Delaware
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1-15935
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59-3061413
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(I.R.S.
Employer
Identification
No.)
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Item 2.02
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Results
of Operations and Financial Condition
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On
April 17, 2007, OSI Restaurant Partners, Inc. issued a press release
reporting its financial results for the quarter ended March 31, 2007.
A
copy of the release is attached as Exhibit 99.1.
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The
information furnished herein, including Exhibit 99.1, is not deemed
to be
"filed" for purposes of Section 18 of the Exchange Act, or otherwise
subject to the liability of that section. This information will not
be deemed to be incorporated by reference into any filing under the
Securities Act or the Exchange Act, except to the extent that the
registrant specifically incorporates them by reference.
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Item 8.01
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Other
Events
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On
November 5, 2006, OSI Restaurant Partners, Inc. (“OSI,” “we,” “us” and
“our” and the “Company”), Kangaroo Holdings, Inc. (“Parent”), and Kangaroo
Acquisition, Inc. (“Merger Sub”) entered into an Agreement and Plan of
Merger (the “Merger Agreement”), pursuant to which Merger Sub will merge
with and into OSI and OSI will become a direct or indirect wholly
owned
subsidiary of Parent (the “Merger”). Parent is controlled by an investor
group comprised of investment funds affiliated with Bain Capital
Partners,
LLC and Catterton Management Company, LLC, which are private equity
firms.
Our founders and certain members of our management are expected
to
exchange shares of our common stock for shares of Parent in connection
with the Merger. We are providing the information contained in
this Item
8.01 because Parent is providing this information to potential
lenders
(the “Offering Lenders”) in a $700 million offering of senior notes.
The
Company’s EBITDA and EBITDA
before certain non-cash and other expenses
for the periods reflected below are measures being provided to the
Offering Lenders
because we believe they provide the Offering Lenders with additional
information to measure our performance and evaluate our ability to
service
our debt.
EBITDA and EBITDA
before certain non-cash and other expenses are not presentations
made in
accordance with GAAP, and our computations of EBITDA and EBITDA before
certain non-cash and other expenses may vary from others in our industry.
EBITDA and EBITDA before certain non-cash and other expenses should
not be
considered to be alternatives to operating income or net income,
as
measures of operating performance or cash flow or as measures of
liquidity. EBITDA and EBITDA before certain non-cash and other expenses
have important limitations as analytical tools, and you should not
consider them in isolation, or as substitutes for analysis of our
results
as reported under GAAP. For example, EBITDA and EBITDA before certain
non-cash and other expenses:
· do
not reflect our cash expenditures, or future requirements, for capital
expenditures or contractual commitments;
· do
not reflect changes in, or cash requirements for, our working capital
needs;
· do
not reflect our interest expense, or the cash requirements necessary
to
service interest or principal payments, on our debt;
· exclude
income tax payments that represent a reduction in cash available
to us;
and
· do
not reflect any cash requirements for assets being depreciated and
amortized that may have to be replaced in the future.
EBITDA
and EBITDA before certain non-cash and other expenses are calculated
by
adjusting net income (loss) for the items summarized in the table
below.
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($
in thousands)
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EBITDA
and EBITDA before certain non-cash and other
expenses
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Quarter
Ended March 31,
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2007
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2006
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Net
income
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$
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27,610
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$
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32,231
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Provision
for income taxes
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13,898
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16,724
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Interest
expense, net
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2,503
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1,814
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Depreciation
and amortization
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41,004
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35,505
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EBITDA
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$
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85,015
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$
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86,274
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Minority
interest (a)
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1,499
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3,628
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Impairments,
closings, and disposals (b)
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7,848
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2,816
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Stock
compensation expenses and other (c)
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7,141
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14,884
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Transaction
costs (d)
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6,138
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-
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Accounting
remediation and restatement expenses (e)
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1,959
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-
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Non-cash
rent expense (f)
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2,614
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2,464
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EBITDA
before certain non-cash and other expenses
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$
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112,214
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$
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110,066
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the
satisfaction of the conditions to consummation of the Merger, including
the adoption of the Merger Agreement by our stockholders (without
taking
into account the vote of shares held by our founders and certain
members
of our management);
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the
actual terms of the financing that will be obtained for the Merger;
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the
occurrence of any event, change or other circumstance that could
give rise
to the termination of the Merger Agreement, including a termination
under
circumstances that could require us to pay a termination fee of up
to
$45,000,000 to Parent or its designee;
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· |
the
amount of the costs, fees, expenses and charges related to the Merger;
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· |
the
effect of the announcement of the Merger on our business relationships,
operating results and business generally, including our ability to
retain
key employees;
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the
risk that the Merger may not be completed in a timely manner or at
all,
which may adversely affect our business and the price of our common
stock;
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the
potential adverse effect on our business, properties and operations
because of certain covenants we agreed to in the Merger Agreement;
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the
outcome of the legal proceedings instituted against us and others
in
connection with the Merger;
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risks
related to diverting management’s attention from our ongoing business
operations;
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the
restaurant industry is a highly competitive industry with many
well-established competitors;
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our
results can be impacted by changes in consumer tastes and the level
of
consumer acceptance of our restaurant concepts (including consumer
tolerance of price increases); local, regional, national and international
economic conditions; the seasonality of our business; demographic
trends;
traffic patterns; change in consumer dietary habits; employee
availability; the cost of advertising and media; government actions
and
policies; inflation; and increases in various costs, including
construction and real estate costs;
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our
results can be affected by consumer perception of food safety;
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our
ability to expand is dependent upon various factors such as the
availability of attractive sites for new restaurants; ability to
obtain
appropriate real estate sites at acceptable prices; ability to obtain
all
required governmental permits including zoning approvals and liquor
licenses on a timely basis; impact of government moratoriums or approval
processes, which could result in significant delays; ability to obtain
all
necessary contractors and subcontractors; union activities such as
picketing and hand billing that could delay construction; the ability
to
generate or borrow funds; the ability to negotiate suitable lease
terms;
and the ability to recruit and train skilled management and restaurant
employees;
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price
and availability of commodities, including but not limited to such
items
as beef, chicken, shrimp, pork, seafood, dairy, potatoes, onions
and
energy supplies, are subject to fluctuation and could increase or
decrease
more than we expect;
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weather
and natural disasters could result in construction delays and also
adversely affect the results of one or more restaurants for an
indeterminate amount of time; and
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other
risks detailed in our filings with the Securities and Exchange Commission,
including “Item 1A. Risk Factors” in our Annual Report on
Form 10-K for the year ended December 31, 2006.
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Item 9.01
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Financial
Statements and Exhibits
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(d)
Exhibits
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Exhibit
No.
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99.1
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OSI
Restaurant Partners, Inc. earnings release dated April 17,
2007
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Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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OSI
RESTAURANT PARTNERS, INC.
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(Registrant)
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Date: April
17, 2007
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By:
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/s/
Dirk A. Montgomery
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Dirk
A. Montgomery
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Chief
Financial Officer
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