O'Charley's Inc.

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.

If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. o

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o


(1)	Determined in accordance with Rule 457(f) under the Securities Act.
(2)	No separate consideration will be received for the Guarantees, and, therefore, no additional registration fee is required.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

The information in this prospectus is not complete and may be changed. We may not exchange for these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

Terms of the new 9% senior subordinated notes offered in the exchange offer:


	•	The terms of the new notes are identical to the terms of the outstanding notes, except that the new notes have been registered under the Securities Act of 1933 and will not contain restrictions on transfer or registration rights.

	•	The new notes will be subordinated to all of our existing and future senior debt and will rank equally with any future senior subordinated debt. Assuming the exchange offer had been completed on December 28, 2003, the new notes would have been subordinated to approximately $ million of our outstanding indebtedness.


	•	We are offering to exchange up to $125,000,000 of our outstanding 9% senior subordinated notes due 2013 for new notes with materially identical terms that have been registered under the Securities Act and are generally freely tradable.

	•	We will exchange all outstanding notes that you validly tender and do not validly withdraw before the exchange offer expires for an equal principal amount of new notes.

	•	The exchange offer expires at 5:00 p.m., Eastern time, on , 2004, unless extended.

	•	Tenders of outstanding notes may be withdrawn at any time prior to the expiration of the exchange offer.

	•	The exchange of new notes for outstanding notes should not be a taxable event for U.S. federal income tax purposes.

Broker-dealers that acquired outstanding notes from us in the offering of the outstanding notes are not eligible to participate in the exchange offer with respect to such outstanding notes. Each broker-dealer registered as such under the Securities Exchange Act of 1934 that receives new notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. The letter of transmittal that accompanies this prospectus states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for outstanding notes where the outstanding notes were acquired by the broker-dealer as a result of market-making activities or other trading activities. We have agreed that, starting on the expiration date of the exchange offer and ending on the close of business 180 days after the expiration date of the exchange offer, or such shorter period as will terminate when all new notes held by broker-dealers that receive new notes for their own account or initial purchasers of the outstanding securities have been sold pursuant to this prospectus, we will make this prospectus available to any broker-dealer for use in connection with any resale of new notes received by a broker-dealer for its own account. See “Plan of Distribution.”

You should carefully consider the Risk Factors beginning on page 11 of this prospectus before participating in the exchange offer.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the new notes or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

This summary highlights selected information about O’Charley’s Inc. and the exchange. It may not contain all the information that may be important to you. You should read this entire prospectus, the documents incorporated by reference into this prospectus, and the documents to which we have referred you before making an investment decision. This prospectus contains or incorporates by reference certain forward-looking statements that involve risks and uncertainties. See “Cautionary Note Regarding Forward-Looking Statements and Market Data.” In addition, you should carefully consider the information set forth under “Risk Factors” in this prospectus.

Unless otherwise expressly indicated or the context otherwise indicates, references to “the company,” “we,” “us,” and “our” refer to O’Charley’s Inc. and its consolidated subsidiaries, references to “O’Charley’s” refer to our O’Charley’s restaurants and concept, references to “Ninety Nine” refer to our Ninety Nine Restaurant and Pub restaurants and concept, and references to “Stoney River” refer to our Stoney River Legendary Steaks restaurant and concept. References to “same store sales” include the sales of only those restaurants open for at least 78 weeks. References to the “notes” in this prospectus refer collectively to the outstanding notes and the new notes.

We use a 52/53 week fiscal year ending on the last Sunday in December of each year. References in this prospectus to the years or fiscal years 1998, 1999, 2000, 2001, 2002 and 2003 mean our fiscal years ended December 27, 1998, December 26, 1999, December 31, 2000, December 30, 2001, December 29, 2002 and December 28, 2003, respectively, unless otherwise expressly stated or the context otherwise requires. Each of the fiscal years from 1998 through 2003 had 52 weeks, except 2000, which had 53 weeks. References in this prospectus to the third quarters of 2002 and 2003 mean our fiscal quarters ended October 6, 2002 and October 5, 2003, respectively. For accounting purposes, our first quarter consists of 16 weeks and our second, third and fourth quarters each consist of 12 weeks.

We are a leading casual dining restaurant company headquartered in Nashville, Tennessee. We own and operate three restaurant concepts under the “O’Charley’s,” “Ninety Nine Restaurant and Pub” and “Stoney River Legendary Steaks” tradenames. Our two primary concepts, O’Charley’s and Ninety Nine, are leading casual dining concepts in their respective operating markets. At December 28, 2003, we operated 206 O’Charley’s restaurants in 16 states in the Southeast and Midwest regions, 87 Ninety Nine restaurants in seven Northeastern states, and six Stoney River restaurants in the Southeast and Midwest.

We acquired the original O’Charley’s restaurant in Nashville, Tennessee in May 1984. O’Charley’s is a casual dining restaurant concept whose strategy is to differentiate its restaurants by serving high-quality, freshly prepared food at moderate prices and with attentive customer service. O’Charley’s restaurants are intended to appeal to a broad spectrum of customers from a diverse income base, including mainstream casual dining customers, as well as upscale casual dining and value oriented customers.

The O’Charley’s menu is mainstream, but innovative and distinctive in taste. The O’Charley’s menu features approximately 55 items including USDA Choice hand-cut and aged steaks, baby-back ribs basted with our own tangy BBQ sauce, a variety of seafood, fresh-cut salads with special recipe salad dressings and O’Charley’s signature caramel pie. All entrees are cooked to order and feature a selection of side items in addition to our hot, freshly-baked yeast rolls. We believe the large number of freshly prepared items on the O’Charley’s menu helps differentiate our O’Charley’s concept from other casual dining restaurants.

We seek to create a casual, neighborhood atmosphere in our O’Charley’s restaurants through an open layout and exposed kitchen and by tailoring the decor of our restaurants to the local community. The exterior typically features bright red and green neon borders, multi-colored awnings and attractive landscaping. The interior typically is open, casual and well lighted and features warm woods, exposed brick, color prints and hand-painted murals depicting local history, people, places and events. The prototypical O’Charley’s restaurant is a free-standing building ranging in size from approximately 6,400 to 6,800 square feet with seating for approximately 275 customers, including approximately 60 bar seats. We periodically update the interior and exterior of our restaurants to reflect refinements in the concept and respond to changes in customer tastes and preferences.

In January 2003, we acquired Ninety Nine Restaurant and Pub, a Woburn, Massachusetts based casual dining concept that began in 1952 with its initial location at 99 State Street in downtown Boston. Ninety Nine restaurants are casual dining restaurants that we believe have earned a reputation for providing generous portions of high-quality food at moderate prices combined with attentive service. Ninety Nine restaurants are intended to appeal to mainstream casual dining and value oriented customers.

The Ninety Nine menu features approximately 55 items, including a wide selection of appetizers, soups, salads, sandwiches, burgers, beef, chicken and seafood entrees and desserts. Ninety Nine restaurants offer full bar service, including a wide selection of imported and domestic beers, wine and specialty drinks. Ninety Nine restaurants are open seven days a week and serve lunch and dinner. Lunch entrees range in price from $5.99 to $12.99, with dinner entrees ranging from $6.59 to $14.99. In the first 40 weeks of 2003, the average check per customer, including beverages, was $13.67.

Ninety Nine restaurants seek to provide a warm and friendly neighborhood pub atmosphere. Signature elements of the prototypical Ninety Nine restaurant include an open view kitchen, booth seating, walls decorated with local community memorabilia and a centrally located rectangular bar. The prototypical Ninety Nine restaurant is a free-standing building of approximately 5,800 square feet in size with seating for approximately 200 customers, including approximately 30 bar seats. Ninety Nine has grown through remodeling traditional and non-traditional restaurant locations as well as through developing new restaurants in the style of its prototype restaurant.

We acquired Stoney River in May 2000. Stoney River restaurants are upscale steakhouses that are intended to appeal to both upscale casual dining and fine dining customers by offering the high-quality food and attentive customer service typical of high-end steakhouses at more moderate prices. Stoney River restaurants have an upscale “mountain lodge” design with a large stone fireplace, plush sofas and rich woods that is intended to make the interior of the restaurant inviting and comfortable. The Stoney River menu features seven offerings of premium Midwestern beef, fresh seafood and a variety of other gourmet entrees. An extensive assortment of freshly prepared salads and side dishes is available a la carte. The menu also includes several specialty appetizers and desserts. Stoney River restaurants offer full bar service, including an extensive selection of wines. The price range of entrees is $16.95 to $29.95. In the first 40 weeks of 2003, the average check per customer, including beverages, was $37.05.

2002 sales projected to have reached approximately $407.8 billion. According to the National Restaurant Association, real sales, defined as sales as adjusted for inflation, for the U.S. restaurant industry as a whole grew by a projected 1.3% in 2002 compared to 2001, and are projected to grow 1.8% in 2003 compared to 2002. The National Restaurant Association has projected sales at full-service restaurants in the U.S. were $146.1 billion in 2002 and projects an increase of 4.8% to $153.2 billion in 2003. According to the National Restaurant Association, sales in the full-service segment of the U.S. restaurant industry are projected to have grown 4.1% in 2002 compared to 2001, outpacing total U.S. restaurant industry projected sales growth of 3.9% over the same period. Technomic, Inc., a consulting and research firm, forecasts sales at U.S. full-service restaurants to grow at a compound annual rate of 5.5% from 2002 through 2007, compared to forecasted compound annual growth rates of 4.5% for the limited-service segment of the U.S. restaurant industry and 5.0% for the total U.S. restaurant industry for the same period. According to Technomic, the varied menu category within the full-service restaurant segment of the U.S. restaurant industry, of which both O’Charley’s and Ninety Nine are a part, is projected to grow at an 8.5% compound annual growth rate from 2002 through 2007, the highest projected compound annual growth rate over that period of all menu categories, as defined by Technomic, of the U.S. restaurant industry.

Within the consumer food industry, we believe that a shift has occurred from the consumption of “food-at-home” to the purchase of “food-away-from-home” driven by demographic, economic and lifestyle trends that benefit the restaurant industry. According to Technomic, from 1975 through 2002, consumer purchases of “food-at-home” in the U.S. grew at a compound annual rate of 4.8%, while consumer purchases of “food-away-from-home” in the U.S. grew at a compound annual rate of 6.7%. In addition, this data indicates that consumer purchases of “food-away-from-home” grew from approximately 37.2% of total consumer food spending in 1975 to approximately 49.4% in 2002. We believe this growth in purchases of “food-away-from-home” is attributable to, among other things, the rise in the number of women in the workplace and dual-income families, the aging of the U.S. population, and the increased demand for convenience. We believe these trends have contributed to the demand for casual dining.

Protect the Distinctive Culture and Operating Principles of Each of Our Concepts. We believe our three restaurant concepts have distinctive cultures and operating principles that have made them successful. In order to preserve those distinctive cultures and principles, we have established separate, experienced management teams for each concept. The members of the senior management team of each concept have an average of at least 20 years in the restaurant industry. We operate our three concepts separately, but each concept is integrated with our home office for certain administrative and support functions, such as management information systems, procurement and other administrative services. We believe that having different management teams for each concept should enable us to successfully operate and expand each of our concepts by focusing on their distinctive strengths, while capitalizing on the operating strengths and efficiencies of a large, multi-concept company.

Provide an Attractive Price-to-Value Relationship. We believe our O’Charley’s and Ninety Nine restaurants are recognized by consumers for offering an attractive value. In the first 40 weeks of 2003, the average check per customer, including beverages, was $11.61 for O’Charley’s and $13.67 for Ninety Nine. At our O’Charley’s restaurants, we believe our high-quality, freshly prepared food appeals to a broad spectrum of customers from a diverse income base, including mainstream casual dining customers, as well as upscale casual dining and value oriented customers. The generous portions and quality of the food at our Ninety Nine restaurants are intended to appeal to casual dining customers and value oriented customers.

prospective restaurant sites. While we prefer to develop new O’Charley’s restaurants based on our prototype restaurants, we from time to time develop new restaurants in existing buildings. Historically, Ninety Nine has opened a significant number of new restaurants by remodeling existing buildings. Our ability to remodel an existing building into an O’Charley’s or Ninety Nine restaurant can permit greater accessibility to quality sites in more developed markets.

Leverage Our Commissary Operations. We operate an approximately 220,000 square foot commissary in Nashville, Tennessee through which we purchase and distribute a substantial majority of the food products and supplies for our O’Charley’s and Stoney River restaurants and manufacture certain O’Charley’s brand food products for our O’Charley’s restaurants and, to a lesser extent, for sale to other customers, including retail grocery chains, mass merchandisers and wholesale clubs. In addition, our Nashville commissary operates a USDA-approved and inspected facility at which we cut beef for our O’Charley’s and Stoney River restaurants and a production facility at which we manufacture the signature yeast rolls and salad dressings served in our O’Charley’s restaurants. We also operate a 20,000 square foot commissary and purchasing operation located in Woburn, Massachusetts through which we purchase and distribute a portion of the food products and supplies for our Ninety Nine restaurants, primarily “center of the plate” items including red meat, poultry and seafood. Our Woburn commissary operates a USDA-approved and inspected facility at which we cut beef for our Ninety Nine restaurants and a production facility at which we prepare the soups, sauces and marinades served in our Ninety Nine restaurants. We believe our commissaries enhance restaurant operations by helping to maintain consistent food quality, ensure reliable distribution services to our restaurants, simplify our restaurant managers’ food cost management responsibilities and reduce costs through purchasing volumes and operating efficiencies.

Provide an Attractive Operating Environment for Our Employees. We believe that a well-trained, highly-motivated restaurant management team is critical to achieving our operating objectives. Our training and compensation systems are designed to create accountability at the restaurant management level for the performance of each restaurant. We invest significant resources to train, motivate and educate our restaurant level managers and hourly employees. To instill a sense of ownership, a portion of the compensation of our restaurant level managers is based upon restaurant operating results. Our focus on restaurant level operations is intended to create a “single store mentality” among our restaurant managers and provide an incentive for managers to improve sales and operating results.

We are incorporated in Tennessee, and the address of our principal executive offices is 3038 Sidco Drive, Nashville, Tennessee 37204. Our telephone number is (615) 256-8500. Our corporate website address is www.ocharleys.com. Information contained on our website is not part of this prospectus.

On November 4, 2003, we completed a private offering of the outstanding notes. We entered into a registration rights agreement with the initial purchasers of the outstanding notes in which we agreed to deliver to you this prospectus.

The new notes will be identical to the outstanding notes except that the new notes have been registered under the Securities Act and will not have restrictions on transfer or registration rights. The new notes will evidence the same debt as the outstanding notes, and the same indenture will govern the new notes and the outstanding notes.

The following summary contains basic information about the new notes and is not intended to be complete. It does not contain all of the information that is important to you. For a more complete understanding of the new notes, see “Description of the Notes.”


		governing the notes, of O’Charley’s Inc. We may designate one or more of our subsidiaries as an unrestricted subsidiary in accordance with the indenture governing the notes, in which case those subsidiaries will not guarantee the notes. We refer to the subsidiaries that guarantee the notes as subsidiary guarantors. We refer to the guarantees by the subsidiary guarantors as the guarantees. The guarantee of a subsidiary guarantor will be released under certain circumstances as described under “Description of the Notes — General — The Subsidiary Guarantees.”

Ranking		The new notes will be our unsecured, senior subordinated obligations and will rank junior in right of payment to all of our existing and future senior debt. The guarantee of the new notes by each subsidiary guarantor will be an unsecured, senior subordinated obligation of that subsidiary guarantor, and will rank junior in right of payment to all existing and future senior debt of that subsidiary guarantor. See “Description of the Notes — Subordination.”

		The new notes will rank equally in right of payment with any of our future senior subordinated debt and the guarantee of each subsidiary guarantor will rank equally in right of payment with any future senior subordinated debt of that subsidiary guarantor. Neither we nor any of our subsidiary guarantors currently has any senior subordinated debt outstanding.

		As of December 28, 2003, we and our subsidiaries had approximately $ million of senior debt outstanding on a consolidated basis. Our credit facility permits us to borrow up to a total of $125.0 million through a revolving credit facility, all of which will be senior debt.

Optional Redemption		We may redeem some or all of the new notes at any time or from time to time on or after November 1, 2008, at redemption prices described in this prospectus in “Description of the Notes — Optional Redemption.” In addition, before November 1, 2006, we may redeem up to 35% of the original aggregate amount of the new notes at a redemption price equal to 109% of the principal amount of the new notes, plus accrued and unpaid interest, with the cash proceeds from certain kinds of equity offerings as described in this prospectus in “Description of the Notes — Optional Redemption.”

Change of Control		Upon the occurrence of a change of control, as described in “Description of the Notes — Repurchase at the Option of Holders — Change of Control,” we must offer to repurchase the new notes at 101% of the principal amount of the new notes repurchased, plus accrued and unpaid interest to the date of repurchase.

Basic Covenants of the Indenture		The indenture governing the notes contains certain covenants limiting, among other things, our ability and the ability of our

For the purpose of calculating the ratio of earnings to fixed charges, earnings are defined as net earnings before income taxes, plus fixed charges, less capitalized interest. Fixed charges are defined as interest expensed and capitalized, plus amortization of premiums, discounts and capitalized expenses related to indebtedness, plus an estimate of the interest within rent expense.

The summary consolidated financial data presented below under the captions “Statement of Earnings Data” and “Balance Sheet Data” for, and as of the end of, each of the fiscal years in the three-year period ended December 29, 2002, are derived from our consolidated financial statements, which consolidated financial statements have been audited by KPMG LLP, independent auditors. The audit report covering the December 29, 2002 consolidated financial statements refers to a change in accounting for goodwill and other intangible assets. The summary consolidated financial data presented below under the captions “Statement of Earnings Data” and “Balance Sheet Data” for, and as of the end of, the 40 week periods ended October 6, 2002 and October 5, 2003 are derived from our unaudited consolidated financial statements. The unaudited consolidated financial statements include all adjustments, consisting of normal recurring items, which our management considers necessary for a fair presentation of our financial position and results of operations for these periods. The financial condition and results of operations for the 40 weeks ended October 5, 2003 do not purport to be indicative of the financial condition or results of operations to be expected as of and for the fiscal year ending December 28, 2003. The following data should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements, the consolidated financial statements of Ninety Nine Restaurant and Pub and the pro forma financial statements relating to our acquisition of Ninety Nine, including, in each case, the notes thereto, included elsewhere in this prospectus or in the documents incorporated by reference herein. All of the fiscal years shown below had 52 weeks, except 2000, which had 53 weeks. As a result, some of the variations reflected in the following data may be attributed to the different lengths of the fiscal years.


(1)	In May 2000, we acquired two Stoney River restaurants and all associated trademarks and intellectual property for approximately $15.8 million in a cash transaction accounted for as a purchase. Accordingly, the results of operations of the two Stoney River restaurants have been included in our consolidated results of operations since the date of acquisition.

(2)	We incurred an after-tax charge of $6.1 million, which was recorded as a cumulative effect of a change in accounting principle, as of the beginning of 2002 associated with the adoption of Statement of Financial Accounting Standards No. 142 “Goodwill and Other Intangible Assets.” The charge was related to the goodwill associated with the Stoney River acquisition in May 2000. See note 1 to our consolidated financial statements for the fiscal year ended December 29, 2002 incorporated herein by reference for data as to pro forma net earnings for 2000 as if SFAS No. 142 had been adopted at the beginning of 2000.

(3)	On January 27, 2003, we acquired Ninety Nine for $116.0 million in cash and 2,352,941 shares of our common stock. Accordingly, the results of operations of Ninety Nine are included in our consolidated results of operations only since January 27, 2003.

(4)	Same store sales includes the sales of only those restaurants open for at least 78 weeks. We acquired Stoney River in May 2000, but did not begin reporting same store sales for Stoney River until fiscal 2002.

(5)	Our working capital historically has had current liabilities in excess of current assets as a result of cash reinvestments in long-term assets, mostly property and equipment additions.

(6)	EBITDA represents earnings before cumulative effect of change in accounting principle before interest expense, income taxes, and depreciation and amortization. EBITDA is presented because we believe that it is a useful indicator of our liquidity. EBITDA, subject to certain adjustments, is also used as a measure in certain covenants in our credit facility and the indenture governing the notes. EBITDA should not be considered as a measure of liquidity under accounting principles generally accepted in the United States of America, and the items excluded from EBITDA are significant components in understanding and assessing liquidity. EBITDA should not be considered in isolation or as an alternative to cash flows generated by operating, investing or financing activities or other financial statement data presented in our consolidated financial statements as an indicator of liquidity. EBITDA, as presented, may not be comparable to similarly titled measures of other companies.


	The following table reconciles EBITDA, as presented above, to cash flows provided by operating activities as reflected in our consolidated statements of cash flows:

You should carefully consider the factors described and referred to below in addition to the other information set forth in this prospectus and the documents incorporated by reference into this prospectus before deciding whether to participate in the exchange offer. The risks and uncertainties described below and in the documents incorporated by reference into this prospectus are not the only ones facing us. Additional risks and uncertainties may also materially and adversely affect our business operations.

Our O’Charley’s and Ninety Nine restaurants are casual dining restaurants that feature menus intended to appeal to a broad spectrum of customers. Our Stoney River restaurants are upscale steakhouses that feature steaks, fresh seafood and other gourmet entrees. Our continued success depends, in part, upon the popularity of these foods and these styles of dining. Shifts in consumer preferences away from this cuisine or dining style could materially adversely affect our future operating results. The restaurant industry is characterized by the continual introduction of new concepts and is subject to rapidly changing consumer preferences, tastes and eating and purchasing habits. Our success will depend in part on our ability to anticipate and respond to changing consumer preferences, tastes and eating and purchasing habits, as well as other factors affecting the restaurant industry, including new market entrants and demographic changes. We may be forced to make changes in our concepts and menus in order to respond to changes in consumer tastes or dining patterns. If we change a restaurant concept or menu, we may lose customers who do not prefer the new concept or menu, and may not be able to attract a sufficient new customer base to produce the revenue needed to make the restaurant profitable. In addition, consumer preferences could be affected by health concerns about the consumption of beef, the primary item on our Stoney River menu, or by specific events such as E. coli food poisoning or outbreaks of other diseases.

Our success is also dependent to a significant extent on numerous factors affecting discretionary consumer spending, including economic conditions, disposable consumer income and consumer confidence. Adverse changes in these factors could reduce customer traffic or impose practical limits on pricing, either of which could harm our results of operations.

Through the third quarter of 2003, we experienced decreases in our same store sales at our O’Charley’s restaurants during five of the previous six fiscal quarters. During the third quarter of 2003, we introduced a number of business initiatives, including changes to our menu, designed to increase our customer traffic. These initiatives have resulted in increases in our customer traffic, but have also resulted in a lower average check due to the introduction of a number of promotional items, resulting in continued decreases in same store sales at our O’Charley’s restaurants. These initiatives have also resulted in increased costs. There can be no assurance that these initiatives will result in increased revenues or same store sales at our O’Charley’s restaurants and, as a result, such initiatives may continue to adversely affect our results of operations in future periods. Likewise, we cannot assure you that same store sales at our O’Charley’s restaurants will not continue to decline.

In September 2003, we became aware that customers and employees at one of our O’Charley’s restaurants located in Knoxville, Tennessee were exposed to the Hepatitis A virus, which has resulted in a number of our employees and customers becoming infected. Hepatitis A is a viral infection spread primarily through contaminated food and water. The negative publicity surrounding this incident has significantly reduced customer traffic at our nine O’Charley’s restaurants in the Knoxville market and to a lesser extent in other markets. We are aware of 81 individuals who have contracted the Hepatitis A virus in the Knoxville area, most of whom have been linked to our Knoxville restaurant during the time of the outbreak. As of the date of this prospectus, we are also aware of 20 lawsuits that have been filed against us alleging injuries or fear of injuries from the Hepatitis A incident, some of which claim substantial damages, including treble damages under Tennessee consumer protection laws and punitive damages, and some of which seek to be certified as class actions. One of the lawsuits was filed by an individual who contracted the Hepatitis A virus and died following the filing of his lawsuit, and his lawsuit has been amended to allege wrongful death. Other plaintiffs have alleged significant health concerns, including ailments requiring hospitalization. We anticipate that additional lawsuits will be filed against us relating to this incident.

We are also aware of an outbreak of Hepatitis A linked to numerous independent restaurants and restaurant chains located in Georgia, including two of our O’Charley’s restaurants. We have received the preliminary report of the Georgia Division of Public Health indicating that ten persons who contracted the Hepatitis A virus in Georgia stated that they had eaten at the Centerville, Georgia or the Macon, Georgia O’Charley’s restaurant.

We are not able to predict the extent to which the negative publicity surrounding these incidents will continue to adversely affect our customer traffic, whether litigation will be filed against us relating to the Georgia incident, or the outcome of the litigation that has been filed against us relating to the Knoxville incident or that may be filed against us in the future relating to these incidents or the amounts that we may be required to pay to settle that litigation or to satisfy any adverse judgments that may be rendered against us. We have liability and loss of income insurance; however, we cannot assure you that our insurance carriers will reimburse us for any loss, liability or loss of income we suffer in connection with this incident or that our insurance coverage will be sufficient to cover any loss, liability or loss of income. If we suffer losses, liabilities or loss of income in excess of our insurance coverage or if our insurance does not cover those losses, liabilities or loss of income, there could be a material adverse effect on our results of operations or financial condition. The reduction in our customer traffic as a result of the Knoxville incident adversely affected our results of operations for the 12 weeks ended October 5, 2003 and is continuing to adversely affect our results of operations.

A significant portion of our historical growth has been due to opening new restaurants. We opened 24 new O’Charley’s restaurants and three new Stoney River restaurants in 2002. We opened 26 new O’Charley’s restaurants, closed two O’Charley’s restaurants, opened ten new Ninety Nine restaurants and closed one Ninety Nine restaurant in 2003. Our ability to open new restaurants will depend on a number of factors, such as:


	•	the selection and availability of quality restaurant sites;

	•	our ability to negotiate acceptable lease or purchase terms;

	•	our ability to hire, train and retain the skilled management and other personnel necessary to open, manage and operate new restaurants;


	•	our ability to secure the governmental permits and approvals required to open new restaurants;

	•	our ability to manage the amount of time and money required to build and open new restaurants, including the possibility that adverse weather conditions may delay construction and the opening of new restaurants; and

	•	the availability of adequate financing.

Many of these factors are beyond our control. In addition, we have historically generated insufficient cash flow from operations to fund our working capital and capital expenditures and, accordingly, our ability to open new restaurants and our ability to grow, as well as our ability to meet other anticipated capital needs, is dependent on our continued access to external financing, including borrowings under our credit facility and financing obtained in the capital markets. Our ability to make borrowings under our credit facility will require, among other things, that we comply with certain financial and other covenants, and we cannot assure you that we will be able to do so. Accordingly, we cannot assure you that we will be successful in opening new restaurants in accordance with our current plans or otherwise. Furthermore, we cannot assure you that our new restaurants will generate revenues or profit margins consistent with those of our existing restaurants, or that the new restaurants will be operated profitably. In May 2000, we acquired Stoney River, including two Stoney River restaurants in suburban Atlanta. We currently operate six Stoney River restaurants. On January 27, 2003, we acquired Ninety Nine, and as of December 28, 2003, we operated 87 Ninety Nine restaurants.

On January 27, 2003, we acquired Ninety Nine Restaurant and Pub, a casual dining restaurant company with 78 restaurant locations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont. The acquisition of Ninety Nine was substantially larger than any acquisition we have previously completed, and our management team does not have significant experience integrating the operations of acquired businesses. In addition, our Ninety Nine restaurants are located in markets in which we have not historically operated. Achieving the expected benefits of the Ninety Nine acquisition will depend in large part on our completion of the integration of Ninety Nine’s operations and personnel in a timely and efficient manner. The challenges involved in this integration include the following:


	•	persuading employees of Ninety Nine that we will maintain Ninety Nine’s distinctive business culture and employee morale;

	•	retaining the senior management team of Ninety Nine, several of whom received significant payments in connection with the acquisition;

	•	maintaining a workforce over expanded geographic locations; and

	•	consolidating certain corporate, commissary, information technology, accounting and administrative infrastructures.

If we cannot overcome the challenges we face in completing the integration of Ninety Nine, our ability to effectively and profitably manage Ninety Nine’s business could suffer. We cannot assure you that our Ninety Nine restaurants will generate revenues or profit margins consistent with prior years or that these restaurants will not operate at a loss. Moreover, the integration process itself may be disruptive to our business, as it will divert the attention of management from its normal operational responsibilities and duties. We cannot offer any assurance that we will be able to successfully integrate Ninety Nine’s operations or personnel or realize the anticipated benefits of the acquisition. Our failure to successfully complete the integration of Ninety Nine could harm our business, financial condition and results of operations.

Our growth has placed significant demands upon our management. We also face the risk that our existing systems and procedures, restaurant management systems, financial controls and information systems will be inadequate to support our planned growth. We cannot predict whether we will be able to respond on a timely basis to all of the changing demands that our planned growth will impose on management and these systems and controls. In May 2000, we acquired Stoney River and, in January 2003, we acquired Ninety Nine. The development of the Stoney River concept and the integration and operation of the Ninety Nine concept will place significant demands on our management. These demands on our management and systems could also adversely affect our ability to manage our existing restaurants. If our management is unable to meet these demands or if we fail to continue to improve our information systems and financial controls or to manage other factors necessary for us to achieve our growth objectives, our operating results or cash flows could be materially adversely affected.

As part of our growth plans, we may open new restaurants in areas in which we have little or no operating experience and in which potential customers may not be familiar with our restaurants. As a result, we may have to incur costs related to the opening, operation and promotion of those new restaurants that are substantially greater than those incurred in other areas. Even though we may incur substantial additional costs with these new restaurants, they may attract fewer customers than our more established restaurants in existing markets. As a result, the results of operations at new restaurants may be inferior to those of our existing restaurants. The new restaurants may even operate at a loss.

Another part of our growth plan is to open restaurants in markets in which we already have existing restaurants. We may be unable to attract enough customers to the new restaurants for them to operate at a profit. Even if we are able to attract enough customers to the new restaurants to operate them at a profit, those customers may be former customers of one of our existing restaurants in that market and the opening of a new restaurant in the existing market could reduce the revenue of our existing restaurants in that market.

Our operating results are significantly dependent on our ability to anticipate and react to increases in food, labor, employee benefits and other costs. Various factors beyond our control, including adverse weather conditions, governmental regulation, production, availability, recalls of food products and seasonality may affect our food costs or cause a disruption in our supply chain. We cannot predict whether we will be able to anticipate and react to changing food costs by adjusting our purchasing practices and menu prices, and a failure to do so could adversely affect our operating results. In addition, because the pricing strategy at our O’Charley’s and Ninety Nine restaurants is intended to provide an attractive price-to-value relationship, we may not be able to pass along price increases to our guests.

We compete with other restaurants for experienced management personnel and hourly employees. Given the low unemployment rates in certain areas in which we operate, we will likely be required to continue to enhance our wage and benefits package in order to attract qualified management and other personnel. For example, in 2003 we began offering expanded medical benefits for our hourly employees, which has increased our benefit costs. In addition, any increase in the federal minimum wage rate would likely cause an increase in our labor costs. We cannot assure you that we will be able to offset increased wage and benefit costs through our purchasing and hiring practices or menu price increases, particularly over the short term. As a result, increases in wages and benefits could have a material adverse effect on our business and could decrease the cash available to service our obligations, including the notes.

We have completed a feasibility study on franchising our O’Charley’s restaurant concept and have begun marketing the franchise concept. During December 2003, we entered into an exclusive multi-unit development agreement with a third party franchisee to develop and operate up to 15 new O’Charley’s restaurants in Michigan. We intend to enter into additional development agreements to franchise our O’Charley’s restaurant concept. We will continue to experience expenditures and losses in implementing our franchising initiative until such time, if ever, that we generate sufficient franchising revenue to cover these expenditures.

Our success depends in part upon our ability to attract, motivate and retain a sufficient number of qualified employees, including restaurant managers, kitchen staff and servers, necessary to continue our operations and to keep pace with our growth. Qualified individuals of the requisite caliber and quantity needed to fill these positions are in short supply. Given the low unemployment rates in certain areas in which we operate, we may have difficulty hiring and retaining qualified management and other personnel. Any inability to recruit and retain sufficient qualified individuals may adversely affect operating results at existing restaurants and delay the planned openings of new restaurants. Any delays in opening new restaurants or any material increases in employee turnover rates in existing restaurants could have a material adverse effect on our business, financial condition, operating results or cash flows. Additionally, we have increased wages and benefits to attract a sufficient number of competent employees, resulting in higher labor costs.

Our O’Charley’s restaurants are located predominately in the Southeastern and Midwestern United States. Our Ninety Nine restaurants are located in the Northeastern United States. At December 28, 2003, we operated 36 of our 206 O’Charley’s restaurants in Tennessee and 56 of our 87 Ninety Nine restaurants in Massachusetts. As a result, our business and our financial or operating results may be materially adversely affected by adverse economic, weather or business conditions in these markets, as well as in other geographic regions in which we locate restaurants.

We depend significantly on the services of Gregory L. Burns, our Chief Executive Officer, Steven J. Hislop, our President and Chief Operating Officer, and A. Chad Fitzhugh, our Chief Financial Officer. We also depend significantly on the services of each of our Concept Presidents, William E. Hall, Jr., our Concept President — O’Charley’s, and Charles F. Doe, Jr., our Concept President — Ninety Nine Restaurant and Pub. Mr. Doe, who joined our company when we acquired Ninety Nine in January 2003, received significant payments at the time of our acquisition of Ninety Nine, and we do not have an employment agreement with Mr. Doe. If we lose the services of any members of our senior management for any reason, we may be unable to replace them with qualified personnel, which could have a material adverse effect on our business and development. We do not have employment agreements with any of our executive officers and we do not carry key person life insurance on any of our executive officers.

The restaurant industry is intensely competitive with respect to price, service, location and food quality, and there are many well-established competitors with substantially greater financial and other resources than us, including a large number of national and regional restaurant chains. Some of our competitors have been in existence for a substantially longer period than us and may be better established in the markets where our restaurants are or may be located. If our restaurants are unable to compete successfully with other restaurants in new and existing markets, our results of operations will be adversely affected.

To the extent that we open restaurants in larger cities and metropolitan areas, we expect competition to be more intense in those markets. We also compete with other restaurants for experienced management personnel and hourly employees and with other restaurants and retail establishments for quality sites.

We operate a commissary in Nashville, Tennessee through which we purchase and distribute a substantial majority of the food products and supplies for our O’Charley’s and Stoney River restaurants. We also operate a commissary in Woburn, Massachusetts, through which we purchase and distribute a portion of the food products and supplies for our Ninety Nine restaurants. If the operations of our commissaries are disrupted, we may not be able to deliver food and supplies to our restaurants. If our commissaries are unable to deliver the food products and supplies required to run our restaurants, we may not be able to find other sources of food or supplies, or, if alternative sources of food or supplies are located, our operating costs may increase. Accordingly, any disruption in the operation of our commissaries could adversely affect our ability to operate our restaurants and our results of operations.

Our restaurants are subject to extensive federal, state and local government regulation, including regulations related to the preparation and sale of food, the sale of alcoholic beverages, zoning and building codes and other health, sanitation and safety matters. All of these regulations impact not only our current restaurant operations but also our ability to open new restaurants. We will be required to comply with applicable state and local regulations in new locations into which we expand. Any difficulties, delays or failures in obtaining licenses, permits or approvals in such new locations could delay or prevent the opening of a restaurant in a particular area or reduce operations at an existing location, either of which would materially and adversely affect our growth and results of operations. In addition, our commissaries are licensed and subject to regulation by the United States Department of Agriculture and are subject to further regulation by state and local agencies. Our failure to obtain or retain federal, state or local licenses for our commissaries or to comply with applicable regulations could adversely affect our commissary operations and disrupt delivery of food and other products to our restaurants. If one or more of our restaurants were unable to serve alcohol or food for even a short time period, we could experience a reduction in our overall revenue.

The costs of operating our restaurants may increase if there are changes in laws governing minimum hourly wages, workers’ compensation insurance rates, unemployment tax rates, sales taxes or other laws and regulations, such as the federal Americans with Disabilities Act, which governs access for the disabled. If any of the above costs increase, we cannot assure you that we will be able to offset the increase by increasing our menu prices or by other means, which would adversely affect our results of operations.

In addition to the litigation which has been or may in the future be filed concerning the Hepatitis A incidents discussed above, we are sometimes the subject of other complaints or litigation from customers alleging illness, injury or other food quality or health concerns. Litigation or adverse publicity resulting from these allegations may materially adversely affect us or our restaurants, regardless of whether the allegations are valid or whether we are liable. In addition, our restaurants are subject in each state in which we operate to “dram shop” laws that allow a person to sue us if that person was injured by an intoxicated person who was wrongfully served alcoholic beverages at one of our restaurants. A lawsuit under a dram shop law or alleging illness or injury from food may result in a verdict in excess of our liability insurance policy limits, which could result in substantial liability for us and may have a material adverse effect on our results of operations.

We are subject to the risk that our results of operations may be adversely affected by legal or governmental proceedings brought by or on behalf of our employees or customers. In recent years, a number of restaurant companies have been subject to lawsuits, including class action lawsuits, alleging violations of federal and state law regarding workplace and employment matters, discrimination and similar matters. A number of these lawsuits have resulted in the payment of substantial damages by the defendants. Similar lawsuits have been instituted against us from time to time and we are also the defendant in a number of pending lawsuits in connection with the Knoxville Hepatitis A incident discussed above under “— A recent outbreak of Hepatitis A affecting customers and employees of a Knoxville, Tennessee O’Charley’s restaurant has adversely affected our customer traffic, negatively impacted our results of operations and resulted in litigation against us, and we may be further impacted by another outbreak of Hepatitis A linked to restaurants in Georgia, including two O’Charley’s restaurants.” Accordingly, we cannot assure you that we will not incur substantial damages and expenses resulting from lawsuits, which could have a material adverse effect on our business.

Keeping abreast of, and in compliance with, changing laws, regulations and standards relating to corporate governance and public disclosure, including the Sarbanes-Oxley Act of 2002, new Securities and Exchange Commission regulations and Nasdaq Stock Market rules, has required an increased amount of management attention and external resources. We remain committed to maintaining high standards of corporate governance and public disclosure. As a result, we intend to invest all reasonably necessary resources to comply with evolving standards, and this investment has resulted in and may continue to result in increased general and administrative expenses and a diversion of management time and attention from revenue-generating activities to compliance activities.

We will only issue new notes in exchange for outstanding notes that you timely and properly tender. Therefore, you should allow sufficient time to ensure timely delivery of the outstanding notes and you should carefully follow the instructions on how to tender your outstanding notes. Neither we nor the exchange agent is required to tell you of any defects or irregularities with respect to your tender of outstanding notes.

If you do not exchange your outstanding notes for new notes pursuant to the exchange offer, the outstanding notes you hold will continue to be subject to the existing transfer restrictions. In general, you may not offer or sell the outstanding notes except under an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not plan to register outstanding notes under the Securities Act unless our registration rights agreement with the initial purchasers of the outstanding notes requires us to do so. Further, if you continue to hold any outstanding notes after the exchange offer is consummated, you may be unable to sell them because there will be fewer of these notes outstanding.

We are a highly leveraged company. At December 28, 2003, we had approximately $ million of consolidated long-term debt. We also had significant obligations under capitalized leases. In addition, at December 29, 2002 on a pro forma basis after giving effect to our acquisition of Ninety Nine as if that

transaction had been completed as of that date, we would have been party to operating leases requiring future minimum lease payments aggregating approximately $270.6 million on a consolidated basis. In addition, the new leases that we have entered into in connection with the sale and lease-back transactions described under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” will require us to make additional future minimum lease payments aggregating approximately $119.4 million over the 20 year term of the leases, or an average of approximately $6.0 million annually. The new leases also provide for the payment of additional rent beginning in the sixth year of the lease term based upon increases in the Consumer Price Index. We expect to enter into one or more additional sale and lease-back transactions before the end of the first fiscal quarter of 2004 as described in Management’s Discussion and Analysis of Financial Condition and Results of Operations.” In addition, as of December 29, 2002, on a pro forma basis after giving effect to our acquisition of Ninety Nine as if that transaction occurred as of that date, we would have had unconditional purchase obligations, primarily fixed volume, fixed price food and beverage contracts, requiring us to make future purchases aggregating approximately $52.3 million. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Contractual Obligations and Commercial Commitments” in our Annual Report on Form 10-K/A for the fiscal year ended December 29, 2002 and “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Contractual Obligations” in our Quarterly Report on Form 10-Q for the fiscal quarter ended October 5, 2003 for additional information on these and other contractual obligations and commercial commitments. We intend to continue to make borrowings under our credit facility and to enter into new operating leases in connection with the development of new restaurants, in connection with future sale and lease-back transactions and for other general corporate purposes, and we expect the aggregate amount of our indebtedness and operating lease obligations will increase, perhaps substantially.

Our ability to make payments on our debt, including the notes, and under our leases and to fund planned capital expenditures and the operation of our business will depend on our ability to generate cash, borrow under our credit facility and obtain capital from other external sources in the future. Our contractual debt service payments were approximately $13.4 million for 2002 and approximately $27.4 million for the first 40 weeks of 2003. Our capital expenditures, excluding equipment acquired under capital leases, were approximately $69.7 million for 2002 and were approximately $54.6 million for the first 40 weeks of 2003. Net cash provided by operating activities for 2002 was $64.9 million and was approximately $44.6 million for the first 40 weeks of 2003.

Our substantial debt service and operating lease obligations could, among other things:


	•	limit our ability to borrow money or sell stock to fund our working capital, capital expenditures, debt service and operating lease requirements or other purposes;

	•	increase our vulnerability to compete effectively or operate successfully under adverse economic and industry conditions;

	•	limit our ability to obtain additional financing or to enter into additional operating leases and limit our flexibility in planning for, or reacting to, changes in our business or the industry;

	•	require the dedication of a substantial portion of our cash flow from operating activities to the payment of principal of, and interest on, our debt and to the payment of amounts due under leases, which cash therefore would not be available for other purposes;

	•	increase our vulnerability to interest rate increases as the borrowings under our credit facility, as well as our obligations under certain interest rate swap agreements, will be at variable interest rates;

	•	place us at a competitive disadvantage to many of our competitors whose leverage and lease obligations are less than ours; and

	•	have a material adverse effect on our business, financial condition and results of operations.

Despite our substantial indebtedness and lease obligations, we may incur significantly more debt and lease obligations, which would further reduce the cash we have available to invest in our operations or to

service our debt and lease obligations. The terms of the indenture governing the notes, as well as our credit facility and the agreements governing our other indebtedness, limit, but do not prohibit, the incurrence of significant additional indebtedness and lease obligations by us in the future. The more we become leveraged and the more lease obligations we incur, the more we, and in turn the holders of our notes, become exposed to the risks described above. If we do not generate sufficient cash flow to meet our debt service and lease obligations and to fund our working capital and other cash requirements, we may need to seek additional financing, reduce our capital expenditures, slow our development of new restaurants or sell certain of our assets.

The notes are our unsecured, senior subordinated obligations. The notes will be guaranteed, jointly and severally, on an unsecured, senior subordinated basis by certain of our current subsidiaries and by all of our future domestic subsidiaries, if any, that guarantee any indebtedness, as defined in the indenture governing the notes, of O’Charley’s Inc., in each case other than any of our subsidiaries we designate as an unrestricted subsidiary in accordance with the indenture governing the notes. Subsidiaries of our company that generated approximately 2.9% of our consolidated revenues for the 40 weeks ended October 5, 2003, held less than 0.1% of our consolidated assets as of October 5, 2003, and generated approximately 2.2% of our consolidated EBITDA for the 40 weeks ended October 5, 2003 initially will not guarantee the notes. We also may designate subsidiaries as unrestricted subsidiaries in the future, subject to compliance with the provisions of the indenture, whereupon those subsidiaries, if they are subsidiary guarantors, would be released from their guarantees of the notes.

By their express terms, the notes rank junior in right of payment to all of our existing and future senior debt and the guarantees rank junior in right of payment to all of our and the subsidiary guarantors’ existing and future senior debt. As a result, upon any distribution to our creditors or the creditors of a subsidiary guarantor in a bankruptcy, liquidation or reorganization or similar proceeding relating to us or the subsidiary guarantor or our or its property, the holders of our senior debt and the senior debt of that subsidiary guarantor will be entitled to be paid in full and in cash before any payment may be made with respect to the notes or the guarantee of that subsidiary guarantor.

In addition, under the indenture we will not be permitted to make payments on the notes and no subsidiary guarantor will be permitted to make payments on its guarantee in the event of a payment default on our designated senior debt, as defined in the indenture governing the notes, and no subsidiary guarantor will be permitted to make payments on its guarantee in the event of a payment default on our or such subsidiary guarantor’s designated senior debt and we and the subsidiary guarantors may be prohibited from making payments on the notes or the guarantees of the subsidiary guarantors for up to 179 of 360 consecutive days in the event of certain non-payment defaults on our or such subsidiary guarantor’s designated senior debt.

The indenture provides that, in the event of a bankruptcy, liquidation or reorganization or similar proceeding relating to us, our assets will be available to pay obligations under the notes only after all of our senior debt has been paid in full. Likewise, the indenture provides that, in the event of a bankruptcy, liquidation or reorganization or similar proceeding relating to any subsidiary guarantor, the assets of that subsidiary guarantor will be available to pay obligations under its guarantee only after all of our and such subsidiary guarantor’s senior debt has been paid in full. Under those circumstances, there may not be sufficient assets remaining after payments of our senior debt or the senior debt of that subsidiary guarantor, as the case may be, to pay amounts due in respect of the notes or its guarantee. Accordingly, in such event, holders of the notes will be entitled to participate in the assets remaining after we or the applicable subsidiary guarantor, as the case may be, has repaid all of our or its senior debt in full. As a result, in any such proceeding, holders of notes may receive less, ratably, than holders of trade payables or other debt that does not constitute senior debt.

As of December 28, 2003, we and our subsidiaries had approximately $ million of senior debt outstanding on a consolidated basis. Our credit facility permits us to borrow up to a total of $125.0 million through a revolving credit facility, all of which will be senior debt.

Under the federal bankruptcy law and comparable provisions of state fraudulent transfer laws, a guarantee of the notes could be voided, or claims in respect of a guarantee could be subordinated to all other debts of a subsidiary guarantor if, among other things, the subsidiary guarantor, at the time it incurred the debt evidenced by its guarantee:


	•	received less than reasonably equivalent value or fair consideration for the incurrence of such guarantee;

	•	was insolvent or rendered insolvent by reason of such incurrence;

	•	was engaged in a business or transaction for which the subsidiary guarantor’s remaining assets constituted unreasonably small capital; or

	•	intended to incur, or believed that it would incur, debts beyond its ability to pay such debts as they mature.

In addition, under these circumstances any payment by that subsidiary guarantor pursuant to its guarantee could be voided and required to be returned to the subsidiary guarantor, or to a fund for the benefit of the creditors of us or the guarantor.

The measures of insolvency for purposes of these fraudulent transfer laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a subsidiary guarantor would be considered insolvent if:


	•	the sum of its debts, including contingent liabilities, was at the time greater than the fair saleable value of all of its assets;

	•	if the present fair saleable value of its assets was at the time less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or

	•	it could not pay its debts as they become due.

Other laws limit or may limit the amount that any subsidiary guarantor will be permitted to pay under its guarantee of the notes. For example, Tennessee law provides that a subsidiary guarantor that is incorporated in Tennessee may not, in effect, make a payment under its guarantee if, after giving effect to that payment, the subsidiary guarantor would not be able to pay its debts as they become due in the usual course of business or the subsidiary guarantor’s total assets would be less than the sum of its total liabilities. A number of the subsidiary guarantors are Tennessee corporations and are subject to this limitation on their guarantee payments. Such limitations could restrict, perhaps substantially, the amount that any subsidiary guarantor would be permitted to pay under its guarantee or could prohibit that subsidiary guarantor from making any payments under its guarantee.

There can be no assurance as to what standard a court would apply to evaluate the parties’ intent or to determine whether the applicable subsidiary guarantor was insolvent at the time of, or rendered insolvent upon consummation of, the applicable transaction or that, regardless of the standard, a court would not determine that the subsidiary guarantor was insolvent or rendered insolvent as a result of that transaction. Accordingly, we cannot assure you that the guarantees of the notes, or any payments made under the guarantees, will not be deemed to violate applicable bankruptcy, fraudulent transfer, shareholder distribution or similar laws. The guarantees contain a provision that limits the guarantees as necessary to prevent them from constituting a fraudulent conveyance under applicable law or a prohibited distribution to shareholders under the Tennessee law described above.

Our debt agreements, including the indenture governing the notes and our credit facility, contain various covenants that limit our ability and the ability of our subsidiaries, subject to certain exceptions, to engage in a variety of transactions including:


	•	incurring additional debt or issuing preferred stock;

	•	paying dividends or making other distributions on, redeeming or repurchasing capital stock;

	•	making investments, loans, advances, acquisitions or other restricted payments, including payments with respect to the notes other than regularly scheduled payments of interest and additional interest, if any;

	•	restricting dividends or other payments from subsidiaries;

	•	entering into transactions with affiliates;

	•	engaging in sale and lease-back transactions;

	•	selling assets;

	•	selling, transferring or issuing shares of capital stock of restricted subsidiaries;

	•	creating liens on assets; or

	•	effecting a consolidation, liquidation or merger.

These covenants limit our operational flexibility and could prevent us from taking advantage of business opportunities as they arise, growing our business or competing effectively.

In addition, our credit facility requires us to maintain specified financial ratios and satisfy other financial condition tests. One of our lease agreements also contains restrictive covenants and specified financial ratio and other financial tests similar to those in our credit facility. Our ability to meet these financial ratios and tests and to comply with other financial covenants can be affected by events beyond our control, and we cannot assure you that we will meet these tests or comply with these covenants. Because we will be dependent in large part on borrowings under our credit facility to continue opening new restaurants, any violation of the covenants in our credit facility and any resultant inability to borrow thereunder will likely have a material adverse effect on our results of operations.

A breach of any of these covenants or other provisions in our debt agreements could result in an event of default, which if not cured or waived, could result in such debt becoming immediately due and payable. A breach of any of these covenants or the acceleration of any of our debt could in turn cause our other debt to become due and payable as a result of cross-default or cross-acceleration provisions contained in the agreements governing such other debt. All amounts owing under our credit facility will be secured by 100% of the equity interests we own of each of our existing and future subsidiaries and all of the tangible and intangible assets, other than real property acquired after the date of the credit facility and equipment, owned by us and substantially all of our subsidiaries. The lenders may, under certain circumstances, also require that we pledge such real estate and equipment as collateral. Should borrowings under our credit facility be accelerated, the lenders would generally be entitled to seize the collateral, which could prevent us from continuing to operate our business. In the event that some or all of our debt is accelerated and becomes immediately due and payable, we may not have the funds to repay, or the ability to refinance, such debt. Moreover, even if we were able to obtain financing to repay our debt under these circumstances, any new financing may not be on terms that are acceptable to us. In addition, in the event that the notes become immediately due and payable, the subordination provisions of the notes and the guarantees would prohibit the holders of the notes from receiving any payment in respect of the notes or the guarantees until all of the senior debt of us and the subsidiary guarantors was paid in full.

Upon the occurrence of a change of control, as defined in “Description of the Notes — Certain Definitions,” the indenture governing the notes requires us to make an offer to repurchase all outstanding notes at 101% of the principal amount thereof, plus accrued and unpaid interest to the date of repurchase. However, it is possible that we will not have sufficient funds, or the ability to raise sufficient funds, at the time of the change of control to make the required repurchase of the notes. In addition, our credit facility prohibits us from repurchasing the notes upon a change of control and restrictions under our other debt may not allow us to repurchase the notes upon a change of control. In addition, those restrictions may prohibit or limit us from repurchasing the notes under the circumstances described under “Description of the Notes — Repurchase at the Option of Holders — Asset Sales.” If we could not refinance borrowings under our credit facility or any such other debt or otherwise obtain a waiver from the holders of such debt, we would be prohibited from repurchasing the notes, which would constitute an event of default under the indenture governing the notes and which could have the consequences described in the preceding risk factor. In addition, some events similar to a change of control constitute events of default under our credit facility and, were any of these events to occur, it would permit the lenders to demand the immediate repayment of all borrowings under our credit facility. Because our credit facility constitutes senior debt with respect to the notes, those lenders would be entitled to be paid in full before you would be entitled to receive any payments on the notes or the guarantees. Certain important corporate events, such as leveraged recapitalizations that would increase the level of our indebtedness, would not constitute a change of control under the indenture. See “Description of the Notes — Repurchase at the Option of Holders — Change of Control.”

Our credit facility is secured by 100% of the equity interests we own of each of our subsidiaries, as well as all of the tangible and intangible assets of us and substantially all of our subsidiaries, other than real property acquired after the date of the credit facility and equipment. The lenders may, under certain circumstances, also require that we pledge such real estate and equipment as collateral. The fact that we have pledged substantially all of our assets to secure amounts due under our credit facility effectively prevents us from obtaining secured financing in the future, which may limit our access to capital. Moreover, following a default under our credit facility, the lenders would be entitled to realize upon the collateral, which could prevent us from continuing to operate our business.

There is no established trading market for the new notes. Although the initial purchasers of the outstanding notes have informed us that they currently intend to make a market in the new notes, they have no obligation to do so and may discontinue making a market at any time without notice. We do not intend to apply for listing of the new notes on any securities exchange or for quotation through The Nasdaq National Market. The liquidity of any market for the new notes will depend upon the number of holders of the new notes, our performance, the market for similar securities, the interest of securities dealers in making a market in the new notes and other factors relating to us. A liquid trading market may not develop for the new notes.

This prospectus and the documents incorporated or deemed to be incorporated by reference herein include forward-looking statements. These statements may be identified by the use of forward-looking terminology such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “potential,” “predict,” “should,” or “will,” or the negative thereof or other variations thereon or comparable terminology. In particular, statements about our expectations, beliefs, plans, objectives, assumptions or future events or performance contained in this prospectus or in the documents incorporated or deemed to be incorporated by reference herein, including certain statements under the headings “Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business,” are forward-looking statements.

We have based these forward-looking statements on our expectations, assumptions, estimates and projections. While we believe these expectations, assumptions, estimates and projections are reasonable, such forward-looking statements are only predictions and involve assumptions and known and unknown risks and uncertainties, many of which are beyond our control. These and other important factors, including those discussed in this prospectus under the headings “Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business” or in the documents incorporated or deemed to be incorporated by reference herein, may cause our actual results, performance or achievements to differ materially from any future results, performance or achievements expressed or implied by these forward-looking statements. Some of the factors that could cause actual results to differ from our expectations are:


	•	our ability to implement successfully sales growth initiatives at the O’Charley’s concept and to reverse decreases in same store sales;

	•	the possible adverse effect on our sales of any decrease in consumer spending;

	•	the effect of increased competition;

	•	the effect that any increases in food, labor and other expenses, including those associated with our sales growth initiatives, may have on our results of operations;

	•	the adverse effect that the Hepatitis A incidents discussed under “Risk Factors — A recent outbreak of Hepatitis A affecting customers and employees of a Knoxville, Tennessee O’Charley’s restaurant has adversely affected our customer traffic, negatively impacted our results of operations and resulted in litigation against us, and we may be further impacted by another outbreak of Hepatitis A linked to restaurants in Georgia, including two O’Charley’s restaurants,” and any resulting litigation, will have on our results of operations and financial position;

	•	our ability to integrate successfully the recent Ninety Nine Restaurant and Pub acquisition; and

	•	the other risks described in our Annual Report on Form 10-K/A for the fiscal year ended December 29, 2002 and in this prospectus under the heading “Risk Factors.”

Given these risks and uncertainties, you are cautioned not to rely on such forward-looking statements. The forward-looking statements included in this prospectus are made only as of the date hereof and the forward-looking statements included in documents incorporated or deemed to be incorporated by reference herein are made only as of the respective dates of those documents. We do not undertake and specifically decline any obligation to update any such statements or to publicly announce the results of any revisions to any such statements to reflect future events or developments.

The information in this prospectus and the documents incorporated or deemed to be incorporated by reference herein concerning the restaurant and consumer food industries (including the amount of sales and sales growth in those industries and particular segments of those industries) and similar matters is derived principally from publicly available information, industry publications, market research firms and similar sources. Although we believe that this information is reliable, we have not independently verified any of this information and we cannot assure you that it is accurate.

You should rely only on the information contained in or incorporated by reference in this prospectus and in the accompanying letter of transmittal. We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus is accurate only as of the date on the front cover of this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date.

This prospectus incorporates by reference important business and financial information about us that is not included in or delivered with this prospectus. See “Where You Can Find Additional Information” and “Incorporation of Information by Reference.”

In connection with the issuance of the outstanding notes, we entered into a registration rights agreement with the initial purchasers of the outstanding notes. The following description of the registration rights agreement is a summary only. It is not complete and does not describe all of the provisions of the registration rights agreement. For more information, you should review the provisions of the registration rights agreement that we filed with the Securities and Exchange Commission as an exhibit to the registration statement of which this prospectus is a part.

Under the registration rights agreement, we agreed that, promptly after the effectiveness of the registration statement of which this prospectus is a part, we would offer to the holders of outstanding notes who are not prohibited by any law or policy of the Securities and Exchange Commission from participating in the exchange offer, the opportunity to exchange their outstanding notes for a new series of notes, which we refer to as the new notes, that are identical in all material respects to the outstanding notes, except that the new notes do not contain transfer restrictions, have been registered under the Securities Act and are not subject to further registration rights. We and our subsidiary guarantors have agreed to keep the exchange offer open for not less than 20 business days, or longer if required by applicable law, after the date on which notice of the exchange offer is mailed to the holders of the outstanding notes.


	•	we and our subsidiary guarantors are not permitted to consummate the exchange offer because the exchange offer is not permitted by applicable law or Securities and Exchange Commission policy;

	•	we are unable to cause the exchange offer to be consummated on or before the 210th day after the date the notes were originally issued;

	•	any holder of transfer restricted securities notifies us on or prior to the 30th day following consummation of the exchange offer that:


	•	it is prohibited by law or Securities and Exchange Commission policy from participating in the exchange offer; or

	•	that it may not resell the new notes acquired by it in the exchange offer to the public without delivering a prospectus and the prospectus contained in the registration statement of which this prospectus is a part is not appropriate or available for such resales; or

	•	that it is a broker-dealer and owns outstanding notes acquired directly from us or one of our affiliates,

then we and the subsidiary guarantors have agreed to file with the Securities and Exchange Commission a shelf registration statement to cover resales of the outstanding notes or the new notes, or both, as the case may be, by the holders thereof who satisfy certain conditions relating to the provision of information in connection with the shelf registration statement.

We and our subsidiary guarantors will use our reasonable best efforts to cause the applicable registration statement to be declared effective by the Commission by the 60th day after we become obligated to make the filing.

For purposes of the foregoing, a transfer restricted security is each outstanding note until the earliest of:


	•	the date on which such outstanding note has been exchanged by a person other than a broker-dealer for a new note in the exchange offer;

	•	following the exchange by a broker-dealer in the exchange offer of an outstanding note for a new note, the date on which such new note is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of this prospectus;


	•	the date on which such outstanding note has been effectively registered under the Securities Act and disposed of in accordance with the shelf registration statement;

	•	the date on which such outstanding note is distributed to the public pursuant to Rule 144 under the Securities Act; or

	•	the date on which such note ceases to be outstanding.


	•	unless the exchange offer would not be permitted by applicable law or Securities and Exchange Commission policy, we and our subsidiary guarantors will commence the exchange offer and use our reasonable best efforts to issue on or prior to the 210th day after the date the notes were originally issued new notes in exchange for all outstanding notes tendered prior thereto in the exchange offer; and

	•	if obligated to file a shelf registration statement, we will use our reasonable best efforts to file the shelf registration statement with the Securities and Exchange Commission on or prior to 30 days after such filing obligation arises and to cause the shelf registration to be declared effective by the Securities and Exchange Commission on or prior to 60 days after such obligation arises.


	•	we and our subsidiary guarantors fail to file any of the registration statements required by the registration rights agreement on or before the date specified for such filing; or

	•	any of such registration statements is not declared effective by the Securities and Exchange Commission on or prior to the date specified for such effectiveness, also known as the effectiveness target date; or

	•	we and our subsidiary guarantors fail to consummate the exchange offer by the 210th day after the date the notes were originally issued; or

	•	the shelf registration statement or the registration statement of which this prospectus is a part is declared effective but thereafter ceases to be effective or usable in connection with resales of transfer restricted securities during the periods specified in the registration rights agreement,

then a registration default shall be deemed to have occurred and we and our subsidiary guarantors will pay liquidated damages to each holder of outstanding notes, with respect to the first 90-day period immediately following the occurrence of the first registration default in an amount equal to a per annum rate of 0.25% on the principal amount of outstanding notes held by such holder. The amount of the liquidated damages will increase by an additional per annum rate of 0.25% with respect to each subsequent 90-day period until all registration defaults have been cured, up to a maximum amount of liquidated damages for all registration defaults of 1.00% per annum on the principal amount of outstanding notes constituting transfer restricted securities.

All accrued liquidated damages will be paid by us and our subsidiary guarantors on each damages payment date to the global note holder by wire transfer of immediately available funds or by federal funds check and to holders of certificated notes by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified.

Following the cure of all registration defaults, the accrual of liquidated damages will cease. Holders of outstanding notes will be required to make certain representations to us in order to participate in the exchange offer and will be required to deliver certain information to be used in connection with the shelf registration statement and to provide comments on the shelf registration statement within the time periods set forth in the registration rights agreement in order to have their outstanding notes included in the shelf registration statement and benefit from the provisions regarding liquidated damages set forth above.

By acquiring transfer restricted securities, a holder will be deemed to have agreed to indemnify us and our subsidiary guarantors against certain losses arising out of information furnished by such holder in

Based on no action letters of the Securities and Exchange Commission staff issued to third parties, we believe that new notes may be offered for resale, resold and otherwise transferred by you without further compliance with the registration and prospectus delivery provisions of the Securities Act if:


	•	the new notes are acquired in the ordinary course of your business;

	•	you have no arrangement or understanding with any person to participate in and are not engaged in, and do not intend to engage in, a distribution of the new notes; and

	•	you are not our affiliate (within the meaning of Rule 405 under the Securities Act) or a broker-dealer that acquired outstanding notes directly from us for its own account.

The Securities and Exchange Commission, however, has not considered the exchange offer for the new notes in the context of a no action letter, and the Securities and Exchange Commission may not make a similar determination as in the no action letters issued to these third parties.

If you tender outstanding notes in the exchange offer with the intention of participating in any manner in a distribution of the new notes or otherwise do not satisfy the foregoing criteria, you


	•	cannot rely on the interpretations by the Securities and Exchange Commission staff discussed above;

	•	will not be able to exchange your outstanding notes for new notes in the exchange offer; and

	•	must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a resale of the outstanding notes, unless the resale is made pursuant to an exemption from, or is otherwise not subject to, those requirements.

Unless an exemption from registration is otherwise available, any security holder intending to distribute new notes should be covered by an effective registration statement under the Securities Act. This registration statement should contain the selling security holder’s information required by Item 507 of Regulation S-K under the Securities Act. This prospectus may be used for an offer to resell, resale or other transfer of new notes only as specifically described in this prospectus. Only broker-dealers that acquired the outstanding notes as a result of market-making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives new notes for its own account in exchange for outstanding notes, where such outstanding notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge in the letter of transmittal that it will deliver a prospectus in connection with any resale of the new notes. Please read the section captioned “Plan of Distribution” for more details regarding the transfer of new notes.

Subject to the terms and conditions described in this prospectus and in the letter of transmittal, we will accept for exchange any outstanding notes properly tendered and not withdrawn prior to 5:00 p.m., Eastern time, on the expiration date. We will issue new notes in principal amount equal to the principal amount of outstanding notes surrendered in the exchange offer. Outstanding notes may be tendered only for new notes and only in integral multiples of $1,000.

The exchange offer is not conditioned upon any minimum aggregate principal amount of outstanding notes being tendered for exchange.

As of the date of this prospectus, $125.0 million in aggregate principal amount of the outstanding notes are outstanding. This prospectus and the letter of transmittal are being sent to all registered holders

We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Securities and Exchange Commission. Outstanding notes that the holders thereof do not tender for exchange in the exchange offer will remain outstanding and continue to accrue interest. These outstanding notes will continue to be entitled to the rights and benefits such holders have under the indenture relating to the notes.

We will be deemed to have accepted for exchange properly tendered outstanding notes when we have given oral or written notice of the acceptance to the exchange agent and complied with the applicable provisions of the registration rights agreement. The exchange agent will act as agent for the tendering holders for the purposes of receiving the new notes from us.

If you tender outstanding notes in the exchange offer, you will not be required to pay brokerage commissions or fees or, subject to the letter of transmittal, transfer taxes with respect to the exchange of outstanding notes. We will pay all charges and expenses in connection with the exchange offer. It is important that you read the section labeled “— Fees and Expenses” for more details regarding fees and expenses incurred in the exchange offer.

We will return any outstanding notes that we do not accept for exchange for any reason to the tendering holder as promptly as practicable after the expiration or termination of the exchange offer.

The exchange offer will expire at 5:00 p.m., Eastern time, on , 2004, unless, in our sole discretion, we extend it.

We expressly reserve the right, at any time or various times, to extend the period of time during which the exchange offer is open. We may delay acceptance of any outstanding notes by giving oral or written notice of such extension to their holders. During any such extensions, all outstanding notes previously tendered will remain subject to the exchange offer, and we may accept them for exchange.

In order to extend the exchange offer, we will notify the exchange agent orally or in writing of any extension. We will publicly notify the registered holders of outstanding notes of the extension, and the number of notes tendered to date, no later than 9:00 a.m., Eastern time, on the business day after the previously scheduled expiration date.

If any of the conditions described below under “— Conditions to the Exchange Offer” have not been satisfied, we reserve the right, in our sole discretion


	•	to delay accepting for exchange any outstanding notes,

	•	to extend the exchange offer, or

	•	to terminate the exchange offer,

by giving oral or written notice of such delay, extension or termination to the exchange agent. Subject to the terms of and the approvals required under the registration rights agreement, we also reserve the right to amend the terms of the exchange offer in any manner. We will not delay payment of accepted outstanding notes after the expiration of the exchange offer other than in anticipation of our receipt of any necessary government approvals.

Any such delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by public notice thereof to the registered holders of outstanding notes. If we amend the exchange offer in a manner that we determine to constitute a material change, we will promptly disclose

We will not be required to accept for exchange, or exchange any new notes for, any outstanding notes if as a result of any change in law or applicable interpretations thereof by the staff of the Securities and Exchange Commission, we determine upon advice of our outside counsel that we are not permitted to effect the exchange offer as described in this prospectus.

In addition, we will not be obligated to accept for exchange the outstanding notes of any holder that has not made to us the representations described under “— Procedures for Tendering,” “— Your Representations to Us” and “Plan of Distribution” and such other representations as may be reasonably necessary under applicable Securities and Exchange Commission rules, regulations or interpretations to allow us to use an appropriate form to register the new notes under the Securities Act.

We expressly reserve the right to extend, amend or terminate the exchange offer, and to reject for exchange any outstanding notes not previously accepted for exchange, upon the failure to be satisfied of any of the conditions to the exchange offer specified herein or in the letter of transmittal. We will give oral or written notice of any extension, amendment, non-acceptance or termination to the holders of the outstanding notes as promptly as practicable.

These conditions are for our sole benefit, and we may assert them or waive them in whole or in part at any time or at various times in our sole discretion prior to the expiration of the exchange offer. If we fail at any time to exercise any of these rights, this failure will not mean that we have waived our rights. Each such right will be deemed an ongoing right that we may assert at any time or at various times.

In addition, we will not accept for exchange any outstanding notes tendered, and will not issue new notes in exchange for any such outstanding notes, if at such time any stop order has been threatened or is in effect with respect to the registration statement of which this prospectus is a part or the qualification of the indenture relating to the notes under the Trust Indenture Act of 1939.

Only a holder of outstanding notes may tender such outstanding notes in the exchange offer. To tender in the exchange offer, a holder must:


	•	complete, sign and date the letter of transmittal, or a facsimile of the letter of transmittal;

	•	have the signature on the letter of transmittal guaranteed if the letter of transmittal so requires; and

	•	mail or deliver such letter of transmittal or facsimile to the exchange agent prior to 5:00 p.m., Eastern time, on the expiration date; or

	•	comply with the automated tender offer program procedures of DTC described below.


	•	the exchange agent must receive outstanding notes along with the letter of transmittal;

	•	the exchange agent must receive, prior to 5:00 p.m., Eastern time, on the expiration date, a timely confirmation of book-entry transfer of such outstanding notes into the exchange agent’s account at DTC according to the procedure for book-entry transfer described below or a properly transmitted agent’s message; or

	•	the holder must comply with the guaranteed delivery procedures described below.

To be tendered effectively, the exchange agent must receive any physical delivery of the letter of transmittal and other required documents at its address indicated on the cover page of the letter of transmittal. The exchange agent must receive such documents prior to 5:00 p.m., Eastern time, on the expiration date.

The tender by a holder that is not withdrawn prior to 5:00 p.m., Eastern time, on the expiration date will constitute an agreement between the holder and us in accordance with the terms and subject to the conditions described in this prospectus and in the letter of transmittal.

THE METHOD OF DELIVERY OF OUTSTANDING NOTES, THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT YOUR ELECTION AND RISK. RATHER THAN MAIL THESE ITEMS, WE RECOMMEND THAT YOU USE AN OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE 5:00 P.M., EASTERN TIME, ON THE EXPIRATION DATE. YOU SHOULD NOT SEND THE LETTER OF TRANSMITTAL OR OUTSTANDING NOTES TO US. YOU MAY REQUEST YOUR BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR OTHER NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR YOU.

If you beneficially own outstanding notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender those notes, you should contact the registered holder promptly and instruct it to tender on your behalf. If you are a beneficial owner and wish to tender on your own behalf, you must, prior to completing and executing the letter of transmittal and delivering your outstanding notes, either:


	•	make appropriate arrangements to register ownership of the outstanding notes in your name; or

	•	obtain a properly completed bond power from the registered holder of outstanding notes.

The transfer of registered ownership, if permitted under the indenture for the notes, may take considerable time and may not be completed prior to the expiration date.

You must have signatures on a letter of transmittal or a notice of withdrawal, as described below, guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc.,a commercial bank or trust company having an office or correspondent in the United States, or an “eligible guarantor institution” within the meaning of Rule 17Ad-15 under the Exchange Act. In addition, the entity must be a member of one of the recognized signature guarantee programs identified in the letter of transmittal.

If the letter of transmittal is signed by a person other than the registered holder of any outstanding notes, the outstanding notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holder’s name appears on the outstanding notes. A member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States, or an eligible guarantor institution must guarantee the signature on the bond power.

If the letter of transmittal or any outstanding notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, those persons should so indicate when signing. Unless waived by us, they should also submit evidence satisfactory to us of their authority to deliver the letter of transmittal.

The exchange agent and DTC have confirmed that any financial institution that is a participant in DTC’s system may use DTC’s automated tender offer program to tender. Participants in the program may, instead of physically completing and signing the letter of transmittal and delivering it to the exchange agent, transmit their acceptance of the exchange offer electronically. They may do so by causing DTC to transfer the outstanding notes to the exchange agent in accordance with its procedures for transfer. DTC will then send an agent’s message to the exchange agent.

The term “agent’s message” means a message transmitted by DTC, received by the exchange agent and forming part of the book-entry confirmation, to the effect that:


	•	DTC has received an express acknowledgment from a participant in its automated tender offer program that is tendering outstanding notes that are the subject of such book-entry confirmation;

	•	such participant has received and agrees to be bound by the terms of the letter of transmittal or, in the case of an agent’s message relating to guaranteed delivery, that such participant has received and agrees to be bound by the applicable notice of guaranteed delivery; and

	•	the agreement may be enforced against such participant.

We will determine in our sole discretion all questions as to the validity, form, eligibility, time of receipt, acceptance of tendered outstanding notes and withdrawal of tendered outstanding notes. Our determination will be final and binding. We reserve the absolute right to reject any outstanding notes not properly tendered or any outstanding notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the right to waive any defect, irregularities or conditions of tender as to particular outstanding notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, all defects or irregularities in connection with tenders of outstanding notes must be cured within such time as we shall determine. Although we intend to notify holders of defects or irregularities with respect to tenders of outstanding notes, neither we, the exchange agent nor any other person will incur any liability for failure to give such notification. Tenders of outstanding notes will not be deemed made until such defects or irregularities have been cured or waived. Any outstanding notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned to the tendering holder, unless otherwise provided in the letter of transmittal, as soon as practicable following the expiration date.

In all cases, we will issue new notes for outstanding notes that we have accepted for exchange in the exchange offer only after the exchange agent timely receives:


	•	outstanding notes or a timely book-entry confirmation of such outstanding notes into the exchange agent’s account at DTC; and

	•	a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent’s message.

If we do not accept any tendered outstanding notes for exchange or if outstanding notes are submitted for a greater principal amount than the holder desires to exchange, the unaccepted or non-exchanged outstanding notes will be returned to their tendering holder. In the case of outstanding notes tendered by book-entry transfer in the exchange agent’s account at DTC according to the procedures described below, such non-exchanged outstanding notes will be credited to an account maintained with DTC. These actions will occur promptly after the expiration or termination of the exchange offer.

By signing or agreeing to be bound by the letter of transmittal, you will represent to us that, among other things:


	•	you are not our affiliate (as defined in Rule 144 of the Securities Act);

	•	you are not engaged in, and do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the new notes to be issued in the exchange offer;

	•	you are acquiring the new notes in your ordinary course of business; and

	•	if you are a broker-dealer, you will receive new notes for your own account in exchange for outstanding notes that were acquired as a result of market-making activities or other trading activities and you will comply with the registration and prospectus delivery requirement of the Securities Act in connection with any resale of the new notes.

The exchange agent will establish an account with respect to the outstanding notes at DTC for purposes of the exchange offer promptly after the date of this prospectus. Any financial institution participating in DTC’s system may make book-entry delivery of outstanding notes by causing DTC to transfer such outstanding notes into the exchange agent’s account at DTC in accordance with DTC’s procedures for transfer. Holders of outstanding notes who are unable to deliver confirmation of the book-entry tender of their outstanding notes into the exchange agent’s account at DTC or all other documents required by the letter of transmittal to the exchange agent on or prior to 5:00 p.m., Eastern time, on the expiration date must tender their outstanding notes according to the guaranteed delivery procedures described below.

If you wish to tender your outstanding notes but your outstanding notes are not immediately available or you cannot deliver your outstanding notes, the letter of transmittal or any other required documents to the exchange agent or comply with the applicable procedures under DTC’s automated tender offer program prior to the expiration date, you may tender if:


	•	the tender is made through a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States, or an eligible guarantor institution;

	•	prior to the expiration date, the exchange agent receives from such member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., commercial bank or trust company having an office or correspondent in the United States, or eligible guarantor institution either a properly completed and duly executed notice of guaranteed delivery by facsimile transmission, mail or hand delivery or a properly transmitted agent’s message and notice of guaranteed delivery:


	•	setting forth your name and address, the registered number(s) of your outstanding notes and the principal amount of outstanding notes tendered,

	•	stating that the tender is being made thereby, and

	•	guaranteeing that, within three New York Stock Exchange trading days after the expiration date, the letter of transmittal or facsimile thereof, together with the outstanding notes or a book-entry confirmation, and any other documents required by the letter of transmittal will be deposited by the eligible guarantor institution with the exchange agent; and


	•	the exchange agent receives such properly completed and executed letter of transmittal or facsimile thereof, as well as all tendered outstanding notes in proper form for transfer or a book-entry


		confirmation, and all other documents required by the letter of transmittal, within three New York Stock Exchange trading days after the expiration date.

Upon request to the exchange agent, a notice of guaranteed delivery will be sent you if you wish to tender your outstanding notes according to the guaranteed delivery procedures described above.

Except as otherwise provided in this prospectus, you may withdraw your tender at any time prior to 5:00 p.m., Eastern time, on the expiration date.


	•	the exchange agent must receive a written notice of withdrawal at the address indicated on the cover page of the letter of transmittal, or

	•	you must comply with the appropriate procedures of DTC’s automated tender offer program system.


	•	specify the name of the person who tendered the outstanding notes to be withdrawn, and

	•	identify the outstanding notes to be withdrawn, including the principal amount of such withdrawn outstanding notes.

If outstanding notes have been tendered under the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTC to be credited with withdrawn outstanding notes and otherwise comply with the procedures of DTC.

We will determine all questions as to the validity, form, eligibility and time of receipt of notice of withdrawal. Our determination shall be final and binding on all parties. We will deem any outstanding notes so withdrawn not to have been validly tendered for exchange for purposes of the exchange offer.

Any outstanding notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder without cost to the holder. In the case of outstanding notes tendered by book-entry transfer into the exchange agent’s account at DTC according to the procedures described above, such outstanding notes will be credited to an account maintained with DTC for the outstanding notes. This return or crediting will take place as soon as practicable after withdrawal, rejection of tender or termination of the exchange offer. You may retender properly withdrawn outstanding notes by following one of the procedures described under “— Procedures for Tendering” above at any time on or prior to the expiration date.

We will bear the expenses of soliciting tenders. The principal solicitation is being made by mail; however, we may make additional solicitation by facsimile, telephone, electronic mail or in person by our officers and regular employees and those of our affiliates.

We have not retained any dealer-manager in connection with the exchange offer and will not make any payments to broker-dealers or others soliciting acceptances of the exchange offer. We will, however, pay the exchange agent reasonable and customary fees for its services and reimburse it for its related reasonable out-of-pocket expenses.

We will pay the cash expenses to be incurred in connection with the exchange offer. They include:


	•	Securities and Exchange Commission registration fees;

	•	fees and expenses of the exchange agent and trustee;

	•	our accounting and legal fees and printing costs;


	•	reasonable fees and disbursements of counsel for the initial purchasers of the outstanding notes incurred in connection with the registration statement of which this prospectus is a part and, in the event of any shelf registration statement, reasonable fees and disbursements of one firm or counsel designated by the holders of a majority of the aggregate principal amount of the outstanding notes to act as counsel for the holders in connection with the shelf registration statement; and

	•	related fees and expenses.

You will not be obligated to pay any transfer taxes in connection with the tender of outstanding notes unless you instruct us to register new notes in the name of, or request that outstanding notes not tendered or accepted in the exchange offer be returned to, a person other than the registered tendering holder. In those cases, you will be responsible for the payment of any applicable transfer taxes.

If you do not exchange new notes for your outstanding notes under the exchange offer, you will remain subject to the existing restrictions on transfer of the outstanding notes. In general, you may not offer or sell the outstanding notes unless they are registered under the Securities Act, or unless the offer or sale is exempt from the registration requirements under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the outstanding notes under the Securities Act.

We will record the new notes in our accounting records at the same carrying value as the outstanding notes. This carrying value is the aggregate principal amount of the outstanding notes less any bond discount, as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes in connection with the exchange offer.

Participation in the exchange offer is voluntary, and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take.

We may in the future seek to acquire untendered outstanding notes in open market or privately negotiated transactions, through subsequent exchange offers or otherwise. We have no present plans to acquire any outstanding notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered outstanding notes.

We will not receive any proceeds from the issuance of the new notes. We are making this exchange offer solely to satisfy our obligations under our registration rights agreement. In consideration for issuing the new notes as contemplated by this prospectus, we will receive outstanding notes in a like principal amount. The form and terms of the new notes are identical in all respects to the form and terms of the outstanding notes, except the new notes have been registered under the Securities Act and will not contain restrictions on transfer or registration rights. Outstanding notes surrendered in exchange for the new notes will be retired and canceled and will not be reissued. Accordingly, the issuance of the new notes will not result in any change in our outstanding indebtedness.

The following table sets forth our consolidated capitalization as of October 5, 2003 on an actual basis and on a pro forma, as adjusted basis to give effect to:


	•	the issuance of the outstanding notes and our receipt of the net proceeds therefrom,

	•	the completion of three sale and lease-back transactions, as described in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” that generated aggregate gross proceeds of $71.2 million,

	•	the effectiveness of the amendment and restatement of our credit facility in connection with the issuance of the outstanding notes, and

	•	the application of the proceeds from the offering of the outstanding notes and the sale and lease-back transactions to repay approximately $189.8 million of the outstanding indebtedness under our credit facility and to pay fees and expenses incurred in connection with the offering of the outstanding notes the sale and lease-back transactions and the amendment and restatement of our credit facility,

as if those transactions had occurred as of October 5, 2003. You should read the following table in conjunction with the information contained in “Use of Proceeds,” “Selected Consolidated Financial Information,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Description of the Notes,” and “Description of Certain Indebtedness” included elsewhere in this prospectus and the financial statements incorporated by reference in this prospectus.

As of December 29, 2002, on a pro forma basis giving effect to our acquisition of Ninety Nine as if that transaction had occurred as of that date, we would have been a party to operating leases requiring future minimum operating lease payments of approximately $270.6 million. In addition, the new leases that we have entered into in connection with the lease-back transactions described under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” will require us to make additional future minimum lease payments aggregating approximately $119.4 million over the 20 year term of the leases, or an average of approximately $6.0 million annually. The new leases also provide for the payment of additional rent beginning in the sixth year of the lease term based upon increases in the Consumer Price Index. We expect to enter into one or more additional sale and lease-back transactions totaling aggregate gross proceeds of approximately $14.0 million before the end of the first fiscal quarter of 2004. We cannot assure you that these proposed sale and lease-back transactions will be completed or, if

Our board of directors has approved the repurchase of up to $25.0 million of our common stock. Any repurchases may be made from time to time in open market transactions or privately negotiated transactions at our discretion. We intend to fund any share repurchases with borrowings under our credit facility. The pro forma, as adjusted amounts presented above do not reflect the impact of any such repurchases.

The selected consolidated financial data presented below under the captions “Statement of Earnings Data” and “Balance Sheet Data” for, and as of the end of, each of the fiscal years in the five-year period ended December 29, 2002, are derived from our consolidated financial statements, which consolidated financial statements have been audited by KPMG LLP, independent auditors. The audit report covering the December 29, 2002 consolidated financial statements refers to a change in accounting for goodwill and other intangible assets. The selected consolidated financial data presented below under the captions “Statement of Earnings Data” and “Balance Sheet Data” for, and as of the end of, the forty-week periods ended October 6, 2002 and October 5, 2003 are derived from our unaudited consolidated financial statements. The unaudited consolidated financial statements include all adjustments, consisting of normal recurring items, which our management considers necessary for a fair presentation of our financial position and results of operations for these periods. The financial condition and results of operations for the forty weeks ended October 5, 2003 do not purport to be indicative of the financial condition or results of operations to be expected as of and for the fiscal year ending December 28, 2003. The selected data should be read in conjunction with our consolidated financial statements, the consolidated financial statements of Ninety Nine Restaurant and Pub and the pro forma financial statements relating to our acquisition of the Ninety Nine Restaurant and Pub concept, including, in each case, the notes thereto, and with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this prospectus or in the documents incorporated by reference herein. We acquired the Ninety Nine Restaurant and Pub concept on such date. Accordingly, the results of operations of Ninety Nine are included in our consolidated results of operations only since January 27, 2003. All of the fiscal years shown below had 52 weeks, except 2000, which had 53 weeks. As a result, some of the variations reflected in the following data may be attributed to the different lengths of the fiscal years.


(1)	In May 2000, we acquired two Stoney River restaurants and all associated trademarks and intellectual property for approximately $15.8 million in a cash transaction accounted for as a purchase. Accordingly, the results of operations of the two Stoney River restaurants have been included in our consolidated results of operations since the date of acquisition.

(2)	On January 27, 2003, we acquired Ninety Nine for $116.0 million in cash and 2,352,941 shares of our common stock. Accordingly, the results of operations of Ninety Nine are included in our consolidated results of operations only since January 27, 2003.

(3)	During the first quarter of 1999, we adopted Statement of Position 98-5 “Reporting on the Costs of Start-Up Activities,” which requires that restaurant preopening costs be expensed rather than capitalized. Previously, we capitalized restaurant preopening costs and amortized these amounts over one year from the opening of each restaurant. The depreciation and amortization expense recorded in 1998 included preopening cost amortization of $2.9 million. For subsequent years, the depreciation and amortization line item does not include amortization of preopening costs. We incurred a pre-tax charge of $2.1 million, or $1.3 million net of tax, in the first quarter of 1999 as a result of this change in accounting principle.

(4)	During the third quarter of 2001, we decided to close certain restaurant locations. As a result, we recorded a non-cash charge of $5.0 million pursuant to the provisions of Statement of Financial Accounting Standards No. 121, “Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of” to reflect the differences between the fair value and net book value of the assets and a charge of $800,000 for exit costs associated with the closure of such locations.


(5)	We incurred an after-tax charge of $6.1 million, which was recorded as a cumulative effect of a change in accounting principle, as of the beginning of 2002 associated with the adoption of Statement of Financial Accounting Standards No. 142 “Goodwill and Other Intangible Assets.” The charge was related to the goodwill associated with the Stoney River acquisition in May 2000. See note 1 to our consolidated financial statements for the fiscal year ended December 29, 2002 incorporated herein by reference for data as to pro forma net earnings for 2000 as if SFAS No. 142 had been adopted at the beginning of 2000.

(6)	For the purpose of calculating the ratio of earnings to fixed charges, earnings are defined as net earnings before income taxes, plus fixed charges, less capitalized interest. Fixed charges are defined as interest expensed and capitalized, plus amortization of premiums, discounts and capitalized expenses related to indebtedness, plus an estimate of the interest within rent expense.

(7)	EBITDA represents earnings before cumulative effect of change in accounting principle before interest expense, income taxes, and depreciation and amortization. EBITDA is presented because we believe that it is a useful indicator of our liquidity. EBITDA, subject to certain adjustments, is also used as a measure in certain covenants in our credit facility and the indenture governing the notes. EBITDA should not be considered as a measure of liquidity under accounting principles generally accepted in the United States of America, and the items excluded from EBITDA are significant components in understanding and assessing liquidity. EBITDA should not be considered in isolation or as an alternative to cash flows generated by operating, investing or financing activities or other financial statement data presented in our consolidated financial statements as an indicator of liquidity. EBITDA, as presented, may not be comparable to similarly titled measures of other companies.


	The following table reconciles EBITDA, as presented above, to cash flows provided by operating activities as reflected in our consolidated statements of cash flows:


(8)	Our working capital historically has had current liabilities in excess of current assets as a result of cash reinvestments in long-term assets, mostly property and equipment additions.

The following unaudited pro forma condensed consolidated statements of earnings for the year ended December 29, 2002 and the 40 weeks ended October 5, 2003 give effect to the acquisition of Ninety Nine as if it had occurred on December 31, 2001.

The purchase price for the acquisition of Ninety Nine was $116.0 million in cash and approximately 2.35 million shares of our common stock. The aggregate purchase price for Ninety Nine of $160.9 million for purposes of the unaudited pro forma condensed consolidated financial information includes the value of approximately 2.35 million shares of our common stock issued or to be issued in the acquisition, and transaction fees and other costs directly related to the acquisition. The $41.1 million value of the approximately 2.35 million shares issued or to be issued was determined for accounting purposes by using the average market price of our common stock two days before, the day of and two days after the date the acquisition agreements were signed, in accordance with Emerging Issues Task Force Consensus No. 99-12, “Determination of the Measurement Date for the Market Price of Acquirer Securities Issued in a Purchase Business Combination.”

The following table sets forth the allocation of the purchase price we paid in the Ninety Nine acquisition in accordance with SFAS No. 141. The information set forth below is management’s preliminary purchase price allocation, and is subject to final fair value allocations:

The pro forma adjustments were applied to the respective historical financial statements to reflect and account for the acquisition using the purchase method of accounting. The aggregate purchase price of Ninety Nine has been allocated to the tangible and intangible assets acquired and liabilities assumed based on their estimated respective fair values.

In connection with the acquisition of Ninety Nine, we entered into our credit facility, which, prior to its amendment and restatement in connection with the issuance of the outstanding notes, included a revolving credit facility in the maximum principal amount of $200 million and a term loan in the original principal amount of $100 million. In connection with the transaction financing, we paid fees of $3.7 million at the closing of the acquisition.

The pro forma adjustments as reflected in the unaudited pro forma condensed consolidated financial information are based upon available information and are subject to a number of estimates, assumptions and uncertainties. The pro forma financial information does not purport to be indicative of the operating results or financial position that would have been achieved had the acquisition been consummated on the date indicated and should not be construed as representative of future operating results or financial position. The pro forma financial information should be read in conjunction with our historical financial statements and the historical financial statements of Ninety Nine included and incorporated by reference in this prospectus.


(1)	This adjustment reflects the elimination of amounts related to restaurants not acquired.

(2)	At the time of the acquisition, we entered into a lease transaction with one of the prior owners of Ninety Nine who is not active in the ongoing operations. The lease is for office and warehouse space in Woburn, Massachusetts and has a term of five years with options and an annual base rent of $300,000. This adjustment reflects (a) the additional $300,000 of rent; (b) the elimination of $349,000 of restaurant operating costs related to restaurants not acquired; and (c) the elimination of $973,000 of amortization of deferred sale and lease-back gain related to Ninety Nine.

(3)	This adjustment reflects (a) the elimination of $159,000 of advertising, general and administrative expenses related to restaurants not acquired; (b) the elimination of expenses related to the Ninety Nine phantom stock plan as this plan was terminated at the acquisition date; and (c) payment of $1.0 million per year for four years to certain Ninety Nine employees pursuant to a deferred compensation arrangement entered into concurrent with the acquisition.

(4)	This adjustment reflects the elimination of $75,000 of depreciation expense related to restaurants and properties not acquired. In addition, our fair value estimate for acquired property, plant and equipment is not substantially different from the historical net book value recorded by Ninety Nine. The historical financial information for Ninety Nine utilizes essentially the same classification and useful lives for property, plant and equipment that we use. Accordingly, no adjustment to depreciation expense has been made for adjustments to fair values or useful lives of the property, plant and equipment acquired.

(5)	This adjustment eliminates an impairment charge for a Ninety Nine restaurant that we did not purchase.

(6)	This adjustment reflects the incremental increase in interest expense associated with the (i) pro forma interest expense calculated using an assumed interest rate on our credit facility of 4.5% per annum on the $200 million revolver portion and 5.7% per annum on the $100 million term loan portion, (ii) the elimination of the interest expense associated with a prior credit facility, and (iii) the amortization of the incremental deferred financing costs per year associated with our credit facility.

(7)	This adjustment reflects the combined tax expense based on our effective tax rate of 34.75% and tax structure.

(8)	The adjustment in the number of shares outstanding reflects the shares issued or committed to be issued in the acquisition. We issued approximately 941,000 shares at closing and will issue the remaining approximately 1.4 million shares over the next five years. The number of shares to be issued are not contingent on any future event other than the passage of time.


