was granted or within one year from the date of such
exercise, the surrender will result in the realization of ordinary income by the
grantee at that time in the amount of the excess, if any, of the fair market
value on the date of exercise of the shares surrendered over the exercise price
of such shares. If any of the shares received are disposed of within one year
after the shares are transferred to the grantee, the grantee will be treated as
first disposing of the shares with a zero basis.
The Board
may at any time amend the Plan or any part of the Plan as it shall deem
advisable. However, no amendment may be made in any option then outstanding
under the Plan that would impair the rights of the grantee without the consent
of such grantee.
The
affirmative vote of a majority of the Common Stock voting on this proposal is
required for approval. Abstentions will have the effect of a vote against the
proposal. Broker non-votes will not be counted as voted and therefore will not
count for or against this proposal.
The Board
recommends that the stockholders vote FOR this proposal to amend and restate the
Amended and Restated Managing Partner Stock Plan.
SELECTION
OF INDEPENDENT AUDITORS
At the
meeting of the Audit Committee and Board of the Company held on January 26,
2005, the Audit Committee recommended to the Board and the Board accepted
PricewaterhouseCoopers LLP to serve as the independent auditors for the Company
and its subsidiaries for the year ended December 31, 2004, and for the year
ending December 31, 2005. Representatives of PricewaterhouseCoopers LLP are
expected to be present at the stockholders' meeting with the opportunity to make
a statement, if they desire to do so, and to respond to appropriate questions
from stockholders.
STOCKHOLDERS
SHARING THE SAME LAST NAME AND ADDRESS
In
accordance with notices we sent to certain stockholders, we are sending only one
copy of our annual report and Proxy Statement to stockholders who share the same
last name and address unless they have notified us that they wish to continue
receiving multiple copies. This practice, known as "householding," is designed
to reduce duplicate mailings and save printing and postage costs as well as
natural resources.
If you
received a householded mailing this year and you would like to have additional
copies mailed to you or you would like to opt out of this practice for future
mailings, please submit your request via (1) e-mail to the Company's website:
www.outback.com under
the heading Investor Relations; (2) in writing to the Company, Attention:
Investor Relations at 2202 North West Shore Boulevard, Suite 500, Tampa, Florida
33607; or (3) telephonically to 1-813-282-1225. You may also contact us if you
received multiple copies of the Annual Meeting materials and would prefer to
receive a single copy in the future.
STOCKHOLDER
PROPOSALS AND NOMINATIONS
Any
stockholder who intends to present a proposal at the 2006 Annual Meeting of
Stockholders for inclusion in the Proxy Statement and form of proxy relating to
that meeting is advised that the proposal must be received by the Company at its
principal executive offices not later than December 21, 2005. The Company will
not be required to include in its Proxy Statement or form of proxy a stockholder
proposal that is received after that date or that otherwise fails to meet
requirements for stockholder proposals established by regulations of the
SEC.
As to any
proposal that a stockholder intends to present to stockholders other than by
inclusion in the Company's Proxy Statement for the 2006 Annual Meeting of
Stockholders, the proxies named in the Company's proxy for that meeting will be
entitled to exercise their discretionary voting authority on that proposal
unless the Company receives notice of the matter to be proposed not later than
February 14, 2006. Even if proper notice is received on or prior to February 14,
2006, the proxies named in the Company's proxy for that meeting may nevertheless
exercise their discretionary authority with respect to such matter by advising
stockholders of that proposal and how they intend to exercise their discretion
to vote on such matter, unless the stockholder making the proposal solicits
proxies with respect to the proposal to the extent required by Rule 14a-4(c)(1)
under the Exchange Act, as amended.
Any
stockholder who wishes to submit an individual for consideration as a director
may do so by writing to our Corporate Secretary at 2202 North West Shore
Boulevard, Suite 500, Tampa, Florida 33607. Submissions must include your name
and address, the number of shares of common stock you own, the name, age,
business and residence addresses, and principal occupation of the individual and
a written statement of the individual that he or she is willing to be considered
and is willing to serve as a director if nominated and elected. You must also
include a description of any relationship, arrangements and understandings
between you and the individual, and any relationship known to you between the
individual and any supplier or competitor of the Company. The Corporate
Secretary will review submissions for completeness and forward to the Chair of
the Nominating and Corporate Governance Committee.
CONTACTING
THE BOARD OF DIRECTORS
Stockholders
and other interested parties may communicate with the Board, Lead Independent
Director or any individual director by email at BOD@outback.com, or by
writing to either Board of Directors or Lead Independent Director at the
principal executive offices of the Company:
c/o
Outback Steakhouse Corporate Secretary
2202
North West Shore Boulevard, Suite 500
Tampa,
Florida 33607
Your
communication should indicate that you are a stockholder. All communications are
received and reviewed by the Secretary. The Secretary, depending on the nature
of the communication, will handle the matter internally or will forward the
communication to the Board or the Lead Independent Director.
OTHER
MATTERS
The
solicitation of proxies is made by the Board on behalf of the Company. The cost
of the solicitation will be borne by the Company, including the reasonable
expenses of brokerage firms or other nominees for forwarding proxy materials to
beneficial owners. In addition to solicitation by mail, proxies may be solicited
by internet, telephone, telegraph or personally. Proxies may be solicited by
directors, officers and employees of the Company without additional
compensation. The
Company has also retained Georgeson Shareholder Communications Inc. at an
estimated cost of $6,500, plus reimbursement of expenses, to assist in the
solicitation of proxies.
If the
enclosed proxy is executed and returned, the shares represented by the proxy
will be voted in accordance with any specifications made by the stockholder. In
the absence of any such specification, the shares will be voted to elect the
directors as set forth under "Election of Directors" above and FOR Proposal
TWO.
Your
presence at the meeting will not operate to revoke your proxy. You may revoke
your proxy at any time if it has not been exercised by giving written notice to
the Company.
If any
other matters shall come before the meeting, the persons named in the proxy, or
their substitutes, will vote thereon in accordance with their judgment. The
Board does not know of any other matters that will be presented for action at
the meeting.
|
By
Order of the Board of Directors |
|
|
March
31, 2005 |
Joseph
J. Kadow |
Exhibit
A
OUTBACK
STEAKHOUSE, INC.
AMENDED
AND RESTATED MANAGING PARTNER STOCK PLAN
1.
Purpose. The purpose of this Managing Partner Stock Plan ("Plan") is to provide
long-term incentives to Managing Partners and Chef Partners of restaurants and
other key employees of OUTBACK STEAKHOUSE, INC., a Delaware corporation (the
"Corporation"), its subsidiaries and affiliated partnerships; to compensate
existing Managing Partners, Chef Partners and other key employees for their
efforts on behalf of the Corporation and its subsidiaries; to assist in
retaining people of ability and initiative in professional, management and other
key positions; and to induce such Managing Partners, Chef Partners and other key
employees to refrain from competing with the Corporation and its subsidiaries.
These purposes are intended to be achieved, in part, through the grant of shares
of restricted stock ("Restricted Stock") and the grant of stock options
("Options"), some of which are intended to qualify as "Incentive Stock Options"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"). If and to the extent that in connection with the grant of
Options intended to qualify as such "Incentive Stock Options" this Plan shall
not conform with a pertinent mandatory requirement under Section 422 or any
related Treasury Regulation, then this Plan shall be deemed to have incorporated
such a mandatory provision and shall be construed accordingly, notwithstanding
any other provision contained in this Plan to the contrary.
2.
Administration of the Plan. The Plan shall be administered by the Compensation
Committee (the "Committee") of the Board of Directors (the "Board") of the
Corporation or, at the Board's election, by the full Board.
The
Committee shall have full power to interpret and administer the Plan and,
subject to Section 4 hereof, full authority to select the eligible individuals
to whom Restricted Stock and Options will be granted and to determine the amount
of Restricted Stock and the type and amount of Options to be granted to each
participant, the terms and conditions of Restricted Stock and Options granted
under the Plan and the terms and conditions of the agreements which will be
entered into with participants.
The
Committee shall have the authority to adopt, alter and repeal such rules,
guidelines and practices governing the Plan as it shall, from time to time, deem
advisable; to interpret the terms and provisions of the Plan and any Restricted
Stock or Options issued under the Plan (and any agreements relating thereto); to
direct employees of the Corporation or other advisors to prepare such materials
or perform such analysis as the Committee deems necessary or appropriate; and
otherwise to supervise the administration of the Plan.
Any
interpretation or administration of the Plan by the Committee, and all actions
of the Committee, shall be final, binding and conclusive on the Corporation, its
stockholders, subsidiaries, and all participants in the Plan, their respective
legal representatives, successors and assigns, and upon all persons claiming
under it through any of them. No member of the Board or of the Committee shall
incur any liability for any action taken or omitted, or any determination made,
in good faith in connection with the Plan.