(1)	We acquired Ninety Nine on January 27, 2003. The adjustments in this column are made on a pro forma basis to reflect our acquisition of Ninety Nine.

(2)	Adjusted to reflect the results of Ninety Nine from December 30, 2002 through January 26, 2003, exclusive of amounts related to restaurants not acquired and giving effect to adjustments related to lease transactions related to the Ninety Nine transaction and employee compensation plans, as more fully described in the notes to the Unaudited Pro Forma Condensed Consolidated Statement of Earnings for the Year Ended December 29, 2002.

(3)	Adjusted to reflect the additional interest expense, assuming an interest rate of 5.3% per annum, that we would have incurred associated with the additional borrowings needed to finance the purchase of Ninety Nine.

(4)	This adjustment reflects the combined tax expense based on our effective tax rate of 33.1% and tax structure.

(5)	The adjustment in the number of shares outstanding reflects the shares issued or committed to be issued in the acquisition. We issued approximately 941,000 shares at closing and will issue the remaining approximately 1.4 million shares over the next five years. The number of shares to be issued are not contingent on any future event other than the passage of time.

At December 28, 2003, we operated 206 O’Charley’s restaurants in Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Ohio, South Carolina, Tennessee, Virginia and West Virginia, 87 Ninety Nine Restaurant and Pub restaurants in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island and Vermont, and six Stoney River Legendary Steaks restaurants in suburban Atlanta, Georgia, Chicago, Illinois, Louisville, Kentucky and Nashville, Tennessee. O’Charley’s are casual dining restaurants that are intended to appeal to mainstream casual dining customers as well as upscale casual dining and value-oriented customers by offering high-quality, freshly prepared food at moderate prices with friendly and attentive customer service. Ninety Nine restaurants are casual dining restaurants that have earned a reputation for providing high-quality food at moderate prices in a comfortable, relaxed atmosphere. Stoney River restaurants are upscale steakhouses that are intended to appeal to both upscale casual dining and fine dining customers by offering hand-cut, premium mid-western beef along with fresh seafood and other gourmet entrees with attentive service in a warm, friendly and relaxed environment.

On January 27, 2003, we completed the acquisition of Ninety Nine for $116.0 million in cash and approximately 2.35 million shares of our common stock, plus the assumption of certain liabilities. The year to date consolidated results for 2003 include the earnings of Ninety Nine since January 27, 2003.

We operate a commissary in Nashville, Tennessee through which we purchase and distribute a substantial majority of the food products and supplies for our O’Charley’s and Stoney River restaurants and manufacture certain O’Charley’s brand food products for sale to other customers, including retail grocery chains, mass merchandisers and wholesale clubs. In addition, the Nashville commissary operates a USDA-approved and inspected facility at which we cut beef for our O’Charley’s and Stoney River restaurants and a production facility at which we manufacture the signature yeast rolls and salad dressings served in our O’Charley’s restaurants. We also operate a commissary and purchasing operation located in Woburn, Massachusetts through which we purchase and distribute a portion of the food products and supplies for our Ninety Nine restaurants, primarily “center of the plate” items including red meat, poultry and seafood. Our Woburn commissary operates a USDA-approved and inspected facility at which we cut beef for our Ninety Nine restaurants and a production facility at which we prepare the soups, sauces and marinades served in our Ninety Nine restaurants. We believe our commissaries enhance restaurant operations by helping to maintain consistent food quality, ensure reliable distribution services to our restaurants, simplify our restaurant managers’ food cost management responsibilities, and reduce costs through purchasing volumes and operating efficiencies.

The following table reflects changes in the number of restaurants we operated during the periods presented. We acquired Stoney River in May 2000 and acquired Ninety Nine in January 2003.

During the last four weeks of the second fiscal quarter of 2003 and continuing into the first four weeks of the third fiscal quarter of 2003, we experienced average declines in same store sales of 4% to 5% at our O’Charley’s restaurants. During the third quarter of 2003, we implemented certain sales-building initiatives intended to increase our sales at our O’Charley’s restaurants. These initiatives include, among other things, increased advertising and certain menu price reductions designed to increase customer traffic. The sales-building initiatives adversely affected our operating results for the third fiscal quarter of 2003 and we anticipate that they will continue to adversely affect our operating results during at least the remainder of 2003. See “Risk Factors — Risks Related to Our Business — Same store sales at our O’Charley’s restaurants have declined, and initiatives we have implemented at our O’Charley’s restaurants to improve our same store sales have resulted in increased costs and could continue to adversely affect our results of operations.” In addition, our operating results in the third fiscal quarter of 2003 were adversely affected when customers and employees at one of our Knoxville, Tennessee O’Charley’s restaurants were exposed to the Hepatitis A virus, and the negative publicity surrounding this incident has continued to adversely affect customer traffic in our O’Charley’s restaurants in the Knoxville, Tennessee area. See “Risk Factors — Risks Related to Our Business — A recent outbreak of Hepatitis A affecting customers and employees of a Knoxville, Tennessee O’Charley’s restaurant has adversely affected our customer traffic, negatively impacted our results of operations and resulted in litigation against us, and we may be further impacted by another outbreak of Hepatitis A linked to restaurants in Georgia, including two O’Charley’s restaurants.” Based on current trends, we anticipate continuing declines in same store sales at our O’Charley’s concept for the remainder of 2003 and possibly beyond.

During the fourth quarter of 2003, we completed two sale and leaseback transactions. The first transaction, completed on October 17, 2003, involved the sale of 23 of our O’Charley’s restaurant properties for aggregate gross proceeds of approximately $50.0 million. The second transaction, completed on November 7, 2003, involved the sale of five of our O’Charley’s restaurants for aggregate gross proceeds

of approximately $9.1 million. During the first quarter of 2004, we completed a transaction involving the sale of six of our O’Charley’s restaurants for aggregate gross proceeds of approximately $12.1 million. All of these sales were made to an unrelated entity who then leased the properties back to us. The leases that we entered into in connection with these transactions require us to make additional future minimum lease payments aggregating approximately $119.4 million over the 20-year term of the leases, or an average of approximately $6.0 million annually. The leases also provide for the payment of additional rent beginning in the sixth year of the lease term based on increases in the Consumer Price Index. The net proceeds from these transactions were used to pay down indebtedness under our bank credit facility. We expect to enter into additional sale and leaseback transactions totaling aggregate gross proceeds of approximately $14.0 million before the end of the first quarter in 2004. We plan to use the proceeds from any additional sale and leaseback transactions to reduce indebtedness under our bank credit facility.

In the fourth quarter of 2003, we amended and restated our bank credit facility and issued $125.0 million aggregate principal amount of the notes. See “— Liquidity and Capital Resources.” We expect to recognize a charge in the fourth quarter of 2003 of approximately $1.9 million for the unamortized portion of debt issuance costs from our prior revolving credit facility.

In the first quarter of 2002, we recorded a non-cash pretax charge of $9.9 million, $6.1 million net of tax, as a cumulative effect of a change in accounting principle as a result of our evaluation of the goodwill carrying value of the Stoney River reporting unit. We were required to perform this evaluation upon the adoption of a new accounting standard, Statement of Financial Accounting Standards (“SFAS”) No. 142, “Goodwill and Other Intangibles,” that dictates how companies must account for goodwill. We adopted SFAS No. 142 at December 31, 2001 and we determined that the goodwill was impaired based upon our valuation of the fair value of the Stoney River reporting unit and the fair value of its net assets, exclusive of goodwill. The write-off represented the total unamortized goodwill associated with the Stoney River acquisition. Additionally, in accordance with SFAS No. 142, beginning in 2002, we ceased amortizing goodwill.

In 2001, we incurred charges of approximately $5.8 million related to the closing of five O’Charley’s restaurants. These closings were the result of a comprehensive review of the past and expected performance of all O’Charley’s restaurants, taking into consideration the difficult economic environment. We closed one of the five O’Charley’s restaurants in fiscal 2001. We closed three additional O’Charley’s restaurants in fiscal 2002. We closed the fifth O’Charley’s restaurant during the first quarter of 2003.

We have completed our feasibility study on franchising our O’Charley’s concept and are reviewing franchising opportunities. During December 2003, we entered into an exclusive multi-unit development agreement with a third party franchisee to develop and operate up to 15 new O’Charley’s restaurants in Michigan. We intend to enter into additional development agreements to franchise our O’Charley’s restaurant concept in other areas. We will continue to incur legal and administrative expenses during the development stage of this program. The establishment of franchising operations could have an adverse effect on our operating results until such time, if ever, as those operations begin to generate revenues in excess of their related expenses. We anticipate approximately $665,000 in expenses for this program in fiscal 2003, although there can be no assurances that expenses will not exceed this amount.

Following is a description of the components of certain line items from our consolidated results of operations:

Revenues consist of restaurant sales and, to a lesser extent, commissary sales. Restaurant sales include food and beverage sales and are net of applicable state and local sales taxes. Commissary sales represent sales to outside parties consisting primarily of sales of O’Charley’s branded food items, primarily salad dressings, to retail grocery chains, mass merchandisers and wholesale clubs.

Cost of Food and Beverage primarily consists of the costs of beef, poultry, seafood, produce and alcoholic and non-alcoholic beverages. We believe our menus offer a broad selection of menu items and as a result there is not a high concentration of our food costs in any one product category. The overall food cost environment was favorable during 2002, which had a positive effect on our earnings during 2002.

More recently, certain food costs, particularly the cost of red meat, poultry and lettuce, have begun to increase, which has adversely affected our results of operations in 2003 and is expected to continue to do so. Various factors beyond our control, including adverse weather, cause periodic fluctuations in food and other costs. Generally, temporary increases in these costs are not passed on to customers; however, we have in the past generally adjusted menu prices to compensate for increased costs of a more permanent nature, although we cannot assure you that we will be able to do so in the future.

Payroll and Benefits includes payroll and related costs and expenses directly relating to restaurant level activities including restaurant management salaries and bonuses, hourly wages for store level employees, payroll taxes, workers’ compensation, various health, life and dental insurance programs, vacation expense and sick pay. We have an incentive bonus plan that compensates restaurant management for achieving and exceeding certain restaurant level financial targets and performance goals. In 2003, we made improvements to the insurance benefits offered to our hourly employees, which are intended to enable us to attract and retain the most qualified candidates available. These improvements have resulted in an increase to our payroll and related costs and expenses as a percentage of restaurant sales in 2003.

Restaurant Operating Costs includes occupancy and other expenses at the restaurant level, except property and equipment depreciation and amortization. Supplies, rent, supervisory salaries and bonuses, management training salaries, general liability and property insurance, property taxes, utilities, repairs and maintenance, outside services and credit card fees account for the major expenses in this category. During the fourth quarter of 2003, we completed two sale and leaseback transactions. The first transaction, completed on October 17, 2003, involved the sale of 23 of our O’Charley’s restaurant properties for aggregate gross proceeds of approximately $50.0 million. The second transaction, completed on November 7, 2003, involved the sale of five of our O’Charley’s restaurants for aggregate gross proceeds of approximately $9.1 million. During the first quarter of 2004, we completed a transaction involving the sale of six of our O’Charley’s restaurants for aggregate gross proceeds of approximately $12.1 million. All of these sales were made to an unrelated entity who then leased the properties back to us. The leases that we entered into in connection with these transactions require us to make additional future minimum lease payments aggregating approximately $119.4 million over the 20-year term of the leases, or an average of approximately $6.0 million annually. The leases also provide for the payment of additional rent beginning in the sixth year of the lease term based on increases in the Consumer Price Index. The net proceeds from these transactions were used to pay down indebtedness under our bank credit facility. We expect to enter into additional sale and leaseback transactions totaling aggregate gross proceeds of approximately $14.0 million before the end of the first quarter in 2004. We cannot assure you, however, that these proposed sale and lease-back transactions will be completed or, if we do complete these transactions, that their terms will not differ, perhaps significantly, from those reflected in this prospectus. We will incur additional rent expense as a result of the recently completed sale and lease-back transactions and, if completed, the proposed sale and lease-back transactions, which will increase our restaurant operating costs.

Advertising, General and Administrative Expenses includes all advertising and home office administrative functions that support the existing restaurant base and provide the infrastructure for future growth. Advertising, executive management and support staff salaries, bonuses and related expenses, data processing, legal and accounting expenses and office expenses account for the major expenses in this category.

Depreciation and Amortization includes depreciation and amortization on property and equipment calculated on a straight-line basis over an estimated useful life. For periods prior to December 31, 2001, depreciation and amortization also includes amortization of goodwill, which related primarily to the acquisition of Stoney River. In accordance with SFAS No. 142, beginning December 31, 2001, we no longer amortize goodwill.

Pre-opening Costs includes operating costs and expenses incurred prior to a new restaurant opening. The amount of pre-opening costs incurred in any one period includes costs incurred during the period for restaurants opened and under development. Our pre-opening costs may vary significantly from quarter to quarter primarily due to the timing of restaurant openings. Currently, we incur average pre-opening costs of approximately $200,000 for each new O’Charley’s and Stoney River restaurant and approximately $130,000 for each new Ninety Nine restaurant.

The following information should be read in conjunction with “Selected Consolidated Financial Information” and the consolidated financial statements and the related notes included and incorporated by reference in this prospectus. The following table reflects our operating results for the periods indicated as a percentage of total revenues unless specified otherwise.


(1)	As a percentage of restaurant sales.

(2)	Cost of commissary sales as a percentage of commissary sales was 93.5%, 93.9% and 93.8% for fiscal years 2002, 2001 and 2000, respectively. Cost of commissary sales as a percentage of commissary sales was 94.2% and 93.6% for the 40 weeks ended October 5, 2003 and October 6, 2002, respectively.

(3)	See note 1 to our consolidated financial statements for the year ended December 29, 2002 incorporated herein by reference for data as to pro forma net earnings for fiscal 2000 and 2001 as if SFAS No. 142 had been adopted at the beginning of fiscal 2000.

Total Revenues increased $194.6 million, or 51.0%, to $576.0 million for the first 40 weeks of 2003, compared to $381.4 million in the same prior-year period. This increase is primarily attributable to the inclusion of $152.8 million of sales from the operations of the Ninety Nine restaurants since their acquisition on January 27, 2003. Excluding the revenues of the Ninety Nine restaurants, revenues increased $41.8 million, or 11.0%, to $423.2 million. Overall sales for the first 40 weeks of 2003 were less than expected primarily due to a decrease in same store sales at our O’Charley’s restaurants.

O’Charley’s Restaurant Sales increased $36.0 million, or 9.8%, to $402.5 million for the first 40 weeks of 2003, compared with $366.5 million in the same prior-year period. The increase resulted from the net addition of 27 restaurants during the past 12 months, comprised of 29 new restaurants opened and the closure of two restaurants. Same store sales for the comparable O’Charley’s restaurants decreased 2.6% in the first 40 weeks of 2003 as compared to the same prior-year period, due to a 3.3% decline in the number of customers partially offset by an increase in the average check. For the first six weeks of the third quarter, we experienced average declines in same store sales and customer counts of approximately 4%. During the last six weeks of the third quarter, we implemented certain sales-building initiatives designed to increase our sales and customer counts at the O’Charley’s restaurants. These initiatives included, among other things, increased advertising and certain menu price reductions. During the last five weeks of the third quarter, with the support of increased advertising, our customer traffic increased approximately 3.0%, while our check average decreased approximately 4.8%. The check average decrease was the result of a shift in mix from higher-priced entrees to the lower introductory price of certain promotional items and the reduction in price of certain other menu items that resulted in a menu price decrease of approximately 1.0%. In the fourth quarter, we increased the price of certain promotional items and promoted a higher priced combo entree designed to increase our check average while maintaining positive customer counts. Sales at our O’Charley’s restaurants were also adversely affected in the third quarter when customers and employees at one of our O’Charley’s restaurants were exposed to the Hepatitis A virus. See “Risk Factors — Risks Related to Our Business — A recent outbreak of Hepatitis A affecting customers and employees of a Knoxville, Tennessee O’Charley’s restaurant has adversely affected our customer traffic, negatively impacted our results of operation and resulted in litigation against us, and we may be further impacted by another outbreak of Hepatitis A linked to restaurants in Georgia, including two O’Charley’s restaurants,” and “Business — Legal Proceedings.” We believe that the Hepatitis A incident affected sales at our nine Knoxville stores during the third quarter by approximately 50% since the outbreak as compared to the prior year period and affected same store sales for the third quarter by approximately 0.5%. For the first four weeks of the fourth quarter, same store sales in the Knoxville market were down approximately 25% as compared to the prior year period and affected overall same store sales for the O’Charley’s concept by approximately 1%. We expect the negative publicity surrounding the Hepatitis A outbreak to continue to adversely affect sales at our O’Charley’s restaurants for at least the remainder of 2003.

Ninety Nine Restaurant Sales were $152.8 million for the period since its acquisition on January 27, 2003. Same store sales for comparable Ninety Nine restaurants were up 1.7% for the 36 weeks ended October 5, 2003, compared with the same prior-year period.

Stoney River Restaurant Sales increased $5.3 million, or 47.3%, to $16.5 million for the first 40 weeks of 2003, compared to $11.2 million in the same prior-year period. The increase primarily resulted from one new restaurant opened during the past twelve months. Same store sales for the comparable Stoney River restaurants, which represents a base of three restaurants, increased 5.1% in the third quarter of 2003, as compared to the same prior-year period.

Commissary Sales for the first 40 weeks of 2003 increased approximately $500,000 to $4.2 million from $3.7 million for the same prior-year period.

Cost of Food and Beverage increased $56.8 million, or 52.2%, to $165.5 million for the first 40 weeks of 2003 from $108.7 million in the same prior-year period. As a percentage of restaurant sales, cost of food and beverage increased to 28.9% in the first 40 weeks of 2003 from 28.8% in the same prior-year period. The higher food and beverage cost percentage is primarily attributable to an increase in red meat costs, coupled with the promotion of lower priced entrees in the third quarter of 2003 versus the first 40 weeks of 2002. Based on our review of the current market conditions, we anticipate higher commodity costs, particularly red meat, poultry and lettuce costs, for the remainder of fiscal 2003 and thereafter.

Payroll and Benefits for the first 40 weeks of 2003 increased $71.6 million, or 60.6%, to $189.6 million from $118.1 million for the same prior-year period. As a percentage of restaurant sales, payroll and benefits increased to 33.2% for the first 40 weeks of 2003 compared to 31.3% in the same prior-year period. The increase in payroll and benefit costs in the first 40 weeks is primarily attributable to higher

insurance costs for hourly employees, overall higher average wage rates for the Ninety Nine managers and hourly co-workers and lower average weekly sales, which increased the percentage of fixed payroll costs. Partially offsetting these increases was a decrease in restaurant level bonus expense. We implemented enhanced medical insurance for our hourly employees at O’Charley’s in 2003 and believe this investment will improve hourly turnover. These enhancements have resulted in an increase in payroll and related costs and expenses as a percentage of restaurant sales in 2003.

Restaurant Operating Costs for the first 40 weeks of 2003 increased $39.6 million, or 60.7%, to $104.8 million from $65.2 million in the same prior year period. As a percentage of restaurant sales, restaurant operating costs increased to 18.3% for the first 40 weeks of 2003 from 17.3% in the same prior year period. The increase in the first 40 weeks was primarily attributable to the higher base of restaurants that are leased by the Ninety Nine concept, and to higher utilities costs, primarily gas from increased usage due to inclement winter weather in the first quarter of 2003 and rate increases in the first 40 weeks of 2003. Additionally, we incurred approximately $500,000 in expenses in the third quarter of 2003 due to costs associated with our sales building initiatives. These increases were partially offset by lower supervisory bonus expense. The sale and leaseback transactions completed in the fourth quarter of 2003 and first quarter of 2004 will increase rent expense by approximately $4.9 million on an annual basis, which consists of the average annual lease payments of $6.0 million, partially offset by the amortization of the related deferred gain over the lease term. The leases provide for the payment of additional rent beginning in the sixth year of the lease based on increases in the Consumer Price Index. We expect to enter into additional sale and leaseback transactions totaling aggregate gross proceeds of approximately $14.0 million before the end of the first quarter of 2004 which would further increase rent expense in 2004.

Advertising, General and Administrative Expenses increased approximately $13.5 million, or 48.6%, to $41.4 million for the first 40 weeks of 2003 from $27.9 million in 2002. As a percentage of total revenue, advertising, general and administrative expenses decreased to 7.2% in the first 40 weeks of 2003 from 7.3% in the comparable period in 2002. Advertising expenditures were $18.7 million in the first 40 weeks of 2003, an increase of 48.8% from the $12.5 million expended in the same prior-year period. As a percentage of total revenue, advertising decreased to 3.2% from 3.3% in the same prior year period. We intend to spend approximately 3.3% to 3.5% of revenue on advertising for the remainder of 2003. General and administrative expenses were $22.7 million in the first 40 weeks of 2003, an increase of 48.3% from the $15.3 million expended in the same prior-year period. As a percentage of total revenue, general and administrative expenses decreased to 3.9% in the first 40 weeks of 2003 from 4.0% in the same prior-year period. During the first quarter of 2003, we adopted a deferred compensation plan for the senior management of Ninety Nine that increased general and administrative costs. Moreover, we incurred additional organizational costs, primarily in salaries and related expenses, associated with operating multiple concepts, which increased general and administrative expense. Partially offsetting these increases was a decrease in bonus expense.

Depreciation and Amortization increased $8.1 million, or 42.1%, to $27.4 million from $19.3 million in the same prior-year period. As a percentage of total revenues, depreciation and amortization decreased to 4.8% in the first 40 weeks of 2003 from 5.1% in the same prior year period. The decrease in depreciation and amortization expense as a percentage of total revenues in the first 40 weeks of 2003 was primarily attributable to the acquisition of Ninety Nine, which leases all of its restaurants. The sale and leaseback transactions completed in the fourth quarter of 2003 and first quarter of 2004 will reduce depreciation expense by approximately $1.4 million on an annual basis beginning in the fourth quarter of 2003. We expect to enter into additional sale and leaseback transactions totaling aggregate gross proceeds of approximately $14.0 million before the end of the first quarter of 2004 which would further decrease depreciation expense in 2004.

Pre-opening Costs were $5.5 million in the first 40 weeks of 2003, compared to $4.1 million in the same prior-year period. As a percentage of total revenue, pre-opening costs were 1.0% in the first 40 weeks of 2003 compared to 1.1% in the same prior-year period.

Income from Operations for the first 40 weeks of 2003 increased $3.2 million, or 9.2%, to $37.9 million from $34.7 million in the same prior-year period. Our income from operation decreased in the third quarter compared to the same prior-year period. The decrease in income from operations in the third quarter is primarily attributable to the lower same store sales at the O’Charley’s restaurants, costs associated with the O’Charley’s restaurants sales building initiatives and higher overall labor costs. We anticipate that the sales building initiatives will continue to adversely affect income from operations during at least the remainder of 2003. Additionally, we estimate the impact from the Hepatitis A incident was approximately $500,000 in the third quarter, which consists of approximately $300,000 attributable to the loss of income from the affected stores and approximately $200,000 associated with our insurance deductibles. Currently, we estimate that income from operations will be adversely affected by approximately $900,000 to $1.0 million in the fourth quarter of 2003 due to the anticipated continuing impact of the Hepatitis A incident on our O’Charley’s restaurants. We have loss of income insurance that we believe will reimburse us for certain costs and loss of income resulting from the Hepatitis A incident; however, we cannot assure you that our insurance carriers will reimburse us for such costs and losses or the amount of any such reimbursement.

Interest Expense, net increased approximately $6.2 million to $10.4 million for the first 40 weeks of 2003 from $4.2 million in the same prior-year period. Interest expense has increased due to increased borrowings primarily incurred to finance the acquisition of Ninety Nine coupled with higher average interest rates under our credit facility. We expect interest expense to increase beginning in the fourth quarter of 2003 due to higher interest rates associated with the notes, partially offset by lower interest rates and amounts outstanding on the bank credit facility. See “— Liquidity and Capital Resources.”

Earnings before Income Taxes and cumulative effect of change in accounting principle for the first 40 weeks of 2003 decreased $3.0 million, or 9.9%, to $27.5 million from $30.6 million for the same prior year period. We expect to recognize a pre tax charge of approximately $1.9 million during the fourth quarter of 2003 for the unamortized portion of debt issuance costs associated with the repayment of the term loan and the reduced capacity under the revolving credit facility resulting from the amendment and restatement of our bank credit facility in connection with the issuance of the notes. See “— Liquidity and Capital Resources.”

Income Taxes for the first 40 weeks of 2003 decreased $1.5 million, or 14.2%, to $9.1 million from $10.6 million in the same prior year period. Our effective tax rate in 2002 was 34.8%. During the third quarter of 2003, we lowered our expected annual effective tax rate to 33.1% on a year to date basis. This reduction was due to our lower earnings in 2003 coupled with tax credits remaining at expected levels.

Cumulative Effect of Change in Accounting Principle, net of tax was a charge of $6.1 million, or $0.31 per diluted share, for the first 40 weeks of 2002. This was related to our evaluation of the goodwill carrying value of the Stoney River reporting unit in accordance with SFAS No. 142, “Goodwill and Other Intangible Assets.”

Total Revenues in 2002 increased $55.0 million, or 12.4%, to $499.9 million from $444.9 million in 2001 primarily as a result of an increase in restaurant sales of $54.2 million, or 12.3%. The increase in restaurant sales was attributable to the net addition of 21 O’Charley’s restaurants, three new Stoney River restaurants opened in 2002 and a 0.6% same store sales increase for the Stoney River concept, partially offset by a 0.1% same store sales decline at our O’Charley’s restaurants. Our overall check average for the O’Charley’s concept was $11.59 in 2002 compared to $11.28 in 2001. Our customer traffic at our O’Charley’s restaurants decreased approximately 2.6% during fiscal 2002. During the second quarter of 2001, we implemented a value menu promotion at O’Charley’s in response to the slowing economy, which lowered the price of certain entrees. We believe this promotion generated positive customer traffic and lowered our average check in 2001. We believe our customer traffic was lower in 2002, in part, as a result of not having a similar value promotion in 2002. During the third quarter of 2002, we increased menu prices by approximately 3.1% in approximately two-thirds of our O’Charley’s restaurants. During the fourth

quarter of 2002, we introduced a new menu in all of our O’Charley’s restaurants that included a menu price increase of approximately 3.1% for the remaining one-third of our stores that had not taken the menu price increase during the third quarter of 2002. We believe the increase in our check average was the result of the combination of the menu price increase taken in 2002 and the absence of a value promotion in 2002 similar to the one in 2001. Additionally, we believe changes in consumer-spending patterns due to the uncertain U.S. economy and geopolitical environment adversely affected our customer traffic. The increase in same store sales at our Stoney River restaurants resulted from an increase in check average, partially offset by a decrease in customer traffic.

Cost of Food and Beverage in 2002 increased $11.0 million, or 8.5%, to $140.0 million from $129.1 million in 2001. As a percentage of restaurant sales, cost of food and beverage decreased to 28.3% in 2002 from 29.3% in 2001. We attribute the lower food cost percentage in 2002 primarily to an overall reduction in the cost of certain food items and continued improvements in operating efficiencies at our stores and commissary. We experienced lower costs in red meat, pork, poultry and dairy costs, partially offset by increases in certain produce costs.

Payroll and Benefits increased $16.3 million, or 11.8%, to $154.3 million in 2002 from $138.0 million in 2001. Payroll and benefits, as a percentage of restaurant sales, declined to 31.2% in 2002 from 31.3% in 2001. The slight decline was attributable to lower restaurant level bonuses and workers compensation expenses, offset by a modest increase in hourly wage rates and increased salaries for restaurant management in 2002.

Restaurant Operating Costs in 2002 increased $9.5 million, or 12.4%, to $86.3 million from $76.8 million in 2001. Restaurant operating costs, as a percentage of restaurant sales, remained relatively flat at 17.4% in 2002 compared to 2001. In 2002, we experienced higher overall store occupancy and operating costs due primarily to increases in repair and maintenance cost, general liability insurance and credit card fees partially offset by lower utility costs compared to 2001. We also experienced a decrease in supervisory expenses in 2002 as a percentage of total restaurant sales due primarily to lower management training salaries.

Advertising, General and Administrative Expenses increased $7.7 million, or 25.7%, to $37.7 million in 2002 from $30.0 million in 2001. As a percentage of total revenues, advertising, general and administrative expenses increased to 7.5% in 2002 from 6.7% in 2001. Advertising expenditures increased 28.1% to $17.0 million in 2002 from $13.3 million in 2001 and, as a percentage of total revenues, increased to 3.4% in 2002 from 3.0% in 2001. The increase in advertising expenditures was in response to the continued weakness of the U.S. economy. An increase in television costs represented the primary share of the overall increase in advertising expenditures. Stoney River restaurants rely primarily on word-of-mouth to attract new customers rather than media advertising. General and administrative expenses increased 23.9% to $20.7 million in 2002 from $16.7 million in 2001, and as a percentage of total revenues increased to 4.1% in 2002 from 3.8% in 2001. The increase in general and administrative expenses was primarily due to increased bonus expenses and integration costs associated with the acquisition of Ninety Nine partially offset by lower legal costs.

Depreciation and Amortization in 2002 increased $3.4 million, or 15.3%, to $25.5 million in 2002 from $22.1 million in 2001. As a percentage of total revenues, depreciation and amortization increased to 5.1% in 2002 from 5.0% in 2001. The increase in depreciation expense was primarily attributable to new restaurants opened in 2002 and capital expenditures for improvements to existing restaurants, which offset the lack of goodwill amortization in 2002 (see note 1 to our consolidated financial statements for the year ended December 29, 2002 incorporated herein by reference).

Pre-opening Costs in 2002 declined $600,000, or 10.3%, to $5.1 million from $5.7 million in 2001. As a percentage of total revenues, pre-opening costs declined to 1.0% in 2002 from 1.3% in 2001. The decrease in pre-opening costs was primarily attributable to lower average cost per restaurant opening in 2002 versus 2001.

Income from Operations increased $12.8 million, or 38.0%, to $46.5 million in 2002 from $33.7 million in 2001. Excluding the effect of the asset impairment and exit costs recorded in 2001, income from operations increased $7.0 million, or 17.7%, in 2002.

Interest Expense, net decreased $1.1 million in 2002 to $5.6 million from $6.6 million in 2001. This decrease was the result of overall lower interest rates in 2002. The weighted average interest rate on our revolving credit facility decreased to 3.7% in 2002 as compared with 5.2% in 2001 due to lower short-term LIBOR rates in 2002.

Earnings before Income Taxes and cumulative effect of change in accounting principle for 2002 increased $14.2 million, or 52.6%, to $41.1 million from $26.9 million in 2001. Excluding the effect of the asset impairment and exit costs recorded in 2001, earnings before income taxes increased $8.4 million, or 25.6%, in 2002.

Income Taxes for 2002 increased $4.9 million, or 52.6%, to $14.3 million from $9.4 million in 2001. This increase was primarily the result of the increase in earnings before income taxes. Our effective tax rate remained relatively flat at 34.8% of pre-tax earnings.

In 2002, we recorded a non-cash pre-tax charge of $9.9 million ($6.1 million net of tax or $0.31 per diluted share) as a cumulative effect of a change in accounting principle as a result of our evaluation of the goodwill carrying value of the Stoney River reporting unit.

Total Revenues in 2001 increased $67.7 million, or 17.9%, to $444.9 million from $377.3 million in 2000 primarily as a result of an 18.0% increase in restaurant sales to $67.2 million. The increase in restaurant sales was attributable to the addition of 24 new O’Charley’s restaurants, the inclusion of the two original Stoney River restaurants for the entire year following their acquisition in May 2000, one new Stoney River restaurant opened in 2001, and an increase in same store sales at our O’Charley’s restaurants of 2.1%. Our overall check average for the O’Charley’s concept was $11.28 in 2001 and $11.13 in 2000. The increases in revenue were partially offset by our having 52 weeks of operations in 2001 as compared to 53 weeks in 2000. In January 2001, we increased menu prices at our O’Charley’s restaurants by approximately 2.0%. We believe we realized the majority of that price increase during the first quarter of 2001, but by the end of the first quarter, we began to see slowing consumer spending which resulted in a lower than expected check average. In response to the slowing consumer spending patterns, we increased our marketing efforts and began to promote lower priced entrees and lowered certain daily entree specials. As a result of this effort, we believe we maintained our increases in customer traffic but lowered our overall check average in 2001. Near the end of the third quarter of 2001, we began to see increases in consumer spending which raised our check average but we continued to promote lower priced entrees through the end of 2001.

Cost of Food and Beverage in 2001 increased $19.6 million, or 17.9%, to $129.1 million from $109.5 million in 2000. As a percentage of restaurant sales, cost of food and beverage remained flat at 29.3% in 2001 and 2000. Although we experienced an increase in the cost of food and beverage in 2001 due to significantly higher cost for certain commodity food items, including red meat, dairy items and baby back ribs, we continued to experience improved purchasing and operating efficiencies in our restaurants and commissary offsetting the higher commodity prices. Additionally, food costs were impacted by our Stoney River restaurants in 2001 where the food costs are higher than O’Charley’s due primarily to a higher percentage of red meat sales. Food costs were also impacted by the promotion of lower priced entrees in 2001.

Payroll and Benefits increased $23.0 million, or 20.0%, to $138.0 million in 2001 from $115.0 million in 2000. Payroll and benefits, as a percentage of restaurant sales, increased to 31.3% in 2001 from 30.8% in 2000. The increase was attributable to increasing salaries for restaurant management along with higher employee benefit costs, including workers’ compensation and health insurance costs in 2001.

Restaurant Operating Costs in 2001 increased $12.0 million, or 18.5%, to $76.8 million from $64.8 million in 2000. Restaurant operating costs, as a percentage of restaurant sales, increased to 17.4% in 2001 from 17.3% in 2000. In 2001, we experienced higher utility costs, primarily natural gas, and higher insurance expenses, primarily general and liquor liability insurance. These increases were partially offset by a decrease in supervisory expenses in 2001 as a percentage of total revenue. Overall utilities in 2001 increased 28% as compared to 2000. Natural gas prices were significantly higher during the first three quarters of 2001, but decreased during the fourth quarter to similar levels in the same quarter of 2000.

Advertising, General and Administrative Expenses increased $5.5 million, or 22.5%, to $30.0 million in 2001 from $24.5 million in 2000. As a percentage of total revenues, advertising, general and administrative expenses increased to 6.7% in 2001 from 6.5% in 2000. Advertising expenditures increased 39.6% to $13.3 million in 2001 from $9.5 million in 2000 and, as a percentage of restaurant sales, increased to 3.0% in 2001 from 2.5% in 2000. O’Charley’s advertising, as a percentage of O’Charley’s restaurant sales, was 3.1% in 2001 compared to 2.6% in 2000. We increased our advertising expenditures beginning in the second quarter of 2001 through the end of the year in response to the slowing consumer spending trends we began to experience near the end of the first quarter of 2001. An increase in television costs represented the primary share of the overall increase in advertising expenditures. General and administrative expenses increased 11.6% to $16.7 million in 2001 from $15.0 million in 2000, but as a percentage of total revenues, decreased to 3.8% in 2001 from 4.0% in 2000. The decrease in general and administrative expenses primarily resulted from a decrease in bonus and legal expenses.

Depreciation and Amortization in 2001 increased $3.9 million, or 21.6%, to $22.1 million in 2001 from $18.2 million in 2000. As a percentage of total revenues, depreciation and amortization increased to 5.0% in 2001 from 4.8% in 2000. The increase in depreciation expense was primarily attributable to the growth in the number of new restaurants and capital expenditures for improvements to existing restaurants.

Asset Impairment and Exit Costs were $5.8 million during 2001. During the third quarter of 2001, we made the decision to close five restaurants. The decision followed a review of historical and projected cash flows of our stores in view of the difficult economic environment in which we were operating. As a result of this decision, we recognized a charge during the third quarter of 2001 for asset impairment of approximately $5.0 million and exit costs of approximately $800,000 primarily associated with certain related lease commitments.

Pre-opening Costs in 2001 increased $1.0 million, or 20.2%, to $5.7 million from $4.7 million in 2000. As a percentage of total revenues, pre-opening costs increased to 1.3% in 2001 from 1.2% in 2000. This increase is attributable primarily to the cost incurred for the new O’Charley’s restaurants in addition to higher pre-opening costs incurred for the new Stoney River restaurant.

Income from Operations decreased $3.5 million, or 9.4%, to $33.7 million in 2001 from $37.2 million in 2000. Excluding the asset impairment and exit costs, income from operations increased $2.3 million, or 6.2%, to $39.5 million, in 2001.

Interest Expense, net decreased $800,000 in 2001 to $6.6 million from $7.4 million in 2000. This decrease is primarily the result of overall lower interest rates in 2001. The weighted average interest rate on our revolving credit facility decreased to 5.2% in 2001 as compared with 7.4% in 2000 due to lower short-term LIBOR rates in 2001. Additionally, overall interest expense was reduced due to decreased borrowings on our revolver as we used the $41.7 million proceeds from the sale of our common stock in April 2001 to reduce our debt.

Earnings before Income Taxes for 2001 decreased $2.9 million, or 9.7%, to $26.9 million from $29.8 million in 2000. Excluding the effect of the asset impairment and exit costs, earnings before income taxes increased 9.8% to $32.7 million in 2001.

Income Taxes for 2001 decreased $1.1 million, or 10.3%, to $9.3 million from $10.4 million in 2000. This decrease was primarily the result of the decrease in earnings before income taxes. The effective tax rate decreased to 34.8% of pre-tax earnings from 35.0% in 2000 due primarily to higher tax credits.

The following is a summary of certain unaudited quarterly results of operations for each of the last two fiscal years and the first three fiscal quarters of 2003. For accounting purposes, the first fiscal quarter consists of 16 weeks and the second, third and fourth fiscal quarters each consist of 12 weeks. As a result, some of the variations reflected in the following table are attributable to the different lengths of the fiscal quarters:


(1)	During the third quarter of 2001, we decided to close five restaurants. As a result, we recorded a non-cash charge of $5.0 million pursuant to the provisions of SFAS No. 121 “Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of” to reflect the differences between the fair value and net book value of the assets, and a charge of $800,000 for exit costs associated with the closure of such locations.

(2)	We incurred an after-tax charge of $6.1 million, which was recorded as a cumulative effect of a change in accounting principle, as of the beginning of 2002 associated with the adoption of SFAS No. 142 “Goodwill and Other Intangible Assets.” The charge was related to the write off of goodwill associated with the Stoney River acquisition in May 2000.

Our primary sources of capital have historically been cash provided by operations, borrowings under our credit facility, capitalized lease obligations and sales of common stock. Our principal capital needs have historically arisen from the purchase and development of new restaurants, equipment replacement, improvements to existing restaurants and acquisitions. In addition, we lease a substantial number of our restaurants under operating leases and, as described below, therefore have substantial operating lease obligations.

Our working capital historically has had current liabilities in excess of current assets due to cash reinvestments in long-term assets, mostly property and equipment additions, and does not indicate a lack of liquidity. As of October 5, 2003, the working capital deficiency was $24.8 million compared to $21.4 million at December 29, 2002. The total net decrease in cash was $5.1 million during the first 40 weeks of 2003 and $1.9 million in 2002.

Net cash provided by operations for the first 40 weeks of 2003 was $44.6 million compared to $42.3 million in the same prior-year period. Other sources of cash during the first 40 weeks of 2003 came from incremental borrowings of $117.2 million under our credit facility and $4.5 million of proceeds from the exercise of stock options. Additionally, we financed $16.8 million in new restaurant equipment through capitalized lease obligations. Net cash provided by operations was $64.9 million in 2002, $46.7 million in 2001 and $40.0 million in 2000. Other sources of cash in 2002 came from net borrowings of $9.0 million under our revolving credit facility, $4.4 million of proceeds from the exercise of stock options and approximately $2.0 million from the sale of assets. Additionally, in 2002 we financed $8.8 million in new restaurant equipment through capitalized lease obligations. In 2001, we received $41.7 million in net proceeds from the sale of approximately 2.3 million shares of our common stock.

Property and equipment expenditures were $54.6 million in the first 40 weeks of 2003, excluding new restaurant equipment financed through capitalized lease obligations. These expenditures were associated primarily with 25 new O’Charley’s restaurants and seven new Ninety Nine restaurants opened during the first 40 weeks of 2003, restaurants under construction at October 5, 2003, improvements to existing restaurants and property purchases for restaurants opened in the fourth quarter of 2003 and expected to open in 2004, a new USDA-inspected meat facility at our Nashville commissary and technological improvements at our home office. In 2002, we invested $78.5 million in property and equipment expenditures, including $8.8 million of equipment acquired under capital leases. These expenditures were made primarily for 24 new O’Charley’s restaurants opened during the year, three new Stoney River restaurants opened during the year, restaurants under construction at December 29, 2002, and improvements to existing restaurants and commissary facilities. Other primary uses of cash in 2002 were $7.6 million in principal payments on capitalized lease obligations and other long-term debt.

Our capital budget includes approximately $10 to $15 million for capital expenditures, excluding new restaurant equipment financed through capitalized lease obligations, for the fourth quarter of 2003. These expenditures are for one additional O’Charley’s restaurant and one additional Ninety Nine restaurant opened during the fourth fiscal quarter of 2003, approximately two additional Ninety Nine restaurants which are expected to open in the fourth quarter, and improvements to existing O’Charley’s and Ninety Nine restaurants. As of December 28, 2003, we had nine O’Charley’s restaurants and two Ninety Nine restaurants under construction. There can be no assurance that actual capital expenditures for the remainder of 2003 will not vary significantly from budgeted amounts based upon a number of factors, including the timing of additional purchases of restaurant sites and the opening of new restaurants. Our anticipated new store opening schedule for 2004 includes approximately 15 new O’Charley’s restaurants, 12 to 14 new Ninety Nine restaurants and up to two new Stoney River restaurants.

On January 27, 2003, we consummated the acquisition of Ninety Nine Restaurant and Pub for $116.0 million in cash and approximately 2.35 million shares of our common stock, plus the assumption of certain liabilities of Ninety Nine. Of the stock portion of the purchase price, we delivered approximately 941,000 shares at closing, and will deliver approximately 408,000 shares on each of the first, second and third anniversaries of the closing and 94,000 shares on each of the fourth and fifth anniversaries of the closing.

In conjunction with the acquisition of Ninety Nine, we entered into a $300 million senior secured credit facility, comprised of a $200 million revolving credit facility and a $100 million term loan, to fund the cash portion of the purchase price of Ninety Nine, repay the previous revolving credit facility and provide capital for future growth. These credit facilities remained in place through the first four weeks of the fourth quarter of 2003 and were secured by all our tangible and intangible assets and the capital stock of our subsidiaries. The revolving credit facility had outstanding borrowings of $128.1 million at October 5, 2003, which accrued interest at a rate of LIBOR plus 2.75%. The term loan balance at the end of the third quarter of 2003 was $95.0 million, which accrued interest at a rate of LIBOR plus 4.0%. During the third quarter of 2003, the effective interest rate was 5.1% on the revolving credit facility and 5.5% on the term loan. The weighted average interest rate on the outstanding borrowings under this credit facility at the end of the third quarter of 2003 was 5.8%, compared to 3.4% during the same prior-year period.

In the fourth quarter of 2003, we amended and restated our credit facility and issued $125 million aggregate principal amount of the notes. Interest on the notes accrues at the stated rate and is payable semi-annually on May 1 and November 1 of each year commencing May 1, 2004. The notes mature on November 1, 2013. The notes are unsecured, senior subordinated obligations and rank junior in right of payment to all of our existing and future senior debt (as defined in the indenture governing the notes). At any time before November 1, 2006, we may redeem up to 35% of the original aggregate principal amount of the notes at a redemption price equal to 109% of the principal amount of the notes, plus accrued and unpaid interest, with the cash proceeds of certain equity offerings. We may also redeem all or a portion of the notes on or after November 1, 2006 at the redemption prices set forth in the indenture governing the notes. The notes are guaranteed on an unsecured, senior subordinated basis by certain of our subsidiaries.

The indenture governing the notes contains certain customary covenants that, subject to certain exceptions and qualifications, limit our ability to, among other things: incur additional debt or issue preferred stock; pay dividends or make other distributions on, redeem or repurchase capital stock; make investments or other restricted payments; engage in sale and leaseback transactions; create or permit to exist certain liens; consolidate, merge or transfer all or substantially all of our assets; and enter into transactions with affiliates. In addition, if we sell certain assets (and generally do not use the proceeds of such sales for certain specified purposes) or experience specific kinds of changes in control, we must offer to repurchase all or a portion of the notes. The notes are also subject to certain cross-default provisions with the terms of our other indebtedness.

The proceeds from the note offering were used to pay off the term loan and to repay a portion of the revolving credit loan under our bank credit facility. Our current bank credit facility consists of a revolving credit facility in a maximum principal amount of $125.0 million and does not provide for a term loan facility. The facility has a four-year term maturing in 2007, and bears interest, at our option, at either LIBOR plus a specified margin ranging from 1.25% to 2.25% based on certain financial ratios or the base rate, which is the higher of the lender’s prime rate and the federal funds rate plus 0.5%, plus a specified margin from 0.0% to 1.0% based on certain financial ratios. The credit facility imposes restrictions on us with respect to the incurrence of additional indebtedness, sales of assets, mergers, acquisitions, joint ventures, investments, repurchases of stock and the payment of dividends. In addition, the credit facility requires us to comply with certain specified financial covenants, including covenants and ratios relating to our senior secured leverage, maximum adjusted leverage, minimum fixed charge coverage, minimum asset coverage and maximum capital expenditures. The credit facility contains certain events of default, including an event of default resulting from certain changes in control. In the consolidated balance sheet at October 5, 2003, we have reclassified $10.0 million from current portion of long-term debt to long-term debt based on these refinancings and the extension of the maturity date of the debt.

During the fourth quarter of 2003, we also completed two sale and leaseback transactions. The first transaction, completed on October 17, 2003, involved the sale of 23 of our O’Charley’s restaurant properties for aggregate gross proceeds of approximately $50.0 million. The second transaction, completed on November 7, 2003, involved the sale of five of our O’Charley’s restaurants for aggregate gross proceeds of approximately $9.1 million. During the first quarter of 2004, we completed a transaction involving the sale of six of our O’Charley’s restaurants for aggregate gross proceeds of approximately $12.1 million. All of these sales were made to an unrelated entity who then leased the properties back to us. The leases that we entered into in connection with these transactions require us to make additional future minimum lease payments aggregating approximately $119.4 million over the 20-year term of the leases, or an average of approximately $6.0 million annually. The leases also provide for the payment of additional rent beginning in the sixth year of the lease term based on increases in the Consumer Price Index. The net proceeds from these transactions were used to pay down indebtedness under our bank credit facility.

We expect to enter into additional sale and leaseback transactions totaling aggregate gross proceeds of approximately $14.0 million before the end of the first quarter in 2004. We plan to use the proceeds from these sale and leaseback transactions to reduce indebtedness under our credit facility. We cannot assure you that these proposed sale and leaseback transactions will be completed or, if we do complete these

From time to time, we have entered into interest rate swap agreements with certain financial institutions. These swap agreements historically have effectively converted some of our obligations that bear interest at variable rates into fixed rate obligations, but may also convert some of our obligations that bear interest at fixed rates into variable interest rate obligations. As of December 28, 2003, we had interest rate swap agreements with commercial banks, which effectively fixed the interest rate on $20.0 million of our outstanding variable-rate debt at a weighted-average interest rate of approximately 5.6%. The corresponding floating rates of interest received on those notional amounts are based on one month LIBOR rates and are typically reset on a monthly basis, which is intended to coincide with the pricing adjustments on our credit facility. The swap agreement with respect to $10.0 million of our indebtedness expired in January 2004. The swap agreement relating to the remaining $10.0 million of our indebtedness expires in January 2006. During the first quarter of 2004, we entered into interest rate swap agreements with a financial institution. These swap agreements effectively convert a portion of the fixed-rate indebtedness related to the notes into variable-rate obligations. The total notional amount of these swaps was $100.0 million and are based on six-month LIBOR rates in arrears plus a specified margin, the average of which is 3.87%. The terms and conditions of these swaps mirror the interest terms and conditions on our 9% Senior Subordinated Notes. These swap agreements expire in January 2014.

In October 2003, we announced an authorization to repurchase up to $25.0 million of our common stock. Any repurchases will be made from time to time in open market transactions or privately negotiated transactions at our discretion. To date, we have not repurchased any shares of our common stock under this authorization. Any repurchases will be funded with borrowings under our bank credit facility.

We are the subject of litigation against us relating to an outbreak of the Hepatitis A virus affecting certain of our employees and customers. We are not able to predict the outcome of the litigation that has been filed against us or that may be filed against us in the future relating to the Hepatitis A outbreak or the amounts that we may be required to pay to settle that litigation or to satisfy any adverse judgments that may be rendered against us. We have liability insurance; however, we cannot assure you that our insurance carriers will reimburse us for any loss or liability we suffer in connection with this litigation or that our insurance will be sufficient to cover such loss or liability. See “Risk Factors — Risks Related to Our Business — A recent outbreak of Hepatitis A affecting customers and employees of a Knoxville, Tennessee O’Charley’s restaurant has adversely affected our customer traffic, negatively impacted our results of operations and resulted in litigation against us, and we may be further impacted by another outbreak of Hepatitis A linked to restaurants in Georgia; including two O’Charley’s restaurants,” and “Business — Legal Proceedings.”

Based upon the current level of operations and anticipated growth, we believe that available cash flow from operations, combined with the available borrowings under our bank credit facility and capitalized lease arrangements, will be adequate to meet the anticipated future requirements for working capital and capital expenditures through at least the next 12 months. We have historically produced insufficient cash flow from operations to fund our working capital and capital expenditures and, accordingly, our ability to meet our anticipated capital needs is dependent on our ability to continue to access external financing, particularly borrowings under our credit facility. In addition, our growth strategy includes possible acquisitions or strategic joint ventures. Any acquisitions, joint ventures or other growth opportunities may require additional external financing. There can be no assurances that such sources of financing will be available to us or that any such financing would not negatively impact our earnings.

We are subject to contractual obligations and commercial commitments in addition to those described above. For example, as of December 29, 2002, on a pro forma basis after giving effect to our acquisition of Ninety Nine as if that transaction occurred as of that date, we would have had unconditional purchase obligations, primarily fixed volume, fixed price food and beverage contracts, requiring us to make future purchases aggregating approximately $52.3 million. You should carefully review the information that appears under the caption “Management’s Discussion and Analysis of Financial Condition and Results of


	•	Property and equipment

	•	Excess of cost over fair value of net assets acquired (goodwill)

	•	Impairment of long-lived assets

As discussed in note 1 to our consolidated financial statements for the year ended December 29, 2002 incorporated herein by reference, our property and equipment are stated at cost and depreciated on a straight-line method over the following estimated useful lives: building and improvements — 30 years; furniture, fixtures and equipment — 3 to 10 years. Leasehold improvements are amortized over the lesser of the asset’s estimated useful life or the expected lease term. Equipment under capital leases is amortized to its expected value at the end of the lease term. Gains or losses are recognized upon the disposal of property and equipment, and the asset and related accumulated depreciation and amortization are removed from the accounts. Maintenance, repairs and betterments that do not enhance the value of or increase the life of the assets are expensed as incurred.

Inherent in the policies regarding property and equipment are certain significant management judgments and estimates, including useful life, residual value to which the asset is depreciated, the expected value at the end of the lease term for equipment under capital leases, and the determination as to what constitutes enhancing the value of or increasing the life of assets. These significant estimates and judgments, coupled with the fact that the ultimate useful life and economic value at the end of a lease are typically not known until the passage of time, through proper maintenance of the asset, or through continued development and maintenance of a given market in which a store operates can, under certain circumstances, produce distorted or inaccurate depreciation and amortization or, in some cases result in a write down of the value of the assets under SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets.” See Critical Accounting Policy “Impairment of Long-Lived Assets” below.

We believe that our accounting policy for property and equipment provides a reasonably accurate means by which the costs associated with an asset are recognized in expense as the cash flows associated with the asset’s use are realized.

As discussed in note 1 to our consolidated financial statements for the year ended December 29, 2002 incorporated herein by reference, as of December 31, 2001, we no longer amortize goodwill. Beginning in fiscal 2002, we adopted SFAS No. 142 “Goodwill and Other Intangibles.” SFAS No. 142 requires that goodwill and intangible assets with indefinite useful lives no longer be amortized, but instead tested for impairment at least annually in accordance with the provisions of SFAS No. 142. SFAS No. 142 also requires that intangible assets with definite useful lives be amortized over their respective estimated useful lives to their estimated residual values, and reviewed for impairment in accordance with SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets.”

We incurred an after-tax charge of $6.1 million, or $0.31 per diluted share, which was recorded as a cumulative effect of a change in accounting principle as of the beginning of fiscal 2002 associated with the adoption of SFAS No. 142. The charge was related to the goodwill associated with the Stoney River acquisition.

On January 27, 2003, we acquired Ninety Nine Restaurant and Pub for $116.0 million in cash and approximately 2.35 million shares of our common stock. We are required to complete a valuation of the assets and liabilities of Ninety Nine and to allocate the purchase price to the acquired tangible and intangible assets and liabilities with the remaining amount being allocated to goodwill. We anticipate that a substantial majority of the purchase price will be allocated to goodwill and trademarks, which we will be required to test for impairment under SFAS No. 142 on an annual basis.

As discussed in note 1 to our consolidated financial statements for the year ended December 29, 2002 incorporated herein by reference, SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets,” requires that long-lived assets and certain identifiable intangibles be reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to future net cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at the lower of carrying amount or fair value less costs to sell.

The judgments made related to the ultimate expected useful life and our ability to realize undiscounted cash flows in excess of the carrying value of an asset are affected by such issues as ongoing maintenance of the asset, continued development and sustenance of a given market within which a store operates, including the presence of traffic generating businesses in the area, and our ability to operate the store efficiently and effectively can cause us to realize an impairment charge. We assess the projected cash flows and carrying values at the restaurant level, which is the level where identifiable cash flows are largely independent of the cash flows of other groups of assets, whenever events or changes in circumstances indicate that the long-lived assets associated with a restaurant may not be recoverable.

We believe that our accounting policy for impairment of long-lived assets provides reasonable assurance that any assets that are impaired are written down to their fair value and a charge is taken in earnings on a timely basis.

During the first 40 weeks of fiscal 2003, the previously identified critical accounting policies have not changed, except that our accounting policies related to goodwill also now encompass the $25.9 million indefinite life intangible asset of trademarks resulting from our acquisition of Ninety Nine.

As discussed in note 1 to our consolidated financial statements for the year ended December 29, 2002 incorporated herein by reference, we account for our stock option plans in accordance with SFAS No. 123, “Accounting for Stock-Based Compensation” as amended by SFAS No. 148, “Accounting for Stock-Based Compensation — Transition and Disclosure, an amendment of Financial Accounting Standards Board Statement No. 123.” SFAS 123 encourages all entities to adopt a fair value based method of accounting for employee stock compensation plans, whereby compensation cost is measured at the grant date based on the value of the award and is recognized over the service period, which is usually the vesting period. However, SFAS 123 also allows an entity to continue to measure compensation cost for those plans using the intrinsic value based method of accounting prescribed by Accounting Principle Board Opinion No. 25 (“APB 25”), whereby compensation cost is the excess, if any, of the quoted market price of the stock on the grant date (or other measurement date) over the amount an employee must pay to acquire the stock. We currently apply the provisions of APB 25 to account for our stock option plans. Stock options issued to date pursuant to our stock option plans have had no intrinsic value at the grant date, and under Opinion No. 25, no compensation cost is recognized for them. We have provided in note B to our unaudited consolidated financial statements for the 40 weeks ended October 5, 2003 incorporated herein by reference pro forma net earnings and pro forma earnings per share disclosures for employee stock

As of October 5, 2003, we had outstanding options to purchase approximately 3.8 million shares of common stock at an average exercise price of $16.43 per share. In the event that accounting rules associated with stock options were to change to require all entities to use the fair value based method of accounting prescribed by SFAS 123, or were we to voluntarily elect to apply such methods, our consolidated earnings would be adversely impacted. The Financial Accounting Standards Board is currently considering a new accounting model for stock based compensation under which the value of such instruments would be reflected in the income statement.

In April 2002, the Financial Accounting Standards Board (the “FASB”) issued SFAS No. 145, “Rescission of FASB Statements Nos. 4, 44 and 64, Amendments of FASB Statement No. 13, and Technical Corrections.” SFAS No. 145 amends existing guidance on reporting gains and losses on the extinguishments of debt to prohibit the classification of the gain or loss as extraordinary, as the use of such extinguishments have become part of the risk management strategy of many companies. SFAS No. 145 also amends SFAS No. 13 to require sale and lease-back accounting for certain lease modifications that have economic effects similar to sale and lease-back transactions. The provisions of the Statement related to the rescission of Statement No. 4 is applied in fiscal years beginning after May 15, 2002. Earlier application of these provisions is encouraged. The provisions of the Statement related to Statement No. 13 were effective for transactions occurring after May 15, 2002, with early application encouraged. The adoption of SFAS No. 145 did not have a material effect on our consolidated financial statements. We will recognize a $1.9 million charge in the fourth quarter of 2003 related to our $125 million bank credit facility. The charge will be reflected as a component of Other income (expense) in our consolidated statement of earnings.

In June 2002, the FASB issued SFAS No. 146, “Accounting for Costs Associated with Exit or Disposal Activities.” SFAS No. 146 addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies Emerging Issues Task Force (EITF) Issue 94-3, “Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity.” The provisions of this Statement are effective for exit or disposal activities that are initiated after December 31, 2002, with early application encouraged. The adoption of SFAS No. 146 did not have a material effect on our consolidated financial statements.

In November 2002, the FASB issued Interpretation No. 45, “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness to Others, an interpretation of FASB Statements No. 5, 57 and 107 and a rescission of FASB Interpretation No. 34.” This interpretation elaborates on the disclosures to be made by a guarantor in its interim and annual financial statements about its obligations under guarantees issued. The Interpretation also clarifies that a guarantor is required to recognize, at the inception of a guarantee, a liability for the fair value of the obligation undertaken. The initial recognition and measurement provisions of the Interpretation are applicable to guarantees issued or modified after December 31, 2002 and are not expected to have a material effect on our consolidated financial statements. The disclosure requirements are effective for financial statements of interim and annual periods ending after December 15, 2002.

In December 2002, the FASB issued SFAS No. 148 “Accounting for Stock-Based Compensation — Transition and Disclosure, an amendment of FASB Statement No. 123.” This Statement amends FASB Statement No. 123, “Accounting for Stock-Based Compensation,” to provide alternative methods of transition for a voluntary change to the fair value method of accounting for stock-based employee compensation. In addition, this Statement amends the disclosure requirements of Statement No. 123 to require prominent disclosures in both annual and interim financial statements. Certain of the disclosure modifications are required for fiscal years ending after December 15, 2002 and are included in the notes to the consolidated financial statements incorporated herein by reference.

In January 2003, the FASB issued Interpretation No. 46, “Consolidation of Variable Interest Entities, and Interpretation of ARB No. 51.” This Interpretation addresses the consolidation by business enterprises of variable interest entities as defined in the Interpretation. The Interpretation applies immediately to variable interests in variable interest entities created after January 31, 2003, and to variable interests in variable interest entities obtained after January 31, 2003. It applies in the first fiscal year, or interim period beginning after June 15, 2003, to variable interest entities in which an enterprise holds a variable interest that it acquired before February 1, 2003. We continue to evaluate the impact, if any, this Interpretation will have on our consolidated financial statements.

On May 15, 2003, the FASB issued SFAS No. 150, “Accounting for Certain Financial Instruments with Characteristics of Both Liabilities and Equity.” The statement requires issuers to classify as liabilities (or assets in some circumstances) three classes of freestanding financial instruments that embody obligations for the issuer. Generally, the statement is effective for financial instruments entered into or modified after May 31, 2003 and is otherwise effective at the beginning of the first interim period ending after December 15, 2003. We adopted the provisions of the statement on July 14, 2003. The adoption of SFAS No. 150 did not have a material impact on our consolidated financial statements.

The impact of inflation on the cost of food, labor, equipment, land and construction costs could adversely affect our operations. A majority of our employees are paid hourly rates related to federal and state minimum wage laws. As a result of increased competition and the low unemployment rates in certain markets in which our restaurants are located, we have continued to increase wages and benefits in order to attract and retain management personnel and hourly coworkers. In addition, most of our leases require us to pay taxes, insurance, maintenance, repairs and utility costs, and these costs are subject to inflationary pressures. We attempt to offset the effect of inflation through periodic menu price increases, economies of scale in purchasing and cost controls and efficiencies at our restaurants.

O’Charley’s restaurants are open seven days a week and serve lunch, dinner and Sunday brunch and offer full bar service. Specialty menu items include “limited-time” promotions, O’Charley’s Lunch Club, special selections, a special kids menu and a “kids eat free” program in selected markets. We are continually developing new menu items for our O’Charley’s restaurants to respond to changing customer tastes and preferences. Lunch entrees range in price from $5.99 to $9.99, with dinner entrees ranging from $6.99 to $16.99. In the first 40 weeks of 2003, the average check per customer, including beverages, was $11.61.

According to the National Restaurant Association, a restaurant industry trade association, the U.S. restaurant industry experienced its eleventh consecutive year of real sales growth in 2002, with total 2002 sales projected to have reached approximately $407.8 billion. According to the National Restaurant Association, real sales, defined as sales as adjusted for inflation, for the U.S. restaurant industry as a whole grew by a projected 1.3% in 2002 compared to 2001, and are projected to grow 1.8% in 2003 compared to 2002. The National Restaurant Association has projected sales at full-service restaurants in the U.S. were $146.1 billion in 2002 and projects an increase of 4.8% to $153.2 billion in 2003. According to the National Restaurant Association, sales in the full-service segment of the U.S. restaurant industry are projected to have grown 4.1% in 2002 compared to 2001, outpacing total U.S. restaurant industry projected sales growth of 3.9% over the same period. Technomic, Inc., a consulting and research firm, forecasts sales at U.S. full-service restaurants to grow at a compound annual rate of 5.5% from 2002 through 2007, compared to forecasted compound annual growth rates of 4.5% for the limited-service segment of the U.S. restaurant industry and 5.0% for the total U.S. restaurant industry for the same period. According to Technomic, the varied menu category within the full-service restaurant segment of the U.S. restaurant industry, of which both O’Charley’s and Ninety Nine are a part, is projected to grow at an 8.5% compound annual growth rate from 2002 through 2007, the highest projected compound annual growth rate over that period of all menu categories, as defined by Technomic, of the U.S. restaurant industry.

Pursue Disciplined Growth Strategy. We intend to continue to develop new O’Charley’s restaurants in our target markets, primarily in the Southeast and Midwest, and new Ninety Nine restaurants in the Northeast. Our target markets for the O’Charley’s and Ninety Nine concepts include both metropolitan markets and smaller markets in close proximity to metropolitan markets where we have a significant presence. Our strategy is to cluster our new restaurants to enhance supervisory, marketing and distribution efficiencies. Prior to opening a new restaurant, we use cost, demographic and traffic data to analyze prospective restaurant sites. While we prefer to develop new O’Charley’s restaurants based on our prototype restaurants, we from time to time develop new restaurants in existing buildings. Historically, Ninety Nine has opened a significant number of new restaurants by remodeling existing buildings. Our ability to remodel an existing building into an O’Charley’s or Ninety Nine restaurant can permit greater accessibility to quality sites in more developed markets. During 2002, we opened 24 new O’Charley’s restaurants. We opened 26 new O’Charley’s restaurants, closed two O’Charley’s restaurants, opened ten new Ninety Nine restaurants and closed one Ninety Nine restaurant in 2003.

Leverage Our Commissary Operations. We operate an approximately 220,000 square foot commissary in Nashville, Tennessee through which we purchase and distribute a substantial majority of the food products and supplies for our O’Charley’s and Stoney River restaurants and manufacture certain O’Charley’s brand food products for our O’Charley’s restaurants and, to a lesser extent, for sale to other customers, including retail grocery chains, mass merchandisers and wholesale clubs. In addition, our Nashville commissary operates a USDA-approved and inspected facility at which we cut beef for our O’Charley’s and Stoney River restaurants and a production facility at which we manufacture the signature yeast rolls and salad dressings served in our O’Charley’s restaurants. We believe our Nashville commissary has sufficient capacity to meet a substantial majority of the distribution needs of our existing and planned O’Charley’s and Stoney River restaurants for the next several years. We also operate a 20,000 square foot commissary and purchasing operation located in Woburn, Massachusetts through which we purchase and distribute a portion of the food products and supplies for our Ninety Nine restaurants, primarily “center of the plate” items including red meat, poultry and seafood. Our Woburn commissary operates a USDA-approved and inspected facility at which we cut beef for our Ninety Nine restaurants and a production facility at which we prepare the soups, sauces and marinades served in our Ninety Nine restaurants. We believe our commissaries enhance restaurant operations by helping to maintain consistent food quality, ensure reliable distribution services to our restaurants, simplify our restaurant managers’ food cost management responsibilities and reduce costs through purchasing volumes and operating efficiencies.

The following table sets forth the markets in which our O’Charley’s, Ninety Nine and Stoney River restaurants were located at October 5, 2003, including the number of restaurants in each market.

We have completed a feasibility study of the potential franchising of the O’Charley’s concept and, based upon the results of this study, are reviewing franchising opportunities. We are seeking to enter into franchising arrangements with restaurant operators for the development of O’Charley’s restaurants in areas that are outside of our current development and growth plans. During December 2003, we entered into an exclusive multi-unit development agreement with a third party franchisee to develop and operate up to 15 new O’Charley’s restaurants in Michigan. We intend to enter into additional development agreements to franchise our O’Charley’s restaurant concept in other areas. Franchisees will be required to comply with our specifications as to restaurant space, design and decor, menu items, principal food ingredients, employee training and day-to-day operations.

The name “O’Charley’s” and its logo, the name “Stoney River Legendary Steaks,” and the Ninety Nine Restaurant and Pub logo are registered service marks with the United States Patent and Trademark Office. We also have other service marks that are registered in the states in which we operate. We are aware of names and marks similar to our service marks used by third parties in certain limited geographical areas. Use of our service marks by third parties may prevent us from licensing the use of our service marks for restaurants in those areas. We intend to protect our service marks by appropriate legal action whenever necessary.

We are subject to various federal, state and local laws affecting our business. Our commissaries are licensed and subject to regulation by the USDA. In addition, each of our restaurants is subject to licensing and regulation by a number of governmental authorities, which may include alcoholic beverage control, health, safety, sanitation, building and fire agencies in the state or municipality in which the restaurant is located. Most municipalities in which our restaurants are located require local business licenses. Difficulties in obtaining or failures to obtain the required licenses or approvals could delay or prevent the development of a new restaurant in a particular area. We are also subject to federal and state environmental regulations, but those regulations have not had a material adverse effect on our operations to date.

Approximately 10% of restaurant sales in 2002 were attributable to the sale of alcoholic beverages. Each restaurant, where permitted by local law, has appropriate licenses from regulatory authorities allowing it to sell liquor, beer and wine, and in some states or localities to provide service for extended hours and on Sunday. Each restaurant has food service licenses from local health authorities. Similar licenses would be required for each new restaurant. The failure of a restaurant to obtain or retain liquor or food service licenses could adversely affect or, in an extreme case, terminate its operations. We have established standardized procedures for our restaurants designed to assure compliance with applicable codes and regulations.

We are subject in most states in which we operate restaurants to “dram-shop” statutes or judicial interpretations, which generally provide a person injured by an intoxicated person the right to recover damages from an establishment that wrongfully served alcoholic beverages to the intoxicated person.

The Federal Americans With Disabilities Act prohibits discrimination on the basis of disability in public accommodations and employment. We design our restaurants to be accessible to the disabled and believe that we are in substantial compliance with all current applicable regulations relating to restaurant accommodations for the disabled.

The development and construction of additional restaurants will be subject to compliance with applicable zoning, land use and environmental regulations.

Our restaurant operations are also subject to federal and state minimum wage laws and other laws governing matters such as working conditions, citizenship requirements, overtime and tip credits. In the event a proposal is adopted that materially increases the applicable minimum wage, the wage increase would likely result in an increase in payroll and benefits expense.

At October 5, 2003, we employed approximately 10,000 full-time and 11,500 part-time employees, approximately 280 of whom were home office management and staff personnel, approximately 230 of whom were commissary personnel and the remainder of whom were restaurant personnel. None of our employees is covered by a collective bargaining agreement. We consider our employee relations to be good.

In September 2003, we became aware that customers and employees at one of our O’Charley’s restaurants located in Knoxville, Tennessee were exposed to the Hepatitis A virus, which resulted in a number of our employees and customers becoming infected. We have worked closely with the Knox County Health Department and the Centers for Disease Control and Prevention since we became aware of this incident and have cooperated fully with their directives and recommendations. We are aware of 81 individuals who have contracted the Hepatitis A virus, most of whom have been linked to our Knoxville restaurant during the time of the outbreak. As of the date of this prospectus, we are also aware of 20 lawsuits that have been filed against us, all of which have been filed in the circuit court for Knox County, Tennessee, that allege injuries or fear of injuries from the Hepatitis A incident. A number of these suits seek substantial damages, including treble damages under Tennessee consumer protection laws and punitive damages, and some of which seek to be certified as class actions. One of the lawsuits was filed by an individual who contracted Hepatitis A and died following the filing of his lawsuit. This suit has been amended to seek compensatory damages not to exceed $7.5 million and punitive damages not to exceed $10.0 million alleging wrongful death. Other plaintiffs have alleged significant health concerns, including ailments requiring hospitalization.

While we intend to vigorously defend the litigation that has been filed against us, we are not able to predict the outcome of the litigation that has been filed against us or that may be filed against us in the future relating to the Hepatitis A outbreak or the amounts that we may be required to pay to settle that litigation or to satisfy any adverse judgments that may be rendered against us. We have liability insurance; however, we cannot assure you that our insurance carriers will reimburse us for any loss or liability we suffer in connection with this incident or that our insurance will be sufficient to cover any loss or liability. If we suffer losses or liabilities in excess of our insurance coverage or if our insurance does not cover those losses or liabilities, there could be a material adverse effect on our results of operations and financial condition. See “Risk Factors — Risks Related to Our Business — A recent outbreak of Hepatitis A affecting customers and employees of a Knoxville, Tennessee O’Charley’s restaurant has adversely affected our customer traffic, negatively impacted our results of operations and resulted in litigation against us, and we may be further impacted by another outbreak of Hepatitis A linked to restaurants in Georgia, including two O’Charley’s restaurants.”

In addition, we are defendants from time to time in various other legal proceedings arising in the ordinary course of our business, including claims relating to workplace and employment matters, discrimination and similar matters, claims resulting from “slip and fall” accidents and claims from customers and employees alleging illness, injury or other food quality, health or operational concerns. We do not believe that any of the other legal proceedings pending against us will have a material adverse effect on our financial condition. In addition, we may incur or accrue expenses relating to legal proceedings, which may materially adversely affect our results of operations.

We summarize below some of the terms of our bank credit facility. This summary does not purport to be complete and is subject to, and qualified in its entirety by reference to, the credit agreement and other documents entered into in connection with the credit facility.

In connection with the offering of the outstanding notes, we entered into an amendment and restatement of our credit facility with Wachovia Bank, National Association, as Administrative Agent, and the other lenders party thereto. Our credit facility, as amended and restated, provides for a revolving credit facility in a maximum principal amount of $125.0 million. The revolving credit facility is a four year facility and will mature in 2007. Borrowings and other amounts due under the credit facility will be guaranteed by substantially all of our present and future domestic subsidiaries, which will initially be the same subsidiaries that guarantee the notes. All amounts owing under the facility will be secured by 100% of the equity interests we own of each of our existing and future subsidiaries and all of the tangible and intangible assets, other than real property acquired after the date of the credit facility and equipment, of us and substantially all of our subsidiaries. The lenders may, under certain circumstances, also require that we pledge such real estate and equipment as collateral.

Amounts outstanding under the credit facility bear interest, at our option, at either LIBOR plus a specified margin ranging from 1.25% to 2.25% based on certain financial ratios or the base rate, which is the higher of the lender’s prime rate and the federal funds rate plus 0.5%, plus a specified margin ranging from 0.0% to 1.0% based on certain financial ratios.

We and each of our restricted subsidiaries, as defined in the credit facility, are subject to certain affirmative and negative covenants contained in the credit facility, including, without limitation, covenants that restrict, subject to specified exceptions:


	•	the incurrence of indebtedness and other obligations and the granting of liens;

	•	mergers, acquisitions, joint ventures, investments and acquisitions and dispositions of assets;

	•	the payment of dividends or making of other distributions on, redemptions or repurchases of capital stock;

	•	investments, loans, advances, acquisitions or other restricted payments, including payments with respect to the notes other than regularly scheduled payments of interest and additional interest, if any;

	•	repurchases of our capital stock; and

	•	engaging in transactions with affiliates.

In addition, our credit facility requires us to maintain compliance with certain specified financial covenants and ratios, including covenants and ratios relating to our senior secured leverage, maximum adjusted leverage, minimum fixed charge coverage, minimum asset coverage and maximum capital expenditures.

The credit facility contains events of default, including an event of default resulting from certain change in control events affecting us. The occurrence of any event of default generally entitles the lenders under the credit facility to demand immediate repayment of all borrowings and allows them to realize upon the collateral. See “Risk Factors — Risks Related to the Notes — We may not have the funds necessary to finance the repurchase of the Notes in connection with a Change of Control offer required by the indenture governing the Notes.”

We recognized a debt extinguishment pre-tax charge of approximately $1.9 million in the fourth fiscal quarter of 2003 as a result of the consummation of the amendment and restatement of our credit facility.

The new notes will be issued under an Indenture (the “Indenture”) among O’Charley’s Inc. (the “Company”), as issuer, the Subsidiary Guarantors and The Bank of New York, as trustee (the “Trustee”). This is the same Indenture pursuant to which we issued the outstanding notes. The Indenture will be subject to and governed by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The terms of the new notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act.

The following description is a summary of the material provisions of the Indenture. It does not restate the Indenture in its entirety. We urge you to read the Indenture because it, and not this description, defines your rights as holders of the new notes. A copy of the Indenture is filed as an exhibit to the registration statement of which this prospectus is a part.

You can find the definitions of certain terms used in this description in “— Certain Definitions.” Certain defined terms used in this description but not defined below under “— Certain Definitions” have the meanings assigned to them in the Indenture. In this description, the word “Company” refers only to O’Charley’s Inc. and not to any of its subsidiaries.

The new notes will mature on November 1, 2013 and will initially be limited in aggregate principal amount to $125.0 million. The Company may issue an unlimited amount of additional notes (the “Additional Notes”) from time to time at later dates subject to the covenant described below under the caption “— Certain Covenants — Incurrence of Indebtedness and Issuance of Preferred Stock.” The notes and any Additional Notes subsequently issued under the Indenture would be treated as a single class for all purposes under the Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase. The Company will issue notes in denominations of $1,000 and integral multiples of $1,000.

Interest on the notes will accrue from November 4, 2003 at the rate of 9% per annum and will be payable semi-annually in arrears on May 1 and November 1, commencing on May 1, 2004. The Company will make each interest payment to the Holders of record on the immediately preceding April 15 and October 15.

Interest on the notes will accrue from the date of original issuance or, if interest has already been paid, from the most recent interest payment date to which interest has been paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.


	•	general unsecured obligations of the Company;

	•	subordinated in right of payment to all existing and future Senior Debt of the Company;

	•	pari passu in right of payment with any future senior subordinated Indebtedness of the Company; and

	•	guaranteed by the Subsidiary Guarantors.

The new notes will be guaranteed, jointly and severally, by all of the existing and future Domestic Subsidiaries of the Company that guarantee the Company’s obligations under the Credit Facilities or any other Indebtedness of the Company. Each Subsidiary Guarantee of the new notes will be:


	•	a general unsecured obligation of the Subsidiary Guarantor;

	•	subordinated in right of payment to all existing and future Senior Debt of the Company and the Subsidiary Guarantor;

	•	pari passu in right of payment with any future senior subordinated Indebtedness of the Subsidiary Guarantor; and

	•	senior in right of payment to any future subordinated Indebtedness of the Subsidiary Guarantor that is not senior subordinated Indebtedness.


	(1)	in connection with any sale or other disposition of all of the capital stock of a Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of the Company, if the sale or other disposition complies with the provisions described in “— Repurchase at the Option of Holders — Asset Sales”;

	(2)	at such time as such Subsidiary Guarantor no longer Guarantees any other Indebtedness of the Company;

	(3)	if the Company properly designates any Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary;

	(4)	in connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of the Company, if the sale or other disposition complies with the provisions described in “— Repurchase at the Option of Holders — Asset Sales”; or

	(5)	upon Legal Defeasance or Covenant Defeasance of the Notes, as described in “— Legal Defeasance and Covenant Defeasance.”

As of the date of the Indenture, all of our subsidiaries will be “Restricted Subsidiaries.” However, under the circumstances described below under the subheading “— Certain Covenants — Designation of Restricted and Unrestricted Subsidiaries,” we will be permitted to designate certain of our subsidiaries as “Unrestricted Subsidiaries.” Any Unrestricted Subsidiaries will not be subject to any of the restrictive covenants in the Indenture and will not guarantee the Notes.

Each Subsidiary Guarantee will be subordinated to the prior payment in full of all Senior Debt of the Company and that Subsidiary Guarantor. The obligations of each Subsidiary Guarantor under its Subsidiary Guarantee will be limited as necessary to prevent that Subsidiary Guarantee from constituting a fraudulent conveyance or a prohibited distribution to shareholders under the Tennessee statute described in “Risk Factors — Risk Related to the Notes — Federal and state statutes allow courts, under specific circumstances, to void guarantees and require Noteholders to return payments received from subsidiary guarantors, and other laws may limit payments under the guarantees.”

If a Holder has given wire transfer instructions to the Company, the Company will pay all principal, interest and premium and additional interest, if any, on that Holder’s Notes in accordance with those instructions. All other payments on Notes or the Subsidiary Guarantees shall be made at the office or agency of the Paying Agent and Registrar within the City and State of New York unless the Company

The Trustee will initially act as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without prior notice to the Holders. The Indenture provides that neither the Company nor any of its Subsidiaries may act as Paying Agent or Registrar.

Any funds provided by the Company or any Subsidiary Guarantor to the Trustee or any Paying Agent for the purpose of making any payments on the Notes or the Subsidiary Guarantees (as the case may be), whether pursuant to the Indenture or the Registration Rights Agreement, must be made by wire transfer to an account maintained by the Trustee or such Paying Agent in the State of New York.

A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company is not required to transfer or exchange any Note selected for redemption. Also, the Company is not required to transfer or exchange any Note for a period of 15 days before a selection of Notes to be redeemed.

The registered Holder of a Note will be treated as the owner of it for all purposes.

The payment of principal, interest and premium and additional interest, if any, on (or any other obligations relating to) the Notes will be subordinated to the prior payment in full in cash of all Senior Debt of the Company, including Senior Debt of the Company incurred after the date of the Indenture. The notes will rank equally with all the senior subordinated Indebtedness of the Company and rank senior in right of payment to any future subordinated Indebtedness of the Company that is not senior subordinated Indebtedness.

The holders of Senior Debt of the Company will be entitled to receive payment in full in cash of all Obligations due in respect of Senior Debt of the Company (including, without limitation, interest after the commencement of any bankruptcy proceeding at the rate specified in the applicable Senior Debt of the Company) before the Holders of Notes will be entitled to receive any payment with respect to (or any other Obligations relating to) the Notes (except that Holders of Notes may receive and retain Permitted Junior Securities and payments made from the trust described under “— Legal Defeasance and Covenant Defeasance”), in the event of any distribution to creditors of the Company in connection with:


	(1)	any liquidation or dissolution of the Company, whether voluntary or involuntary;

	(2)	any bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, whether voluntary or involuntary;

	(3)	any assignment for the benefit of creditors; or

	(4)	any marshaling of the Company’s assets and liabilities.

The Company also may not make any payment in respect of the Notes (except in Permitted Junior Securities or from the trust described under “— Legal Defeasance and Covenant Defeasance”) if:


	(1)	a payment default on Designated Senior Debt of the Company occurs and is continuing beyond any applicable grace period; or

	(2)	any other default occurs and is continuing on any series of Designated Senior Debt of the Company that permits holders of that series of Designated Senior Debt of the Company to


		accelerate its maturity and the Trustee receives a notice of such default (a “Payment Blockage Notice”) from the administrative agent under the Credit Agreement or a representative of the holders of such Designated Senior Debt (a “nonpayment default”).


	(1)	in the case of a payment default on Designated Senior Debt of the Company, upon the date on which such default is cured or waived; and

	(2)	in case of a nonpayment default, the earlier of the date on which such default is cured or waived or 179 days after the date on which the applicable Payment Blockage Notice is received by the Trustee, unless the maturity of such Designated Senior Debt of the Company has been accelerated.

No new Payment Blockage Notice may be delivered unless and until 360 days have elapsed since the delivery of the immediately prior Payment Blockage Notice.

No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice, unless such nonpayment default has been cured or waived.

If the Trustee or any Holder of the Notes receives a payment in respect of the Notes (except in Permitted Junior Securities or from the trust described under “— Legal Defeasance and Covenant Defeasance”) when the payment is prohibited by these subordination provisions, the Trustee or the Holder, as the case may be, shall hold the payment in trust for the benefit of the holders of Senior Debt of the Company. Upon the proper written request of the holders of Senior Debt of the Company, the Trustee or the Holder, as the case may be, shall deliver the amounts in trust to the holders of Senior Debt of the Company or their proper representative.

The Company must promptly notify holders of its Senior Debt if payment of the Notes is accelerated because of an Event of Default.

As a result of the subordination provisions described above, in the event of a bankruptcy, liquidation or reorganization of the Company, Holders of Notes may recover less ratably than creditors of the Company who are holders of Senior Debt of the Company. In addition, because the subordination provisions of the Indenture require that amounts otherwise payable, or assets distributable, to Holders of the Notes in a bankruptcy or similar proceeding be paid to holders of Senior Debt instead, Holders of the Notes may receive less ratably than other creditors of the Company, including holders of trade payables in any such proceeding.

Payments under the Subsidiary Guarantee by each Subsidiary Guarantor will be subordinated to the prior payment in full of all Senior Debt of the Company and such Subsidiary Guarantor, including Senior Debt of the Company and such Subsidiary Guarantor incurred after the date of the Indenture, on the same basis as provided above with respect to the subordination of payments on the Notes by the Company to the prior payment in full of Senior Debt of the Company. See “Risk Factors — Risks Relating to the Notes — Your right to receive payments on the Notes is junior to our existing and future Senior Debt. Further, your right to receive payment under the guarantees of the Notes is junior to all existing and future Senior Debt.”


	(1)	any Indebtedness outstanding under the Credit Agreement; and

	(2)	after payment in full of all Obligations under the Credit Agreement, any other Senior Debt permitted under the Indenture the principal amount of which is $25.0 million or more and that has been designated by the Company as “Designated Senior Debt.”


	(1)	Equity Interests in the Company or any Subsidiary Guarantor or any other business entity provided for by a plan of reorganization; or

	(2)	debt securities of the Company or any Subsidiary Guarantor or any other business entity provided for by a plan of reorganization, in each case, that are subordinated to all Senior Debt and any debt securities issued in exchange for Senior Debt to the same extent as, or to a greater extent than, the Notes and the Subsidiary Guarantees are subordinated to Senior Debt under the Indenture.


	(1)	all Indebtedness of the Company or any Subsidiary Guarantor outstanding under Credit Facilities and all Hedging Obligations with respect thereto;

	(2)	any other Indebtedness of the Company or any Subsidiary Guarantor permitted to be incurred under the terms of the Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the Notes or any Subsidiary Guarantee; and

	(3)	all other Obligations with respect to the items listed in the preceding clauses (1) and (2).

Notwithstanding anything to the contrary in the preceding, Senior Debt will not include:


	(1)	any liability for federal, state, local or other taxes owed or owing by the Company or any Subsidiary Guarantor;

	(2)	any Indebtedness of the Company or any Subsidiary Guarantor to any Subsidiaries or other Affiliates of the Company;

	(3)	any trade payables;

	(4)	the portion of any Indebtedness that is incurred in violation of the Indenture;

	(5)	any Indebtedness of the Company or any Subsidiary Guarantor that, when incurred, was without recourse to the Company or such Subsidiary Guarantor;

	(6)	any repurchase, redemption or other obligation in respect of Disqualified Stock or any rights with respect thereto; or

	(7)	any Indebtedness owed to any employee of the Company or any of its Subsidiaries.

Except as provided below, the Notes will not be redeemable at the Company’s option prior to November 1, 2008. After November 1, 2008, the Company may redeem all or a part of the Notes, subject to any restriction or other provisions relating thereto contained in any Senior Debt, upon not less than 30 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and additional interest, if any, thereon, to the applicable redemption date, if redeemed during the twelve-month period beginning on November 1 of the years indicated below:

Notwithstanding the foregoing, at any time prior to November 1, 2006, the Company may redeem up to 35% of the aggregate original principal amount of Notes issued under the Indenture, subject to any restriction or other provisions relating thereto contained in any Senior Debt, at a redemption price of 109% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, to the redemption date, with the net cash proceeds of one or more Equity Offerings; provided that:


	(1)	at least 65% of the aggregate principal amount of Notes originally issued under the Indenture remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Company and its Subsidiaries); and

	(2)	the redemption must occur within 60 days of the date of the closing of such Equity Offering.

If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes for redemption on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate. No Notes of $1,000 or less shall be redeemed in part. Notices of redemption shall be mailed by first class mail at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at its registered address. Notices of redemption may not be conditional.

If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue on Notes or portions of them called for redemption.

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

If a Change of Control occurs, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder’s Notes pursuant to a Change of Control Offer on the terms set forth in the Indenture. In the Change of Control Offer, the Company will offer a Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and additional interest, if any, thereon, to the date of purchase. Within 30 days following any Change of Control, the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the Change of Control Payment Date specified in such notice, which date shall be no earlier than 30 days and no later than 90 days from the date such notice is mailed, pursuant to the procedures required by the Indenture and described in such notice. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of the Indenture by virtue of such compliance.


	(1)	accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;


	(2)	deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and

	(3)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.

The Paying Agent will promptly mail or wire transfer to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $1,000 or an integral multiple thereof.

Prior to accepting Notes for payment as provided in this “Change of Control” covenant, but in any event within 60 days following a Change of Control, the Company will either repay all outstanding Senior Debt or obtain the requisite consents, if any, under all agreements governing outstanding Senior Debt to permit the repurchase of Notes required by this covenant. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

The agreements governing the Company’s outstanding Designated Senior Debt and certain other outstanding Senior Debt currently prohibit the Company from purchasing any Notes, and also provide that certain change of control events with respect to the Company, including, without limitation, a Change of Control under the Indenture, would constitute a default under these agreements. Any future credit agreements or other agreements relating to Senior Debt to which the Company becomes a party may contain similar restrictions and provisions. In the event a Change of Control occurs at a time when the Company is prohibited from purchasing Notes, the Company could seek the consent of the holders of such Senior Debt to the purchase of Notes or could attempt to refinance any such Senior Debt that contain such prohibition. If the Company does not obtain such a consent or repay such Senior Debt, the Company will remain prohibited from purchasing Notes. In such case, the Company’s failure to purchase tendered Notes would constitute an Event of Default under the Indenture which would, in turn, constitute a default under such Senior Debt. In any of the foregoing circumstances, the subordination provisions in the Indenture would prohibit payments to the Holders of Notes.

The provisions described above that require the Company to make a Change of Control Offer following a Change of Control will be applicable regardless of whether any other provisions of the Indenture are applicable. Except as described above with respect to a Change of Control, the Indenture does not contain provisions that permit the Holders of the Notes to require that the Company repurchase or redeem the Notes in the event of a takeover, recapitalization or similar transaction.

The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.

The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of “all or substantially all” of the properties or assets of the Company and its Subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a Holder of Notes to require the Company to repurchase such Notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of the Company and its Subsidiaries taken as a whole to another Person or group may be uncertain.

The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:


	(1)	the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;

	(2)	such fair market value (i) where such value is $5.0 million or less, is determined by the Chief Executive Officer or the Chief Financial Officer or (ii) where such value is greater than $5.0 million, is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors, and, in each case, such determination is set forth in an Officers’ Certificate delivered to the Trustee; and

	(3)	at least 75% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Replacement Assets or a combination of both; provided that, for purposes of this provision, each of the following shall be deemed to be cash:


	(a)	any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms pari passu or subordinated to the Notes or any Subsidiary Guarantee and liabilities that are owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a customary written novation agreement that releases the Company or such Restricted Subsidiary from further liability; and

	(b)	any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) within 60 days of such Asset Sale.

Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds at its option:


	(1)	to prepay, repay or purchase Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; provided, however, that if any Net Proceeds received in any Build-to-Suit Sale-Leaseback Transaction or any Expansion Equipment Sale-Leaseback Transaction are used to repay revolving credit Indebtedness, no corresponding reduction in commitments with respect thereto will be required; or

	(2)	to purchase Replacement Assets or to make a capital expenditure in or that is used or useful in a Permitted Business or enter into a commitment to do so.

Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture.

Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” Within 30 days after the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes or any Subsidiary Guarantee containing provisions similar to those set forth in the Indenture with respect to offers to purchase with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and additional interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited

by the Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of the Indenture by virtue of such conflict.

The agreements governing the Company’s outstanding Designated Senior Debt and certain other Senior Debt currently prohibit the Company from purchasing any Notes, and also provide that certain asset sale events with respect to the Company would constitute a default under these agreements. Any future credit agreements or other agreements relating to Senior Debt to which the Company becomes a party may contain similar restrictions and provisions. In the event an Asset Sale occurs at a time when the Company is prohibited from purchasing Notes, the Company could seek the consent of the holders of its Senior Debt to the purchase of Notes or could attempt to refinance any such Senior Debt that contain such prohibition. If the Company does not obtain such a consent or repay such Senior Debt, the Company will remain prohibited from purchasing Notes. In such case, the Company’s failure to purchase tendered Notes would constitute an Event of Default under the Indenture which would, in turn, constitute a default under such Senior Debt. In any of the following circumstances, the subordination provisions in the Indenture would prohibit payments to the Holders of Notes.

(A) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:


	(1)	declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);

	(2)	purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any Subsidiary of the Company (other than a Wholly Owned Restricted Subsidiary of the Company) or any direct or indirect parent of the Company held by Persons other than the Company or any Restricted Subsidiary;

	(3)	make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Subsidiary Guarantee, except (a) a payment of interest or principal at the Stated Maturity thereof or (b) a purchase or other acquisition for value in anticipation of satisfying a scheduled maturity, sinking fund or amortization obligation or principal repayment obligation, in each case, due within one year of the date of such purchase or other acquisition; or

	(4)	make any Restricted Investment (all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as “Restricted Payments”),


	(1)	no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and

	(2)	the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under the caption “— Incurrence of Indebtedness and Issuance of Preferred Stock”; and

	(3)	such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10) and (12) of the next succeeding paragraph (B)), is less than the sum, without duplication, of:


	(a)	50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus

	(b)	100% of the aggregate net cash proceeds received by the Company since the date of the Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus

	(c)	to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment; plus

	(d)	$5.0 million.