3. Shares
Subject to this Plan. The total number of shares as to which Restricted Stock or
Options may be granted pursuant to this Plan shall not exceed 7,500,000 shares
of the Corporation's Common Stock, $.01 par value ("Common Stock"), except to
the extent of adjustments authorized by Paragraph 7 of this Plan. The maximum
number of shares of Restricted Stock or Common Stock for which Options may be
granted to any one individual under the Plan during its term is 250,000, except
to the extent of adjustments authorized by
Paragraph
5 of this Plan. Such Common Stock may be treasury shares or authorized but
unissued shares or a combination of the foregoing. If any shares of Restricted
Stock granted under this Plan are forfeited or an Option granted under this Plan
expires or terminates for any reason other than its exercise, the forfeited,
expired or terminated shares subject to such Restricted Stock or Option grant
shall be available for the grant of other shares of Restricted Stock or Options
to the same employee or other employees. The Committee will maintain records
showing the cumulative total of number of shares of Restricted Stock and Common
Stock subject to Options outstanding under the Plan.
4.
Eligibility. The Committee may, from time to time and upon such terms and
conditions as it may determine, authorize the granting of Restricted Stock and
Options to Managing Partners, Chef Partners and other key salaried employees of
the Corporation or any of its subsidiaries or affiliated partnerships (each a
"Grantee") and may fix the number of shares to be covered by such grant;
provided, however, no Restricted Stock or Options may be granted under this Plan
to any Director or Officer of the Company or any of its subsidiaries or
affiliated partnerships. Successive Restricted Stock and Options grants may be
made to the same person whether or not the Restricted Stock first granted to
such person remains unvested or whether or not the Option or Options first
granted to such person remain unexercised.
5.
Options.
(a).
Type. Options granted under the Plan may be (i) options which are intended to
qualify as incentive stock options under Section 422 of the Code ("Incentive
Stock Options"); (ii) options which are not intended to qualify under Section
422 of the Code; or (iii) both of the foregoing if granted separately, not in
tandem. No option granted under the Plan shall be an Incentive Stock Option
unless the stock option agreement evidencing such option specifically states
that the option is intended to be an Incentive Stock Option.
(b). Term
of Option and Transferability. The term of each Option granted under the Plan
shall be established by the Committee, but the term of Incentive Stock Options
shall not exceed ten years from the date of grant; provided, however, that in
the case of a Grantee who owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Corporation or of its
parent or subsidiary corporations at the time an Option which is intended to
qualify as an Incentive Stock Option is granted, the term of such Option shall
not exceed five years from the date of grant. No Option shall be transferable by
the Grantee otherwise than by will or the laws of descent and distribution.
Options shall be exercisable during the Grantee's lifetime only by the Grantee
or by his or her legal guardian or legal representative.
(c).
Option Price and Payment. The Option price (which may not be less than fair
market value, except that Options may be granted at an Option price determined
by the weighted average of the closing prices of the Company's stock for the
three calendar months preceding the month of grant) shall be established by the
Committee, provided that in the case of an Option intended to qualify as an
Incentive Stock Option the Option price shall be not less than the fair market
value of the shares covered by the Option at the time the Option is granted
(110% of such fair market value in the case of an Option intended to qualify as
an Incentive Stock Option granted to an individual who, at the time the Option
is granted, owns shares possessing more than 10% of the total combined voting
power of all classes of shares of the Corporation, its parent or any of its
subsidiaries). If Common Stock of the same class as the stock subject to
Incentive Stock Options granted or to be granted hereunder are at any time
traded on a national securities exchange, the term "fair market value" shall
mean (i) the mean between the highest and lowest selling prices reported by the
consolidated stock exchange network for such stock on the date as of which the
determination is to be made; or (ii) if there are no sales of such Common Stock
reported by the consolidated stock exchange network on such date, the mean
between the highest and lowest reported selling prices on the
consolidated stock exchange network on the
nearest trading date
before such date and on which there were such sales. If such shares of Common
Stock are at any time traded only otherwise than on a national securities
exchange, the term "fair market value" shall mean the mean between the bid and
asked prices of the stock as reported by such sources as shall be, in the
judgment of the Committee, appropriate evidence of such prices or, if quoted on
NYSE, the mean between NYSE high and low selling prices, as of the close of
business on the date for which a determination is being made. If there shall be
no trading in such Common Stock at any time, then the term "fair market value"
means the value per share of stock as determined by the Committee upon
consideration of such financial and market data as the Committee may deem
necessary and appropriate. The Option price shall be payable (i) in cash, (ii)
by check acceptable to the Corporation, (iii) by delivery of Common Stock of the
sale class of stock subject to the Option, or (iv) a combination of the above so
that the sum of the fair market value of any such cash, check or Common Stock
equals the Option price.