(B) So long as no Default has occurred and is continuing or would be caused thereby (solely in the case of clause (4), (5), (6), (8) or (11) below), the preceding provisions will not prohibit:


	(1)	the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of the Indenture;

	(2)	the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Subsidiary Guarantor or of any Equity Interests of the Company (including the declaration and payment of accrued dividends on any such Equity Interests) in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock);

	(3)	the defeasance, redemption, repurchase or other acquisition of Indebtedness of the Company or any Subsidiary Guarantor subordinated to the Notes or the Subsidiary Guarantees with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;

	(4)	the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;


	(5)	Investments acquired as a capital contribution to, or in exchange for, or out of the net cash proceeds of a substantially concurrent offering of, Capital Stock (other than Disqualified Stock) of the Company;

	(6)	the repurchase or redemption of Equity Interests (other than Disqualified Stock) of the Company; provided, however, that the aggregate amount of any such repurchases or redemptions shall not exceed $25.0 million;

	(7)	the repurchase of Capital Stock deemed to occur upon the exercise of options or warrants if such Capital Stock represents all or a portion of the exercise price thereof;

	(8)	the declaration and payment of dividends on shares of Disqualified Stock of the Company issued in accordance with the “Incurrence of Indebtedness and Issuance of Preferred Stock” covenant;

	(9)	the making of cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Company;


	(10)	purchases of minority interests in Restricted Subsidiaries;

	(11)	the repurchase, redemption or other acquisition or retirement for value of any Equity Interests (other than Disqualified Stock) of the Company, in each case, held by any current or former employee, officer, director or consultant of the Company or any Restricted Subsidiary of the Company, pursuant to any management equity subscription agreement, stock option, restricted stock or similar plans or agreements; provided that the aggregate amount paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $1.0 million in any calendar year; provided, however, that the Company may carry forward and make in the next succeeding calendar year, in addition to the amount permitted for such calendar year pursuant to this clause (11), the amount of such purchases, acquisitions, redemptions or retirements for value permitted to have been made pursuant to this clause (11) but not made in the immediately preceding calendar year up to a maximum of $1.0 million; and

	(12)	Restricted Payments not otherwise permitted in an amount not to exceed $15.0 million.

The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any assets or securities that are required to be valued by this covenant shall be determined by the Board of Directors, whose resolution with respect thereto shall be delivered to the Trustee. The Board of Directors’ determination must be based upon an opinion or appraisal issued by an independent accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment (other than a Restricted Payment described in (B)(6) above), the Company shall deliver to the Trustee an Officers’ Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this “Restricted Payments” covenant were computed. The Company shall deliver to the Trustee not later than 15 days after the end of each fiscal quarter in which the Company makes any Restricted Payment described in (B)(6) above an Officers’ Certificate stating the total amount of such Restricted Payments described in (B)(6) made during the immediately preceding fiscal quarter and cumulatively since the Issue Date. Each of the above-described Officers’ Certificates shall be accompanied by a copy of any fairness opinion or appraisal required by the Indenture.

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness (including Acquired Debt), and the Company will not permit any of its Restricted Subsidiaries to issue any preferred stock; provided, however, that the Company or any Subsidiary Guarantor may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and the

Restricted Subsidiaries may issue preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period.

So long as no Default shall have occurred and be continuing or would be caused thereby, the first paragraph of this covenant will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):


	(1)	the incurrence by the Company or any Subsidiary Guarantor of Indebtedness under Credit Facilities in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum amount that may be drawn thereunder, without regard to any reinstatement) not to exceed $200.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary to permanently repay any such Indebtedness (and, in the case of any revolving credit Indebtedness, to effect a corresponding commitment reduction thereunder) pursuant to the covenant “— Repurchase at the Option of Holders — Asset Sales”;

	(2)	Existing Indebtedness;

	(3)	the incurrence by the Company and the Subsidiary Guarantors of Indebtedness represented by the Notes and the related Subsidiary Guarantees and the Exchange Notes and the related Subsidiary Guarantees;

	(4)	the incurrence by the Company or any Restricted Subsidiary of Indebtedness represented by Capital Lease Obligations (including, without limitation, pursuant to any Expansion Equipment Sale-Leaseback Transaction), mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (4), not to exceed $25.0 million at any time outstanding;

	(5)	the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by the Indenture to be incurred under the first paragraph of this covenant or clauses (2), (3), (4), (5) and (12) of this paragraph;

	(6)	the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:


	(a)	if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Subsidiary Guarantee, in the case of a Subsidiary Guarantor;

	(b)	(i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary of the Company, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6); and


	(c)	Indebtedness owed to the Company or any Subsidiary Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Subsidiary Guarantor;


	(7)	the Guarantee by the Company or any Subsidiary Guarantor of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this covenant;

	(8)	(i) Indebtedness of the Company or any of its Restricted Subsidiaries under agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with the disposition of any business or assets, so long as the principal amount does not exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition, and (ii) Indebtedness of the Company or any its Restricted Subsidiaries represented by letters of credit for the account of the Company or such Restricted Subsidiary, as the case may be, issued in the ordinary course of business of the Company or such Restricted Subsidiary in order to provide security for workers’ compensation claims or payment obligations in connection with self-insurance or similar requirements in the ordinary course of business and other Indebtedness with respect to worker’s compensation claims, self-insurance obligations, performance, surety and similar bonds and completion guarantees provided by the Company or any of its Restricted Subsidiaries in the ordinary course of business;

	(9)	the incurrence by the Company or any Restricted Subsidiary of Indebtedness in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Indebtedness is extinguished within five Business Days of its incurrence;


	(10)	the issuance of preferred stock by a Restricted Subsidiary to the Company or other Restricted Subsidiaries;

	(11)	Indebtedness of the Company to the extent that the net proceeds thereof are promptly deposited to defease the Notes in accordance with the provisions of “— Legal Defeasance and Covenant Defeasance”; and

	(12)	the incurrence by the Company or any Restricted Subsidiary of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (12), not to exceed $35.0 million.

For purposes of determining compliance with this “Incurrence of Indebtedness and Issuance of Preferred Stock” covenant, in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (12) above, or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company will be permitted to classify on the date of its incurrence, and from time to time to reclassify all or a portion of, such item of Indebtedness in any manner that complies with this covenant. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under the Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt.

Notwithstanding any other provision of this “Limitation on Indebtedness and Issuance of Preferred Stock” covenant, the maximum amount of Indebtedness that may be Incurred pursuant to this “Limitation on Indebtedness and Issuance of Preferred Stock” covenant will not be deemed to be exceeded, with respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rates of currencies.

The Company will not incur any Indebtedness that is subordinate or junior in right of payment to any Senior Debt of the Company unless it is pari passu or subordinate in right of payment to the Notes. No Subsidiary Guarantor will incur any Indebtedness that is subordinate or junior in right of payment to the Senior Debt of such Guarantor unless it is pari passu or subordinate in right of payment to such Subsidiary Guarantor’s Subsidiary Guarantee. For purposes of the foregoing, no Indebtedness will be deemed to be subordinated or junior in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of the fact that the holders of any secured Indebtedness have entered into intercreditor agreements giving one or more of such holders of Secured Indebtedness priority over the other holders of Secured Indebtedness in the collateral held by them.

The Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind securing Indebtedness (other than Permitted Liens) upon any of their property or assets, now owned or hereafter acquired, unless all payments due under the Indenture and the Notes are secured on an equal and ratable basis with the obligations so secured until such time as such obligations are no longer secured by a Lien.

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:


	(1)	pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;

	(2)	make loans or advances to the Company or any of its Restricted Subsidiaries; or

	(3)	transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

However, the preceding restrictions will not apply to encumbrances or restrictions existing under, by reason of or with respect to:


	(1)	the Credit Agreement, Existing Indebtedness or any other agreements in effect on the date of the Indenture and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof; provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, than those in effect on the date of the Indenture;

	(2)	the Indenture, the Notes and the Subsidiary Guarantees;

	(3)	applicable law;

	(4)	any Person, or the property or assets of such Person, acquired by the Company or any of its Restricted Subsidiaries, existing at the time of such acquisition and not incurred in connection with or in contemplation of such acquisition, which encumbrance or restriction is not applicable to any Person or the properties or assets of any Person, other than the Person, or the property or assets of such Person, so acquired and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof; provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, than those in effect on the date of the acquisition;


	(5)	customary supermajority voting provisions and customary provisions with respect to the disposition or distribution of assets or property, in each case contained in joint venture agreements;

	(6)	in the case of clause (3) of the first paragraph of this covenant:


	(a)	that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset,

	(b)	existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by the Indenture, or

	(c)	arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;


	(7)	any agreement for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, a Restricted Subsidiary;

	(8)	Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; or

	(9)	contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:


	(a)	the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,

	(b)	the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith) and

	(c)	the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes.

The Company will not, in a single transaction or a series of related transactions, (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties and assets of the Company and its Subsidiaries taken as a whole to another Person or Persons, unless:


	(1)	either: (a) the Company is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition shall have been made (i) is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia and (ii) assumes all the obligations of the Company under the Notes, the Indenture and the Registration Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;

	(2)	immediately after giving effect to such transaction, no Default or Event of Default exists;

	(3)	immediately after giving effect to such transaction on a pro forma basis, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition shall have been made will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed


		Charge Coverage Ratio test set forth in the first paragraph of the covenant described above under the caption “— Incurrence of Indebtedness and Issuance of Preferred Stock”; and

	(4)	each Subsidiary Guarantor, unless such Subsidiary Guarantor is the Person with which the Company has entered into a transaction under this “Merger, Consolidation or Sale of Assets” covenant, shall have by amendment to its Subsidiary Guarantee confirmed that its Subsidiary Guarantee shall apply to the obligations of the Company or the Surviving Person in accordance with the Notes and the Indenture.

In addition, the Company will not and will not permit any Restricted Subsidiary to, directly or indirectly, lease all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person. Clause (3) above of this “Merger, Consolidation or Sale of Assets” covenant will not apply to any merger, consolidation or sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and any of its Restricted Subsidiaries.

The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into, make, amend, renew or extend any transaction, contract, agreement, understanding, loan, advance or Guarantee with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”), unless:


	(1)	such Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an Affiliate of the Company; and

	(2)	the Company delivers to the Trustee:


	(a)	with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $2.5 million, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this covenant and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors; and

	(b)	with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an independent accounting, appraisal or investment banking firm of national standing.

The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:


	(1)	transactions between or among the Company and/or its Restricted Subsidiaries;

	(2)	payment of reasonable and customary directors fees and reasonable and customary indemnification and similar arrangements;

	(3)	Permitted Investments and Restricted Payments that are permitted by the provisions of the Indenture described above under the caption “— Restricted Payments”;

	(4)	any sale of Equity Interests (other than Disqualified Stock) of the Company;

	(5)	any transaction with a Person that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns Equity Interests in or controls such Person;


	(6)	any employment agreement or other employee compensation arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business; and

	(7)	transactions entered into pursuant to any agreement existing on the date of the Indenture.

The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary; provided that:


	(1)	any Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation, and such incurrence of Indebtedness would be permitted under the covenant described above under the caption “— Incurrence of Indebtedness and Issuance of Preferred Stock”;

	(2)	the aggregate fair market value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of such Subsidiary) will be deemed to be a Restricted Investment made as of the time of such designation and that such Investment would be permitted under the covenant described above under the caption “— Restricted Payments”;

	(3)	such Subsidiary does not own any Equity Interests of, or hold any Liens on any property of, the Company or any Restricted Subsidiary;

	(4)	the Subsidiary being so designated:


	(a)	is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

	(b)	is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

	(c)	has at least one director on its Board of Directors that is not a director or officer of the Company or any of its Restricted Subsidiaries and has at least one executive officer that is not a director or officer of the Company or any of its Restricted Subsidiaries; and


	(5)	no Default or Event of Default would be in existence following such designation.

Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by the Indenture.

The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that:


	(1)	such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if such Indebtedness is permitted under the covenant described under the caption “— Incurrence of Indebtedness and Issuance of Preferred Stock,” calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period;


	(2)	all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such Investments shall only be permitted if such Investments would be permitted under the covenant described above under the caption “— Restricted Payments”;

	(3)	all Liens of such Unrestricted Subsidiary existing at the time of such designation would be permitted under the caption “— Liens”; and

	(4)	no Default or Event of Default would be in existence following such designation.

The Company will not, and will not permit any of its Restricted Subsidiaries to, enter into any Sale and Lease-back Transaction; provided, that the Company or any Restricted Subsidiary may enter into a Sale and Lease-back Transaction if:


	(1)	the Company or that Restricted Subsidiary, as applicable, could have incurred Indebtedness in an amount equal to the Attributable Debt relating to such Sale and Lease-back Transaction under the Fixed Charge Coverage Ratio test in the first paragraph of the covenant described above under the caption “— Incurrence of Indebtedness and Issuance of Preferred Stock”;

	(2)	the gross cash proceeds of that Sale and Lease-back Transaction are at least equal to the fair market value, as determined in good faith by the Board of Directors of the Company and set forth in an Officers’ Certificate delivered to the Trustee, of the property that is the subject of that Sale and Lease-back Transaction; and

	(3)	the transfer of assets in that Sale and Lease-back Transaction is permitted by, and the Company applies the proceeds of such transaction in compliance with, the covenant described above under the caption “— Repurchase at the Option of Holders — Asset Sales.”

The Company will not transfer, convey, sell, lease or otherwise dispose of, and will not permit any of its Restricted Subsidiaries to, issue, transfer, convey, sell, lease or otherwise dispose of any Equity Interests in any Restricted Subsidiary of the Company to any Person (other than the Company or a Wholly Owned Restricted Subsidiary of the Company or, if necessary, shares of its Capital Stock constituting directors’ qualifying shares or issuances of shares of Capital Stock of foreign Restricted Subsidiaries to foreign nationals, to the extent required by applicable law), except:


	(1)	if, immediately after giving effect to such issuance, transfer, conveyance, sale, lease or other disposition, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary, any Investment in such Person remaining after giving effect to such issuance or sale would have been permitted to be made under the “Restricted Payments” covenant if made on the date of such issuance or sale; and

	(2)	the Company or such Restricted Subsidiary complies with the covenant described above under the caption “— Repurchase at the Option of Holders — Asset Sales.”

The Company will not permit any of its Restricted Subsidiaries, directly or indirectly, to Guarantee or pledge any assets to secure the payment of any other Indebtedness of the Company, unless such Restricted Subsidiary is a Subsidiary Guarantor or simultaneously executes and delivers a supplemental indenture providing for the Guarantee of the payment of the Notes by such Restricted Subsidiary, which Subsidiary Guarantee shall be senior to or pari passu with such Subsidiary’s Guarantee of or pledge to secure such other Indebtedness unless such other Indebtedness is Senior Debt, in which case such Subsidiary Guarantee may be subordinated to the Guarantee of such Senior Debt to the same extent as the Notes are subordinated to such Senior Debt.

A Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person), another Person, other than the Company or another Subsidiary Guarantor, unless:


	(1)	immediately after giving effect to that transaction, no Default or Event of Default exists; and

	(2)	either:


	(a)	the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia and assumes all the obligations of Subsidiary Guarantor under the Indenture, its Subsidiary Guarantee and the Registration Rights Agreement pursuant to a supplemental indenture satisfactory to the Trustee; or

	(b)	such sale or other disposition complies with the “Asset Sale” provisions of the Indenture, including the application of the Net Proceeds therefrom.

The Company will not, and will not permit any Restricted Subsidiary to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

Whether or not required by the SEC, so long as any Notes are outstanding, the Company will furnish to the Trustee for forwarding to the Holders of Notes, within the time periods specified in the SEC’s rules and regulations:


	(1)	all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s certified independent accountants; and

	(2)	all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.

In addition, whether or not required by the SEC, the Company will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the SEC’s rules and regulations (unless the SEC will not accept such a filing) and make such information available to prospective investors upon request. In addition, the Company and the Subsidiary Guarantors have agreed that, for so long as any Notes remain outstanding, they will furnish to the Holders and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed


	(1)	default for 30 days in the payment when due of interest (including any additional interest) on the Notes whether or not prohibited by the subordination provisions of the Indenture;

	(2)	default in payment when due (whether at maturity, upon acceleration, redemption or otherwise, including, without limitation, the failure to repurchase Notes tendered pursuant to a Change of Control Offer or an Asset Sale Offer on the date specified for such payment in the applicable offer to purchase) of the principal of, or premium, if any, on the Notes, whether or not prohibited by the subordination provisions of the Indenture;

	(3)	failure (other than a default described in clause (2) above) by the Company or any of its Restricted Subsidiaries to comply with the provisions described under the captions “— Repurchase at the Option of Holders — Change of Control” or “— Certain Covenants — Merger, Consolidation or Sale of Assets”;

	(4)	failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice by the Trustee or Holders representing 25% or more of the aggregate principal amount of Notes outstanding to comply with any of the other agreements in the Indenture;

	(5)	default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by the Company or any of its Restricted Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created after the date of the Indenture, if that default:


	(a)	is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness at final maturity thereof; or

	(b)	results in the acceleration of such Indebtedness prior to its final maturity,


	and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a similar default aggregates $10.0 million or more;


	(6)	failure by the Company or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $10.0 million, which judgments are not paid, discharged or stayed for a period of 60 days;

	(7)	except as permitted by the Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee; and

	(8)	certain events of bankruptcy or insolvency with respect to the Company, any Subsidiary Guarantor or any Significant Subsidiary of the Company (or any Subsidiaries that together would constitute a Significant Subsidiary).

In the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to the Company, any Subsidiary Guarantor or any Significant Subsidiary of the Company (or any Subsidiaries that together would constitute a Significant Subsidiary), all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is

continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately; provided, however, that so long as any Obligations permitted to be incurred under the Indenture pursuant to the Credit Agreement shall be outstanding or the commitments thereunder have not been terminated, that acceleration shall not be effective until the earlier of (1) an acceleration of all Obligations under the Credit Agreement or (2) five business days after receipt by the administrative agent under the Credit Agreement of written notice of the acceleration of the Notes.

Holders of the Notes may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or additional interest) if it determines that withholding notice is in their interest.

The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest or additional interest on, or the principal of, the Notes. The Holders of a majority in principal amount of the then outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes. A Holder may not pursue any remedy with respect to the Indenture or the Notes unless:


	(1)	the Holder gives the Trustee written notice of a continuing Event of Default;

	(2)	the Holders of at least 25% in aggregate principal amount of outstanding Notes make a written request to the Trustee to pursue the remedy;

	(3)	such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense;

	(4)	the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and

	(5)	during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request.

However, such limitations do not apply to the right of any Holder of a Note to receive payment of the principal of, premium or additional interest, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, which right shall not be impaired or affected without the consent of the Holder.

In the case of any Event of Default occurring by reason of any willful action or inaction taken or not taken by or on behalf of the Company with the intention of avoiding payment of the premium that the Company would have had to pay if the Company then had elected to redeem the Notes pursuant to the optional redemption provisions of the Indenture, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of the Notes. If an Event of Default occurs during any time that the Notes are outstanding, by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding the prohibition on redemption of the Notes, then the premium specified in the Indenture shall also become immediately due and payable to the extent permitted by law upon the acceleration of the Notes.

The Company is required to deliver to the Trustee annually within 90 days after the end of each fiscal year a statement regarding compliance with the Indenture. Upon becoming aware of any Default or Event

No director, officer, employee, incorporator or stockholder of the Company or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Company or the Subsidiary Guarantors under the Notes, the Indenture, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.

The Company may, at its option and at any time, elect to have all of its obligations discharged with respect to the outstanding Notes and all obligations of the Subsidiary Guarantors discharged with respect to their Subsidiary Guarantees (“Legal Defeasance”) except for:


	(1)	the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium and additional interest, if any, on such Notes when such payments are due from the trust referred to below;

	(2)	the Company’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;

	(3)	the rights, powers, trusts, duties and immunities of the Trustee, and the Company’s and the Subsidiary Guarantor’s obligations in connection therewith; and

	(4)	the Legal Defeasance provisions of the Indenture.

In addition, the Company may, at its option and at any time, elect to have the obligations of the Company and the Subsidiary Guarantors released with respect to certain covenants that are described in the Indenture (“Covenant Defeasance”) and thereafter any omission to comply with those covenants shall not constitute a Default or Event of Default with respect to the Notes. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under “Events of Default” will no longer constitute an Event of Default with respect to the Notes.


	(1)	the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and premium and additional interest, if any, on the outstanding Notes on the stated maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption date;

	(2)	in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of the Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;


	(3)	in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

	(4)	no Default or Event of Default shall have occurred and be continuing either: (a) on the date of such deposit (other than a Default of Event of Default resulting from the borrowing of funds to be applied to such deposit); or (b) or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;

	(5)	such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

	(6)	the Company must have delivered to the Trustee an Opinion of Counsel to the effect that, (1) assuming no intervening bankruptcy of the Company or any Subsidiary Guarantor between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or any applicable state bankruptcy, insolvency, reorganization or similar state law affecting creditors and (2) the creation of the defeasance trust does not violate the Investment Company Act of 1940;

	(7)	the Company must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;

	(8)	if the Notes are to be redeemed prior to their stated maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date; and

	(9)	the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

Except as provided in the next two succeeding paragraphs, the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes or a solicitation of consents in respect of Notes), and any existing default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including, without limitation, waivers obtained in connection with a purchase of, or tender offer or exchange offer for, Notes or a solicitation of consents in respect of Notes).

Without the consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder):


	(1)	reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

	(2)	reduce the principal of or change the fixed maturity of any Note or alter the provisions, or waive any payment, with respect to the redemption of the Notes;

	(3)	reduce the rate of or change the time for payment of interest on any Note;


	(4)	waive a Default or Event of Default in the payment of principal of, or interest or premium, or additional interest, if any, on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration);

	(5)	make any Note payable in money other than U.S. dollars;

	(6)	make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, or interest or premium or additional interest, if any, on the Notes;

	(7)	release any Subsidiary Guarantor from any of its obligations under its Subsidiary Guarantee or the Indenture, except in accordance with the terms of the Indenture;

	(8)	impair the right to institute suit for the enforcement of any payment on or with respect to the Notes or the Subsidiary Guarantees;

	(9)	after an Asset Sale or Change of Control has occurred, amend, change or modify the obligation of the Company to make and consummate an Asset Sale Offer with respect to any Asset Sale in accordance with the “Repurchase at the Option of Holders — Asset Sales” covenant or the obligation of the Company to make and consummate a Change of Control Offer in the event of a Change of Control in accordance with the “Repurchase at the Option of Holders — Change of Control” covenant, including, in each case, amending, changing or modifying any definition relating thereto;


	(10)	except as otherwise permitted under the “Merger, Consolidation and Sale of Assets” covenant, consent to the assignment or transfer by the Company or any Subsidiary Guarantor of any of their rights or obligations under the Indenture;

	(11)	amend or modify any of the provisions of the Indenture or the related definitions affecting the subordination or ranking of the Notes or any Subsidiary Guarantee in any manner adverse to the holders of the Notes or any Subsidiary Guarantee; or

	(12)	make any change in the preceding amendment and waiver provisions.

Notwithstanding the preceding, without the consent of any Holder of Notes, the Company, the Subsidiary Guarantors and the Trustee may modify, amend or supplement the Indenture or the Notes:


	(1)	to cure any ambiguity, defect or inconsistency;

	(2)	to provide for uncertificated Notes in addition to or in place of certificated Notes;

	(3)	to provide for the assumption of the Company’s or any Subsidiary Guarantor’s obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of the Company’s or such Subsidiary Guarantor’s assets;

	(4)	to make any change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under the Indenture of any such Holder;

	(5)	to comply with requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act;

	(6)	to comply with the provision described under “— General — The Subsidiary Guarantees” and “— Certain Covenants — Limitation on Issuances of Guarantees by Restricted Subsidiaries” or to add any Subsidiary of the Company as a Subsidiary Guarantor pursuant to and in the manner provided by the Indenture;

	(7)	to evidence and provide for the acceptance of appointment by a successor Trustee; or

	(8)	to provide for the issuance of Additional Notes in accordance with the Indenture.

In addition, the subordination provisions of the Indenture may not be amended, modified or waived unless the holders of Senior Debt consent to such amendment, modification or waiver.

The Indenture will be discharged and will cease to be of further effect as to all Notes issued thereunder, when:


	(a)	all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or

	(b)	all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable within one year and the Company or any Subsidiary Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium and additional interest, if any, and accrued interest to the date of maturity or redemption;


	(2)	no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Subsidiary Guarantor is a party or by which the Company or any Subsidiary Guarantor is bound;

	(3)	the Company or any Subsidiary Guarantor has paid or caused to be paid all sums payable by it under the Indenture; and

	(4)	the Company has delivered irrevocable instructions to the Trustee under the Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.

In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.

The Indenture provides that the Trustee, any successor trustee and any Paying Agent for the Notes shall at all times have and maintain their respective principal places of business and, in the case of the Trustee and any successor trustee, principal corporate trust offices, in the State of New York.

If the Trustee becomes a creditor of the Company or any Subsidiary Guarantor, the Indenture limits its right to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest, it must eliminate such conflict within 90 days, apply to the SEC for permission to continue or resign.

The Indenture provides that in case an Event of Default shall occur and be continuing, the Trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any Holder of Notes, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.

The outstanding notes were offered and sold to qualified institutional buyers in reliance on Rule 144A (“Rule 144A Notes”) and in offshore transactions in reliance on Regulation S (“Regulation S Notes”). The new notes have been registered under the Securities Act and are freely transferable. Except as set forth below, the new notes will be issued in registered, global form in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The new notes will be issued upon completion of the exchange offer.

The new notes initially will be represented by one or more notes in registered, global form without interest coupons (the “Global Notes”). The Global Notes will be deposited upon issuance with the Trustee as custodian for DTC, in New York, New York, and registered in the name of DTC or its nominee, in each case for credit to an account of a direct or indirect participant in DTC as described below.

Except as set forth below, the Global Notes may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the Global Notes may not be exchanged for notes in certificated form except in the limited circumstances described below. See “— Exchange of Global Notes for Certificated Notes.” Except in the limited circumstances described below, owners of beneficial interests in the Global Notes will not be entitled to receive physical delivery of Notes in certificated form.

The following description of the operations and procedures of DTC, Euroclear and Clearstream are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. The Company takes no responsibility for these operations and procedures and urges investors to contact the system or their participants directly to discuss these matters.

DTC has advised the Company that DTC is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the “Participants”) and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the “Indirect Participants”). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants.

DTC has also advised the Company that, pursuant to procedures established by it:


	(1)	upon deposit of the Global Notes, DTC will credit the accounts of Participants the respective principal amounts of the new notes represented by the Global Notes purchased by the Participants in this exchange offer; and

	(2)	ownership of these interests in the Global Notes will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interest in the Global Notes).

Investors in the Global Notes who are Participants in DTC’s system may hold their interests therein directly through DTC. Investors in the Global Notes who are not Participants may hold their interests therein indirectly through organizations (including Euroclear and Clearstream) which are Participants in such system. Euroclear and Clearstream will hold interests in the Global Notes on behalf of their

participants through customers’ securities accounts in their respective names on the books of their respective depositories, which are Morgan Guaranty Trust Company of New York, Brussels office, as operator of Euroclear, and Citibank, N.A., as operator of Clearstream. All interests in a Global Note, including those held through Euroclear or Clearstream, may be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream may also be subject to the procedures and requirements of such systems. The laws of some states require that certain Persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a Global Note to such Persons will be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of a Person having beneficial interests in a Global Note to pledge such interests to Persons that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests.

Except as described below, owners of interest in the Global Notes will not have notes registered in their names, will not receive physical delivery of notes in certificated form and will not be considered the registered owners or “Holders” thereof under the Indenture for any purpose.

Payments in respect of the principal of, and interest and premium and additional interest, if any, on a Global Note registered in the name of DTC or its nominee will be payable to DTC in its capacity as the registered Holder under the Indenture. Under the terms of the Indenture, the Company and the Trustee will treat the Persons in whose names the notes, including the Global Notes, are registered as the owners thereof for the purpose of receiving payments and for all other purposes. Consequently, neither the Company, the Trustee nor any agent of the Company or the Trustee has or will have any responsibility or liability for:


	(1)	any aspect of DTC’s records or any Participant’s or Indirect Participant’s records relating to or payments made on account of beneficial ownership interest in the Global Notes or for maintaining, supervising or reviewing any of DTC’s records or any Participant’s or Indirect Participant’s records relating to the beneficial ownership interests in the Global Notes; or

	(2)	any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants.

DTC has advised the Company that its current practice, upon receipt of any payment in respect of securities such as the notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe it will not receive payment on such payment date. Each relevant Participant is credited with an amount proportionate to its beneficial ownership of an interest in the principal amount of the relevant security as shown on the records of DTC. Payments by the Participants and the Indirect Participants to the beneficial owners of Notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the Trustee or the Company. Neither the Company nor the Trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of the notes, and the Company and the Trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.

Transfers between Participants in DTC will be effected in accordance with DTC’s procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.

Cross-market transfers between the Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by its respective depositary; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be, will,

if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or Clearstream.

DTC has advised the Company that it will take any action permitted to be taken by a Holder of Notes only at the direction of one or more Participants to whose account DTC has credited the interests in the Global Notes and only in respect of such portion of the aggregate principal amount of the Notes as to which such Participant or Participants has or have given such direction. However, if there is an Event of Default under the notes, DTC reserves the right to exchange the Global Notes for legended Notes in certificated form, and to distribute such Notes to its Participants.

Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in the Global Notes among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and may discontinue such procedures at any time. Neither the Company nor the Trustee nor any of their respective agents will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.

A Global Note is exchangeable for definitive notes in registered certificated form (“Certificated Notes”) if:


	(1)	DTC (a) notifies the Company that it is unwilling or unable to continue as depositary for the Global Notes and the Company fails to appoint a successor depositary or (b) has ceased to be a clearing agency registered under the Exchange Act;

	(2)	the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Certificated Notes; or

	(3)	there shall have occurred and be continuing a Default or Event of Default with respect to the Notes.

In addition, beneficial interests in a Global Note may be exchanged for Certificated Notes upon prior written notice given to the Trustee by or on behalf of DTC in accordance with the Indenture. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests in Global Notes will be registered in the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures) and will bear any applicable restrictive legend.

Certificated Notes may not be exchanged for beneficial interests in any Global Note unless the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer will comply with any transfer restrictions applicable to such Notes.

The Company will make payments in respect of the Notes represented by the Global Notes (including principal, premium, if any, interest and additional interest, if any) by wire transfer of immediately available funds to the accounts specified by the Global Note Holder. The Company will make all payments of principal, interest and premium and additional interest, if any, with respect to Certificated Notes by wire transfer of immediately available funds to the accounts specified by the Holders thereof or, if no such account is specified, by mailing a check to each such Holder’s registered address. The notes represented by the Global Notes are expected to trade in DTC’s Same-Day Funds Settlement System, and

Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant in DTC will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised the Company that cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.

Set forth below are certain defined terms used in the Indenture. Reference is made to the Indenture for a full disclosure of all such terms, as well as any other capitalized terms used herein for which no definition is provided.


	(1)	Indebtedness of any other Person existing at the time such other Person is merged with or into, or becomes a Subsidiary of, such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person; and

	(2)	Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

“Affiliate” of any specified Person means (1) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person or (2) any executive officer or director of such specified Person. For purposes of this definition, “control,” as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” shall have correlative meanings.


	(1)	the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by the provisions of the Indenture described above under the caption “— Repurchase at the Option of Holders — Change of Control” and/or the provisions described above under the caption “— Certain Covenants — Merger, Consolidation or Sale of Assets” and not by the provisions of the covenant described above under the caption “— Repurchase at the Option of Holders — Asset Sales”; and

	(2)	the issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or the sale by the Company or any Restricted Subsidiary of Equity Interests in any of its Subsidiaries.

Notwithstanding the preceding, the following items shall be deemed not to be Asset Sales:


	(1)	any single transaction or series of related transactions that involves assets having a fair market value of less than $1,000,000;

	(2)	a transfer of assets between or among the Company and its Restricted Subsidiaries;


	(3)	an issuance of Equity Interests by a Restricted Subsidiary to the Company or to another Restricted Subsidiary;

	(4)	(a) the sale or lease of equipment (other than in connection with an Expansion Equipment Sale-Leaseback Transaction), inventory, accounts receivable or other assets in the ordinary course of business and (b) the lease of any excess real property acquired in the ordinary course of business, consistent with past practices, in connection with the opening of a new store;

	(5)	the sale or other disposition of Cash Equivalents;

	(6)	a Permitted Investment or a Restricted Payment that is permitted by the covenant described above under the caption “— Certain Covenants — Restricted Payments”;

	(7)	any transfer of assets by the Company and/or any of its Restricted Subsidiaries effected pursuant to and in accordance with the agreements entered into in respect of the Permitted Sale and Lease-back Transaction;

	(8)	any sale or disposition of any property or equipment that has become damaged, worn out, obsolete or otherwise unsuitable for use in connection with the business of the Company or its Restricted Subsidiaries;

	(9)	dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements; and


	(10)	any sale or disposition deemed to occur in connection with creating or granting a Permitted Lien.

“Attributable Debt” in respect of a Sale and Lease-back Transaction by the Company or a Restricted Subsidiary means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such Sale and Lease-back Transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” shall have a corresponding meaning.


	(1)	with respect to a corporation, the board of directors of the corporation;

	(2)	with respect to a partnership, the board of directors of the general partner of the partnership; and

	(3)	with respect to any other Person, the board or committee of such Person serving a similar function.

“Build-to-Suit Sale-Leaseback Transaction” means, in respect of any real property acquired and improved by the Company or any of its Restricted Subsidiaries (whether before or after the date of the Indenture) solely in connection with a new store opening, any transaction occurring after the Issue Date whereby such real property is sold by and leased back to the Company or such Restricted Subsidiary within a period ending not later than the date that is the earlier of (i) two years after the date such real property was acquired and (ii) 270 days after the date that construction work to improve such real property commenced.

“Capital Lease” means any lease of any property by the Company or any of the Restricted Subsidiaries, as lessee, that should, in accordance with GAAP, be classified and accounted for as a capital lease on the consolidated balance sheet of the Company and its Subsidiaries.

“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capital Lease.


	(1)	in the case of a corporation, corporate stock;

	(2)	in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

	(3)	in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

	(4)	any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.


	(1)	United States dollars and, to the extent received by the Company or any of its Restricted Subsidiaries in the ordinary course of business, foreign currency;

	(2)	securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition;

	(3)	certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or better;

	(4)	repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above;

	(5)	commercial paper having a rating of “P-2” or better from Moody’s Investors Service, Inc. or “A-2” or better from Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., and in each case maturing within six months after the date of acquisition;

	(6)	securities issued and fully-guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, rated at least “A” by Moody’s Investors Service, Inc. and Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., and having maturities of not more than six months from the date of acquisition; and

	(7)	money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition.


	(1)	the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act);


	(2)	the approval by the holders of the Voting Stock of the Company of a plan relating to the liquidation or dissolution of the Company or, if no such approval is required, the adoption of a plan relating to the liquidation or dissolution of the Company;

	(3)	any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the ultimate Beneficial Owner, directly or indirectly, of 50% or more of the voting power of the Voting Stock of the Company;

	(4)	the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors; or

	(5)	the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into the Company, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where (A) the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance) and (B) immediately after such transaction, no “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes, directly or indirectly, the beneficial owner (as defined above) of 30% or more of the voting power of all classes of Voting Stock of the Company.

“Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus:


	(1)	provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

	(2)	Fixed Charges to the extent deducted in computing such Consolidated Net Income; plus

	(3)	depreciation, amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; minus

	(4)	non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue consistent with past practice, in each case, on a consolidated basis and determined in accordance with GAAP.

Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation and amortization and other non-cash expenses of, a Restricted Subsidiary of the Company shall be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company only to the extent that a corresponding amount would be permitted at the date of determination to be dividended to the Company by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Subsidiary or its stockholders.

“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:


	(1)	the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid in cash to the specified Person or a Wholly Owned Restricted Subsidiary thereof;

	(2)	the Net Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its equityholders;

	(3)	the Net Income of any Person acquired during the specified period for any period prior to the date of such acquisition shall be excluded;

	(4)	the cumulative effect of a change in accounting principles shall be excluded; and

	(5)	the Net Income (but not loss) of any Unrestricted Subsidiary shall be excluded, whether or not distributed to the specified Person or one of its Subsidiaries.

“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company who:


	(1)	was a member of such Board of Directors on the date of the Indenture; or

	(2)	was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election.

“Credit Agreement” means that certain Amended and Restated Senior Credit Agreement, to be dated as of November 4, 2003, by and among the Company, the guarantor subsidiaries and the lenders named therein and Wachovia Bank, National Association, as Administrative Agent and the Co-Syndication Agents and Co-Documentation Agents named therein, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, restated, modified, renewed, refunded, replaced or refinanced from time to time by one or more credit facilities.

“Credit Facilities” means one or more debt facilities (including, without limitation, the Credit Agreement) or commercial paper facilities, in each case with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time by one or more of such facilities.

“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is one year after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide

that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with the covenant described above under the caption “— Certain Covenants — Restricted Payments.” The term “Disqualified Stock” shall also include any options, warrants or other rights that are convertible into Disqualified Stock or that are redeemable at the option of the holder, or required to be redeemed, prior to the date that is 91 days after the date on which the Notes mature.

“Domestic Subsidiary” means any Subsidiary of the Company that was formed under the laws of the United States or any state thereof or the District of Columbia.

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

“Equity Offering” means an offer and sale of Equity Interests (other than Disqualified Stock) however designated and whether voting or non-voting, and any and all rights or options to acquire such Equity Interests (other than Disqualified Stock).

“Existing Indebtedness” means the aggregate principal amount of Indebtedness of the Company and its Subsidiaries (other than Indebtedness under the Credit Agreement and the Notes) in existence on the date of the Indenture, until such amounts are repaid.

“Expansion Equipment Sale-Leaseback Transaction” means, in respect of any Equipment acquired by the Company or any of its Restricted Subsidiaries (whether before or after the date of the Indenture) solely in connection with a new store opening, any transaction occurring after the Issue Date whereby such Equipment is sold by and leased back under a Capital Lease to the Company or such Restricted Subsidiary within a period ending not later than the date that is 120 days after the date that such new store commences operations.

“fair market value” means the price that would be paid in an arm’s-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Board of Directors, whose determination shall be conclusive if evidenced by a Board Resolution.

“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:


	(1)	the consolidated interest expense of such Person and its Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations; plus

	(2)	the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

	(3)	any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus

	(4)	the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Stock or preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the numerator of which is one and the denominator of which is


		one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP.

“Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems any Indebtedness or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of the applicable four-quarter reference period.


	(1)	acquisitions and dispositions of business entities or property and assets constituting a division or line of business of any Person that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date shall be given pro forma effect as if they had occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be calculated on a pro forma basis in accordance with Regulation S-X under the Exchange Act;

	(2)	the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, shall be excluded;

	(3)	the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP shall be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Subsidiaries following the Calculation Date; and

	(4)	consolidated interest expense attributable to interest on any Indebtedness (whether existing or being incurred) computed on a pro forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the Calculation Date (taking into account any interest rate option, swap, cap or similar agreement applicable to such Indebtedness if such agreement has a remaining term in excess of 12 months or, if shorter, at least equal to the remaining term of such Indebtedness) had been the applicable rate for the entire period.

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, the opinions and pronouncements of the Public Company Accounting Oversight Board and in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time.

“Guarantee” means a guarantee, other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness.

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:


	(1)	interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and other agreements or arrangements designed to protect such Person against fluctuations in interest


		rates (or, in the case of swaps of fixed-rate to floating-rate Indebtedness, to benefit from decreases in interest rates);

	(2)	commodity swap agreements, commodity option agreements, forward contracts and other agreements or arrangements designed to protect such Person against fluctuations in commodity prices; and

	(3)	foreign exchange contracts, currency swap agreements and other agreements or arrangements designed to protect such Person against fluctuations in foreign currency exchange rates.

“incur” means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become directly or indirectly liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, such Indebtedness; provided that (1) any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary will be deemed to be incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and (2) neither the accrual of interest nor the accretion of original issue discount nor the payment of interest in the form of additional Indebtedness (to the extent provided for when the Indebtedness on which such interest is paid was originally issued) shall be considered an incurrence of Indebtedness.

“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent, in respect of:


	(1)	borrowed money;

	(2)	evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof), but excluding obligations with respect to letters of credit (including trade letters of credit) securing obligations described in clause (5) below entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement;

	(3)	banker’s acceptances;

	(4)	Capital Lease Obligations;

	(5)	the balance deferred and unpaid of the purchase price of any property which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, except any such balance that constitutes an accrued expense or trade payable;

	(6)	Hedging Obligations, other than Hedging Obligations that are incurred for the purpose of protecting the Company or its Restricted Subsidiaries against fluctuations in interest rates (or, in the case of swaps of fixed-rate to floating-rate Indebtedness, to benefit from decreases in interest rates), commodity prices or foreign currency exchange rates, and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder; or

	(7)	Disqualified Stock valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued dividends,

if and to the extent any of the preceding items (other than letters of credit, Hedging Obligations and Disqualified Stock) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes (x) all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person), provided that the amount of such Indebtedness shall be the lesser of (A) the fair market value of such asset at such date of determination and (B) the amount of such Indebtedness, and (y) to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock

which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock, such fair market value shall be determined in good faith by the Board of Directors of the issuer of such Disqualified Stock.

The amount of any Indebtedness outstanding as of any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation, and shall be:


	(1)	the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and

	(2)	the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness;

provided that the obligation to repay money borrowed and set aside at the time of the incurrence of any Indebtedness in order to pre-fund the payment of the interest on such Indebtedness shall be deemed not to be “Indebtedness” so long as such money is held to secure the payment of such interest.

“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans or other extensions of credit (including Guarantees or other arrangements, but excluding advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of the Company or its Restricted Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business), advances (excluding commission, travel and similar advances to officers and employees made consistent with past practices), capital contributions (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.

If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Investment in such Restricted Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of the covenant described above under the caption “— Certain Covenants — Restricted Payments.” The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person shall be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the fair market value of the Investment held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of the covenant described above under the caption “— Certain Covenants — Restricted Payments.”

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

“Net Income” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:


	(1)	any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with: (a) any asset sale outside the ordinary course of business; or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

	(2)	any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain or loss.

“Net Proceeds” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of Indebtedness, secured by a Lien on the asset or assets that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established or any liabilities associated with the assets disposed of in such transaction, including, without limitation, pension and other post-employment liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, in each case in accordance with GAAP.

“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“Permitted Business” means any business conducted or proposed to be conducted (as described in this prospectus) by the Company and its Restricted Subsidiaries on the date of the Indenture and other businesses reasonably related, ancillary or complementary thereto.


	(1)	any Investment in the Company or in a Restricted Subsidiary of the Company;

	(2)	any Investment in Cash Equivalents;

	(3)	any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:


	(a)	such Person becomes a Restricted Subsidiary of the Company; or

	(b)	such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company;


	(4)	any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with the covenant described above under the caption “— Repurchase at the Option of Holders — Asset Sales”;

	(5)	Investments acquired solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;

	(6)	Hedging Obligations that are incurred for the purpose of protecting the Company or its Restricted Subsidiaries against fluctuations in interest rates (or, in the case of swaps of fixed-rate to floating-rate Indebtedness, to benefit from decreases in interest rates), commodity prices or foreign currency exchange rates, and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in


		interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;

	(7)	stock, obligations or securities received in satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement under the bankruptcy or insolvency of any debtor;

	(8)	any acquisition of assets solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;

	(9)	payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;


	(10)	loans or advances to employees made in the ordinary course of business of the Company or any Restricted Subsidiary not to exceed $1.0 million outstanding at any one time for all loans or advances under this clause (10);

	(11)	Investments in existence on the date of the Indenture;

	(12)	Guarantees issued in accordance with the covenant described above in “— Certain Covenants — Incurrence of Indebtedness and Issuance of Preferred Stock”;

	(13)	other Investments in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (13) at that time outstanding, not to exceed $15.0 million; and

	(14)	investments in “rabbi trusts” made by the Company or a Restricted Subsidiary in connection with executive deferred compensation arrangements entered into by the Company or such Restricted Subsidiary in the ordinary course of business consistent with past practice.


	(1)	Liens on the assets of the Company and any Restricted Subsidiary securing Senior Debt that was permitted by the terms of the Indenture to be incurred;

	(2)	Liens in favor of the Company or any Restricted Subsidiary;

	(3)	Liens on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any Restricted Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with the Company or the Restricted Subsidiary;

	(4)	Liens on property existing at the time of acquisition thereof by the Company or any Restricted Subsidiary of the Company; provided, that such Liens were in existence prior to the contemplation of such acquisition and do not extend to any property other than the property so acquired by the Company or the Restricted Subsidiary;

	(5)	Liens existing on the date of the Indenture;

	(6)	Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (4) of the second paragraph of the covenant entitled “— Certain Covenants — Incurrence of Indebtedness and Issuance of Preferred Stock” covering only the assets acquired with such Indebtedness;

	(7)	statutory and common law Liens of landlords and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other similar Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and for which a reserve or other


		appropriate provision, if any, as shall be required in conformity with GAAP shall have been made;

	(8)	(a) Liens on cash or Cash Equivalents securing Hedging Obligations of the Company or any of its Restricted Subsidiaries that do not constitute Indebtedness or securing letters of credit that support such Hedging Obligations and (b) Liens securing Hedging Obligations of the Company or any of its Restricted Subsidiaries that do not constitute Indebtedness and that fix, hedge or swap interest-rate risk on the Notes;

	(9)	Liens for taxes, assessments and governmental charges not yet delinquent or being contested in good faith and for which adequate reserves have been established to the extent required by GAAP;


	(10)	Liens incurred or deposits made in the ordinary course of business in connection with worker’s compensation, unemployment insurance or other social security obligations;

	(11)	Liens, deposits or pledges to secure the performance of bids, tenders, contracts (other than contracts for the payment of Indebtedness), leases, or other similar obligations arising in the ordinary course of business;

	(12)	survey exceptions, encumbrances, easements or reservations of, or rights of others for, rights of way, zoning or other restrictions as to the use of properties, and defects in title which, in the case of any of the foregoing, were not incurred or created to secure the payment of Indebtedness, and which in the aggregate do not materially adversely affect the value of such properties or materially impair the use for the purpose of which such properties are held by the Company or any Restricted Subsidiaries;

	(13)	judgment and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;

	(14)	Liens, deposits or pledges to secure public or statutory obligations, surety, stay, appeal, indemnity, performance or other similar bonds or obligations; and Liens, deposits or pledges in lieu of such bonds or obligations, or to secure letters of credit in lieu of our supporting the payment of such bonds or obligations;

	(15)	Liens on property or assets used to defease Indebtedness that was not Incurred in violation of the Indenture;

	(16)	Liens in favor of collecting or payor banks having a right of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any Subsidiary on deposit with or in possession of such banks;

	(17)	any interest or title or a lessor, licensor or sublicensor in the property subject to any lease, license or sublicense entered into in the ordinary course of business;

	(18)	Liens arising from precautionary UCC financing statements regarding operating leases or consignments; and

	(19)	Liens (other than Liens permitted by clauses (1) through (18)) incurred in the ordinary course of business of the Company or any Restricted Subsidiary of the Company with respect to obligations (other than Indebtedness) that do not exceed $5.0 million at any one time outstanding.

“Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance,


	(1)	the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest thereon and the amount of any reasonably determined premium necessary to accomplish such refinancing and such reasonable expenses incurred in connection therewith);

	(2)	such Permitted Refinancing Indebtedness has a final maturity date the same as or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

	(3)	if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes or the Subsidiary Guarantees, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

	(4)	if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is pari passu in right of payment to the Notes or the Subsidiary Guarantees, such Permitted Refinancing Indebtedness is pari passu or subordinated in right of payment to, the Notes; and

	(5)	such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.

“Permitted Sale and Lease-back Transaction” means the sale and leaseback transactions to be consummated among the Company, O’Charley’s Restaurant Properties, LLC and CNL Funding 2001-A LP after the Issue Date pursuant to purchase agreements and leases to be entered into effectuating a letter of intent dated September 2, 2003 between the Company and CNL Restaurant Capital, LP, as amended pursuant to a letter agreement dated October 29, 2003, and as such letter of intent may be further amended to provide for additional sale and leaseback transactions, provided that the total number of O’Charley’s restaurant properties to be sold and leased back pursuant to such transactions after the Issue Date shall not exceed 20 and the total gross proceeds derived therefrom shall not exceed $35 million.

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

“Replacement Assets” means (1) non-current tangible assets that will be used or useful in a Permitted Business, (2) substantially all the assets of a Permitted Business or a majority of the Voting Stock of any Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary or (3) Investments to the extent permitted under the covenant described above under the caption “— Certain Covenants — Restricted Payments” (other than Investments above described in clause (4) of the definition of “Permitted Investments”).

“Restricted Investment” means an Investment other than a Permitted Investment.

“Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.

“Sale and Lease-back Transaction” means, with respect to any Person, any transaction involving any of the assets or properties of such Person whether now owned or hereafter acquired, whereby such Person sells or transfers such assets or properties and then or thereafter leases such assets or properties or any part thereof or any other assets or properties which such Person intends to use for substantially the same purpose or purposes as the assets or properties sold or transferred, but excluding the Permitted Sale and

“Significant Subsidiary” means any Subsidiary that would constitute a “significant subsidiary” within the meaning of Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of the Indenture.

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.


	(1)	any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

	(2)	any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof).

“Subsidiary Guarantee” means the Guarantee by any Subsidiary Guarantor of the Company’s payment obligations under the Notes on a senior subordinated basis.


	(1)	Air Travel Services, Inc., DFI, Inc., O’Charley’s Finance Company, Inc., O’Charley’s Management Company, Inc., O’Charley’s Restaurant Properties, LLC, O’Charley’s Service Company, Inc., O’Charley’s Sports Bar, Inc., OCI, Inc., OPI, Inc., 99 Commissary, LLC, 99 Restaurants, LLC, 99 Restaurants of Boston, LLC, 99 Restaurants of Massachusetts, a Massachusetts Business Trust, 99 Restaurants of Vermont, LLC, 99 West, Inc., Stoney River Management Company, Inc., Stoney River, LLC and Stoney River Legendary Management, L.P.; and

	(2)	any other Subsidiary that executes a Subsidiary Guarantee in accordance with the provisions of the Indenture;

and their respective successors and assigns until released from their obligations under their Subsidiary Guarantees and the Indenture in accordance with the terms of the Indenture.

“UCC” means the Uniform Commercial Code as in effect in the State of New York, as amended, from time to time.

“Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution in compliance with the covenant described under the caption “— Certain Covenants — Designation of Restricted and Unrestricted Subsidiaries,” and any Subsidiary of such Subsidiary.

“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:


	(1)	the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including


		payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

	(2)	the then outstanding principal amount of such Indebtedness.

“Wholly Owned Restricted Subsidiary” of any specified Person means a Restricted Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares or Investments by foreign nationals mandated by applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries of such Person.

Based on interpretations by the staff of the Securities and Exchange Commission in no action letters issued to third parties, we believe that you may transfer new notes issued in the exchange offer in exchange for the outstanding notes if:


	•	you acquire the new notes in the ordinary course of your business;

	•	you have no arrangement or understanding with any person to participate in a distribution of the outstanding notes or the new notes;

	•	you are not our “affiliate” within the meaning of Rule 405 under the Securities Act, or if you are our affiliate, you will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable; and

	•	if you are not a broker-dealer, you are not engaged in, and do not intend to engage in, the distribution of the new notes.

Each broker-dealer registered as such under the Exchange Act that receives new notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for outstanding notes where those outstanding notes were acquired as a result of market-making activities or other trading activities. We have agreed that, starting on the expiration date of the exchange offer and ending on the close of business 180 days after the expiration date, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any resale of new notes.

We will not receive any proceeds from any sale of new notes by broker-dealers. New notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such new notes. Any broker-dealer that resells new notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of such new notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit of any such resale of new notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

For a period of 180 days after the expiration date or such shorter period as will terminate when all new notes covered by this prospectus have been sold pursuant to this prospectus, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We have agreed to pay all expenses incident to the exchange offer (including the expenses of one counsel for the holders of the outstanding notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the outstanding notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.

The following is a summary of the material U.S. federal income tax considerations relating to the exchange of the outstanding notes by an initial beneficial owner of the outstanding notes. This summary is based upon the Internal Revenue Code of 1986, as amended (the “Code”), existing and proposed Treasury Regulations and judicial decisions and administrative interpretations thereunder, as of the date hereof, all of which are subject to change or to differing interpretation, possibly with retroactive effect. Prospective investors should note that any such change or interpretation with retroactive effect could result in federal income tax consequences different from those discussed below. This summary does not purport to address all tax considerations that may be important to a particular holder in light of the holder’s circumstances or to certain categories of investors (such as certain financial institutions, insurance companies, tax-exempt organizations, dealers in securities or foreign currency, controlled foreign corporations, passive foreign investment companies, foreign personal holding companies, persons who hold the outstanding notes through partnerships or other pass-through entities, U.S. expatriates, persons who hold the outstanding notes as part of a hedge, conversion, straddle or other risk reduction transaction or U.S. Holders (as defined below) that have a “functional currency” other than the U.S. dollar) that may be subject to special rules. This discussion also does not deal with purchasers of subsequent offerings under the same Indenture or subsequent holders of the outstanding notes. This summary assumes the holders hold the outstanding notes as “capital assets” within the meaning of Section 1221 of the Code. This discussion does not address the tax considerations arising under the laws of any foreign, state or local jurisdiction or the applicability of U.S. federal gift or estate taxation.

This summary discusses the federal income tax considerations applicable to the initial owners of the outstanding notes who are beneficial owners of the outstanding notes and who purchased the outstanding notes for cash at their “issue price” as defined in Section 1273 of the Code and the regulations thereunder and does not discuss the tax considerations applicable to subsequent purchasers of the outstanding notes. We have not sought any ruling from the Internal Revenue Service, or IRS, with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS will agree with those statements and conclusions. In addition, those statements and conclusions do not preclude the IRS from successfully asserting, or a court from adopting, a contrary position.

Beneficial owners of outstanding notes considering the exchange of outstanding notes for new notes should consult their tax advisors with respect to the application of the U.S. federal income tax laws to their particular situations, as well as any tax consequences arising under the federal estate or gift tax rules or under the laws of any state, local or foreign taxing jurisdiction or under any applicable tax treaty.

As used herein, the term “U.S. Holder” means a beneficial owner of an outstanding note that is:


	•	an individual citizen or resident of the U.S.;

	•	a corporation (including any entity treated as a corporation for U.S. tax purposes) created or organized in or under the laws of the U.S. or of any political subdivision thereof;

	•	an estate, the income of which is subject to U.S. federal income taxation regardless of the source of the income; or

	•	a trust subject to the primary supervision of a U.S. court and the control of one or more U.S. persons, or a trust in existence on August 20, 1996 that has elected to continue to be treated as a U.S. person.

If a partnership (including for this purpose any entity treated as a partnership for U.S. tax purposes) is a beneficial owner of outstanding notes, the U.S. tax treatment of a partner in the partnership will generally depend on the status of the partner and the activities of the partnership. Both a partnership

As used herein, the term “Non-U.S. Holder” means a beneficial owner of an outstanding note that is not a U.S. Holder.

The exchange of the outstanding notes for new notes pursuant to the exchange offer should not constitute a material modification of the terms of the outstanding notes and therefore should not constitute a taxable event for U.S. federal income tax purposes. In that event, the exchange would have no U.S. federal income tax consequences to a U.S. Holder or Non-U.S. Holder, so that the U.S. Holder’s or Non-U.S. Holder’s holding period and adjusted tax basis for an outstanding note would not be affected and thus the U.S. Holder or Non-U.S. Holder will have the same adjusted tax basis and holding period in the new note as it had in the outstanding note immediately before the exchange, and the U.S. Holder or Non-U.S. Holder would continue to take into account income in respect of a new note in the same manner as before the exchange.

The preceding discussion of certain U.S. federal income tax considerations is for general information only and is not tax advice. Accordingly, each beneficial owner of outstanding notes should consult its tax advisor as to the particular U.S. federal, state, and local tax consequences of participating in the exchange offer, and the foreign tax consequences of participating in the exchange offer, as well as the consequences of any proposed change in applicable laws.

Certain legal matters in connection with the exchange offer will be passed upon for us by Bass, Berry & Sims PLC, Nashville, Tennessee.

The consolidated financial statements of O’Charley’s Inc. as of December 29, 2002 and December 30, 2001, and for each of the years in the three-year period ended December 29, 2002, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. Their report refers to a change in accounting for goodwill and other intangible assets in 2002.

The combined financial statements of Ninety Nine Restaurant and Pub as of and for the years ended June 30, 2002 and June 24, 2001, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.

We file reports and other information with the Securities and Exchange Commission. We filed with the Securities and Exchange Commission a registration statement on Form S-4 under the Securities Act with respect to the exchange offer covered by this prospectus. This prospectus does not contain all the information included in the registration statement nor all of the exhibits. Additional information about our company is included in the registration statement and the exhibits. Statements contained in this prospectus regarding the contents of any contract or any other document to which reference is made are not necessarily complete, and, in each instance, reference is made to the copy of such contract or other document filed as an exhibit to the registration statement, each such statement being qualified in all respects by such reference. A copy of the registration statement and the exhibits filed may be inspected without charge at the public reference room maintained by the Securities and Exchange Commission in Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of all or any part of the registration statement may be obtained upon the payment of the fees prescribed by the Securities and Exchange Commission. Information on the operation of the public reference room may be obtained by calling the Securities and Exchange Commission at 1-800-SEC-0330. The Securities and Exchange Commission maintains a Web site that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Securities and Exchange Commission. The address of this Web site is http://www.sec.gov.

We file annual, quarterly and current reports and other information with the Securities and Exchange Commission. In this prospectus, we “incorporate by reference” some of the information that we file with the Securities and Exchange Commission, which means that we can disclose important information to you by referring to that information. The information incorporated by reference is considered to be part of this prospectus.

We incorporate by reference into this prospectus the documents listed below and any future filings we make with the Securities and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, other than information furnished pursuant to Items 9 or 12 of Form 8-K (and the related exhibits), including any filings after the date of this prospectus, until the termination of the exchange offer:


	•	Our Annual Report on Form 10-K for the fiscal year ended December 29, 2002, as amended and restated by our Annual Report on Form 10-K/A for that fiscal year;


	•	Our Quarterly Report on Form 10-Q for the quarter ended April 20, 2003;

	•	Our Quarterly Report on Form 10-Q for the quarter ended July 13, 2003;

	•	Our Quarterly Report on Form 10-Q for the quarter ended October 5, 2003;

	•	Our Current Report on Form 8-K/ A filed with the SEC on March 27, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on March 28, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on May 14, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on July 16, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on August 8, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on October 8, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on October 21, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on October 21, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on October 29, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on October 30, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on October 30, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on October 31, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on October 31, 2003;

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on December 30, 2003; and

	•	Our Current Report on Form 8-K filed with the Securities and Exchange Commission on February 2, 2004.

Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated by reference herein, modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

You may request a copy of any document incorporated by reference in this prospectus, other than exhibits to such documents which are not specifically incorporated by reference into those documents, at no cost, by writing or telephoning us at the following address or phone number:


	R. Jeffrey Williams,
	Corporate Controller,
	O’Charley’s Inc.,
	3038 Sidco Drive,
	Nashville, Tennessee 37204,
	(615) 256-8500

To obtain delivery of any of our documents, you must make your request to us no later than five business days before the expiration date of the exchange offer. The exchange offer will expire at 5:00 p.m., Eastern time, on , 2004. The exchange offer can be extended by us in our sole discretion. See “The Exchange Offer — Expiration Date.”

The Tennessee Business Corporation Act (“TBCA”) provides that a corporation may indemnify any of its directors and officers against liability incurred in connection with a proceeding if (i) the director or officer acted in good faith, (ii) in the case of conduct in his or her official capacity with the corporation, the director or officer reasonably believed such conduct was in the corporation’s best interest, (iii) in all other cases, the director or officer reasonably believed that his or her conduct was not opposed to the best interest of the corporation, and (iv) in connection with any criminal proceeding, the director or officer had no reasonable cause to believe that his or her conduct was unlawful. In actions brought by or in the right of the corporation, however, the TBCA provides that no indemnification may be made if the director or officer was adjudged to be liable to the corporation. In cases where the director or officer is wholly successful, on the merits or otherwise, in the defense of any proceeding instigated because of his or her status as an officer or director of a corporation, the TBCA mandates that the corporation indemnify the director or officer against reasonable expenses incurred in the proceeding. The TBCA also provides that in connection with any proceeding charging improper personal benefit to an officer or director, no indemnification may be made if such officer or director is adjudged liable on the basis that personal benefit was improperly received. Notwithstanding the foregoing, the TBCA provides that a court of competent jurisdiction, upon application, may order that an officer or director be indemnified for reasonable expenses if, in consideration of all relevant circumstances, the court determines that such individual is fairly and reasonably entitled to indemnification, whether or not the standard of conduct set forth above was met.

Article VIII of the Restated Charter of O’Charley’s Inc. and Section 8 of the Charters of each of Air Travel Services, Inc., O’Charley’s Management Company, Inc., O’Charley’s Finance Company, Inc., O’Charley’s Service Company, Inc., and DFI, Inc. (each a “Tennessee Subsidiary”) provide that, to the fullest extent permitted by the TBCA, as amended from time to time, directors shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, and that to the extent permitted by the TBCA, the liability of a director to the corporation or its shareholders shall be further limited or eliminated. The Amended and Restated Bylaws of O’Charley’s Inc. and the Bylaws of each Tennessee Subsidiary provide that the corporation shall indemnify from liability, and advance expenses to, each present or former director or officer of the corporation to the fullest extent allowed under Tennessee law, as now or hereafter in effect.

O’Charley’s Inc. has obtained directors’ and officers’ liability insurance, the effect of which is to indemnify the directors and officers of the corporation and its subsidiaries against certain damages and expenses because of certain claims made against them caused by their negligent act, error or omission.

Section 145 of the Delaware General Corporation Law, or the DGCL, permits a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise. A corporation may indemnify against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person indemnified acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. If the person indemnified is not wholly successful in such action, suit or proceeding, but is successful, on the merits or otherwise, in one or more but less than all claims, issues or matters in such proceeding, he or she may be indemnified against expenses actually and reasonably incurred in connection with each successfully resolved claim, issue or matter. In the case of an action or suit by or in the right of the corporation to procure a judgment in its favor, no indemnification may be

made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware, or the court in which such action or suit was brought, shall determine upon application that, despite the adjudication of liability, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145 provides that, to the extent a present or former director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to above or in the defense of any claim, issue or manner therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.

Article Fifth of the Certificate of Incorporation of OCI, Inc., a Delaware corporation (“OCI”), states that OCI shall indemnify its directors and officers to the fullest extent permitted by law. Article VIII of the Bylaws of OCI states that any person made a party or threatened to be made a party to or otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or an officer of OCI or is or was serving at the request of OCI as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall be indemnified and held harmless by OCI to the fullest extent authorized by the DGCL against all expense, liability and loss (including attorney’s fees, judgments, fines, ERISA excise taxes, or penalties and amounts paid in settlement) reasonably incurred or suffered in connection therewith, except that, with respect to proceedings to enforce rights to indemnification, a person shall be indemnified only if the proceeding was authorized by OCI’s board of directors. The Bylaws of OCI further state that the right to indemnification includes the right to advancement of expenses incurred in defending a proceeding prior to the final disposition of the proceeding, provided that, if the DGCL so requires, such an advancement will be made only upon delivery by the indemnitee to OCI of an undertaking to repay all amounts so advanced if it is ultimately determined that the indemnitee is not entitled to the indemnification for expenses. Article Ten of the Certificate of Incorporation and Article VII, Section 7 of the Bylaws of Stoney River Management Company, Inc., a Delaware corporation, state that Stoney River Management Company, Inc. shall indemnify its officers, directors, employees and agents to the fullest extent permitted by the DGCL.

Article 109 of the Colorado Business Corporation Act, or CBCA, provides that a corporation may indemnify each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that he or she is or was a director or officer of a corporation, or at the request of the corporation, is a director, officer, employee or other agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, against all expense, liability, and loss reasonably incurred by any such person in connection therewith. Section 9 of the Articles of Incorporation of OPI, Inc., a Colorado corporation (“OPI”), provides that, to the fullest extent permitted by the CBCA, a director of OPI shall not be liable to OPI or its shareholders for monetary damages for breach of fiduciary duty as a director, and the personal liability of directors of OPI is further eliminated or limited to the fullest extent permitted by the CBCA. In addition, Section 5.6 of the Bylaws of OPI provide that OPI shall indemnify and advance expenses to each director and officer of OPI, or any person who may have served at the request of OPI’s board of directors or chief executive officer as a director or officer of another corporation, and any such person’s heirs, executors and administrators, to the full extent allowed by the laws of the State of Colorado, and that OPI may indemnify and advance expenses to any employee or agent of OPI who is not a director or officer, and such person’s heirs, executors and administrators, to the same extent as a director or officer if the board of directors determines that to do so is in the best interests of OPI.

Under Sections 10-2B-8.51 and 10-2B-8.56 of the Alabama Business Corporation Act, or ABCA, a corporation may indemnify, under certain circumstances, any person who was or is a party (or is threatened to be made a party) to any threatened, pending or completed claim, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise; provided, that the person acted in good faith and, with respect to any civil action or proceeding, in a manner he or she reasonably believed to be, in the case of conduct in his or her official capacity with the corporation, in its best interests, and, in all other cases, in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. Accordingly, Article XI of the Bylaws of O’Charley’s Sports Bar, Inc., an Alabama corporation (“O’Charley’s Sports Bar”), provides that O’Charley’s Sports Bar shall indemnify to the fullest extent permitted by the ABCA any person who has been made, or is threatened to be made, a party to an action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise (including an action, suit or proceeding by or in the right of O’Charley’s Sports Bar) by reason of the fact that the person is or was a director or officer of O’Charley’s Sports Bar, or a fiduciary within the meaning of ERISA with respect to an employee benefit plan, or serves at the request of O’Charley’s Sports Bar as a director or an officer, or as a fiduciary of an employee benefit plan, of another corporation, partnership, joint venture, trust or other enterprise.

As permitted by the Massachusetts Business Corporation Law, or MBCL, the Articles of Organization of 99 West, Inc., a Massachusetts corporation (“99 West”), state that each director or officer, present or former, of 99 West, or of any other corporation a majority of the stock of which is owned by 99 West, must be indemnified by 99 West against all costs and expenses (including the cost of reasonable settlements made with a view to curtailing costs of litigation, other than amounts paid to 99 West itself) reasonably incurred by or imposed upon him or her as a result of him or her having been a director or officer of 99 West. However, the MBCL provides that a director remains potentially liable for monetary damages for (i) any breach of the director’s duty of loyalty to a company or its stockholders; (ii) any acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law; (iii) an improper payment of a dividend, improper repurchase of a company’s stock, or certain loans to directors and officers of a company in violation of Sections 61 or 62 of MBCL; or (iv) any transaction from which a director derives an improper benefit. Accordingly, the Articles of Organization further provide that 99 West cannot indemnify any director or officer with respect to matters as to which he or she is finally adjudged not to have acted in good faith in the reasonable belief that his or her action was in the best interest of 99 West, or in respect of any matter on which any settlement or compromise is effected if the total expense substantially exceeds the expense which might reasonably be incurred by the director or officer in conducting the litigation to a final conclusion.

O’Charley’s Restaurant Properties, LLC, Stoney River, LLC, 99 Restaurants, LLC, 99 Commissary, LLC and 99 Restaurants of Boston, LLC

Section 18-108 of the Delaware Limited Liability Company Act provides that a limited liability company may indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever, subject to the standards and restrictions set forth in the limited liability company agreement. Accordingly, the Operating Agreement of each of O’Charley’s Restaurants Properties, LLC, Stoney River, LLC, 99 Restaurants, LLC, 99 Commissary, LLC and 99 Restaurants of Boston, LLC, each a Delaware limited liability company (each a “Delaware LLC” and together, the “Delaware LLCs”), provides that the Delaware LLC shall indemnify and, upon request, may advance expenses to any member, manager, employee or agent of the Delaware LLC, or any person who is serving at the request of the Delaware LLC in any such capacity with another entity, to the extent, consistent with

public policy, permitted by applicable law. Each Delaware LLC’s Operating Agreement further provides that the Delaware LLC may purchase and maintain insurance on behalf of an individual who is or was a manager, employee, independent contractor or agent of the Delaware LLC or who, while a manager, employee, independent contractor, or agent of the Delaware LLC, is or was serving at the request of the Delaware LLC as a manager, employee, independent contractor, agent, partner or trustee of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against liability asserted against or incurred by such an individual in that capacity or arising from that individual’s status as a manager, employee, independent contractor or agent of the Delaware LLC, regardless of whether the Delaware LLC would have the power to indemnify the individual against the liability.

Section 3062 of Title 11, Chapter 21 of the Vermont Statutes Annotated provides that a limited liability company may indemnify a person made a party to a proceeding because he or she is or was a manager, member, employee or agent of the limited liability company against liability incurred in the proceeding if the person conducted himself or herself in good faith; the person reasonably believed that, in the case of conduct in his or her official capacity with the limited liability company, the conduct was in the company’s best interests and, in all other cases, the conduct was not opposed to the company’s best interests; and in the case of a proceeding brought by a governmental entity, the person had no reasonable cause to believe that his or her conduct was unlawful and it is not finally determined that the person engaged in a reckless or intentional unlawful act. However, a limited liability company may not indemnify a person in connection with a proceeding by or in the right of the company in which the person was adjudged liable to the company or in connection with any other proceeding charging improper personal benefit to the person in which he or she is adjudged liable. Indemnification in connection with a proceeding by or in the right of the limited liability company is limited to reasonable expenses incurred in connection with the proceeding.

Accordingly, Article XVI of the Operating Agreement of 99 Restaurants of Vermont, LLC, a Vermont limited liability company (“99 Restaurants of Vermont”), provides that 99 Restaurants of Vermont will, subject to certain requirements, indemnify a person made or threatened to be made a party to a proceeding by reason of his or her former or present official capacity against judgments, penalties, fines, settlements and reasonable expenses, including attorney fees and disbursements, incurred by the person in connection with the proceeding so long as he or she has not been indemnified by another organization, acted in good faith, received no improper personal benefit, and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful. In addition, the Operating Agreement provides that a person who is made or threatened to be made a party to a proceeding is entitled, upon written request to 99 Restaurants of Vermont, to payment or reimbursement by 99 Restaurants of Vermont upon written affirmation that the criteria for indemnification have been satisfied and a written undertaking to repay all amounts paid by 99 Restaurants of Vermont if it is ultimately determined that those criteria were not satisfied, and a determination that the facts then known would not preclude indemnification.

Section 6.4 of the Declaration of Trust of 99 Restaurants of Massachusetts — A Massachusetts Business Trust (“99 Restaurants of Massachusetts”) states that any person who is made a party to an action, suit or proceeding, or against whom a claim or liability is asserted by reason of the fact that he or she or his or her testator or intestate was or is a trustee, officer, employee or agent of 99 Restaurants of Massachusetts, or served or serves at the request of 99 Restaurant of Massachusetts as a director, officer, employee or agent of another organization, will be indemnified and held harmless against all judgments, fines, amounts paid (in settlement or otherwise) and reasonable expenses, including attorney’s fees, actually and reasonably incurred in connection with the defense of the action, suit, proceeding, claim or alleged liability. However, Section 6.4 further provides that no person shall be entitled to indemnification

or reimbursement for any claim, obligation or liability which is adjudicated to have arisen out of or be based upon such person’s willful misfeasance, bad faith or gross negligence. Any person seeking indemnification must give prompt notice thereof, execute all such documents and take all such action to permit 99 Restaurants of Massachusetts to conduct the defense or settlement of the action, suit or proceeding. Any indemnification under Section 6.4 will be made only out of property of 99 Restaurants of Massachusetts.

Section 108 of the Georgia Revised Uniform Limited Partnership Act provides that, subject to limitations set forth in its partnership agreement, a limited partnership may indemnify and hold harmless any partner or other person from and against any and all claims and demands, unless those claims and demands arise from the person’s intentional misconduct or knowing violation of law or from a transaction for which the person received a personal benefit in violation or breach of the partnership agreement. Accordingly, the Limited Partnership Agreement of Stoney River Legendary Management, L.P., a Georgia limited partnership (“Stoney River Legendary Management”), provides that Stoney River Legendary Management must indemnify its general partner against expenses, including reasonable attorneys’ fees, actually and reasonably incurred by the general partner in connection with any claim relating to the general partner’s acting or failing to act in such capacity, except for any act or omission involving intentional misconduct or a knowing violation of law or any transaction for which the general partner received a personal benefit in violation or breach of any provision of the Limited Partnership Agreement.


(1)	Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on December 27, 2000.

(2)	Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended April 22, 2001.

(3)	Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended October 5, 2003.


	(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:


	(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

	(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

	(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change in such information in the Registration Statement.


	(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.

	(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

(c) The undersigned Registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in the documents filed subsequent to the effective date of the Registration Statement through the date of responding to the request.

(d) The undersigned Registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the Registration Statement when it became effective.

Pursuant to the requirements of the Securities Act of 1933, as amended, each of the registrants has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Nashville, State of Tennessee on the 2nd day of February, 2004.


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns


	Title:	Chairman of the Board and Chief


	Executive Officer

	AIR TRAVEL SERVICES, INC.


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: President

	O’CHARLEY’S FINANCE COMPANY, INC.


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: President

	O’CHARLEY’S MANAGEMENT COMPANY, INC.


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: Chief Manager

	O’CHARLEY’S SERVICE COMPANY, INC.


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: President

	O’CHARLEY’S SPORTS BAR, INC.


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: President

	99 COMMISSARY, LLC


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: Chief Manager and President


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: Chief Manager and President

	99 RESTAURANTS OF BOSTON, LLC


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: Chief Manager and President

	99 RESTAURANTS OF MASSACHUSETTS,
	A MASSACHUSETTS BUSINESS TRUST


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: President

	99 RESTAURANTS OF VERMONT, LLC

	By: 99 WEST, INC., ITS SOLE MEMBER


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: President

	99 WEST, INC.


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: President

	STONEY RIVER, LLC


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns
	Title: Chief Manager and President

	STONEY RIVER LEGENDARY MANAGEMENT, L.P.

	By: Stoney River, LLC, its General Partner


	By:	/s/ GREGORY L. BURNS



	Name: Gregory L. Burns


	Title:	Chief Manager and President

Each person whose signature appears below constitutes and appoints Gregory L. Burns and A. Chad Fitzhugh, and each of them individually without the other, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities to sign any and all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary full to all intents and purposes as he might or could do in person thereby ratifying and confirming all that said attorneys-in-fact and agents, or his substitute, may lawfully do or cause to be done by the virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed on its behalf by the following persons in the capacities and on the dates indicated.


(1)	Incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on December 27, 2000.

(2)	Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended April 22, 2001.

(3)	Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended October 5, 2003.

EX-3.3 3 g86000exv3w3.txt EX-3.3 CHARTER OF AIR TRAVEL SERVICES, INC. EXHIBIT 3.3 CHARTER OF AIR CHARTER SERVICES, INC. The undersigned, acting as the incorporator of a corporation under the Tennessee Business Corporation Act, adopts the following charter for such corporation: 1. The name of the corporation is Air Charter Services, Inc. 2. The corporation is for profit. 3. The street address of the corporation's principal office is: 25 Century Blvd., Suite 102 Nashville, TN 37214 County of Davidson 4. (a) The name of the corporation's initial registered agent is Gregory L. Burns. (b) The street address of the corporation's initial registered office in Tennessee is: 25 Century Blvd., Suite 102 Nashville, TN 37214 County of Davidson 5. The name and address of the incorporator is: J. Page Davidson 2700 First American Center Nashville, TN 37238 6. The number of shares of stock the corporation is authorized to issue is ten thousand (10,000) shares of common stock, no par value. 7. The shareholders of the corporation shall not have preemptive rights. 8. To the fullest extent permitted by the Tennessee Business Corporation Act as in effect on the date hereof and as hereafter amended from time to time, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. If The Tennessee Business Corporation Act or any successor statute is amended after adoption of this provision to authorize corporation action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Tennessee Business Corporation Act, as so amended from time to time. Any repeal or modification of this Paragraph 8 by the shareholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification or with respect to events occurring prior to such time. Dated: September 17, 1991 /s/ J. Page Davidson ----------------------------------- J. Page Davidson, Incorporator EX-3.4 4 g86000exv3w4.txt EX-3.4 AMENDMENT TO CHARTER/AIR TRAVEL SERVICES EXHIBIT 3.4 ARTICLES OF AMENDMENT TO THE CHARTER OF AIR CHARTER SERVICES, INC. Pursuant to the provisions of Section 48-20-106 of the Tennessee Business Corporation Act, the undersigned incorporator adopts the following articles of amendment to its charter: 1. The name of the corporation is Air Charter Services, Inc. 2. The text of each amendment adopted is: Article One shall be deleted in its entirety and the following shall be inserted in lieu thereof: 1. The name of the corporation is Air Travel Services, Inc. 3. The corporation is a for-profit corporation. 4. The amendment was duly adopted on September 23, 1991 by the incorporator. September 23, 1991 AIR CHARTER SERVICES, INC. - ----------------------- ------------------------------- Signature Date Name of Corporation Incorporator /s/ J. Page Davidson - ----------------------- ------------------------------- Signer's Capacity Signature J. Page Davidson ------------------------------- Name (typed of printed) EX-3.5 5 g86000exv3w5.txt EX-3.5 BYLAWS OF AIR TRAVEL SERVICES, INC. EXHIBIT 3.5 BYLAWS OF AIR TRAVEL SERVICES, INC. (the "Corporation") ARTICLE I. OFFICES The Corporation may have such offices, either within or without the State of Tennessee, as the Board of Directors may designate or as the business of the Corporation may require from time to time. ARTICLE II. SHAREHOLDERS 2.1 Annual Meeting. An annual meeting of the shareholders of the Corporation shall be held on such date as may be determined by the Board of Directors. The business to be transacted at such meeting shall be the election of directors and such other business as shall be properly brought before the meeting. 2.2 Special Meetings. A special meeting of shareholders shall be held on call of the Board of Directors or if the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the Corporation's Secretary one (1) or more written demands for the meeting describing the purpose or purposes for which such special meeting is to be held. Only business within the purpose or purposes described in the meeting notice may be conducted at a special shareholders' meeting. 2.3 Place of Meetings. The Board of Directors may designate any place, either within or without the State of Tennessee, as the place of meeting for any annual meeting or for any special meeting. If no place is fixed by the Board of Directors, the meeting shall be held at the principal office of the Corporation. 2.4 Notice of Meetings; Waiver. (a) Notice. Notice of the date, time and place of each annual and special shareholders' meeting and, in the case of a special meeting, a description of the purpose or purposes for which the meeting is called, shall be given no fewer than ten (10) days nor more than two (2) months before the date of the meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (b) Waiver. A shareholder may waive any notice required by law, the Charter or these Bylaws before or after the date and time stated in such notice. Except as provided in the next sentence, the waiver must be in writing, be signed by the shareholder entitled to the notice and be delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting; and (2) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. 2.5 Record Date. The Board of Directors shall fix as the record date for the determination of shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote or to take any other action, a date not more than seventy (70) days before the meeting or action requiring a determination of shareholders. A record date fixed for a shareholders' meeting is effective for any adjournment of such meeting unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than four (4) months after the date fixed for the original meeting. 2.6 Shareholders' List. After the record date for a meeting has been fixed, the Corporation shall prepare an alphabetical list of the names of all shareholders who are entitled to notice of a shareholders' meeting. Such list will be arranged by voting group (and within each voting group by class or series of shares) and will show the address of and number of shares held by each shareholder. The shareholders' list will be available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporation's principal office or at a place identified in the meeting notice in the city where the meeting will be held. A shareholder or his agent or attorney is entitled on written demand to inspect and, subject to the requirements of the Tennessee Business Corporation Act (the "Act"), to copy the list, during regular business hours and at his expense, during the period it is available for inspection. 2.7 Voting Groups; Quorum; Adjournment. All shares entitled to vote and be counted together collectively on a matter at a meeting of shareholders shall be a "voting group". Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Except as otherwise required by the Act or provided in the Charter, a majority of the votes entitled to be cast on a matter by a voting group constitutes a quorum of that voting group for action on that matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum of a voting group shall not be present or represented at any meeting, the shares entitled to vote thereat shall have power to adjourn the meeting to a different date, time or place without notice other than announcement at the meeting of the new time, date or place to which the meeting is adjourned. At any adjourned meeting at which a quorum of any voting group shall be present or represented any business may be transacted by such voting group which might have been transacted at the meeting as originally called. 2.8 Voting of Shares. Unless otherwise provided by the Act or the Charter, each outstanding share is entitled to one (1) vote on each matter voted on at a shareholders' meeting. Only shares are entitled to vote. If a quorum exists, approval of action on a matter (other than the election of directors) by a voting group entitled to vote thereon is received if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Charter or the Act requires a greater number of affirmative votes. Unless otherwise provided in the Charter, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. 2.9 Proxies. A shareholder may vote his shares in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for him by signing an appointment either personally or by his attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes. An appointment is valid for eleven (11) months unless another period is expressly provided in the appointment form. An appointment of a proxy is revocable by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest. 2.10 Acceptance of Shareholder Documents. If the name signed on a shareholder document (a vote, consent, waiver, or proxy appointment) corresponds to the name of a shareholder, the Corporation, if acting in good faith, is entitled to accept such shareholder document and give it effect as the act of the shareholder. If the name signed on such shareholder document does not correspond to the name of a shareholder, the Corporation, if acting in good faith, is nevertheless entitled to accept such shareholder document and to give it effect as the act of the shareholder if: (i) the shareholder is an entity and the name signed purports to be that of an officer or agent of the entity; (ii) the name signed purports to be that of a fiduciary representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to such shareholder document; (iii) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence of this status acceptable to the Corporation has been presented with respect to the shareholder document; (iv) the name signed purports to be that of a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory's authority to sign for the shareholder has been presented with respect to such shareholder document; or (v) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one (1) of the co-owners and the person signing appears to be acting on behalf of all the co-owners. The Corporation is entitled to reject a shareholder document if the Secretary or other officer or agent authorized to tabulate votes, acting in good faith, has a reasonable basis for doubt about the validity of the signature on such shareholder document or about the signatory's authority to sign for the shareholder. 2.11 Action Without Meeting. Action required or permitted by the Act to be taken at a shareholders' meeting may be taken without a meeting. If all shareholders entitled to vote on the action consent to taking such action without a meeting, the affirmative vote of the number of shares that would be necessary to authorize or take such action at a meeting is the act of the shareholders. The action must be evidenced by one (1) or more written consents describing the action taken, at least one of which is signed by each shareholder entitled to vote on the action in one (1) or more counterparts, indicating such signing shareholder's vote or abstention on the action and delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. If the Act or the Charter requires that notice of a proposed action be given to nonvoting shareholders and the action is to be taken by consent of the voting shareholders, then the Corporation shall give its nonvoting shareholders written notice of the proposed action at least ten (10) days before such action is taken. Such notice shall contain or be accompanied by the same material that would have been required to be sent to nonvoting shareholders in a notice of a meeting at which the proposed action would have been submitted to the shareholders for action. 2.12 Presiding Officer and Secretary. Meetings of the shareholders shall be presided over by the President, or if the President is not present, by a chairman chosen by a majority of the shareholders entitled to vote at such meeting. The Secretary or, in his absence, an Assistant Secretary shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, a majority of the shareholders entitled to vote at such meeting shall choose any person present to act as secretary of the meeting. ARTICLE III. DIRECTORS 3.1 Powers and Duties. All corporate powers shall be exercised by or under the authority of and the business and affairs of the Corporation managed under the direction of the Board of Directors. 3.2 Number and Term. (a) Number. The Board of Directors shall consist of no fewer than two (2) or more than five (5) members. The exact number of directors, within the minimum and maximum, or the range for the size of the Board, or whether the size of the Board shall be fixed- or variable-range may be fixed, changed or determined from time to time by the Board of Directors. (b) Term. Directors shall be elected at the first annual shareholders' meeting and at each annual meeting thereafter. The terms of the initial directors shall expire at the first shareholders' meeting at which directors are elected. The terms of all other directors expire at the next annual shareholders' meeting following their election. Despite the expiration of a director's term, he shall continue to serve until his successor is elected and qualifies or until there is a decrease in the number of directors. 3.3 Meetings; Notice. The Board of Directors may hold regular and special meetings either within or without the State of Tennessee. The Board of Directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting. (a) Regular Meetings. Unless the Charter otherwise provides, regular meetings of the Board of Directors may be held without notice of the date, time, place or purpose of the meeting. (b) Special Meetings. Special meetings of the Board of Directors may be called by the President or any two (2) directors. Unless the Charter otherwise provides, special meetings must be preceded by at least twenty-four (24) hours' notice of the date, time and place of the meeting but need not describe the purpose of such meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (c) Adjourned Meetings. Notice of an adjourned meeting need not be given if the time and place to which the meeting is adjourned are fixed at the meeting at which the adjournment is taken, and if the period of adjournment does not exceed one (1) month in any one (1) adjournment. (d) Waiver of Notice. A director may waive any required notice before or after the date and time stated in the notice. Except as provided in the next sentence, the waiver must be in writing, signed by the director and filed with the minutes or corporate records. A director's attendance at or participation in a meeting waives any required notice to him of such meeting unless the director at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. 3.4 Quorum. Unless the Charter requires a greater number, a quorum of the Board of Directors consists of a majority of the fixed number of directors if the Corporation has a fixed board size or a majority of the number of directors prescribed, or if no number is prescribed, the number in office immediately before the meeting begins, if the Corporation has a variable range board. 3.5 Voting. If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the Board of Directors, unless the Charter or these Bylaws require the vote of a greater number of directors. A director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to such action unless: (i) he objects at the beginning of the meeting (or promptly upon his arrival) to holding the meeting or transacting business at the meeting; (ii) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. 3.6 Action Without Meeting. Unless the Charter otherwise provides, any action required or permitted by the Act to be taken at a Board of Directors meeting may be taken without a meeting. If all directors consent to taking such action without a meeting, the affirmative vote of the number of directors that would be necessary to authorize or take such action at a meeting is the act of the Board of Directors. Such action must be evidenced by one or more written consents describing the action taken, at least one of which is signed by each director, indicating the director's vote or abstention on the action, which consents shall be included in the minutes or filed with the corporate records reflecting the action taken. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. 3.7 Compensation. Directors and members of any committee created by the Board of Directors shall be entitled to such reasonable compensation for their services as directors and members of such committee as shall be fixed from time to time by the Board, and shall also be entitled to reimbursement for any reasonable expenses incurred in attending meetings of the Board or of any such committee meetings. Any director receiving such compensation shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services. 3.8 Resignation. A director may resign at any time by delivering written notice to the Board of Directors, President, or to the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. 3.9 Vacancies. Unless the Charter otherwise provides, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors or a vacancy resulting from the removal of a director with or without cause, either the shareholders or the Board of Directors may fill such vacancy. If the directors remaining in office constitute fewer than a quorum of the Board of Directors, they may fill such vacancy by the affirmative vote of a majority of all the directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group shall be entitled to vote to fill the vacancy if it is filled by the shareholders. 3.10 Removal of Directors. (a) By Shareholders. The shareholders may remove one (1) or more directors with or without cause unless the Charter provides that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him without cause. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him. (b) By Directors. If so provided by the Charter, any of the directors may be removed for cause by the affirmative vote of a majority of the entire Board of Directors. (c) General. A director may be removed by the shareholders or directors only at a meeting called for the purpose of removing him, and the meeting notice must state that the purpose, or one (1) of the purposes, of the meeting is removal of directors. ARTICLE IV. COMMITTEES Unless the Charter otherwise provides, the Board of Directors may create one (1) or more committees, each consisting of one (1) or more members. All members of committees of the Board of Directors which exercise powers of the Board of Directors must be members of the Board of Directors and serve at the pleasure of the Board of Directors. The creation of a committee and appointment of a member or members to it must be approved by the greater of (i) a majority of all directors in office when the action is taken or (ii) the number of directors required by the Charter or these Bylaws to take action. Unless otherwise provided in the Act, to the extent specified by the Board of Directors or in the Charter, each committee may exercise the authority of the Board of Directors. All such committees and their members shall be governed by the same statutory requirements regarding meetings, action without meetings, notice and waiver of notice, quorum and voting requirements as are applicable to the Board of Directors and its members. ARTICLE V. OFFICERS 5.1 Number. The officers of the Corporation shall be a President, a Secretary and such other officers as may be from time to time appointed by the Board of Directors. One person may simultaneously hold more than one office except the President may not simultaneously hold the office of Secretary. 5.2 Appointment. The principal officers shall be appointed annually by the Board of Directors at the first meeting of the Board following the annual meeting of the shareholders, or as soon thereafter as is conveniently possible. Each officer shall serve at the pleasure of the Board of Directors and until his successor shall have been appointed, or until his death, resignation or removal. 5.3 Resignation and Removal. An officer may resign at any time by delivering notice to the Corporation. Such resignation is effective when such notice is delivered unless such notice specifies a later effective date. An officer's resignation does not affect the Corporation's contract rights, if any, with the officer. The Board of Directors may remove any officer at any time with or without cause, but such removal shall not prejudice the contract rights, if any, of the person so removed. 5.4 Vacancies. Any vacancy in an office from any cause may be filled for the unexpired portion of the term by the Board of Directors. 5.5 Duties. (a) President. The president shall be the Chief Executive Officer of the Corporation and shall have general supervision over the active management of the business of the Corporation. He shall have the general powers and duties of supervision and management usually vested in the office of the president of a corporation and shall perform such other duties as the Board of Directors may from time to time prescribe. (b) Vice President. The Vice President or Vice Presidents (if any) shall be active executive officers of the Corporation, shall assist the president in the active management of the business, and shall perform such other duties as the Board of Directors may from time to time prescribe. (c) Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and shall prepare and record all votes and all minutes of all such meetings in a book to be kept for that purpose; he shall perform like duties for any committee when required. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors when required, and unless directed otherwise by the Board of Directors, shall keep a stock record containing the names of all persons who are shareholders of the Corporation, showing their place of residence and the number of shares held by them respectively. The Secretary shall have the responsibility of authenticating records of the Corporation. The Secretary shall perform such other duties as may be prescribed from time to time by the Board of Directors. (d) Treasurer. The Treasurer shall have the custody of the Corporation's funds and securities, shall keep or cause to be kept full and accurate account of receipts and disbursements in books belonging to the Corporation, and shall deposit or cause to be deposited all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse or cause to be disbursed the funds of the Corporation as required in the ordinary course of business or as may be ordered by the Board, taking proper vouchers for such disbursements,- and shall render to the President and directors at the regular meetings of the Board, or whenever they may require it, an account of all of his transactions as Treasurer and the financial condition of the Corporation. He shall perform such other duties as may be incident to his office or as prescribed from time to time by the Board of Directors. The Treasurer shall give the Corporation a bond, if required by the Board of Directors, in a sum and with one or more sureties satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the Corporation in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. (e) Other Officers. Other officers appointed by the Board of Directors shall exercise such powers and perform such duties as may be delegated to them. (f) Delegation of Duties. In case of the absence or disability of any officer of the Corporation or of any person authorized to act in his place, the Board of Directors may from time to time delegate the powers and duties of such officer to any officer, or any director, or any other person whom it may select, during such period of absence or disability. 5.6 Indemnification, Advancement of Expenses and Insurance. (a) Indemnification and Advancement of Expenses. The Corporation shall indemnify and advance expenses to each director and officer of the Corporation, or any person who may have served at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director or officer of another corporation (and, in either case, his heirs, executors and administrators), to the full extent allowed by the laws of the State of Tennessee, both as now in effect and as hereafter adopted. The Corporation may indemnify and advance expenses to any employee or agent of the Corporation who is not a director or officer (and his heirs, executors and administrators) to the same extent as to a director or officer, if the Board of Directors determines that to do so is in the best interests of the Corporation. (b) Non-Exclusivity of Rights. The indemnification and advancement of expenses provisions of subsection (a) of this Section 5.6 shall not be exclusive of any other right which any person (and his heirs, executors and administrators) may have or hereafter acquire under any statute, provision of the Charter, provision of these Bylaws, resolution adopted by the shareholders, resolution adopted by the Board of Directors, agreement, insurance, purchased by the Corporation or otherwise, both as to action in his official capacity and as to action in another capacity. (c) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any individual who is or was a director, officer, employee or agent of the Corporation, or who, while a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under this Article or the Act. ARTICLE VI. SHARES OF STOCK 6.1 Shares with or without Certificates. The Board of Directors may authorize that some or all of the shares of any or all of the Corporation's classes or series of stock be evidenced by a certificate or certificates of stock. The Board of Directors may also authorize the issue of some or all of the shares of any or all of the Corporation's classes or series of stock without certificates. The rights and obligations of shareholders with the same class and/or series of stock shall be identical whether or not their shares are represented by certificates. (a) Shares with Certificates. If the Board of Directors chooses to issue shares of stock evidenced by a certificate or certificates, each individual certificate shall include the following on its face: (i) the Corporation's name, (ii) the fact that the Corporation is organized under the laws of the State of Tennessee (iii) the name of the person to whom the certificate is issued, (iv) the number of shares represented thereby, (v) the class of shares and the designation of the series, if any, which the certificate represents, and (vi) such other information as applicable law may require or as may be lawful. If the Corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate shall state on its front or back that the Corporation will furnish the shareholder this information in writing, without charge, upon request. Each certificate of stock issued by the Corporation shall be signed (either manually or in facsimile) by the President or a Vice president, and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer. If the person who signed a- certificate no longer holds office when the certificate is issued, the certificate is nonetheless valid. (b) Shares without Certificates. If the Board of Directors chooses to issue shares of stock without certificates, the Corporation, if required by the Act, shall, within a reasonable time after the issue or transfer of shares without certificates, send the shareholder a written statement of the information required on certificates by Section 6.1(a) of these Bylaws and any other information required by the Act. 6.2 Subscriptions for Shares. Subscriptions for shares of the Corporation shall be valid only if they are in writing. Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at such time, or in such installments and at such periods, as shall be determined by the Board of Directors. All calls for payment on subscriptions shall be uniform as to all shares of the same class or of the same series, unless the subscription agreement specifies otherwise. 6.3 Transfers. Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by (i) the holder of record thereof, (ii) by his legal representative, who, upon request of the Corporations shall furnish proper evidence of authority to transfer, or (iii) his attorney, authorized by a power of attorney duly executed and filed with the Secretary of the Corporation or a duly appointed transfer agent. Such transfers shall be made only upon surrender, if applicable, of the certificate or certificates for such shares properly endorsed and with all taxes thereon paid. 6.4 Lost, Destroyed or Stolen Certificates. No certificate for shares of stock of the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen except on production of evidence, satisfactory to the Board of Directors, of such loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount and with such terms and such surety as the Board of Directors may in its discretion require. ARTICLE VII CORPORATE ACTIONS 7.1 Contracts. Unless otherwise required by the Board of Directors, the President or any Vice president shall execute contracts or other instruments on behalf of and in the name of the Corporation. The Board of Directors may from time to time authorize any other officer, assistant officer or agent to enter into any contract or execute any instrument in the name of and on behalf of the Corporation as it may deem appropriate, and such authority may be general or confined to specific instances. 7.2 Loans. No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized by the president or the Board of Directors. Such authority may be general or confined to specific instances. 7.3 Checks, Drafts, Etc. Unless otherwise required by the Board of Directors, all checks, drafts, bills of exchange and other negotiable instruments of the Corporation shall be signed by either the President, a Vice President or such other officer, assistant officer or agent of the Corporation as may be authorized so to do by the Board of Directors. Such authority may be general or confined to specific business, and, if so directed by the Board, the signatures of two or more such officers may be required. 7.4 Deposits. All funds of the Company not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks or other depositories as the Board of Directors may authorize. 7.5 Voting Securities Held by the Corporation. Unless otherwise required by the Board of Directors, or the President shall have full power and authority on behalf of the Corporation to attend any meeting of security holders, or to take action on written consent as a security holder, of other corporations in which the Corporation-may hold securities. In connection therewith the President shall possess and may exercise any and all rights and powers incident to the ownership of such securities which the Corporation possesses. The Board of Directors may, from time to time, confer like powers upon any other person or persons. 7.6 Dividends. The Board of Directors may, from time to time, declare, and the Corporation may pay, dividends on its outstanding shares of capital stock in the manner and upon the terms and conditions provided by applicable law. The record date for the determination of shareholders entitled to receive the payment of any dividend shall be determined by the Board of Directors, but which in any event shall not be less than ten (10) days prior to the date of such payment. ARTICLE VIII. FISCAL YEAR The fiscal year of the Corporation shall be determined by the Board of Directors, and in the absence of such determination, shall be the calendar year. ARTICLE IX. CORPORATE SEAL The Corporation shall not have a corporate seal. ARTICLE X. AMENDMENT OF BY-LAWS These Bylaws may be altered, amended, repealed or restated, and new Bylaws may be adopted, at any meeting of the shareholders by the affirmative vote of a majority of the stock represented at such meeting, or by the affirmative vote of a majority of the members of the Board of Directors who are present at any regular or special meeting. ARTICLE XI. NOTICE Unless otherwise provided for in these Bylaws, any notice required shall be in writing except that oral notice is effective if it is reasonable under the circumstances and not prohibited by the Charter or these Bylaws. Notice may be communicated in person; by telephone, telegraph, teletype or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television or other form of public broadcast communication. Written notice to a domestic or foreign corporation authorized to transact business in Tennessee may be addressed to its registered agent at its registered office or to the corporation or its secretary at its principal office as shown in its most recent annual report or, in the case of a foreign corporation that has not yet delivered an annual report, in its application for a certificate of authority. Written notice to shareholders, if in a comprehensible form, is effective when mailed, if mailed postpaid and correctly addressed to the shareholder's address shown in the Corporation's current record of shareholders. Except as provided above, written notice, if in a comprehensible form, is effective at the earliest of the following: (a) when received, (b) five (5) days after its deposit in the United States mail, if correctly addressed and with first class postage affixed thereon; (c) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; or (d) twenty (20) days after its deposit in the United States mail, as evidenced by the postmark if mailed correctly addressed, and with other than first class, registered or certified postage affixed. Oral notice is effective when communicated if communicated in a comprehensible manner. EX-3.6 6 g86000exv3w6.txt EX-3.6 CHARTER OF DFI, INC. EXHIBIT 3.6 CHARTER OF DFI, INC. The undersigned, acting as the incorporator of a corporation under the Tennessee Business Corporation Act (the "Act"), adopts the following charter for such corporation: 1. The name of the corporation is DFI, Inc. 2. The corporation is for profit. 3. The street address of the corporation's principal office is: 3038 Sidco Drive Davidson County Nashville, Tennessee 37024 4. (a) The name of the corporation's initial registered agent is A. Chad Fitzhugh. (b) The street address of the corporation's initial registered office in Tennessee is: 3038 Sidco Drive Davidson County Nashville, Tennessee 37024 5. The name and address of the incorporator is: Kevin P. O'Hara Bass, Berry & Sims PLC First American Center Nashville, TN 37238-2700 6. The number of shares of stock the corporation is authorized to issue is 100,000 shares of common stock, par value $0.01 per share. 7. The shareholders of the corporation shall not have preemptive rights. 8. To the fullest extent permitted by the Act as in effect on the date hereof and as hereafter amended from time to time, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. If the Act or any successor statute is amended after adoption of this provision to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Act, as so amended from time to time. Any repeal or modification of this paragraph 8 by the shareholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification or with respect to events occurring prior to such time. Dated: December 10, 1997 /s/ Kevin P. O'Hara ---------------------------------------- Kevin P. O'Hara, Incorporator EX-3.7 7 g86000exv3w7.txt EX-3.7 BYLAWS OF DFI, INC. EXHIBIT 3.7 BYLAWS OF DFI, INC. (THE "CORPORATION") ARTICLE I. OFFICES The Corporation may have such offices, either within or without the State of Tennessee, as the Board of Directors may designate or as the business of the Corporation may require from time to time. ARTICLE II. SHAREHOLDERS 2.1 ANNUAL MEETING. An annual meeting of the shareholders of the Corporation shall be held on such date as may be determined by the Board of Directors. The business to be transacted at such meeting shall be the election of directors and such other business as shall be properly brought before the meeting. 2.2 SPECIAL MEETINGS. A special meeting of shareholders shall be held on call of the Board of Directors or if the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the Corporation's Secretary one (1) or more written demands for the meeting describing the purpose or purposes for which such special meeting is to be held. Only business within the purpose or purposes described in the meeting notice may be conducted at a special shareholders' meeting. 2.3 PLACE OF MEETINGS. The Board of Directors may designate any place, either within or without the State of Tennessee, as the place of meeting for any annual meeting or for any special meeting. If no place is fixed by the Board of Directors, the meeting shall be held at the principal office of the Corporation. 2.4 NOTICE OF MEETINGS; WAIVER. (a) NOTICE. Notice of the date, time and place of each annual and special shareholders' meeting and, in the case of a special meeting, a description of the purpose or purposes for which the meeting is called, shall be given no fewer than ten (10) days nor more than two (2) months before the date of the meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (b) WAIVER. A shareholder may waive any notice required by law, the Charter or these Bylaws before or after the date and time stated in such notice. Except as provided in the next sentence, the waiver must be in writing, be signed by the shareholder entitled to the notice and be delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting; and (2) waives objection to consideration of a particular matter at the meeting that is 2 not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. 2.5 RECORD DATE. The Board of Directors shall fix as the record date for the determination of shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote or to take any other action, a date not more than seventy (70) days before the meeting or action requiring a determination of shareholders. A record date fixed for a shareholders' meeting is effective for any adjournment of such meeting unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than four (4) months after the date fixed for the original meeting. 2.6 SHAREHOLDERS' LIST. After the record date for a meeting has been fixed, the Corporation shall prepare an alphabetical list of the names of all shareholders who are entitled to notice of a shareholders' meeting. Such list will be arranged by voting group (and within each voting group by class or series of shares) and will show the address of and number of shares held by each shareholder. The shareholders' list will be available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporation's principal office or at a place identified in the meeting notice in the city where the meeting will be held. A shareholder or his agent or attorney is entitled on written demand to inspect and, subject to the requirements of the Tennessee Business 3 Corporation Act (the "Act"), to copy the list, during regular business hours and at his expense, during the period it is available for inspection. 2.7 VOTING GROUPS; QUORUM; ADJOURNMENT. All shares entitled to vote and be counted together collectively on a matter at a meeting of shareholders shall be a "voting group". Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Except as otherwise required by the Act or provided in the Charter, a majority of the votes entitled to be cast on a matter by a voting group constitutes a quorum of that voting group for action on that matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum of a voting group shall not be present or represented at any meeting, the shares entitled to vote thereat shall have power to adjourn the meeting to a different date, time or place without notice other than announcement at the meeting of the new time, date or place to which the meeting is adjourned. At any adjourned meeting at which a quorum of any voting group shall be present or represented, any business may be transacted by such voting group which might have been transacted at the meeting as originally called. 2.8 VOTING OF SHARES. Unless otherwise provided by the Act or the Charter, each outstanding share is entitled to one (1) vote on each matter voted on at a shareholders' meeting. Only shares are entitled to vote. 4 If a quorum exists, approval of action on a matter (other than the election of directors) by a voting group entitled to vote thereon is received if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Charter or the Act requires a greater number of affirmative votes. Unless otherwise provided in the Charter, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. 2.9 PROXIES. A shareholder may vote his shares in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for him by signing an appointment either personally or by his attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes. An appointment is valid for eleven (11) months unless another period is expressly provided in the appointment form. An appointment of a proxy is revocable by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest. 2.10 ACCEPTANCE OF SHAREHOLDER DOCUMENTS. If the name signed on a shareholder document (a vote, consent, waiver, or proxy appointment) corresponds to the name of a shareholder, the Corporation, if acting in good faith, is entitled to accept such shareholder document and give it effect as the act of the shareholder. If the name signed on such shareholder document does not correspond to the name of a shareholder, the Corporation, if acting in good faith, is nevertheless entitled to accept such shareholder document and to give it effect as the act of the shareholder if: 5 (i) the shareholder is an entity and the name signed purports to be that of an officer or agent of the entity; (ii) the name signed purports to be that of a fiduciary representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to such shareholder document; (iii) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence of this status acceptable to the Corporation has been presented with respect to the shareholder document; (iv) the name signed purports to be that of a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory's authority to sign for the shareholder has been presented with respect to such shareholder document; or (v) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one (1) of the co-owners and the person signing appears to be acting on behalf of all the co-owners. The Corporation is entitled to reject a shareholder document if the Secretary or other officer or agent authorized to tabulate votes, acting in good faith, has a reasonable basis for doubt about the validity of the signature on such shareholder document or about the signatory's authority to sign for the shareholder. 2.11 ACTION WITHOUT MEETING. Action required or permitted by the Act to be taken at a shareholders' meeting may be taken without a meeting. If all shareholders entitled to vote on the action consent to taking such 6 action without a meeting, the affirmative vote of the number of shares that would be necessary to authorize or take such action at a meeting is the act of the shareholders. The action must be evidenced by one (1) or more written consents describing the action taken, at least one of which is signed by each shareholder entitled to vote on the action in one (1) or more counterparts, indicating such signing shareholder's vote or abstention on the action and delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. If the Act or the Charter requires that notice of a proposed action be given to nonvoting shareholders and the action is to be taken by consent of the voting shareholders, then the Corporation shall give its nonvoting shareholders written notice of the proposed action at least ten (10) days before such action is taken. Such notice shall contain or be accompanied by the same material that would have been required to be sent to nonvoting shareholders in a notice of a meeting at which the proposed action would have been submitted to the shareholders for action. 2.12 PRESIDING OFFICER AND SECRETARY. Meetings of the shareholders shall be presided over by the President, or if the President is not present, by a chairman chosen by a majority of the shareholders entitled to vote at such meeting. The Secretary or, in his absence, an Assistant Secretary shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, a majority of the shareholders entitled to vote at such meeting shall choose any person present to act as secretary of the meeting. 7 ARTICLE III. DIRECTORS 3.1 POWERS AND DUTIES. All corporate powers shall be exercised by or under the authority of and the business and affairs of the Corporation managed under the direction of the Board of Directors. 3.2 NUMBER AND TERM. (a) NUMBER. The Board of Directors shall consist of no less than one (1) and no more than ten (10) members, the exact number of directors, within the minimum and maximum, or the range for the size of the Board, or whether the size of the Board shall be fixed or variable-range may be fixed, to be determined from time to time by majority vote of the Board of Directors. (b) TERM. Directors shall be elected at the first annual shareholders' meeting and at each annual meeting thereafter. The terms of the initial directors shall expire at the first shareholders' meeting at which directors are elected. The terms of all other directors expire at the next annual shareholders' meeting following their election. Despite the expiration of a director's term, he shall continue to serve until his successor is elected and qualifies or until there is a decrease in the number of directors. 3.3 MEETINGS; NOTICE. The Board of Directors may hold regular and special meetings either within or without the State of Tennessee. The Board of Directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of 8 communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting. (a) REGULAR MEETINGS. Unless the Charter otherwise provides, regular meetings of the Board of Directors may be held without notice of the date, time, place or purpose of the meeting. (b) SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the President or any two (2) directors. Unless the Charter otherwise provides, special meetings must be preceded by at least twenty-four (24) hours' notice of the date, time and place of the meeting but need not describe the purpose of such meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (c) ADJOURNED MEETINGS. Notice of an adjourned meeting need not be given if the time and place to which the meeting is adjourned are fixed at the meeting at which the adjournment is taken, and if the period of adjournment does not exceed one (1) month in any one (1) adjournment. (d) WAIVER OF NOTICE. A director may waive any required notice before or after the date and time stated in the notice. Except as provided in the next sentence, the waiver must be in writing, signed by the director and filed with the minutes or corporate records. A director's attendance at or participation in a meeting waives any required notice to him of such meeting unless the director at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. 9 3.4 QUORUM. Unless the Charter requires a greater number, a quorum of the Board of Directors consists of a majority of the fixed number of directors if the Corporation has a fixed board size or a majority of the number of directors prescribed, or if no number is prescribed, the number in office immediately before the meeting begins, if the Corporation has a variable range board. 3.5 VOTING. If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the Board of Directors, unless the Charter or these Bylaws require the vote of a greater number of directors. A director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to such action unless: (i) he objects at the beginning of the meeting (or promptly upon his arrival) to holding the meeting or transacting business at the meeting; (ii) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. 3.6 ACTION WITHOUT MEETING. Unless the Charter otherwise provides, any action required or permitted by the Act to be taken at a Board of Directors meeting may be taken without a meeting. If all directors consent to 10 taking such action without a meeting, the affirmative vote of the number of directors that would be necessary to authorize or take such action at a meeting is the act of the Board of Directors. Such action must be evidenced by one or more written consents describing the action taken, at least one of which is signed by each director, indicating the director's vote or abstention on the action, which consents shall be included in the minutes or filed with the corporate records reflecting the action taken. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. 3.7 COMPENSATION. Directors and members of any committee created by the Board of Directors shall be entitled to such reasonable compensation for their services as directors and members of such committee as shall be fixed from time to time by the Board, and shall also be entitled to reimbursement for any reasonable expenses incurred in attending meetings of the Board or of any such committee meetings. Any director receiving such compensation shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services. 3.8 RESIGNATION. A director may resign at any time by delivering written notice to the Board of Directors, President, or to the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. 11 3.9 VACANCIES. Unless the Charter otherwise provides, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors or a vacancy resulting from the removal of a director with or without cause, either the shareholders or the Board of Directors may fill such vacancy. If the directors remaining in office constitute fewer than a quorum of the Board of Directors, they may fill such vacancy by the affirmative vote of a majority of all the directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group shall be entitled to vote to fill the vacancy if it is filled by the shareholders. 3.10 REMOVAL OF DIRECTORS. (a) BY SHAREHOLDERS. The shareholders may remove one (1) or more directors with or without cause unless the Charter provides that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him without cause. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him. (b) BY DIRECTORS. If so provided by the Charter, any of the directors may be removed for cause by the affirmative vote of a majority of the entire Board of Directors. 12 (c) GENERAL. A director may be removed by the shareholders or directors only at a meeting called for the purpose of removing him, and the meeting notice must state that the purpose, or one (1) of the purposes, of the meeting is removal of directors. ARTICLE IV. COMMITTEES Unless the Charter otherwise provides, the Board of Directors may create one (1) or more committees, each consisting of one (1) or more members. All members of committees of the Board of Directors which exercise powers of the Board of Directors must be members of the Board of Directors and serve at the pleasure of the Board of Directors. The creation of a committee and appointment of a member or members to it must be approved by the greater of (i)a majority of all directors in office when the action is taken or (ii)the number of directors required by the Charter or these Bylaws to take action. Unless otherwise provided in the Act, to the extent specified by the Board of Directors or in the Charter, each committee may exercise the authority of the Board of Directors. All such committees and their members shall be governed by the same statutory requirements regarding meetings, action without meetings, notice and waiver of notice, quorum and voting requirements as are applicable to the Board of Directors and its members. 13 ARTICLE V. OFFICERS 5.1 NUMBER. The officers of the Corporation shall be a President, a Secretary and such other officers as may be from time to time appointed by the Board of Directors. One person may simultaneously hold more than one office except the President may not simultaneously hold the office of Secretary. 5.2 APPOINTMENT. The principal officers shall be appointed annually by the Board of Directors at the first meeting of the Board following the annual meeting of the shareholders, or as soon thereafter as is conveniently possible. Each officer shall serve at the pleasure of the Board of Directors and until his successor shall have been appointed, or until his death, resignation or removal. 5.3 RESIGNATION AND REMOVAL. An officer may resign at any time by delivering notice to the Corporation. Such resignation is effective when such notice is delivered unless such notice specifies a later effective date. An officer's resignation does not affect the Corporation's contract rights, if any, with the officer. The Board of Directors may remove any officer at any time with or without cause, but such removal shall not prejudice the contract rights, if any, of the person so removed. 5.4 VACANCIES. 14 Any vacancy in an office from any cause may be filled for the unexpired portion of the term by the Board of Directors. 5.5 DUTIES. (a) PRESIDENT. The President shall be the Chief Executive Officer of the Corporation and shall have general supervision over the active management of the business of the Corporation. He shall have the general powers and duties of supervision and management usually vested in the office of the President of a corporation and shall perform such other duties as the Board of Directors may from time to time prescribe. (b) VICE PRESIDENT. The Vice President or Vice Presidents (if any) shall be active executive officers of the Corporation, shall assist the President in the active management of the business, and shall perform such other duties as the Board of Directors may from time to time prescribe. (c) SECRETARY. The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and shall prepare and record all votes and all minutes of all such meetings in a book to be kept for that purpose; he shall perform like duties for any committee when required. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors when required, and unless directed otherwise by the Board of Directors, shall keep a stock record containing the names of all persons who are shareholders of the Corporation, showing their place of residence and the number of shares held by them respectively. The Secretary shall have the responsibility of authenticating records of the Corporation. The Secretary shall perform such other duties as may be prescribed from time to time by the Board of Directors. 15 (d) TREASURER. The Treasurer (if any) shall have the custody of the Corporation's funds and securities, shall keep or cause to be kept full and accurate account of receipts and disbursements in books belonging to the Corporation, and shall deposit or cause to be deposited all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse or cause to be disbursed the funds of the Corporation as required in the ordinary course of business or as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and directors at the regular meetings of the Board, or whenever they may require it, an account of all of his transactions as Treasurer and the financial condition of the Corporation. He shall perform such other duties as may be incident to his office or as prescribed from time to time by the Board of Directors. The Treasurer shall give the Corporation a bond, if required by the Board of Directors, in a sum and with one or more sureties satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the Corporation in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. (e) OTHER OFFICERS. Other officers appointed by the Board of Directors shall exercise such powers and perform such duties as may be delegated to them. (f) DELEGATION OF DUTIES. In case of the absence or disability of any officer of the Corporation or of any person authorized to act in his place, the Board of Directors may from time to time delegate the powers and duties of such officer to any officer, or any director, or any other person whom it may select, during such period of absence or disability. 16 5.6 INDEMNIFICATION, ADVANCEMENT OF EXPENSES AND INSURANCE. (a) INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The Corporation shall indemnify and advance expenses to each director and officer of the Corporation, or any person who may have served at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director or officer of another corporation (and, in either case, his heirs, executors and administrators), to the full extent allowed by the laws of the State of Tennessee, both as now in effect and as hereafter adopted. The Corporation may indemnify and advance expenses to any employee or agent of the Corporation who is not a director or officer (and his heirs, executors and administrators) to the same extent as to a director or officer, if the Board of Directors determines that to do so is in the best interests of the Corporation. (b) NON-EXCLUSIVITY OF RIGHTS. The indemnification and advancement of expenses provisions of subsection (a) of this Section 5.6 shall not be exclusive of any other right which any person (and his heirs, executors and administrators) may have or hereafter acquire under any statute, provision of the Charter, provision of these Bylaws, resolution adopted by the shareholders, resolution adopted by the Board of Directors, agreement, insurance, purchased by the Corporation or otherwise, both as to action in his official capacity and as to action in another capacity. (c) INSURANCE. The Corporation may maintain insurance, at its expense, to protect itself and any individual who is or was a director, officer, employee or agent of the Corporation, or who, while a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss 17 whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under this Article or the Act. ARTICLE VI. SHARES OF STOCK 6.1 SHARES WITH OR WITHOUT CERTIFICATES. The Board of Directors may authorize that some or all of the shares of any or all of the Corporation's classes or series of stock be evidenced by a certificate or certificates of stock. The Board of Directors may also authorize the issue of some or all of the shares of any or all of the Corporation's classes or series of stock without certificates. The rights and obligations of shareholders with the same class and/or series of stock shall be identical whether or not their shares are represented by certificates. (a) SHARES WITH CERTIFICATES. If the Board of Directors chooses to issue shares of stock evidenced by a certificate or certificates, each individual certificate shall include the following on its face: (i)the Corporation's name, (ii)the fact that the Corporation is organized under the laws of the State of Tennessee, (iii)the name of the person to whom the certificate is issued, (iv)the number of shares represented thereby, (v) the class of shares and the designation of the series, if any, which the certificate represents, and (vi) such other information as applicable law may require or as may be lawful. If the Corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate shall 18 state on its front or back that the Corporation will furnish the shareholder this information in writing, without charge, upon request. Each certificate of stock issued by the Corporation shall be signed (either manually or in facsimile) by the President or a Vice President, and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer. If the person who signed a certificate no longer holds office when the certificate is issued, the certificate is nonetheless valid. (b) SHARES WITHOUT CERTIFICATES. If the Board of Directors chooses to issue shares of stock without certificates, the Corporation, if required by the Act, shall, within a reasonable time after the issue or transfer of shares without certificates, send the shareholder a written statement of the information required on certificates by Section 6.1(a) of these Bylaws and any other information required by the Act. 6.2 SUBSCRIPTIONS FOR SHARES. Subscriptions for shares of the Corporation shall be valid only if they are in writing. Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at such time, or in such installments and at such periods, as shall be determined by the Board of Directors. All calls for payment on subscriptions shall be uniform as to all shares of the same class or of the same series, unless the subscription agreement specifies otherwise. 6.3 TRANSFERS. Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by (i)the holder of record thereof, (ii)by his legal representative, who, 19 upon request of the Corporation, shall furnish proper evidence of authority to transfer, or (iii)his attorney, authorized by a power of attorney duly executed and filed with the Secretary of the Corporation or a duly appointed transfer agent. Such transfers shall be made only upon surrender, if applicable, of the certificate or certificates for such shares properly endorsed and with all taxes thereon paid. 6.4 LOST, DESTROYED OR STOLEN CERTIFICATES. No certificate for shares of stock of the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen except on production of evidence, satisfactory to the Board of Directors, of such loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount and with such terms and such surety as the Board of Directors may in its discretion require. ARTICLE VII. CORPORATE ACTIONS 7.1 CONTRACTS. Unless otherwise required by the Board of Directors, the President or any Vice President shall execute contracts or other instruments on behalf of and in the name of the Corporation. The Board of Directors may from time to time authorize any other officer, assistant officer or agent to enter into any contract or execute any instrument in the name of and on behalf of the Corporation as it may deem appropriate, and such authority may be general or confined to specific instances. 20 7.2 LOANS. No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized by the President or the Board of Directors. Such authority may be general or confined to specific instances. 7.3 CHECKS, DRAFTS, ETC. Unless otherwise required by the Board of Directors, all checks, drafts, bills of exchange and other negotiable instruments of the Corporation shall be signed by either the President, a Vice President or such other officer, assistant officer or agent of the Corporation as may be authorized so to do by the Board of Directors. Such authority may be general or confined to specific business, and, if so directed by the Board, the signatures of two or more such officers may be required. 7.4 DEPOSITS. All funds of the Company not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks or other depositories as the Board of Directors may authorize. 7.5 VOTING SECURITIES HELD BY THE CORPORATION. Unless otherwise required by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend any meeting of security holders, or to take action on written consent as a security holder, of other corporations in which the Corporation may hold securities. In connection therewith the President shall possess and may exercise any 21 and all rights and powers incident to the ownership of such securities which the Corporation possesses. The Board of Directors may, from time to time, confer like powers upon any other person or persons. 7.6 DIVIDENDS. The Board of Directors may, from time to time, declare, and the Corporation may pay, dividends on its outstanding shares of capital stock in the manner and upon the terms and conditions provided by applicable law. The record date for the determination of shareholders entitled to receive the payment of any dividend shall be determined by the Board of Directors, but which in any event shall not be less than ten (10) days prior to the date of such payment. ARTICLE VIII. FISCAL YEAR The fiscal year of the Corporation shall be determined by the Board of Directors, and in the absence of such determination, shall be the calendar year. ARTICLE IX. CORPORATE SEAL The Corporation shall not have a corporate seal. 22 ARTICLE X. AMENDMENT OF BY-LAWS These Bylaws may be altered, amended, repealed or restated, and new Bylaws may be adopted, at any meeting of the shareholders by the affirmative vote of a majority of the stock represented at such meeting, or by the affirmative vote of a majority of the members of the Board of Directors who are present at any regular or special meeting. ARTICLE XI. NOTICE Unless otherwise provided for in these Bylaws, any notice required shall be in writing except that oral notice is effective if it is reasonable under the circumstances and not prohibited by the Charter or these Bylaws. Notice may be communicated in person; by telephone, telegraph, teletype or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television or other form of public broadcast communication. Written notice to a domestic or foreign corporation authorized to transact business in Tennessee may be addressed to its registered agent at its registered office or to the corporation or its secretary at its principal office as shown in its most recent annual report or, in the case of a foreign corporation that has not yet delivered an annual report, in its application for a certificate of authority. Written notice to shareholders, if in a comprehensible form, is effective when mailed, if mailed postpaid and correctly addressed to the shareholder's address shown in the Corporation's current record of shareholders. Except as provided above, written notice, if in a comprehensible 23 form, is effective at the earliest of the following: (a)when received, (b)five (5) days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed thereon; (c)on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; or (d)twenty (20) days after its deposit in the United States mail, as evidenced by the postmark if mailed correctly addressed, and with other than first class, registered or certified postage affixed. Oral notice is effective when communicated if communicated in a comprehensible manner. 24 EX-3.8 8 g86000exv3w8.txt EX-3.8 CHARTER OF O'CHARLEY'S FINANCE COMPANY, INC EXHIBIT 3.8 CHARTER OF O'CHARLEY'S FINANCE COMPANY, INC. The undersigned, acting as the incorporator of a corporation under the Tennessee Business Corporation Act, adopts the following charter for such corporation. 1. The name of the corporation is O'Charley's Finance Company, Inc. 2. The corporation is for profit. 3. The street address of the corporation's principal office is: 3038 Sidco Drive Nashville, Tennessee 37204 County of Davidson 4. (a) The name of the corporation's initial registered agent is: A. Chad Fitzhugh (b) The street address of the corporation's initial registered office in Tennessee is: 3038 Sidco Drive Nashville, Tennessee 37204 County of Davidson 5. The name and address of the incorporator is: Chad C. White Bass, Berry & Sims PLC 315 Deaderick Street, Suite 2700 Nashville, Tennessee 37238 6. The number of shares of stock the corporation is authorized to issue is 1,000,000 shares of common stock, $0.01 par value per share. 7. The shareholders of the corporation shall not have preemptive rights. 8. To the fullest extent permitted by the Tennessee Business Corporation Act as in effect on the date hereof and as hereafter amended from time to time, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. If the Tennessee Business Corporation Act or any successor statute is amended after adoption of this provision to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Tennessee Business Corporation Act, as so amended from time to time. Any repeal or modification of this paragraph 7 by the shareholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification or with respect to events occurring prior to such time. Dated: April 5, 2001 /s/ Chad C. White ---------------------------------- Chad C. White, Incorporator EX-3.9 9 g86000exv3w9.txt EX-3.9 BYLAWS OF O'CHARLEY'S FINANCE COMPANY EXHIBIT 3.9 BYLAWS OF O'CHARLEY'S FINANCE COMPANY, INC. (THE "CORPORATION") ARTICLE I. OFFICES The Corporation may have such offices, either within or without the State of Tennessee, as the Board of Directors may designate or as the business of the Corporation may require from time to time. ARTICLE II. SHAREHOLDERS 2.1 ANNUAL MEETING. An annual meeting of the shareholders of the Corporation shall be held on such date as may be determined by the Board of Directors. The business to be transacted at such meeting shall be the election of directors and such other business as shall be properly brought before the meeting. 2.2 SPECIAL MEETINGS. A special meeting of shareholders shall be held on call of the Board of Directors or if the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the Corporation's Secretary one (1) or more written demands for the meeting describing the purpose or purposes for which such special meeting is to be held. Only business within the purpose or purposes described in the meeting notice may be conducted at a special shareholders' meeting. 2.3 PLACE OF MEETINGS. The Board of Directors may designate any place, either within or without the State of Tennessee, as the place of meeting for any annual meeting or for any special meeting. If no place is fixed by the Board of Directors, the meeting shall be held at the principal office of the Corporation. 2.4 NOTICE OF MEETINGS; WAIVER. (a) NOTICE. Notice of the date, time and place of each annual and special shareholders' meeting and, in the case of a special meeting, a description of the purpose or purposes for which the meeting is called, shall be given no fewer than ten (10) days nor more than two (2) months before the date of the meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (b) WAIVER. A shareholder may waive any notice required by law, the Charter or these Bylaws before or after the date and time stated in such notice. Except as provided in the next sentence, the waiver must be in writing, be signed by the shareholder entitled to the notice and be delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting; and (2) waives objection to consideration of a particular matter at the meeting that is 2 not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. 2.5 RECORD DATE. The Board of Directors shall fix as the record date for the determination of shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote or to take any other action, a date not more than seventy (70) days before the meeting or action requiring a determination of shareholders. A record date fixed for a shareholders' meeting is effective for any adjournment of such meeting unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than four (4) months after the date fixed for the original meeting. 2.6 SHAREHOLDERS' LIST. After the record date for a meeting has been fixed, the Corporation shall prepare an alphabetical list of the names of all shareholders who are entitled to notice of a shareholders' meeting. Such list will be arranged by voting group (and within each voting group by class or series of shares) and will show the address of and number of shares held by each shareholder. The shareholders' list will be available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporation's principal office or at a place identified in the meeting notice in the city where the meeting will be held. A shareholder or his agent or attorney is entitled on written demand to inspect and, subject to the requirements of the Tennessee Business 3 Corporation Act (the "Act"), to copy the list, during regular business hours and at his expense, during the period it is available for inspection. 2.7 VOTING GROUPS; QUORUM; ADJOURNMENT. All shares entitled to vote and be counted together collectively on a matter at a meeting of shareholders shall be a "voting group". Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Except as otherwise required by the Act or provided in the Charter, a majority of the votes entitled to be cast on a matter by a voting group constitutes a quorum of that voting group for action on that matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum of a voting group shall not be present or represented at any meeting, the shares entitled to vote thereat shall have power to adjourn the meeting to a different date, time or place without notice other than announcement at the meeting of the new time, date or place to which the meeting is adjourned. At any adjourned meeting at which a quorum of any voting group shall be present or represented, any business may be transacted by such voting group which might have been transacted at the meeting as originally called. 2.8 VOTING OF SHARES. Unless otherwise provided by the Act or the Charter, each outstanding share is entitled to one (1) vote on each matter voted on at a shareholders' meeting. Only shares are entitled to vote. 4 If a quorum exists, approval of action on a matter (other than the election of directors) by a voting group entitled to vote thereon is received if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Charter or the Act requires a greater number of affirmative votes. Unless otherwise provided in the Charter, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. 2.9 PROXIES. A shareholder may vote his shares in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for him by signing an appointment either personally or by his attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes. An appointment is valid for eleven (11) months unless another period is expressly provided in the appointment form. An appointment of a proxy is revocable by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest. 2.10 ACCEPTANCE OF SHAREHOLDER DOCUMENTS. If the name signed on a shareholder document (a vote, consent, waiver, or proxy appointment) corresponds to the name of a shareholder, the Corporation, if acting in good faith, is entitled to accept such shareholder document and give it effect as the act of the shareholder. If the name signed on such shareholder document does not correspond to the name of a shareholder, the Corporation, if acting in good faith, is nevertheless entitled to accept such shareholder document and to give it effect as the act of the shareholder if: 5 (i) the shareholder is an entity and the name signed purports to be that of an officer or agent of the entity; (ii) the name signed purports to be that of a fiduciary representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to such shareholder document; (iii) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence of this status acceptable to the Corporation has been presented with respect to the shareholder document; (iv) the name signed purports to be that of a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory's authority to sign for the shareholder has been presented with respect to such shareholder document; or (v) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one (1) of the co-owners and the person signing appears to be acting on behalf of all the co-owners. The Corporation is entitled to reject a shareholder document if the Secretary or other officer or agent authorized to tabulate votes, acting in good faith, has a reasonable basis for doubt about the validity of the signature on such shareholder document or about the signatory's authority to sign for the shareholder. 2.11 ACTION WITHOUT MEETING. Action required or permitted by the Act to be taken at a shareholders' meeting may be taken without a meeting. If all shareholders entitled to vote on the action consent to taking such 6 action without a meeting, the affirmative vote of the number of shares that would be necessary to authorize or take such action at a meeting is the act of the shareholders. The action must be evidenced by one (1) or more written consents describing the action taken, at least one of which is signed by each shareholder entitled to vote on the action in one (1) or more counterparts, indicating such signing shareholder's vote or abstention on the action and delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. If the Act or the Charter requires that notice of a proposed action be given to nonvoting shareholders and the action is to be taken by consent of the voting shareholders, then the Corporation shall give its nonvoting shareholders written notice of the proposed action at least ten (10) days before such action is taken. Such notice shall contain or be accompanied by the same material that would have been required to be sent to nonvoting shareholders in a notice of a meeting at which the proposed action would have been submitted to the shareholders for action. 2.12 PRESIDING OFFICER AND SECRETARY. Meetings of the shareholders shall be presided over by the President, or if the President is not present, by a chairman chosen by a majority of the shareholders entitled to vote at such meeting. The Secretary or, in his absence, an Assistant Secretary shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, a majority of the shareholders entitled to vote at such meeting shall choose any person present to act as secretary of the meeting. 7 ARTICLE III. DIRECTORS 3.1 POWERS AND DUTIES. All corporate powers shall be exercised by or under the authority of and the business and affairs of the Corporation managed under the direction of the Board of Directors. 3.2 NUMBER AND TERM. (a) NUMBER. The Board of Directors shall consist of no less than one (1) and no more than ten (10) members, the exact number of directors, within the minimum and maximum, or the range for the size of the Board, or whether the size of the Board shall be fixed or variable-range may be fixed, to be determined from time to time by majority vote of the Board of Directors. (b) TERM. Directors shall be elected at the first annual shareholders' meeting and at each annual meeting thereafter. The terms of the initial directors shall expire at the first shareholders' meeting at which directors are elected. The terms of all other directors expire at the next annual shareholders' meeting following their election. Despite the expiration of a director's term, he shall continue to serve until his successor is elected and qualifies or until there is a decrease in the number of directors. 3.3 MEETINGS; NOTICE. The Board of Directors may hold regular and special meetings either within or without the State of Tennessee. The Board of Directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of 8 communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting. (a) REGULAR MEETINGS. Unless the Charter otherwise provides, regular meetings of the Board of Directors may be held without notice of the date, time, place or purpose of the meeting. (b) SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the President or any two (2) directors. Unless the Charter otherwise provides, special meetings must be preceded by at least twenty-four (24) hours' notice of the date, time and place of the meeting but need not describe the purpose of such meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (c) ADJOURNED MEETINGS. Notice of an adjourned meeting need not be given if the time and place to which the meeting is adjourned are fixed at the meeting at which the adjournment is taken, and if the period of adjournment does not exceed one (1) month in any one (1) adjournment. (d) WAIVER OF NOTICE. A director may waive any required notice before or after the date and time stated in the notice. Except as provided in the next sentence, the waiver must be in writing, signed by the director and filed with the minutes or corporate records. A director's attendance at or participation in a meeting waives any required notice to him of such meeting unless the director at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. 9 3.4 QUORUM. Unless the Charter requires a greater number, a quorum of the Board of Directors consists of a majority of the fixed number of directors if the Corporation has a fixed board size or a majority of the number of directors prescribed, or if no number is prescribed, the number in office immediately before the meeting begins, if the Corporation has a variable range board. 3.5 VOTING. If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the Board of Directors, unless the Charter or these Bylaws require the vote of a greater number of directors. A director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to such action unless: (i) he objects at the beginning of the meeting (or promptly upon his arrival) to holding the meeting or transacting business at the meeting; (ii) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. 3.6 ACTION WITHOUT MEETING. Unless the Charter otherwise provides, any action required or permitted by the Act to be taken at a Board of Directors meeting may be taken without a meeting. If all directors consent to 10 taking such action without a meeting, the affirmative vote of the number of directors that would be necessary to authorize or take such action at a meeting is the act of the Board of Directors. Such action must be evidenced by one or more written consents describing the action taken, at least one of which is signed by each director, indicating the director's vote or abstention on the action, which consents shall be included in the minutes or filed with the corporate records reflecting the action taken. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. 3.7 COMPENSATION. Directors and members of any committee created by the Board of Directors shall be entitled to such reasonable compensation for their services as directors and members of such committee as shall be fixed from time to time by the Board, and shall also be entitled to reimbursement for any reasonable expenses incurred in attending meetings of the Board or of any such committee meetings. Any director receiving such compensation shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services. 3.8 RESIGNATION. A director may resign at any time by delivering written notice to the Board of Directors, President, or to the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. 11 3.9 VACANCIES. Unless the Charter otherwise provides, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors or a vacancy resulting from the removal of a director with or without cause, either the shareholders or the Board of Directors may fill such vacancy. If the directors remaining in office constitute fewer than a quorum of the Board of Directors, they may fill such vacancy by the affirmative vote of a majority of all the directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group shall be entitled to vote to fill the vacancy if it is filled by the shareholders. 3.10 REMOVAL OF DIRECTORS. (a) BY SHAREHOLDERS. The shareholders may remove one (1) or more directors with or without cause unless the Charter provides that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him without cause. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him. (b) BY DIRECTORS. If so provided by the Charter, any of the directors may be removed for cause by the affirmative vote of a majority of the entire Board of Directors. 12 (c) GENERAL. A director may be removed by the shareholders or directors only at a meeting called for the purpose of removing him, and the meeting notice must state that the purpose, or one (1) of the purposes, of the meeting is removal of directors. ARTICLE IV. COMMITTEES Unless the Charter otherwise provides, the Board of Directors may create one (1) or more committees, each consisting of one (1) or more members. All members of committees of the Board of Directors which exercise powers of the Board of Directors must be members of the Board of Directors and serve at the pleasure of the Board of Directors. The creation of a committee and appointment of a member or members to it must be approved by the greater of (i)a majority of all directors in office when the action is taken or (ii)the number of directors required by the Charter or these Bylaws to take action. Unless otherwise provided in the Act, to the extent specified by the Board of Directors or in the Charter, each committee may exercise the authority of the Board of Directors. All such committees and their members shall be governed by the same statutory requirements regarding meetings, action without meetings, notice and waiver of notice, quorum and voting requirements as are applicable to the Board of Directors and its members. 13 ARTICLE V. OFFICERS 5.1 NUMBER. The officers of the Corporation shall be a President, a Secretary and such other officers as may be from time to time appointed by the Board of Directors. One person may simultaneously hold more than one office except the President may not simultaneously hold the office of Secretary. 5.2 APPOINTMENT. The principal officers shall be appointed annually by the Board of Directors at the first meeting of the Board following the annual meeting of the shareholders, or as soon thereafter as is conveniently possible. Each officer shall serve at the pleasure of the Board of Directors and until his successor shall have been appointed, or until his death, resignation or removal. 5.3 RESIGNATION AND REMOVAL. An officer may resign at any time by delivering notice to the Corporation. Such resignation is effective when such notice is delivered unless such notice specifies a later effective date. An officer's resignation does not affect the Corporation's contract rights, if any, with the officer. The Board of Directors may remove any officer at any time with or without cause, but such removal shall not prejudice the contract rights, if any, of the person so removed. 5.4 VACANCIES. 14 Any vacancy in an office from any cause may be filled for the unexpired portion of the term by the Board of Directors. 5.5 DUTIES. (a) PRESIDENT. The President shall be the Chief Executive Officer of the Corporation and shall have general supervision over the active management of the business of the Corporation. He shall have the general powers and duties of supervision and management usually vested in the office of the President of a corporation and shall perform such other duties as the Board of Directors may from time to time prescribe. (b) VICE PRESIDENT. The Vice President or Vice Presidents (if any) shall be active executive officers of the Corporation, shall assist the President in the active management of the business, and shall perform such other duties as the Board of Directors may from time to time prescribe. (c) SECRETARY. The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and shall prepare and record all votes and all minutes of all such meetings in a book to be kept for that purpose; he shall perform like duties for any committee when required. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors when required, and unless directed otherwise by the Board of Directors, shall keep a stock record containing the names of all persons who are shareholders of the Corporation, showing their place of residence and the number of shares held by them respectively. The Secretary shall have the responsibility of authenticating records of the Corporation. The Secretary shall perform such other duties as may be prescribed from time to time by the Board of Directors. 15 (d) TREASURER. The Treasurer (if any) shall have the custody of the Corporation's funds and securities, shall keep or cause to be kept full and accurate account of receipts and disbursements in books belonging to the Corporation, and shall deposit or cause to be deposited all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse or cause to be disbursed the funds of the Corporation as required in the ordinary course of business or as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and directors at the regular meetings of the Board, or whenever they may require it, an account of all of his transactions as Treasurer and the financial condition of the Corporation. He shall perform such other duties as may be incident to his office or as prescribed from time to time by the Board of Directors. The Treasurer shall give the Corporation a bond, if required by the Board of Directors, in a sum and with one or more sureties satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the Corporation in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. (e) OTHER OFFICERS. Other officers appointed by the Board of Directors shall exercise such powers and perform such duties as may be delegated to them. (f) DELEGATION OF DUTIES. In case of the absence or disability of any officer of the Corporation or of any person authorized to act in his place, the Board of Directors may from time to time delegate the powers and duties of such officer to any officer, or any director, or any other person whom it may select, during such period of absence or disability. 16 5.6 INDEMNIFICATION, ADVANCEMENT OF EXPENSES AND INSURANCE. (a) INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The Corporation shall indemnify and advance expenses to each director and officer of the Corporation, or any person who may have served at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director or officer of another corporation (and, in either case, his heirs, executors and administrators), to the full extent allowed by the laws of the State of Tennessee, both as now in effect and as hereafter adopted. The Corporation may indemnify and advance expenses to any employee or agent of the Corporation who is not a director or officer (and his heirs, executors and administrators) to the same extent as to a director or officer, if the Board of Directors determines that to do so is in the best interests of the Corporation. (b) NON-EXCLUSIVITY OF RIGHTS. The indemnification and advancement of expenses provisions of subsection (a) of this Section 5.6 shall not be exclusive of any other right which any person (and his heirs, executors and administrators) may have or hereafter acquire under any statute, provision of the Charter, provision of these Bylaws, resolution adopted by the shareholders, resolution adopted by the Board of Directors, agreement, insurance, purchased by the Corporation or otherwise, both as to action in his official capacity and as to action in another capacity. (c) INSURANCE. The Corporation may maintain insurance, at its expense, to protect itself and any individual who is or was a director, officer, employee or agent of the Corporation, or who, while a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss 17 whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under this Article or the Act. ARTICLE VI. SHARES OF STOCK 6.1 SHARES WITH OR WITHOUT CERTIFICATES. The Board of Directors may authorize that some or all of the shares of any or all of the Corporation's classes or series of stock be evidenced by a certificate or certificates of stock. The Board of Directors may also authorize the issue of some or all of the shares of any or all of the Corporation's classes or series of stock without certificates. The rights and obligations of shareholders with the same class and/or series of stock shall be identical whether or not their shares are represented by certificates. (a) SHARES WITH CERTIFICATES. If the Board of Directors chooses to issue shares of stock evidenced by a certificate or certificates, each individual certificate shall include the following on its face: (i)the Corporation's name, (ii)the fact that the Corporation is organized under the laws of the State of Tennessee, (iii)the name of the person to whom the certificate is issued, (iv)the number of shares represented thereby, (v) the class of shares and the designation of the series, if any, which the certificate represents, and (vi) such other information as applicable law may require or as may be lawful. If the Corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate shall 18 state on its front or back that the Corporation will furnish the shareholder this information in writing, without charge, upon request. Each certificate of stock issued by the Corporation shall be signed (either manually or in facsimile) by the President or a Vice President, and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer. If the person who signed a certificate no longer holds office when the certificate is issued, the certificate is nonetheless valid. (b) SHARES WITHOUT CERTIFICATES. If the Board of Directors chooses to issue shares of stock without certificates, the Corporation, if required by the Act, shall, within a reasonable time after the issue or transfer of shares without certificates, send the shareholder a written statement of the information required on certificates by Section 6.1(a) of these Bylaws and any other information required by the Act. 6.2 SUBSCRIPTIONS FOR SHARES. Subscriptions for shares of the Corporation shall be valid only if they are in writing. Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at such time, or in such installments and at such periods, as shall be determined by the Board of Directors. All calls for payment on subscriptions shall be uniform as to all shares of the same class or of the same series, unless the subscription agreement specifies otherwise. 6.3 TRANSFERS. Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by (i)the holder of record thereof, (ii)by his legal representative, who, 19 upon request of the Corporation, shall furnish proper evidence of authority to transfer, or (iii)his attorney, authorized by a power of attorney duly executed and filed with the Secretary of the Corporation or a duly appointed transfer agent. Such transfers shall be made only upon surrender, if applicable, of the certificate or certificates for such shares properly endorsed and with all taxes thereon paid. 6.4 LOST, DESTROYED OR STOLEN CERTIFICATES. No certificate for shares of stock of the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen except on production of evidence, satisfactory to the Board of Directors, of such loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount and with such terms and such surety as the Board of Directors may in its discretion require. ARTICLE VII. CORPORATE ACTIONS 7.1 CONTRACTS. Unless otherwise required by the Board of Directors, the President or any Vice President shall execute contracts or other instruments on behalf of and in the name of the Corporation. The Board of Directors may from time to time authorize any other officer, assistant officer or agent to enter into any contract or execute any instrument in the name of and on behalf of the Corporation as it may deem appropriate, and such authority may be general or confined to specific instances. 20 7.2 LOANS. No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized by the President or the Board of Directors. Such authority may be general or confined to specific instances. 7.3 CHECKS, DRAFTS, ETC. Unless otherwise required by the Board of Directors, all checks, drafts, bills of exchange and other negotiable instruments of the Corporation shall be signed by either the President, a Vice President or such other officer, assistant officer or agent of the Corporation as may be authorized so to do by the Board of Directors. Such authority may be general or confined to specific business, and, if so directed by the Board, the signatures of two or more such officers may be required. 7.4 DEPOSITS. All funds of the Company not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks or other depositories as the Board of Directors may authorize. 7.5 VOTING SECURITIES HELD BY THE CORPORATION. Unless otherwise required by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend any meeting of security holders, or to take action on written consent as a security holder, of other corporations in which the Corporation may hold securities. In connection therewith the President shall possess and may exercise any 21 and all rights and powers incident to the ownership of such securities which the Corporation possesses. The Board of Directors may, from time to time, confer like powers upon any other person or persons. 7.6 DIVIDENDS. The Board of Directors may, from time to time, declare, and the Corporation may pay, dividends on its outstanding shares of capital stock in the manner and upon the terms and conditions provided by applicable law. The record date for the determination of shareholders entitled to receive the payment of any dividend shall be determined by the Board of Directors, but which in any event shall not be less than ten (10) days prior to the date of such payment. ARTICLE VIII. FISCAL YEAR The fiscal year of the Corporation shall be determined by the Board of Directors, and in the absence of such determination, shall be the calendar year. ARTICLE IX. CORPORATE SEAL The Corporation shall not have a corporate seal. 22 ARTICLE X. AMENDMENT OF BY-LAWS These Bylaws may be altered, amended, repealed or restated, and new Bylaws may be adopted, at any meeting of the shareholders by the affirmative vote of a majority of the stock represented at such meeting, or by the affirmative vote of a majority of the members of the Board of Directors who are present at any regular or special meeting. ARTICLE XI. NOTICE Unless otherwise provided for in these Bylaws, any notice required shall be in writing except that oral notice is effective if it is reasonable under the circumstances and not prohibited by the Charter or these Bylaws. Notice may be communicated in person; by telephone, telegraph, teletype or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television or other form of public broadcast communication. Written notice to a domestic or foreign corporation authorized to transact business in Tennessee may be addressed to its registered agent at its registered office or to the corporation or its secretary at its principal office as shown in its most recent annual report or, in the case of a foreign corporation that has not yet delivered an annual report, in its application for a certificate of authority. Written notice to shareholders, if in a comprehensible form, is effective when mailed, if mailed postpaid and correctly addressed to the shareholder's address shown in the Corporation's current record of shareholders. Except as provided above, written notice, if in a comprehensible 23 form, is effective at the earliest of the following: (a)when received, (b)five (5) days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed thereon; (c)on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; or (d)twenty (20) days after its deposit in the United States mail, as evidenced by the postmark if mailed correctly addressed, and with other than first class, registered or certified postage affixed. Oral notice is effective when communicated if communicated in a comprehensible manner. 24 EX-3.10 10 g86000exv3w10.txt EX-3.10 CHARTER OF O'CHARLEY'S MANAGEMENT COMPANY EXHIBIT 3.10 CHARTER OF O'CHARLEY'S MANAGEMENT COMPANY, INC. The undersigned, acting as the incorporator of a corporation under the Tennessee Business Corporation Act (the "Act"), adopts the following charter for such corporation: 1. The name of the corporation is O'Charley's Management Company, Inc. 2. The corporation is for profit. 3. The street address of the corporation's principal office is: 3038 Sidco Drive Davidson County Nashville, Tennessee 37024 4. (a) The name of the corporation's initial registered agent is A. Chad Fitzhugh. (b) The street address of the corporation's initial registered office in Tennessee is: 3038 Sidco Drive Davidson County Nashville, Tennessee 37024 5. The name and address of the incorporator is: Kevin P. O'Hara Bass, Berry & Sims PLC First American Center Nashville, TN 37238-2700 6. The number of shares of stock the corporation is authorized to issue is 100,000 shares of common stock, par value $0.01 per share. 7. The shareholders of the corporation shall not have preemptive rights. 8. To the fullest extent permitted by the Act as in effect on the date hereof and as hereafter amended from time to time, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. If the Act or any successor statute is amended after adoption of this provision to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Act, as so amended from time to time. Any repeal or modification of this paragraph 8 by the shareholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification or with respect to events occurring prior to such time. Dated: December 10, 1997 /s/ Kevin P. O'Hara ------------------------------ Kevin P. O'Hara, Incorporator EX-3.11 11 g86000exv3w11.txt EX-3.10 BYLAWS OF O'CHARLEY'S MANAGEMENT COMPANY EXHIBIT 3.11 BYLAWS OF O'CHARLEY'S MANAGEMENT COMPANY, INC. (THE "CORPORATION") ARTICLE I. OFFICES The Corporation may have such offices, either within or without the State of Tennessee, as the Board of Directors may designate or as the business of the Corporation may require from time to time. ARTICLE II. SHAREHOLDERS 2.1 ANNUAL MEETING. An annual meeting of the shareholders of the Corporation shall be held on such date as may be determined by the Board of Directors. The business to be transacted at such meeting shall be the election of directors and such other business as shall be properly brought before the meeting. 2.2 SPECIAL MEETINGS. A special meeting of shareholders shall be held on call of the Board of Directors or if the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the Corporation's Secretary one (1) or more written demands for the meeting describing the purpose or purposes for which such special meeting is to be held. Only business within the purpose or purposes described in the meeting notice may be conducted at a special shareholders' meeting. 2.3 PLACE OF MEETINGS. The Board of Directors may designate any place, either within or without the State of Tennessee, as the place of meeting for any annual meeting or for any special meeting. If no place is fixed by the Board of Directors, the meeting shall be held at the principal office of the Corporation. 2.4 NOTICE OF MEETINGS; WAIVER. (a) NOTICE. Notice of the date, time and place of each annual and special shareholders' meeting and, in the case of a special meeting, a description of the purpose or purposes for which the meeting is called, shall be given no fewer than ten (10) days nor more than two (2) months before the date of the meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (b) WAIVER. A shareholder may waive any notice required by law, the Charter or these Bylaws before or after the date and time stated in such notice. Except as provided in the next sentence, the waiver must be in writing, be signed by the shareholder entitled to the notice and be delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting; and (2) waives objection to consideration of a particular matter at the meeting that is 2 not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. 2.5 RECORD DATE. The Board of Directors shall fix as the record date for the determination of shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote or to take any other action, a date not more than seventy (70) days before the meeting or action requiring a determination of shareholders. A record date fixed for a shareholders' meeting is effective for any adjournment of such meeting unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than four (4) months after the date fixed for the original meeting. 2.6 SHAREHOLDERS' LIST. After the record date for a meeting has been fixed, the Corporation shall prepare an alphabetical list of the names of all shareholders who are entitled to notice of a shareholders' meeting. Such list will be arranged by voting group (and within each voting group by class or series of shares) and will show the address of and number of shares held by each shareholder. The shareholders' list will be available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporation's principal office or at a place identified in the meeting notice in the city where the meeting will be held. A shareholder or his agent or attorney is entitled on written demand to inspect and, subject to the requirements of the Tennessee Business 3 Corporation Act (the "Act"), to copy the list, during regular business hours and at his expense, during the period it is available for inspection. 2.7 VOTING GROUPS; QUORUM; ADJOURNMENT. All shares entitled to vote and be counted together collectively on a matter at a meeting of shareholders shall be a "voting group". Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Except as otherwise required by the Act or provided in the Charter, a majority of the votes entitled to be cast on a matter by a voting group constitutes a quorum of that voting group for action on that matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum of a voting group shall not be present or represented at any meeting, the shares entitled to vote thereat shall have power to adjourn the meeting to a different date, time or place without notice other than announcement at the meeting of the new time, date or place to which the meeting is adjourned. At any adjourned meeting at which a quorum of any voting group shall be present or represented, any business may be transacted by such voting group which might have been transacted at the meeting as originally called. 2.8 VOTING OF SHARES. Unless otherwise provided by the Act or the Charter, each outstanding share is entitled to one (1) vote on each matter voted on at a shareholders' meeting. Only shares are entitled to vote. 4 If a quorum exists, approval of action on a matter (other than the election of directors) by a voting group entitled to vote thereon is received if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Charter or the Act requires a greater number of affirmative votes. Unless otherwise provided in the Charter, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. 2.9 PROXIES. A shareholder may vote his shares in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for him by signing an appointment either personally or by his attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes. An appointment is valid for eleven (11) months unless another period is expressly provided in the appointment form. An appointment of a proxy is revocable by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest. 2.10 ACCEPTANCE OF SHAREHOLDER DOCUMENTS. If the name signed on a shareholder document (a vote, consent, waiver, or proxy appointment) corresponds to the name of a shareholder, the Corporation, if acting in good faith, is entitled to accept such shareholder document and give it effect as the act of the shareholder. If the name signed on such shareholder document does not correspond to the name of a shareholder, the Corporation, if acting in good faith, is nevertheless entitled to accept such shareholder document and to give it effect as the act of the shareholder if: 5 (i) the shareholder is an entity and the name signed purports to be that of an officer or agent of the entity; (ii) the name signed purports to be that of a fiduciary representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to such shareholder document; (iii) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence of this status acceptable to the Corporation has been presented with respect to the shareholder document; (iv) the name signed purports to be that of a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory's authority to sign for the shareholder has been presented with respect to such shareholder document; or (v) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one (1) of the co-owners and the person signing appears to be acting on behalf of all the co-owners. The Corporation is entitled to reject a shareholder document if the Secretary or other officer or agent authorized to tabulate votes, acting in good faith, has a reasonable basis for doubt about the validity of the signature on such shareholder document or about the signatory's authority to sign for the shareholder. 2.11 ACTION WITHOUT MEETING. Action required or permitted by the Act to be taken at a shareholders' meeting may be taken without a meeting. If all shareholders entitled to vote on the action consent to taking such 6 action without a meeting, the affirmative vote of the number of shares that would be necessary to authorize or take such action at a meeting is the act of the shareholders. The action must be evidenced by one (1) or more written consents describing the action taken, at least one of which is signed by each shareholder entitled to vote on the action in one (1) or more counterparts, indicating such signing shareholder's vote or abstention on the action and delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. If the Act or the Charter requires that notice of a proposed action be given to nonvoting shareholders and the action is to be taken by consent of the voting shareholders, then the Corporation shall give its nonvoting shareholders written notice of the proposed action at least ten (10) days before such action is taken. Such notice shall contain or be accompanied by the same material that would have been required to be sent to nonvoting shareholders in a notice of a meeting at which the proposed action would have been submitted to the shareholders for action. 2.12 PRESIDING OFFICER AND SECRETARY. Meetings of the shareholders shall be presided over by the President, or if the President is not present, by a chairman chosen by a majority of the shareholders entitled to vote at such meeting. The Secretary or, in his absence, an Assistant Secretary shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, a majority of the shareholders entitled to vote at such meeting shall choose any person present to act as secretary of the meeting. 7 ARTICLE III. DIRECTORS 3.1 POWERS AND DUTIES. All corporate powers shall be exercised by or under the authority of and the business and affairs of the Corporation managed under the direction of the Board of Directors. 3.2 NUMBER AND TERM. (a) NUMBER. The Board of Directors shall consist of no less than one (1) and no more than ten (10) members, the exact number of directors, within the minimum and maximum, or the range for the size of the Board, or whether the size of the Board shall be fixed or variable-range may be fixed, to be determined from time to time by majority vote of the Board of Directors. (b) TERM. Directors shall be elected at the first annual shareholders' meeting and at each annual meeting thereafter. The terms of the initial directors shall expire at the first shareholders' meeting at which directors are elected. The terms of all other directors expire at the next annual shareholders' meeting following their election. Despite the expiration of a director's term, he shall continue to serve until his successor is elected and qualifies or until there is a decrease in the number of directors. 3.3 MEETINGS; NOTICE. The Board of Directors may hold regular and special meetings either within or without the State of Tennessee. The Board of Directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of 8 communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting. (a) REGULAR MEETINGS. Unless the Charter otherwise provides, regular meetings of the Board of Directors may be held without notice of the date, time, place or purpose of the meeting. (b) SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the President or any two (2) directors. Unless the Charter otherwise provides, special meetings must be preceded by at least twenty-four (24) hours' notice of the date, time and place of the meeting but need not describe the purpose of such meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (c) ADJOURNED MEETINGS. Notice of an adjourned meeting need not be given if the time and place to which the meeting is adjourned are fixed at the meeting at which the adjournment is taken, and if the period of adjournment does not exceed one (1) month in any one (1) adjournment. (d) WAIVER OF NOTICE. A director may waive any required notice before or after the date and time stated in the notice. Except as provided in the next sentence, the waiver must be in writing, signed by the director and filed with the minutes or corporate records. A director's attendance at or participation in a meeting waives any required notice to him of such meeting unless the director at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. 9 3.4 QUORUM. Unless the Charter requires a greater number, a quorum of the Board of Directors consists of a majority of the fixed number of directors if the Corporation has a fixed board size or a majority of the number of directors prescribed, or if no number is prescribed, the number in office immediately before the meeting begins, if the Corporation has a variable range board. 3.5 VOTING. If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the Board of Directors, unless the Charter or these Bylaws require the vote of a greater number of directors. A director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to such action unless: (i) he objects at the beginning of the meeting (or promptly upon his arrival) to holding the meeting or transacting business at the meeting; (ii) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. 3.6 ACTION WITHOUT MEETING. Unless the Charter otherwise provides, any action required or permitted by the Act to be taken at a Board of Directors meeting may be taken without a meeting. If all directors consent to 10 taking such action without a meeting, the affirmative vote of the number of directors that would be necessary to authorize or take such action at a meeting is the act of the Board of Directors. Such action must be evidenced by one or more written consents describing the action taken, at least one of which is signed by each director, indicating the director's vote or abstention on the action, which consents shall be included in the minutes or filed with the corporate records reflecting the action taken. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. 3.7 COMPENSATION. Directors and members of any committee created by the Board of Directors shall be entitled to such reasonable compensation for their services as directors and members of such committee as shall be fixed from time to time by the Board, and shall also be entitled to reimbursement for any reasonable expenses incurred in attending meetings of the Board or of any such committee meetings. Any director receiving such compensation shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services. 3.8 RESIGNATION. A director may resign at any time by delivering written notice to the Board of Directors, President, or to the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. 11 3.9 VACANCIES. Unless the Charter otherwise provides, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors or a vacancy resulting from the removal of a director with or without cause, either the shareholders or the Board of Directors may fill such vacancy. If the directors remaining in office constitute fewer than a quorum of the Board of Directors, they may fill such vacancy by the affirmative vote of a majority of all the directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group shall be entitled to vote to fill the vacancy if it is filled by the shareholders. 3.10 REMOVAL OF DIRECTORS. (a) BY SHAREHOLDERS. The shareholders may remove one (1) or more directors with or without cause unless the Charter provides that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him without cause. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him. (b) BY DIRECTORS. If so provided by the Charter, any of the directors may be removed for cause by the affirmative vote of a majority of the entire Board of Directors. 12 (c) GENERAL. A director may be removed by the shareholders or directors only at a meeting called for the purpose of removing him, and the meeting notice must state that the purpose, or one (1) of the purposes, of the meeting is removal of directors. ARTICLE IV. COMMITTEES Unless the Charter otherwise provides, the Board of Directors may create one (1) or more committees, each consisting of one (1) or more members. All members of committees of the Board of Directors which exercise powers of the Board of Directors must be members of the Board of Directors and serve at the pleasure of the Board of Directors. The creation of a committee and appointment of a member or members to it must be approved by the greater of (i)a majority of all directors in office when the action is taken or (ii)the number of directors required by the Charter or these Bylaws to take action. Unless otherwise provided in the Act, to the extent specified by the Board of Directors or in the Charter, each committee may exercise the authority of the Board of Directors. All such committees and their members shall be governed by the same statutory requirements regarding meetings, action without meetings, notice and waiver of notice, quorum and voting requirements as are applicable to the Board of Directors and its members. 13 ARTICLE V. OFFICERS 5.1 NUMBER. The officers of the Corporation shall be a President, a Secretary and such other officers as may be from time to time appointed by the Board of Directors. One person may simultaneously hold more than one office except the President may not simultaneously hold the office of Secretary. 5.2 APPOINTMENT. The principal officers shall be appointed annually by the Board of Directors at the first meeting of the Board following the annual meeting of the shareholders, or as soon thereafter as is conveniently possible. Each officer shall serve at the pleasure of the Board of Directors and until his successor shall have been appointed, or until his death, resignation or removal. 5.3 RESIGNATION AND REMOVAL. An officer may resign at any time by delivering notice to the Corporation. Such resignation is effective when such notice is delivered unless such notice specifies a later effective date. An officer's resignation does not affect the Corporation's contract rights, if any, with the officer. The Board of Directors may remove any officer at any time with or without cause, but such removal shall not prejudice the contract rights, if any, of the person so removed. 5.4 VACANCIES. 14 Any vacancy in an office from any cause may be filled for the unexpired portion of the term by the Board of Directors. 5.5 DUTIES. (a) PRESIDENT. The President shall be the Chief Executive Officer of the Corporation and shall have general supervision over the active management of the business of the Corporation. He shall have the general powers and duties of supervision and management usually vested in the office of the President of a corporation and shall perform such other duties as the Board of Directors may from time to time prescribe. (b) VICE PRESIDENT. The Vice President or Vice Presidents (if any) shall be active executive officers of the Corporation, shall assist the President in the active management of the business, and shall perform such other duties as the Board of Directors may from time to time prescribe. (c) SECRETARY. The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and shall prepare and record all votes and all minutes of all such meetings in a book to be kept for that purpose; he shall perform like duties for any committee when required. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors when required, and unless directed otherwise by the Board of Directors, shall keep a stock record containing the names of all persons who are shareholders of the Corporation, showing their place of residence and the number of shares held by them respectively. The Secretary shall have the responsibility of authenticating records of the Corporation. The Secretary shall perform such other duties as may be prescribed from time to time by the Board of Directors. 15 (d) TREASURER. The Treasurer (if any) shall have the custody of the Corporation's funds and securities, shall keep or cause to be kept full and accurate account of receipts and disbursements in books belonging to the Corporation, and shall deposit or cause to be deposited all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse or cause to be disbursed the funds of the Corporation as required in the ordinary course of business or as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and directors at the regular meetings of the Board, or whenever they may require it, an account of all of his transactions as Treasurer and the financial condition of the Corporation. He shall perform such other duties as may be incident to his office or as prescribed from time to time by the Board of Directors. The Treasurer shall give the Corporation a bond, if required by the Board of Directors, in a sum and with one or more sureties satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the Corporation in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. (e) OTHER OFFICERS. Other officers appointed by the Board of Directors shall exercise such powers and perform such duties as may be delegated to them. (f) DELEGATION OF DUTIES. In case of the absence or disability of any officer of the Corporation or of any person authorized to act in his place, the Board of Directors may from time to time delegate the powers and duties of such officer to any officer, or any director, or any other person whom it may select, during such period of absence or disability. 16 5.6 INDEMNIFICATION, ADVANCEMENT OF EXPENSES AND INSURANCE. (a) INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The Corporation shall indemnify and advance expenses to each director and officer of the Corporation, or any person who may have served at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director or officer of another corporation (and, in either case, his heirs, executors and administrators), to the full extent allowed by the laws of the State of Tennessee, both as now in effect and as hereafter adopted. The Corporation may indemnify and advance expenses to any employee or agent of the Corporation who is not a director or officer (and his heirs, executors and administrators) to the same extent as to a director or officer, if the Board of Directors determines that to do so is in the best interests of the Corporation. (b) NON-EXCLUSIVITY OF RIGHTS. The indemnification and advancement of expenses provisions of subsection (a) of this Section 5.6 shall not be exclusive of any other right which any person (and his heirs, executors and administrators) may have or hereafter acquire under any statute, provision of the Charter, provision of these Bylaws, resolution adopted by the shareholders, resolution adopted by the Board of Directors, agreement, insurance, purchased by the Corporation or otherwise, both as to action in his official capacity and as to action in another capacity. (c) INSURANCE. The Corporation may maintain insurance, at its expense, to protect itself and any individual who is or was a director, officer, employee or agent of the Corporation, or who, while a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss 17 whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under this Article or the Act. ARTICLE VI. SHARES OF STOCK 6.1 SHARES WITH OR WITHOUT CERTIFICATES. The Board of Directors may authorize that some or all of the shares of any or all of the Corporation's classes or series of stock be evidenced by a certificate or certificates of stock. The Board of Directors may also authorize the issue of some or all of the shares of any or all of the Corporation's classes or series of stock without certificates. The rights and obligations of shareholders with the same class and/or series of stock shall be identical whether or not their shares are represented by certificates. (a) SHARES WITH CERTIFICATES. If the Board of Directors chooses to issue shares of stock evidenced by a certificate or certificates, each individual certificate shall include the following on its face: (i)the Corporation's name, (ii)the fact that the Corporation is organized under the laws of the State of Tennessee, (iii)the name of the person to whom the certificate is issued, (iv)the number of shares represented thereby, (v) the class of shares and the designation of the series, if any, which the certificate represents, and (vi) such other information as applicable law may require or as may be lawful. If the Corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate shall 18 state on its front or back that the Corporation will furnish the shareholder this information in writing, without charge, upon request. Each certificate of stock issued by the Corporation shall be signed (either manually or in facsimile) by the President or a Vice President, and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer. If the person who signed a certificate no longer holds office when the certificate is issued, the certificate is nonetheless valid. (b) SHARES WITHOUT CERTIFICATES. If the Board of Directors chooses to issue shares of stock without certificates, the Corporation, if required by the Act, shall, within a reasonable time after the issue or transfer of shares without certificates, send the shareholder a written statement of the information required on certificates by Section 6.1(a) of these Bylaws and any other information required by the Act. 6.2 SUBSCRIPTIONS FOR SHARES. Subscriptions for shares of the Corporation shall be valid only if they are in writing. Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at such time, or in such installments and at such periods, as shall be determined by the Board of Directors. All calls for payment on subscriptions shall be uniform as to all shares of the same class or of the same series, unless the subscription agreement specifies otherwise. 6.3 TRANSFERS. Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by (i)the holder of record thereof, (ii)by his legal representative, who, 19 upon request of the Corporation, shall furnish proper evidence of authority to transfer, or (iii)his attorney, authorized by a power of attorney duly executed and filed with the Secretary of the Corporation or a duly appointed transfer agent. Such transfers shall be made only upon surrender, if applicable, of the certificate or certificates for such shares properly endorsed and with all taxes thereon paid. 6.4 LOST, DESTROYED OR STOLEN CERTIFICATES. No certificate for shares of stock of the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen except on production of evidence, satisfactory to the Board of Directors, of such loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount and with such terms and such surety as the Board of Directors may in its discretion require. ARTICLE VII. CORPORATE ACTIONS 7.1 CONTRACTS. Unless otherwise required by the Board of Directors, the President or any Vice President shall execute contracts or other instruments on behalf of and in the name of the Corporation. The Board of Directors may from time to time authorize any other officer, assistant officer or agent to enter into any contract or execute any instrument in the name of and on behalf of the Corporation as it may deem appropriate, and such authority may be general or confined to specific instances. 20 7.2 LOANS. No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized by the President or the Board of Directors. Such authority may be general or confined to specific instances. 7.3 CHECKS, DRAFTS, ETC. Unless otherwise required by the Board of Directors, all checks, drafts, bills of exchange and other negotiable instruments of the Corporation shall be signed by either the President, a Vice President or such other officer, assistant officer or agent of the Corporation as may be authorized so to do by the Board of Directors. Such authority may be general or confined to specific business, and, if so directed by the Board, the signatures of two or more such officers may be required. 7.4 DEPOSITS. All funds of the Company not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks or other depositories as the Board of Directors may authorize. 7.5 VOTING SECURITIES HELD BY THE CORPORATION. Unless otherwise required by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend any meeting of security holders, or to take action on written consent as a security holder, of other corporations in which the Corporation may hold securities. In connection therewith the President shall possess and may exercise any 21 and all rights and powers incident to the ownership of such securities which the Corporation possesses. The Board of Directors may, from time to time, confer like powers upon any other person or persons. 7.6 DIVIDENDS. The Board of Directors may, from time to time, declare, and the Corporation may pay, dividends on its outstanding shares of capital stock in the manner and upon the terms and conditions provided by applicable law. The record date for the determination of shareholders entitled to receive the payment of any dividend shall be determined by the Board of Directors, but which in any event shall not be less than ten (10) days prior to the date of such payment. ARTICLE VIII. FISCAL YEAR The fiscal year of the Corporation shall be determined by the Board of Directors, and in the absence of such determination, shall be the calendar year. ARTICLE IX. CORPORATE SEAL The Corporation shall not have a corporate seal. 22 ARTICLE X. AMENDMENT OF BY-LAWS These Bylaws may be altered, amended, repealed or restated, and new Bylaws may be adopted, at any meeting of the shareholders by the affirmative vote of a majority of the stock represented at such meeting, or by the affirmative vote of a majority of the members of the Board of Directors who are present at any regular or special meeting. ARTICLE XI. NOTICE Unless otherwise provided for in these Bylaws, any notice required shall be in writing except that oral notice is effective if it is reasonable under the circumstances and not prohibited by the Charter or these Bylaws. Notice may be communicated in person; by telephone, telegraph, teletype or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television or other form of public broadcast communication. Written notice to a domestic or foreign corporation authorized to transact business in Tennessee may be addressed to its registered agent at its registered office or to the corporation or its secretary at its principal office as shown in its most recent annual report or, in the case of a foreign corporation that has not yet delivered an annual report, in its application for a certificate of authority. Written notice to shareholders, if in a comprehensible form, is effective when mailed, if mailed postpaid and correctly addressed to the shareholder's address shown in the Corporation's current record of shareholders. Except as provided above, written notice, if in a comprehensible 23 form, is effective at the earliest of the following: (a)when received, (b)five (5) days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed thereon; (c)on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; or (d)twenty (20) days after its deposit in the United States mail, as evidenced by the postmark if mailed correctly addressed, and with other than first class, registered or certified postage affixed. Oral notice is effective when communicated if communicated in a comprehensible manner. 24 EX-3.12 12 g86000exv3w12.txt EX-3.12 CERTIFICATE OF FORMATION O'CHARLEY'S EXHIBIT 3.12 CERTIFICATE OF FORMATION OF O'CHARLEY'S RESTAURANT PROPERTIES, LLC This Certificate of Formation of O'Charley's Restaurant Properties, LLC is to be filed with the Office of the Secretary of State of the State of Delaware pursuant to the Delaware Limited Liability Company Act (the "Act"), Section 18-201. 1. The name of the limited liability company is O'Charley's Restaurant Properties, LLC. 2. The name and street and mailing address of the initial registered office and the registered agent for service of process of the limited liability company in the State of Delaware are as follows: Griffin Corporate Services, Inc., 900 Market Street, Wilmington, Delaware 19801. 3. a. The limited liability company shall have the power to indemnify any person who has taken an action of management as a member, manager, employee, or agent of the limited liability company, or any other person who is serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and any such indemnification may continue as to any person who has ceased to be a member, manager, employee, or agent and may inure to the benefit of the heirs, executors, and administrators of such a person. b. By action of the members, notwithstanding any interest of the managers in the action, the limited liability company may purchase and maintain insurance, in such amounts as the members deem appropriate, to protect any member, manager, employee, independent contractor or agent of the limited liability company or any other person who is or was serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) against liability asserted against him or incurred by him in any such capacity or arising out of his status as such (including, without limitation, expenses, judgments, fines, and amounts paid in settlement) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and whether or not the limited liability company would have the power or would be required to indemnify such person under the terms of any agreement or provision of its operating agreement or the Act. For purposes of this paragraph (b), "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan. Dated as of this 15th day of December, 1997. /s/ Gregory L. Burns ---------------------------------------- GREGORY L. BURNS, Authorized Person EX-3.13 13 g86000exv3w13.txt EX-3.13 OPERATING AGREEMENT OF O'CHARLEY'S EXHIBIT 3.13 OPERATING AGREEMENT OF O'CHARLEY'S RESTAURANT PROPERTIES, LLC . . . TABLE OF CONTENTS ARTICLE I. DEFINITIONS 1.1 Definitions.................................................................................... 1 1.1.1 "Act"................................................................................. 1 1.1.2 "Affiliate,".......................................................................... 1 1.1.3 "Agreement"........................................................................... 1 1.1.4 "Assign".............................................................................. 1 1.1.5 "Assignment".......................................................................... 1 1.1.6 "Available Cash Flow"................................................................. 2 1.1.7 "Capital Account"..................................................................... 2 1.1.8 "Capital Contribution"................................................................ 2 1.1.9 "Certificate of Formation"............................................................ 2 1.1.10 "Code"................................................................................ 2 1.1.11 "Dissolution Event"................................................................... 2 1.1.12 "Entity".............................................................................. 2 1.1.13 "Financial Rights".................................................................... 2 1.1.14 "Governance Rights"................................................................... 2 1.1.15 "Immediate Family".................................................................... 2 1.1.16 "LLC"................................................................................. 2 1.1.17 "Majority in Interest"................................................................ 2 1.1.18 "Majority of the Membership Interests"................................................ 2 1.1.19 "Managers"............................................................................ 3 1.1.20 "Maximum Tax Liability"............................................................... 3 1.1.21 "Members"............................................................................. 3 1.1.22 "Membership Interest"................................................................. 3 1.1.23 "Membership Percentage"............................................................... 3 1.1.24 "Net Income" and "Net Loss"........................................................... 3 1.1.25 "New Member".......................................................................... 3 1.1.26 "Successor"........................................................................... 3 1.1.27 "Tax Matters Partner"................................................................. 3 1.1.28 "Treasury Regulations"................................................................ 3 ARTICLE II. ORGANIZATION 2.1 Formation...................................................................................... 4 2.2 Adoption of Agreement.......................................................................... 4 2.3 Name........................................................................................... 4 2.4 Principal Place of Business.................................................................... 4 ARTICLE III. PURPOSE AND POWERS 3.1 Purpose........................................................................................ 4 3.2 Powers......................................................................................... 4

i ARTICLE IV. CAPITAL CONTRIBUTIONS AND MEMBERSHIP INTERESTS 4.1 Initial Capital Contribution................................................................... 4 4.2 Additional Contributions....................................................................... 4 4.3 Withdrawal or Reduction of Members' Capital Contributions...................................... 4 4.4 Interest and Preferential Rights............................................................... 5 4.5 Membership Interests and Amendments to Exhibit A............................................... 5 ARTICLE V. ALLOCATION OF INCOME AND LOSSES; CASH DISTRIBUTIONS 5.1 Capital Accounts............................................................................... 5 5.2 Allocation of Net Income and Net Loss.......................................................... 5 5.3 Special Allocations With Respect to Contributed or Revalued Property........................... 5 5.4 Allocations in Case of Assignment.............................................................. 6 5.5 Mandatory Distributions........................................................................ 6 5.6 Distribution of Available Cash Flow............................................................ 6 5.7 Distributions Upon Liquidation................................................................. 6 5.8 Consequences of Distributions.................................................................. 6 ARTICLE VI. MANAGEMENT BY MEMBERS 6.1 Management by Members.......................................................................... 7 6.2 Mutual Agency of the Members................................................................... 7 6.3 Actions Requiring the Approval of All of the Members........................................... 7 6.4 Actions Requiring the Approval of Members Holding a Majority of the Membership Interests....... 7 6.5 Compensation and Reimbursement................................................................. 8 6.6 No Exclusive Duty.............................................................................. 8 ARTICLE VII. MEETINGS OF MEMBERS AND ACTIONS ON WRITTEN CONSENT 7.1 Meetings....................................................................................... 8 7.2 Action by Members Without a Meeting............................................................ 8 7.3 Place of Meetings; Telephone Meetings.......................................................... 8 7.4 Notice of Meetings............................................................................. 9 7.5 Waiver of Notice............................................................................... 9 7.6 Record Date.................................................................................... 9 7.7 Voting List.................................................................................... 9 7.8 Quorum......................................................................................... 9 7.9 Required Vote; Manner of Acting................................................................ 9 7.10 Proxies........................................................................................ 10 ARTICLE VIII. MANAGERS 8.1 Appointment of Managers........................................................................ 10 8.2 Term; Removal.................................................................................. 10 8.3 Duties......................................................................................... 10

ii 8.4 Resignation.................................................................................... 10 8.5 Compensation and Reimbursement................................................................. 10 8.6 No Exclusive Duty.............................................................................. 10 ARTICLE IX. INDEMNIFICATION 9.1 Authority to Indemnify......................................................................... 11 9.2 Insurance...................................................................................... 11 9.3 Non-Exclusive Right............................................................................ 11 ARTICLE X. FISCAL MATTERS 10.1 Books and Records.............................................................................. 11 10.2 Fiscal Year.................................................................................... 11 10.3 Tax Status; Elections.......................................................................... 11 10.4 Reports to Members............................................................................. 11 10.5 Accounting Decisions........................................................................... 12 10.6 Bank Accounts.................................................................................. 12 10.7 Tax Matters Partner............................................................................ 12 ARTICLE XI. RESTRICTIONS ON TRANSFER OF MEMBERSHIP INTERESTS AND ADMISSION OF NEW MEMBERS 11.1 Transfer of Membership Interests............................................................... 12 11.2 Restrictions on Assignment Not Unreasonable.................................................... 13 11.3 Admission of New Members....................................................................... 13 11.4 Rights and Obligations of Former Members....................................................... 13 ARTICLE XII. DISSOLUTION, WINDING UP, AND TERMINATION OF THE LLC'S EXISTENCE 12.1 Term........................................................................................... 13 12.2 Events Causing Dissolution and Winding Up...................................................... 13 12.3 Withdrawal of a Member......................................................................... 13 12.4 Winding Up Affairs on Dissolution.............................................................. 14 12.5 Waiver of Right to Partition and Decree of Dissolution......................................... 14 ARTICLE XIII. GENERAL PROVISIONS 13.1 Notices........................................................................................ 14 13.2 Integration.................................................................................... 14 13.3 Applicable Law................................................................................. 15 13.4 Severability................................................................................... 15 13.5 Binding Effect................................................................................. 15 13.6 Terminology.................................................................................... 15 13.7 Amendment...................................................................................... 15 13.8 Execution of Additional Instruments............................................................ 15

iii 13.9 Waivers........................................................................................ 15 13.10 Rights and Remedies Cumulative................................................................. 15 13.11 Heirs, Successors, and Assigns................................................................. 15 13.12 Creditors...................................................................................... 16 13.13 Counterparts................................................................................... 16 13.14 Interpretation In Accordance with Requirements for Partnership Tax Treatment................... 16 13.15 Arbitration.................................................................................... 16