(d).
Adjustments. The Committee shall make or provide for such adjustments in the
Option price and in the number or kind of shares of Common Stock or other
securities covered by outstanding Options as the Committee in its sole
discretion, exercised in good faith, may determine are equitably required to
prevent dilution or enlargement of the rights of Grantees that would otherwise
result from (i) any share dividend, share split, combination of shares, issuance
of rights or warrants to purchase shares, recapitalization or other change in
the capital structure of the Corporation; (ii) any merger, consolidation,
separation, reorganization or partial or complete liquidation; or (iii) any
other corporate transaction or event having an effect similar to any of the
foregoing. The Committee shall not have the power to reduce the Option price for
outstanding Options except in the case of transactions described in the
preceding sentence. The Committee shall also make or provide for such
adjustments in the number or kind of shares of Common Stock which may be sold
under this Plan as the Committee in its sole discretion, exercised in good
faith, may determine are appropriate to reflect any transaction or event
described in this Section.
(e).
Other Terms. Each grant of Options hereunder shall be evidenced by a stock
option agreement. Each stock option agreement shall contain provisions
established by the Committee setting forth the manner of exercise of such
Option, whether the Option granted is intended to qualify or not to qualify as
an Incentive Stock Option and such other terms and conditions not inconsistent
herewith as shall be approved by the Committee.
6.
Restricted Stock. With respect to Restricted Stock grants, the Committee may
determine the price (if any) to be paid by the Grantee, the date or dates upon
which the Restricted Stock will vest, the period or periods within which such
Restricted Stock will be subject to forfeiture and other terms and conditions of
the grant. The Committee may condition the grant of Restricted Stock upon the
attainment of specified performance goals or such other factors as the Committee
may determine in its sole discretion. No shares of Restricted Stock will be
transferable during any period of restriction by a Grantee other than by will or
the laws of descent and distribution.
Each
grant of Restricted Stock hereunder shall be evidenced by a restricted stock
agreement containing provisions established by the Committee. Each Grantee of
Restricted Stock will receive a stock certificate in respect of those shares of
Restricted Stock, or, in lieu of issuing stock certificates prior to vesting, an
appropriate record in the name of the Grantee shall be made in the books of the
Company's stock transfer agent The certificate will be registered in the name of
the Grantee and shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to the grant; provided however that the
Committee shall require that the stock certificates evidencing the Restricted
Stock be held in custody of the Corporation until the restrictions thereon have
lapsed and that, as a condition of any grant of Restricted Stock, the Grantee
shall have delivered to the Corporation a stock power, endorsed in blank,
relating to the shares evidenced by
the
grant. Except as set forth herein, a Grantee will have, with respect to shares
of Restricted Stock granted, all of the rights of a shareholder of the
Corporation, including the right to vote the Restricted Stock and the right to
receive dividends.
7.
Amendment. This Plan may be amended from time to time by the Board but, without
further approval by the stockholders of the Corporation, no such amendment shall
(i) increase the aggregate number of shares of Common Stock that may be issued
and sold under this Plan (except to the extent authorized by Paragraph 5(d),
(ii) change the designation in Paragraph 4 of the class of employees eligible to
receive Options, or (iii) materially increase the benefits accruing to
Grantees.
8. Time
of Grant. The date of grant of Restricted Stock or Options under this Plan
shall, for all purposes, be the date on which the Committee makes the
determination to grant such Restricted Stock or Options. Notice of the
determination shall be given to each employee to whom shares of Restricted Stock
or Options are so granted within a reasonable time after the date of such
grant.
9.
Termination of Plan. This Plan shall be terminated and no further Restricted
Stock or Options shall be granted hereunder as of the twentieth anniversary of
the earlier date of (i) the date this Plan, as herein amended and restated, is
adopted by the Board or (ii) the date this Plan, as herein amended and restated,
is approved by the Company's stockholders.
10.
General Provisions. Neither the adoption of this Plan nor its operation, nor any
document describing or referring to this Plan or any part thereof, shall confer
upon any Grantee any right to continue in the employ of the Corporation or an
parent or subsidiary corporation, or shall in any way affect the right and power
of the Corporation or any parent or subsidiary corporation to terminate the
employment of any Grantee under the Plan at any time with or without assigning a
reason therefore, to the same extent as the Corporation might have done if the
Plan had not been adopted.
11.