iv OPERATING AGREEMENT OF O'CHARLEY'S RESTAURANT PROPERTIES, LLC THIS OPERATING AGREEMENT is made and entered into as of the ______ day of December, 1997, by and among the persons listed on Exhibit A hereto (each, together with the other persons who may become members under the terms of this Agreement, a "Member" and collectively, the "Members"). W I T N E S S E T H : WHEREAS, the Members desire to form a limited liability company under and pursuant to the Act (as defined below), to conduct certain business as a limited liability company, and to set forth their mutual rights and obligations in this Agreement; NOW, THEREFORE, in consideration of the mutual promises, covenants, and undertakings hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Members hereby agree as follows: ARTICLE I. DEFINITIONS 1.1 DEFINITIONS. As used herein the following terms have the indicated meanings: 1.1.1 "Act" means the Delaware Limited Liability Company Act, being Title 6, Sections 18-101 to 18-1109 of the Delaware Code Annotated, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.2 "Affiliate," with respect to any Entity, means (a) any other Entity, directly or indirectly, owning a 50% or greater ownership interest in such Entity; or (b) any other Entity in which such Entity has a 50% or greater ownership interest; or, (c) in the event a Member is a natural person, a member of such Member's Immediate Family or a trust for the benefit of the Member or a member of such Member's Immediate Family. 1.1.3 "Agreement" means this Operating Agreement, as amended from time to time. 1.1.4 "Assign" means to make an Assignment. 1.1.5 "Assignment" means any transfer, alienation, sale, conveyance, assignment, or other disposition of all or any part of an existing Membership Interest in the LLC, by operation of law or otherwise, including without limitation any gift, bequest, devise, hypothecation, mortgage, lien, pledge, encumbrance, or granting of a security interest. 1.1.6 "Available Cash Flow" means all cash, revenues, and funds received by the LLC, less the sum of the following to the extent paid or set aside by the LLC: (a) all principal and interest payments on indebtedness of the LLC and all other sums paid to lenders; (b) all cash expenditures incurred incident to the normal operation of the LLC's business; and (c) such reserves as the Members deem reasonably necessary to the proper operation of the LLC's business. 1.1.7 "Capital Account" in respect of any Member means the account established for that Member pursuant to Section 5.1 hereof, and as may be adjusted from time to time in accordance with this Agreement. 1.1.8 "Capital Contribution" shall mean any contribution to the capital of the LLC in cash or property by a Member whenever made. 1.1.9 "Certificate of Formation" means the Certificate of Formation of the LLC filed in the Office of the Secretary of State of the State of Delaware, as amended from time to time. 1.1.10 "Code" means the Internal Revenue Code of 1986, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.11 "Dissolution Event" has the meaning given to such term in Section 12.2 hereof. 1.1.12 "Entity" means any corporation, partnership, trust, limited liability company, or other entity. 1.1.13 "Financial Rights" means a Member's rights as a member of the LLC (a) to share in Net Income and Net Loss to the extent provided in this Agreement, and (b) to share in distributions to the extent provided in this Agreement. 1.1.14 "Governance Rights" means all of a Member's rights as a member of the LLC other than Financial Rights. 1.1.15 "Immediate Family" shall mean a Member's mother, father, brother, sister, son, daughter, son-in-law, daughter-in-law, grandson and granddaughter. 1.1.16 "LLC" means O'Charley's Restaurant Properties, LLC, a Delaware limited liability company. 1.1.17 "Majority in Interest" and "majority in interest of the remaining Members" each mean Members (other than any Members excluded from the applicable vote, consent or other action by the terms of this Agreement or the Act) holding an interest in over 50% of the capital and profits of the LLC. 1.1.18 "Majority of the Membership Interests" and "majority of the voting power" each mean over 50% of the Membership Percentages (exclusive of any Membership Percentages excluded from the applicable vote, consent or other action by 2 the terms of this Agreement or the Act). 1.1.19 "Managers" means the Chief Manager, Secretary and any other person appointed to be a "manager" as such term is used in the Act. 1.1.20 "Maximum Tax Liability" has the meaning given such term in Section 5.5 hereof. 1.1.21 "Members" means the persons who are, from time to time, admitted as members of the LLC pursuant to the Act and this Agreement and whose names are set forth on Exhibit A which is attached hereto and made part of this Agreement, as such Exhibit A may be amended from time to time. 1.1.22 "Membership Interest" means a Member's interest in the LLC, which when expressed as a percentage of all Membership Interests in the LLC shall be equal to such Member's Membership Percentage. 1.1.23 "Membership Percentage" means the percentage interest of a Member as shown on Exhibit A, as amended from time to time as provided in Section 4.5 hereof or as otherwise required by this Agreement, the Act, or the Code. 1.1.24 "Net Income" and "Net Loss," for each fiscal year or other period, means an amount equal to the LLC's taxable income or loss (including but not limited to any gain or loss to the LLC from any sale or disposition of all or any portion of the assets of the LLC) for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments: (i) Expenditures described in Section 705(a)(2)(B) of the Code shall be included as an expense in the determination of Net Income and Net Loss; and (ii) Income exempt from taxation shall be included in the determination of Net Income and Net Loss. 1.1.25 "New Member" means any person other than O'Charley's Inc. 1.1.26 "Successor" means a Member's executor, administrator, guardian, conservator, other legal representative, or successor or assign. 1.1.27 "Tax Matters Partner" has the meaning given to such term in Section 10.7 hereof. 1.1.28 "Treasury Regulations" means proposed, temporary, and final regulations promulgated under the Code. 3 ARTICLE II. ORGANIZATION 2.1 FORMATION. On December 15, 1997, the LLC was formed by the filing of the Certificate of Formation in the Office of the Secretary of State of the State of Delaware. 2.2 ADOPTION OF AGREEMENT. The Members hereby adopt this Agreement as the limited liability company agreement of the LLC, as the term "limited liability company agreement" is used in the Act, to set forth the rules, regulations, and provisions regarding the governance of the LLC, the conduct of its business, and the rights and privileges of its Members. 2.3 NAME. The name of the LLC shall be O'Charley's Restaurant Properties, LLC. The LLC may adopt and conduct its business under such assumed or trade names as the Members may from time to time determine. The LLC shall file any assumed or fictitious name certificates as may be required to conduct business in any state. 2.4 PRINCIPAL PLACE OF BUSINESS. The initial registered agent and registered office of the LLC shall be Griffin Corporate Services, Inc., 900 Market Street, Wilmington, Delaware 19801, New Castle County. The principal executive office of the LLC shall be located at 3038 Sidco Drive, Davidson County, Nashville, Tennessee 37204, or such other place as the Members may from time to time determine. ARTICLE III. PURPOSE AND POWERS 3.1 PURPOSE. The purpose of the LLC shall be to engage in any lawful business permitted pursuant to the Act, as amended from time to time, or any successor provisions thereto. 3.2 POWERS. The LLC may exercise all powers that may be legally exercised by limited liability companies under the Act necessary or convenient to carry out its business and affairs and to effectuate the purpose described in Section 3.1 hereof. ARTICLE IV. CAPITAL CONTRIBUTIONS AND MEMBERSHIP INTERESTS 4.1 INITIAL CAPITAL CONTRIBUTION. Each Member shall be credited with having made an initial Capital Contribution to the LLC in cash and other property, tangible and intangible, in the amount set forth opposite such Member's name on Exhibit A hereto. 4.2 ADDITIONAL CONTRIBUTIONS. No Member shall be required to make any additional Capital Contribution. Members may make such additional Capital Contributions as may be approved from time to time by the Members. 4.3 WITHDRAWAL OR REDUCTION OF MEMBERS' CAPITAL CONTRIBUTIONS. No Member shall have the right to withdraw from the LLC except as provided in Section 12.3 hereof. A Member shall not receive out of the LLC's property all or any part of such Member's Capital Contributions except as provided in Section 5.7 and 12.4 hereof. 4 4.4 INTEREST AND PREFERENTIAL RIGHTS. No interest shall accrue on any Capital Contributions and no Member shall have any preferential rights with respect to distributions or upon dissolution of the LLC. 4.5 MEMBERSHIP INTERESTS AND AMENDMENTS TO EXHIBIT A. Each Member shall be credited with the Membership Interest (expressed as a percentage of all Membership Interests) and Capital Contribution set forth opposite such Member's name on Exhibit A. The amounts shown on Exhibit A with respect to Capital Contributions and Membership Interests shall from time to time be appropriately amended to reflect changes to such amounts as a result of any additional Capital Contributions by Members, any withdrawals or reductions in Capital Contributions, admission of any New Members to the LLC, or any Assignments of Membership Interests. Exhibit A shall also be amended from time to time to reflect any changes in the addresses of Members. ARTICLE V. ALLOCATION OF INCOME AND LOSSES; CASH DISTRIBUTIONS 5.1 CAPITAL ACCOUNTS. The LLC will maintain for each Member an account to be designated as such Member's "Capital Account." Each such Capital Account shall be credited (a) with the cash contributions of the respective Members, (b) with the fair market value of contributions of property by the respective Members (net of liabilities associated with such contributed property and assumed by the LLC), and (c) with the respective Member's share, determined as provided herein, of Net Income. Each Member's Capital Account shall be debited (a) with the respective Member's share, determined as provided herein, of Net Loss, (b) with the cash distributed to the respective Members, and (c) with the fair market value of all distributions of property to the respective Members (net of liabilities associated with such distributed property). The Capital Accounts shall be maintained in accordance with Section 1.704-1(b)(2)(iv) of the Treasury Regulations, and the items of income, profit, gain, expenditures, deductions, and losses that increase or decrease such capital accounts shall be those items that, pursuant to such Treasury Regulations, affect the balance of capital accounts. 5.2 ALLOCATION OF NET INCOME AND NET LOSS. Subject to Sections 5.3 and 5.4, hereof, Net Income or Net Loss of the LLC for each fiscal year, and all items of income, expense, and deduction entering into the determination of such Net Income or Net Loss, shall be allocated to the Members in proportion to their Membership Percentages. 5.3 SPECIAL ALLOCATIONS WITH RESPECT TO CONTRIBUTED OR REVALUED PROPERTY. If a Member contributes property to the LLC which has a difference between its tax basis and its fair market value on the date of its contribution, then all items of income, gain, loss, and deduction with respect to such contributed property shall be determined and allocated among the Members, and the Capital Accounts of the Members shall be determined in accordance with Section 704(c) of the Code, the Treasury Regulations thereunder, and Section 1.704-1(b) of the Treasury Regulations, so as to take into account the variation between the tax basis and fair market value of such property at the time of its contribution. Furthermore, in the case of any required or optional revaluation of LLC property and corresponding adjustment of Capital Accounts, taxable income, gain, loss, and deduction with respect to such property shall be allocated among the Members in a manner that takes into account any variation between the adjusted tax basis of such 5 property and its book value in the same manner as variations between tax basis and fair market value are taken into account under Section 704(c) of the Code in determining income, gain, loss, and deduction with respect to contributed property. 5.4 ALLOCATIONS IN CASE OF ASSIGNMENT. Net Income or Net Loss allocable to any Member whose Membership Interest has been Assigned, in whole or in part, during any fiscal year shall be allocated among the persons who were the holders of such interests during such year in proportion to their respective holding periods, without separate determination of the results of LLC operations during such periods. Net Income or Net Loss attributable to a sale or other disposition of all or any portion of the assets of the LLC shall be allocated to those Members who were Members at the time of the occurrence of the disposition giving rise to such Net Income or Net Loss. 5.5 MANDATORY DISTRIBUTIONS. Unless all of the Members (excluding Financial Rights Holders) otherwise agree, the LLC shall distribute to each Member, no later than the forty-fifth day after the end of each quarter, an amount in cash equal to the Maximum Tax Liability for such Member for such quarter. To the extent there is not sufficient Available Cash Flow to distribute cash in the amount of the Maximum Tax Liability to each Member, the amount to be so distributed to the Members shall be reduced in proportion to their Membership Percentages so as to distribute no more than the total Available Cash Flow at the time of distribution. "Maximum Tax Liability" in respect of any Member for any quarter means an amount equal to the product of (x) the LLC's Net Income (as adjusted to the extent hereinafter provided) for such quarter, (y) a percentage equal to the then prevailing income tax rate applicable to individuals in the highest tax bracket for federal income tax purposes or, in the event a Member is an Entity subject to taxation, the income tax rate applicable to such Entity, and for state income tax purposes in the state having the highest applicable state income tax of any of the states in which any of the Members are subject to state income taxes and (z) a percentage equal to such Member's Membership Percentage. If there is a difference between the prevailing income and capital gains tax rates at either the federal or the state level, the Maximum Tax Liability shall be computed separately for ordinary income and capital gains, unless each of the Members otherwise agree. Income that is exempt from taxation shall not be included in the definition of Net Income for purposes of computing the Maximum Tax Liability. 5.6 DISTRIBUTION OF AVAILABLE CASH FLOW. In addition to the distributions provided for in Section 5.5 hereof, the LLC may, but is not obligated to, make current distributions out of Available Cash Flow as the Members may determine. Distributions shall be made to the Members in proportion to their respective Membership Percentages. 5.7 DISTRIBUTIONS UPON LIQUIDATION. Upon liquidation of the LLC, assets remaining after payment of all LLC debts and obligations in accordance with Section 18-804 of the Act shall be distributed in proportion to the Members' Membership Percentages. 5.8 CONSEQUENCES OF DISTRIBUTIONS. Upon the determination to distribute, remit, or pay funds in any manner expressly provided in this Article V, made in good faith, the Members shall incur no liability on account of such distribution, even though such distribution may have resulted in the LLC retaining insufficient funds for the operation of its business, which insufficiency resulted in loss to the LLC or necessitated the borrowing of funds by the LLC. 6 ARTICLE VI. MANAGEMENT BY MEMBERS 6.1 MANAGEMENT BY MEMBERS. The LLC shall be a "member-managed" limited liability company as such term is defined in the Act. The business and affairs of the LLC shall be managed by the Members. All powers of the Company as a limited liability company under the Act shall be exercised by or under the direction of the Members. 6.2 MUTUAL AGENCY OF THE MEMBERS. Each Member is an agent of the LLC for the purpose of its business, and the act of any member, including the execution of any instrument in the name of the LLC, for apparently carrying on in the usual way the business of the LLC, shall bind the LLC, unless the Member so acting has in fact no authority to act for the LLC in the particular matter, and the person with whom the Member is dealing has knowledge of the fact that such Member has no authority. An act of a Member which is not apparently for carrying on the business of the LLC in the usual way does not bind the LLC unless authorized by the Members as provided in this Agreement or the Certificate of Formation or as otherwise required by the Act. No action of a Member in contravention of such Member's authority shall bind the LLC to persons having knowledge of such restriction. 6.3 ACTIONS REQUIRING THE APPROVAL OF ALL OF THE MEMBERS. Unless authorized by all of the Members, no single Member or group of less than all of the Members shall have authority in the name of or on behalf of the LLC to: 6.3.1 dispose of the goodwill of all the business; 6.3.2 do any other act which would make it impossible to carry on the ordinary business of the LLC; 6.3.3 confess a judgment on behalf of the LLC; 6.3.4 submit a claim or liability to arbitration or reference; or 6.3.5 take any other action that would require the consent of all of the Members pursuant to this Agreement or the Act. 6.4 ACTIONS REQUIRING THE APPROVAL OF MEMBERS HOLDING A MAJORITY OF THE MEMBERSHIP INTERESTS. Unless authorized by Members holding at least a Majority of the Membership Interests, no single Member or group of Members shall have the authority in the name or on behalf of the LLC to: i. sell, lease, exchange or otherwise dispose of any of the assets of the LLC or enter into any agreement to do the same, except for sales of assets in the ordinary course of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; ii. purchase, lease or otherwise acquire any assets, or enter into any agreement to do the same, except for acquisitions of assets in the ordinary course 7 of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; iii. borrow money or incur indebtedness or other liabilities in excess of 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; iv. declare or make any distribution to Members except pursuant to Section 5.5 hereof; v. enter into or agree to enter into any other transaction outside of the ordinary course of business of the LLC; or vi. take any other action that would require the consent of the Members holding at least a Majority of the Membership Interests pursuant to this Agreement or the Act. 6.5 COMPENSATION AND REIMBURSEMENT. No Member shall have any right to compensation for any services performed on behalf of the LLC except as determined from time to time by Members holding at least a Majority of the Membership Interests. Notwithstanding the foregoing, a Member shall have the right to be reimbursed by the LLC for any out-of-pocket expenses incurred by such Member in connection with any services performed by the Member on behalf of the LLC. 6.6 NO EXCLUSIVE DUTY. Each Member may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have any right to share or participate in such other investments or activities of any other Member based on the fact that each are members of the LLC. No Member shall incur any liability to any other Member or the LLC as a result of engaging in any other business or venture. ARTICLE VII. MEETINGS OF MEMBERS AND ACTIONS ON WRITTEN CONSENT 7.1 MEETINGS. Meetings of the Members, for any purpose or purposes, may be called by the Chief Manager or any Member or Members holding, in the aggregate, 25% or more of the Membership Interests. 7.2 ACTION BY MEMBERS WITHOUT A MEETING. Action required or permitted to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken signed by all Members. Such written consent shall be filed with the minutes or records of the LLC. 7.3 PLACE OF MEETINGS; TELEPHONE MEETINGS. The Members may designate any place, either in or outside the State of Delaware, as the place of meetings for any meeting of the Members. If no designation is made, the place of meeting shall be the principal executive office of the LLC. A meeting may take place by telephone conference call or any other form of 8 electronic communication through which the Members may simultaneously hear each other. Such meeting shall be deemed to be held at the principal executive office of the LLC or at the place properly named in the notice calling the meeting. 7.4 NOTICE OF MEETINGS. Written notice stating the place, day, and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than two days before the date of the meeting, either personally or by mail, by or at the direction of the person calling the meeting, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered as provided in Section 13.1 hereof. The business conducted at any meeting need not be limited to the matters referenced in the notice of the meeting. No notice shall be required for action by written consent pursuant to Section 7.2 hereof. 7.5 WAIVER OF NOTICE. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. Attendance by a Member at a meeting is a waiver of notice of such meeting, except if the Member objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and does not otherwise participate in the consideration of any matter at the meeting. 7.6 RECORD DATE. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the date on which notice of the meeting is mailed or the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 7.6, such determination shall apply to any adjournment thereof. 7.7 VOTING LIST. When a record date for any meeting has been set or any notice of a meeting has been mailed, the Secretary of the LLC shall prepare a list of names of all Members who are entitled to vote at the meeting and show the address of and Membership Interests held by each Member as reflected in the records of the LLC. Such list shall be available for inspection and copying by any Member, beginning two business days after notice of the meeting is given and continuing through the meeting at the LLC's principal executive office. Such list shall be identical to Exhibit A hereto, as amended from time to time, unless the Secretary prepares an alternative list. 7.8 QUORUM. Members holding at least a Majority of the Membership Interests, represented in person or by proxy, shall constitute a quorum at any meeting of Members except for any matter that requires the approval of all of the Members pursuant to the Act or this Agreement. 7.9 REQUIRED VOTE; MANNER OF ACTING. If a quorum is present, the affirmative vote of Members holding at least a Majority of the Membership Interests shall be the act of the Members, except as to matters as to which the consent of a lesser or a greater proportion of the Members is otherwise required by the Act or this Agreement. 9 7.10 PROXIES. At all meetings of Members, a Member may vote in person or by proxy executed in writing by a Member or by a duly authorized attorney-in-fact. Such proxy shall be filed with the LLC before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. ARTICLE VIII. MANAGERS 8.1 APPOINTMENT OF MANAGERS. The Members shall appoint a Chief Manager and a Secretary to serve as the Managers of the LLC. The initial Chief Manager shall be Gregory L. Burns. The initial Secretary shall be A. Chad Fitzhugh. The LLC shall have such additional Managers as may be appointed from time to time by the Members. 8.2 TERM; REMOVAL. The Managers shall serve for an indefinite term at the pleasure of the Members. A Manager may be removed from office at any time with or without cause by the Members. 8.3 DUTIES. 8.3.1 Chief Manager. The Chief Manager shall see that all orders and resolutions of the Members are carried into effect and shall perform such other duties as the Members may from time to time prescribe. 8.3.2 Secretary. The Secretary shall attend all meetings of the Members and shall be responsible for recording the minutes thereof. The Secretary shall have the responsibility of authenticating records of the LLC and receiving notices required to be sent to the Secretary and shall perform such other duties as the Members may from time to time prescribe. 8.4 RESIGNATION. Any Manager of the LLC may resign at any time by giving written notice to the Members. The resignation of any Manager shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 8.5 COMPENSATION AND REIMBURSEMENT. No Manager shall have any right to compensation for services performed on behalf of the LLC except as determined from time to time by the Members. Notwithstanding the foregoing, a Manager shall have the right to be reimbursed by the LLC for any out-of-pocket expenses incurred by such Manager in connection with any services performed by such Manager on behalf of the LLC. 8.6 NO EXCLUSIVE DUTY. Each Manager may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have the right to share or participate in such other investments or activities of such Manager based on such Manager's status as a Manager of the LLC. No Manager shall incur any liability to any Member or the LLC as a result of engaging in any other business or venture. ARTICLE IX. INDEMNIFICATION 10 9.1 AUTHORITY TO INDEMNIFY. The LLC shall indemnify, and upon request may advance expenses to, any Member, Manager, employee, or agent of the LLC, or any person who is serving at the request of the LLC in any such capacity with another Entity, to the extent, consistent with public policy, permitted by applicable law. 9.2 INSURANCE. The LLC may purchase and maintain insurance on behalf of an individual who is or was a Manager, employee, independent contractor, or agent of the LLC or who, while a Manager, employee, independent contractor, or agent of the LLC, is or was serving at the request of the LLC as a manager, employee, independent contractor, agent, partner, or trustee of another foreign or domestic limited liability company, corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by such individual in that capacity or arising from such individual's status as a Manager, employee, independent contractor or agent of the LLC whether or not the LLC would have the power to indemnify such individual against the same liability as provided in Section 9.1 hereof. 9.3 NON-EXCLUSIVE RIGHT. The indemnification granted pursuant to or provided by this Article IX shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled, whether contained in this Article IX, the Certificate of Formation, in the Act, in a resolution of the Members, or an agreement providing for such indemnification. This Section 9.3 does not limit the LLC's power to pay or reimburse expenses incurred by any person in connection with his or her appearance as a witness in a proceeding at a time when he or she has not been named defendant or respondent to the proceeding. ARTICLE X. FISCAL MATTERS 10.1 BOOKS AND RECORDS. Full and accurate books and records of the LLC (including without limitation all information and records required by the Act) shall be maintained at its principal place of business showing all receipts and expenditures, assets and liabilities, profits and losses, and all other records necessary for recording the LLC's business and affairs. All Members shall have the right to inspect and copy the books and records of the LLC, during regular business hours, at the LLC's principal place of business, upon provision of notice in writing by any Member to the LLC at least five business days before the date on which such Member desires to inspect and copy said books and records. 10.2 FISCAL YEAR. The fiscal year of the LLC shall be determined by the Members and in the absence of such determination, shall end on the Sunday closest in time to December 31 of each year. 10.3 TAX STATUS; ELECTIONS. Notwithstanding any provision hereof to the contrary, solely for purposes of the federal income tax laws, each of the Members hereby recognizes that the LLC will be subject to all provisions of Subchapter K of Chapter 1 of Subtitle A of the Code; provided, however, the filing of a U.S. Partnership Return of Income shall not be construed to extend the purposes of the LLC or expand the obligations or liabilities of the Members. 10.4 REPORTS TO MEMBERS. Each of the following reports shall be prepared at the LLC's expense and shall be delivered to each Member: 11 a. within sixty days after the end of each fiscal year, all information necessary for the preparation of the Members' federal, state, and local income tax returns; b. within thirty days after the end of each fiscal quarter, all information necessary for the preparation of any quarterly federal, state, or local income tax returns of the Members; and c. within one hundred twenty days after the end of each fiscal year, financial statements prepared in accordance with generally accepted accounting principles, consistently applied, and audited by an independent public accountant. 10.5 ACCOUNTING DECISIONS. All decisions as to accounting matters, including the selection of the LLC's independent public accountant, except as expressly provided in this Agreement, shall be made by the Members. 10.6 BANK ACCOUNTS. All funds of the LLC shall be deposited in its name at the LLC's principal financial institution or other financial institutions approved by the Members. 10.7 TAX MATTERS PARTNER. The Tax Matters Partner shall be appointed by the Members. The "Tax Matters Partner" shall mean the Member responsible for all administrative and judicial proceedings for the assessment and collection of tax deficiencies or the refund of tax overpayment arising out of any Member's distributive share of items of income, deduction, credit, and/or of any other LLC item (as that term is defined in the Code or in the Treasury Regulations) allocated to the Members affecting any Member's tax liability. The Tax Matters Partner shall promptly give notice to all Members of any administrative or judicial proceeding pending before the Internal Revenue Service involving any LLC item and the progress of any such proceeding. Such notice shall be in compliance with such regulations as are issued by the Internal Revenue Service. The Tax Matters Partner shall have all the powers provided to a tax matters partner in Sections 6221 through 6233 of the Code, including the specific power to extend the statute of limitations with respect to any matter which is attributable to any LLC item or affecting any item pending before the Internal Revenue Service and to select the forum to litigate any tax issue or liability arising from LLC items. The Tax Matters Partner shall be entitled to reimbursement for any and all reasonable expenses incurred with respect to any administrative and/or judicial proceedings affecting the LLC. The Tax Matters Partner shall be responsible for the preparation and timely filing for all income tax returns, franchise tax returns, and annual reports of the LLC. ARTICLE XI. RESTRICTIONS ON TRANSFER OF MEMBERSHIP INTERESTS AND ADMISSION OF NEW MEMBERS 11.1 TRANSFER OF MEMBERSHIP INTERESTS. A Member may not Assign all or any part of such Member's Membership Interest in the LLC (including any Financial Rights, Governance Rights, or other rights pertaining to a Membership Interest) to any person other than an Affiliate of such Member without the prior written consent of Members holding a Majority of the Membership Interests. 12 11.2 RESTRICTIONS ON ASSIGNMENT NOT UNREASONABLE. Each of the Members hereby agrees and acknowledges that the restrictions on Assignment contained in this Article XI are not unreasonable in view of the nature of the parties and their relationships to one another and the nature of the business of the LLC. 11.3 ADMISSION OF NEW MEMBERS. An Assignment to an Affiliate of a Member or effected in accordance with this Article XI shall become effective and the assignee shall become a New Member and entitled to the rights of a Member under this Agreement upon (a) executing a copy of this Agreement and agreeing to be bound hereby and (b) delivering such executed copy to LLC in accordance with Section 13.1 hereof. Upon receipt of such executed copy, the LLC will cause Exhibit A to be amended appropriately and will deliver to all Members, including the New Member, in accordance with Section 13.1 hereof, a copy of amended Exhibit A. 11.4 RIGHTS AND OBLIGATIONS OF FORMER MEMBERS. A Member who Assigns all of his, her, or its Membership Interest shall cease to be a Member; provided, however, that such former Member or any Successor shall remain liable to the LLC (a) for any obligations of such Member for wrongful distributions under Section 18-607 of the Act, and (b) pursuant to any contribution agreements with the LLC existing at the time of the Assignment of all such Membership Interest. ARTICLE XII. DISSOLUTION, WINDING UP, AND TERMINATION OF THE LLC'S EXISTENCE 12.1 TERM. The duration of the LLC shall be perpetual and shall continue until terminated in accordance with the provisions of this Agreement or the Act. 12.2 EVENTS CAUSING DISSOLUTION AND WINDING UP. The LLC shall be dissolved and its affairs wound up upon the occurrence of any of the following events (individually, a "Dissolution Event"): 12.2.1 at any time with the prior approval of Members holding two-thirds or more of the Membership Interests; or 12.2.2 as may be otherwise required by law. Upon the occurrence of a Dissolution Event, the LLC shall be terminated when the winding up of LLC affairs has been completed following dissolution. 12.3 WITHDRAWAL OF A MEMBER. Any Member may withdraw from the LLC at any time upon not less than ninety days' prior written notice to the LLC and each other Member. A withdrawal of a Member shall not cause a Dissolution Event unless the remaining Members determine to dissolve pursuant to Section 12.2.1. If the existence and business of the LLC is continued by the remaining Members after such withdrawal: a. such withdrawing Member shall have no Governance Rights with respect to the LLC, and the rights of such withdrawing Member shall be deemed to be that of an assignee of such withdrawing Member's Financial Rights owned prior to such withdrawal, once notice of such Member's withdrawal is given by such withdrawing Member; 13 b. no Member shall be entitled to any distribution from the LLC as a result of such withdrawal; and c. a withdrawn Member shall remain liable to the LLC for any existing liability of such withdrawn Member for wrongful distributions and pursuant to any contribution agreements at the time of such withdrawal. 12.4 WINDING UP AFFAIRS ON DISSOLUTION. Upon dissolution of the LLC, the Managers or other persons required or permitted by law to carry out the winding up of the affairs of the LLC shall promptly notify all Members of such dissolution; shall wind up the affairs of the LLC; shall prepare and file all instruments or documents required by law to be filed to reflect the dissolution of the LLC; and, after collecting the debts and obligations owed to the LLC and after paying or providing for the payment of all liabilities and obligations of the LLC, shall distribute the assets of the LLC in accordance with Section 5.7 hereof. 12.5 WAIVER OF RIGHT TO PARTITION AND DECREE OF DISSOLUTION. As a material inducement to each Member to execute this Agreement, each Member covenants and represents to each other Member that, during the period beginning on the date of this Agreement, no Member, nor such Member's heirs, representatives, successors, transferees, or assigns, will attempt to make any partition whatever of the assets of the LLC or any interest therein whether now owned or hereafter acquired, and each Member waives all rights of partition provided by statute or principles of law or equity, including partition in kind or partition by sale. The Members agree that irreparable damage would be done to the goodwill and reputation of the LLC if any Member should bring an action in a court to dissolve the LLC. The Members agree that there are fair and just provisions for payment and liquidation of the interest of any Member in the LLC, and fair and just provisions to prevent a Member from selling or otherwise alienating his or her interest in the LLC. Accordingly, each Member hereby waives and renounces his, her or its right to such a court decree of dissolution or to seek the appointment by court of a liquidator or receiver for the LLC. ARTICLE XIII. GENERAL PROVISIONS 13.1 NOTICES. All notices and other communications required or permitted to be given in respect of this Agreement shall be in writing, and sent by facsimile, courier service, hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid). Written notice by the LLC to the Members is effective when mailed, if mailed and correctly addressed to the Member's address as reflected in the LLC's records. Written notice to the LLC may be addressed to the LLC's registered agent at its registered office or to the LLC's Secretary at the LLC's principal executive office. Written notice to the LLC is effective at the earliest of the following: (a) when received; (b) five days after its deposit in the United States mail, if correctly addressed and first class postage affixed thereon; or (c) on the date shown in the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. 13.2 INTEGRATION. This Agreement embodies the entire agreement and understanding among the Members relating to the formation and operation of the LLC and supersedes all prior 14 agreements and understandings, if any, among and between the Members relating to the subject matter hereof. 13.3 APPLICABLE LAW. This Agreement and the rights of the Members shall be governed by and construed and enforced in accordance with the laws of the State of Delaware and specifically the Act. 13.4 SEVERABILITY. In case any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and any other application thereof shall not in any way be affected or impaired thereby. 13.5 BINDING EFFECT. Except as herein otherwise provided to the contrary, this Agreement shall be binding upon, and inure to the benefit of, the Members and their respective heirs, executors, administrators, successors, transferees and assigns. 13.6 TERMINOLOGY. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, shall include all other genders; and the singular shall include the plural, and vice versa. Titles and Articles are for convenience only and neither limit nor amplify the provisions of this Agreement itself. 13.7 AMENDMENT. This Agreement may be amended, modified, or supplemented in writing (a) with the consent of the Members holding of a Majority of the Membership Interests except that any requirement that an action be approved by Members holding a percentage other than a Majority of the Membership Interests shall not be amended except with the consent of Members holding such other percentage of the Membership Interests, and (b) with respect to Exhibit A hereto, under the circumstances set forth in Section 4.5. No other written or oral agreement, understanding, instrument or writing other than this agreement or any amendment hereto shall constitute part of the limited liability company agreement of the LLC. 13.8 EXECUTION OF ADDITIONAL INSTRUMENTS. Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney, and other instruments necessary to comply with any laws, rules, or regulations. 13.9 WAIVERS. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. 13.10 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Members may have by law, statute, ordinance, or otherwise. 13.11 HEIRS, SUCCESSORS, AND ASSIGNS. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the Members hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns. 15 13.12 CREDITORS. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the LLC. 13.13 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 13.14 INTERPRETATION IN ACCORDANCE WITH REQUIREMENTS FOR PARTNERSHIP TAX TREATMENT. The LLC is intended to be treated as a partnership for federal income tax purposes, and this Agreement shall be interpreted in a manner consistent with such intended tax treatment. 13.15 ARBITRATION. If a dispute arises relative to the interpretation of or a breach of the provisions of this Agreement and if said dispute cannot be settled through direct discussions, the LLC and the Members agree to first endeavor to settle the dispute in an amicable manner by mediation under the Commercial Mediation Rules of the American Arbitration Association before resorting to binding arbitration. Thereafter, any unresolved controversy shall be resolved by binding arbitration pursuant to the rules of the American Arbitration Association then pertaining. Arbitration proceedings shall be held in Nashville, Tennessee. The LLC and the Members may, if they are able to do so, agree upon one arbitrator; otherwise, there shall be three arbitrators selected to resolve disputes pursuant to this Section 13.15, one named in writing by each party to the dispute within 15 days after notice of arbitration is served upon the one party by the other and a third arbitrator selected by the two arbitrators selected by the parties within 15 days thereafter. If the two arbitrators cannot select a third arbitrator within such 15 days, the parties may request that the American Arbitration Association select such third arbitrator. If one party does not choose an arbitrator within 15 days, the other party shall request that the American Arbitration Association name such other arbitrator. No person shall serve as arbitrator who is in any way financially interested in this Agreement or in the affairs of either party. Each party shall pay its own expenses of arbitration and one-half of the expenses of the arbitrators. If any position by either party hereunder, or any defense or objection thereto, is deemed by the arbitrators to have been unreasonable, the arbitrators may assess, as part of their award against the unreasonable party or reduce the award to the unreasonable party, all or part of the arbitration expenses (including reasonable attorneys' fees) of the other party and of the arbitrators. 16 IN WITNESS WHEREOF, the undersigned hereby agree, acknowledge and certify that the foregoing Agreement constitutes the limited liability company agreement of O'Charley's Restaurant Properties, LLC adopted by the Members of the LLC as of this 15th day of December, 1997. O'CHARLEY'S INC. By: /s/ Gregory L. Burns ------------------------------------ Name: Gregory L. Burns Title: Chief Executive Officer and President 17 EXHIBIT A
Members Name Capital Membership and Address Contribution Percentages - --------------------------- ------------------- -------------- O'Charley's Inc. 100% 3038 Sidco Drive Nashville, TN 37204 ------------------- ---- 100% =================== ====
18 EXHIBIT A (AS AMENDED)
Members Name Capital Membership and Address Contribution Percentages - --------------------------- ------------------- -------------- O'Charley's Management 100% Company, Inc. 3038 Sidco Drive Nashville, TN 37204 ------------------- ---- 100% =================== ====
19 EX-3.14 14 g86000exv3w14.txt EX-3.14 CHARTER OF O'CHARLEY'S SERVICE COMPANY EXHIBIT 3.14 CHARTER OF O'CHARLEY'S SERVICE COMPANY, INC. The undersigned, acting as the incorporator of a corporation under the Tennessee Business Corporation Act (the "Act"), adopts the following charter for the above listed corporation: 1. The name of the corporation is O'Charley's Service Company, Inc. 2. The number of shares of stock the corporation is authorized to issue is 100,000 shares of common stock, par value $0.01 per share. 3. (a) The complete address of the corporation's initial registered office in Tennessee is: 3038 Sidco Drive Davidson County Nashville, Tennessee 37204 (b) The name of the initial registered agent, to be located at the address listed in 3(a), is: A. Chad Fitzhugh 4. The name and complete address of the incorporator is: Daniel E. Cortez Bass, Berry & Sims PLC First American Center Nashville, TN 37238-2700 5. The complete address of the corporation's principal office is: 3038 Sidco Drive Davidson County Nashville, Tennessee 37204 6. The corporation is for profit. 7. The shareholders of the corporation shall not have preemptive rights. 8. To the fullest extent permitted by the Act as in effect on the date hereof and as hereafter amended from time to time, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. If the Act or any successor statute is amended after adoption of this provision to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Act, as so amended from time to time. Any repeal or modification of this paragraph 8 by the shareholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification or with respect to events occurring prior to such time. Dated: September 2, 1999 /s/ Daniel E. Cortez ------------------------------------------ Daniel E. Cortez, Incorporator EX-3.15 15 g86000exv3w15.txt EX-3.15 BYLAWS OF O'CHARLEY'S SERVICE COMPANY EXHIBIT 3.15 BYLAWS OF O'CHARLEY'S SERVICE COMPANY, INC. (THE "CORPORATION") ARTICLE I. OFFICES The Corporation may have such offices, either within or without the State of Tennessee, as the Board of Directors may designate or as the business of the Corporation may require from time to time. ARTICLE II. SHAREHOLDERS 2.1 ANNUAL MEETING. An annual meeting of the shareholders of the Corporation shall be held on such date as may be determined by the Board of Directors. The business to be transacted at such meeting shall be the election of directors and such other business as shall be properly brought before the meeting. 2.2 SPECIAL MEETINGS. A special meeting of shareholders shall be held on call of the Board of Directors or if the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the Corporation's Secretary one (1) or more written demands for the meeting describing the purpose or purposes for which such special meeting is to be held. Only business within the purpose or purposes described in the meeting notice may be conducted at a special shareholders' meeting. 2.3 PLACE OF MEETINGS. The Board of Directors may designate any place, either within or without the State of Tennessee, as the place of meeting for any annual meeting or for any special meeting. If no place is fixed by the Board of Directors, the meeting shall be held at the principal office of the Corporation. 2.4 NOTICE OF MEETINGS; WAIVER. (a) NOTICE. Notice of the date, time and place of each annual and special shareholders' meeting and, in the case of a special meeting, a description of the purpose or purposes for which the meeting is called, shall be given no fewer than ten (10) days nor more than two (2) months before the date of the meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (b) WAIVER. A shareholder may waive any notice required by law, the Charter or these Bylaws before or after the date and time stated in such notice. Except as provided in the next sentence, the waiver must be in writing, be signed by the shareholder entitled to the notice and be delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting; and (2) waives objection to consideration of a particular matter at the meeting that is 2 not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. 2.5 RECORD DATE. The Board of Directors shall fix as the record date for the determination of shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote or to take any other action, a date not more than seventy (70) days before the meeting or action requiring a determination of shareholders. A record date fixed for a shareholders' meeting is effective for any adjournment of such meeting unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than four (4) months after the date fixed for the original meeting. 2.6 SHAREHOLDERS' LIST. After the record date for a meeting has been fixed, the Corporation shall prepare an alphabetical list of the names of all shareholders who are entitled to notice of a shareholders' meeting. Such list will be arranged by voting group (and within each voting group by class or series of shares) and will show the address of and number of shares held by each shareholder. The shareholders' list will be available for inspection by any shareholder, beginning two (2) business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporation's principal office or at a place identified in the meeting notice in the city where the meeting will be held. A shareholder or his agent or attorney is entitled on written demand to inspect and, subject to the requirements of the Tennessee Business 3 Corporation Act (the "Act"), to copy the list, during regular business hours and at his expense, during the period it is available for inspection. 2.7 VOTING GROUPS; QUORUM; ADJOURNMENT. All shares entitled to vote and be counted together collectively on a matter at a meeting of shareholders shall be a "voting group". Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Except as otherwise required by the Act or provided in the Charter, a majority of the votes entitled to be cast on a matter by a voting group constitutes a quorum of that voting group for action on that matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum of a voting group shall not be present or represented at any meeting, the shares entitled to vote thereat shall have power to adjourn the meeting to a different date, time or place without notice other than announcement at the meeting of the new time, date or place to which the meeting is adjourned. At any adjourned meeting at which a quorum of any voting group shall be present or represented, any business may be transacted by such voting group which might have been transacted at the meeting as originally called. 2.8 VOTING OF SHARES. Unless otherwise provided by the Act or the Charter, each outstanding share is entitled to one (1) vote on each matter voted on at a shareholders' meeting. Only shares are entitled to vote. 4 If a quorum exists, approval of action on a matter (other than the election of directors) by a voting group entitled to vote thereon is received if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Charter or the Act requires a greater number of affirmative votes. Unless otherwise provided in the Charter, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. 2.9 PROXIES. A shareholder may vote his shares in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for him by signing an appointment either personally or by his attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes. An appointment is valid for eleven (11) months unless another period is expressly provided in the appointment form. An appointment of a proxy is revocable by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest. 2.10 ACCEPTANCE OF SHAREHOLDER DOCUMENTS. If the name signed on a shareholder document (a vote, consent, waiver, or proxy appointment) corresponds to the name of a shareholder, the Corporation, if acting in good faith, is entitled to accept such shareholder document and give it effect as the act of the shareholder. If the name signed on such shareholder document does not correspond to the name of a shareholder, the Corporation, if acting in good faith, is nevertheless entitled to accept such shareholder document and to give it effect as the act of the shareholder if: 5 (i) the shareholder is an entity and the name signed purports to be that of an officer or agent of the entity; (ii) the name signed purports to be that of a fiduciary representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to such shareholder document; (iii) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence of this status acceptable to the Corporation has been presented with respect to the shareholder document; (iv) the name signed purports to be that of a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory's authority to sign for the shareholder has been presented with respect to such shareholder document; or (v) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one (1) of the co-owners and the person signing appears to be acting on behalf of all the co-owners. The Corporation is entitled to reject a shareholder document if the Secretary or other officer or agent authorized to tabulate votes, acting in good faith, has a reasonable basis for doubt about the validity of the signature on such shareholder document or about the signatory's authority to sign for the shareholder. 2.11 ACTION WITHOUT MEETING. Action required or permitted by the Act to be taken at a shareholders' meeting may be taken without a meeting. If all shareholders entitled to vote on the action consent to taking such 6 action without a meeting, the affirmative vote of the number of shares that would be necessary to authorize or take such action at a meeting is the act of the shareholders. The action must be evidenced by one (1) or more written consents describing the action taken, at least one of which is signed by each shareholder entitled to vote on the action in one (1) or more counterparts, indicating such signing shareholder's vote or abstention on the action and delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. If the Act or the Charter requires that notice of a proposed action be given to nonvoting shareholders and the action is to be taken by consent of the voting shareholders, then the Corporation shall give its nonvoting shareholders written notice of the proposed action at least ten (10) days before such action is taken. Such notice shall contain or be accompanied by the same material that would have been required to be sent to nonvoting shareholders in a notice of a meeting at which the proposed action would have been submitted to the shareholders for action. 2.12 PRESIDING OFFICER AND SECRETARY. Meetings of the shareholders shall be presided over by the President, or if the President is not present, by a chairman chosen by a majority of the shareholders entitled to vote at such meeting. The Secretary or, in his absence, an Assistant Secretary shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, a majority of the shareholders entitled to vote at such meeting shall choose any person present to act as secretary of the meeting. 7 ARTICLE III. DIRECTORS 3.1 POWERS AND DUTIES. All corporate powers shall be exercised by or under the authority of and the business and affairs of the Corporation managed under the direction of the Board of Directors. 3.2 NUMBER AND TERM. (a) NUMBER. The Board of Directors shall consist of no less than one (1) and no more than ten (10) members, the exact number of directors, within the minimum and maximum, or the range for the size of the Board, or whether the size of the Board shall be fixed or variable-range may be fixed, to be determined from time to time by majority vote of the Board of Directors. (b) TERM. Directors shall be elected at the first annual shareholders' meeting and at each annual meeting thereafter. The terms of the initial directors shall expire at the first shareholders' meeting at which directors are elected. The terms of all other directors expire at the next annual shareholders' meeting following their election. Despite the expiration of a director's term, he shall continue to serve until his successor is elected and qualifies or until there is a decrease in the number of directors. 3.3 MEETINGS; NOTICE. The Board of Directors may hold regular and special meetings either within or without the State of Tennessee. The Board of Directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of 8 communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting. (a) REGULAR MEETINGS. Unless the Charter otherwise provides, regular meetings of the Board of Directors may be held without notice of the date, time, place or purpose of the meeting. (b) SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the President or any two (2) directors. Unless the Charter otherwise provides, special meetings must be preceded by at least twenty-four (24) hours' notice of the date, time and place of the meeting but need not describe the purpose of such meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (c) ADJOURNED MEETINGS. Notice of an adjourned meeting need not be given if the time and place to which the meeting is adjourned are fixed at the meeting at which the adjournment is taken, and if the period of adjournment does not exceed one (1) month in any one (1) adjournment. (d) WAIVER OF NOTICE. A director may waive any required notice before or after the date and time stated in the notice. Except as provided in the next sentence, the waiver must be in writing, signed by the director and filed with the minutes or corporate records. A director's attendance at or participation in a meeting waives any required notice to him of such meeting unless the director at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. 9 3.4 QUORUM. Unless the Charter requires a greater number, a quorum of the Board of Directors consists of a majority of the fixed number of directors if the Corporation has a fixed board size or a majority of the number of directors prescribed, or if no number is prescribed, the number in office immediately before the meeting begins, if the Corporation has a variable range board. 3.5 VOTING. If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the Board of Directors, unless the Charter or these Bylaws require the vote of a greater number of directors. A director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to such action unless: (i) he objects at the beginning of the meeting (or promptly upon his arrival) to holding the meeting or transacting business at the meeting; (ii) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. 3.6 ACTION WITHOUT MEETING. Unless the Charter otherwise provides, any action required or permitted by the Act to be taken at a Board of Directors meeting may be taken without a meeting. If all directors consent to 10 taking such action without a meeting, the affirmative vote of the number of directors that would be necessary to authorize or take such action at a meeting is the act of the Board of Directors. Such action must be evidenced by one or more written consents describing the action taken, at least one of which is signed by each director, indicating the director's vote or abstention on the action, which consents shall be included in the minutes or filed with the corporate records reflecting the action taken. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. 3.7 COMPENSATION. Directors and members of any committee created by the Board of Directors shall be entitled to such reasonable compensation for their services as directors and members of such committee as shall be fixed from time to time by the Board, and shall also be entitled to reimbursement for any reasonable expenses incurred in attending meetings of the Board or of any such committee meetings. Any director receiving such compensation shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services. 3.8 RESIGNATION. A director may resign at any time by delivering written notice to the Board of Directors, President, or to the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. 11 3.9 VACANCIES. Unless the Charter otherwise provides, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors or a vacancy resulting from the removal of a director with or without cause, either the shareholders or the Board of Directors may fill such vacancy. If the directors remaining in office constitute fewer than a quorum of the Board of Directors, they may fill such vacancy by the affirmative vote of a majority of all the directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group shall be entitled to vote to fill the vacancy if it is filled by the shareholders. 3.10 REMOVAL OF DIRECTORS. (a) BY SHAREHOLDERS. The shareholders may remove one (1) or more directors with or without cause unless the Charter provides that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him without cause. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him. (b) BY DIRECTORS. If so provided by the Charter, any of the directors may be removed for cause by the affirmative vote of a majority of the entire Board of Directors. 12 (c) GENERAL. A director may be removed by the shareholders or directors only at a meeting called for the purpose of removing him, and the meeting notice must state that the purpose, or one (1) of the purposes, of the meeting is removal of directors. ARTICLE IV. COMMITTEES Unless the Charter otherwise provides, the Board of Directors may create one (1) or more committees, each consisting of one (1) or more members. All members of committees of the Board of Directors which exercise powers of the Board of Directors must be members of the Board of Directors and serve at the pleasure of the Board of Directors. The creation of a committee and appointment of a member or members to it must be approved by the greater of (i)a majority of all directors in office when the action is taken or (ii)the number of directors required by the Charter or these Bylaws to take action. Unless otherwise provided in the Act, to the extent specified by the Board of Directors or in the Charter, each committee may exercise the authority of the Board of Directors. All such committees and their members shall be governed by the same statutory requirements regarding meetings, action without meetings, notice and waiver of notice, quorum and voting requirements as are applicable to the Board of Directors and its members. 13 ARTICLE V. OFFICERS 5.1 NUMBER. The officers of the Corporation shall be a President, a Secretary and such other officers as may be from time to time appointed by the Board of Directors. One person may simultaneously hold more than one office except the President may not simultaneously hold the office of Secretary. 5.2 APPOINTMENT. The principal officers shall be appointed annually by the Board of Directors at the first meeting of the Board following the annual meeting of the shareholders, or as soon thereafter as is conveniently possible. Each officer shall serve at the pleasure of the Board of Directors and until his successor shall have been appointed, or until his death, resignation or removal. 5.3 RESIGNATION AND REMOVAL. An officer may resign at any time by delivering notice to the Corporation. Such resignation is effective when such notice is delivered unless such notice specifies a later effective date. An officer's resignation does not affect the Corporation's contract rights, if any, with the officer. The Board of Directors may remove any officer at any time with or without cause, but such removal shall not prejudice the contract rights, if any, of the person so removed. 5.4 VACANCIES. 14 Any vacancy in an office from any cause may be filled for the unexpired portion of the term by the Board of Directors. 5.5 DUTIES. (a) PRESIDENT. The President shall be the Chief Executive Officer of the Corporation and shall have general supervision over the active management of the business of the Corporation. He shall have the general powers and duties of supervision and management usually vested in the office of the President of a corporation and shall perform such other duties as the Board of Directors may from time to time prescribe. (b) VICE PRESIDENT. The Vice President or Vice Presidents (if any) shall be active executive officers of the Corporation, shall assist the President in the active management of the business, and shall perform such other duties as the Board of Directors may from time to time prescribe. (c) SECRETARY. The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and shall prepare and record all votes and all minutes of all such meetings in a book to be kept for that purpose; he shall perform like duties for any committee when required. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors when required, and unless directed otherwise by the Board of Directors, shall keep a stock record containing the names of all persons who are shareholders of the Corporation, showing their place of residence and the number of shares held by them respectively. The Secretary shall have the responsibility of authenticating records of the Corporation. The Secretary shall perform such other duties as may be prescribed from time to time by the Board of Directors. 15 (d) TREASURER. The Treasurer (if any) shall have the custody of the Corporation's funds and securities, shall keep or cause to be kept full and accurate account of receipts and disbursements in books belonging to the Corporation, and shall deposit or cause to be deposited all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse or cause to be disbursed the funds of the Corporation as required in the ordinary course of business or as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and directors at the regular meetings of the Board, or whenever they may require it, an account of all of his transactions as Treasurer and the financial condition of the Corporation. He shall perform such other duties as may be incident to his office or as prescribed from time to time by the Board of Directors. The Treasurer shall give the Corporation a bond, if required by the Board of Directors, in a sum and with one or more sureties satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the Corporation in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. (e) OTHER OFFICERS. Other officers appointed by the Board of Directors shall exercise such powers and perform such duties as may be delegated to them. (f) DELEGATION OF DUTIES. In case of the absence or disability of any officer of the Corporation or of any person authorized to act in his place, the Board of Directors may from time to time delegate the powers and duties of such officer to any officer, or any director, or any other person whom it may select, during such period of absence or disability. 16 5.6 INDEMNIFICATION, ADVANCEMENT OF EXPENSES AND INSURANCE. (a) INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The Corporation shall indemnify and advance expenses to each director and officer of the Corporation, or any person who may have served at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director or officer of another corporation (and, in either case, his heirs, executors and administrators), to the full extent allowed by the laws of the State of Tennessee, both as now in effect and as hereafter adopted. The Corporation may indemnify and advance expenses to any employee or agent of the Corporation who is not a director or officer (and his heirs, executors and administrators) to the same extent as to a director or officer, if the Board of Directors determines that to do so is in the best interests of the Corporation. (b) NON-EXCLUSIVITY OF RIGHTS. The indemnification and advancement of expenses provisions of subsection (a) of this Section 5.6 shall not be exclusive of any other right which any person (and his heirs, executors and administrators) may have or hereafter acquire under any statute, provision of the Charter, provision of these Bylaws, resolution adopted by the shareholders, resolution adopted by the Board of Directors, agreement, insurance, purchased by the Corporation or otherwise, both as to action in his official capacity and as to action in another capacity. (c) INSURANCE. The Corporation may maintain insurance, at its expense, to protect itself and any individual who is or was a director, officer, employee or agent of the Corporation, or who, while a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss 17 whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under this Article or the Act. ARTICLE VI. SHARES OF STOCK 6.1 SHARES WITH OR WITHOUT CERTIFICATES. The Board of Directors may authorize that some or all of the shares of any or all of the Corporation's classes or series of stock be evidenced by a certificate or certificates of stock. The Board of Directors may also authorize the issue of some or all of the shares of any or all of the Corporation's classes or series of stock without certificates. The rights and obligations of shareholders with the same class and/or series of stock shall be identical whether or not their shares are represented by certificates. (a) SHARES WITH CERTIFICATES. If the Board of Directors chooses to issue shares of stock evidenced by a certificate or certificates, each individual certificate shall include the following on its face: (i)the Corporation's name, (ii)the fact that the Corporation is organized under the laws of the State of Tennessee, (iii)the name of the person to whom the certificate is issued, (iv)the number of shares represented thereby, (v) the class of shares and the designation of the series, if any, which the certificate represents, and (vi) such other information as applicable law may require or as may be lawful. If the Corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate shall 18 state on its front or back that the Corporation will furnish the shareholder this information in writing, without charge, upon request. Each certificate of stock issued by the Corporation shall be signed (either manually or in facsimile) by the President or a Vice President, and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer. If the person who signed a certificate no longer holds office when the certificate is issued, the certificate is nonetheless valid. (b) SHARES WITHOUT CERTIFICATES. If the Board of Directors chooses to issue shares of stock without certificates, the Corporation, if required by the Act, shall, within a reasonable time after the issue or transfer of shares without certificates, send the shareholder a written statement of the information required on certificates by Section 6.1(a) of these Bylaws and any other information required by the Act. 6.2 SUBSCRIPTIONS FOR SHARES. Subscriptions for shares of the Corporation shall be valid only if they are in writing. Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at such time, or in such installments and at such periods, as shall be determined by the Board of Directors. All calls for payment on subscriptions shall be uniform as to all shares of the same class or of the same series, unless the subscription agreement specifies otherwise. 6.3 TRANSFERS. Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by (i)the holder of record thereof, (ii)by his legal representative, who, 19 upon request of the Corporation, shall furnish proper evidence of authority to transfer, or (iii)his attorney, authorized by a power of attorney duly executed and filed with the Secretary of the Corporation or a duly appointed transfer agent. Such transfers shall be made only upon surrender, if applicable, of the certificate or certificates for such shares properly endorsed and with all taxes thereon paid. 6.4 LOST, DESTROYED OR STOLEN CERTIFICATES. No certificate for shares of stock of the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen except on production of evidence, satisfactory to the Board of Directors, of such loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount and with such terms and such surety as the Board of Directors may in its discretion require. ARTICLE VII. CORPORATE ACTIONS 7.1 CONTRACTS. Unless otherwise required by the Board of Directors, the President or any Vice President shall execute contracts or other instruments on behalf of and in the name of the Corporation. The Board of Directors may from time to time authorize any other officer, assistant officer or agent to enter into any contract or execute any instrument in the name of and on behalf of the Corporation as it may deem appropriate, and such authority may be general or confined to specific instances. 20 7.2 LOANS. No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized by the President or the Board of Directors. Such authority may be general or confined to specific instances. 7.3 CHECKS, DRAFTS, ETC. Unless otherwise required by the Board of Directors, all checks, drafts, bills of exchange and other negotiable instruments of the Corporation shall be signed by either the President, a Vice President or such other officer, assistant officer or agent of the Corporation as may be authorized so to do by the Board of Directors. Such authority may be general or confined to specific business, and, if so directed by the Board, the signatures of two or more such officers may be required. 7.4 DEPOSITS. All funds of the Company not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks or other depositories as the Board of Directors may authorize. 7.5 VOTING SECURITIES HELD BY THE CORPORATION. Unless otherwise required by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend any meeting of security holders, or to take action on written consent as a security holder, of other corporations in which the Corporation may hold securities. In connection therewith the President shall possess and may exercise any 21 and all rights and powers incident to the ownership of such securities which the Corporation possesses. The Board of Directors may, from time to time, confer like powers upon any other person or persons. 7.6 DIVIDENDS. The Board of Directors may, from time to time, declare, and the Corporation may pay, dividends on its outstanding shares of capital stock in the manner and upon the terms and conditions provided by applicable law. The record date for the determination of shareholders entitled to receive the payment of any dividend shall be determined by the Board of Directors, but which in any event shall not be less than ten (10) days prior to the date of such payment. ARTICLE VIII. FISCAL YEAR The fiscal year of the Corporation shall be determined by the Board of Directors, and in the absence of such determination, shall be the calendar year. ARTICLE IX. CORPORATE SEAL The Corporation shall not have a corporate seal. 22 ARTICLE X. AMENDMENT OF BY-LAWS These Bylaws may be altered, amended, repealed or restated, and new Bylaws may be adopted, at any meeting of the shareholders by the affirmative vote of a majority of the stock represented at such meeting, or by the affirmative vote of a majority of the members of the Board of Directors who are present at any regular or special meeting. ARTICLE XI. NOTICE Unless otherwise provided for in these Bylaws, any notice required shall be in writing except that oral notice is effective if it is reasonable under the circumstances and not prohibited by the Charter or these Bylaws. Notice may be communicated in person; by telephone, telegraph, teletype or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television or other form of public broadcast communication. Written notice to a domestic or foreign corporation authorized to transact business in Tennessee may be addressed to its registered agent at its registered office or to the corporation or its secretary at its principal office as shown in its most recent annual report or, in the case of a foreign corporation that has not yet delivered an annual report, in its application for a certificate of authority. Written notice to shareholders, if in a comprehensible form, is effective when mailed, if mailed postpaid and correctly addressed to the shareholder's address shown in the Corporation's current record of shareholders. Except as provided above, written notice, if in a comprehensible 23 form, is effective at the earliest of the following: (a)when received, (b)five (5) days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed thereon; (c)on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; or (d)twenty (20) days after its deposit in the United States mail, as evidenced by the postmark if mailed correctly addressed, and with other than first class, registered or certified postage affixed. Oral notice is effective when communicated if communicated in a comprehensible manner. 24 EX-3.16 16 g86000exv3w16.txt EX-3.16 ARTICLES OF INCORPORATION OF O'CHARLEY'S EXHIBIT 3.16 THIS INSTRUMENT PREPARED BY: J.T. SIMONETTI, JR., Attorney at Law 1920 Mayfair Drive, Birmingham, AL 35209 ARTICLES OF INCORPORATION OF O'CHARLEY'S SPORTS BAR, INC. The undersigned, acting as incorporators of a corporation under the Code of Alabama, adopt the following Articles of Incorporation for such corporation: FIRST: The name of the corporation is O'Charley's Sports Bar, Inc. SECOND: The period of its duration is perpetual. THIRD: The purpose or purposes for which the corporation is organized are: To operate a private club under the applicable law of the State of Alabama, said establishment to be operated for objects of a national, social, patriotic, political, athletic or similar nature, and to be a gathering place where food and beverages are available for sale to members and their guests; and to engage in any lawful business in which Alabama Corporations are authorized to engage which does not conflict with the purposes cited hereinabove. FOURTH: The aggregate number of shares which the corporation shall have authority to issue are Five Hundred (500) shares of common stock of par value of One Dollars ($1.00) per share. All of said stock shall be common and none shall be preferred stock or stock of a different class. FIFTH: Provisions for the regulation of the internal affairs of the corporation are: None. SIXTH: The address for the initial registered office of the corporation is: 561 Southgate Drive, Hwy. 119, Pelham, Alabama 35126 and the name of its initial registered agent at such address is: Kurt Strang. SEVENTH: The number of directors constituting the initial board of directors of the corporation is three, and the names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders and until their successors are elected and shall qualify are as follows: NAME ADDRESS A. Chad Fitzhugh 3038 Sidco Drive Nashville, TN 37204 Kurt Strang 561 Southgate Drive Hwy. 119 Pelham, AL 35126 Edward W. Oliphant 2960 Armory Drive Nashville, TN 37204 EIGHTH: The name and address of each incorporator is: NAME ADDRESS J.T. Simonetti, Jr. 1920 Mayfair Drive Birmingham, AL 35209 The undersigned, acting as incorporators of the corporation named herein in accordance with the Alabama Business Corporation Act, execute these Articles of Incorporation this 26th day of March, 1997. O'CHARLEY'S SPORTS BAR, INC. an Alabama Corporation By: /s/ J.T. Simonetti, Jr. --------------------------------------- J.T. Simonetti, Jr. 2 EX-3.17 17 g86000exv3w17.txt EX-3.17 BYLAWS OF O'CHARLEY'S SPORTS BAR, INC. EXHIBIT 3.17 BY-LAWS OF O'CHARLEY'S SPORTS BAR, INC. ARTICLE I. OFFICES The principal office of the corporation in the State of Alabama shall be located in the City of Pelham, Shelby County, Alabama, at 561 Southgate Drive, Hwy. 119, Pelham, Alabama 35126. The corporation may have such other offices, either within or without the State of Alabama, as the stockholders may designate or as the business of the corporation may require from time to time. The registered office of the corporation, required by the Alabama Business corporation Act to be maintained in the State of Alabama, may be, but need not be, identical with the principal office in the State of Alabama, and the address of the registered office may be changed from time to time by the Board of Directors. ARTICLE II. STOCKHOLDERS Section 1. Annual Meeting. The annual meeting of the shareholders shall be held on the first Monday in the month of June in each year, beginning with the year 1997, at the hour of 2:00 o'clock p.m., or at such other time on such other day within such month as shall be fixed by the Board of Directors, for the purposes of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Alabama, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of shareholders as soon thereafter as conveniently may be. Section 2. Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President or the Board of Directors, and shall be called by the president or the Board of Directors at the request of the holders of not less than one-tenth (1/10) of all outstanding shares of the corporation entitled to vote at the meeting. Section 3. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Alabama, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of Notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Alabama, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation in the State of Alabama. Section 4. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall, unless otherwise prescribed by statute, be delivered not less than ten (10) nor more than Fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or the officer or other persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States Mail, addressed to the shareholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid. Notwithstanding the provisions of this section, the stock or bonded indebtedness of the corporation shall not be increased at a meeting unless notice of such meeting shall have been given as may be required by Section 234 of the Constitution of Alabama as the same may be amended from time to time. Section 5. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors of the corporation may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, Fifty (50) days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at least ten (10) days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than Fifty (50) days, and, In case of a meeting of shareholders, not less than ten (10) days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired. Section 6. Voting Record. The officer or agent having charge of the stock transfer books for shares of the corporation shall make, at least two (2) business days after notice of each meeting of shareholders, a complete list of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. For a period of two (2) business days after notice of any meeting of shareholders, such list shall be kept on file at the principal office of the corporation and shall be subject to inspection by any shareholder making written request therefor at any time during usual business hours. The list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. Section 7. Quorum. A majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at a meeting as originally noticed. The shareholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. Section 8. Proxies. At all meetings of shareholders, a shareholder may vote in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. Section 9. Voting of Shares. Each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders. Section 10. Voting of Shares by Certain Holders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the By-Laws of such other corporation may prescribe, or, in the absence of such provision as the shareholder of such other corporation may determine. Shares held by an administrator, executor, guardian or conservator may be voted by him either in person or by proxy, without a transfer of such shares into his name. Shares standing in the name of a Trustee may be voted by him, either in person or by proxy, but no Trustee shall be entitled to vote shares held by him without a transfer of such shares into his name and no corporate Trustee shall be entitled to vote in the election of officers' shares held by it solely in a fiduciary capacity if such shares are shares issued by the corporate Trustee itself. Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver was appointed. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the Pledgee, and thereafter the Pledgee shall be entitled to vote the shares so transferred. Neither treasury shares of its own stock held by the corporation, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by the corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time. Section 11. Informal Action by Shareholders. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE III. BOARD OF DIRECTORS Section 1. General Powers. The business and affairs of the corporation shall be managed by its Board of Directors, except that the day-to-day business of the Corporation shall be managed by its officers. Section 2. Number, Tenure and Qualifications. The number of directors of the corporation shall be three. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected and qualified. Directors need not be residents of the State of Alabama or shareholders of the Corporation. Section 3. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after, and at the same place as, the annual meeting of shareholders. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Alabama, for the holding of additional regular meetings without other notice than such resolution. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the president or any two directors. Section 5. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Alabama, as the place of meeting for any regular or special meeting of the Board of Director. Members of the Board of Directors may participate in a meeting of such Board by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by means shall constitute presence in person at a meeting. Section 6. Notice. Notice of any special meeting shall be given at least two (2) days previously thereto by written notice delivered personally or mailed to each director at his business address, or by telegram. If mailed, such notice shall be deemed to be delivered when deposited in the United States Mail, so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any director may waive notice of any meeting. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Section 7. Quorum. A majority of the number of directors fixed by Section 2 of this Article III shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but if less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice. If a quorum is present when the meeting is convened, the directors present may continue to do business, taking action by a vote of a majority of a quorum, until adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum present, or the refusal of any director present to vote. Section 8. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. Section 9. Action Without a Meeting. Any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors. The Board of Directors may permit any or all directors to participate in a regular or meeting by, or conduct said meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other. Section 10. Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board of Directors. A director elected to fill a vacancy shall be elected to serve until the next annual meeting of shareholders. Any directorship to be filled by reason of an increase in the number of directors shall be filled by election at an annual meeting or at a special meeting of shareholders called for that purpose. Section 11. Compensation. By resolution of the Board of Directors, each director may be paid his expenses, if any, of attendance at each meeting of the Board of Directors, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or both. No such payment shall preclude any director from serving the Corporation in any other capacity and. receiving compensation therefor. Section 12. Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. ARTICLE IV. OFFICERS Section 1. Number. The officers of the corporation shall be a President, Vice-President, Secretary and Treasurer, of whom shall be elected by the Board of Directors. Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the Board of Directors. Any two (2) or more of officers may be held by the same person. Section 2. Election and term of office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have bean removed in the manner hereinafter provided. Section 3. Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights. Section 4. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term. Section 5. President. The President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and the Board of Directors. He may sign, with the Secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation and deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these By-Laws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time. Section 6. The Vice-President. In the absence of the President or in the event of his death, inability or refusal to act, the Vice-President (or in the event there be more than one Vice-President, the Vice-Presidents in the order designated at the time of their election, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice-President may sign, with the Secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation; and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors. Section 7. The Secretary. The Secretary shall: a) keep the minutes of the proceedings of the shareholders and of the stockholders in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these By-Laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized or otherwise required; (d) keep a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of stockholders; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to her/him by the President or by the Board of Directors. Section 8. The Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Article V of these By-Laws; and (a) in general perform all of the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. The Treasurer may sign, with the Secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation. If required by the shareholders, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. Section 9. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS Section 1. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. Section 2. Loans. No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances. Section 3. Checks, Drafts, Etc. All checks, drafts, or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors and, at such time, must be signed by the President and Vice-President. Section 4. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the Board of Directors may select. ARTICLE VI. CERTIFICATES OF SHARES Section 1. Certificates for Shares. Certificates representing shares of the corporation shall be in such form as shall be determined by the Board of Directors. Such certificate shall be signed by the President and by the Secretary or any two (2) officers available and may be sealed with the corporate seal or a facsimile thereof. The signatures of such officers upon a certificate may be facsimiles if the certificate is manually signed on behalf of a transfer agent or a registrar, other than the corporation itself or one of its employees. Each certificate shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number and class of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and canceled, except that in case of a lost, destroyed or mutilated certificate a new one may be issued therefore upon such terms and indemnity to the corporation as the Board of Directors may prescribe. Section 2. Transfer of Shares. Transfer of shares of the corporation shall be made only on the stock transfer books of the corporation by the holder of record thereof or by his legal representative, who shall furnish proper evidence of authority by power of attorney duly executed and filed with the Secretary of the corporation, and on surrender for cancellation of the certificate for such shares. The person in whose name shares stand on the books of the corporation shall be deemed by the corporation to be the owner thereof for all purposes. Section 3. Lost, Stolen, Destroyed, or Mutilated Certificates. No certificate for shares of stock in the corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen, except on production of such evidence of such loss, destruction or theft as the Board of Directors may in its discretion require, and on delivery to the corporation, if the Board of Directors shall so require, of a bond of indemnity, upon such terms and secured by such surety as the Board of Directors may in their discretion require. Section 4. Sale of Stock. Should any stockholder wish to dispose of any or all of his stock, it shall be first offered to the corporation at a price no greater than a bona fide offer by any third person, and such stock shall be available for a period of thirty (30) days to the corporation. In the event that any said stock in not purchased by the corporation, the remaining stock may then be sold by the stockholder at the price of the bona fide offer of the third person. ARTICLE VII. FISCAL YEAR The fiscal year of the corporation shall begin on the first day of January of each year, and end on the 31st day of December in each year, or such other fiscal year as the Board of Directors might chose. ARTICLE VIII. DIVIDENDS The Board of Directors may, from time to time, declare and the corporation may pay dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and its Articles of Incorporation. ARTICLE IX. CORPORATE SEAL The Board of Directors may provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation and the state of incorporation and the words "Corporate Seal". It shall not be necessary that the corporate seal be on corporate documents in order for them to be legal. ARTICLE X. WAIVER OF NOTICE Whenever any notice is required to be given to any shareholder or director of the corporation under the provisions of these By-Laws or the provisions of the Articles of Incorporation or under the provisions of the Constitution of Alabama or the Alabama Business Corporation Act, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XI. ACTIONS AGAINST OFFICERS AND DIRECTORS The corporation shall indemnify to the fullest extent permitted by the Alabama Business Corporation Act any person who has been made, or is threatened to be made, a party to an action, suit, or proceeding, whether civil, criminal, administrative, investigative, or otherwise (including an action suit, or proceeding by or in the right of the corporation), by reason of the fact that the person is or was a director or officer of the corporation, or a fiduciary within the meaning of the Employee Retirement Income Security Act of 1974 with respect to an employee benefit plan of the corporation, or serves or served at the request of the corporation as a director or as an officer, or as a fiduciary of an employee benefit plan, of another corporation, partnership, joint venture, trust, or other enterprise. ARTICLE XII. MEMBERS Membership in the private club operated by O'Charley's Sports Bar, Inc. shall be by written application, investigation and ballot. Dues shall be charged and collected from the elected members in such amounts as shall be set by the Directors and in such manner as shall be determined by the President of the corporation. Membership shall be granted only to those of legal age to purchase alcohol in Alabama. ARTICLE XIII. AMENDMENTS These By-Laws may be altered, amended or repealed and new By-Laws may be adopted by the Board of Directors or by the shareholders at any regular or special meeting; provided, however, that the Board of Directors may not alter, amend or repeal any by-law establishing what constitutes a quorum at shareholders meetings. ****THE END**** EX-3.18 18 g86000exv3w18.txt EX-3.18 CERTIFICATE OF INCORPORATION OF OCI, INC. EXHIBIT 3.18 CERTIFICATE OF INCORPORATION OF OCI, INC. FIRST: The name of the Corporation is OCI, Inc. SECOND: The registered office of the Corporation in the State of Delaware is located at 900 Market St., Second Fl., Wilmington, DE 19801, New Castle County. The registered agent of the Corporation at such address is Griffin Corporate Services, Inc. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware; provided that the Corporation's activities shall be confined to the maintenance and management of its intangible investments and the collection and distribution of the income from such investments or from tangible property physically located outside Delaware, as all defined in, and in such manner to qualify for exemption from income taxation under Section 1902(b)(8) of Title 30 of the Delaware Code, or under the corresponding provision of any subsequent law. FOURTH: The Corporation shall have authority to issue Three Thousand (3,000) shares of common stock, having a par value of one cent ($0.01) par value per share. FIFTH: The Corporation shall indemnify directors and officers of the corporation to the fullest extent permitted by law. SIXTH: The directors of the Corporation shall incur no personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director; provided, however, that the directors of the Corporation shall continue to be subject to liability (i) for any breach of their duty of loyalty to the Corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the directors derived an improper personal benefit. In discharging the duties of their respective positions, the board of directors, committees of the board, individual directors and individual officers may, in considering the best interest of the Corporation, consider the effects of any action upon employees, suppliers and customers of the Corporation, communities in which officers or other establishments of the Corporation are located, and all other pertinent factors. In addition, the personal liability of directors shall further be limited or eliminated to the fullest extent permitted by any future amendments to Delaware law. SEVENTH: The business and affairs of the Corporation shall be managed by or under the direction of the board of directors, the number of members of which shall be set forth in the bylaws of the Corporation. The directors need not be elected by ballot unless required by the bylaws of the Corporation. EIGHTH: Meetings of the stockholders will be held within the State of Delaware. The books of the Corporation will be kept in the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the bylaws of the Corporation. NINTH: The Corporation shall have no power and may not be authorized by its stockholders or directors (i) to perform or omit to do any act that would prevent, inhibit, or cause the Corporation to lose its status as a corporation exempt from the Delaware Corporation Income Tax under Section 1902(b)(8) of Title 30 of the Delaware Code, or under the corresponding provision of any subsequent law, or (ii) to conduct any activities outside of Delaware which could result in the Corporation being subject to tax outside of Delaware. TENTH: The name and mailing address of the incorporator is Gordon W. Stewart, Esquire, 1201 Market Street, Suite 1700, Wilmington, Delaware 19801. ELEVENTH: The powers of the incorporator shall terminate upon the election of directors. I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a corporation under the laws of the State of Delaware do make, file and record this Certificate of Incorporation, and, accordingly, have hereunto set my hand and seal this 15th day of June, 1995. /s/ Gordon W. Stewart ----------------------------------------- Gordon W. Stewart Incorporator EX-3.19 19 g86000exv3w19.txt EX-3.19 BYLAWS OF OCI, INC. EXHIBIT 3.19 OCI, INC. BY-LAWS ARTICLE I. STOCKHOLDERS Section 1. Annual Meeting. An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within thirteen (13) months subsequent to the later of the date of incorporation or the last annual meeting of stockholders. Section 2. Special Meetings. Special meetings of the stockholders, for any purpose or purposes prescribed in the notice of the meeting may be called by the Board of Directors or the chief executive officer and shall be held at such place, on such date, and at such time as they or he or she shall fix. Section 3. Notice of Meetings. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than ten (10) nor more than sixty (60) days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting except as otherwise provided herein or required by law (meaning here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of Incorporation of the Corporation). When a meeting is adjourned to another place, date, or time, written notice need not be given of the adjourned meeting lithe place, date; and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than thirty (30) days after the date for which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting. Section 4. Quorum. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes, unless or except the extent that the presence of a larger number may be required by law Where a separate vote by a class or classes is required, a majority of the shares of such class or classes present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time. If a notice of any adjourned special meeting or stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting. Section 5. Organization. Such person as the Board of Directors may have designate and/or, in the absence of such a person, the chief executive officer of the Corporation or, in his or her absence, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as chairman of the meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as the chairman appoints. Section 6. Conduct of Business. The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him or her in order. Section 7. Proxies and Voting. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing filed in accordance with the procedure established for the meeting. Each stockholder shall have one (1) vote for every share of stock entitled to vote which is registered in his or her name on the record date for the meeting, except as otherwise provided herein or required by law. All voting, including on the election of directors but excepting where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefore by a stockholder entitled to vote or by his or her proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be determined by a majority of the votes cast. Section 8. Stock List. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in his or her name, shall be open to the examination of any such stockholder, for any propose germane to the meeting, during ordinary business hours for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the examination of any such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them. Section 9. Consent of Stockholders in Lieu of Meeting. Any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be made by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the date the earliest dated consent is delivered to the Corporation, a written consent or consents signed by a sufficient number of holders to take action are delivered to the Corporation in the manner prescribed in the first paragraph of this Section. ARTICLE II. BOARD OF DIRECTORS Section 1. Number and Term of Officer. The number of directors who shall constitute the whole Board shall be such number as the Board of Directors shall from time to time have designated, except that in the absence of any such designation, such number shall be three (3). Each director shall be elected for a term of one year and until his or her successor is elected and qualified, except as otherwise provided herein or required by law. Whenever the authorized number of directors is increased between annual meetings of the stockholders, a majority of the directors then in office shall have the power to elect such new directors for the balance of a term and until their successors are elected and qualified. Any decrease in the authorized number of directors shall not become effective until the expiration of the term of the directors then in office unless, at the time of such decrease, there shall be vacancies on the board which are being eliminated by the decrease. Section 2. Vacancies. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, a majority of the directors remaining in office, although less than a quorum, may elect a successor for the unexpired term and until his or her successor is elected and qualified. Section 3. Regular Meetings. Regular meetings of the Board of Directors shall be held at such place or places, on such date or dates, and at such time or times as shall have been established by the Board of Directors mid publicized among all directors. A notice of each regular meeting shall not be required. Section 4. Special Meetings. Special meetings of the Board Of Directors may be called by one-third (1/3) of the directors then in office (rounded up to the nearest whole number) or by the chief executive officer and shall be held at such place, on such date, and at such time as they or he or she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director by whom it is not waived by mailing written notice not less than five (5) days before the meeting or by telegraphing or telexing or by facsimile transmission of the same not less than twenty-four (24) hours before the meeting. Unless otherwise indicated in the notice thereof any and all business may be transacted at a special meeting. Section 5. Quorum. At any meeting of the Board of Directors, a majority of the total number of the whole Board shall constitute a quorum for all purposes. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof. Section 6. Participation in Meetings By Conference Telephone. Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting. Section 7. Conduct of Business. At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the Board of Directors. Section 8. Powers. The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, including, without limiting the generality of the foregoing, the unqualified power: (1) To declare dividends from time to time in accordance with law; (2) To purchase or otherwise acquire any property, rights or privileges on such terms as it shall determine; (3) To authorize the creation, making and issuance, in such form as it may determine, or written obligations of every kind, negotiable or non-negotiable, secured or unsecured, and to do all things necessary in connection therewith; (4) To remove any officer of the Corporation with or without cause, and from time to time to confer the powers and duties of any officer upon any other person for the time being; (5) To confer upon any officer of the Corporation the power to appoint, remove and suspend subordinate officers, employees and agents; (6) To adopt from time to time such stock, option, stock purchase, bonus or other compensation plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine; (7) To adopt from time to time such insurance, retirement, and other benefit plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine; and, (8) To adopt from time to time regulations, not inconsistent with these By-laws, for the management of the Corporation's business and affairs. ARTICLE III. COMMITTEES Section 1. Committees of the Board of Directors. The Board of Director, by a vote of a majority of the whole Board, may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. Any committee so designated may exercise the power and authority of the Board of Directors to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the Delaware General Corporation Law if the resolution which designates the committee or a supplemental resolution of the Board of Directors shall so provide. In the absence or disqualification of any member of any committee and any alternate member in his or her place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member. Section 2. Conduct of Business. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; one-third (1/3) of the members shall constitute a quorum unless the committee shall consist of one (1) or two (2) members, in which event, one (1) member shall constitute a quorum and all matters shall be determined by a majority vote of the members present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee. ARTICLE IV. OFFICERS Section 1. Officers. The officers of the Corporation shall be elected by the Board of Directors, and shall include a President, a Secretary, a Treasurer, and such other officers, employees and agents as appointed, from time to time, in accordance with these By-laws. Additionally, the President shall have the power to appoint such Vice Presidents and other officers equivalent or junior thereto as the President may deem appropriate. Section 2. Term. Each officer of The Corporation shall serve at the pleasure of the Board of Directors, and the Board may remove any officer at any time with or without cause. Any officer, if appointed by the President of the Corporation, may likewise be removed by the President of the Corporation. Section 3. Authority and Duties. All officers and agents of the Corporation shall have such authority and perform such duties in the management of the property and affairs of the Corporation as generally pertain to their respective offices, as well as such authority and duties as may be determined by the Board of Directors. Section 4. Execution of Instruments. Checks, notes, drafts, other commercial instruments, assignments, guarantees of signatures, and contracts (except as otherwise provided herein or by law) shall be executed by the President, any Vice President, the Secretary, the Treasurer, or such officers or employees or agents as the Board of Directors or any of such designated officers may direct. Section 5. Compensation. The Board of Directors shall have power to fix, or to delegate the power to fix, the compensation for services in any capacity of all officers, employees or agents of the Corporation. The Board of Directors shall have the authority to establish, within legal limits, such pension, retirement, stock purchase and stock option plans, and such other fringe benefit plans for the benefit of officers, employees, or agents as it deems to be in the best interest of the Corporation. Section 6. Action with Respect to Securities of Other Corporations. Unless otherwise directed by the Board of Directors, the President, any Vice President, the Secretary, the Treasurer or any officer of the Corporation authorized by such officers shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which this Corporation may hold securities and otherwise to exercise any and all tights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation. ARTICLE V. STOCK Section 1. Certificates of Stock. Each stockholder shall be entitled to a certificate signed by, or in the name of the Corporation by, the President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by him or her. Any or all of the signatures on the certificate may be by facsimile. Section 2. Transfers of Stock. Transfers of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents designated to transfer shares of the stock of the Corporation. Except where a certificate is issued in accordance with Section 4 of Article V of these By-Laws, an outstanding certificate for the number of shares involved shall be surrendered for cancellation before a new certificate is issued therefor. Section 3. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, or to receive payment of any dividend or other distribution or allotment of any tights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to the time for such other action as hereinbefore described; provided, however, that if no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion, or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directors adopts a resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall be not more than ten (10) days after the date upon which the resolution fixing the record date is adopted. If no record date has been fixed by the Board of Directors and no prior action by the Board of Directors is required by the Delaware General Corporation Law, the record date shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by Article I, Section 9 hereof. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the Delaware General Corporation Law with respect to the proposed action by written consent of the stockholders, the record date for determining stockholders entitled to consent to corporate action in writing shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. Section 4. Lost, Stolen, or Destroyed Certificates. In the event of the loss, theft, or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft, or destruction and concerning the giving of a satisfactory bond or bonds or indemnity. Section 5. Regulations. The issue, transfer, conversion, and registration of certificates of stock shall be governed by such other regulations as the Board of Directors may establish. ARTICLE VI. NOTICES Section 1. Notices. Except as otherwise specifically provided herein or required by law, all notices required to be given to any stockholder, director, officer, employee, or agent shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof; by depositing such notice in the mails, postage paid, or by sending such notice by prepaid telegram or mailgram. Any such notice shall be addressed to such stockholder, director, officer, employee, or agent at his or her last known address as the same appears on the books of the Corporation. The time when such notice is received, if hand-delivered, or dispatched, if delivered through the mails or by telegram or mailgram, shall be the time of the giving of the notice. Section 2. Waivers. A written waiver of any notice, signed by a stockholder, director, officer, employee, or agent, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, employee, or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver. ARTICLE VII. MISCELLANEOUS Section 1. Facsimile Signatures. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these By-Laws, facsimile signatures of any officer or officers of the. Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof Section 2. Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer. Section 3. Reliance upon Books, Reports, and Records. Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or committee member reasonably believes are within such other person's professional or expert competence arid who has been selected with reasonable care by or on behalf of the Corporation. Section 4. Fiscal Year. The fiscal year of the Corporation shall be as fixed by the Board of Directors. Section 5. Time Periods. In applying any provision of these By-Laws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included. ARTICLE VIII. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, or agent or in any other capacity while serving as a director, officer, employee, or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes, or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this Article VIII with respect to proceedings to enforce rights to indemnification, the corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. Section 2. Right to Advancement of Expenses. The right to indemnification conferred in Section 1 of this Article VIII shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition (hereinafter an "advancement of expenses"); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise. The rights to indemnification and to the advancement of expenses conferred in Sections 1 and 2 of this Article VIII shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the indemnitee's heirs, executors, and administrators. Section 3. Right of Indemnitee to Bring Suit. If a claim under Section 1 or 2 of this Article VIII is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation. Section 4. Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in this Article VIII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation's Certificate of Incorporation, By-Laws, agreement, vote of stockholders, or disinterested directors or otherwise. Section 5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. Section 6. Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of the Corporation. ARTICLE IX. AMENDMENTS These By-Laws may be amended or repealed by the Board of Directors at any meeting or by the stockholders at any meeting. EX-3.20 20 g86000exv3w20.txt EX-3.20 ARTICLES OF INCORPORATION OF OPI, INC. EXHIBIT 3.20 ARTICLES OF INCORPORATION OF OPI, INC. The undersigned, acting as the incorporator of a corporation for profit pursuant to Section 7-102-102, Colorado Revised Statutes (C.R.S.), delivers these Articles of Incorporation to the Colorado Secretary of State for filing, and states as follows: 1. The entity name of the corporation is OPI, Inc. 2. The total number of shares of stock the corporation is authorized to issue is 1,000 shares of common stock, $0.01 par value per share. 3. The street address of the corporation's initial registered office and the name of its initial registered agent at that office are: The Corporation Company 1675 Broadway Denver, Colorado 80202 4. The address of the corporation's initial principal office is: 3038 Sidco Drive Nashville, Tennessee 37204 5. The name and address of the incorporator is: Chad C. White Bass, Berry & Sims PLC 315 Deaderick Street, Suite 2700 Nashville, Tennessee 37238 6. The undersigned consents to appointment as the corporation's initial registered agent: The Corporation Company By: /s/ Mary Adams -------------------------- Name: Mary Adams Title: Assistant Secretary 7. The shareholders of the corporation shall not have preemptive rights. 8. Cumulative voting is not desired in the election of directors. 1 9. To the fullest extent permitted by the Colorado Business Corporation Act as in effect on the date hereof and as hereafter amended from time to time, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. If the Colorado Business Corporation Act or any successor statute is amended after adoption of this provision to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Colorado Business Corporation Act, as so amended from time to time. Any repeal or modification of this Paragraph 9 by the shareholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification or with respect to events occurring prior to such time. 10. The address to which the Secretary of State may send a copy of this document upon completion of filing is: Chad C. White Bass, Berry & Sims PLC 315 Deaderick Street, Suite 2700 Nashville, Tennessee 37238 Dated: October 29, 2001 /s/ Chad C. White ---------------------------- Chad C. White, Incorporator 2 EX-3.21 21 g86000exv3w21.txt EX-3.21 BYLAWS OF OPI, INC. EXHIBIT 3.21 BYLAWS OF OPI, INC. (THE "CORPORATION") ARTICLE I. OFFICES The Corporation may have such offices, either within or without the State of Colorado, as the Board of Directors may designate or as the business of the Corporation may require from time to time. ARTICLE II. SHAREHOLDERS 2.1 ANNUAL MEETING. An annual meeting of the shareholders of the Corporation shall be held on such date as may be determined by the Board of Directors. The business to be transacted at such meeting shall be the election of directors and such other business as shall be properly brought before the meeting. 2.2 SPECIAL MEETINGS. A special meeting of shareholders shall be held on call of the Board of Directors or if the holders of at least ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the proposed special meeting sign, date and deliver to the Corporation's Secretary one (1) or more written demands for the meeting describing the purpose or purposes for which such special meeting is to be held. Only business within the purpose or purposes described in the meeting notice may be conducted at a special shareholders' meeting. 2.3 PLACE OF MEETINGS. The Board of Directors may designate any place, either within or without the State of Colorado, as the place of meeting for any annual meeting or for any special meeting. If no place is fixed by the Board of Directors, the meeting shall be held at the principal office of the Corporation. 2.4 NOTICE OF MEETINGS; WAIVER. (a) NOTICE. Notice of the date, time and place of each annual and special shareholders' meeting and, in the case of a special meeting, a description of the purpose or purposes for which the meeting is called, shall be given no fewer than ten (10) days nor more than sixty (60) days before the date of the meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (b) WAIVER. A shareholder may waive any notice required by law, the Articles of Incorporation or these Bylaws before or after the date and time stated in such notice. Except as provided in the next sentence, the waiver must be in writing, be signed by the shareholder entitled to the notice and be delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; and (2) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. 2 2.5 RECORD DATE. The Board of Directors shall fix as the record date for the determination of shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote or to take any other action, a date not more than seventy (70) days before the meeting or action requiring a determination of shareholders. A record date fixed for a shareholders' meeting is effective for any adjournment of such meeting unless the Board of Directors fixes a new record date, which it must do if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. 2.6 SHAREHOLDERS' LIST. After the record date for a meeting has been fixed, the Corporation shall prepare an alphabetical list of the names of all shareholders who are entitled to notice of a shareholders' meeting. Such list will be arranged by voting group (and within each voting group by class or series of shares) and will show the address of and number of shares held by each shareholder. The shareholders' list will be available for inspection by any shareholder, beginning the earlier of ten (10) days before the meeting for which the list was prepared or two (2) business days after notice of the meeting is given and continuing through the meeting, at the Corporation's principal office or at a place identified in the meeting notice in the city where the meeting will be held. A shareholder or his agent or attorney is entitled on written demand to inspect and, subject to the requirements of the Colorado Business Corporation Act (the "Act"), to copy the list, during regular business hours and at his expense, during the period it is available for inspection. 3 2.7 VOTING GROUPS; QUORUM; ADJOURNMENT. All shares entitled to vote and be counted together collectively on a matter at a meeting of shareholders shall be a "voting group." Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Except as otherwise required by the Act or provided in the Articles of Incorporation, a majority of the votes entitled to be cast on a matter by a voting group constitutes a quorum of that voting group for action on that matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum of a voting group shall not be present or represented at any meeting, the shares entitled to vote thereat shall have power to adjourn the meeting to a different date, time or place without notice other than announcement at the meeting of the new time, date or place to which the meeting is adjourned. At any adjourned meeting at which a quorum of any voting group shall be present or represented, any business may be transacted by such voting group which might have been transacted at the meeting as originally called. 2.8 VOTING OF SHARES. Unless otherwise provided by the Act or the Articles of Incorporation, each outstanding share is entitled to one (1) vote on each matter voted on at a shareholders' meeting. Only shares are entitled to vote. If a quorum exists, approval of action on a matter (other than the election of directors) by a voting group entitled to vote thereon is received if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Articles of Incorporation 4 or the Act require a greater number of affirmative votes. Unless otherwise provided in the Articles of Incorporation, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. 2.9 PROXIES. A shareholder may vote his shares in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for him by signing an appointment either personally or by his attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes. An appointment is valid for eleven (11) months unless another period is expressly provided in the appointment form. An appointment of a proxy is revocable by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest. 2.10 ACCEPTANCE OF SHAREHOLDER DOCUMENTS. If the name signed on a shareholder document (a vote, consent, waiver, or proxy appointment) corresponds to the name of a shareholder, the Corporation, if acting in good faith, is entitled to accept such shareholder document and give it effect as the act of the shareholder. If the name signed on such shareholder document does not correspond to the name of a shareholder, the Corporation, if acting in good faith, is nevertheless entitled to accept such shareholder document and to give it effect as the act of the shareholder if: (i) the shareholder is an entity and the name signed purports to be that of an officer or agent of the entity; 5 (ii) the name signed purports to be that of a fiduciary representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to such shareholder document; (iii) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence of this status acceptable to the Corporation has been presented with respect to the shareholder document; (iv) the name signed purports to be that of a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory's authority to sign for the shareholder has been presented with respect to such shareholder document; or (v) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one (1) of the co-owners and the person signing appears to be acting on behalf of all the co-owners. The Corporation is entitled to reject a shareholder document if the Secretary or other officer or agent authorized to tabulate votes, acting in good faith, has a reasonable basis for doubt about the validity of the signature on such shareholder document or about the signatory's authority to sign for the shareholder. 2.11 ACTION WITHOUT MEETING. Action required or permitted by the Act to be taken at a shareholders' meeting may be taken without a meeting if all shareholders entitled to vote on the action consent to taking such action without a meeting in writing. The action must be evidenced by one (1) or more written consents describing the action taken, at least one of which is signed by each shareholder entitled to vote on the action in one (1) 6 or more counterparts, and delivered to the Corporation for inclusion in the minutes or for filing with the corporate records. If the Act or the Articles of Incorporation require that notice of a proposed action be given to nonvoting shareholders and the action is to be taken by consent of the voting shareholders, then the Corporation shall give its nonvoting shareholders written notice of the proposed action at least ten (10) days before such action is taken. Such notice shall contain or be accompanied by the same material that would have been required to be sent to nonvoting shareholders in a notice of a meeting at which the proposed action would have been submitted to the shareholders for action. 2.12 PRESIDING OFFICER AND SECRETARY. Meetings of the shareholders shall be presided over by the President, or if the President is not present, by a chairman chosen by a majority of the shareholders entitled to vote at such meeting. The Secretary or, in his absence, an Assistant Secretary shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, a majority of the shareholders entitled to vote at such meeting shall choose any person present to act as secretary of the meeting. ARTICLE III. DIRECTORS 3.1 POWERS AND DUTIES. All corporate powers shall be exercised by or under the authority of and the business and affairs of the Corporation managed under the direction of the Board of Directors. 7 3.2 NUMBER AND TERM. (a) NUMBER. The Board of Directors shall consist of no fewer than one (1) or more than eight (8) members. The exact number of directors, within the minimum and maximum, may be fixed, changed or determined from time to time by the shareholders or the Board of Directors. (b) TERM. Directors shall be elected at the first annual shareholders' meeting and at each annual meeting thereafter. The terms of the initial directors shall expire at the first shareholders' meeting at which directors are elected. The terms of all other directors expire at the next annual shareholders' meeting following their election. Despite the expiration of a director's term, he shall continue to serve until his successor is elected and qualifies or until there is a decrease in the number of directors. 3.3 MEETINGS; NOTICE. The Board of Directors may hold regular and special meetings either within or without the State of Colorado. The Board of Directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting. (a) REGULAR MEETINGS. Unless the Articles of Incorporation otherwise provide, regular meetings of the Board of Directors may be held without notice of the date, time, place or purpose of the meeting. (b) SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the President or any two (2) directors. Unless the Articles of Incorporation otherwise provide, 8 special meetings must be preceded by at least twenty-four (24) hours' notice of the date, time and place of the meeting but need not describe the purpose of such meeting. Such notice shall comply with the requirements of Article XI of these Bylaws. (c) ADJOURNED MEETINGS. Notice of an adjourned meeting need not be given if the time and place to which the meeting is adjourned are fixed at the meeting at which the adjournment is taken, and if the period of adjournment does not exceed one (1) month in any one (1) adjournment. (d) WAIVER OF NOTICE. A director may waive any required notice before or after the date and time stated in the notice. Except as provided in the next sentence, the waiver must be in writing, signed by the director and filed with the minutes or corporate records. A director's attendance at or participation in a meeting waives any required notice to him of such meeting unless the director at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. 3.4 QUORUM. Unless the Articles of Incorporation require a greater number, a quorum of the Board of Directors consists of a majority of the fixed number of directors if the Corporation has a fixed board size or a majority of the number of directors fixed, or if no number is fixed, the number in office immediately before the meeting begins, if the Corporation has a variable range board. 3.5 VOTING. If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the Board of Directors, unless the Act, the Articles of Incorporation or these 9 Bylaws require the vote of a greater number of directors. A director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to such action unless: (i) he objects at the beginning of the meeting (or promptly upon his arrival) to holding the meeting or transacting business at the meeting; (ii) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation promptly after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. 3.6 ACTION WITHOUT MEETING. Unless the Articles of Incorporation otherwise provide, any action required or permitted by the Act to be taken at a Board of Directors meeting may be taken without a meeting if all directors consent to taking such action without a meeting in writing. Such action must be evidenced by one or more written consents describing the action taken, at least one of which is signed by each director, which consents shall be included in the minutes or filed with the corporate records reflecting the action taken. Action taken by consent is effective when the last director signs the consent, unless the consent specifies a different effective date. 3.7 COMPENSATION. Directors and members of any committee created by the Board of Directors shall be entitled to such reasonable compensation for their services as directors and members of such 10 committee as shall be fixed from time to time by the Board, and shall also be entitled to reimbursement for any reasonable expenses incurred in attending meetings of the Board or of any such committee meetings. Any director receiving such compensation shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services. 3.8 RESIGNATION. A director may resign at any time by delivering written notice to the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. 3.9 VACANCIES. Unless the Articles of Incorporation otherwise provide, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors or a vacancy resulting from the removal of a director with or without cause, either the shareholders or the Board of Directors may fill such vacancy. If the directors remaining in office constitute fewer than a quorum of the Board of Directors, they may fill such vacancy by the affirmative vote of a majority of all the directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, if one or more of the remaining directors were elected by the same voting group, only such directors are entitled to vote to fill the vacancy if it is filled by directors, and only the holders of shares of that voting group shall be entitled to vote to fill the vacancy if it is filled by the shareholders. 11 3.10 REMOVAL OF DIRECTORS. The shareholders may remove one (1) or more directors with or without cause unless the Articles of Incorporation provide that directors may be removed only for cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him without cause. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him. A director may be removed by the shareholders only at a meeting called for the purpose of removing him, and the meeting notice must state that the purpose, or one (1) of the purposes, of the meeting is removal of the director. ARTICLE IV. COMMITTEES Unless the Articles of Incorporation otherwise provide, the Board of Directors may create one (1) or more committees, each consisting of one (1) or more members. All members of committees of the Board of Directors which exercise powers of the Board of Directors must be members of the Board of Directors and serve at the pleasure of the Board of Directors. The creation of a committee and appointment of a member or members to it must be approved by the greater of (i) a majority of all directors in office when the action is taken or (ii) the number of directors required by the Articles of Incorporation or these Bylaws to take action. Unless otherwise provided in the Act, to the extent specified by the Board of Directors or in the Articles of Incorporation, each committee may exercise the authority of the Board of Directors. All such committees and their members shall be governed by the same statutory 12 requirements regarding meetings, action without meetings, notice and waiver of notice, quorum and voting requirements as are applicable to the Board of Directors and its members. ARTICLE V. OFFICERS 5.1 NUMBER. The officers of the Corporation shall be a President, a Secretary and such other officers as may be from time to time appointed by the Board of Directors or by the President with the Board of Directors' approval. One person may simultaneously hold more than one office. 5.2 APPOINTMENT. The principal officers shall be appointed annually by the Board of Directors at the first meeting of the Board following the annual meeting of the shareholders, or as soon thereafter as is conveniently possible. Each officer shall serve at the pleasure of the Board of Directors and until his successor shall have been appointed, or until his death, resignation or removal. 5.3 RESIGNATION AND REMOVAL. An officer may resign at any time by delivering notice to the Corporation. Such resignation is effective when such notice is delivered unless such notice specifies a later effective date. An officer's resignation does not affect the Corporation's contract rights, if any, with the officer. The Board of Directors may remove any officer at any time with or without cause, but such removal shall not prejudice the contract rights, if any, of the person so removed. 13 5.4 VACANCIES. Any vacancy in an office from any cause may be filled for the unexpired portion of the term by the Board of Directors. 5.5 DUTIES. (a) PRESIDENT. The President shall be the Chief Executive Officer of the Corporation and shall have general supervision over the active management of the business of the Corporation. He shall have the general powers and duties of supervision and management usually vested in the office of the President of a corporation and shall perform such other duties as the Board of Directors may from time to time prescribe. (b) VICE PRESIDENT. The Vice President or Vice Presidents (if any) shall be active executive officers of the Corporation, shall assist the President in the active management of the business, and shall perform such other duties as the Board of Directors may from time to time prescribe. (c) SECRETARY. The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and shall prepare and record all votes and all minutes of all such meetings in a book to be kept for that purpose; he shall perform like duties for any committee when required. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors when required, and unless directed otherwise by the Board of Directors, shall keep a stock record containing the names of all persons who are shareholders of the Corporation, showing their place of residence and the number of shares held by them respectively. The Secretary shall have the responsibility of authenticating records of the Corporation. The Secretary shall perform such other duties as may be prescribed from time to time by the Board of Directors. 14 (d) TREASURER. The Treasurer shall have the custody of the Corporation's funds and securities, shall keep or cause to be kept full and accurate account of receipts and disbursements in books belonging to the Corporation, and shall deposit or cause to be deposited all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse or cause to be disbursed the funds of the Corporation as required in the ordinary course of business or as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and directors at the regular meetings of the Board, or whenever they may require it, an account of all of his transactions as Treasurer and the financial condition of the Corporation. He shall perform such other duties as may be incident to his office or as prescribed from time to time by the Board of Directors. The Treasurer shall give the Corporation a bond, if required by the Board of Directors, in a sum and with one or more sureties satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the Corporation in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. (e) OTHER OFFICERS. Other officers appointed by the Board of Directors shall exercise such powers and perform such duties as may be delegated to them. (f) DELEGATION OF DUTIES. In case of the absence or disability of any officer of the Corporation or of any person authorized to act in his place, the Board of Directors may from time to time delegate the powers and duties of such officer to any officer, or any director, or any other person whom it may select, during such period of absence or disability. 15 5.6 INDEMNIFICATION, ADVANCEMENT OF EXPENSES AND INSURANCE. (a) INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The Corporation shall indemnify and advance expenses to each director and officer of the Corporation, or any person who may have served at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director or officer of another corporation (and, in either case, his heirs, executors and administrators), to the full extent allowed by the laws of the State of Colorado, both as now in effect and as hereafter adopted. The Corporation may indemnify and advance expenses to any employee or agent of the Corporation who is not a director or officer (and his heirs, executors and administrators) to the same extent as to a director or officer, if the Board of Directors determines that to do so is in the best interests of the Corporation. (b) NON-EXCLUSIVITY OF RIGHTS. The indemnification and advancement of expenses provisions of subsection (a) of this Section 5.6 shall not be exclusive of any other right which any person (and his heirs, executors and administrators) may have or hereafter acquire under any statute, provision of the Articles of Incorporation, provision of these Bylaws, resolution adopted by the shareholders, resolution adopted by the Board of Directors, agreement, insurance, purchased by the Corporation or otherwise, both as to action in his official capacity and as to action in another capacity. (c) INSURANCE. The Corporation may maintain insurance, at its expense, to protect itself and any individual who is or was a director, officer, employee or agent of the Corporation, or who, while a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation's Board of Directors or its Chief Executive Officer as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss 16 whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under this Article or the Act. ARTICLE VI. SHARES OF STOCK 6.1 SHARES WITH OR WITHOUT CERTIFICATES. The Board of Directors may authorize that some or all of the shares of any or all of the Corporation's classes or series of stock be evidenced by a certificate or certificates of stock. The Board of Directors may also authorize the issue of some or all of the shares of any or all of the Corporation's classes or series of stock without certificates. The rights and obligations of shareholders with the same class and/or series of stock shall be identical whether or not their shares are represented by certificates. (a) SHARES WITH CERTIFICATES. If the Board of Directors chooses to issue shares of stock evidenced by a certificate or certificates, each individual certificate shall include the following on its face: (i) the Corporation's name, (ii) the fact that the Corporation is organized under the laws of the State of Colorado, (iii) the name of the person to whom the certificate is issued, (iv) the number of shares represented thereby, (v) the class of shares and the designation of the series, if any, which the certificate represents, and (vi) such other information as applicable law may require or as may be lawful. If the Corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) shall be summarized on the front or back of each certificate. Alternatively, each certificate shall 17 state on its front or back that the Corporation will furnish the shareholder this information in writing, without charge, upon request. Each certificate of stock issued by the Corporation shall be signed (either manually or in facsimile) by the President or a Vice President, and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer. If the person who signed a certificate no longer holds office when the certificate is issued, the certificate is nonetheless valid. (b) SHARES WITHOUT CERTIFICATES. If the Board of Directors chooses to issue shares of stock without certificates, the Corporation, if required by the Act, shall, within a reasonable time after the issue or transfer of shares without certificates, send the shareholder a written statement of the information required on certificates by Section 6.1(a) of these Bylaws and any other information required by the Act. 6.2 SUBSCRIPTIONS FOR SHARES. Subscriptions for shares of the Corporation shall be valid only if they are in writing. Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at such time, or in such installments and at such periods, as shall be determined by the Board of Directors. All calls for payment on subscriptions shall be uniform as to all shares of the same class or of the same series, unless the subscription agreement specifies otherwise. 6.3 TRANSFERS. Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by (i) the holder of record thereof, (ii) by his legal representative, who, upon request of the Corporation, shall furnish proper evidence of authority to transfer, or (iii) his 18 attorney, authorized by a power of attorney duly executed and filed with the Secretary of the Corporation or a duly appointed transfer agent. Such transfers shall be made only upon surrender, if applicable, of the certificate or certificates for such shares properly endorsed and with all taxes thereon paid. 6.4 LOST, DESTROYED OR STOLEN CERTIFICATES. No certificate for shares of stock of the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen except on production of evidence, satisfactory to the Board of Directors, of such loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount and with such terms and such surety as the Board of Directors may in its discretion require. ARTICLE VII. CORPORATE ACTIONS 7.1 CONTRACTS. Unless otherwise required by the Board of Directors, the President or any Vice President shall execute contracts or other instruments on behalf of and in the name of the Corporation. The Board of Directors may from time to time authorize any other officer, assistant officer or agent to enter into any contract or execute any instrument in the name of and on behalf of the Corporation as it may deem appropriate, and such authority may be general or confined to specific instances. 7.2 LOANS. No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized by the President or the Board of Directors. Such authority may be general or confined to specific instances. 19 7.3 CHECKS, DRAFTS, ETC. Unless otherwise required by the Board of Directors, all checks, drafts, bills of exchange and other negotiable instruments of the Corporation shall be signed by either the President, a Vice President or such other officer, assistant officer or agent of the Corporation as may be authorized so to do by the Board of Directors. Such authority may be general or confined to specific business, and, if so directed by the Board, the signatures of two or more such officers may be required. 7.4 DEPOSITS. All funds of the Company not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks or other depositories as the Board of Directors may authorize. 7.5 VOTING SECURITIES HELD BY THE CORPORATION. Unless otherwise required by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend any meeting of security holders, or to take action on written consent as a security holder, of other corporations in which the Corporation may hold securities. In connection therewith the President shall possess and may exercise any and all rights and powers incident to the ownership of such securities which the Corporation possesses. The Board of Directors may, from time to time, confer like powers upon any other person or persons. 20 7.6 DIVIDENDS. The Board of Directors may, from time to time, declare, and the Corporation may pay, dividends on its outstanding shares of capital stock in the manner and upon the terms and conditions provided by applicable law. The record date for the determination of shareholders entitled to receive the payment of any dividend shall be determined by the Board of Directors, but which in any event shall not be less than ten (10) days prior to the date of such payment. ARTICLE VIII. FISCAL YEAR The fiscal year of the Corporation shall be determined by the Board of Directors, and in the absence of such determination, shall be the calendar year. ARTICLE IX. CORPORATE SEAL The Corporation shall not have a corporate seal. ARTICLE X. AMENDMENT OF BYLAWS These Bylaws may be altered, amended, repealed or restated, and new Bylaws may be adopted, at any meeting of the shareholders by the affirmative vote of a majority of the stock represented at such meeting, or by the affirmative vote of a majority of the members of the Board of Directors who are present at any regular or special meeting. 21 ARTICLE XI. NOTICE Unless otherwise provided for in these Bylaws, any notice required shall be in writing except that oral notice is effective if it is reasonable under the circumstances and not prohibited by the Articles of Incorporation or these Bylaws. Notice may be communicated in person; by telephone, telegraph, teletype, electronically transmitted facsimile or other form of wire or wireless communication; or by mail or private carrier. Written notice to a domestic or foreign corporation authorized to transact business in Colorado may be addressed to its registered agent at its registered office or to the corporation or its secretary at its principal office. Written notice to shareholders, if in a comprehensible form, is effective when mailed, if mailed correctly addressed to the shareholder's address shown in the Corporation's current record of shareholders. Except as provided above, written notice, if in a comprehensible form, is effective at the earliest of the following: (a) when received, (b) five (5) days after its deposit in the United States mail; or (c) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. Oral notice is effective when communicated if communicated in a comprehensible manner. 22 EX-3.22 22 g86000exv3w22.txt EX-3.22 CERTIFICATE OF FORMATION OF 99 COMMISSARY EXHIBIT 3.22 CERTIFICATE OF FORMATION OF 99 COMMISSARY, LLC This Certificate of Formation of 99 Commissary, LLC is to be filed with the Delaware Secretary of State pursuant to the Delaware Limited Liability Company Act (the "Act"), Section 18-201. 1. The name of the limited liability company is 99 Commissary, LLC. 2. The name, street and mailing address of the initial registered office and the registered agent for service of process of the limited liability company in the State of Delaware are as follows: The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 (New Castle County). 3. a. The limited liability company shall have the power to indemnify any person who has taken an action of management as a member, manager, employee or agent of the limited liability company, or any other person who is serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and any such indemnification may continue as to any person who has ceased to be a member, manager, employee, or agent and may inure to the benefit of the heirs, executors, and administrators of such a person. b. By action of the members, notwithstanding any interest of the managers in the action, the limited liability company may purchase and maintain insurance, in such amounts as the members deem appropriate, to protect any member, manager, employee, independent contractor or agent of the limited liability company or any other person who is or was serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) against liability asserted against him or incurred by him in any such capacity or arising out of his status as such (including, without limitation, expenses, judgments, fines, and amounts paid in settlement) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and whether or not the limited liability company would have the power or would be required to indemnify such person under the terms of any agreement or provision of its operating agreement or the Act. For purposes of this paragraph (b), "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan. Dated as of this 10th day of December, 2002. /s/ Chad C. White ---------------------------------------- Chad C. White, Sole Organizer EX-3.23 23 g86000exv3w23.txt EX-3.23 OPERATING AGREEMENT OF 99 COMMISSARY, LLC EXHIBIT 3.23 OPERATING AGREEMENT OF 99 COMMISSARY, LLC OPERATING AGREEMENT OF 99 COMMISSARY, LLC THIS OPERATING AGREEMENT is made and entered into as of the 10th day of December, 2002, by and among the persons listed on Exhibit A hereto (each, together with the other persons who may become members under the terms of this Agreement, a "Member" and collectively, the "Members"). W I T N E S S E T H: WHEREAS, the Member hereto desires to form a limited liability company under and pursuant to the Act (as defined below), to conduct certain business as a limited liability company, and to set forth the mutual rights and obligations of the Members in this Agreement; NOW, THEREFORE, in consideration of the mutual promises, covenants, and undertakings hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Members hereby agree as follows: ARTICLE I. DEFINITIONS 1.1 DEFINITIONS. As used herein the following terms have the indicated meanings: 1.1.1 "Act" means the Delaware Limited Liability Company Act, being Title 6, Sections 18-101 to 18-1109 of the Delaware Code Annotated, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.2 "Affiliate," with respect to any Entity, means (a) any other Entity, directly or indirectly, owning a 50% or greater ownership interest in such Entity; or (b) any other Entity in which such Entity has a 50% or greater ownership interest; or, (c) in the event a Member is a natural person, a member of such Member's Immediate Family or a trust for the benefit of the Member or a member of such Member's Immediate Family. 1.1.3 "Agreement" means this Operating Agreement, as amended from time to time. 1.1.4 "Assign" means to make an Assignment. 1.1.5 "Assignment" means any transfer, alienation, sale, conveyance, assignment, or other disposition of all or any part of an existing Membership Interest in the LLC, by operation of law or otherwise, including without limitation any gift, bequest, devise, hypothecation, mortgage, lien, pledge, encumbrance, or granting of a security interest. 1.1.6 "Available Cash Flow" means all cash, revenues, and funds received by the LLC, less the sum of the following to the extent paid or set aside by the LLC: (a) all principal and interest payments on indebtedness of the LLC and all other sums paid to lenders; (b) all cash expenditures incurred incident to the normal operation of the LLC's business; and (c) such reserves as the Members deem reasonably necessary to the proper operation of the LLC's business. 1.1.7 "Capital Account" in respect of any Member means the account established for that Member pursuant to Section 5.1 hereof, and as may be adjusted from time to time in accordance with this Agreement. 1.1.8 "Capital Contribution" shall mean any contribution to the capital of the LLC in cash or property by a Member whenever made. 1.1.9 "Certificate of Formation" means the Certificate of Formation of the LLC filed in the Office of the Secretary of State of the State of Delaware, as amended from time to time. 1.1.10 "Code" means the Internal Revenue Code of 1986, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.11 "Dissolution Event" has the meaning given to such term in Section 12.2 hereof. 1.1.12 "Entity" means any corporation, partnership, trust, limited liability company, or other entity. 1.1.13 "Financial Rights" means a Member's rights as a member of the LLC (a) to share in Net Income and Net Loss to the extent provided in this Agreement, and (b) to share in distributions to the extent provided in this Agreement. 1.1.14 "Governance Rights" means all of a Member's rights as a member of the LLC other than Financial Rights. 1.1.15 "Immediate Family" shall mean a Member's mother, father, brother, sister, son, daughter, son-in-law, daughter-in-law, grandson and granddaughter. 1.1.16 "LLC" means 99 Commissary, LLC, a Delaware limited liability company. 1.1.17 "Majority in Interest" and "majority in interest of the remaining Members" each mean Members (other than any Members excluded from the applicable vote, consent or other action by the terms of this Agreement or the Act) holding an interest in over 50% of the capital and profits of the LLC. 1.1.18 "Majority of the Membership Interests" and "majority of the voting power" each mean over 50% of the Membership Percentages (exclusive of any Membership Percentages excluded from the applicable vote, consent or other action by the terms of this Agreement or the Act). 2 1.1.19 "Managers" means the Chief Manager, Secretary and any other person appointed to be a "manager" as such term is used in the Act. 1.1.20 "Maximum Tax Liability" has the meaning given such term in Section 5.5 hereof. 1.1.21 "Members" means the persons who are, from time to time, admitted as members of the LLC pursuant to the Act and this Agreement and whose names are set forth on Exhibit A which is attached hereto and made part of this Agreement, as such Exhibit A may be amended from time to time. 1.1.22 "Membership Interest" means a Member's interest in the LLC, which when expressed as a percentage of all Membership Interests in the LLC shall be equal to such Member's Membership Percentage. 1.1.23 "Membership Percentage" means the percentage interest of a Member as shown on Exhibit A, as amended from time to time as provided in Section 4.5 hereof or as otherwise required by this Agreement, the Act, or the Code. 1.1.24 "Net Income" and "Net Loss," for each fiscal year or other period, means an amount equal to the LLC's taxable income or loss (including but not limited to any gain or loss to the LLC from any sale or disposition of all or any portion of the assets of the LLC) for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments: (i) Expenditures described in Section705(a)(2)(B) of the Code shall be included as an expense in the determination of Net Income and Net Loss; and (ii) Income exempt from taxation shall be included in the determination of Net Income and Net Loss. 1.1.25 "New Member" means any person other than 99 Restaurants of Massachusetts, a Massachusetts Business Trust. 1.1.26 "Successor" means a Member's executor, administrator, guardian, conservator, other legal representative, or successor or assign. 1.1.27 "Treasury Regulations" means proposed, temporary, and final regulations promulgated under the Code. 3 ARTICLE II. ORGANIZATION 2.1 FORMATION. On December 10, 2002, the LLC was formed by the filing of the Certificate of Formation in the Office of the Secretary of State of the State of Delaware. 2.2 ADOPTION OF AGREEMENT. The Member hereto hereby adopts this Agreement as the limited liability company agreement of the LLC, as the term "limited liability company agreement" is used in the Act, to set forth the rules, regulations, and provisions regarding the governance of the LLC, the conduct of its business, and the rights and privileges of its Members. 2.3 NAME. The name of the LLC shall be 99 Commissary, LLC. The LLC may adopt and conduct its business under such assumed or trade names as the Members may from time to time determine. The LLC shall file any assumed or fictitious name certificates as may be required to conduct business in any state. 2.4 PRINCIPAL PLACE OF BUSINESS. The initial registered agent and registered office of the LLC shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County. The principal executive office of the LLC shall be located at 3038 Sidco Drive, Davidson County, Nashville, Tennessee 37204, or such other place as the Members may from time to time determine. ARTICLE III. PURPOSE AND POWERS 3.1 PURPOSE. The purpose of the LLC shall be to engage in any lawful business permitted pursuant to the Act, as amended from time to time, or any successor provisions thereto. 3.2 POWERS. The LLC may exercise all powers that may be legally exercised by limited liability companies under the Act necessary or convenient to carry out its business and affairs and to effectuate the purpose described in Section 3.1 hereof. ARTICLE IV. CAPITAL CONTRIBUTIONS AND MEMBERSHIP INTERESTS 4.1 INITIAL CAPITAL CONTRIBUTION. Each Member shall be credited with having made an initial Capital Contribution to the LLC in cash and other property, tangible and intangible, in the amount set forth opposite such Member's name on Exhibit A hereto. 4.2 ADDITIONAL CONTRIBUTIONS. No Member shall be required to make any additional Capital Contribution. Members may make such additional Capital Contributions as may be approved from time to time by the Members. 4.3 WITHDRAWAL OR REDUCTION OF MEMBERS' CAPITAL CONTRIBUTIONS. No Member shall have the right to withdraw from the LLC except as provided in Section 12.3 hereof. A Member 4 shall not receive out of the LLC's property all or any part of such Member's Capital Contributions except as provided in Sections 5.7 and 12.4 hereof. 4.4 INTEREST AND PREFERENTIAL RIGHTS. No interest shall accrue on any Capital Contributions and no Member shall have any preferential rights with respect to distributions or upon dissolution of the LLC. 4.5 MEMBERSHIP INTERESTS AND AMENDMENTS TO EXHIBIT A. Each Member shall be credited with the Membership Interest (expressed as a percentage of all Membership Interests) and Capital Contribution set forth opposite such Member's name on Exhibit A. The amounts shown on Exhibit A with respect to Capital Contributions and Membership Interests shall from time to time be appropriately amended to reflect changes to such amounts as a result of any additional Capital Contributions by Members, any withdrawals or reductions in Capital Contributions, admission of any New Members to the LLC, or any Assignments of Membership Interests. Exhibit A shall also be amended from time to time to reflect any changes in the addresses of Members. ARTICLE V. ALLOCATION OF INCOME AND LOSSES; CASH DISTRIBUTIONS 5.1 CAPITAL ACCOUNTS. The LLC will maintain for each Member an account to be designated as such Member's "Capital Account." Each such Capital Account shall be credited (a) with the cash contributions of the respective Members, (b) with the fair market value of contributions of property by the respective Members (net of liabilities associated with such contributed property and assumed by the LLC), and (c) with the respective Member's share, determined as provided herein, of Net Income. Each Member's Capital Account shall be debited (a) with the respective Member's share, determined as provided herein, of Net Loss, (b) with the cash distributed to the respective Members, and (c) with the fair market value of all distributions of property to the respective Members (net of liabilities associated with such distributed property). The Capital Accounts shall be maintained in accordance with Section 1.704-1(b)(2)(iv) of the Treasury Regulations, and the items of income, profit, gain, expenditures, deductions, and losses that increase or decrease such capital accounts shall be those items that, pursuant to such Treasury Regulations, affect the balance of capital accounts. 5.2 ALLOCATION OF NET INCOME AND NET LOSS. Subject to Sections 5.3 and 5.4 hereof, Net Income or Net Loss of the LLC for each fiscal year, and all items of income, expense, and deduction entering into the determination of such Net Income or Net Loss, shall be allocated to the Members in proportion to their Membership Percentages. 5.3 SPECIAL ALLOCATIONS WITH RESPECT TO CONTRIBUTED OR REVALUED PROPERTY. If a Member contributes property to the LLC which has a difference between its tax basis and its fair market value on the date of its contribution, then all items of income, gain, loss, and deduction with respect to such contributed property shall be determined and allocated among the Members, and the Capital Accounts of the Members shall be determined in accordance with Section 704(c) of the Code, the Treasury Regulations thereunder, and Section 1.704-1(b) of the Treasury Regulations, so as to take into account the variation between the tax basis and fair market value 5 of such property at the time of its contribution. Furthermore, in the case of any required or optional revaluation of LLC property and corresponding adjustment of Capital Accounts, taxable income, gain, loss, and deduction with respect to such property shall be allocated among the Members in a manner that takes into account any variation between the adjusted tax basis of such property and its book value in the same manner as variations between tax basis and fair market value are taken into account under Section 704(c) of the Code in determining income, gain, loss, 5.4 ALLOCATIONS IN CASE OF ASSIGNMENT. Net Income or Net Loss allocable to any Member whose Membership Interest has been Assigned, in whole or in part, during any fiscal year shall be allocated among the persons who were the holders of such interests during such year in proportion to their respective holding periods, without separate determination of the results of LLC operations during such periods. Net Income or Net Loss attributable to a sale or other disposition of all or any portion of the assets of the LLC shall be allocated to those Members who were Members at the time of the occurrence of the disposition giving rise to such Net Income or Net Loss. 5.5 MANDATORY DISTRIBUTIONS. Unless all of the Members (excluding Financial Rights Holders) otherwise agree, the LLC shall distribute to each Member, no later than the forty-fifth day after the end of each quarter, an amount in cash equal to the Maximum Tax Liability for such Member for such quarter. To the extent there is not sufficient Available Cash Flow to distribute cash in the amount of the Maximum Tax Liability to each Member, the amount to be so distributed to the Members shall be reduced in proportion to their Membership Percentages so as to distribute no more than the total Available Cash Flow at the time of distribution. "Maximum Tax Liability" in respect of any Member for any quarter means an amount equal to the product of (x) the LLC's Net Income (as adjusted to the extent hereinafter provided) for such quarter, (y) a percentage equal to the then prevailing income tax rate applicable to individuals in the highest tax bracket for federal income tax purposes or, in the event a Member is an Entity subject to taxation, the income tax rate applicable to such Entity, and for state income tax purposes in the state having the highest applicable state income tax of any of the states in which any of the Members are subject to state income taxes and (z) a percentage equal to such Member's Membership Percentage. If there is a difference between the prevailing income and capital gains tax rates at either the federal or the state level, the Maximum Tax Liability shall be computed separately for ordinary income and capital gains, unless each of the Members otherwise agree. Income that is exempt from taxation shall not be included in the definition of Net Income for purposes of computing the Maximum Tax Liability. 5.6 DISTRIBUTION OF AVAILABLE CASH FLOW. In addition to the distributions provided for in Section 5.5 hereof, the LLC may, but is not obligated to, make current distributions out of Available Cash Flow as the Members may determine. Distributions shall be made to the Members in proportion to their respective Membership Percentages. 5.7 DISTRIBUTIONS UPON LIQUIDATION. Upon liquidation of the LLC, assets remaining after payment of all LLC debts and obligations in accordance with Section 18-804 of the Act shall be distributed in proportion to the Members' Membership Percentages. 5.8 CONSEQUENCES OF DISTRIBUTIONS. Upon the determination to distribute, remit, or pay funds in any manner expressly provided in this Article V, made in good faith, the Members 6 shall incur no liability on account of such distribution, even though such distribution may have resulted in the LLC retaining insufficient funds for the operation of its business, which insufficiency resulted in loss to the LLC or necessitated the borrowing of funds by the LLC. ARTICLE VI. MANAGEMENT BY MEMBERS 6.1 MANAGEMENT BY MEMBERS. The business and affairs of the LLC shall be managed by the Members. All powers to control the business and affairs of the LLC shall be exercised by or under the direction of the Members. 6.2 MUTUAL AGENCY OF THE MEMBERS. Each Member is an agent of the LLC for the purpose of its business, and the act of any Member, including the execution of any instrument in the name of the LLC, for apparently carrying on in the usual way the business of the LLC, shall bind the LLC, unless the Member so acting has in fact no authority to act for the LLC in the particular matter and the person with whom the Member is dealing has knowledge of the fact that such Member has no authority. An act of a Member which is not apparently for carrying on the business of the LLC in the usual way does not bind the LLC unless authorized by the Members as provided in this Agreement or the Certificate of Formation or as otherwise required by the Act. No action of a Member in contravention of such Member's authority shall bind the LLC to persons having knowledge of such restriction. 6.3 ACTIONS REQUIRING THE APPROVAL OF ALL OF THE MEMBERS. Unless authorized by all of the Members, no single Member or group of less than all of the Members shall have authority in the name of or on behalf of the LLC to: 6.3.1 dispose of the goodwill of all the business; 6.3.2 do any other act which would make it impossible to carry on the ordinary business of the LLC; 6.3.3 confess a judgment on behalf of the LLC; 6.3.4 submit a claim or liability to arbitration or reference; or 6.3.5 take any other action that would require the consent of all of the Members pursuant to this Agreement or the Act. 6.4 ACTIONS REQUIRING THE APPROVAL OF MEMBERS HOLDING A MAJORITY OF THE MEMBERSHIP INTERESTS. Unless authorized by Members holding at least a Majority of the Membership Interests, no single Member or group of Members shall have the authority in the name or on behalf of the LLC to: (i) sell, lease, exchange or otherwise dispose of any of the assets of the LLC or enter into any agreement to do the same, except for sales of assets in the ordinary course of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's 7 balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (ii) purchase, lease or otherwise acquire any assets, or enter into any agreement to do the same, except for acquisitions of assets in the ordinary course of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (iii) borrow money or incur indebtedness or other liabilities in excess of 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (iv) declare or make any distribution to Members except pursuant to Section 5.5 hereof; (v) enter into or agree to enter into any other transaction outside of the ordinary course of business of the LLC; or (vi) take any other action that would require the consent of the Members holding at least a Majority of the Membership Interests pursuant to this Agreement or the Act. 6.5 COMPENSATION AND REIMBURSEMENT. No Member shall have any right to compensation for any services performed on behalf of the LLC except as determined from time to time by Members holding at least a Majority of the Membership Interests. Notwithstanding the foregoing, a Member shall have the right to be reimbursed by the LLC for any out-of-pocket expenses incurred by such Member in connection with any services performed by the Member on behalf of the LLC. 6.6 NO EXCLUSIVE DUTY. Each Member may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have any right to share or participate in such other investments or activities of any other Member based on the fact that each are members of the LLC. No Member shall incur any liability to any other Member or the LLC as a result of engaging in any other business or venture. ARTICLE VII. MEETINGS OF MEMBERS AND ACTIONS ON WRITTEN CONSENT 7.1 MEETINGS. Meetings of the Members, for any purpose or purposes, may be called by the Chief Manager or any Member or Members holding, in the aggregate, 25% or more of the Membership Interests. 7.2 ACTION BY MEMBERS WITHOUT A MEETING. Action required or permitted to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken signed by all Members. Such written consent shall be filed with the minutes or records of the LLC. 8 7.3 PLACE OF MEETINGS; TELEPHONE MEETINGS. The Members may designate any place, either in or outside the State of Delaware, as the place of meetings for any meeting of the Members. If no designation is made, the place of meeting shall be the principal executive office of the LLC. A meeting may take place by telephone conference call or any other form of electronic communication through which the Members may simultaneously hear each other. Such meeting shall be deemed to be held at the principal executive office of the LLC or at the place properly named in the notice calling the meeting. 7.4 NOTICE OF MEETINGS. Written notice stating the place, day, and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than two days before the date of the meeting, either personally or by mail, by or at the direction of the person calling the meeting, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered as provided in Section 13.1 hereof. The business conducted at any meeting need not be limited to the matters referenced in the notice of the meeting. No notice shall be required for action by written consent pursuant to Section 7.2 hereof. 7.5 WAIVER OF NOTICE. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. Attendance by a Member at a meeting is a waiver of notice of such meeting, except if the Member objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and does not otherwise participate in the consideration of any matter at the meeting. 7.6 RECORD DATE. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the date on which notice of the meeting is mailed or the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 7.6, such determination shall apply to any adjournment thereof. 7.7 VOTING LIST. When a record date for any meeting has been set or any notice of a meeting has been mailed, the Secretary of the LLC shall prepare a list of names of all Members who are entitled to vote at the meeting and show the address of and Membership Interests held by each Member as reflected in the records of the LLC. Such list shall be available for inspection and copying by any Member, beginning two business days after notice of the meeting is given and continuing through the meeting at the LLC's principal executive office. Such list shall be identical to Exhibit A hereto, as amended from time to time, unless the Secretary prepares an alternative list. 7.8 QUORUM. Members holding at least a Majority of the Membership Interests, represented in person or by proxy, shall constitute a quorum at any meeting of Members except for any matter that requires the approval of all of the Members pursuant to the Act or this Agreement. 9 7.9 REQUIRED VOTE; MANNER OF ACTING. If a quorum is present, the affirmative vote of Members holding at least a Majority of the Membership Interests shall be the act of the Members, except as to matters as to which the consent of a lesser or a greater proportion of the Members is otherwise required by the Act or this Agreement. 7.10 PROXIES. At all meetings of Members, a Member may vote in person or by proxy executed in writing by a Member or by a duly authorized attorney-in-fact. Such proxy shall be filed with the LLC before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. ARTICLE VIII. MANAGERS 8.1 APPOINTMENT OF MANAGERS. The Members shall appoint a Chief Manager (which office may be designated "President" or "Chief Executive Officer" or such other designation as the Members may determine from time to time, but which officer shall in any event perform the functions of the "Chief Manager," and any references in this Agreement to the "Chief Manager" shall be deemed to be references to such officer) and a Secretary to serve as the Managers of the LLC. The initial Chief Manager shall be Gregory L. Burns. The initial Secretary shall be A. Chad Fitzhugh. The LLC shall have such additional Managers as may be appointed from time to time by the Members. 8.2 TERM; REMOVAL. The Managers shall serve for an indefinite term at the pleasure of the Members. A Manager may be removed from office at any time with or without cause by the Members. 8.3 DUTIES. 8.3.1 Chief Manager. The Chief Manager shall see that all orders and resolutions of the Members are carried into effect and shall perform such other duties as the Members may from time to time prescribe. 8.3.2 Secretary. The Secretary shall attend all meetings of the Members and shall be responsible for recording the minutes thereof. The Secretary shall have the responsibility of authenticating records of the LLC and receiving notices required to be sent to the Secretary and shall perform such other duties as the Members may from time to time prescribe. 8.4 RESIGNATION. Any Manager of the LLC may resign at any time by giving written notice to the Members. The resignation of any Manager shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 8.5 COMPENSATION AND REIMBURSEMENT. No Manager shall have any right to compensation for services performed on behalf of the LLC except as determined from time to time by the Members. Notwithstanding the foregoing, a Manager shall have the right to be 10 reimbursed by the LLC for any out-of-pocket expenses incurred by such Manager in connection with any services performed by such Manager on behalf of the LLC. 8.6 NO EXCLUSIVE DUTY. Each Manager may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have the right to share or participate in such other investments or activities of such Manager based on such Manager's status as a Manager of the LLC. No Manager shall incur any liability to any Member or the LLC as a result of engaging in any other business or venture. ARTICLE IX. INDEMNIFICATION 9.1 AUTHORITY TO INDEMNIFY. The LLC shall indemnify, and upon request may advance expenses to, any Member, Manager, employee, or agent of the LLC, or any person who is serving at the request of the LLC in any such capacity with another Entity, to the extent, consistent with public policy, permitted by applicable law. 9.2 INSURANCE. The LLC may purchase and maintain insurance on behalf of an individual who is or was a Manager, employee, independent contractor, or agent of the LLC or who, while a Manager, employee, independent contractor, or agent of the LLC, is or was serving at the request of the LLC as a manager, employee, independent contractor, agent, partner, or trustee of another foreign or domestic limited liability company, corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by such individual in that capacity or arising from such individual's status as a Manager, employee, independent contractor or agent of the LLC whether or not the LLC would have the power to indemnify such individual against the same liability as provided in Section 9.1 hereof. 9.3 NON-EXCLUSIVE RIGHT. The indemnification granted pursuant to or provided by this Article IX shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled, whether contained in this Article IX, the Certificate of Formation, in the Act, in a resolution of the Members, or an agreement providing for such indemnification. This Section 9.3 does not limit the LLC's power to pay or reimburse expenses incurred by any person in connection with his or her appearance as a witness in a proceeding at a time when he or she has not been named defendant or respondent to the proceeding. ARTICLE X. FISCAL MATTERS 10.1 BOOKS AND RECORDS. Full and accurate books and records of the LLC (including without limitation all information and records required by the Act) shall be maintained at its principal place of business showing all receipts and expenditures, assets and liabilities, profits and losses, and all other records necessary for recording the LLC's business and affairs. All Members shall have the right to inspect and copy the books and records of the LLC, during regular business hours, at the LLC's principal place of business, upon provision of notice in 11 writing by any Member to the LLC at least five business days before the date on which such Member desires to inspect and copy said books and records. 10.2 FISCAL YEAR. The fiscal year of the LLC shall be determined by the Members and, in the absence of such determination, shall end on the last Sunday in December of each year. 10.3 TAX STATUS; ELECTIONS. The Member acknowledges that at all times that two or more persons or entities hold equity interests in the LLC for federal income tax purposes (i) it is the intention of the LLC to be treated as a "partnership" for federal and all relevant state tax purposes and (ii) the LLC will be treated as a "partnership" for federal and all relevant state tax purposes and shall make all available elections to be so treated. Until such time, however, it is the intention of the Member that the LLC be disregarded for federal and all relevant state tax purposes and that the activities of the LLC be deemed to be activities of the Member for such purposes. All provisions of the LLC's Certificate of Formation and this Agreement are to be construed so as to preserve that tax status under those circumstances. In the event that the LLC is treated as a partnership for tax purposes in accordance with this Section 10.3, then within ninety (90) days after the end of each fiscal year, the LLC will cause to be delivered to each person who was a Member at any time during such fiscal year a Form K-1 and such other information, if any, with respect to the LLC as may be necessary for the preparation of each Member's federal, state or local income tax (or information) returns, including a statement showing each Member's share of income, gain or loss, and credits for the fiscal year. 10.4 BANK ACCOUNTS. All funds of the LLC shall be deposited in its name at the LLC's principal financial institution or other financial institutions approved by the Members. ARTICLE XI. RESTRICTIONS ON TRANSFER OF MEMBERSHIP INTERESTS AND ADMISSION OF NEW MEMBERS 11.1 TRANSFER OF MEMBERSHIP INTERESTS. A Member may not Assign all or any part of such Member's Membership Interest in the LLC (including any Financial Rights, Governance Rights, or other rights pertaining to a Membership Interest) to any person other than an Affiliate of such Member without the prior written consent of Members holding a Majority of the Membership Interests. 11.2 RESTRICTIONS ON ASSIGNMENT NOT UNREASONABLE. Each of the Members hereby agrees and acknowledges that the restrictions on Assignment contained in this Article XI are not unreasonable in view of the nature of the parties and their relationships to one another and the nature of the business of the LLC. 11.3 ADMISSION OF NEW MEMBERS. An Assignment to an Affiliate of a Member or effected in accordance with this Article XI shall become effective and the assignee shall become a New Member and entitled to the rights of a Member under this Agreement upon (a) executing a copy of this Agreement and agreeing to be bound hereby and (b) delivering such executed copy to the LLC in accordance with Section 13.1 hereof. Upon receipt of such executed copy, the LLC will cause Exhibit A to be amended appropriately and will deliver to all Members, 12 including the New Member, in accordance with Section 13.1 hereof, a copy of amended Exhibit A. 11.4 RIGHTS AND OBLIGATIONS OF FORMER MEMBERS. A Member who Assigns all of his, her, or its Membership Interest shall cease to be a Member; provided, however, that such former Member or any Successor shall remain liable to the LLC (a) for any obligations of such Member for wrongful distributions under Section 18-607 of the Act, and (b) pursuant to any contribution agreements with the LLC existing at the time of the Assignment of all such Membership Interest. ARTICLE XII. DISSOLUTION, WINDING UP, AND TERMINATION OF THE LLC'S EXISTENCE 12.1 TERM. The duration of the LLC shall be perpetual and shall continue until terminated in accordance with the provisions of this Agreement or the Act. 12.2 EVENTS CAUSING DISSOLUTION AND WINDING UP. The LLC shall be dissolved and its affairs wound up upon the occurrence of any of the following events (individually, a "Dissolution Event"): 12.2.1 at any time with the prior approval of Members holding two-thirds or more of the Membership Interests; or 12.2.2 as may be otherwise required by law. Upon the occurrence of a Dissolution Event, the LLC shall be terminated when the winding up of the LLC's affairs has been completed following dissolution. 12.3 WITHDRAWAL OF A MEMBER. Any Member may withdraw from the LLC at any time upon not less than ninety days' prior written notice to the LLC and each other Member. A withdrawal of a Member shall not cause a Dissolution Event unless the remaining Members determine to dissolve pursuant to Section 12.2.1. If the existence and business of the LLC is continued by the remaining Members after such withdrawal: a. such withdrawing Member shall have no Governance Rights with respect to the LLC, and the rights of such withdrawing Member shall be deemed to be that of an assignee of such withdrawing Member's Financial Rights owned prior to such withdrawal, once notice of such Member's withdrawal is given by such withdrawing Member; b. no Member shall be entitled to any distribution from the LLC as a result of such withdrawal; and c. a withdrawn Member shall remain liable to the LLC for any existing liability of such withdrawn Member for wrongful distributions and pursuant to any contribution agreements at the time of such withdrawal. 13 12.4 WINDING UP AFFAIRS ON DISSOLUTION. Upon dissolution of the LLC, the Managers or other persons required or permitted by law to carry out the winding up of the affairs of the LLC shall promptly notify all Members of such dissolution; shall wind up the affairs of the LLC; shall prepare and file all instruments or documents required by law to be filed to reflect the dissolution of the LLC; and, after collecting the debts and obligations owed to the LLC and after paying or providing for the payment of all liabilities and obligations of the LLC, shall distribute the assets of the LLC in accordance with Section 5.7 hereof. 12.5 WAIVER OF RIGHT TO PARTITION AND DECREE OF DISSOLUTION. As a material inducement to each Member to execute this Agreement, each Member covenants and represents to each other Member that, during the period beginning on the date of this Agreement, no Member, nor such Member's heirs, representatives, successors, transferees, or assigns, will attempt to make any partition whatever of the assets of the LLC or any interest therein whether now owned or hereafter acquired, and each Member waives all rights of partition provided by statute or principles of law or equity, including partition in kind or partition by sale. The Members agree that irreparable damage would be done to the goodwill and reputation of the LLC if any Member should bring an action in a court to dissolve the LLC. The Members agree that there are fair and just provisions for payment and liquidation of the interest of any Member in the LLC, and fair and just provisions to prevent a Member from selling or otherwise alienating his or her interest in the LLC. Accordingly, each Member hereby waives and renounces his, her or its right to such a court decree of dissolution or to seek the appointment by court of a liquidator or receiver for the LLC. ARTICLE XIII. GENERAL PROVISIONS 13.1 NOTICES. All notices and other communications required or permitted to be given in respect of this Agreement shall be in writing, and sent by facsimile, courier service, hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid). Written notice by the LLC to the Members is effective when mailed, if mailed and correctly addressed to the Member's address as reflected in the LLC's records. Written notice to the LLC may be addressed to the LLC's registered agent at its registered office or to the LLC's Secretary at the LLC's principal executive office. Written notice to the LLC is effective at the earliest of the following: (a) when received; (b) five days after its deposit in the United States mail, if correctly addressed and first class postage affixed thereon; or (c) on the date shown in the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. 13.2 INTEGRATION. This Agreement embodies the entire agreement and understanding among the Members relating to the formation and operation of the LLC and supersedes all prior agreements and understandings, if any, among and between the Members relating to the subject matter hereof. 13.3 APPLICABLE LAW. This Agreement and the rights of the Members shall be governed by and construed and enforced in accordance with the laws of the State of Delaware and specifically the Act. 14 13.4 SEVERABILITY. In case any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and any other application thereof shall not in any way be affected or impaired thereby. 13.5 BINDING EFFECT. Except as herein otherwise provided to the contrary, this Agreement shall be binding upon, and inure to the benefit of, the Members and their respective heirs, executors, administrators, successors, transferees and assigns. 13.6 TERMINOLOGY. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, shall include all other genders; and the singular shall include the plural, and vice versa. Titles and Articles are for convenience only and neither limit nor amplify the provisions of this Agreement itself. 13.7 AMENDMENT. This Agreement may be amended, modified, or supplemented in writing (a) with the consent of the Members holding a Majority of the Membership Interests except that any requirement that an action be approved by Members holding a percentage other than a Majority of the Membership Interests shall not be amended except with the consent of Members holding such other percentage of the Membership Interests, and (b) with respect to Exhibit A hereto, under the circumstances set forth in Section 4.5. No other written or oral agreement, understanding, instrument or writing other than this agreement or any amendment hereto shall constitute part of the limited liability company agreement of the LLC. 13.8 EXECUTION OF ADDITIONAL INSTRUMENTS. Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney, and other instruments necessary to comply with any laws, rules, or regulations. 13.9 WAIVERS. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. 13.10 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Members may have by law, statute, ordinance, or otherwise. 13.11 HEIRS, SUCCESSORS, AND ASSIGNS. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the Members hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns. 13.12 CREDITORS. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the LLC. 13.13 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 15 IN WITNESS WHEREOF, the undersigned hereby agrees, acknowledges and certifies that the foregoing Agreement constitutes the limited liability company agreement of 99 Commissary, LLC adopted by the Member of the LLC as of the 10th day of December, 2002. 99 RESTAURANTS OF MASSACHUSETTS, A MASSACHUSETTS BUSINESS TRUST By: /s/ Gregory L. Burns ------------------------------- Name: Gregory L. Burns Title: President and Trustee 16 EXHIBIT A
MEMBERS NAME AND ADDRESS CAPITAL CONTRIBUTION MEMBERSHIP PERCENTAGES ------------------------ -------------------- ---------------------- 99 Restaurants of Massachusetts, $1,000.00 100% a Massachusetts Business Trust 160 Olympia Avenue Woburn, Massachusetts 01801 TOTAL $1,000.00 100%
EX-3.24 24 g86000exv3w24.txt EX-3.24 CERTIFICATE OF FORMATION OF 99 RESTAURANTS EXHIBIT 3.24 CERTIFICATE OF FORMATION OF 99 RESTAURANTS, LLC This Certificate of Formation of 99 Restaurants, LLC is to be filed with the Delaware Secretary of State pursuant to the Delaware Limited Liability Company Act (the "Act"), Section 18-201. 1. The name of the limited liability company is 99 Restaurants, LLC. 2. The name, street and mailing address of the initial registered office and the registered agent for service of process of the limited liability company in the State of Delaware are as follows: The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 (New Castle County). 3. a. The limited liability company shall have the power to indemnify any person who has taken an action of management as a member, manager, employee or agent of the limited liability company, or any other person who is serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and any such indemnification may continue as to any person who has ceased to be a member, manager, employee, or agent and may inure to the benefit of the heirs, executors, and administrators of such a person. b. By action of the members, notwithstanding any interest of the managers in the action, the limited liability company may purchase and maintain insurance, in such amounts as the members deem appropriate, to protect any member, manager, employee, independent contractor or agent of the limited liability company or any other person who is or was serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) against liability asserted against him or incurred by him in any such capacity or arising out of his status as such (including, without limitation, expenses, judgments, fines, and amounts paid in settlement) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and whether or not the limited liability company would have the power or would be required to indemnify such person under the terms of any agreement or provision of its operating agreement or the Act. For purposes of this paragraph (b), "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan. Dated as of this 14th day of November, 2002. /s/ Derek S. Hughey ---------------------------------- Derek S. Hughey, Sole Organizer EX-3.25 25 g86000exv3w25.txt EX-3.25 OPERATING AGREEMENT OF 99 RESTAURANTS, LLC EXHIBIT 3.25 OPERATING AGREEMENT OF 99 RESTAURANTS, LLC OPERATING AGREEMENT OF 99 RESTAURANTS, LLC THIS OPERATING AGREEMENT is made and entered into as of the 14th day of November, 2002, by and among the persons listed on Exhibit A hereto (each, together with the other persons who may become members under the terms of this Agreement, a "Member" and collectively, the "Members"). W I T N E S S E T H: WHEREAS, the Member hereto desires to form a limited liability company under and pursuant to the Act (as defined below), to conduct certain business as a limited liability company, and to set forth the mutual rights and obligations of the Members in this Agreement; NOW, THEREFORE, in consideration of the mutual promises, covenants, and undertakings hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Members hereby agree as follows: ARTICLE I. DEFINITIONS 1.1 DEFINITIONS. As used herein the following terms have the indicated meanings: 1.1.1 "Act" means the Delaware Limited Liability Company Act, being Title 6, Sections 18-101 to 18-1109 of the Delaware Code Annotated, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.2 "Affiliate," with respect to any Entity, means (a) any other Entity, directly or indirectly, owning a 50% or greater ownership interest in such Entity; or (b) any other Entity in which such Entity has a 50% or greater ownership interest; or, (c) in the event a Member is a natural person, a member of such Member's Immediate Family or a trust for the benefit of the Member or a member of such Member's Immediate Family. 1.1.3 "Agreement" means this Operating Agreement, as amended from time to time. 1.1.4 "Assign" means to make an Assignment. 1.1.5 "Assignment" means any transfer, alienation, sale, conveyance, assignment, or other disposition of all or any part of an existing Membership Interest in the LLC, by operation of law or otherwise, including without limitation any gift, bequest, devise, hypothecation, mortgage, lien, pledge, encumbrance, or granting of a security interest. 1.1.6 "Available Cash Flow" means all cash, revenues, and funds received by the LLC, less the sum of the following to the extent paid or set aside by the LLC: (a) all principal and interest payments on indebtedness of the LLC and all other sums paid to lenders; (b) all cash expenditures incurred incident to the normal operation of the LLC's business; and (c) such reserves as the Members deem reasonably necessary to the proper operation of the LLC's business. 1.1.7 "Capital Account" in respect of any Member means the account established for that Member pursuant to Section 5.1 hereof, and as may be adjusted from time to time in accordance with this Agreement. 1.1.8 "Capital Contribution" shall mean any contribution to the capital of the LLC in cash or property by a Member whenever made. 1.1.9 "Certificate of Formation" means the Certificate of Formation of the LLC filed in the Office of the Secretary of State of the State of Delaware, as amended from time to time. 1.1.10 "Code" means the Internal Revenue Code of 1986, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.11 "Dissolution Event" has the meaning given to such term in Section 12.2 hereof. 1.1.12 "Entity" means any corporation, partnership, trust, limited liability company, or other entity. 1.1.13 "Financial Rights" means a Member's rights as a member of the LLC (a) to share in Net Income and Net Loss to the extent provided in this Agreement, and (b) to share in distributions to the extent provided in this Agreement. 1.1.14 "Governance Rights" means all of a Member's rights as a member of the LLC other than Financial Rights. 1.1.15 "Immediate Family" shall mean a Member's mother, father, brother, sister, son, daughter, son-in-law, daughter-in-law, grandson and granddaughter. 1.1.16 "LLC" means 99 Restaurants, LLC, a Delaware limited liability company. 1.1.17 "Majority in Interest" and "majority in interest of the remaining Members" each mean Members (other than any Members excluded from the applicable vote, consent or other action by the terms of this Agreement or the Act) holding an interest in over 50% of the capital and profits of the LLC. 1.1.18 "Majority of the Membership Interests" and "majority of the voting power" each mean over 50% of the Membership Percentages (exclusive of any Membership Percentages excluded from the applicable vote, consent or other action by the terms of this Agreement or the Act). 2 1.1.19 "Managers" means the Chief Manager, Secretary and any other person appointed to be a "manager" as such term is used in the Act. 1.1.20 "Maximum Tax Liability" has the meaning given such term in Section 5.5 hereof. 1.1.21 "Members" means the persons who are, from time to time, admitted as members of the LLC pursuant to the Act and this Agreement and whose names are set forth on Exhibit A which is attached hereto and made part of this Agreement, as such Exhibit A may be amended from time to time. 1.1.22 "Membership Interest" means a Member's interest in the LLC, which when expressed as a percentage of all Membership Interests in the LLC shall be equal to such Member's Membership Percentage. 1.1.23 "Membership Percentage" means the percentage interest of a Member as shown on Exhibit A, as amended from time to time as provided in Section 4.5 hereof or as otherwise required by this Agreement, the Act, or the Code. 1.1.24 "Net Income" and "Net Loss," for each fiscal year or other period, means an amount equal to the LLC's taxable income or loss (including but not limited to any gain or loss to the LLC from any sale or disposition of all or any portion of the assets of the LLC) for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments: (i) Expenditures described in Section705(a)(2)(B) of the Code shall be included as an expense in the determination of Net Income and Net Loss; and (ii) Income exempt from taxation shall be included in the determination of Net Income and Net Loss. 1.1.25 "New Member" means any person other than O'Charley's Management Company, Inc. 1.1.26 "Successor" means a Member's executor, administrator, guardian, conservator, other legal representative, or successor or assign. 1.1.27 "Treasury Regulations" means proposed, temporary, and final regulations promulgated under the Code. 3 ARTICLE II. ORGANIZATION 2.1 FORMATION. On November 14, 2002, the LLC was formed by the filing of the Certificate of Formation in the Office of the Secretary of State of the State of Delaware. 2.2 ADOPTION OF AGREEMENT. The Member hereto hereby adopts this Agreement as the limited liability company agreement of the LLC, as the term "limited liability company agreement" is used in the Act, to set forth the rules, regulations, and provisions regarding the governance of the LLC, the conduct of its business, and the rights and privileges of its Members. 2.3 NAME. The name of the LLC shall be 99 Restaurants, LLC. The LLC may adopt and conduct its business under such assumed or trade names as the Members may from time to time determine. The LLC shall file any assumed or fictitious name certificates as may be required to conduct business in any state. 2.4 PRINCIPAL PLACE OF BUSINESS. The initial registered agent and registered office of the LLC shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County. The principal executive office of the LLC shall be located at 3038 Sidco Drive, Davidson County, Nashville, Tennessee 37204, or such other place as the Members may from time to time determine. ARTICLE III. PURPOSE AND POWERS 3.1 PURPOSE. The purpose of the LLC shall be to engage in any lawful business permitted pursuant to the Act, as amended from time to time, or any successor provisions thereto. 3.2 POWERS. The LLC may exercise all powers that may be legally exercised by limited liability companies under the Act necessary or convenient to carry out its business and affairs and to effectuate the purpose described in Section 3.1 hereof. ARTICLE IV. CAPITAL CONTRIBUTIONS AND MEMBERSHIP INTERESTS 4.1 INITIAL CAPITAL CONTRIBUTION. Each Member shall be credited with having made an initial Capital Contribution to the LLC in cash and other property, tangible and intangible, in the amount set forth opposite such Member's name on Exhibit A hereto. 4.2 ADDITIONAL CONTRIBUTIONS. No Member shall be required to make any additional Capital Contribution. Members may make such additional Capital Contributions as may be approved from time to time by the Members. 4.3 WITHDRAWAL OR REDUCTION OF MEMBERS' CAPITAL CONTRIBUTIONS. No Member shall have the right to withdraw from the LLC except as provided in Section 12.3 hereof. A Member 4 shall not receive out of the LLC's property all or any part of such Member's Capital Contributions except as provided in Sections 5.7 and 12.4 hereof. 4.4 INTEREST AND PREFERENTIAL RIGHTS. No interest shall accrue on any Capital Contributions and no Member shall have any preferential rights with respect to distributions or upon dissolution of the LLC. 4.5 MEMBERSHIP INTERESTS AND AMENDMENTS TO EXHIBIT A. Each Member shall be credited with the Membership Interest (expressed as a percentage of all Membership Interests) and Capital Contribution set forth opposite such Member's name on Exhibit A. The amounts shown on Exhibit A with respect to Capital Contributions and Membership Interests shall from time to time be appropriately amended to reflect changes to such amounts as a result of any additional Capital Contributions by Members, any withdrawals or reductions in Capital Contributions, admission of any New Members to the LLC, or any Assignments of Membership Interests. Exhibit A shall also be amended from time to time to reflect any changes in the addresses of Members. ARTICLE V. ALLOCATION OF INCOME AND LOSSES; CASH DISTRIBUTIONS 5.1 CAPITAL ACCOUNTS. The LLC will maintain for each Member an account to be designated as such Member's "Capital Account." Each such Capital Account shall be credited (a) with the cash contributions of the respective Members, (b) with the fair market value of contributions of property by the respective Members (net of liabilities associated with such contributed property and assumed by the LLC), and (c) with the respective Member's share, determined as provided herein, of Net Income. Each Member's Capital Account shall be debited (a) with the respective Member's share, determined as provided herein, of Net Loss, (b) with the cash distributed to the respective Members, and (c) with the fair market value of all distributions of property to the respective Members (net of liabilities associated with such distributed property). The Capital Accounts shall be maintained in accordance with Section 1.704-1(b)(2)(iv) of the Treasury Regulations, and the items of income, profit, gain, expenditures, deductions, and losses that increase or decrease such capital accounts shall be those items that, pursuant to such Treasury Regulations, affect the balance of capital accounts. 5.2 ALLOCATION OF NET INCOME AND NET LOSS. Subject to Sections 5.3 and 5.4, hereof, Net Income or Net Loss of the LLC for each fiscal year, and all items of income, expense, and deduction entering into the determination of such Net Income or Net Loss, shall be allocated to the Members in proportion to their Membership Percentages. 5.3 SPECIAL ALLOCATIONS WITH RESPECT TO CONTRIBUTED OR REVALUED PROPERTY. If a Member contributes property to the LLC which has a difference between its tax basis and its fair market value on the date of its contribution, then all items of income, gain, loss, and deduction with respect to such contributed property shall be determined and allocated among the Members, and the Capital Accounts of the Members shall be determined in accordance with Section 704(c) of the Code, the Treasury Regulations thereunder, and Section 1.704-1(b) of the Treasury Regulations, so as to take into account the variation between the tax basis and fair market value 5 of such property at the time of its contribution. Furthermore, in the case of any required or optional revaluation of LLC property and corresponding adjustment of Capital Accounts, taxable income, gain, loss, and deduction with respect to such property shall be allocated among the Members in a manner that takes into account any variation between the adjusted tax basis of such property and its book value in the same manner as variations between tax basis and fair market value are taken into account under Section 704(c) of the Code in determining income, gain, loss, 5.4 ALLOCATIONS IN CASE OF ASSIGNMENT. Net Income or Net Loss allocable to any Member whose Membership Interest has been Assigned, in whole or in part, during any fiscal year shall be allocated among the persons who were the holders of such interests during such year in proportion to their respective holding periods, without separate determination of the results of LLC operations during such periods. Net Income or Net Loss attributable to a sale or other disposition of all or any portion of the assets of the LLC shall be allocated to those Members who were Members at the time of the occurrence of the disposition giving rise to such Net Income or Net Loss. 5.5 MANDATORY DISTRIBUTIONS. Unless all of the Members (excluding Financial Rights Holders) otherwise agree, the LLC shall distribute to each Member, no later than the forty-fifth day after the end of each quarter, an amount in cash equal to the Maximum Tax Liability for such Member for such quarter. To the extent there is not sufficient Available Cash Flow to distribute cash in the amount of the Maximum Tax Liability to each Member, the amount to be so distributed to the Members shall be reduced in proportion to their Membership Percentages so as to distribute no more than the total Available Cash Flow at the time of distribution. "Maximum Tax Liability" in respect of any Member for any quarter means an amount equal to the product of (x) the LLC's Net Income (as adjusted to the extent hereinafter provided) for such quarter, (y) a percentage equal to the then prevailing income tax rate applicable to individuals in the highest tax bracket for federal income tax purposes or, in the event a Member is an Entity subject to taxation, the income tax rate applicable to such Entity, and for state income tax purposes in the state having the highest applicable state income tax of any of the states in which any of the Members are subject to state income taxes and (z) a percentage equal to such Member's Membership Percentage. If there is a difference between the prevailing income and capital gains tax rates at either the federal or the state level, the Maximum Tax Liability shall be computed separately for ordinary income and capital gains, unless each of the Members otherwise agree. Income that is exempt from taxation shall not be included in the definition of Net Income for purposes of computing the Maximum Tax Liability. 5.6 DISTRIBUTION OF AVAILABLE CASH FLOW. In addition to the distributions provided for in Section 5.5 hereof, the LLC may, but is not obligated to, make current distributions out of Available Cash Flow as the Members may determine. Distributions shall be made to the Members in proportion to their respective Membership Percentages. 5.7 DISTRIBUTIONS UPON LIQUIDATION. Upon liquidation of the LLC, assets remaining after payment of all LLC debts and obligations in accordance with Section 18-804 of the Act shall be distributed in proportion to the Members' Membership Percentages. 5.8 CONSEQUENCES OF DISTRIBUTIONS. Upon the determination to distribute, remit, or pay funds in any manner expressly provided in this Article V, made in good faith, the Members 6 shall incur no liability on account of such distribution, even though such distribution may have resulted in the LLC retaining insufficient funds for the operation of its business, which insufficiency resulted in loss to the LLC or necessitated the borrowing of funds by the LLC. ARTICLE VI. MANAGEMENT BY MEMBERS 6.1 MANAGEMENT BY MEMBERS. The business and affairs of the LLC shall be managed by the Members. All powers to control the business and affairs of the LLC shall be exercised by or under the direction of the Members. 6.2 MUTUAL AGENCY OF THE MEMBERS. Each Member is an agent of the LLC for the purpose of its business, and the act of any Member, including the execution of any instrument in the name of the LLC, for apparently carrying on in the usual way the business of the LLC, shall bind the LLC, unless the Member so acting has in fact no authority to act for the LLC in the particular matter and the person with whom the Member is dealing has knowledge of the fact that such Member has no authority. An act of a Member which is not apparently for carrying on the business of the LLC in the usual way does not bind the LLC unless authorized by the Members as provided in this Agreement or the Certificate of Formation or as otherwise required by the Act. No action of a Member in contravention of such Member's authority shall bind the LLC to persons having knowledge of such restriction. 6.3 ACTIONS REQUIRING THE APPROVAL OF ALL OF THE MEMBERS. Unless authorized by all of the Members, no single Member or group of less than all of the Members shall have authority in the name of or on behalf of the LLC to: 6.3.1 dispose of the goodwill of all the business; 6.3.2 do any other act which would make it impossible to carry on the ordinary business of the LLC; 6.3.3 confess a judgment on behalf of the LLC; 6.3.4 submit a claim or liability to arbitration or reference; or 6.3.5 take any other action that would require the consent of all of the Members pursuant to this Agreement or the Act. 6.4 ACTIONS REQUIRING THE APPROVAL OF MEMBERS HOLDING A MAJORITY OF THE MEMBERSHIP INTERESTS. Unless authorized by Members holding at least a Majority of the Membership Interests, no single Member or group of Members shall have the authority in the name or on behalf of the LLC to: (i) sell, lease, exchange or otherwise dispose of any of the assets of the LLC or enter into any agreement to do the same, except for sales of assets in the ordinary course of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's 7 balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (ii) purchase, lease or otherwise acquire any assets, or enter into any agreement to do the same, except for acquisitions of assets in the ordinary course of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (iii) borrow money or incur indebtedness or other liabilities in excess of 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (iv) declare or make any distribution to Members except pursuant to Section 5.5 hereof; (v) enter into or agree to enter into any other transaction outside of the ordinary course of business of the LLC; or (vi) take any other action that would require the consent of the Members holding at least a Majority of the Membership Interests pursuant to this Agreement or the Act. 6.5 COMPENSATION AND REIMBURSEMENT. No Member shall have any right to compensation for any services performed on behalf of the LLC except as determined from time to time by Members holding at least a Majority of the Membership Interests. Notwithstanding the foregoing, a Member shall have the right to be reimbursed by the LLC for any out-of-pocket expenses incurred by such Member in connection with any services performed by the Member on behalf of the LLC. 6.6 NO EXCLUSIVE DUTY. Each Member may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have any right to share or participate in such other investments or activities of any other Member based on the fact that each are members of the LLC. No Member shall incur any liability to any other Member or the LLC as a result of engaging in any other business or venture. ARTICLE VII. MEETINGS OF MEMBERS AND ACTIONS ON WRITTEN CONSENT 7.1 MEETINGS. Meetings of the Members, for any purpose or purposes, may be called by the Chief Manager or any Member or Members holding, in the aggregate, 25% or more of the Membership Interests. 7.2 ACTION BY MEMBERS WITHOUT A MEETING. Action required or permitted to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken signed by all Members. Such written consent shall be filed with the minutes or records of the LLC. 8 7.3 PLACE OF MEETINGS; TELEPHONE MEETINGS. The Members may designate any place, either in or outside the State of Delaware, as the place of meetings for any meeting of the Members. If no designation is made, the place of meeting shall be the principal executive office of the LLC. A meeting may take place by telephone conference call or any other form of electronic communication through which the Members may simultaneously hear each other. Such meeting shall be deemed to be held at the principal executive office of the LLC or at the place properly named in the notice calling the meeting. 7.4 NOTICE OF MEETINGS. Written notice stating the place, day, and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than two days before the date of the meeting, either personally or by mail, by or at the direction of the person calling the meeting, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered as provided in Section 13.1 hereof. The business conducted at any meeting need not be limited to the matters referenced in the notice of the meeting. No notice shall be required for action by written consent pursuant to Section 7.2 hereof. 7.5 WAIVER OF NOTICE. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. Attendance by a Member at a meeting is a waiver of notice of such meeting, except if the Member objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and does not otherwise participate in the consideration of any matter at the meeting. 7.6 RECORD DATE. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the date on which notice of the meeting is mailed or the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 7.6, such determination shall apply to any adjournment thereof. 7.7 VOTING LIST. When a record date for any meeting has been set or any notice of a meeting has been mailed, the Secretary of the LLC shall prepare a list of names of all Members who are entitled to vote at the meeting and show the address of and Membership Interests held by each Member as reflected in the records of the LLC. Such list shall be available for inspection and copying by any Member, beginning two business days after notice of the meeting is given and continuing through the meeting at the LLC's principal executive office. Such list shall be identical to Exhibit A hereto, as amended from time to time, unless the Secretary prepares an alternative list. 7.8 QUORUM. Members holding at least a Majority of the Membership Interests, represented in person or by proxy, shall constitute a quorum at any meeting of Members except for any matter that requires the approval of all of the Members pursuant to the Act or this Agreement. 9 7.9 REQUIRED VOTE; MANNER OF ACTING. If a quorum is present, the affirmative vote of Members holding at least a Majority of the Membership Interests shall be the act of the Members, except as to matters as to which the consent of a lesser or a greater proportion of the Members is otherwise required by the Act or this Agreement. 7.10 PROXIES. At all meetings of Members, a Member may vote in person or by proxy executed in writing by a Member or by a duly authorized attorney-in-fact. Such proxy shall be filed with the LLC before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. ARTICLE VIII. MANAGERS 8.1 APPOINTMENT OF MANAGERS. The Members shall appoint a Chief Manager (which office may be designated "President" or "Chief Executive Officer" or such other designation as the Members may determine from time to time, but which officer shall in any event perform the functions of the "Chief Manager," and any references in this Agreement to the "Chief Manager" shall be deemed to be references to such officer) and a Secretary to serve as the Managers of the LLC. The initial Chief Manager shall be Gregory L. Burns. The initial Secretary shall be A. Chad Fitzhugh. The LLC shall have such additional Managers as may be appointed from time to time by the Members. 8.2 TERM; REMOVAL. The Managers shall serve for an indefinite term at the pleasure of the Members. A Manager may be removed from office at any time with or without cause by the Members. 8.3 DUTIES. 8.3.1 Chief Manager. The Chief Manager shall see that all orders and resolutions of the Members are carried into effect and shall perform such other duties as the Members may from time to time prescribe. 8.3.2 Secretary. The Secretary shall attend all meetings of the Members and shall be responsible for recording the minutes thereof. The Secretary shall have the responsibility of authenticating records of the LLC and receiving notices required to be sent to the Secretary and shall perform such other duties as the Members may from time to time prescribe. 8.4 RESIGNATION. Any Manager of the LLC may resign at any time by giving written notice to the Members. The resignation of any Manager shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 8.5 COMPENSATION AND REIMBURSEMENT. No Manager shall have any right to compensation for services performed on behalf of the LLC except as determined from time to time by the Members. Notwithstanding the foregoing, a Manager shall have the right to be 10 reimbursed by the LLC for any out-of-pocket expenses incurred by such Manager in connection with any services performed by such Manager on behalf of the LLC. 8.6 NO EXCLUSIVE DUTY. Each Manager may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have the right to share or participate in such other investments or activities of such Manager based on such Manager's status as a Manager of the LLC. No Manager shall incur any liability to any Member or the LLC as a result of engaging in any other business or venture. ARTICLE IX. INDEMNIFICATION 9.1 AUTHORITY TO INDEMNIFY. The LLC shall indemnify, and upon request may advance expenses to, any Member, Manager, employee, or agent of the LLC, or any person who is serving at the request of the LLC in any such capacity with another Entity, to the extent, consistent with public policy, permitted by applicable law. 9.2 INSURANCE. The LLC may purchase and maintain insurance on behalf of an individual who is or was a Manager, employee, independent contractor, or agent of the LLC or who, while a Manager, employee, independent contractor, or agent of the LLC, is or was serving at the request of the LLC as a manager, employee, independent contractor, agent, partner, or trustee of another foreign or domestic limited liability company, corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by such individual in that capacity or arising from such individual's status as a Manager, employee, independent contractor or agent of the LLC whether or not the LLC would have the power to indemnify such individual against the same liability as provided in Section 9.1 hereof. 9.3 NON-EXCLUSIVE RIGHT. The indemnification granted pursuant to or provided by this Article IX shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled, whether contained in this Article IX, the Certificate of Formation, in the Act, in a resolution of the Members, or an agreement providing for such indemnification. This Section 9.3 does not limit the LLC's power to pay or reimburse expenses incurred by any person in connection with his or her appearance as a witness in a proceeding at a time when he or she has not been named defendant or respondent to the proceeding. ARTICLE X. FISCAL MATTERS 10.1 BOOKS AND RECORDS. Full and accurate books and records of the LLC (including without limitation all information and records required by the Act) shall be maintained at its principal place of business showing all receipts and expenditures, assets and liabilities, profits and losses, and all other records necessary for recording the LLC's business and affairs. All Members shall have the right to inspect and copy the books and records of the LLC, during regular business hours, at the LLC's principal place of business, upon provision of notice in 11 writing by any Member to the LLC at least five business days before the date on which such Member desires to inspect and copy said books and records. 10.2 FISCAL YEAR. The fiscal year of the LLC shall be determined by the Members and, in the absence of such determination, shall end on the last Sunday in December of each year. 10.3 TAX STATUS; ELECTIONS. The Member acknowledges that at all times that two or more persons or entities hold equity interests in the LLC for federal income tax purposes (i) it is the intention of the LLC to be treated as a "partnership" for federal and all relevant state tax purposes and (ii) the LLC will be treated as a "partnership" for federal and all relevant state tax purposes and shall make all available elections to be so treated. Until such time, however, it is the intention of the Member that the LLC be disregarded for federal and all relevant state tax purposes and that the activities of the LLC be deemed to be activities of the Member for such purposes. All provisions of the LLC's Certificate of Formation and this Agreement are to be construed so as to preserve that tax status under those circumstances. In the event that the LLC is treated as a partnership for tax purposes in accordance with this Section 10.3, then within ninety (90) days after the end of each fiscal year, the LLC will cause to be delivered to each person who was a Member at any time during such fiscal year a Form K-1 and such other information, if any, with respect to the LLC as may be necessary for the preparation of each Member's federal, state or local income tax (or information) returns, including a statement showing each Member's share of income, gain or loss, and credits for the fiscal year. 10.4 BANK ACCOUNTS. All funds of the LLC shall be deposited in its name at the LLC's principal financial institution or other financial institutions approved by the Members. ARTICLE XI. RESTRICTIONS ON TRANSFER OF MEMBERSHIP INTERESTS AND ADMISSION OF NEW MEMBERS 11.1 TRANSFER OF MEMBERSHIP INTERESTS. A Member may not Assign all or any part of such Member's Membership Interest in the LLC (including any Financial Rights, Governance Rights, or other rights pertaining to a Membership Interest) to any person other than an Affiliate of such Member without the prior written consent of Members holding a Majority of the Membership Interests. 11.2 RESTRICTIONS ON ASSIGNMENT NOT UNREASONABLE. Each of the Members hereby agrees and acknowledges that the restrictions on Assignment contained in this Article XI are not unreasonable in view of the nature of the parties and their relationships to one another and the nature of the business of the LLC. 11.3 ADMISSION OF NEW MEMBERS. An Assignment to an Affiliate of a Member or effected in accordance with this Article XI shall become effective and the assignee shall become a New Member and entitled to the rights of a Member under this Agreement upon (a) executing a copy of this Agreement and agreeing to be bound hereby and (b) delivering such executed copy to the LLC in accordance with Section 13.1 hereof. Upon receipt of such executed copy, the LLC will cause Exhibit A to be amended appropriately and will deliver to all Members, 12 including the New Member, in accordance with Section 13.1 hereof, a copy of amended Exhibit A. 11.4 RIGHTS AND OBLIGATIONS OF FORMER MEMBERS. A Member who Assigns all of his, her, or its Membership Interest shall cease to be a Member; provided, however, that such former Member or any Successor shall remain liable to the LLC (a) for any obligations of such Member for wrongful distributions under Section 18-607 of the Act, and (b) pursuant to any contribution agreements with the LLC existing at the time of the Assignment of all such Membership Interest. ARTICLE XII. DISSOLUTION, WINDING UP, AND TERMINATION OF THE LLC'S EXISTENCE 12.1 TERM. The duration of the LLC shall be perpetual and shall continue until terminated in accordance with the provisions of this Agreement or the Act. 12.2 EVENTS CAUSING DISSOLUTION AND WINDING UP. The LLC shall be dissolved and its affairs wound up upon the occurrence of any of the following events (individually, a "Dissolution Event"): 12.2.1 at any time with the prior approval of Members holding two-thirds or more of the Membership Interests; or 12.2.2 as may be otherwise required by law. Upon the occurrence of a Dissolution Event, the LLC shall be terminated when the winding up of the LLC's affairs has been completed following dissolution. 12.3 WITHDRAWAL OF A MEMBER. Any Member may withdraw from the LLC at any time upon not less than ninety days' prior written notice to the LLC and each other Member. A withdrawal of a Member shall not cause a Dissolution Event unless the remaining Members determine to dissolve pursuant to Section 12.2.1. If the existence and business of the LLC is continued by the remaining Members after such withdrawal: a. such withdrawing Member shall have no Governance Rights with respect to the LLC, and the rights of such withdrawing Member shall be deemed to be that of an assignee of such withdrawing Member's Financial Rights owned prior to such withdrawal, once notice of such Member's withdrawal is given by such withdrawing Member; b. no Member shall be entitled to any distribution from the LLC as a result of such withdrawal; and c. a withdrawn Member shall remain liable to the LLC for any existing liability of such withdrawn Member for wrongful distributions and pursuant to any contribution agreements at the time of such withdrawal. 13 12.4 WINDING UP AFFAIRS ON DISSOLUTION. Upon dissolution of the LLC, the Managers or other persons required or permitted by law to carry out the winding up of the affairs of the LLC shall promptly notify all Members of such dissolution; shall wind up the affairs of the LLC; shall prepare and file all instruments or documents required by law to be filed to reflect the dissolution of the LLC; and, after collecting the debts and obligations owed to the LLC and after paying or providing for the payment of all liabilities and obligations of the LLC, shall distribute the assets of the LLC in accordance with Section 5.7 hereof. 12.5 WAIVER OF RIGHT TO PARTITION AND DECREE OF DISSOLUTION. As a material inducement to each Member to execute this Agreement, each Member covenants and represents to each other Member that, during the period beginning on the date of this Agreement, no Member, nor such Member's heirs, representatives, successors, transferees, or assigns, will attempt to make any partition whatever of the assets of the LLC or any interest therein whether now owned or hereafter acquired, and each Member waives all rights of partition provided by statute or principles of law or equity, including partition in kind or partition by sale. The Members agree that irreparable damage would be done to the goodwill and reputation of the LLC if any Member should bring an action in a court to dissolve the LLC. The Members agree that there are fair and just provisions for payment and liquidation of the interest of any Member in the LLC, and fair and just provisions to prevent a Member from selling or otherwise alienating his or her interest in the LLC. Accordingly, each Member hereby waives and renounces his, her or its right to such a court decree of dissolution or to seek the appointment by court of a liquidator or receiver for the LLC. ARTICLE XIII. GENERAL PROVISIONS 13.1 NOTICES. All notices and other communications required or permitted to be given in respect of this Agreement shall be in writing, and sent by facsimile, courier service, hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid). Written notice by the LLC to the Members is effective when mailed, if mailed and correctly addressed to the Member's address as reflected in the LLC's records. Written notice to the LLC may be addressed to the LLC's registered agent at its registered office or to the LLC's Secretary at the LLC's principal executive office. Written notice to the LLC is effective at the earliest of the following: (a) when received; (b) five days after its deposit in the United States mail, if correctly addressed and first class postage affixed thereon; or (c) on the date shown in the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. 13.2 INTEGRATION. This Agreement embodies the entire agreement and understanding among the Members relating to the formation and operation of the LLC and supersedes all prior agreements and understandings, if any, among and between the Members relating to the subject matter hereof. 13.3 APPLICABLE LAW. This Agreement and the rights of the Members shall be governed by and construed and enforced in accordance with the laws of the State of Delaware and specifically the Act. 14 13.4 SEVERABILITY. In case any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and any other application thereof shall not in any way be affected or impaired thereby. 13.5 BINDING EFFECT. Except as herein otherwise provided to the contrary, this Agreement shall be binding upon, and inure to the benefit of, the Members and their respective heirs, executors, administrators, successors, transferees and assigns. 13.6 TERMINOLOGY. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, shall include all other genders; and the singular shall include the plural, and vice versa. Titles and Articles are for convenience only and neither limit nor amplify the provisions of this Agreement itself. 13.7 AMENDMENT. This Agreement may be amended, modified, or supplemented in writing (a) with the consent of the Members holding a Majority of the Membership Interests except that any requirement that an action be approved by Members holding a percentage other than a Majority of the Membership Interests shall not be amended except with the consent of Members holding such other percentage of the Membership Interests, and (b) with respect to Exhibit A hereto, under the circumstances set forth in Section 4.5. No other written or oral agreement, understanding, instrument or writing other than this agreement or any amendment hereto shall constitute part of the limited liability company agreement of the LLC. 13.8 EXECUTION OF ADDITIONAL INSTRUMENTS. Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney, and other instruments necessary to comply with any laws, rules, or regulations. 13.9 WAIVERS. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. 13.10 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Members may have by law, statute, ordinance, or otherwise. 13.11 HEIRS, SUCCESSORS, AND ASSIGNS. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the Members hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns. 13.12 CREDITORS. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the LLC. 13.13 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 15 IN WITNESS WHEREOF, the undersigned hereby agrees, acknowledges and certifies that the foregoing Agreement constitutes the limited liability company agreement of 99 Restaurants, LLC adopted by the Member of the LLC as of the 14th day of November, 2002. O'CHARLEY'S MANAGEMENT COMPANY, INC. By: /s/ Gregory L. Burns --------------------- Name: Gregory L. Burns Title: President 16 EXHIBIT A
MEMBERS NAME AND ADDRESS CAPITAL CONTRIBUTION MEMBERSHIP PERCENTAGES ------------------------ -------------------- ---------------------- ~~O'Charley's Management Company, Inc. $1,000.00 100% 3038 Sidco Drive Nashville, Tennessee 37204 TOTAL $1,000.00 100%~~