Compliance with Law and Approval of Regulatory Body. No Option shall be
exercisable and no stock will be delivered under this Plan except in compliance
with all applicable federal and state laws and regulations, including, without
limitation, compliance with applicable withholding tax requirements, if any, and
the rules of all domestic stock exchanges on which the Corporation may be
listed. Any stock certificates issued to evidence Restricted Stock or stock as
to which an Option is exercised may bear such legends and statements as the
Committee shall deem advisable to assure compliance with federal and state laws
and regulations. No Option shall be exercisable, and no stock will be delivered
under this Plan, until the Corporation has obtained such consent or approval
from the regulatory body, federal or state, having jurisdiction over such
matters as the Committee may deem advisable.
In the
case of the exercise of an Option by a person or estate acquiring the right to
exercise such Option by bequest or inheritance, the Committee may require
reasonable evidence as to the ownership of such Option and may require such
consents and releases of taxing authorities as the Committee may deem
advisable.
ADMISSION
TICKET
OUTBACK
STEAKHOUSE, INC.
ANNUAL
MEETING OF STOCKHOLDERS
APRIL
27, 2005 10:00 A.M.
A
LA CARTE EVENT PAVILION
4050-B
DANA SHORES DRIVE
TAMPA,
FLORIDA 33634
ADMITS
ONE STOCKHOLDER AND ONE GUEST
|
|
. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DETACH
PROXY CARD HERE . .
. . . . . . . . . . . . . . . . . . . . . . . |
|
|
Sign,
Date and Return |
|
[ ] the
Proxy Card Promptly Using
[X] |
|
the
Enclosed Envelope.
Votes
Must Be Indicated |
|
(x)
in Black or Blue ink. |
|
|
|
1.
ELECTION OF DIRECTORS |
|
|
FOR
AGAINST ABSTAIN |
FOR
ALL [ ] WITHHOLD [ ] *
EXCEPTIONS [ ] |
2.
Approve the amendment and
[ ] [ ] [ ] |
FOR
ALL |
restatement
of the Company's |
|
Managing
Partner Stock Plan (the |
|
"Plan")
allowing for the grant of shares |
Nominees: Robert
D. Basham, W. R. Carey, Jr., General (Ret) Tommy Franks and Toby
S.Wilt |
of
restricted Common Stock under the |
|
Plan,
but not increasing the number |
|
of
shares under the Plan. |
(INSTRUCTIONS:
To withhold authority to vote for any individual nominee, Mark the
"Exceptions" |
|
box
and write that nominee's name in the in the space provided
below.) |
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3
In their discretion to act on any other |
*EXCEPTIONS:
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business
as may properly come
before [ ] [ ] [ ] |
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the
Annual Meeting or any adjournment |
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or
postponement thereof. |
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Your
signature on this Proxy form should be exactly as name appearing hereon.
Persons signing as |
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executors,
administrators, trustees and similar capacities should so indicate. For
joint accounts in the name |
__________ ______________________________________ _______________________ |
of
each and similar joint owner should be
signed. |
Date Share
Owner sign
here Co-Owner
sign here |
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OUTBACK
STEAKHOUSE, INC.
2202 N.
WEST SHORE BLVD., SUITE 500
TAMPA, FL
33607
COMMON
STOCK PROXY
ANNUAL
MEETING OF STOCKHOLDERS
TO BE
HELD ON APRIL 27, 2005
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
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The
undersigned hereby appoints Chris T. Sullivan, Robert S. Merritt and
Joseph J. Kadow, and each of them, as Proxy holders and attorneys, with
full power of substitution, to appear and vote all the Common Stock of
Outback Steakhouse, Inc. (the "Company"), which the undersigned shall be
entitled to vote at the Annual Meeting of Stockholders of the Company, to
be held at A la Carte Event Pavilion, 4050-B Dana Shores Drive, Tampa,
Florida 33634, on Wednesday, April 27, 2005, at 10:00 a.m., Tampa time,
and at any adjournments or postponements thereof, hereby revoking any and
all proxies heretofore given, and authorizes and directs said Proxy
holders to vote all the Common Stock of the Company represented by this
Proxy as follows, with the understanding that if no directions are given
below, said shares will be voted FOR the election of the four directors
nominated by the Board of Directors and FOR the proposals set forth
below. |
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(Continued,
and to be executed and dated on the other
side.) |
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OUTBACK STEAKHOUSE, INC. |
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To
change your address, please mark this
box
[ ] P.O.
BOX 11062 |
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and
indicate your new address
below: NEW
YORK, N.Y. 10203-0062 |
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