EX-3.26 26 g86000exv3w26.txt EX-3.26 CERTIFICATE OF FORMATION OF 99 RESTAURANTS EXHIBIT 3.26 CERTIFICATE OF FORMATION OF 99 RESTAURANTS OF BOSTON, LLC This Certificate of Formation of 99 Restaurants of Boston, LLC is to be filed with the Delaware Secretary of State pursuant to the Delaware Limited Liability Company Act (the "Act"), Section 18-201. 1. The name of the limited liability company is 99 Restaurants of Boston, LLC. 2. The name, street and mailing address of the initial registered office and the registered agent for service of process of the limited liability company in the State of Delaware are as follows: The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 (New Castle County). 3. a. The limited liability company shall have the power to indemnify any person who has taken an action of management as a member, manager, employee or agent of the limited liability company, or any other person who is serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and any such indemnification may continue as to any person who has ceased to be a member, manager, employee, or agent and may inure to the benefit of the heirs, executors, and administrators of such a person. b. By action of the members, notwithstanding any interest of the managers in the action, the limited liability company may purchase and maintain insurance, in such amounts as the members deem appropriate, to protect any member, manager, employee, independent contractor or agent of the limited liability company or any other person who is or was serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) against liability asserted against him or incurred by him in any such capacity or arising out of his status as such (including, without limitation, expenses, judgments, fines, and amounts paid in settlement) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and whether or not the limited liability company would have the power or would be required to indemnify such person under the terms of any agreement or provision of its operating agreement or the Act. For purposes of this paragraph (b), "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan. Dated as of this 19th day of November, 2002. /s/ J. James Jenkins, Jr. ------------------------------------- J. James Jenkins, Jr., Sole Organizer EX-3.27 27 g86000exv3w27.txt EX-3.27 OP. AGMT. OF 99 RESTAURANTS OF BOSTON, LLC EXHIBIT 3.27 OPERATING AGREEMENT OF 99 RESTAURANTS OF BOSTON, LLC OPERATING AGREEMENT OF 99 RESTAURANTS OF BOSTON, LLC THIS OPERATING AGREEMENT is made and entered into as of the 2nd day of December, 2002, by and among the persons listed on Exhibit A hereto (each, together with the other persons who may become members under the terms of this Agreement, a "Member" and collectively, the "Members"). W I T N E S S E T H: WHEREAS, the Member hereto desires to form a limited liability company under and pursuant to the Act (as defined below), to conduct certain business as a limited liability company, and to set forth the mutual rights and obligations of the Members in this Agreement; NOW, THEREFORE, in consideration of the mutual promises, covenants, and undertakings hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Members hereby agree as follows: ARTICLE I. DEFINITIONS 1.1 DEFINITIONS. As used herein the following terms have the indicated meanings: 1.1.1 "Act" means the Delaware Limited Liability Company Act, being Title 6, Sections 18-101 to 18-1109 of the Delaware Code Annotated, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.2 "Affiliate," with respect to any Entity, means (a) any other Entity, directly or indirectly, owning a 50% or greater ownership interest in such Entity; or (b) any other Entity in which such Entity has a 50% or greater ownership interest; or, (c) in the event a Member is a natural person, a member of such Member's Immediate Family or a trust for the benefit of the Member or a member of such Member's Immediate Family. 1.1.3 "Agreement" means this Operating Agreement, as amended from time to time. 1.1.4 "Assign" means to make an Assignment. 1.1.5 "Assignment" means any transfer, alienation, sale, conveyance, assignment, or other disposition of all or any part of an existing Membership Interest in the LLC, by operation of law or otherwise, including without limitation any gift, bequest, devise, hypothecation, mortgage, lien, pledge, encumbrance, or granting of a security interest. 1.1.6 "Available Cash Flow" means all cash, revenues, and funds received by the LLC, less the sum of the following to the extent paid or set aside by the LLC: (a) all principal and interest payments on indebtedness of the LLC and all other sums paid to lenders; (b) all cash expenditures incurred incident to the normal operation of the LLC's business; and (c) such reserves as the Members deem reasonably necessary to the proper operation of the LLC's business. 1.1.7 "Capital Account" in respect of any Member means the account established for that Member pursuant to Section 5.1 hereof, and as may be adjusted from time to time in accordance with this Agreement. 1.1.8 "Capital Contribution" shall mean any contribution to the capital of the LLC in cash or property by a Member whenever made. 1.1.9 "Certificate of Formation" means the Certificate of Formation of the LLC filed in the Office of the Secretary of State of the State of Delaware, as amended from time to time. 1.1.10 "Code" means the Internal Revenue Code of 1986, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.11 "Dissolution Event" has the meaning given to such term in Section 12.2 hereof. 1.1.12 "Entity" means any corporation, partnership, trust, limited liability company, or other entity. 1.1.13 "Financial Rights" means a Member's rights as a member of the LLC (a) to share in Net Income and Net Loss to the extent provided in this Agreement, and (b) to share in distributions to the extent provided in this Agreement. 1.1.14 "Governance Rights" means all of a Member's rights as a member of the LLC other than Financial Rights. 1.1.15 "Immediate Family" shall mean a Member's mother, father, brother, sister, son, daughter, son-in-law, daughter-in-law, grandson and granddaughter. 1.1.16 "LLC" means 99 Restaurants of Boston, LLC, a Delaware limited liability company. 1.1.17 "Majority in Interest" and "majority in interest of the remaining Members" each mean Members (other than any Members excluded from the applicable vote, consent or other action by the terms of this Agreement or the Act) holding an interest in over 50% of the capital and profits of the LLC. 1.1.18 "Majority of the Membership Interests" and "majority of the voting power" each mean over 50% of the Membership Percentages (exclusive of any Membership Percentages excluded from the applicable vote, consent or other action by the terms of this Agreement or the Act). 2 1.1.19 "Managers" means the Chief Manager, Secretary and any other person appointed to be a "manager" as such term is used in the Act. 1.1.20 "Maximum Tax Liability" has the meaning given such term in Section 5.5 hereof. 1.1.21 "Members" means the persons who are, from time to time, admitted as members of the LLC pursuant to the Act and this Agreement and whose names are set forth on Exhibit A which is attached hereto and made part of this Agreement, as such Exhibit A may be amended from time to time. 1.1.22 "Membership Interest" means a Member's interest in the LLC, which when expressed as a percentage of all Membership Interests in the LLC shall be equal to such Member's Membership Percentage. 1.1.23 "Membership Percentage" means the percentage interest of a Member as shown on Exhibit A, as amended from time to time as provided in Section 4.5 hereof or as otherwise required by this Agreement, the Act, or the Code. 1.1.24 "Net Income" and "Net Loss," for each fiscal year or other period, means an amount equal to the LLC's taxable income or loss (including but not limited to any gain or loss to the LLC from any sale or disposition of all or any portion of the assets of the LLC) for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments: (i) Expenditures described in Section705(a)(2)(B) of the Code shall be included as an expense in the determination of Net Income and Net Loss; and (ii) Income exempt from taxation shall be included in the determination of Net Income and Net Loss. 1.1.25 "New Member" means any person other than 99 Restaurants of Massachusetts, a Massachusetts Business Trust. 1.1.26 "Successor" means a Member's executor, administrator, guardian, conservator, other legal representative, or successor or assign. 1.1.27 "Treasury Regulations" means proposed, temporary, and final regulations promulgated under the Code. 3 ARTICLE II. ORGANIZATION 2.1 FORMATION. On November 18, 2002, the LLC was formed by the filing of the Certificate of Formation in the Office of the Secretary of State of the State of Delaware. 2.2 ADOPTION OF AGREEMENT. The Member hereto hereby adopts this Agreement as the limited liability company agreement of the LLC, as the term "limited liability company agreement" is used in the Act, to set forth the rules, regulations, and provisions regarding the governance of the LLC, the conduct of its business, and the rights and privileges of its Members. 2.3 NAME. The name of the LLC shall be 99 Restaurants of Boston, LLC. The LLC may adopt and conduct its business under such assumed or trade names as the Members may from time to time determine. The LLC shall file any assumed or fictitious name certificates as may be required to conduct business in any state. 2.4 PRINCIPAL PLACE OF BUSINESS. The initial registered agent and registered office of the LLC shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County. The principal executive office of the LLC shall be located at 3038 Sidco Drive, Davidson County, Nashville, Tennessee 37204, or such other place as the Members may from time to time determine. ARTICLE III. PURPOSE AND POWERS 3.1 PURPOSE. The purpose of the LLC shall be to engage in any lawful business permitted pursuant to the Act, as amended from time to time, or any successor provisions thereto. 3.2 POWERS. The LLC may exercise all powers that may be legally exercised by limited liability companies under the Act necessary or convenient to carry out its business and affairs and to effectuate the purpose described in Section 3.1 hereof. ARTICLE IV. CAPITAL CONTRIBUTIONS AND MEMBERSHIP INTERESTS 4.1 INITIAL CAPITAL CONTRIBUTION. Each Member shall be credited with having made an initial Capital Contribution to the LLC in cash and other property, tangible and intangible, in the amount set forth opposite such Member's name on Exhibit A hereto. 4.2 ADDITIONAL CONTRIBUTIONS. No Member shall be required to make any additional Capital Contribution. Members may make such additional Capital Contributions as may be approved from time to time by the Members. 4.3 WITHDRAWAL OR REDUCTION OF MEMBERS' CAPITAL CONTRIBUTIONS. No Member shall have the right to withdraw from the LLC except as provided in Section 12.3 hereof. A Member 4 shall not receive out of the LLC's property all or any part of such Member's Capital Contributions except as provided in Sections 5.7 and 12.4 hereof. 4.4 INTEREST AND PREFERENTIAL RIGHTS. No interest shall accrue on any Capital Contributions and no Member shall have any preferential rights with respect to distributions or upon dissolution of the LLC. 4.5 MEMBERSHIP INTERESTS AND AMENDMENTS TO EXHIBIT A. Each Member shall be credited with the Membership Interest (expressed as a percentage of all Membership Interests) and Capital Contribution set forth opposite such Member's name on Exhibit A. The amounts shown on Exhibit A with respect to Capital Contributions and Membership Interests shall from time to time be appropriately amended to reflect changes to such amounts as a result of any additional Capital Contributions by Members, any withdrawals or reductions in Capital Contributions, admission of any New Members to the LLC, or any Assignments of Membership Interests. Exhibit A shall also be amended from time to time to reflect any changes in the addresses of Members. ARTICLE V. ALLOCATION OF INCOME AND LOSSES; CASH DISTRIBUTIONS 5.1 CAPITAL ACCOUNTS. The LLC will maintain for each Member an account to be designated as such Member's "Capital Account." Each such Capital Account shall be credited (a) with the cash contributions of the respective Members, (b) with the fair market value of contributions of property by the respective Members (net of liabilities associated with such contributed property and assumed by the LLC), and (c) with the respective Member's share, determined as provided herein, of Net Income. Each Member's Capital Account shall be debited (a) with the respective Member's share, determined as provided herein, of Net Loss, (b) with the cash distributed to the respective Members, and (c) with the fair market value of all distributions of property to the respective Members (net of liabilities associated with such distributed property). The Capital Accounts shall be maintained in accordance with Section 1.704-1(b)(2)(iv) of the Treasury Regulations, and the items of income, profit, gain, expenditures, deductions, and losses that increase or decrease such capital accounts shall be those items that, pursuant to such Treasury Regulations, affect the balance of capital accounts. 5.2 ALLOCATION OF NET INCOME AND NET LOSS. Subject to Sections 5.3 and 5.4, hereof, Net Income or Net Loss of the LLC for each fiscal year, and all items of income, expense, and deduction entering into the determination of such Net Income or Net Loss, shall be allocated to the Members in proportion to their Membership Percentages. 5.3 SPECIAL ALLOCATIONS WITH RESPECT TO CONTRIBUTED OR REVALUED PROPERTY. If a Member contributes property to the LLC which has a difference between its tax basis and its fair market value on the date of its contribution, then all items of income, gain, loss, and deduction with respect to such contributed property shall be determined and allocated among the Members, and the Capital Accounts of the Members shall be determined in accordance with Section 704(c) of the Code, the Treasury Regulations thereunder, and Section 1.704-1(b) of the Treasury Regulations, so as to take into account the variation between the tax basis and fair market value 5 of such property at the time of its contribution. Furthermore, in the case of any required or optional revaluation of LLC property and corresponding adjustment of Capital Accounts, taxable income, gain, loss, and deduction with respect to such property shall be allocated among the Members in a manner that takes into account any variation between the adjusted tax basis of such property and its book value in the same manner as variations between tax basis and fair market value are taken into account under Section 704(c) of the Code in determining income, gain, loss, 5.4 ALLOCATIONS IN CASE OF ASSIGNMENT. Net Income or Net Loss allocable to any Member whose Membership Interest has been Assigned, in whole or in part, during any fiscal year shall be allocated among the persons who were the holders of such interests during such year in proportion to their respective holding periods, without separate determination of the results of LLC operations during such periods. Net Income or Net Loss attributable to a sale or other disposition of all or any portion of the assets of the LLC shall be allocated to those Members who were Members at the time of the occurrence of the disposition giving rise to such Net Income or Net Loss. 5.5 MANDATORY DISTRIBUTIONS. Unless all of the Members (excluding Financial Rights Holders) otherwise agree, the LLC shall distribute to each Member, no later than the forty-fifth day after the end of each quarter, an amount in cash equal to the Maximum Tax Liability for such Member for such quarter. To the extent there is not sufficient Available Cash Flow to distribute cash in the amount of the Maximum Tax Liability to each Member, the amount to be so distributed to the Members shall be reduced in proportion to their Membership Percentages so as to distribute no more than the total Available Cash Flow at the time of distribution. "Maximum Tax Liability" in respect of any Member for any quarter means an amount equal to the product of (x) the LLC's Net Income (as adjusted to the extent hereinafter provided) for such quarter, (y) a percentage equal to the then prevailing income tax rate applicable to individuals in the highest tax bracket for federal income tax purposes or, in the event a Member is an Entity subject to taxation, the income tax rate applicable to such Entity, and for state income tax purposes in the state having the highest applicable state income tax of any of the states in which any of the Members are subject to state income taxes and (z) a percentage equal to such Member's Membership Percentage. If there is a difference between the prevailing income and capital gains tax rates at either the federal or the state level, the Maximum Tax Liability shall be computed separately for ordinary income and capital gains, unless each of the Members otherwise agree. Income that is exempt from taxation shall not be included in the definition of Net Income for purposes of computing the Maximum Tax Liability. 5.6 DISTRIBUTION OF AVAILABLE CASH FLOW. In addition to the distributions provided for in Section 5.5 hereof, the LLC may, but is not obligated to, make current distributions out of Available Cash Flow as the Members may determine. Distributions shall be made to the Members in proportion to their respective Membership Percentages. 5.7 DISTRIBUTIONS UPON LIQUIDATION. Upon liquidation of the LLC, assets remaining after payment of all LLC debts and obligations in accordance with Section 18-804 of the Act shall be distributed in proportion to the Members' Membership Percentages. 5.8 CONSEQUENCES OF DISTRIBUTIONS. Upon the determination to distribute, remit, or pay funds in any manner expressly provided in this Article V, made in good faith, the Members 6 shall incur no liability on account of such distribution, even though such distribution may have resulted in the LLC retaining insufficient funds for the operation of its business, which insufficiency resulted in loss to the LLC or necessitated the borrowing of funds by the LLC. ARTICLE VI. MANAGEMENT BY MEMBERS 6.1 MANAGEMENT BY MEMBERS. The business and affairs of the LLC shall be managed by the Members. All powers to control the business and affairs of the LLC shall be exercised by or under the direction of the Members. 6.2 MUTUAL AGENCY OF THE MEMBERS. Each Member is an agent of the LLC for the purpose of its business, and the act of any Member, including the execution of any instrument in the name of the LLC, for apparently carrying on in the usual way the business of the LLC, shall bind the LLC, unless the Member so acting has in fact no authority to act for the LLC in the particular matter and the person with whom the Member is dealing has knowledge of the fact that such Member has no authority. An act of a Member which is not apparently for carrying on the business of the LLC in the usual way does not bind the LLC unless authorized by the Members as provided in this Agreement or the Certificate of Formation or as otherwise required by the Act. No action of a Member in contravention of such Member's authority shall bind the LLC to persons having knowledge of such restriction. 6.3 ACTIONS REQUIRING THE APPROVAL OF ALL OF THE MEMBERS. Unless authorized by all of the Members, no single Member or group of less than all of the Members shall have authority in the name of or on behalf of the LLC to: 6.3.1 dispose of the goodwill of all the business; 6.3.2 do any other act which would make it impossible to carry on the ordinary business of the LLC; 6.3.3 confess a judgment on behalf of the LLC; 6.3.4 submit a claim or liability to arbitration or reference; or 6.3.5 take any other action that would require the consent of all of the Members pursuant to this Agreement or the Act. 6.4 ACTIONS REQUIRING THE APPROVAL OF MEMBERS HOLDING A MAJORITY OF THE MEMBERSHIP INTERESTS. Unless authorized by Members holding at least a Majority of the Membership Interests, no single Member or group of Members shall have the authority in the name or on behalf of the LLC to: (i) sell, lease, exchange or otherwise dispose of any of the assets of the LLC or enter into any agreement to do the same, except for sales of assets in the ordinary course of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's 7 balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (ii) purchase, lease or otherwise acquire any assets, or enter into any agreement to do the same, except for acquisitions of assets in the ordinary course of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (iii) borrow money or incur indebtedness or other liabilities in excess of 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (iv) declare or make any distribution to Members except pursuant to Section 5.5 hereof; (v) enter into or agree to enter into any other transaction outside of the ordinary course of business of the LLC; or (vi) take any other action that would require the consent of the Members holding at least a Majority of the Membership Interests pursuant to this Agreement or the Act. 6.5 COMPENSATION AND REIMBURSEMENT. No Member shall have any right to compensation for any services performed on behalf of the LLC except as determined from time to time by Members holding at least a Majority of the Membership Interests. Notwithstanding the foregoing, a Member shall have the right to be reimbursed by the LLC for any out-of-pocket expenses incurred by such Member in connection with any services performed by the Member on behalf of the LLC. 6.6 NO EXCLUSIVE DUTY. Each Member may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have any right to share or participate in such other investments or activities of any other Member based on the fact that each are members of the LLC. No Member shall incur any liability to any other Member or the LLC as a result of engaging in any other business or venture. ARTICLE VII. MEETINGS OF MEMBERS AND ACTIONS ON WRITTEN CONSENT 7.1 MEETINGS. Meetings of the Members, for any purpose or purposes, may be called by the Chief Manager or any Member or Members holding, in the aggregate, 25% or more of the Membership Interests. 7.2 ACTION BY MEMBERS WITHOUT A MEETING. Action required or permitted to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken signed by all Members. Such written consent shall be filed with the minutes or records of the LLC. 8 7.3 PLACE OF MEETINGS; TELEPHONE MEETINGS. The Members may designate any place, either in or outside the State of Delaware, as the place of meetings for any meeting of the Members. If no designation is made, the place of meeting shall be the principal executive office of the LLC. A meeting may take place by telephone conference call or any other form of electronic communication through which the Members may simultaneously hear each other. Such meeting shall be deemed to be held at the principal executive office of the LLC or at the place properly named in the notice calling the meeting. 7.4 NOTICE OF MEETINGS. Written notice stating the place, day, and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than two days before the date of the meeting, either personally or by mail, by or at the direction of the person calling the meeting, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered as provided in Section 13.1 hereof. The business conducted at any meeting need not be limited to the matters referenced in the notice of the meeting. No notice shall be required for action by written consent pursuant to Section 7.2 hereof. 7.5 WAIVER OF NOTICE. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. Attendance by a Member at a meeting is a waiver of notice of such meeting, except if the Member objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and does not otherwise participate in the consideration of any matter at the meeting. 7.6 RECORD DATE. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the date on which notice of the meeting is mailed or the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 7.6, such determination shall apply to any adjournment thereof. 7.7 VOTING LIST. When a record date for any meeting has been set or any notice of a meeting has been mailed, the Secretary of the LLC shall prepare a list of names of all Members who are entitled to vote at the meeting and show the address of and Membership Interests held by each Member as reflected in the records of the LLC. Such list shall be available for inspection and copying by any Member, beginning two business days after notice of the meeting is given and continuing through the meeting at the LLC's principal executive office. Such list shall be identical to Exhibit A hereto, as amended from time to time, unless the Secretary prepares an alternative list. 7.8 QUORUM. Members holding at least a Majority of the Membership Interests, represented in person or by proxy, shall constitute a quorum at any meeting of Members except for any matter that requires the approval of all of the Members pursuant to the Act or this Agreement. 9 7.9 REQUIRED VOTE; MANNER OF ACTING. If a quorum is present, the affirmative vote of Members holding at least a Majority of the Membership Interests shall be the act of the Members, except as to matters as to which the consent of a lesser or a greater proportion of the Members is otherwise required by the Act or this Agreement. 7.10 PROXIES. At all meetings of Members, a Member may vote in person or by proxy executed in writing by a Member or by a duly authorized attorney-in-fact. Such proxy shall be filed with the LLC before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. ARTICLE VIII. MANAGERS 8.1 APPOINTMENT OF MANAGERS. The Members shall appoint a Chief Manager (which office may be designated "President" or "Chief Executive Officer" or such other designation as the Members may determine from time to time, but which officer shall in any event perform the functions of the "Chief Manager," and any references in this Agreement to the "Chief Manager" shall be deemed to be references to such officer) and a Secretary to serve as the Managers of the LLC. The initial Chief Manager shall be Gregory L. Burns. The initial Secretary shall be A. Chad Fitzhugh. The LLC shall have such additional Managers as may be appointed from time to time by the Members. 8.2 TERM; REMOVAL. The Managers shall serve for an indefinite term at the pleasure of the Members. A Manager may be removed from office at any time with or without cause by the Members. 8.3 DUTIES. 8.3.1 Chief Manager. The Chief Manager shall see that all orders and resolutions of the Members are carried into effect and shall perform such other duties as the Members may from time to time prescribe. 8.3.2 Secretary. The Secretary shall attend all meetings of the Members and shall be responsible for recording the minutes thereof. The Secretary shall have the responsibility of authenticating records of the LLC and receiving notices required to be sent to the Secretary and shall perform such other duties as the Members may from time to time prescribe. 8.4 RESIGNATION. Any Manager of the LLC may resign at any time by giving written notice to the Members. The resignation of any Manager shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 8.5 COMPENSATION AND REIMBURSEMENT. No Manager shall have any right to compensation for services performed on behalf of the LLC except as determined from time to time by the Members. Notwithstanding the foregoing, a Manager shall have the right to be 10 reimbursed by the LLC for any out-of-pocket expenses incurred by such Manager in connection with any services performed by such Manager on behalf of the LLC. 8.6 NO EXCLUSIVE DUTY. Each Manager may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have the right to share or participate in such other investments or activities of such Manager based on such Manager's status as a Manager of the LLC. No Manager shall incur any liability to any Member or the LLC as a result of engaging in any other business or venture. ARTICLE IX. INDEMNIFICATION 9.1 AUTHORITY TO INDEMNIFY. The LLC shall indemnify, and upon request may advance expenses to, any Member, Manager, employee, or agent of the LLC, or any person who is serving at the request of the LLC in any such capacity with another Entity, to the extent, consistent with public policy, permitted by applicable law. 9.2 INSURANCE. The LLC may purchase and maintain insurance on behalf of an individual who is or was a Manager, employee, independent contractor, or agent of the LLC or who, while a Manager, employee, independent contractor, or agent of the LLC, is or was serving at the request of the LLC as a manager, employee, independent contractor, agent, partner, or trustee of another foreign or domestic limited liability company, corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by such individual in that capacity or arising from such individual's status as a Manager, employee, independent contractor or agent of the LLC whether or not the LLC would have the power to indemnify such individual against the same liability as provided in Section 9.1 hereof. 9.3 NON-EXCLUSIVE RIGHT. The indemnification granted pursuant to or provided by this Article IX shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled, whether contained in this Article IX, the Certificate of Formation, in the Act, in a resolution of the Members, or an agreement providing for such indemnification. This Section 9.3 does not limit the LLC's power to pay or reimburse expenses incurred by any person in connection with his or her appearance as a witness in a proceeding at a time when he or she has not been named defendant or respondent to the proceeding. ARTICLE X. FISCAL MATTERS 10.1 BOOKS AND RECORDS. Full and accurate books and records of the LLC (including without limitation all information and records required by the Act) shall be maintained at its principal place of business showing all receipts and expenditures, assets and liabilities, profits and losses, and all other records necessary for recording the LLC's business and affairs. All Members shall have the right to inspect and copy the books and records of the LLC, during regular business hours, at the LLC's principal place of business, upon provision of notice in 11 writing by any Member to the LLC at least five business days before the date on which such Member desires to inspect and copy said books and records. 10.2 FISCAL YEAR. The fiscal year of the LLC shall be determined by the Members and, in the absence of such determination, shall end on the last Sunday in December of each year. 10.3 TAX STATUS; ELECTIONS. The Member acknowledges that at all times that two or more persons or entities hold equity interests in the LLC for federal income tax purposes (i) it is the intention of the LLC to be treated as a "partnership" for federal and all relevant state tax purposes and (ii) the LLC will be treated as a "partnership" for federal and all relevant state tax purposes and shall make all available elections to be so treated. Until such time, however, it is the intention of the Member that the LLC be disregarded for federal and all relevant state tax purposes and that the activities of the LLC be deemed to be activities of the Member for such purposes. All provisions of the LLC's Certificate of Formation and this Agreement are to be construed so as to preserve that tax status under those circumstances. In the event that the LLC is treated as a partnership for tax purposes in accordance with this Section 10.3, then within ninety (90) days after the end of each fiscal year, the LLC will cause to be delivered to each person who was a Member at any time during such fiscal year a Form K-1 and such other information, if any, with respect to the LLC as may be necessary for the preparation of each Member's federal, state or local income tax (or information) returns, including a statement showing each Member's share of income, gain or loss, and credits for the fiscal year. 10.4 BANK ACCOUNTS. All funds of the LLC shall be deposited in its name at the LLC's principal financial institution or other financial institutions approved by the Members. ARTICLE XI. RESTRICTIONS ON TRANSFER OF MEMBERSHIP INTERESTS AND ADMISSION OF NEW MEMBERS 11.1 TRANSFER OF MEMBERSHIP INTERESTS. A Member may not Assign all or any part of such Member's Membership Interest in the LLC (including any Financial Rights, Governance Rights, or other rights pertaining to a Membership Interest) to any person other than an Affiliate of such Member without the prior written consent of Members holding a Majority of the Membership Interests. 11.2 RESTRICTIONS ON ASSIGNMENT NOT UNREASONABLE. Each of the Members hereby agrees and acknowledges that the restrictions on Assignment contained in this Article XI are not unreasonable in view of the nature of the parties and their relationships to one another and the nature of the business of the LLC. 11.3 ADMISSION OF NEW MEMBERS. An Assignment to an Affiliate of a Member or effected in accordance with this Article XI shall become effective and the assignee shall become a New Member and entitled to the rights of a Member under this Agreement upon (a) executing a copy of this Agreement and agreeing to be bound hereby and (b) delivering such executed copy to the LLC in accordance with Section 13.1 hereof. Upon receipt of such executed copy, the LLC will cause Exhibit A to be amended appropriately and will deliver to all Members, 12 including the New Member, in accordance with Section 13.1 hereof, a copy of amended Exhibit A. 11.4 RIGHTS AND OBLIGATIONS OF FORMER MEMBERS. A Member who Assigns all of his, her, or its Membership Interest shall cease to be a Member; provided, however, that such former Member or any Successor shall remain liable to the LLC (a) for any obligations of such Member for wrongful distributions under Section 18-607 of the Act, and (b) pursuant to any contribution agreements with the LLC existing at the time of the Assignment of all such Membership Interest. ARTICLE XII. DISSOLUTION, WINDING UP, AND TERMINATION OF THE LLC'S EXISTENCE 12.1 TERM. The duration of the LLC shall be perpetual and shall continue until terminated in accordance with the provisions of this Agreement or the Act. 12.2 EVENTS CAUSING DISSOLUTION AND WINDING UP. The LLC shall be dissolved and its affairs wound up upon the occurrence of any of the following events (individually, a "Dissolution Event"): 12.2.1 at any time with the prior approval of Members holding two-thirds or more of the Membership Interests; or 12.2.2 as may be otherwise required by law. Upon the occurrence of a Dissolution Event, the LLC shall be terminated when the winding up of the LLC's affairs has been completed following dissolution. 12.3 WITHDRAWAL OF A MEMBER. Any Member may withdraw from the LLC at any time upon not less than ninety days' prior written notice to the LLC and each other Member. A withdrawal of a Member shall not cause a Dissolution Event unless the remaining Members determine to dissolve pursuant to Section 12.2.1. If the existence and business of the LLC is continued by the remaining Members after such withdrawal: a. such withdrawing Member shall have no Governance Rights with respect to the LLC, and the rights of such withdrawing Member shall be deemed to be that of an assignee of such withdrawing Member's Financial Rights owned prior to such withdrawal, once notice of such Member's withdrawal is given by such withdrawing Member; b. no Member shall be entitled to any distribution from the LLC as a result of such withdrawal; and c. a withdrawn Member shall remain liable to the LLC for any existing liability of such withdrawn Member for wrongful distributions and pursuant to any contribution agreements at the time of such withdrawal. 13 12.4 WINDING UP AFFAIRS ON DISSOLUTION. Upon dissolution of the LLC, the Managers or other persons required or permitted by law to carry out the winding up of the affairs of the LLC shall promptly notify all Members of such dissolution; shall wind up the affairs of the LLC; shall prepare and file all instruments or documents required by law to be filed to reflect the dissolution of the LLC; and, after collecting the debts and obligations owed to the LLC and after paying or providing for the payment of all liabilities and obligations of the LLC, shall distribute the assets of the LLC in accordance with Section 5.7 hereof. 12.5 WAIVER OF RIGHT TO PARTITION AND DECREE OF DISSOLUTION. As a material inducement to each Member to execute this Agreement, each Member covenants and represents to each other Member that, during the period beginning on the date of this Agreement, no Member, nor such Member's heirs, representatives, successors, transferees, or assigns, will attempt to make any partition whatever of the assets of the LLC or any interest therein whether now owned or hereafter acquired, and each Member waives all rights of partition provided by statute or principles of law or equity, including partition in kind or partition by sale. The Members agree that irreparable damage would be done to the goodwill and reputation of the LLC if any Member should bring an action in a court to dissolve the LLC. The Members agree that there are fair and just provisions for payment and liquidation of the interest of any Member in the LLC, and fair and just provisions to prevent a Member from selling or otherwise alienating his or her interest in the LLC. Accordingly, each Member hereby waives and renounces his, her or its right to such a court decree of dissolution or to seek the appointment by court of a liquidator or receiver for the LLC. ARTICLE XIII. GENERAL PROVISIONS 13.1 NOTICES. All notices and other communications required or permitted to be given in respect of this Agreement shall be in writing, and sent by facsimile, courier service, hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid). Written notice by the LLC to the Members is effective when mailed, if mailed and correctly addressed to the Member's address as reflected in the LLC's records. Written notice to the LLC may be addressed to the LLC's registered agent at its registered office or to the LLC's Secretary at the LLC's principal executive office. Written notice to the LLC is effective at the earliest of the following: (a) when received; (b) five days after its deposit in the United States mail, if correctly addressed and first class postage affixed thereon; or (c) on the date shown in the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. 13.2 INTEGRATION. This Agreement embodies the entire agreement and understanding among the Members relating to the formation and operation of the LLC and supersedes all prior agreements and understandings, if any, among and between the Members relating to the subject matter hereof. 13.3 APPLICABLE LAW. This Agreement and the rights of the Members shall be governed by and construed and enforced in accordance with the laws of the State of Delaware and specifically the Act. 14 13.4 SEVERABILITY. In case any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and any other application thereof shall not in any way be affected or impaired thereby. 13.5 BINDING EFFECT. Except as herein otherwise provided to the contrary, this Agreement shall be binding upon, and inure to the benefit of, the Members and their respective heirs, executors, administrators, successors, transferees and assigns. 13.6 TERMINOLOGY. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, shall include all other genders; and the singular shall include the plural, and vice versa. Titles and Articles are for convenience only and neither limit nor amplify the provisions of this Agreement itself. 13.7 AMENDMENT. This Agreement may be amended, modified, or supplemented in writing (a) with the consent of the Members holding a Majority of the Membership Interests except that any requirement that an action be approved by Members holding a percentage other than a Majority of the Membership Interests shall not be amended except with the consent of Members holding such other percentage of the Membership Interests, and (b) with respect to Exhibit A hereto, under the circumstances set forth in Section 4.5. No other written or oral agreement, understanding, instrument or writing other than this agreement or any amendment hereto shall constitute part of the limited liability company agreement of the LLC. 13.8 EXECUTION OF ADDITIONAL INSTRUMENTS. Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney, and other instruments necessary to comply with any laws, rules, or regulations. 13.9 WAIVERS. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. 13.10 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Members may have by law, statute, ordinance, or otherwise. 13.11 HEIRS, SUCCESSORS, AND ASSIGNS. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the Members hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns. 13.12 CREDITORS. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the LLC. 13.13 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 15 IN WITNESS WHEREOF, the undersigned hereby agrees, acknowledges and certifies that the foregoing Agreement constitutes the limited liability company agreement of 99 Restaurants of Boston, LLC adopted by the Member of the LLC as of the 2nd day of December, 2002. 99 RESTAURANTS OF MASSACHUSETTS, A MASSACHUSETTS BUSINESS TRUST By: /s/ Gregory L. Burns --------------------------------- Name: Gregory L. Burns Title: President and Trustee 16 EXHIBIT A
MEMBERS NAME AND ADDRESS CAPITAL CONTRIBUTION MEMBERSHIP PERCENTAGES ------------------------ -------------------- ---------------------- 99 Restaurants of Massachusetts, $ 1,000.00 100% a Massachusetts Business Trust 160 Olympia Avenue Woburn, Massachusetts 01801 TOTAL $ 1,000.00 100%
EX-3.28 28 g86000exv3w28.txt EX-3.28 DECLARATION OF TRUST OF 99 RESTAURANTS EXHIBIT 3.28 DECLARATION OF TRUST OF 99 RESTAURANTS OF MASSACHUSETTS, A MASSACHUSETTS BUSINESS TRUST THIS DECLARATION OF TRUST is made as of the day of the 26th day of November, 2002, at 160 Olympia Avenue, Woburn, 01801 in the County of Middlesex in the Commonwealth of Massachusetts by and between Gregory L. Burns of 3038 Sidco Drive, Nashville, Tennessee, Charles F. Doe, Jr. of 321 Ocean Avenue, Marblehead, Massachusetts, and A. Chad Fitzhugh, of 3038 Sidco Drive, Nashville Tennessee (the "Trustees"), and those who shall hold certificates of shares to be issued hereunder. WHEREAS, it is proposed that the Trustees shall acquire certain property and shall employ and manage the same, and all other property which they may hereafter acquire as such Trustees, in the manner hereinafter stated; and it is likewise proposed that the beneficial interest in the earnings and proceeds of the property from time to time held by the Trustees and the business conducted by them shall be divided into transferable shares of beneficial interest, to be evidenced by certificates therefore, as hereinafter provided; NOW THEREFORE, the Trustees hereby declare that they will hold said property so to be acquired by them, as well as all other property which they may acquire as such Trustees, together with the proceeds thereof, in trust, to manage and dispose of same for the benefit of the holders, from time to time, of the certificates of shares of beneficial interest issued and to be issued hereunder in the manner and subject to the stipulations contained herein. ARTICLE I NAME AND NATURE OF TRUST 1.1 Name. The name of the Trust hereby created shall be 99 Restaurants Massachusetts, a Massachusetts Business Trust, not incorporated, and so far as may be practicable, the Trustees shall conduct all business, execute all instruments in writing and sue or be sued under that name in the performance of the Trust's activities, which name (and the word "Trust" wherever used in this Declaration of Trust, except where the context otherwise requires) shall refer to the Trustees collectively, but not individually personally or to the officers, agents, employees or Shareholders of the Trust or of such Trustees. Under circumstances in which the Trustees determine that the use of such name is not practicable or under circumstances in which the Trustees are contractually hound to change that name, they may adopt another name under which the Trust may hold property or conduct its activities. 1.2 Principal Place of Business. The Trust shall maintain a principal place of business in Massachusetts at 160 Olympia Avenue, Woburn, MA 01801, or such other place in the Commonwealth as the Trustees may determine from time to time. The Trust may have such other offices or places of business within or without the Commonwealth as the Trustees may from time to time determine. 1.3 Nature of Trust. The Trust shall be of the type commonly termed a "Massachusetts Business Trust" and governed by Chapter 182 of the General Laws of Massachusetts. The Trust is not intended to be, shall not be deemed to be, and shall not be treated as a general partnership, limited partnership, joint venture or joint stock company nor shall the Trustees or Shareholders or any of them for any purpose be, nor be deemed to be, nor be treated in any way whatsoever to be, liable or responsible hereunder as partners or joint venturers. The relationship of the Shareholders to the Trustees shall be solely that of beneficiaries of the Trust in accordance with the rights conferred upon them by this Declaration, and as such, the Shareholders are cestuis que trust, and not partners or associates nor in any other relation whatsoever between themselves with respect to the Trust Property, and hold no relation to the Trustees other than of cestuis que trust, with only such rights as are conferred upon them as such cestuis que trust hereunder. 1.4 Definitions. The terms defined in this Section 1.4 wherever used in this Declaration shall, unless the context otherwise requires, have the respective meanings hereinafter specified. Whenever the singular number is used in this Declaration and when permitted by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders and vice versa. "AFFILIATE" shall mean, as to any Person, (i) any other Person directly or indirectly controlling, controlled by, or under common control with such Person, or (ii) any officer, director, employee, general partner, manager or trustee of such Person or of any Person controlling, controlled by, or under common control with such Person (excluding trustees and persons serving in similar capacities who are not otherwise an Affiliate of such Person). "ANNUAL MEETING OF SHAREHOLDERS" shall mean the meeting described in the first sentence of Section 5.11. "BY-LAWS" shall have the meaning set forth in Section 4.4. "CODE" shall mean the Internal Revenue Code of 1986, and the Treasury Regulations promulgated thereunder, as amended. "COMMONWEALTH" shall mean the Commonwealth of Massachusetts. "CONFLICTING PROVISIONS" shall have the meaning set forth in Section 8.5. "DECLARATION" or "THIS DECLARATION" shall mean this Declaration of Trust, as amended, restated or modified from time to time. References in this Declaration to "herein", "hereto" and "hereunder" shall be deemed to refer to this Declaration and shall not be limited to the particular text, article or section in which such words appear, unless otherwise indicated. "MASSACHUSETTS BUSINESS CORPORATION" shall mean a domestic corporation organized and operating in the Commonwealth in accordance with Chapter l56B of the General Laws of Massachusetts. "PERSON" shall mean and include individuals, corporations, limited liability companies, limited partnerships, limited liability partnerships, general partnerships, joint stock companies or associations, joint ventures, associations, companies, trusts, banks, trust 2 companies, land trusts, business trusts, or other entities and governments and agencies and political subdivisions thereof. "SECURITIES" shall mean any stock, shares, voting trust certificates, bonds, membership interests in limited liability companies, debentures, notes or other evidences or indebtedness or in general any instruments commonly known as "securities" or any certificates of interest, shares or participations in, temporary or interim certificates for, receipts for, guarantees of, or warrants, options or rights to subscribe to, purchase or acquire any of the foregoing. "SHAREHOLDERS" shall mean as of any particular time all holders of record of outstanding Shares at such time. "SHARES" or, as the context may require, "SHARES" shall mean the shares of beneficial interest of the Trust as described in the first sentence of Section 5.1 hereof. "TRUST" shall mean the Trust created by this Declaration. "TRUSTEES" and any pronoun referring thereto shall mean, as of any particular time, the original signatories hereto as long as they hold office hereunder and additional and successor trustees, and shall not include the officers, employees or agents of the Trust or the Shareholders. Nothing herein shall be deemed to preclude the Trustees from also serving as officers, employees or agents of the Trust or owning Shares. "TRUST PROPERTY" shall mean as of any particular time any and all property, real, personal or otherwise, tangible or intangible, which is transferred, conveyed or paid to or purchased by the Trust or Trustees and all rents, income, profits and gains therefrom and which at such time is owned or held by or for the Trust or the Trustees. ARTICLE II THE TRUST PROPERTY 2.1 Title to Trust Property. Title to all property, real, personal or otherwise, tangible or intangible, held by the Trustees hereunder shall vest in the Trustees as joint tenants, and not as tenants in common, with right of survivorship as Trustees of this Trust upon the death, resignation or removal of any of them. All right, title and interest in and to the Trust Property shall automatically vest in the remaining Trustees as joint tenants upon the death, resignation or removal of any Trustee, which death, resignation or removal automatically shall release any right, title or interest of such Trustee in the Trust Property. Any person elected as a Trustee hereunder, whether as a successor or as an additional Trustee, shall, upon executing a written acceptance of this Trust, succeed to and be vested as a joint tenant with all rights, title and interest in the Trust Property in the same manner as the remaining Trustees. Appropriate written evidence of the election and qualification of successor or additional Trustees shall be filed with the records of the Trust and in such other offices or places as the Trustees may deem necessary, appropriate or desirable. ARTICLE III THE TRUSTEES 3 3.1 Number, Term of Office and Qualification of Trustees. There shall be no fewer than two (2) or more than seven (7) Trustees. The initial Trustees shall be the signatories hereto. Within the limits set forth in this Section 3.1, the number of Trustees may be increased or decreased from time to time by vote of two-thirds of the Trustees then in office evidenced by an instrument in writing signed by two-thirds of the Trustees. No reduction in the number of Trustees shall have the effect of removing any Trustee from office prior to the expiration of his term. Subject to the provisions of Section 3.3, each Trustee shall hold office until the next Annual Meeting of Shareholders and until the election and qualification of his successor. There shall be no cumulative voting in the election for Trustees. A Trustee shall be an individual at least eighteen (18) years of age who is not under a legal disability. Unless otherwise required by law, no Trustee shall be required to give bond, surety or security in any jurisdiction for the performance of any duties or obligations hereunder. The Trustees in their capacity as Trustees shall not be required to devote their entire time to the business and affairs of the Trust. 3.2 Compensation and Other Remuneration. The Trustees shall not be compensated for their services as Trustees. 3.3 Resignation, Removal and Death of Trustees. A Trustee may resign at any time by giving written notice to the remaining Trustees at the principal office of the Trust. Such resignation shall take effect on the date specified in such notice, without need for prior accounting. A Trustee may be removed from office at any time for cause by the vote of at least two-thirds of the Trustees then in office. A Trustee judged incompetent or bankrupt, or for whom a guardian or conservator has been appointed, shall be deemed to have resigned as of the date of such adjudication or appointment. Upon the resignation or removal of any Trustee, or his otherwise ceasing to be a Trustee, he shall execute and deliver such documents as the remaining Trustees shall require for the conveyance of any Trust Property held in his name, shall account to the remaining Trustees as they require for all property which he holds as Trustee and shall thereupon be discharged as Trustee. Upon the incapacity or death of any Trustee, his legal representative shall perform the acts set forth in the preceding sentence and the discharge mentioned therein shall run to such legal representative and to the incapacitated Trustee or the estate of the deceased Trustee, as the case may be. 3.4 Vacancies. If any or all of the Trustees cease to be Trustees hereunder, whether by reason of resignation, removal, incapacity, death or otherwise, such event shall not terminate the Trust, affect its continuity or revoke any existing agency created pursuant to the terms of this Declaration. Until vacancies are filled, the remaining Trustee or Trustees (even though fewer than the minimum number of Trustees set forth in Section 3.1) may exercise the powers of the Trustees hereunder. Vacancies (including vacancies created by increases in number) may be filled by the remaining Trustee or by a majority of the remaining Trustees. If at any time there shall be no Trustees in office, successor Trustees shall be elected by the Shareholders as provided in Section 5.11. Any Trustee elected to fill a vacancy created by the resignation, removal or death of a former Trustee shall hold office for the unexpired term of such former Trustee. 3.5 Actions by Trustees. The Trustees may act with or without a meeting. A quorum for all meetings of the Trustees shall be a majority of the Trustees. Unless specifically provided otherwise in this Declaration, any action of the Trustees may be taken at a meeting by vote of a 4 majority of the Trustees present (a quorum being present). Any action or actions permitted to be taken by the Trustees in connection with the business of the Trust may be taken without a meeting by written consents of the required number of Trustees specified in this Declaration to approve such action, but not less than a majority of the Trustees, which consents shall be filed with the records of meetings of the Trustees. Any action or actions permitted to be taken by the Trustees in connection with the business of the Trust may be taken pursuant to authority granted by a meeting of the Trustees conducted by a telephone conference call or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence in person at the meeting, and the transaction of Trust business represented thereby shall be of the same authority and validity as if transacted at a meeting of the Trustees held in person or by written consent. The minutes of any Trustees' meeting held by telephone shall be prepared in the same manner as a meeting of the Trustees held in person. Any agreement. deed, mortgage, lease or other instrument or writing executed by one or more of the Trustees or by any authorized Person shall be valid and binding upon the Trustees and upon the Trust when authorized or ratified by action of the Trustees or as provided in the By-Laws. With respect to the actions of the Trustees, Trustees who have, or are Affiliates of a Person or Persons who have, any direct or indirect interest in or connection with any matter being acted upon may he counted for all quorum purposes under this Section 3.5 and, subject to the provisions of Section 6.6, may vote on the matter as to which they or their Affiliates have such interest or connection. 3.6 Acceptance of Election. No election or appointment of any individual as Trustee (other than an individual who was serving as a Trustee immediately prior to such election or appointment) shall become effective unless and until there shall be delivered to the President or the Secretary of the Trust his written acceptance thereof and agreement to be bound thereby. 3.7 Committees. The Trustees may appoint from among their number an executive committee of two (2) or more persons and such other standing committees as the Trustees determine. All members of the audit committee, if any, shall be Trustees who do not perform any services for the Trust except as Trustees. The Trustees may delegate to the executive committee such of the powers herein conferred upon the Trustees as they may deem necessary or appropriate; each other committee shall have such powers. duties and obligations as the Trustees may deem necessary or appropriate. The standing committees shall report their activities periodically to the Trustees. ARTICLE IV POWERS OF THE TRUSTEES 4.1 Business of the Trust. The Trustees are authorized to engage in any business permitted to a Massachusetts Business Corporation that the Trustees may deem expedient, and to acquire, purchase or own, retain or hold or dispose of Securities of Persons doing business of the character authorized to the Trustees above. 4.2 Power and Authority of Trustees. The Trustees, subject only to the specific 5 limitations contained in this Declaration, shall have, without further or other authorization, and free from any power or control on the part of the Shareholders, full, absolute and exclusive power, control and authority over the Trust Property and over the business and affairs of the Trust to the same extent as if the Trustees were the sole owners thereof in their own right and may do all such acts and things as in their sole judgment and discretion are necessary for or incidental to or desirable for the carrying out of or conducting the business of the Trust. Any construction of this Declaration or any determination made in good faith by the Trustees of the purposes of the Trust or the existence of any power or authority hereunder shall be conclusive, in construing the provisions of this Declaration, presumption shall be in favor of the grant of powers and authority to the Trustees. The enumeration of any specific power or authority herein shall not he construed as limiting the aforesaid powers or the general powers or authority or any other specified power or authority conferred herein upon the Trustees. 4.3 Specific Powers and Authority. Subject only to the express limitations contained in this Declaration and in addition to any powers and authority conferred by this Declaration or which the Trustees may have by virtue of any present or future statute or rule of law, the Trustees without any action or consent by the Shareholders shall have and may exercise at any time and from time to time the following powers and authorities which may or may not be exercised by them in their sole judgment and discretion and in such manner and upon such terms and conditions as they may from time to time deem proper: (a) to acquire, purchase, own, retain or hold, or dispose of real or personal property of any kind (including Securities of any Person or Persons) wherever located in the world, and make commitments for such investments, all without regard to whether any such property is authorized by law for the investment of trust funds or produces or may produce income, and to possess and exercise all the rights, powers and privileges appertaining to the ownership of the Trust Property; to vote in such manner as they shall deem appropriate Securities of any Person or Persons which shall be comprised in the Trust Property, and for that purpose to give proxies to any Person or Persons or to one or more of their number, to vote, waive any notice or otherwise act in respect to any such Securities; and to increase the capital of the Trust at any time by the issuance of any additional Shares or other Securities of the Trust for such consideration as they deem advisable; (b) to sell, rent, lease, hire, exchange, release, partition, assign, mortgage, pledge, hypothecate, grant security interests in, encumber, negotiate, convey, transfer or otherwise dispose of any and all the Trust Property by bills of sale, deeds (including deeds in lieu of foreclosure), trust deeds, assignments, transfers, leases, mortgages, financing statements, security agreements and other instruments for any of such purposes executed and delivered for and on behalf of the Trust or the Trustees by one or more of the Trustees or by a duly authorized officer, employee, agent or nominee of the Trust; (c) to issue Shares, bonds, debentures, notes or other evidences of indebtedness which may be secured or unsecured and may be subordinated to any indebtedness of the Trust to such Persons for such cash, property, or other consideration (including Securities issued or created by, or interests in, any Person) at such time or times and on such terms as the Trustees may deem advisable and to list or include any of the foregoing Securities issued by the Trust on any securities exchange or recognized automated quotation system, as the case may be, 6 and to purchase or otherwise acquire, hold, cancel, reissue, sell and transfer any of such Securities (provided, however, that any Shares so acquired and held by the Trustees shall not while so held be included in determining any proportion of Shares herein referred to and shall not be included as consenting to any action or proposed action of the Trustees to which consent of any portion of the Shareholders is required by the terms hereof, and to cause the instruments evidencing such Securities to bear an actual or facsimile imprint of the seal of the Trust and to he signed by manual or facsimile signature or signatures (and to issue such Securities whether or not any Person whose manual or facsimile signature shall be imprinted thereon shall have ceased to occupy the office with respect to which such signature was authorized), provided that, where only facsimile signatures for the Trust are used, the instrument shall he countersigned manually by a transfer agent, registrar or other authentication agent. Any of such Securities of different types maybe issued in combinations or units with such restrictions on the separate transferability thereof as the Trustees shall determine; (d) to enter into leases of real and personal property as lessor or lessee and to enter into contracts, obligations and other agreements as they may deem expedient in the conduct of the business of the Trust, including contracts, obligations and other agreements for a term extending beyond the term of office of the Trustees and beyond possible termination of the Trust, or having a lesser term; (e) to borrow money and give negotiable or non-negotiable instruments therefore; to guarantee, assume, indemnify or act as surety with respect to payment or performance of obligations of third parties; to enter into other obligations on behalf of the Trust; and to assign, convey, transfer, mortgage, subordinate, pledge, grant security interests in, encumber or hypothecate the Trust Property to secure any indebtedness of the Trust or any other of the foregoing obligations of the Trust; (f) to lend money, whether secured or unsecured; (g) to create reserve funds for any purpose; (h) to incur and pay out of the Trust Property any charges or expenses, and disburse any funds of the Trust, which charges, expenses or disbursements are, in the opinion of the Trustees, necessary or incidental to or advisable for the carrying out of any of the purposes of the Trust or conducting the business of the Trust, including without limitation, taxes and other governmental levies, charges and assessments, of whatever kind or nature, imposed upon or against the Trustees in connection with the Trust or the Trust Property or any part thereof, and for any of the purposes specified herein; (i) to deposit funds of the Trust in banks, trust companies, savings and loan associations and other depositories, whether or not such deposits will draw interest, the same to be subject to withdrawal on such terms and in such manner and by such Person or Persons (including any one or more Trustees, officers, employees or agents) as the Trustees may determine; (j) to cause to be organized or assist in organizing any Person under the laws of any jurisdiction to acquire the Trust Property or any part or parts thereof or to carry on any 7 business in which the Trust shall directly or indirectly have any interest, and to sell, rent, lease, hire, convey, negotiate, assign, exchange or transfer the Trust Property or any part or parts thereof to or with any such Person or any existing Person in exchange for the Securities thereof or otherwise, and to merge or consolidate the Trust with or into any Person or merge or consolidate any Person with or into the Trust in exchange for shares or Securities of such Person or otherwise on such terms as the Trustees and, to the extent required under Section 7.6 of this Declaration of Trust, the holders of Shares representing a majority of the total number of votes authorized to be cast by Shares then outstanding and entitled to vote thereon, and to lend money to, subscribe for the Securities of. and enter into any contracts with, any Person in which the Trust holds or is about to acquire Securities or any other interest; (k) to enter into joint ventures, general or limited partnerships, participation or agency arrangements and any other lawful combinations or associations; (l) to elect, appoint, engage or employ such officers for the Trust as the Trustees may determine, who may be removed or discharged at the discretion of the Trustees, such officers to have such powers and duties, and to serve such terms as may be prescribed by the Trustees or by the By-Laws; to engage or employ any Person(s) (including, subject to the provisions of Sections 6.5 and 6.6, any Trustee, officer or agent and any Person in which any Trustee, officer or agent is directly or indirectly interested or with which he is directly or indirectly connected) as agents, representatives, employees or independent contractors (including, without limitation, transfer agents, registrars, underwriters, accountants, attorneys-at-law or otherwise) in one or more capacities, and to pay compensation from the Trust for services in as many capacities as such Person may he so engaged or employed; and to delegate any of the powers and duties of the Trustees to any one or more Trustees, agents, representatives, officers, employees, independent contractors or other Persons; (m) to collect, sue for, and receive all sums of money coming due to the Trust, to employ counsel and to engage in, intervene in, prosecute, join, defend, compound, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, controversies, demands or other litigation relating to the Trust, the Trust Property or the Trust's affairs, to enter into agreements therefore, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding arbitration, adjudication or settlement thereof; (n) to renew, modify, release, compromise, extend, consolidate, or cancel, in whole or in part, any obligation to or of the Trust or participate in any reorganization obligors to the Trust; (o) to purchase and pay for out of the Trust Property, insurance contracts and policies insuring the Trust Property against any and all risks and insuring the Trust and/or all or any of the Trustees, the Shareholders, officers, employees or agents against any and all claims and liabilities of any and every nature asserted by any Person arising by reason of any action alleged to have been taken or omitted by the Trust or by the Trustees, Shareholders, officers, employees or agents; provided, however, that no Trustee. Shareholder, officer, employee or agent shall be so insured for any claim, obligation or liability which shall have arisen out of or been based upon his willful misfeasance, had faith or gross negligence; 8 (p) to cause legal title to any of the Trust Property to be held by and/or in the name of the Trustees or, except as prohibited by law, by and/or in the name of the Trust or one or more of the Trustees or any other Person, on such terms, in such manner, with such powers in such Person as the Trustees may determine, and with or without disclosure that the Trust or Trustees are interested therein; (q) to adopt a fiscal year for the Trust, and from time to time to change such fiscal year; (r) to adopt and use a seal (but the use of a seal shall not be required for the execution of instruments or obligations of the Trust); (s) to the extent permitted by law, to indemnify or enter into agreements with respect to indemnification with any Person with which the Trust has dealings, including without limitation any independent contractor, to such extent as the Trustees shall determine; (t) to confess judgment against the Trust; (u) to discontinue the operations of the Trust; (v) to repurchase or redeem Shares; (w) to make any election for the Trust permitted under the Code or any other federal, state or local income tax legislation from time to time in force, including, but not limited to, the making of an election pursuant to Section 1362 of the Code to be treated as an S corporation for federal income tax purposes; and (x) in general, to do all other such acts and things as are incident to the foregoing, or as in their judgment will promote or advance the business that they are authorized to carry on, although such acts and things may be neither specifically authorized nor incidental to any acts and things specifically authorized, to exercise all powers that are necessary or useful to carry on the business of the Trust and to carry out the provisions of this Declaration, and, in addition to the powers herein above enumerated, to have all powers with reference to the conduct of the business and management of the Trust Property that are possessed by the directors of a Massachusetts Business Corporation. 4.4 By-Laws. The Trustees may make or adopt and from time to time amend or repeal regulations (the "By-Laws") not inconsistent with law or with this Declaration, containing provisions relating to the business of the Trust and the conduct of its affairs and in such By-Laws may define the duties of the officers, employees and agents of the Trust. ARTICLE V THE SHARES AND SHAREHOLDERS 5.1 Description of Shares. The interest of the Shareholders shall be divided into shares of beneficial interest which shall be known collectively as "Shares," all of which shall be validly issued, fully paid and nonassessable by the Trust upon receipt of the full consideration for which the Shares have been issued or without additional consideration if issued by way of share 9 dividend or share split. Each holder of Shares shall as a result thereof be deemed to have agreed to and be bound by the terms of this Declaration. There shall be one class of Shares, with no par value per share. The Shares may be issued for such consideration as the Trustees shall deem advisable. The number of Shares that the Trust shall have authority to issue is unlimited. The Trustees are hereby expressly authorized at any time, and from time to time, to provide for the issuance of Shares in such amounts, in such proportions to such Person or Persons, upon such terms and conditions, and pursuant to such agreements as the Trustees may determine. The holders of Shares shall be entitled to receive, when and as declared from time to time by the Trustees out of any funds legally available for the purpose, such distributions as may be declared from time to time by the Trustees, in the event of the termination of the Trust pursuant to Section 7.1 or otherwise, or upon the distribution of its assets, the assets of the Trust available for payment and distribution to Shareholders shall he distributed ratably among the holders of Shares at the time outstanding in accordance with Section 7.2. All Shares shall have equal noncumulative voting rights at the rate of one vote per share, and equal distribution, liquidation and other rights, and shall have no preference, conversion, exchange, sinking fund or redemption rights. No holder of Shares shall be entitled as a matter of right to subscribe for or purchase any part of any new or additional issue of shares of the Trust, whether now or hereafter authorized and whether issued for cash or other consideration or by way of dividend. 5.2 Certificates. Ownership of Shares shall be evidenced by certificates. Every Shareholder shall be entitled to receive a certificate, in such form as the Trustees shall from time to time approve, specifying the number of Shares held by such Shareholder. Such certificates shall be treated as negotiable and title thereto and to the Shares represented thereby shall be transferred by delivery thereof to the same extent in all respects as a stock certificate, and the shares represented thereby, of a Massachusetts Business Corporation. Unless otherwise determined by the Trustees, such certificates shall be signed by the President or any Vice President and the Treasurer or any Assistant Treasurer and shall be countersigned by a transfer agent and registered by a registrar, if any, and such signatures may be facsimile signatures in accordance with Section 4.3(c) hereof. There shall be filed with each transfer agent a copy of the form of certificate so approved by the Trustees, certified by the Chairman, President or Secretary, and such form shall continue to be used unless and until the Trustees approve some other form. If any certificate is worn out, mutilated or defaced, the Trustees may, upon surrender thereof for cancellation, issue a new certificate in place thereof, and upon evidence satisfactory to the Trustees against loss to them, the Trustees may issue in place thereof a new certificate; and any such new certificate shall take for all purposes, the place of the certificate so worn out, mutilated, defaced, lost or destroyed. 5.3 Fractional Shares. In connection with any issuance of Shares, the Trustees may issue fractional Shares or may provide for the issuance of scrip including, without limitation, the time within which any such scrip must be surrendered for exchange into lull Shares and the rights, if any of holders of scrip upon the expiration of the time so fixed, the rights, if any, to receive proportional distributions, and the rights, if any to redeem scrip for cash, or the Trustees may in their discretion, or if they see fit at the option of each holder, provide in lieu of scrip for the adjustment of the fractions in cash. The provisions of Section 5.2 hereof relative to certificates for Shares shall apply so far as applicable to such scrip, except that such scrip may in the discretion of the Trustees be signed by a transfer agent alone. 10 5.4 [Intentionally Omitted.] 5.5 Legal Ownership of Trust Property. The legal ownership of the Trust Property and the right to conduct the business of the Trust are vested exclusively in the Trustees (subject to Section 4.3(1)), and the Shareholders shall have no interest therein other than beneficial interest in the Trust conferred by their Shares issued hereunder and they shall have no right to compel any partition, division or distribution of the Trust or any of the Trust Property. 5.6 Shares Deemed Personal Property. The Shares shall be personal property and shall confer upon the holders thereof only the interest and rights specifically set forth or provided for in this Declaration. The death, insolvency or incapacity of a Shareholder shall not dissolve or terminate the Trust or affect its continuity or give his or her legal representative any rights whatsoever, whether against or in respect of other Shareholders, the Trustees or the Trust Property or otherwise except the sole right to demand and, subject to the provisions of this Declaration, the By-Laws and any requirements of law, to receive a new certificate for Shares registered in the name of such legal representative, in exchange for the certificate held by such Shareholder. 5.7 Share Record; Issuance and Transferability of Shares. Records shall be kept by or on behalf of and under the direction of the Trustees, which shall contain the names and addresses of the Shareholders, the number of Shares held by them respectively, and the numbers of the certificates representing the Shares, and in which there shall be recorded all transfers of Shares. The Trust, the Trustees and the officers, employees and agents of the Trust shall be entitled to deem the Persons in whose names certificates are registered on the records of the Trust to be the absolute owners of the Shares represented thereby for all purposes of this Trust; but nothing herein shall be deemed to preclude the Trustees or officers, employees or agents of the Trust from inquiring as to the actual ownership of Shares. Until a transfer is duly effected on the records of the Trust, the Trustees shall not be affected by any notice of such transfer, either actual or constructive. Shares shall be transferable on the records of the Trust only by the record holder thereof or by his agent thereunto duly authorized in writing upon delivery to the Trustees or a transfer agent of the certificate or certificates therefore, properly endorsed or accompanied by duly executed instruments of transfer and accompanied by all necessary documentary stamps together with such evidence of the genuineness of each such endorsement, execution, or authorization and of other matters as reasonably may be required by the Trustees or such transfer agent. Upon such delivery, the transfer shall be recorded in the records of the Trust and a new certificate for the Shares so transferred shall be issued to the transferee, and in case of a transfer of only a part of the Shares represented by any certificate, a new certificate for the balance shall be issued to the transferor. Any Person becoming entitled to any Shares in consequence of the death of a Shareholder or otherwise by operation of law shall be recorded as the holder of such Shares and shall receive a new certificate therefore but only upon delivery to the Trustees or a transfer agent of instruments and other evidence required by the Trustees or the transfer agent to demonstrate such entitlement, the existing certificate for such Shares and such releases from applicable governmental authorities as may be required by the Trustees or transfer agent. In case of the loss, mutilation or destruction of any certificate for Shares, the Trustees may issue or cause to be issued a replacement certificate on such terms and subject to such rules and regulations as the 11 Trustees may from time to time prescribe. Nothing in this Declaration shall impose upon the Trustees or a transfer agent a duty or limit their rights to inquire into adverse claims. Notwithstanding anything to the contrary in this paragraph, the transferability of any Shares issued hereunder shall be subject to such restrictions as may be contained in the By-Laws, or determined by the Trustees. 5.8 MAINTENANCE OF S ELECTION. Notwithstanding anything to the contrary in this Declaration, in the event that the Trust has made an election pursuant to Section 1362 of the Code to be treated as an S corporation for federal income tax purposes, then, except with the consent of the Trustees and the prior approval of the holders of 51% of the Shares, no transfer of Shares or any interest therein shall be effective, and any such transfer shall be null and void ab initio, if such transfer would have the effect of terminating the Trust's S corporation status under the Code. Additionally, at any time when the Trust is treated as an S corporation under the Code, the Trust shall not, without the consent of the Trustees and the prior approval of the holders of 51% of the Shares, issue any shares or securities of the Trust if the effect of such issuance would be to terminate the Trust's S corporation status under the Code. Any purported issuance of such shares or securities by the Trust in violation of this subsection shall be null and void ab initio and shall be ineffective against the Trust or any Shareholder. The Trust and any third person may rely upon an opinion of tax counsel to the Trust as to compliance with this Section 5.8. 5.9 Distributions to Shareholders. Subject to Section 5.1, the Trustees may from time to time declare and pay to Shareholders such distributions in cash, property or assets of the Trust or Securities issued by the Trust, out of current or accumulated income, capital, capital gains, principal, surplus, proceeds from the increase or financing or refinancing of Trust obligations, or from the sale of portions of the Trust Property or from any other source as the Trustees in their discretion shall determine. Shareholders shall have no right to any such distribution unless and until declared by the Trustees. The Trustees are not required herein to make any distributions to the Shareholders, and may set aside as surplus, reserve or contingent funds and may use for improvement of or addition to the Trust Property or for reduction of any indebtedness or obligations of the Trust, or for any other capital purpose, the net income or any part of parts thereof, from time to time received by them, to such extent as they shall deem advisable. The Trustees shall furnish the Shareholders with a statement in writing advising as to the source of the funds so distributed not later than ninety (90) days after the close of the fiscal year in which the distribution was made. 5.10 Transfer Agent, Disbursing Agent and Registrar. The Trustees shall have the power to employ one or more transfer agents, disbursing agents and registrars and to authorize them on behalf of the Trust to keep records, to hold and to disburse any distributions, and to have and perform, in respect of all original issues and transfers of Shares and distributions and reports and communications to Shareholders, the powers and duties usually had and performed by transfer agents, disbursing agents and registrars of a Massachusetts Business Corporation. 5.11 Shareholders' Meetings. There shall be an Annual Meeting of the Shareholders at such time and place as shall be determined by or in the manner prescribed in the By-Laws, at which the Trustees shall be elected and any other proper business may be conducted. The Annual 12 Meeting of Shareholders shall be held within six (6) months after the end of each fiscal year. Special meetings of Shareholders may be called by the President or by a majority of the Trustees and shall be called by the President upon the written request of Shareholders holding in the aggregate not less than twenty-five percent (25%) of the total votes authorized to be cast by the outstanding Shares of the Trust entitled to vote at such meeting, in the manner provided in the By-Laws. If there shall be no Trustees, the officers of the Trust shall promptly call a special meeting of the Shareholders entitled to vote for the election of successor Trustees. Notice of any special meeting shall state the purpose of the meeting. Upon receipt of a written request either in person or by registered mail stating the purpose of a special meeting requested by the Shareholders, the Trust shall provide all Shareholders, within ten (10) business days after receipt of said request, written notice of such special meeting and the purpose of such special meeting to be held on a date not less than twenty (20) nor more than sixty (60) days after receipt of said request, at a time and place convenient to Shareholders. The holders of Shares entitled to vote at the meeting representing a majority of the total number of votes authorized to be cast by Shares then outstanding and entitled to vote on any question present in person or by proxy shall constitute a quorum at any such meeting for action on such question. Any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, whether or not a quorum is present, and except as otherwise provided in the By-Laws, the meeting may be reconvened without further notice. At any reconvened session of the meeting at which there shall be a quorum, any business may be transacted at the meeting as originally noticed. Whenever any action is to be taken by the Shareholders, it shall, except as otherwise clearly indicated in this Declaration or the By-Laws, require, and may be effected by, the affirmative vote of the holders of a majority of the Shares present or represented and entitled to vote and voting on such matter, provided that such majority shall be at least a majority of the number of Shares required to constitute a quorum for action on such matter. Any election by Shareholders shall be determined by a plurality of the votes cast by the Shareholders entitled to vote at the election. No ballot shall be required for such election unless requested by a Shareholder present or represented at the meeting and entitled to vote in the election. Whenever Shareholders are required or permitted to take any action, such action may be taken without a meeting by written consents setting forth the action so taken, signed by the holders of a majority (or such higher percentage as may be specified elsewhere in this Declaration) of the outstanding Shares that would be entitled to vote thereon at a meeting. The Shareholders shall be entitled, to the same extent as the shareholders in a Massachusetts Business Corporation, to determine by vote whether a court action, proceeding or claim should be brought or maintained derivatively or as a class action on behalf of the Trust or its Shareholders. Except with respect to matters on which a Shareholders' vote shall be required for or shall determine action of the Trustees as expressly set forth in this Declaration, no action taken by the Shareholders at any meeting shall in any way bind the Trustees. 5.12 Proxies. Whenever the vote or consent of a Shareholder entitled to vote is required or permitted under this Declaration, such vote or consent may be given either directly by such Shareholder or by a proxy in the form prescribed in the By-Laws. The Trustees may 13 solicit such proxies from the Shareholders or any of them entitled to vote in any matter requiring or permitting the Shareholders' vote or consent. No proxy for any meeting of Shareholders entitled to vote shall be effective unless such proxy shall have been placed on file with such officer of the Trust as the Trustees shall have designated for such purposes for verification prior to such meeting. 5.13 Fixing Record Date. The By-Laws may provide for fixing or, in the absence of such provision, the Trustees may fix, in advance, a date as the record date for determining the Shareholders entitled to notice of or to vote at any meeting of Shareholders or to express consent to any proposal without a meeting or for the purpose of determining Shareholders entitled to receive payment of any distribution (whether before or after termination of the Trust) or any other communication from the Trustees, or for any other purpose. The record date so fixed shall be not less than five (5) days nor more than sixty (60) days prior to the date of the meeting or event for the purpose of which it is fixed. 5.14 Notice to Shareholders. Any notice of meeting or other notice, communication or report to any Shareholder shall be deemed duly delivered to such Shareholder when such notice, communication or report is: (a) deposited, with postage thereon prepaid, in the United States mail, addressed to such Shareholder at his address as it appears on the records of the Trust; (b) delivered in person to such Shareholder; or (c) furnished to such Shareholder in such other manner as may be specified in the By-Laws. ARTICLE VI LIABILITY OF TRUSTEES, SHAREHOLDERS, OFFICERS, EMPLOYEES AND AGENTS, AND OTHER MATTERS 6.1 Exculpation of Trustees, Officers, Employees and Agents. No Trustee, officer, employee or agent of the Trust shall be liable to the Trust or to any other Person for any act or omission except for his own willful misfeasance, bad faith or gross negligence. 6.2 Limitation of Liability of Shareholders, Trustees, Officers, Employees and Agents. The Trustees, officers, employees and agents of the Trust, in incurring any debts, liabilities or obligations or in taking or omitting any other actions for or in connection with the Trust are, and shall be deemed to be, acting as Trustees, officers, employees or agents of the Trust and not in their own individual capacities. The Trustees shall have no power to bind the Shareholders personally, or to call upon them for the payment of any money or any assessment whatsoever other than such sums as Shareholders may at any time personally agree to pay for new Shares to be acquired from the Trust. No Shareholder and, except to the extent provided in Section 6.1, no Trustee, officer, employee or agent shall be liable for (a) any debt, liability or obligation of any kind of, or with respect to, the Trust, or (b) any claim, demand, judgment or decree against the Trust (in any such case in tort, contract or otherwise), arising out of any action taken or omitted for or on behalf of the Trust and the Trust shall be solely liable therefore and resort shall be had solely to the Trust Property for the payment or performance thereof, and no Shareholder and, except as aforesaid, no Trustee, officer, employee or agent shall be subject to any personal liability whatsoever, in tort, contract or otherwise, to any other Person or Persons in connection with the Trust Property or the affairs of the Trust (or any actions taken or omitted for or on behalf of the Trust), and all such other Persons shall look solely to the Trust for satisfaction 14 of claims of any nature arising in connection with the Trust Property or the affairs of the Trust (or any action taken or omitted for or on behalf of the Trust) it being the purpose of the trust estate created hereby to exempt the Trustees (except as aforesaid) and the Shareholders, present or future, from all manner of liability whatsoever. Each Shareholder shall be entitled to pro rata indemnity from the Trust Property if, contrary to the provisions hereof, such Shareholder shall be held to any personal liability. 6.3 Express Exculpatory Clauses and Instruments. Any written instrument creating an obligation of the Trust shall include a reference to this Declaration and provide that neither the Shareholders nor the Trustees, nor officers, employees or agents of the Trust shall be liable thereunder and that all Persons shall look solely to the Trust Property for the payment of any claim thereunder or for the performance thereof; provided however, that the omission of such provision from any such instrument shall not render the Shareholders or any Trustee, officer, employee or agent of the Trust liable nor shall the Trustees or any officer, employee or agent of the Trust be liable to anyone for such omission. 6.4 Indemnification and Reimbursement of Trustees, Officers, Employees and Agents. Any Person made a party to any action, suit or proceeding or against whom a claim or liability is asserted by reason of the fact that he, his testator or intestate was or is a Trustee, officer, employee or agent of the Trust (or served or serves at its request as a director, officer, employee or agent of another organization or who served or serves at its request in any capacity with respect to any employee benefit plan) shall be indemnified and held harmless by the Trust against judgments, fines, amounts paid on account thereof (whether in settlement or otherwise) and reasonable expenses, including attorneys' fees, actually and reasonably incurred by him in connection with the defense of such action, suit proceeding, claim or alleged liability or in connection with any appeal therein, whether or not the same proceeds to judgment or is settled or otherwise brought to a conclusion; provided however, that no such Person shall be so indemnified or reimbursed for any claim, obligation or liability which shall have been adjudicated to have arisen out of or been based upon his willful misfeasance, bad faith or gross negligence; and provided further, that such Person gives prompt notice thereof, executes such documents and takes such action as will permit the Trust to conduct the defense or settlement thereof and cooperates therein. In the event of a settlement approved by the Trustees of any such claim, alleged liability, action, suit or proceeding, indemnification and reimbursement shall be provided except as to such matters covered by the settlement for which the Trust receives advice of its independent counsel (which advice the Trust is obligated to request) that such matters, if adjudicated, would likely be adjudicated to have arisen out of or been based upon such person's willful misfeasance, bad faith or gross negligence. Such rights of indemnification and reimbursement shall be satisfied only out of the Trust Property. The rights accruing to any Person under these provisions shall not exclude any other right to which he may lawfully be entitled, nor shall anything contained herein restrict such Person's right to contribution as may be available under applicable law. Any action taken by or conduct on the part of a Trustee, officer, employee or agent of the Trust in conformity with or in good faith reliance upon the provisions of Section 6.5 shall not, for the purposes of this Trust (including, without limitation, Sections 6.1, 6.2, and 6.3 and this Section 6.4) constitute willful misfeasance, bad faith or gross negligence. 15 6.5 Right of Trustees, Officers, Employees and Agents to Own Shares or Other Property and to Engage in Other Business. Any Trustee or officer, employee or agent of the Trust may acquire, own, hold and dispose of Shares in the Trust, for his individual account, and may exercise all rights of a Shareholder to the same extent and in the same manner as if he were not a Trustee or officer, employee or agent of the Trust. Any Trustee may have business interests in businesses which may be similar to and competitive with those of the Trust. Subject to the provisions of Section 6.6, any Trustee or officer, employee or agent of the Trust may be interested as trustee, officer, director, stockholder, partner, member, adviser or employee of, or otherwise have a direct or indirect interest in, any Person who may be engaged to render advice or services to the Trust, and may receive compensation from such Person as well as compensation as Trustee, officer, employee or agent or otherwise hereunder. 6.6 Transactions Between Trustees, Officers, Employees or Agents and the Trust. Except as otherwise provided by this Declaration, and in the absence of fraud, a contract, act or other transaction, between the Trust and any other Person, or in which the Trust is interested, shall be valid and no Trustee, officer, employee or agent of the Trust shall have any liability as a result of entering into any such contract, act or transaction, even though (a) one or more Trustees, officers, employees or agents are directly or indirectly interested in or connected with, or are trustees, partners, directors, employees, officers or agents of, such other Person, or (b) one or more of the Trustees, officers, employees or agents of the Trust, individually or jointly with others, is a party or are parties to, or directly or indirectly interested in, or connected with, such contract, act or transaction, provided that (i) such interest or connection is disclosed or known to the Trustees, and thereafter the Trustees authorize or ratify such contract, act or other transaction by affirmative vote of a majority of the Trustees who are not so interested, or (ii) such interest or connection is disclosed or known to the Shareholders, and thereafter such contract, act or transaction is approved by Shareholders holding a majority of the Shares then outstanding and entitled to vote thereon, or (iii) such contract, act or transaction is fair as to the Trust as of the time it is authorized, approved or ratified by the Trustees or the Shareholders. 6.7 Restriction of Duties and Liabilities. The Shareholders and Trustees, and the officers, employees and agents of the Trust shall in no event have any greater duties or liabilities than those established by this Declaration or, in cases as to which such duties or liabilities are not so established, than those of the shareholders, directors, officers, employees and agents of a Massachusetts Business Corporation in effect from time to time. 6.8 Persons Dealing with Trustees, Officers, Employees or Agents. Any act of the Trustees or of the officers, employees or agents of the Trust purporting to be done in their capacity as such, shall, as to any Persons dealing with such Trustees, officers, employees or agents, be conclusively deemed to be within the purposes of this Trust and within the powers of such Trustees, officers, employees or agents. The receipt of the Trustees or any of them, or of authorized officers, employees or agents of the Trust, for moneys or other consideration shall be binding upon the Trust. 6.9 Reliance. The Trustees and the officers, employees and agents of the Trust may consult with counsel and the advice or opinion of such counsel shall be prima facie evidence of good faith of all the trustees and the officers, employees and agents of the Trust in respect of any action taken or suffered by them in reliance on or in accordance with such advice or opinion. 16 In discharging their duties, Trustees or officers, employees or agents of the Trust, when acting in good faith, may rely upon financial statements of the Trust represented to them to fairly present the financial position or results of operations of the Trust by the President of the Trust or the officer of the Trust having charge of its books of account, or stated in a written report by an independent certified public accountant fairly to present the financial position or results of operations of the Trust. The Trustees and the officers, employees and agents of the Trust may rely and shall be personally protected in acting, upon any instrument or other document believed by them in good faith to be genuine. ARTICLE VII DURATION, AMENDMENT AND TERMINATION OF TRUST 7.1 Duration of Trust. The Trust shall continue without limitation of time, provided however, that the Trust may be terminated at any time by a written instrument signed by a majority of the Trustees, with the approval of all of the Trustees or the affirmative vote or written consent of the holders of Shares representing a majority of the total number of votes authorized to be cast by Shares then outstanding. 7.2 Termination of Trust. Upon the termination of the Trust: (a) the Trust shall carry on no business except for the purposes of winding-up its affairs; (b) the Trustees shall proceed to wind-up the affairs of the Trust and all the powers of the Trustees under this Declaration shall continue until the affairs of the Trust shall have been wound-up, including the power to fulfill or discharge the contracts of the Trust, collect its assets, sell, convey, assign, exchange, transfer or otherwise dispose of all or any part of the remaining Trust Property to one or more persons at public or private sale for consideration which may consist in whole or in part of cash, Securities, or other property of any kind, discharge or pay its liabilities, and do all other acts appropriate to liquidate its business; and (c) after paying or adequately providing for the payment of all liabilities, and upon receipt of such releases, indemnities and refunding agreements as they deem necessary for their protection, the Trustees may distribute the remaining Trust Property, in cash or in kind or partly each, among the Shareholders according to their respective rights. After termination of the Trust and distribution to the Shareholders as herein provided, the Trustees shall execute and deposit among the records of the Trust an instrument in writing setting forth the fact of such termination and such distribution, a copy of which instrument shall be filed with the Secretary of State of the Commonwealth, and the Trustees shall thereupon be discharged from all further liabilities and duties hereunder and the rights and interests of all Shareholders shall thereupon cease. 7.3 Amendment Procedure. This Declaration may be amended (except as to the limitations of personal liability of the Shareholders, Trustees, officers, employees and agents of the Trust and the prohibition of assessments upon Shareholders) by a written instrument signed by a majority of the Trustees and approved, by affirmative vote or written consent, by the holders of Shares representing a majority (or, with respect to (i) amendments to the proviso to Section 17 7.1, and (ii) amendments to this Section 7.3 that would reduce the percentage vote required to approve any amendments to this Declaration, three-fourths) of the total number of votes authorized to be cast by Shares then outstanding and entitled to vote thereon. 7.4 Amendments Effective. No amendment to this Declaration of Trust shall become effective until a certification in recordable form executed by a majority of the Trustees setting forth an amendment and reciting that it was duly adopted as aforesaid, or a copy of this Declaration, as amended, in recordable form and executed by a majority of the Trustees, is filed with the Secretary of State of the Commonwealth. 7.5 Transfer to Successor. The Trustees, with the approval of a majority of the Trustees and the affirmative vote or written consent, approving a plan for this purpose, of the holders of Shares representing a majority of the total number of votes authorized to be cast by Shares then outstanding and entitled to vote thereon, may: (a) cause the organization of a corporation, association, trust or other organization to take over the Trust Property and carry on the affairs of the Trust; (b) merge the Trust into, or sell, convey and transfer the Trust to, any such corporation, association, trust or organization in exchange for Securities thereof, or beneficial interests therein, and the assumption by such transferee of the liabilities of the Trust; and (c) thereupon terminate this Declaration and deliver such shares, Securities or beneficial interests among the Shareholders in accordance with such plan. 7.6 Sale of Assets; Merger. The Trustees, with the approval of a majority of the Trustees and the affirmative vote or written consent of the holders of Shares representing a majority of the total number of votes authorized to be cast by Shares then outstanding and entitled to vote thereon may: (a) sell, lease or exchange all or substantially all of the property and assets of the Trust; or (b) merge the Trust with any corporation, association, trust, limited liability company or other organization permitted under law, whether or not the Trust shall be the surviving entity. ARTICLE VIII MISCELLANEOUS 8.1 Applicable Law. This Declaration and the rights of all parties and the construction and effect of every provision hereof shall be subject to and construed according to the statutes and laws of the Commonwealth, without giving effect to the conflicts of laws provisions thereof. Any action or proceeding brought to enforce this Declaration or the rights and obligations of any party hereto shall be commenced and maintained in any federal or state court of competent jurisdiction located in the Commonwealth. 8.2 Captions and Headings. The captions and headings preceding the text, articles and sections hereof have been inserted for convenience and reference only and shall not he construed to affect the meaning, construction or effect of this Declaration. 8.3 Successors in Interest. This Declaration and the By-Laws shall be binding upon and inure to the benefit of the undersigned Trustees and their successors, assigns, heirs, distributes, and legal representatives, and every Shareholder and his or her successors, assigns, heirs, distributes and legal representatives. 18 8.4 Inspection of Records. Trust records shall be available for inspection by Shareholders at the same time and in the same manner and to the extent that comparable records of a Massachusetts Business Corporation would be available for inspection under the laws of the Commonwealth by shareholders. Shareholders shall have no greater right than shareholders of a Massachusetts Business Corporation to require financial or other information from the Trust, Trustees or officers of the Trust. 8.5 Provisions of the Trust in Conflict with Law or Regulations; Severability. The provisions of this Declaration are severable, and if the Trustees shall determine, with the advice of counsel, that any one or more of such provisions (the "Conflicting Provisions") are in conflict with applicable federal or Massachusetts laws and regulations, the Conflicting Provisions shall be deemed never to have constituted a part of the Declaration; provided, however, that such determination by the Trustees shall not affect or impair any of the remaining provisions of this Declaration or render invalid or improper any action taken or omitted (including, but not limited to, the election of Trustees) prior to such determination. A certification in recordable form signed by a majority of the Trustees setting forth any such determination and reciting that it was duly adopted by the Trustees, or a copy of this Declaration with the Conflicting Provisions removed pursuant to such a determination, in recordable form, signed by a majority of the Trustees, shall be conclusive evidence of such determination when filed with the Secretary of State of the Commonwealth. The Trustees shall not be liable for failure to make any determination under this Section 8.5. Nothing in this Section 8.5 shall in any way limit or affect the right of the Trustees to amend this Declaration as provided in Section 7.3. If any provision of this Declaration shall be held invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render invalid or unenforceable any other provision of this Declaration, and this Declaration shall be carried out as if any such invalid or unenforceable provision were not contained herein. 8.6 Certifications. The following certifications shall be final and conclusive as to any Persons dealing with the Trust: (a) a certification of a vacancy among the Trustees by reason of resignation, removal, increase in the number of Trustees, incapacity, death or otherwise, when made in writing by a majority of the remaining Trustees; (b) a certification as to the individuals holding office as Trustees or officers of the Trust at any particular time, when made in writing by the Secretary of the Trust or by any Trustee; (c) a certification that a copy of this Declaration or of the By-Laws is a true and correct copy thereof as then in force, when made in writing by the Secretary of the Trust or by any Trustee; (d) the certifications referred to in Sections 3.6, 7.4 and 8.5; and (e) a certification as to any actions by Trustees, other than the above, when made in writing by the Secretary of the Trust or by any Trustee. 19 ARTICLE IX EXECUTION AND ACCEPTANCE 9.1 Counterparts; Acceptance of Certificate. This Declaration of Trust may be executed in two or more counterparts, each of which when so executed shall be deemed an original and such counterparts together shall be sufficiently evidenced to constitute but one and the same instrument, which shall be sufficiently evidenced for all purposes by any such original counterparts. The acceptance of a certificate issued hereunder shall constitute the Shareholder accepting such certificate as a party to this Declaration with the same force and effect as if he had hereunto signed his name, and, upon ceasing to be a holder of record of Shares hereunder, such former holder thereof shall cease to be a party hereto. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS] 20 IN WITNESS WHEREOF, the undersigned have executed this Declaration of Trust as an instrument under seal as of the day and year first above written. TRUSTEES: Signed: /s/ Gregory L. Burns ---------------------------------- Print Name: Gregory L. Burns as Trustee, and not individually Signed: /s/ Charles F. Doe, Jr. ---------------------------------- Print Name: Charles F. Doe, Jr. as Trustee, and not individually Signed: /s/ A. Chad Fitzhugh ---------------------------------- Print Name: A. Chad Fitzhugh as Trustee, and not individually 21 COMMONWEALTH OF MASSACHUSETTS SUFFOLK COUNTY, ss. December 2, 2002 On this 2nd day of December, 2002, personally appeared the above-named Charles F. Doe, Jr., to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed, before me. /s/ Katherine J. Henry --------------------------------- Notary Public My commission expires: January 23, 2009 STATE OF TENNESSEE DAVIDSON COUNTY, ss. November 26, 2002 On this 26th day of November, 2002, personally appeared the above-named Gregory L. Burns, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. before me. /s/ Pam Dover -------------------------------- Notary Public My commission expires: 5-28-2006 STATE OF TENNESSEE DAVIDSON COUNTY, ss. November 26, 2002 On this 26th day of November, 2002, personally appeared the above-named A. Chad Fitzhugh. to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed, before me. /s/ Pam Dover ------------------------------- Notary Public My commission expires: 5-28-2006 22 EX-3.29 29 g86000exv3w29.txt EX-3.29 BY-LAWS OF 99 RESTAURANTS OF MASSACHUSETTS EXHIBIT 3.29 99 RESTAURANTS OF MASSACHUSETTS, A MASSACHUSETTS BUSINESS TRUST BY-LAWS The name and purposes of 99 Restaurants of Massachusetts, a Massachusetts Business Trust (the "Trust") shall be as set forth in the Declaration of Trust of 99 Restaurants of Massachusetts, a Massachusetts Business Trust dated as of November 26, 2002 (the "Declaration") and these By-Laws, as they may be amended from time to time. Capitalized words used but not otherwise defined herein shall have the meanings set forth in the Declaration. ARTICLE I. TRUSTEES Section 1.1. Qualifying Shares Not Required. Trustees need not be Shareholders of the Trust. Section 1.2. Quorum. A majority of the Trustees will constitute a quorum subject to the provisions of Sections 3.4 and 3.5 of the Declaration, as it may be amended from time to time. Section 1.3. Election. Trustees shall be elected at each Annual Meeting of Shareholders. If Trustees are not elected at an Annual Meeting of Shareholders, or if such meeting is not held, Trustees may be elected at a special meeting of the Shareholders. Section 1.4. Place of Meeting. Meetings of the Trustees shall be held at the principal office of the Trust or at such place within or without the Commonwealth as the President of the Trust shall direct or as is fixed from time to time by resolution of the Trustees. Whenever a place other than the principal office of the Trust is fixed by the President or by resolution as the place at which future meetings are to be held, written notice thereof shall be sent to all Trustees a reasonable time in advance of any meeting to be held at such place. Section 1.5. Organization Meeting. Immediately following each Annual Meeting of Shareholders, a regular meeting of the Trustees shall be held for the purpose of organizing, electing officers and transacting other business. Notice of such meetings need not be given. Section 1.6. Regular Meetings. Regular meeting of the Trustees shall be held at the place determined pursuant to Section 1.4 on the dates, if any, established at each organizational meeting of the Trustees and notice of such regular meetings of the Trustees is hereby dispensed with. Section 1.7. Special Meetings. Special meetings of the Trustees may be called at any time by the Chairman or President, and the Chairman or President shall call a special meeting at any time upon the written request of two (2) Trustees. Written notice of the time and place of a special meeting shall be given to each Trustee, either personally or by sending a copy thereof by mail or by telegraph, charges/postage prepaid, to his address appearing on the books of the Trust or theretofore given by him to the Trust for the purpose of notice. In case of personal service, such notice shall be so delivered at least twenty-four (24) hours prior to the time fixed for the meeting. If such notice is mailed, it shall be deposited in the United States mail in the place in which the principal office of the Trust is located at least seventy-two (72) hours prior to the time fixed for the holding of the meeting. If telegraphed, it shall be delivered to the telegraph company at least forty-eight (48) hours prior to the time fixed for the holding of the meeting. If notice is not so given by the Secretary, it may be given in the same manner by the Chairman, President or the Trustees requesting the meeting. Section 1.8. Adjourned Meetings. A quorum of the Trustees may adjourn any Trustees' meeting to meet again at a stated day and hour. In the absence of a quorum, a majority of the Trustees present may adjourn from time to time to meet again at a stated day and hour prior to the time fixed for the next regular meeting of the Trustees. The motion for adjournment shall be lodged with the records of the Trust. Notice of the time and place of an adjourned meeting need not be given to any Trustee present at the adjourned meeting if the time and place is fixed at the meeting adjourned. Section 1.9. Waiver of Notice. Actions taken at any meeting of the Trustees, however called and noticed or wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the Trustees not present signs a written waiver of notice, a consent to the holding of such meeting or an approval of the minutes thereof. All such waivers, consents, or approvals shall be lodged with the records of the Trust or made a part of the minutes of the meeting. Section 1.10. Action Without Meeting. Unless specifically otherwise provided in the Declaration, any action required or permitted to be taken by the Trustees may be taken without a meeting if a majority of the Trustees shall, individually or collectively, consent in writing to such action. Such written consent or consents shall be lodged with the records of the Trust and shall have the same force and effect as a unanimous vote of such Trustees. Section 1.11. Telephone Meetings. The Trustees may meet by means of a telephone conference circuit/bridge or similar communications equipment by means of which all persons participating in the meeting shall be able to hear one another and participate therein. Such meeting shall be deemed to have been held at a place designated by the Trustees at the meeting. Participation in a telephone conference meeting shall constitute presence in person at such meeting. Section 1.12. Committees. The Trustees may appoint from among their number such committees as they may from time to time deem desirable, and such committees shall continue for such time and exercise such powers as the Trustees may prescribe. Section 1.13. Audit Committee. A committee, designated as the "Audit Committee," may be appointed by a majority of the Trustees. The Audit Committee shall consist of one Trustee, who shall be the Chairman, and one or more Trustees and/or outside parties; all such members shall serve on the Audit Committee until they shall resign or shall be removed by the Trustees. The Audit Committee shall appoint its own secretary. The outside parties may be selected from the general counsel or special counsel to the Trust and any other appropriate party selected by the Trustees. The Audit Committee shall have the following responsibilities: (a) To recommend the appointment, subject to the power of the Trustees to reverse such appointment at their discretion, prior to each fiscal year of the Trust and for such fiscal year, of the Trust's independent certified public accountants (the "Accountants"); (b) To discuss with such Accountants the scope of their examination with particular attention to areas where either the Audit Committee or the Accountants believe special attention should be directed. The Audit Committee may recommend, and its Chairman may authorize, the Accountants to perform such supplemental reviews or audits as it may deem necessary or desirable; (c) To review the financial statements and the Accountants' report thereon with the Accountants and determine that the Accountants have received all the information and explanations they have requested; and (d) To solicit the Accountants' recommendations regarding internal controls and other matters. Minutes of the meetings of the Audit Committee shall be distributed by the Secretary to all of the Trustees at or prior to the meeting of the Trustees next succeeding by not less than two weeks such meeting of the Audit Committee. Section 1.14. Committee Rules. Unless the Trustees otherwise provide, each committee designated by the Trustees may adopt, amend and repeal rules for the conduct of such committee's business. In the absence of a provision by the Trustees or a provision in the rules of such committee to the contrary, a majority of the entire authorized number of members of such committee shall constitute a quorum for the transaction of business, the vote of a majority of the members present at a meeting at the time of such vote if a quorum is then present shall be the act of such committee, and in other respects each committee shall conduct its business in the same manner as the Trustees conduct their business pursuant to Article III of the Declaration and this Article I of these By-Laws. ARTICLE II. OFFICERS Section 2.1. Enumeration. The officers of the Trust shall be a President, a Secretary, a Treasurer, and such other officers as are elected by the Trustees, including, in their discretion, a Chairman, with such duties as are assigned to them by the Trustees. Officers shall be elected by and shall hold office at the pleasure of the Trustees. When the duties do not conflict, any two or more offices, except those of Chairman and/or President and Secretary, may be held by the same person. No officer shall be obligated by these By-Laws to give any bond or other security for the performance of any of his duties hereunder. The Trustees may, however, at their discretion, direct the Treasurer and/or any Assistant Treasurer to furnish at the expense of the Trust, a fidelity bond approved by the Trustees, in such amount as the Trustees may prescribe. Section 2.2. Powers and Duties of the Chairman. The Chairman, if there shall be such an officer, shall, if present, preside at all meetings of the Shareholders and the Trustees, shall, subject to the control of the Trustees, have general supervision, direction and control of the business of the Trust and its employees and may be the chief executive officer of the Trust if the Trustees so elect. Section 2.3. Powers and Duties of the President. Subject to such supervisory powers, if any, as may be given by the Trustees to the Chairman or to the chief executive officer of the Trust, the President shall, subject to the control of the Trustees and the supervision of the Chairman or chief executive officer, if any, have general supervision, direction and control of the business of the Trust and its employees and shall exercise such general powers of management as are usually vested in the office of president of a corporation. In the absence of the Chairman or chief executive officer, or if there be none, he shall preside at all meetings of the Shareholders and/or Trustees and, unless the Chairman or another officer has been designated as chief executive officer, shall be the chief executive officer of the Trust. He shall be, ex officio, a member of all standing committees. Section 2.4. Powers and Duties of Vice President. The Vice President, if there shall be such an officer or officers, shall subject to such supervisory powers, if any, as may be given by the Trustees to the Chairman or President, and to the extent not otherwise expressly exclusively designated to another officer, have general supervision, direction and control of the business of the Trust and its employees and shall exercise general powers of management of the Trust. Each Vice President, if any, designated by the Trustees shall be an administrative officer of the Trust and have such duties as are designated to him or her by the President or the Trustees. Section 2.5. Duties of Secretary. (a) Minutes. The Secretary is responsible for the keeping of full and complete minutes of the meetings (or actions in lieu thereof) of the Trustees, any committees of the Trustees, and the Shareholders and the giving of notice, as required, of all such meetings; (b) Trust Seal. The Secretary shall keep the seal of the Trust and affix the same to all instruments executed by the Trust which require it; (c) Books and Other Records. The Secretary shall maintain custody of, and keep the books of account and other records of the Trust except such as are in the custody of the Treasurer; (d) Share Register. The Secretary shall maintain at the principal office of the Trust a share register, showing the current ownership and transfers of ownership of all Shares of the Trust, unless a transfer agent is employed to maintain and does maintain such a share register; and (e) General Duties. Generally, the Secretary shall perform all duties which pertain to his office, which are required by the Trustees, and which would typically be performed by a person holding the office of "Clerk" in a Massachusetts Business Corporation. An Assistant Secretary or Secretaries may be appointed to act in the absence of the Secretary. Section 2.6. Duties of the Treasurer. The Treasurer shall perform all duties which pertain to his office and which are required by the Trustees, including without limitation, the receipt, deposit and disbursement of funds belonging to the Trust. An Assistant Treasurer or Treasurers may be appointed to act in the absence of the Treasurer. ARTICLE III. SHAREHOLDERS Section 3.1. Effect of Quorum. Subject to the provisions of the Declaration, the Shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough Shareholders to leave less than a quorum. Section 3.2. Place of Meeting. Meetings of the Shareholders shall be held at the principal office of the Trust or at such place within or without the Commonwealth as is designated by the Trustees or the Chairman or President or by the written consent of a majority of the Shareholders entitled to vote thereat, given either before or after the meeting and filed with the Secretary of the Trust. Section 3.3. Annual Meeting. A regular annual meeting of the Shareholders shall be called by the Chairman or President within six months after the end of each fiscal year. Section 3.4. Special Meetings. Special meetings of the Shareholders may be held at any time for any purpose or purposes permitted by the Declaration. Section 3.5. Notice of Regular or Special Meetings. Written notice specifying the place, day and hour of any regular or special meeting, the purposes of the meeting, and all other matters required by law shall be given to each Shareholder of record entitled to vote, either personally or by sending a copy thereof by mail or telegraph charges/postage prepaid, to his address appearing on the hooks of the Trust or theretofore given by him to the Trust for the purpose of notice or, if no address appears or has been given, addressed to the place where the principal office of the Trust is situated. It shall be the duty of the Secretary to give notice of each Annual Meeting of the Shareholders at least fifteen (15) days and not more than sixty (60) days before the date on which it is to be held. Whenever an officer has been duly requested to call a special meeting of Shareholders, it shall be his duty to fix the date and hour thereof, which date shall be not less than twenty (20) days and not more than sixty (60) days after the receipt of such request if the request has been delivered in person or after the date of mailing the request, as the case may be, and to give notice of such special meeting within ten (10) days after receipt of such request. If the date of such special meeting is not so fixed and notice thereof given within ten (10) days after the date of receipt of the request, the date and hour of such meeting may be fixed by the Person or Persons calling or requesting the meeting and notice thereof shall be given by such Person or Persons not less than twenty (20) nor more than sixty (60) days before the date on which the meeting is to be held. Section 3.6. Notice of Adjourned Meetings. It shall not be necessary to give notice of the time and place of any adjourned meeting or of the business to be transacted thereat other than by announcement at the meeting at which such adjournment is taken, except that when a meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Section 3.7. Proxies. The appointment of a proxy or proxies shall be made by an instrument in writing executed by the Shareholder or his duly authorized agent, and filed with the Secretary of the Trust. No proxy shall be valid after the expiration of eleven (11) months from the date of its execution. At a meeting of Shareholders all questions concerning the qualification of voters, the validity of proxies, and the acceptance or rejection of votes shall be decided by the Secretary of the Trust at the meeting unless inspectors of election are appointed pursuant to Section 3.10, in which event such inspectors shall pass upon all questions and shall have all other duties specified in said section. Section 3.8. Consent of Absentees. Actions taken at any meeting of Shareholders, either annual, special or adjourned, however called and noticed, shall be as valid as though taken at a meeting duly held after the regular call and notice if a quorum is present and if, either before or after the meeting, each Shareholder entitled to vote, not present in person or by proxy, signs a written waiver of notice, a consent to the holding of such meeting or an approval of the minutes thereof. All such waivers, consents or approvals shall be lodged with the records of the Trust or made a part of the minutes of the meeting. Section 3.9. Voting Rights. If no date is fixed for the determination of the Shareholders entitled to vote at any meeting of Shareholders, only Persons in whose names Shares entitled to vote stand on the share records of the Trust at the opening of business on the day of any meeting of Shareholders shall be entitled to vote at such meeting. Section 3.10. Inspectors of Election. In advance of any meeting of Shareholders, the Trustees may, at their discretion, appoint inspectors of election to act at the meeting or any adjournment thereof. If inspectors of election are not so appointed, the Chairman of any meeting of Shareholders may, and on the request of any Shareholder or his proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one or three. If appointed at the meeting on the request of one or more Shareholders or proxies, a majority of Shares present shall determine whether one or three inspectors are to be appointed. In case any Person appointed as inspector fails to appear or fails or refuses to act, the vacancy may be filled by appointment made by the Trustees in advance of the convening of the meeting or at the meeting by the Chairman of the meeting. The inspectors of election shall determine the number of Shares outstanding, the Shares represented at the meeting, the existence of a quorum and the authenticity, validity and effect of proxies, receive votes, ballots or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and tabulate all votes or consents, determine the results, and do such acts as may be proper to conduct the election or vote with fairness to all Shareholders. If there are three inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. On request of the Chairman of the meeting or of any Shareholder or his proxy, the inspectors shall make a report in writing of any challenge, question or matter determined by them and execute a certificate of any facts found by them. ARTICLE IV. MISCELLANEOUS Section 4.1. Record Dates and Closing of Transfer Books. Pursuant to the Declaration, the Trustees may fix record dates for specified purposes. If a record date is so fixed, only Shareholders of record on the date so fixed shall be entitled to the rights to which the record date pertains. The Trustees may close the books of the Trust against transfers of Shares during the whole or any part of the period between the record date and the date fixed for the meeting, payment, distribution or other event to which the record date relates. Section 4.2. Inspection of By-Laws. The Trustees shall keep at the principal office for the transaction of business of the Trust the original or a copy of the By-Laws as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the Shareholders at all reasonable times during office hours. ARTICLE V. SEAL Section 5.1. Seal. The Trust shall have a seal containing substantially the following words, "99 RESTAURANTS OF MASSACHUSETTS, a Massachusetts Business Trust," and referring to the date or year of organization of the Trust, ("2002"). ARTICLE VI. AMENDMENTS Section 6.1. By Trustees. Except for any change for which the Declaration or these By-Laws require approval by more than a majority vote, these By-Laws may be amended or repealed or new or additional By-Laws may be adopted, by the vote or written consent of a majority of the Trustees. ARTICLE VII. FISCAL YEAR Section 7.1. Fiscal Year. The fiscal year of the Trust shall end on the last Sunday of December of each year, unless, in accordance with the Declaration, the Trustees have adopted another fiscal year. ARTICLE VIII. SHARE CERTIFICATES Section 8.1. Share Certificates. The form of certificates representing ownership of Shares in the Trust to be issued in accordance with Section 5.2 of the Declaration shall be determined by resolution of the Trustees and may be revised in the same manner. ARTICLE IX. REPORTS Section 9.1. Reports. The Trustees and officers shall on behalf of the Trust render reports at such time and in such manner as may be required by law, by the Declaration, and by these By-Laws. Officers and Committees shall render to the Trustees such additional reports as may from time to time be required by the Trustees. ARTICLE X. RESTRICTIONS ON TRANSFER OF SHARES Section 10.1. Purpose of Restriction. The Trust seeks to assure the continuity of ownership and management of its affairs upon the transfer of Shares and upon the death or withdrawal from ownership of beneficial interests by a Shareholder; and the Trust also wishes that, in the event of such transfer of Shares or death or withdrawal of ownership, the beneficial interest involved will not be disposed of to interests adverse to those of the persons previously named as Shareholders. The Shareholders and the Trust seek to assure that a Shareholder retires his Shares to the Trust upon the death or withdrawal by the Shareholder, and that a Shareholder who desires to transfer his or her Shares offers such Shares first to the Trust. The Shareholders and the Trust seek such restrictions on the transfer of Shares in order to accomplish the retention of controlling interest in the Trust in the hands of the original Shareholders; the avoidance of an excessively sharp heavy financial burden upon the Trust in the matter of acquiring each such Share; and the provision of a means of eventual liquidation of each Share in a manner which will be orderly and profitable rather than hasty and uneconomical. Section 10.2. Transfer Restrictions. Upon the desire of a Shareholder to sell, transfer, pledge, grant or otherwise dispose of any of his Shares in the Trust (collectively herein referred to as "transfer," and/or upon the death or withdrawal of a Shareholder of the Trust from ownership of the Trust, whether voluntary or otherwise, the respective Shares involved shall be transferred back to the Trust through the following methods of redemption, as appropriate: (a) Upon the death of a Shareholder, the Trust shall redeem the Shares of the deceased Shareholder for the value calculated in accordance with the book value exclusive of good will of the Trust as approved at the last annual or special meeting of the Shareholders of the Trust. Such determination of book value exclusive of good will of the Trust shall be binding upon all Shareholders of the Trust. The Trust shall purchase back the Shares of the deceased Shareholder in cash from the net proceeds of insurance on the life of the deceased Shareholder, which life insurance policy the Trust or a wholly owned subsidiary thereto shall own and shall be solely responsible for the payments of premiums on. Any Shares which the Trust is unable to purchase directly upon the death of such Shareholder from the proceeds of insurance on the life of the deceased Shareholder, the Trust will purchase for the value calculated in accordance with the book value exclusive of good will of the Trust through consecutive annual payments beginning 240 days after the date of the Shareholder's death as to be evidenced by a promissory note executed by the Trust, having a five year maturity date, with interest charged per annum at a rate equal to the prime rate defined as the base rate on corporate loans at large U.S. Money Center commercial banks. Such promissory note shall provide for the acceleration of the due date of any unpaid note on default of the payment of any note or the interest thereon and shall provide that upon the default of any payment of any interest or principal, such note shall become due and payable immediately and shall give the Trust the option of prepayment in whole or in part at any time. Any payment in cash or through a promissory note for a deceased Shareholder's Shares by the Trust shall be made to the estate of the deceased Shareholder through the duly appointed personal representative of the deceased Shareholder. (b) Upon the desire of a Shareholder to transfer his Shares in the Trust and/or upon the withdrawal of a Shareholder, whether voluntary or otherwise, from ownership of beneficial interests in the Trust, the Shares of such Shareholder shall, at the option of the Trust and after receipt by the Trustees of a written notice of a desire to transfer or a written notice of withdrawal, as applicable, either signed by the Shareholder, or alternatively, signed and acknowledged by the Secretary of the Trust, be subject to determination of value and offer, sale, purchase and transfer in like applicable manner to that applied to the Shares of a deceased Shareholder as hereinabove set forth; except that the periods of time therein described shall be adjusted to run from the date of receipt by the Trustees of such written notice of a desire to transfer or written notice of withdrawal, respectively. The Trustees shall be under no obligation to so redeem the Shares of a Shareholder desiring to transfer his Shares or of a withdrawing Shareholder. If the Trust shall not within thirty (30) business days of receipt of a written notice of desire to transfer or a written notice of withdrawal, as applicable, inform such Shareholder of the Trust's intention to redeem the Shares of said Shareholder, the holder of said Shares shall be at liberty to sell or dispose of said Share or Shares to any person whatsoever, subject to any other restrictions which may be contained in the Declaration, By-Laws and/or applicable law (including securities laws). Until such written notice of desire to transfer or written notice of withdrawal and failure of the Trustees to inform such Shareholder of the Trust's intention to redeem said Shares as hereinbefore provided, no Shareholder shall be entitled to have his Shares transferred and any amounts which would otherwise have been paid as dividends thereon shall be reserved to become due and payable and to be paid over to the party entitled thereto upon the final disposition of said Shares. The hereinbefore stated formalities will not be required where the Trustees approve in writing of the transfer of Shares to any person or where the Trustees waive the aforementioned restrictions on transfer in writing, whereupon said transfer may be made to said person as approved. EX-3.30 30 g86000exv3w30.txt EX-3.30 ARTICLES OF ORGANIZATION OF 99 RESTAURANTS EXHIBIT 3.30 FORM: LIMITED LIABILITY COMPANY ARTICLES OF ORGANIZATION LLC ARTICLES OF ORGANIZATION (Domestic & foreign - T.11, Ch.21) This form should be filled out in full, printed, and returned, with the fee, to the Secretary of State's Office, 81 River Street, Drawer 09, Montpelier, VT 05609. Because a signature and fee is required we are not able to accept this on-line. We suggest that you consult an attorney if you have any legal questions regarding LLC filings. Name of LLC: [99 Restaurants of Vermont, LLC ] (Name must contain the words Limited Liability Company, LLC , LC) Organized under the laws of the state (or country) of: [Vermont ] A Foreign LLC must attach a good standing certificate, dated no earlier than 30 days prior to filing from its State of origin. Principal Office: [3038 Sidco Drive ] [Nashville ] [Tennessee ] [37204 ] Registered Agent: [CT Corporation System ] Agent's street & po box: [148 College Street ] [Burlington ] [Vermont ] [05401 ] The fiscal year ends the month of: [DEC ]. (DEC will be designated as the month your year ends unless you state differently.) Each company under this title is required to file an annual report within 2 -1/2 months of the close of its fiscal year. Failure to file may result in termination of the its authority. A pre-printed form will be mailed to your agent when the report is due. Is this a term LLC? [ ] Yes [X] No If Yes, state the duration of its term: duration An LLC is an At-Will Company unless it is designated in its articles of organization as a Term Co) This is a MANAGER-MANAGED company? [ ]Yes [X] No If yes, list name & address below: [Manager/name/address ] [Manager/name/address ] [Manager/name/address ] Are members personally liable for debts & obligations under T.11, Section 3043(b)? [ ] Yes [X] No Printed Name [Derek S. Hughey ] Signature /s/ Derek S. Hughey, Organizer [11/13/02] ------------------------------ Organizer's address: [315 Deaderick Street, Suite 2700 ] [Nashville ] [Tennessee ] [37238 ] FEES: Vermont Domestic = $75.00 Foreign (non-Vermont) = $100.00 Print & file in duplicate. If a delayed effective date is not specified [ ] (no later than 90 days after filing), it is effective the date it is approved. In the event that there is a problem with your application, give us an email address or a phone number so we can serve you faster: [dhughey@bassberry.com ] EX-3.31 31 g86000exv3w31.txt EX-3.31 OPERATING AGREEMENT OF 99 RESTAURANTS EXHIBIT 3.31 OPERATING AGREEMENT OF 99 RESTAURANTS OF VERMONT, LLC, A VERMONT LIMITED LIABILITY COMPANY ORGANIZED UNDER CHAPTER 21 OF TITLE 11, VERMONT STATUTES ANNOTATED ARTICLE I. INITIAL DATE, PARTIES, AUTHORIZATION, AND PURPOSE OF THIS AGREEMENT SECTION 1.01 INITIAL DATE; INITIAL PARTIES This Agreement is first made as of the 15th day of November, 2002 and is initially agreed to by 99 Restaurants of Vermont, LLC ("the Company") and 99 Restaurants, LLC, a Delaware limited liability company, which on that date is the Sole Member of the Company. SECTION 1.02 SUBSEQUENT PARTIES; ASSENT AS A PRECONDITION TO BECOMING A MEMBER OR TO OBTAINING RIGHTS TO BECOME A MEMBER (a) No person may become a Member of the Company without first assenting to and signing this Agreement. Any act by the Company to offer or provide Member status, or reflect that status in the Company's Required Records, automatically includes the condition that the person becoming a Member first assent to and sign this Agreement. (b) If: (1) the Company offers, makes, or signs a Contribution Agreement or Contribution Allowance Agreement, or any other agreement that permits or requires a person to make a contribution and become a Member, and (ii) the other party to the Contribution Agreement, Contribution Allowance Agreement, or other agreement is not already a Member and has not already assented to and signed this Agreement, then the Company's action automatically includes the condition that the other party assent to and sign this Agreement before that person actually makes a contribution or becomes a Member. (c) The Company is obligated not to accept a contribution from, or accord Member status to, any person who has not first assented to and signed this Agreement. The Company's acceptance of a contribution from a person who has not signed this Agreement does not waive that person's obligation to sign this Agreement. (d) No transfer of a Membership Unit or the governance rights of any Membership Unit is effective unless the assignment complies with Section 12.02 and the assignee has assented to and signed this Agreement. SECTION 1.03 AUTHORIZATION OF THIS AGREEMENT This Agreement is made under Section 3003 of Title 11, Vermont Statutes Annotated. ARTICLE II. DEFINITIONS SECTION 2.01 DEFINITIONS For purposes of this Agreement, unless the language or context clearly indicates that a different meaning is intended, the words, terms and phrases defined in this section have the following meanings: (a) "Act of the members" has the meaning stated in Section 10.01. (b) "Agreement" means this Operating Agreement, as amended from time to time under Article XVIII. (c) "Capital Account" means the account of any Member or Dissociated Member, maintained as provided in Section 7.02. (d) "Capital Interest" means the right of any Member or dissociated Member to be paid the amount in that Member's or Dissociated Member's Capital Account. (e) "Code" means the Internal Revenue Code of 1986, as amended, and any successor to that Code. (f) "Company" means 99 Restaurants of Vermont, LLC, a Limited Liability Company, organized under Vermont Code Chapter 21 of Title 11, Vermont Statutes Annotated. (g) "Contribution Agreement" means an agreement between a person and the Company, under which: (i) the person agrees to make a contribution in the future to the Company; (ii) the Company agrees that, at the time specified for the contribution in the future, the Company will accept the contribution, reflect the contribution in the Required Records, issue to the person a specified number of Membership Units, and accord the person status as a Member (if the person is not already a Member). 2 (h) "Contribution Allowance Agreement" means an agreement between a person and the Company, under which: (1) the person has the right, but not the obligation, to make a contribution to the Company in the future; and (2) the Company agrees that, if the person makes the specified contribution at the time specified in the future, the Company will accept the contribution, reflect the contribution in the Required Records, issue to the person a specified number of Membership Units, and accord the person status as a Member (if the person is not already a Member). (i) "Core business" means the Company's business involving the provision of management of restaurants in the state of Vermont. (j) "Default rule" means a rule stated in the Act: (1) which structures, defines, or regulates the finances, governance, operations, or other aspects of a limited liability company organized the Act, and (2) which applies except to the extent it is negated or modified through the provisions of a limited liability company's articles of organization or operating agreement. (k) "Disinterested" means, with respect to a Member and with respect to a particular transaction or other undertaking, a Member who (i) is not a party to that undertaking, (ii) has no material financial interest in any organization that is a party to that undertaking, and (iii) is not related by blood or marriage to any person who either is a party to that undertaking or has a material financial interest in any organization that is a party to that undertaking. (l) "Dissociation of a Member" or "Dissociation" occurs when the Company has notice or knowledge of an event that has terminated a Member's continued Membership in the Company (including an event that leaves a Member without any Governance Rights). (m) "Financial Rights" means a Member's rights to share in profits and losses, a Member's rights to receive distributions and a Member's Capital Interest. (n) "Fiscal Year" means the annual period upon which the Company files its federal tax return. (o) "Governance Rights" means all a Member's rights as a Member in the Company, other than financial rights and the right to assign financial rights. 3 (p) "LLC Act" means Chapter 21 of Title 11, Vermont Statutes Annotated. (q) Reserved. (r) "Majority-In-Interest Consent" means the consent described in Revenue Procedure 94-46, 1994-28 IRB 129, as amended from time to time. (s) "Member" means a person who owns at least one Membership Unit and whose ownership of one or more Membership Units is reflected in the Required Records. (t) "Membership Unit" has the meaning stated in Section 5.01. (u) "Person" includes a natural person, domestic or foreign limited liability company, corporation, partnership, limited partnership, joint venture, association, business trust, estate, trust, enterprise, and any other legal or commercial entity. (v) "Required Records" means those records that Section 3058 of Title 11, Vermont Statutes Annotated requires the Company to maintain. (w) "Successor LLC" means a limited liability company organized under Section 15.02 to participate as the surviving organization in a merger with the Company after the Company is dissolved. (x) "Termination of the Company" means, as defined in Section 3101 of Title 11, Vermont Statutes Annotated the end of the Company's legal existence. (y) "Transfer" includes an assignment, conveyance, lease, mortgage, security interest, deed, encumbrance, and gift. ARTICLE III. BACKGROUND OF THIS AGREEMENT SECTION 3.01 HISTORY AND NATURE OF THE COMPANY The Company has been organized in Vermont and will be engaged in the business of restaurant ownership and management. As of the initial date of this Agreement, the Company's principal place of business is 3038 Sidco Drive, Nashville, Tennessee 37204. SECTION 3.02 INTENT OF THIS AGREEMENT (a) The parties to this Agreement have reached an understanding concerning various aspects of (i) their business relationship with each other and (ii) the organization and operation of the Company and its business. They wish to use rights created by statute to record and bind themselves to that understanding. 4 (b) The parties intend this Agreement to control, to the extent stated or fairly implied, the business and affairs of the Company, including the Company's governance structure and the Company's dissolution, winding up, and termination, as well as the relations among the Company's Members and persons who have signed Contribution Agreements and Contribution Allowance Agreements. SECTION 3.03 INVALIDITY AND UNREASONABLENESS OF EXPECTATIONS NOT INCLUDED IN THIS AGREEMENT (a) The Members fear the uncertainty and the potential for discord that would exist if: (1) the unstated expectation of one or more Members can be used to gain advantage through litigation, or (2) expectations stated or expressed outside the confines of this Agreement can become actionable even though not all Members agree with those expectations or have assented to them and even though some Members have expressed or may harbor conflicting expectations. (b) The Members therefore agree that: (1) it is unreasonable for any Member to have or rely on an expectation that is not reflected in this Agreement; (2) any Member who has or develops an expectation contrary to or in addition to the contents of this Agreement has a duty to (A) immediately inform the other Member, and (B) promptly seek to have this Agreement amended to reflect the expectation; (3) the failure of a Member who has or develops an expectation contrary to or in addition to the contents of this Agreement to obtain an amendment of this Agreement as provided in Section 3.03(b)(ii) is evidence that the expectation was not reasonable and estops that Member from asserting that expectation as a basis for any claim against the Company or any other Member; (4) no Member has a duty to agree to an amendment proposed under Section 3.03(b)(ii) if the Member in good faith (A) holds an inconsistent expectation, or (B) believes that the amendment is not in the best interests of the Company or is contrary to the legitimate self-interests of the Member. SECTION 3.04 ADVICE OF COUNSEL Each person signing this Agreement: 5 (a) understands that this Agreement contains legally binding provisions, (b) has had the opportunity to consult with a lawyer, and (c) has either consulted a lawyer or consciously decided not to consult a lawyer. ARTICLE IV. RELATIONSHIP OF THIS AGREEMENT TO THE DEFAULT RULES PROVIDED BY THE LLC ACT AND TO THE ARTICLES OF ORGANIZATION SECTION 4.01 RELATIONSHIP OF THIS AGREEMENT TO THE DEFAULT RULES PROVIDED BY THE LLC ACT Regardless of whether this Agreement specifically refers to particular default rules: (a) if any provision of this Agreement conflicts with a default rule, the provision of this Agreement controls and the default rule is modified or negated accordingly, and (b) if it is necessary to construe a default rule as modified or negated in order to effectuate any provision of this Agreement, the default rule is modified or negated accordingly. SECTION 4.02 RELATIONSHIP BETWEEN THIS AGREEMENT AND THE ARTICLES OF ORGANIZATION If a provision of this Agreement differs from a provision of the Company's articles of organization, then to the extent allowed by law this operating agreement will govern. ARTICLE V. CAPITAL STRUCTURE: MEMBERSHIP AND CONTRIBUTIONS SECTION 5.01 MEMBERSHIP UNITS (a) Ownership rights in the Company are reflected in Membership Units, as recorded in the Required Records. Each Membership Unit: (i) has equal governance rights with every other Membership Unit and in matters subject to a vote of the Members has one vote; and (ii) subject to Sections 6.08(c) and 6.05(a), each Membership Unit has equal rights with every other Membership Unit with respect to sharing of profits and losses and with respect to distributions. (b) A Member may assign the Member's financial rights only as provided in and subject to Section 12.01. A Member may assign governance rights only as provided in Section 12.02. 6 Assignment of a Member's entire interest, or any Membership Unit, involves the assignment of both financial rights and governance rights and may be accomplished only by complying with both Section 12.01 and Section 12.02. (c) The Company will not issue any certificates of Membership Units, but will at the written request of a Member provide certified statements of Membership interests, stating the number of Membership Units owned, as well as any effective assignments of rights under those Units, as of the date the statement is provided. SECTION 5.02 ISSUANCE OF MEMBERSHIP UNITS BY THE COMPANY (a) The Members will determine when and for what consideration the Company will issue Membership Units. For each Member, the Required Records state the value and nature of the contribution received by the Company and the number of Membership Units received in return by the Member. (b) No Member has the right to make additional contributions or obtain additional Units, and each Member specifically waives any preemptive rights. SECTION 5.03 NO RIGHT OF COMPANY TO REQUIRE ADDITIONAL CONTRIBUTIONS Except as provided in a Contribution Agreement, the Company has no right to require any Member to make additional contributions. This section does not release any Member from any obligation or promise of future performance that the Company accepted as a contribution. SECTION 5.04 COMPANY'S RIGHT TO ACCEPT ADDITIONAL CONTRIBUTIONS LIMITED (a) The Company may not accept additional contributions, make Contribution Agreements or Contribution Allowance agreements, or create or allocate additional Membership Units except as approved by an act of the Members. (b) To be effective, the approval required by this section must specify the number of Units authorized. The approval may, but need not, specify the amount, nature, and value of the consideration to be received, the identity of the contributor or would-be contributor, a deadline by which the authorized contribution must be received, or any other condition on the approval. (c) Approval under this section is not effective to authorize the creation of a separate class or series of Membership Units. SECTION 5.05 NO RIGHTS OF REDEMPTION OR RETURN OF CONTRIBUTION Subject to Section 12.03, no Member has a right to have its Membership Units redeemed or its contribution returned prior to the termination of the Company, even if the Member dissociates prior to termination of the Company. Even at termination, the right to return of contribution or redemption 7 is subject to Article XV. ARTICLE VI. CAPITAL STRUCTURE: PROFITS, LOSSES, DISTRIBUTIONS, AND TRANSACTIONS BETWEEN MEMBERS AND THE COMPANY SECTION 6.01 ALLOCATION OF PROFITS AND LOSSES (a) Except as stated in Section 6.08(c), profits and losses are allocated each fiscal year according to the number of Membership Units owned, as reflected in the Required Records. (b) For any Membership Unit not owned by the same person for the entire fiscal year, the allocation will be prorated. (c) The Company will recognize any assignment of a Member's right to share in profits or losses only to the extent the assignment complied with Section 12.01. SECTION 6.02 NO RIGHT TO INTERIM DISTRIBUTIONS (a) Subject to Section 6.02(b), no Member has a right to any distribution prior to the termination of the Company. (b) From time to time, the Members shall determine in their reasonable judgment to what extent, if any, the Company's cash on hand exceeds the current and anticipated needs, including, without limitation, needs for operating expenses, debt service, acquisitions and reserves. To the extent such excess exists, the Members may make distributions to the Members in accordance with Section 6.03. SECTION 6.03 ALLOCATION OF INTERIM DISTRIBUTIONS (a) Except as stated in Section 6.08(c), interim distributions, if made, will be allocated according to the number of Membership Units owned, as reflected in the Required Records. (b) For any Membership Unit not owned by the same person for the entire fiscal year, the allocation will be prorated. (c) The Company will recognize any assignment of a Member's right to receive distributions only to the extent the assignment complied with Section 12.01. SECTION 6.04 NO RIGHT TO DISTRIBUTION UPON DISSOCIATION A Member's dissociation does not entitle the Member to any distribution, regardless of whether the dissociation causes the Company to dissolve. 8 SECTION 6.05 DISTRIBUTIONS UPON TERMINATION OF THE COMPANY (a) At the Termination of the Company, subject to Article XV and after the Company has satisfied or provided for the satisfaction of all the Company's debts and other obligations, the Company's assets will be distributed in cash to the Members and any dissociated Members whose interests have not been previously redeemed as provided in Sections 13.03 and 15.03 as follows: (1) first, in discharge of their respective Capital Interests; and (2) then, in proportion to their Membership Units. (b) If the Company lacks sufficient assets to make the distributions described in Section 6.05(a), the Company will make distributions in proportion to the amount in the respective Capital Interests of the Members and dissociated Members whose interests have not been previously redeemed. SECTION 6.06 DISTRIBUTIONS IN KIND (a) No Member has a right to any distribution in any form other than money. (b) The Company may not make a distribution in kind unless (i) the Member receiving the in-kind distribution consents, (ii) all Members receive undivided interests in the same property, or (iii) all Members receive, in proportion to their rights to distribution, interests in substantially equivalent property. SECTION 6.07 DISTRIBUTIONS SUBJECT TO SET-OFF BY THE COMPANY All distributions are subject to set-off by the Company (a) in the case of a Member, for any past-due obligation of the Member to make a contribution to the Company; and (b) in the case of an assignee of financial rights, for any past-due obligation owed to the Company by the Member who originally owned the financial rights. SECTION 6.08 LOANS FROM AND OTHER TRANSACTIONS WITH MEMBERS (a) With the approval of all the other Members, the Company may borrow money from and enter into other transactions with a Member. 9 (b) The Company may enter into transactions and other undertakings (including borrowing money) with a Member, with the written approval of all the Members, whether or not they would ordinarily have voting power. To be valid, the approval must be based on all material information concerning both the undertaking and the Interested Member's relationship to the undertaking. Valid approval under this paragraph constitutes approval under Section 3058 of Title 11, Vermont Statutes Annotated. (c) On account of loans made, or transactions performed, by a Member under this section, remaining Members may increase, temporarily or permanently, a Member's right to share in profits and distributions. (d) Borrowing from or engaging in other transactions with one or more Members does not obligate the Company to provide comparable opportunities to other Members. ARTICLE VII. TAX MATTERS SECTION 7.01 TAX CHARACTERIZATION AND RETURNS The initial Member hereto acknowledges that at all times that two or more persons or entities hold equity interests in the Company for federal income tax purposes (i) it is the intention of the Company to be treated as a "partnership" for federal and all relevant state tax purposes and (ii) the Company will be treated as a "partnership" for federal and all relevant state tax purposes and shall make all available elections to be so treated. Until such time, however, it is the intention of the Member that the Company be disregarded for federal and all relevant state tax purposes and that the activities of the Company be deemed to be activities of the Member for such purposes. All provisions of the Company's Articles of Organization and this Agreement are to be construed so as to preserve that tax status under those circumstances. In the event that the Company is treated as a partnership for tax purposes in accordance with this Section 7.01, then within ninety (90) days after the end of each fiscal year, the Company will cause to be delivered to each person who was a Member at any time during such fiscal year a Form K-1 and such other information, if any, with respect to the Company as may be necessary for the preparation of each Member's federal, state or local income tax (or information) returns, including a statement showing each Member's share of income, gain or loss, and credits for the fiscal year. SECTION 7.02 CAPITAL ACCOUNTS The Company will establish a Capital Account for each Member and will maintain each Account according to the following rules: (a) Maintenance. The Company will maintain the Capital Accounts in accordance with Treasury Regulations ss. 1.704-1(b)(2)(iv). (b) Liquidation Payments. If the Company liquidates itself or a Member's Membership interest, subject to Article XV, the Company will make liquidating distributions in accordance with 10 Section 6.05. (c) Negative Capital Account and Qualified Income Offset. A Member is not be liable to fund any deficit in the Member's Capital Account at any time. Notwithstanding any other provision in this Agreement, if a Member unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), and the unexpected adjustment, allocation, or distribution results in a deficit balance in the Capital Account for the Member, the Member will be allocated items of income and gain in an amount and manner sufficient to eliminate the deficit balance or the increase in the deficit balance as quickly as possible. It is intended that this subdivision will meet the requirements of a "qualified income offset" as defined in Treasury Regulations Section 1.704-1(b)(2)(ii)(d), and this subdivision is to be interpreted and applied consistent with that intention. (d) Nonrecourse Deductions. If a Member's Capital Account has a deficit balance at any time and the deficit or increase in deficit was caused by the allocation of nonrecourse deductions as defined in Treasury Regulations Section 1.704-2(b), then beginning in the first taxable year of the Company in which there are nonrecourse deductions or in which the Company makes a distribution of proceeds of a nonrecourse liability that are allocable to an increase in minimum gain as defined in Treasury Regulations Section 1.704-2(d) and thereafter throughout the full term of the Company, the following rules shall apply: (i) Nonrecourse deductions shall be allocated to the Members in a manner that is reasonably consistent with the allocations that have substantial economic effect as defined in Treasury Regulations Section 1.704-1 or some other significant item attributable to the property securing the nonrecourse liabilities, if applicable; and (ii) If there is a net decrease in minimum gain for a taxable year, each Member will be allocated items of Company income and gain for that year equal to that Member's share of the net decrease in minimum gain as defined in Treasury Regulations Section 1.704-2(g)(2). SECTION 7.03 ACCOUNTING DECISIONS (a) All of the Members will make all decisions as to accounting matters, and (b) All of the Members may cause the Company to make whatever elections the Company may make under the Code, including the election referred to in Section 754 of the Code to adjust the basis of Company assets. SECTION 7.04 "TAX MATTERS PARTNER" The Members will designate a Member to act on behalf of the Company as the "tax matters partner" within the meaning of Section 6231(a)(7) of the Code. 11 ARTICLE VIII. GOVERNANCE: MANAGEMENT BY MEMBERS SECTION 8.01 MANAGEMENT BY MEMBERS The Company will be managed by its Members. SECTION 8.02 OPERATIONAL AUTHORITY OF MEMBERS (a) Subject to Article IX and except as provided in Section 8.02(b), the Members, acting as a group, have sole authority to manage the Company and are authorized to make any contracts, enter into any transactions, and make and obtain any commitments on behalf of the Company to conduct or further the Company's business. (b) The Members may delegate to a subcommittee of Members, an individual Member, or an employee of the Company any management responsibility or authority except those matters described in Article IX. SECTION 8.03 MANAGERIAL DUTIES OF MEMBERS (a) Each Member must discharge his, her, or its managerial duties in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner the Member reasonably believes to be in the best interests of the Company. (b) A Member may rely on information received from other persons if that reliance is consistent with the Member's duties under Section 8.04(a). SECTION 8.04 NONLIABILITY OF MEMBERS FOR ACTS OR OMISSIONS IN THEIR MANAGERIAL CAPACITY To the full extent permitted by Section 3059 of Title 11, Vermont Statutes Annotated, all Members are released from liability for damages and other monetary relief on account of any act, omission, or conduct in the Member's Managerial capacity. This release does protect a Member from being required by a court to purchase the Membership interest of another Member who successfully contends that the Member has committed actionable oppressive acts to the prejudice of the other Member. No amendment or repeal of this section affects any liability or alleged liability of any Member for acts, omissions, or conduct that occurred prior to the amendment or repeal. SECTION 8.05 NO AUTHORITY OF INDIVIDUAL MEMBERS Except as authorized under paragraph 8.02(b), no individual Member is an agent of the Company or has the authority to make any contracts, enter into any transactions or make any commitments on behalf of the Company. 12 ARTICLE IX. LIMITATIONS ON MANAGERIAL POWERS SECTION 9.01 APPOINTMENT OF MANAGERS. The Members shall appoint a Chief Manager (which office may be designated "President" or "Chief Executive Officer" or such other designation as the Members may determine from time to time, but which officer shall in any event perform the functions of the "Chief Manager," and any references in this Agreement to the "Chief Manager" shall be deemed to be references to such officer) and a Secretary to serve as the Managers of the Company. The initial Chief Manager shall be Gregory L. Burns. The initial Secretary shall be William A. Gillespie. The Company shall have such additional Managers as may be appointed from time to time by the Members. Notwithstanding anything herein to the contrary, no Manager may take any action or execute any contract or document on behalf of the Company unless authorized to do so by the Members. SECTION 9.02 TERM; REMOVAL. The Managers shall serve for an indefinite term at the pleasure of the Members. A Manager may be removed from office at any time with or without cause by the Members. SECTION 9.03 MANAGER DUTIES. (a) Chief Manager. The Chief Manager shall see that all orders and resolutions of the Members are carried into effect and shall perform such other duties as the Members may from time to time prescribe. (b) Secretary. The Secretary shall attend all meetings of the Members and shall be responsible for recording the minutes thereof. The Secretary shall have the responsibility of authenticating records of the Company and receiving notices required to be sent to the Secretary and shall perform such other duties as the Members may from time to time prescribe. SECTION 9.04 MANAGER RESIGNATION. Any Manager of the Company may resign at any time by giving written notice to the Members. The resignation of any Manager shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 9.05 COMPENSATION AND REIMBURSEMENT. No Manager shall have any right to compensation for services performed on behalf of the Company except as determined from time to time by the Members. Notwithstanding the foregoing, a Manager shall have the right to be reimbursed by the Company for any out-of-pocket expenses incurred by 13 such Manager in connection with any services performed by such Manager on behalf of the Company. SECTION 9.06 NO EXCLUSIVE DUTY. Each Manager may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Member shall have the right to share or participate in such other investments or activities of such Manager based on such Manager's status as a Manager of the Company. No Manager shall incur any liability to any Member or the Company as a result of engaging in any other business or venture. SECTION 9.07 ACTIONS REQUIRING UNANIMOUS OR SUPERMAJORITY CONSENT (a) The Members have no authority or power to take the following actions unless first approved by an act of the Members giving unanimous approval: (i) the making of any Contribution Agreements or Contribution Allowance Agreements; (ii) the issuance of any additional Membership Units; SECTION 9.08 OTHER PROVISIONS LIMITING MANAGERIAL AUTHORITY When some other provision of this Agreement states procedures for taking particular actions or accomplishing specified results, that provision states the sole method for taking that action or accomplishing that result. ARTICLE X ACTS OF MEMBERS AND MEMBER MEETINGS SECTION 10.01 ACTS OF MEMBERS Except to the extent that Chapter 21 of Title 11, Vermont Statutes Annotated, the articles of organization, or this operating agreement require otherwise, an act of the Members consists of either: (a) a majority vote of the Membership Units present at a properly called meeting of the Members, when a quorum is present, or (b) written action without a meeting, as provided in Section 10.09. SECTION 10.02 REQUIRED ANNUAL MEETING 14 The Members will meet at least annually. Notice of this annual meeting shall comply with Section 10.04. SECTION 10.03 SPECIAL MEETINGS (a) A special meeting of the Members may be called for any purpose or purposes at any time by one or more Members owning at least ten percent (10%) of the Membership Units of the Company entitled to vote. (b) For any special meeting those persons who are demanding the special meeting must give written notice to the Chief Manager or the Secretary of the Company specifying the purposes of the meeting. Within thirty (30) days after either Officer receives a demand under this paragraph, that Officer must call a special meeting of the Members. If the Officer fails to call the special meeting as required by this paragraph, the person or persons making the demand may, at the expense of the Company, call the meeting by giving the notice described in Section 10.04. SECTION 10.04 NOTICE OF MEETINGS Written notice of each meeting of the Members, stating the date, time, and place and, in the case of a special meeting, the purpose or purposes, must be given to every Member at least ten (10) days and not more than sixty (60) days prior to the meeting. The business transacted at a special meeting of Members is limited to the purposes stated in the notice of the meeting. SECTION 10.05 LOCATION AND CONDUCT OF THE MEETINGS; ADJOURNMENTS (a) Each meeting of the Members will be held at the Company's principal place of business or at some other suitable location within the same county, as designated by the Chief Manager. (b) The Chief Manager will chair each meeting of the Members. (c) Any meeting of the Members may be adjourned from time to time to another date and time and, subject to Section 10.05(a), to another place. If at the time of adjournment the person chairing the meeting announces the date, time, and place at which the meeting will be reconvened, it is not necessary to give any further notice of the reconvening. SECTION 10.06 WAIVER OF NOTICE (a) A Member may waive notice of the date, time, place, and purpose or purposes of a meeting of Members. A waiver may be made before, at, or after the meeting, in writing, orally, or by attendance. (b) Attendance by a Member at a meeting is a waiver of notice of that meeting, unless the Member objects at the beginning of the meeting to the transaction of business because the meeting is not properly called or convened, or objects before a vote on an item of business because the item 15 may not properly be considered at that meeting and does not participate in the consideration of the item at that meeting. SECTION 10.07 PROXIES (a) A Member may cast or authorize the casting of a vote by filing a written appointment of a revocable proxy with the Chief Manager or the Secretary of the Company at or before the meeting at which the appointment is to be effective. The Member may sign or authorize the written appointment by telegram, cablegram, or other means of electronic transmission stating, or submitted with information sufficient to determine, that the Member authorized the transmission. Any copy, facsimile, telecommunication, or other reproduction of the original of either the writing or the transmission may be used in lieu of the original, if it is a complete and legible reproduction of the entire original. (b) A member may not grant or appoint an irrevocable proxy. SECTION 10.08 QUORUM For any meeting of the Members, a quorum consists of a majority of the Membership Units. If a quorum is present when a properly called meeting is convened, the Members present may continue to transact business until adjournment, even though the departure of Members originally present leaves less than the proportion otherwise required for a quorum. SECTION 10.09 ACTION WITHOUT A MEETING Any action required or permitted to be taken at a meeting of the Members may be taken without a meeting by written action signed by the Members who own the number of Membership Units equal to the number of Units that would be required to take the same action at a meeting of the Members at which all Members were present. The written action is effective when signed by Members owning the required number of Units, unless a different effective time is provided in the written action. When written action is taken by less than all Members, the Company will immediately notify all Members of the action's text and effective date. Failure to provide the notice does not invalidate the written action. ARTICLE XI REQUIRED RECORDS SECTION 11.01 CONTENTS AND LOCATION OF REQUIRED RECORDS The Company will maintain the Required Records at its principal place of business, or at some other location chosen by the Chief Manager. SECTION 11.02 ACCESS TO REQUIRED RECORDS 16 (a) After giving reasonable advance notice to the Company, any Member may inspect and review the Required Records and may, at the Member's expense, have the Company make copies of any portion or all of the Records. (b) Unless the Company agrees otherwise, all Member access to the Required Records must take place during the Company's regular business hours. The Company may impose additional reasonable conditions and restrictions on Members' access to the Required Records, including specifying the amount of advance notice a Member must give and the charges imposed for copying. ARTICLE XII TRANSFER RESTRICTIONS SECTION 12.01 FINANCIAL RIGHTS (a) A Member may assign its Financial Rights in whole or in part. As to the Company, an assignment of Financial Rights is effective only when the Company has received notice of the assignment and has noted the assignment in the Required Records. (b) An assignee of a Member's Financial Rights derives its rights exclusively through the Member/assignor. Any assignee takes the assignment subject to any claims or offsets the Company has against the Member, regardless of whether those claims or offsets exist at the time of the assignment or arise afterwards. An amendment to this Agreement may change a Member's rights and consequently affect the rights of an assignee, even if the amendment is made after the assignment. SECTION 12.02 COMPLETE MEMBERSHIP INTERESTS AND GOVERNANCE RIGHTS (a) A member must have Majority-In-Interest Consent before assigning a complete Membership Unit or any Governance Rights (i) to a Member, if the assignment will leave the assignor/Member with no Governance Rights; (ii) to a person not already a Member, regardless of whether the assignment will leave the assignor/Member with no Governance Rights. (b) If an assignment covered by Section 12.02(a)(ii) receives the required Majority-In-Interest Consent and takes effect, (i) the assignment will cause the assignor/Member to become a Dissociated Member, and (ii) the Majority-In-Interest Consent obtained to satisfy Section 12.02(a)(ii) will 17 also satisfy the requirement for Majority-In-Interest Consent established by Section 14.01 and triggered by the assignor/Member's dissociation from the Company. (c) An assignment made in violation of Section 12.02(a) is void. Section 12.02(a) does not limit the right or power of a Member to grant a revocable proxy under Section 10.07. SECTION 12.03 RIGHT TO PUT COMPLETE MEMBERSHIP INTEREST WHEN TRANSFER CONSENT IS UNREASONABLY WITHHELD (a) A would-be assignor may require the Company to redeem the Membership Units at the price and on the terms of the offer to purchase submitted under Section 12.03(a)(iv) if: (i) a Member proposes to assign all its Membership Units; (ii) the proposed assignee meets the suitability requirements stated in Section 12.03(b); (iii) the proposed assignee has made a bona fide, written, enforceable offer to purchase; and (iv) within ten (10) days of receiving written notice of the proposed assignment, including a copy of the offer referred to in clause (iii) above, (1) neither the Company nor the other Members give notice that they are exercising the rights stated in Section 12.02(a), and (B) the assignment does not receive the Majority-In-Interest Consent required by Section 12.02(a). To require the redemption, the would-be transferor must make a written demand on the Company within ten (10) days after the expiration of the deadline for approval stated in Section 12.03(a)(iv). (b) To be suitable to trigger the "put" rights stated in Section 12.03(a), the offer to purchase must: (1) involve a purchaser who is a lineal descendant of the initial Members; (2) involve a purchaser who can establish creditworthiness in the event any liability accrues for unlawful distributions; (3) involve a purchaser with experience in the Company's business; and (4) involve a purchaser who is not a competitor with the Company or any of the 18 parties to which it provides management services. ARTICLE XIII MEMBER DISSOCIATION: EFFECT ON DISSOCIATED MEMBER SECTION 13.01 IF DISSOLUTION RESULTS If the dissociation of a Member results in the dissolution of the Company, the Dissociated Member will have any rights of a Member who has not dissociated, subject to Section 13.03. SECTION 13.02 IF DISSOLUTION IS AVOIDED If the dissociation does not result from an expulsion under Section 13.03 and does not result in the dissolution of the Company: (a) The Dissociated Member loses, without compensation, all Governance Rights but will retain the Financial Rights owned before the dissociation; (b) Subject to Section 13.04, the Dissociated Member will be considered to have, as if no dissociation had occurred, (i) the same right to share in profits and losses under Section 6.01, (ii) the same right to distributions under Sections 6.03 and 6.05, (iii) the same Capital Interest; and (c) Neither the Company nor the remaining Members are obligated to purchase the interest of or to make any payment to the Dissociated Member. SECTION 13.03 EXPULSION OF A MEMBER (a) Without having to state, possess, or prove cause, the Company may expel any Member by an act of the Members reflecting the agreement of Members holding eighty percent (80%) of the Membership Units, excluding from the calculation Units owned by the Member sought to be expelled. (b) When a Member is expelled under Section 13.03(a): (i) if dissolution results, Section 13.01 governs; (ii) if dissolution does not result, 19 (A) all the Member's Financial Rights and Governance Rights are canceled and (B) as full compensation, the Member will receive its Capital Interest, subject to Section 13.04. If the expelled Member's Capital Interest constitutes more than twenty percent (20%) of the total of all Capital Interests, the Company may at its option pay the expelled Member in twelve (12) equal monthly installments, together with interest at the then applicable federal rate. SECTION 13.04 DAMAGES AND SET-OFFS (a) No Member has the right to dissociate before the end of the duration of the Company as stated in the articles of organization. If a Member dissociates before that time and the dissociation results from volitional conduct of the Member that could reasonably be characterized as resignation, retirement, or withdrawal, then the Dissociated Member is liable to the Company for damages resulting from the wrongful dissociation. (b) The Company may set off any amounts or obligations owed by a Dissociated Member to the Company against any amounts due the dissociated Member, regardless of the cause of a Member's dissociation and regardless of whether the Member's Dissociation results in dissolution of the Company. ARTICLE XIV MEMBER DISSOCIATION: EFFECT ON THE COMPANY SECTION 14.01 DISSOLUTION AVOIDANCE A Member's dissociation will not cause the Company to dissolve if (a) more than one Member remains, or, if only one Member remains, within sixty (60) days after the dissociation the sole remaining Member elects to continue the Company as a single Member Company; or (b) within sixty (60) days after the dissociation Majority-In-Interest Consent is obtained to avoid dissolution and to continue the existence and business of the Company. SECTION 14.02 AGREEMENT TO GIVE DISSOLUTION AVOIDANCE CONSENT (a) Subject to Section 14.02(b), within sixty (60) days after the Dissociation of a Member each remaining Member will consent to avoid dissolution and continue the existence and business of the Company. Each Member will give the consent in a form satisfactory to the Chief Executive Officer. 20 (b) The consent required by this section may be given through the holder of a revocable proxy authorized in Section 10.07. By this Agreement, each Member appoints the Chief Executive Officer as the holder of the Member's proxy for this purpose. ARTICLE XV BUSINESS CONTINUATION IN THE EVENT OF DISSOLUTION SECTION 15.01 TRIGGERING EVENTS (a) Subject only to Section 15.01(b), if the Company dissolves for any reason at any time, the affairs of the Company will be wound up and its legal existence terminated by merging the Company into a Successor LLC, as provided in Section 15.02. (b) Section 15.02 will not apply and the Company will be liquidated under Section 3101 of Title 11, Vermont Statutes Annotated, if (i) within sixty (60) days after the dissolution Members owning more than fifty percent (50%) of all Membership Units notify the Company in writing that they object to proceeding under Section 15.02, (ii) only one Member remains and such Member does not elect to continue the Company as a single Member Company, or (iii) more than twenty (20) years have passed since the initial date of this Agreement. SECTION 15.02 BUSINESS CONTINUITY (a) Subject only to Section 15.01(b), as soon as dissolution occurs the remaining Members will: (i) organize the Successor LLC, (ii) develop a plan of merger that complies with Section 15.02(c) for the Company and the Successor LLC, (iii) approve the plan of merger on behalf of the Company and submit the plan to the Company's Members for approval at a properly called meeting of the Members, (iv) cause the Managers, if any, of the Successor LLC to approve the plan of merger and submit the plan to the Members of the Successor LLC for 21 approval, and (v) cause the Members of the Successor LLC to approve the plan of merger. (b) When the plan of merger is presented to the Members for approval, the Members will, subject to Section 15.03, (i) vote to approve the plan, and (ii) sign any documents that the plan requires them to sign or whose execution is necessary to proper implementation of the plan. (c) The plan of merger must provide that (i) the Successor LLC will be the surviving organization in the merger, (ii) all the assets and liabilities of the Company will be transferred to the Successor LLC and the Successor LLC will continue the business of the Company under the same name, (iii) all Membership Units of the Members, including all Financial Rights (whether or not assigned) and all Governance Rights, will be converted into Membership Units in the Successor LLC having substantially identical terms, (iv) the Successor LLC will have articles of organization and an operating agreement that are substantially equivalent to the articles of organization and operating agreement in effect for the Company immediately prior to the merger, and (v) the rights of any dissociated Members as described in Article XIII will apply against the Successor LLC. SECTION 15.03 DISSENTERS' RIGHTS (a) Any person who is a Member at the time of dissolution can dissent from the implementation of the business continuation agreement stated in this section by giving written notice to the Company within five (5) days after the Members present the plan for a vote and by voting against the proposed merger. (b) A Member who properly dissents under Section 15.03(a) will be cashed out of the dissolved Company as if the Company had expelled the Member under Section 13.03, except that if the Company properly chooses to make installment payments, the obligation to make those payments will transfer to the Successor LLC as part of the merger contemplated by this article. 22 ARTICLE XVI INDEMNIFICATION SECTION 16.01 DEFINITIONS For purposes of this article, the terms defined in this section have the meanings given them. (a) "Company" includes any domestic or foreign company that was the predecessor of this Company in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. (b) "Official capacity" means (i) with respect to a Member, the position of Member in the Company, (ii) with respect to a person other than a Member, the elective or appointive office or position held by an officer, member of a committee, if any, or the efforts undertaken by a Member of the Company who acts on behalf of and at the request of the Company, or the employment or agency relationship undertaken by an employee or agent of the Company, and (iii) with respect to a member officer, employee, or agent of the Company who, while an officer, employee, or agent of the Company, is or was serving at the request of the Company or whose duties in that position involve or involved service as an officer, partner, trustee, or agent of another organization or employee benefit plan, the position of that person as an officer, partner, trustee, employee, or agent, as the case may be, of the other organization or employee benefit plan. (c) "Proceeding" means a threatened, pending, or completed civil, criminal, administrative, arbitration, or investigative proceeding, including a proceeding by or in the right of the Company. (d) "Special legal counsel" means counsel who has not represented the Company or a related company, or an officer, member, employee, or agent whose indemnification is in issue. SECTION 16.02 MANDATORY INDEMNIFICATION; STANDARD (a) The Company will indemnify a person made or threatened to be made a party to a proceeding by reason of the former or present official capacity of the person against judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorney fees and disbursements, incurred by the person in connection with the proceeding, if, with respect to the acts or omissions of the person complained of in the proceeding, the person (i) has not been indemnified by another organization or employee benefit plan for the same judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorney fees and disbursements, incurred by the person in connection with the proceeding with respect to the same acts or omissions; 23 (ii) acted in good faith; (iii) received no improper personal benefit; and (iv) in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and (v) in the case of acts or omissions occurring in the official capacity described in Section 16.01(c)(i) or Section 16.01(c)(ii), reasonably believed that the conduct was in the best interests of the Company, or in the case of acts or omissions occurring in the official capacity described in Section 16.01(c)(iii), reasonably believed that the conduct was not opposed to the best interests of the Company. If the person's acts or omissions complained of in the proceeding relate to conduct as a manager, officer, trustee, employee, or agent of an employee benefit plan, the conduct is not considered to be opposed to the best interests of the Company if the person reasonably believed that the conduct was in the best interests of the participants or beneficiaries of the employee benefit plan. (b) The termination of a proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent does not, of itself, establish that the person did not meet the criteria set forth in this Section 16.02. SECTION 16.03 ADVANCES If a person is made or threatened to be made a party to a proceeding, the person is entitled, upon written request to the Company, to payment or reimbursement by the Company of reasonable expenses, including attorney fees and disbursements, incurred by the person in advance of the final disposition of the proceeding, (a) upon receipt by the Company of a written affirmation by the person of a good faith belief that the criteria for indemnification set forth in Section 16.02 have been satisfied and a written undertaking by the person to repay all amounts so paid or reimbursed by the Company, if it is ultimately determined that the criteria for indemnification have not been satisfied, and (b) after a determination that the facts then known to those making the determination would not preclude indemnification under this article. The written undertaking required by paragraph (a) above is an unlimited general obligation of the person making it, but need not be secured and will be accepted without reference to financial ability to make the repayment. 24 SECTION 16.04 REIMBURSEMENT TO WITNESS Subject to the qualification under the standards described in Section 16.02, the Company will reimburse expenses, including attorney fees and disbursements, incurred by a person in connection with an appearance as a witness in a proceeding at a time when the person has not been made or threatened to be made a party to a proceeding. SECTION 16.05 DETERMINATION OF ELIGIBILITY (a) All determinations as to whether indemnification of a person is required because the criteria stated in Section 16.02 have been satisfied and as to whether a person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding as provided in Section 16.03 will be made: (i) by the Members, excluding the votes held by parties to the proceedings; or (ii) if an adverse determination is made under clause (i) or under paragraph (b), or if no determination is made under clause (i) or under paragraph (b) within sixty (60) days after the termination of a proceeding or after a request for an advance of expenses, as the case may be, by a court in Vermont, which may be the same court in which the proceeding involving the person's liability is taking or has taken place, upon application of the person and any notice the court requires. (b) With respect to a person who is not, and was not at the time of the acts or omissions complained of in the proceedings, an officer, or person possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of the Company, the determination whether indemnification of this person is required because the criteria set forth in Section 16.02 have been satisfied and whether this person is entitled to payment or reimbursement of expenses in advance of the final disposition of a proceeding as provided in Section 16.03 may be made by an annually appointed committee of the Members. SECTION 16.06 INSURANCE The Company may purchase and maintain insurance on behalf of a person in that person's official capacity against any liability asserted against and incurred by the person in or arising from that capacity, whether or not the Company would have been required to indemnify the person against the liability under the provisions of this article. SECTION 16.07 DISCLOSURE The amount of any indemnification or advance paid pursuant to this article and to whom and on whose behalf it was paid will be included in the Required Records. 25 SECTION 16.08 DISCRETIONARY INDEMNIFICATION OF OTHERS Nothing in this Article XVI limits the ability of the Members to cause the Company to indemnify any person or entity not described in this Article XVI pursuant to, and to the extent described in, an agreement authorized by an act of the Members. ARTICLE XVII REMEDIES FOR BREACH SECTION 17.01 SPECIFIC ENFORCEMENT Except for the provisions of Section 14.02, all breaches of this Agreement are subject to specific enforcement, without prejudice to the right to seek damages or other remedies. SECTION 17.02 CONCURRENT OR CONSECUTIVE CAUSATION OF DAMAGES (a) If two or more Members breach this Agreement and those breaches combine in any way, concurrently or consecutively, to produce harm to the Company, then those Members are jointly and severally liable to the Company for the entirety of the harm. This paragraph precludes a Member who has breached this Agreement from asserting that another Member's prior, contemporaneous, or subsequent breach constitutes a superseding, intervening, or independent cause or in any way releases the breaching Member from liability. (b) Section 17.02(a) does not preclude breaching Members from seeking contribution or indemnity from each other, or otherwise seeking to allocate among themselves the responsibility and liability for the harm caused to the Company. SECTION 17.03 ATTORNEY FEES AND OTHER LITIGATION EXPENSES If the Company resorts to litigation to remedy a breach of this Agreement by a Member or former Member and the Company prevails in the litigation, in addition to any other remedies available to the Company under this Agreement or by law the Company may collect its reasonable attorney fees and other costs and expenses of litigation. ARTICLE XVIII AMENDMENTS SECTION 18.01 REQUIREMENTS FOR AMENDMENTS To be effective, any amendment to this Agreement must be approved by an act of the Members reflecting approval by Members owning fifty-one percent (51%) of the Membership Units. 26 ARTICLE XIX MISCELLANEOUS SECTION 19.01 GOVERNING LAW This Agreement, and any question, dispute, or other matter related to or arising from this Agreement, will be governed by the laws of the State of Vermont. SECTION 19.02 BINDING EFFECT This Agreement binds all Members and their respective distributees, successors, and assigns and any other person claiming a right or benefit under or covered by this Agreement. SECTION 19.03 SEVERABILITY If any provision of this Agreement is held to be illegal, invalid, or unenforceable, (a) that provision will be fully severable and this Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never been part of this Agreement; (b) the remaining provisions of this Agreement will remain in full force and will not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement; and (c) in the place of the illegal, invalid, or unenforceable provision, there will be added automatically to this Agreement a legal, valid, and enforceable provision that is as similar to the illegal, invalid, or unenforceable provision as possible. SECTION 19.04 MULTIPLE COUNTERPARTS This Agreement may be executed in several counterparts, each of which will be considered an original and all of which will constitute one and the same document. Proving the execution and contents of this document against a party may be done by producing any copy of this Agreement signed by that party. SECTION 19.05 ADDITIONAL DOCUMENTS AND ACTS Each Member agrees to execute and deliver whatever additional documents and to perform such additional acts as may be necessary or appropriate to effectuate and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement. 27 SECTION 19.06 NOTICES (a) Any notice to be given or made to the Company, its Chief Manager, its Secretary, or any Member must be in writing and will be considered to have been given when delivered to the address specified in the Company's Required Records. (b) A person who wants to change its address as specified in the Required Records may do so by giving written notice of the change to the Company and to each Member. The change takes effect five days after the notice is given. [The following page is the signature page.] 28 ACCEPTED AND AGREED TO BY: 99 Restaurants of Vermont, LLC ("the Company") By: /s/ Gregory L. Burns --------------------------------------------- Name: Gregory L. Burns Title: Chief Manager and President 99 Restaurants, LLC (the "Member") By: /s/ Gregory L. Burns --------------------------------------------- Name: Gregory L. Burns Title: Chief Manager and President 29 EXHIBIT "A" 99 RESTAURANTS OF VERMONT, LLC Initial Parties
Name Membership Units ---- ---------------- ~~99 RESTAURANTS, LLC 100 TOTAL UNITS 100~~
30 COUNTERPART TO OPERATING AGREEMENT OF 99 RESTAURANTS OF VERMONT, LLC The undersigned Member of 99 Restaurants of Vermont, LLC (the "Company"), in conjunction with its admission to the Company as a Member, hereby agrees to become a party to, and hereby agrees to be bound by the terms and conditions of, this Operating Agreement. IN WITNESS WHEREOF, the undersigned has executed this Counterpart as of the 27th day of January, 2003. 99 WEST, INC. By: /s/ Gregory L. Burns --------------------------------- Name: Gregory L. Burns Title: President 31 FIRST AMENDMENT TO EXHIBIT A TO OPERATING AGREEMENT OF 99 RESTAURANTS OF VERMONT, LLC MEMBERS
Name Membership Units ---- ---------------- ~~99 WEST, INC. 100 TOTAL UNITS 100~~
Attest: The above information is true, complete and correct as of the 27th day of January, 2003. /s/ William A. Gillespie ------------------------ William A. Gillespie, Secretary 32 EX-3.32 32 g86000exv3w32.txt EX-3.32 ARTICLES OF ORGANIZATION OF 99 WEST, INC. EXHIBIT 3.32 THE COMMONWEALTH OF MASSACHUSETTS PAUL GUZZI Secretary of the Commonwealth STATE HOUSE BOSTON, MASS. 02133 ARTICLES OF ORGANIZATION (UNDER G.C. CH. 156B) INCORPORATORS NAME POST OFFICE ADDRESS Include given name in full in case of natural persons; in case of a corporation, give state of incorporation. Thomas J. Carens One Center Plaza Boston, Massachusetts 02108 The above-named incorporator(s) do hereby associate (themselves) with the intention of forming a corporation under the provisions of General Laws, Chapter 156B and hereby state(s): 1. The name by which the corporation shall be known is: 99 WEST, INC. 2. The purposes for which the corporation is formed are as follows: To buy, sell, prepare, and serve, on the premises or elsewhere, food and beverages, alcoholic or otherwise, of every kind and description at wholesale or retail; to provide entertainment in connection therewith; to buy, sell, improve, lease and otherwise deal in real property, to borrow and lend money; to carry on any activity necessary or incidental to the foregoing; and to carry on any business permitted by the laws of the Commonwealth of Massachusetts to a corporation organized under Chapter 156-B. NOTE: If provisions for which the space provided under Articles 2, 4, 5 and 6 is not sufficient additions should be set out on continuation sheets to be numbered 2A, 2B, etc. Indicate under each Article where the provision is set out. Continuation sheets shall be on 8 1/2 x 11 paper and must have a left hand margin 1 inch wide for binding. Only one side should be used. 3. The total number of shares and the par value, if any, of each class of stock which the corporation is authorized is as follows:
WITHOUT PAR VALUE WITH PAR VALUE ---------------------------------------------------------------- PAR CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE AMOUNT - ---------------------------------------------------------------------------------------- PREFERRED $ - ---------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------- COMMON 12,500 - ----------------------------------------------------------------------------------------
*4. If more than one class is authorized, a description of each of the different classes of stock with, if any, the preferences, voting powers, qualifications, special or relative rights or privileges as to each class thereof and any series now established: NONE. *5. The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are as follows: Any stockholder, including the heirs, assigns, executors or administrators of a deceased stockholder, desiring to sell or transfer such stock owned by him or them, shall first offer it to the corporation through the Board of Directors in the manner following: He shall notify the directors of his desire to sell or transfer by notice in writing, which notice shall contain the price at which he is willing to sell or transfer and the name of one arbitrator. The directors (elected by the stockholders other than the one desiring to sell) shall within thirty days thereafter either accept the offer, or by notice to him in writing name a second arbitrator, and these two shall name a third. It shall then be the duty of the arbitrators to ascertain the value of the stock, and if any arbitrator shall neglect or refuse to appear at any meeting appointed by the arbitrators, a majority may act in the absence of such arbitrator. After the acceptance of the offer, or the report of the arbitrators as to the value of the stock, the said directors SEE CONTINUATION SHEET 5A ATTACHED. *6. Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholder; or of any class of stockholders: SEE CONTINUATION SHEET 6A ATTACHED. ARTICLES OF ORGANIZATION - Continuation Sheet 5A shall have thirty days, within which to purchase the same at such valuation, but if at the expiration of thirty days, the corporation shall not have exercised the right so to purchase, the owner of the stock shall be at liberty to dispose of the same in any manner he may see fit. No shares of stock shall be sold or transferred on the books of the corporation until these provisions have been complied with, but the Board of Directors may in any particular instance waive the requirement. ARTICLES OF ORGANIZATION - Continuation Sheet 6A The Board of Directors of the corporation may make, amend, or repeal the by-laws of the corporation, in whole or in part, except with respect to any provision thereof which, by law, the Articles of Organization, or the By-Laws, require action exclusively by the stockholders entitled to vote thereon; but any by-law adopted by the Board of Directors may be amended or repealed by the stockholders. All meetings of stockholders of the corporation may be held within the Commonwealth of Massachusetts or elsewhere within the United States. The place of such meetings shall be fixed in, or determined in the manner provided in, the by-laws. Each director or officer, present or former, of the corporation or of any other corporation a majority of the stock of which is owned by the corporation, shall be indemnified by the corporation against all costs and expenses reasonably incurred by or imposed upon him in connection with or arising out of any action, suit, or proceeding in which he may be involved by reason of his being or having been such director or officer, such expenses to include the cost of reasonable settlements (other that amounts paid to the corporation itself) made with a view to curtailing costs of litigation. The corporation shall not, however, indemnify any such director or officer with respect to matters as to which he shall be finally adjudged in any such action, suit, or proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation, or in respect of any matter on which any settlement or compromise is effected if the total expense, including the cost of such settlement, shall substantially exceed the expense which might reasonably be incurred by such director or officer in conducting such litigation to a final conclusion. The foregoing right of indemnification shall not be exclusive of other rights to which any such director or officer may be entitled as a matter of law. In determining the reasonableness of any settlement, the judgment of the Board of Directors shall be final. No contract or other transaction between this corporation and any other firm or corporation shall be affected or invalidated by reason of the fact that any one or more of the directors or officers of this corporation is or are interested in, or is a member, stockholder, director, or officer, ARTICLES OF ORGANIZATION - Continuation Sheet 6B or are members, stockholders, directors, or officers of such other firm or corporation; and any director or officer or officers, individually or jointly, may be a party or parties to, or may be interested in, any contract or transaction of this corporation or in which this corporation is interested, and no contract, act, or transaction of this corporation with any person or persons, firm, association or corporation, shall be affected or invalidated by reason of the fact that any director or directors or officer or officers of this corporation is a party or are parties to, or interested in, such contracts, acts of transaction, or in any way connected with such person or persons, firm, association or corporation, and each and every person who may become a director or officer of this corporation is hereby relieved from any liability that might otherwise exist from thus contracting with this corporation for the benefit of himself or any firm, association or corporation which he may be anywise interested. The corporation may be a partner in any business enterprise which it would have the power to conduct itself. 7. By-laws of the corporation have been duly adopted and the initial directors, president, treasurer, and clerk, whose names are set out below, have been duly elected. 8. The effective date of organization of the corporation shall be the date of filing with the Secretary of the Commonwealth or if later date is desired, specify date (not more than 30 days after date of filing). 9. The following information shall not for any purpose be treated as a permanent part of the Articles of Organization of the Corporation. a. The post office address of the initial principal officer of the corporation in Massachusetts is: Salem Street, Lynnfield, Massachusetts b. The name, residence and post office address of each of the initial directors and following officers of the corporation are as follows:
NAME RESIDENCE POST OFFICE ADDRESS President: Charles F. Doe, 372 Highland Avenue, Winchester, Mass. - --------------------------------------------------------------------------------- Treasurer: Charles F. Doe, 372 Highland Avenue, Winchester, Mass. - --------------------------------------------------------------------------------- Clerk: Paul J. Whitney, 8 Hawthorne Road, Winchester, Mass. - ---------------------------------------------------------------------------------
Directors: Charles F. Doe, 372 Highland Avenue, Winchester, Mass. Paul J. Whitney, 8 Hawthorne Road, Winchester, Mass. Theodore S. Hatch, 94 Boylston Circle, Shrewsbury, Mass. c. The dates initially adopted on which the corporation's fiscal years ends is: December 31 d. The date initially fixed in the by-laws for the annual meeting of stockholders of the corporation is: Second Thursday in March e. The name and business address of the resident agent, if any, of the corporation is: None. IN WITNESS WHEREOF and under the penalties of perjury the above-named INCORPORATOR(S) sign(s) these Articles of Organization this Thirteenth day of November, 1975. /s/ Thomas J. Carens ----------------------------------- Thomas J. Careens ----------------------------------- ----------------------------------- The signature of each incorporator which is not a natural person must be by an individual who shall show the capacity in which he acts and by signing shall represent under the penalties of perjury that he is duly authorized on its behalf to sign these Articles of Organization. THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF ORGANIZATION GENERAL LAWS, CHAPTER 156B, SECTION 12 I hereby certify that, upon an examination of the within-written articles of organization, duly submitted to me, it appears that the provisions of the General Laws relative to the organization of corporations have been complied with and I hereby approve said articles; and the filing fee in the amount of $125.00 having been paid, said articles are deemed to have been filed with me this 14th day of November, 1975. Effective date /s/ Paul Guzzi -------------------------- PAUL GUZZI Secretary of the Commonwealth TO BE FILLED IN BY CORPORATION PHOTO COPY OF ARTICLES OF ORGANIZATION TO BE SENT TO: Thomas J. Carens Roche, Carens & DeGiacomo One Center Plaza Boston, Massachusetts 02108 (Tel. #742-6161) FILING FEE: 1/20 of 1% of the total amount of the authorized capital stock with par value, and one cent a share for all authorized shares without par value, but not less than $75. General Laws, Chapter 156B. Shares of stock with a par value of less than one dollar shall be deemed to have par value of one dollar per share. EX-3.33 33 g86000exv3w33.txt EX-3.33 ARTICLES OF MERGER EXHIBIT 3.33 FEDERAL IDENTIFICATION FEDERAL IDENTIFICATION No. 82-0571242 No. 04-2580280 The Commonwealth of Massachusetts William Francis Galvin Secretary of the Commonwealth One Ashburton Place, Boston, Massachusetts 02108-1512 ARTICLES OF MERGER (General Laws, Chapter 156B, Section 78) *Merger of Volunteer Acquisition Corporation _________________________________ _________________________________ _________________________________ _________________________________ the constituent corporations, into 99 West, Inc. *one of the constituent corporations. The undersigned officers of each of the constituent corporations certify under the penalties of perjury as follows: 1. An agreement of *merger has been duly adopted in compliance with the requirements of General Laws, Chapter 156B, Section 78, and will be kept as provided by Subsection (d) thereof. *The surviving corporation will furnish a copy of said agreement to any of its stockholders, or to any person who was a stockholder of any constituent corporation, upon written request and without charge. 2. The effective date of the *merger determined pursuant to the agreement of *merger shall be the date approved and filed by the Secretary of the Commonwealth. If a later effective date is desired, specify such date which shall not be more than thirty days after the date of the filing. 3. (For a merger) **The following amendment to the Articles of Organization of the surviving corporation have been effected pursuant to the agreement of merger: See Continuation Sheet 3 *DELETE THE INAPPLICABLE WORD **IF THERE ARE NO PROVISIONS, STATE "NONE." NOTES: IF THE SPACE PROVIDED UNDER ANY ARTICLE OR ITEM ON THIS FORM IS INSUFFICIENT, ADDITIONS SHALL BE SET FORTH ON SEPARATE 8 1/2 X 11 SHEETS OF PAPER WITH A LEFT MARGIN OF AT LEAST 1 INCH. ADDITIONS TO MORE THAN ONE ARTICLE MAY BE MADE ON A SINGLE SHEET AS LONG AS EACH ARTICLE REQUIRING EACH ARTICLE REQUIRING EACH ADDITION IS CLEARLY INDICATED. CONTINUATION SHEET 3 SECTION 1 WAS AMENDED TO READ AS FOLLOWS: 1. The name by which the corporation shall be known is: 99 West, Inc. SECTION 2 WAS AMENDED TO READ AS FOLLOWS: 2. The purposes for which the corporation is formed are as follows: To buy, sell, prepare and serve food and beverages, alcoholic or otherwise, of every kind and description at wholesale or retail; to provide entertainment in connection therewith; to buy, sell, improve, lease and otherwise deal in real property; to borrow and lend money; to carry on any activity necessary or incidental to the foregoing; and to carry on any business permitted by the laws of the Commonwealth of Massachusetts of a corporation organized under Chapter 156B. SECTION 3 WAS AMENDED TO READ AS FOLLOWS: 3. The total number of shares and the par value, if any, of each class of stock which the corporation is authorized is as follows:
WITHOUT PAR VALUE WITH PAR VALUE - ----------------------------------------------------------------------------------------- TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE - ----------------------------------------------------------------------------------------- Common: 1,000 Common: - ----------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------- Preferred: Preferred: - -----------------------------------------------------------------------------------------
SECTION 5 WAS AMENDED TO READ AS FOLLOWS: 5. The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are as follows: NONE. SECTION 6 WAS AMENDED TO READ AS FOLLOWS: 6. Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining or regulating the powers of the corporation, or its directors or stockholders, or of any class of stockholders: The Board of Directors of the corporation may make, amend, or repeal the by-laws of the corporation, in whole or in part, except with respect to any provision thereof which, by law, the Articles of Organization, or the by-laws, require action exclusively by the stockholders entitled CONTINUATION SHEET 3 (CONTINUED) to vote thereon; but any by-law adopted by the Board of Directors may be amended or repealed by the stockholders. All meetings of stockholders of the corporation may be held within the Commonwealth of Massachusetts or elsewhere within the United States. The place of such meetings shall be fixed in, or determined in the manner provided in, the by-laws. Each director or officer, present or former, of the corporation or of any other corporation a majority of the stock of which is owned by the corporation, shall be indemnified by the corporation against all costs and expenses reasonably incurred by or imposed upon him in connection with or arising out of any action, suit, or proceeding in which he may be involved by reason of his being or having been such director or officer, such expenses to include the cost of reasonable settlements (other than amounts paid to the corporation itself) made with a view to curtailing costs of litigation. The corporation shall not, however, indemnify any such director or officer with respect to matters as to which he shall be finally adjudged in any such action, suit, or proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of the corporation, or in respect of any matter on which any settlement or compromise is effected if the total expense, including the cost of such settlement, shall substantially exceed the expense which might reasonably be incurred by such director or officer in conducting such litigation to a final conclusion. The foregoing right of indemnification shall not be exclusive of other rights to which any such director or officer may be entitled as a matter of law. In determining the reasonableness of any settlement, the judgment of the Board of Directors shall be final. No contract, act, or other transaction between this corporation and any other firm or corporation shall be affected or invalidated by reason of the fact that any one or more of the directors or officers of this corporation is or are interested in, or is a member, stockholder, director or officer, or are members, stockholder, directors, or officers of such other firm or corporation, and each and every person who may become a director or officer of this corporation is hereby relieved from any liability that might otherwise exist from thus contracting with this corporation for the benefit of himself or any firm, association or corporation which he may be otherwise interested. The corporation may be a partner in any business enterprise which it would have the power to conduct itself. (FOR A CONSOLIDATION) (a) The purpose of the resulting corporation is to engage in the following business activities: (b) State the total number of shares and the par value, if any, of each class of stock which the resulting corporation is authorized to issue.
WITHOUT PAR VALUE WITH PAR VALUE - ----------------------------------------------------------------------------------------- TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE - ----------------------------------------------------------------------------------------- Common: Common: - ----------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------- Preferred: Preferred: - -----------------------------------------------------------------------------------------
**(c) If more than one class of stock is authorized, state a distinguishing designation for each class and provide a description of the preferences, voting powers, qualifications, and special or relative rights or privileges of each class and of each series then established. **(d) The restrictions, if any, on the transfer of stock contained in the agreement of consolidation are: **(e) Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders: 4. The information contained in Item 4 is not a permanent part of the Articles of Organization of the *surviving corporation. (a) The street address of the *surviving corporation in Massachusetts is: (post office boxes are not acceptable): 160 Olympia Avenue, Woburn, MA 01801 **If there are no provisions state "None". (b) The name, residential address, and post office address of each director and officer of the surviving corporation is: NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS President: Gregory L. Burns 203 Lynnwood Blvd. Nashville, TN 37205 Treasurer: A. Chad Fitzhugh 1619 Edgewater Drive Franklin, TN 37069 Clerk: A. Chad Fitzhugh 1619 Edgewater Drive Franklin, TN 37069 Directors: Gregory L. Burns, Chairman 203 Lynnwood Blvd. Nashville, TN 37205 A. Chad Fitzhugh 1619 Edgewater Drive Franklin, TN 37069 Steve Hislop 1409 Willowbrook Circle Franklin, TN 37069 (c) The fiscal year (i.e. tax year) of the *surviving corporation shall end, on the last Sunday of the month of: December (d) The name and business address of the resident agent, if any, of the *surviving corporation is: National Registered Agents, Inc. 303 Congress Street, 2nd Floor Boston, MA 02110 The undersigned officers of the several constituent corporations listed above further state under the penalties of perjury as to their respective corporations that the agreement of merger has been duly executed on behalf of such corporation and duly approved by the stockholders of such corporation in the manner required by General Laws, Chapter l56B, Section 78. /s/ Gregory L. Burns , Gregory L. Burns, *President - --------------------------------------------------------------------- /s/ A. Chad Fitzhugh , A. Chad Fitzhugh, *Clerk - --------------------------------------------------------------------- of Volunteer Acquisition Corporation ----------------------------------------------------------------------------- (Name of constituent corporation) /s/ Charles F. Doe, Jr. , Charles F. Doe, Jr., *President - --------------------------------------------------------------------- /s/ Joseph R. Tarby, III , Joseph R. Tarby, III, *Clerk - ---------------------------------------------------------------------- of 99 West, Inc. ----------------------------------------------------------------------------- (Name of constituent corporation) *Delete the inapplicable words. THE COMMONWEALTH OF MASSACHUSEITS ARTICLES OF *CONSOLIDATION / *MERGER (General Laws, Chapter 156B, Section 78) I hereby approve the within Articles of *Consolidation / *Merger and, the filing fee in the amount of $_________, having been paid, said articles are deemed to have been filed with me this _______ day of __________________, 20_____. Effective date:______________________________________ WILLIAM FRANCIS GALVIN Secretary of the Commonwealth TO BE FILLED IN BY CORPORATION Photocopy of document to be sent to: Derek S. Hughey 315 Deaderick Street, Suite 2700 Nashville, TN 37238 Telephone:______________________ EX-3.34 34 g86000exv3w34.txt EX-3.34 BYLAWS OF 99 WEST, INC. EXHIBIT 3.34 BYLAWS OF VOLUNTEER ACQUISITION CORPORATION (A Massachusetts Corporation) ARTICLE I. STOCKHOLDERS' MEETINGS. Section 1. Annual Meetings. (a) All meetings of the stockholders, commencing in the year 2003, for the election of directors shall be held at such place as may be fixed from time to time by the Board of Directors either within or without the State of Massachusetts as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Massachusetts, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. The meeting shall be held within six months of the end of the fiscal year of the Corporation at such time and on such date as the Board of Directors shall determine. If that day is a legal holiday, the meeting shall be held on the next succeeding day not a legal holiday. The business to be transacted at the meeting shall be the election of directors and such other business as may be properly brought before the meeting. In no event shall the meeting be held on a date later than six months after the end of the fiscal year. (b) If the election of directors shall not be held on the day herein designated for any annual meeting, or at any adjournment of that meeting, the Board of Directors shall call a special meeting of the stockholders as soon as possible thereafter. At this meeting the election of directors shall take place, and the election and any other business transacted shall have the same force and effect as at an annual meeting duly called and held. (c) In the event the annual meeting is not held at the time prescribed in Article II, Section 1(a) above, and if the Board of Directors shall not call a special meeting as prescribed inArticle II, Section l(b) above within three months after the date prescribed for the annual meeting, then any stockholder may call that meeting, and at that meeting the stockholders may elect the directors and transact other business with the same force and effect as at an annual meeting duly called and held. Section 2. Special Meetings. Special meetings of the stockholders may be called by the President or by the Clerk, upon written request by the holders of at least 10 percent of the stock entitled to vote at that meeting. At any time, upon the written request of any person or persons entitled to call a special meeting, it shall be the duty of the Clerk to send out notices of the meeting, to be held within or without Massachusetts and at such time, but not less than 20 days nor more than 45 days after receipt of the request, as may be fixed by the Board of Directors. If the Board of Directors fails to fix a time or place, the meeting shall be held at the principal office of the Corporation at a time as shall be fixed by the Clerk within the above limits. Section 3. Notice and Purpose of Meetings; Waiver. Each stockholder of record entitled to vote at any meeting shall be given in person, or by mail, written or printed notice of the purpose or purposes, and the date, time and place within or outside Massachusetts, of every meeting of stockholders. This notice shall be delivered not less than 7 days nor more than 60 days before the meeting. If mailed it should be directed to the stockholder at the address last shown on the books of the Corporation. No publication of the notice of meeting shall be required. A stockholder may waive the notice of meeting by attendance, either in person or by proxy, at the meeting, or by so stating in writing, either before or after the meeting. Attendance at a meeting for the express purpose of objecting that the meeting was not lawfully called or convened shall not, however, constitute a waiver of notice. Except where otherwise required by law, notice need not be given of any adjourned meeting of the stockholders. Section 4. Quorum. Except as otherwise provided by law, a quorum at all meetings of stockholders shall consist of the holders of record of a majority in interest of all stock issued, outstanding and entitled to vote present in person or by proxy. Section 5. Closing of Transfer Books; Record Date. (a) In order to determine the holders of record of the Corporation's stock who are entitled to notice of meetings, to vote at a meeting or its adjournment, to receive payment of any dividend, or to make a determination of the stockholders of record for any other proper purpose, the Board of Directors of the Corporation may order that the stock transfer books be closed for a period not to exceed sixty days. If the purpose of this closing is to determine who is entitled to notice of a meeting and to vote at such meeting, the stock transfer books shall be closed for at least thirty days preceding such meeting. (b) In lieu of closing the stock transfer books, the Board of Directors may fix a date as the record date for the determination of stockholders. This date shall be no more than sixty days prior to the date of the action which requires the determination, nor, in the case of a stockholders' meeting, shall it be less than thirty days in advance of such meeting. (c) If no record date is fixed and the transfer books are not closed, the record date for determining stockholders having the right to notice or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors acts with respect thereto. (d) When a determination of stockholders entitled to vote at any meeting has been made as provided in this section, this determination shall apply to any adjournment of the meeting, except when the determination has been made by the closing of the stock transfer books and the stated period of closing has expired. Section 6. Presiding Officer; Order of Business. Meetings of the stockholders shall be presided over by the Chairman of the Board, or, if he or she is not present, by the President, or if he or she is not present, by a Vice-President, or if neither the Chairman of the Board, nor the President nor a Vice-President is present, by a chairman to be chosen by a majority of the stockholders entitled to vote at the meeting who are present in person or by proxy. The Clerk of the Corporation, or, in her or his absence, an Assistant Clerk, shall act as clerk of every meeting, but if neither the Clerk nor an Assistant Clerk is present, the stockholders present at the meeting shall choose any person present to act as clerk of the meeting. Section 7. Voting. (a) Except as otherwise provided in the Articles of Organization, the Bylaws, or the laws of Massachusetts at every meeting of the stockholders, each stockholder of the Corporation entitled to vote at the meeting shall have, as to each matter submitted to a vote, one vote in person or by proxy for each share of stock having voting rights registered in his or her name on the books of the Corporation. A stockholder may vote his or her shares through a proxy appointed by a written instrument signed by the stockholder or by a duly authorized attorney-in-fact and delivered to the clerk of the meeting. No proxy shall be valid after six months from the date of its execution unless a longer period is expressly provided. (b) A majority vote of those shares entitled to vote and represented at the meeting, a quorum being present, shall be the act of the meeting except that in electing directors a plurality of the votes cast shall elect. Section 8. List of Stockholders. (a) A complete list of the stockholders of the Corporation entitled to vote at the ensuing meeting, arranged in alphabetical order, and showing the address of, and number of shares owned by, each stockholder shall be prepared by the Clerk, or other officer of the Corporation having charge of the stock transfer books. This list shall be kept on file for a period of at least thirty days prior to the meeting at the principal office of the Corporation and shall be subject to inspection during the usual business hours of such period by any stockholder. This list shall also be available at the meeting and shall be open to inspection by any stockholder at any time during the meeting. (b) The original stock transfer books shall be prima facie evidence as to who are the stockholders entitled to examine the list or to vote at any meeting of the stockholders. (c) Failure to comply with the requirements of this section shall not affect the validity of any action taken at any meetings of the stockholders. Section 9. Action Without a Meeting. Unless otherwise provided in the Articles of Organization, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, and without prior notice, if all stockholders entitled to vote on the matter consent to the action in writing and the written consents are filed with the records of the meetings of stockholders. Such consent shall be treated for all purposes as a vote at a meeting. ARTICLE II. DIRECTORS. Section 1. Number, Qualification, Term, Quorum, and Vacancies. (a) The property, affairs and business of the Corporation shall be managed by a Board of Directors of at least three, but not more than ten, persons; provided, however, if the Corporation only has one stockholder, then the Board of Directors may consist of as few as one person, and if the Corporation has two stockholders, then the Board of Directors may consist of as few as two persons. Except as otherwise provided herein, directors shall be elected at the annual meeting of the stockholders and each director shall serve for one year and/or until his or her successor shall be elected and qualified. (b) The number of directors may be increased or decreased from time to time by vote of a majority of the directors then in office. Any increased number of directors shall be elected by the stockholders at the next regular annual meeting or at a special meeting called for that purpose. (c) Directors need not be stockholders of the Corporation. (d) A majority of the directors in office shall be necessary to constitute a quorum for the transaction of business. If, at any meeting of the Board of Directors, there shall be less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time until a quorum shall have been obtained. In case there are vacancies on the Board of Directors, the remaining directors, although less than a quorum, may by a majority vote elect a successor or successors for the unexpired term or terms. Section 2. Meetings. (a) Meetings of the Board of Directors may be held either within or without Massachusetts. Meetings of the Board of Directors shall be held at those times as are fixed from time to time by resolution of the Board. Special meetings may be held at any time upon call of the Chairman of the Board, the President, or a Vice-President, or a majority of directors, upon written notice sent via facsimile, e-mail, US Postal Service, private courier, or any other means reasonable under the circumstances to provide the director notice of the meetings at least one day prior to the day of the meetings. A meeting of the Board of Directors may be held without notice immediately following the annual meeting of the stockholders. Notice need not be given of regular meetings of the Board of Directors held at times fixed by resolution of the Board of Directors nor need notice be given of adjourned meetings. Meetings may be held at any time without notice if all the directors are present or if, before or after the meeting, those not present waive such notice in writing. Notice of a meeting of the Board of Directors need not state the purpose of, nor the business to be transacted at, any meeting. (b) Unless otherwise restricted by the Articles of Organization, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the directors consent to the action in writing and the written consents are filed with the records of the meetings of the Board of Directors. Such consents shall be treated for all purposes as a vote at a meeting. (c) Unless otherwise restricted in the Articles of Organization, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Section 3. Removal. Any director or the entire Board of Directors may be removed from office, with or without cause, by either a majority vote of the shares or class of shares, as the case may be, which elected the director or directors to be removed, or by a majority vote of the remaining members of the Board of Directors. Section 4. Indemnification. The Corporation shall indemnify each of its directors, officers, and employees whether or not then in service as such (and his or her executor, administrator and heirs), to the extent permitted by the Business Corporation Law of Massachusetts and the Articles of Organization. Section 5. Compensation. Directors, and members of any committee of the Board of Directors, shall be entitled to any reasonable compensation for their services as directors and members of any committee as shall be fixed from time to time by resolution of the Board of Directors, and shall also be entitled to reimbursement for any reasonable expense incurred in attending those meetings. The compensation of directors may be on any basis as determined in the resolution of the Board of Directors. Any director receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services. Section 6. Committees. (a) The Board of Directors, by a resolution or resolutions adopted by a majority of the members of the whole Board, may appoint an Executive Committee, an Audit Committee, and any other committees as it may deem appropriate. Each committee shall consist of one or more of the members of the Board of Directors. Each committee shall have and may exercise any and all powers as are conferred or authorized by the resolution appointing it. A majority of each committee may determine its action and may fix the time and place of its meetings, unless provided otherwise by the Board of Directors. The Board of Directors shall have the power at any time to fill vacancies in, to change the size of membership of, and to discharge any committee. (b) Each committee shall keep a written record of its acts and proceedings and shall submit that record to the Board of Directors at each regular meeting and at any other times as requested by the Board of Directors. Failure to submit the record, or failure of the Board of Directors to approve any action indicated therein will not, however, invalidate the action to the extent it has been carried out by the Corporation prior to the time the record of such action was, or should have been, submitted to the Board of Directors as provided. Section 7. Dividends. Subject always to the provisions of Massachusetts law and the Articles of Organization, the Board of Directors shall have full power to determine whether any, and, if so, what part, of the funds legally available for the payment of dividends shall be declared in dividends and paid to the stockholders of the Corporation. ARTICLE III. OFFICERS. Section 1. Number. The officers of the Corporation shall be a Chairman of the Board, a President, one or more Vice-Presidents, a Treasurer, a Clerk and one or more Assistant Clerks. In addition, there may be such subordinate officers as the Board of Directors may deem necessary. Section 2. Term of Office. The principal officers shall be chosen annually by the Board of Directors at the first meeting of the Board following the stockholders' annual meeting, or as soon as is conveniently possible. Subordinate officers may be elected from time to time. Each officer shall serve until his or her successor shall have been chosen and qualified, or until his or her death, resignation, or removal. Section 3. Removal. Any officer may be removed from office, with or without cause, at any time by the affirmative vote of a majority of the Board of Directors then in office. Section 4. Vacancies. Any vacancy in any office from any cause may be filled for the unexpired portion of the term by the Board of Directors. Section 5. Duties. (a) The Chairman of the Board shall preside at all meetings of the stockholders and the Board of Directors. Except where, by law, the signature of the President is required, the Chairman shall possess the same power as the President to sign all certificates, contracts, and other instruments of the Corporation which may be authorized by the Board of Directors. (b) The President, in the absence of the Chairman of the Board, shall preside at all meetings of the stockholders and the Board of Directors. She or he shall have general supervision of the affairs of the Corporation, shall sign or countersign all certificates, contracts, or other instruments of the Corporation as authorized by the Board of Directors, shall make reports to the Board of Directors and stockholders, and shall perform any and all other duties as are incident to her or his office or are properly required of him or her by the Board of Directors. (c) The Vice-Presidents, in the order designated by the Board of Directors, shall exercise the functions of the President during the absence or disability of the President. Each Vice-President shall have any other duties as are assigned from time to time by the Board of Directors. (d) The Clerk and the Treasurer shall perform those duties as are incident to their offices, or are properly required of them by the Board of Directors, or are assigned to them by the Articles of Organization or these Bylaws. The Assistant Clerks, in the order of their seniority, shall, in the absence of the Clerk, perform the duties and exercise the powers of the Clerk, and shall perform any other duties as may be assigned by the Board of Directors. (e) Other subordinate officers appointed by the Board of Directors shall exercise any powers and perform any duties as may be delegated to them by the resolutions appointing them, or by subsequent resolutions adopted from time to time. (f) In case of the absence or disability of any officer of the Corporation and of any person authorized to act in his or her place during such period of absence or disability, the Board of Directors may from time to time delegate the powers and duties of that officer to any other officer, or any director, or any other person whom it may select. Section 6. Salaries. The salaries, if any, of all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be ineligible to receive such salary by reason of the fact that he or she is also a Director of the Corporation and receiving compensation therefor. ARTICLE IV. CERTIFICATES OF STOCK. Section 1. Form. (a) The interest of each stockholder of the Corporation shall be evidenced by certificates for shares of stock, certifying the number of shares represented thereby and in such form not inconsistent with the Articles of Organization as the Board of Directors may from time to time prescribe. (b) The certificates of stock shall be signed by the Chairman of the Board of Directors, the President or a Vice-President and by the Clerk or the Treasurer. Where any certificate is manually signed by a transfer agent or a transfer clerk and by a registrar, the signatures of the President, Vice-President, Clerk, or Treasurer upon that certificate may be facsimiles, engraved or printed. In case any officer who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be an officer before the certificate is issued, it may be issued by the corporation with the same effect as if that officer had not ceased to be so at the time of its issue. Section 2. Subscriptions for Shares. Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at that time, or in installments and at any periods, as shall be specified by the Board of Directors. All calls for payments on subscriptions shall carry the same terms with regard to all shares of the time class. Section 3. Transfers. (a) Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the registered owner, or by his or her duly authorized attorney, with a transfer clerk or transfer agent appointed as provided in Section 5 of this Article of the Bylaws, and on surrender of the certificate or certificates for those shares properly endorsed with all taxes paid. (b) The person in whose name shares of stock stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof for all purposes. However, if any transfer of shares is made only for the purpose of furnishing collateral security, and that fact is made known to the Clerk of the Corporation, or to the Corporation's transfer clerk or transfer agent, the entry of the transfer may record that fact. Section 4. Lost, Destroyed, or Stolen Certificates. No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen except on production of evidence, satisfactory to the Board of Directors, of that loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount (but not to exceed twice the value of the shares represented by the certificate) and with such terms and surety as the Board of Directors, if any, in its discretion, require. Section 5. Transfer Agent and Registrar. The Board of Directors may appoint one or more transfer agents or transfer clerks and one or more registrars, and may require all certificates for shares to bear the signature or signatures of any of them. ARTICLE V. CORPORATE ACTIONS. Section 1. Deposits. The Board of Directors shall select banks, trust companies, or other depositories in which all funds of the Corporation not otherwise employed shall, from time to time, be deposited to the credit of the Corporation. Section 2. Voting Securities Held by the Corporation. Unless otherwise ordered by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend, act, and vote at any meeting of security holders of other corporations in which the Corporation may hold securities. At that meeting the President shall possess and may exercise any and all rights and powers incident to the ownership of those securities which the corporation might have possessed and exercised if it had been present. The Board of Directors may, from time to time, confer like powers upon any other person or persons. ARTICLE VI. CORPORATE SEAL. The Corporation shall not have a seal. ARTICLE VII. AMENDMENT OF BYLAWS. The Board of Directors shall have the power to amend, alter or repeal these Bylaws, and to adopt new Bylaws, from time to time, by an affirmative vote of a majority of the whole Board as then constituted. At the next stockholders' meeting following any action by the Board of Directors, the stockholders, by a majority vote of those present and entitled to vote, shall have the power to alter or repeal Bylaws newly adopted by the Board of Directors, or to restore to their original status Bylaws which the Board may have altered or repealed, and the notice of such stockholders' meeting shall include notice that the stockholders will be called on to ratify the action taken by the Board of Directors with regard to the Bylaws. EX-3.35 35 g86000exv3w35.txt EX-3.35 CERTIFICATE OF INCORPORATION EXHIBIT 3.35 CERTIFICATE OF INCORPORATION OF STONEY RIVER MANAGEMENT COMPANY, INC. * * * * * The undersigned natural person, acting as an incorporator of a corporation under the General Corporation Law of Delaware, hereby adopts the following Certificate of Incorporation for such corporation: ARTICLE ONE The name of the corporation is Stoney River Management Company, Inc. ARTICLE TWO The address of its registered office in the State of Delaware is 9 East Loockerman Street, in the city of Dover, County of Kent. The name of its registered agent at such address is National Registered Agents, Inc. ARTICLE THREE The purpose for which the corporation is organized is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. ARTICLE FOUR The total number of shares of stock that the corporation shall have authority to issue is One Thousand (1,000) shares of Common Stock, par value $.01 per share. ARTICLE FIVE The name and mailing address of the sole incorporator are as follows: J. James Jenkins, Jr. Bass, Berry & Sims PLC 315 Deaderick Street, Suite 2700 Nashville, Tennessee 37238-0002 ARTICLE SIX The corporation is to have perpetual existence. ARTICLE SEVEN In furtherance and not in limitation of the powers conferred by statute, the board of directors of the corporation is expressly authorized to make, alter or repeal the bylaws of the corporation. ARTICLE EIGHT Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the corporation may provide. The books of the corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the bylaws of the corporation. Election of directors need not be by written ballot unless the bylaws of the corporation so provide. ARTICLE NINE To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of the corporation shall not be liable to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE NINE shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification. ARTICLE TEN The corporation shall indemnify its officers, directors, employees and agents to the fullest extent permitted by the Delaware General Corporation Law. ARTICLE ELEVEN The corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware. ARTICLE TWELVE The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation. I, J. James Jenkins, Jr., being the incorporator herein before named, for the purpose of forming a corporation pursuant to the Delaware General Corporation Law, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 22nd day of May, 2000. /s/ J. James Jenkins, Jr. -------------------------------------------- J. James Jenkins, Jr., Sole Incorporator EX-3.36 36 g86000exv3w36.txt EX-3.36 BYLAWS OF STONEY RIVER MANAGEMENT COMPANY EXHIBIT 3.36 STONEY RIVER MANAGEMENT COMPANY, INC. ************* BYLAWS ************* ARTICLE I. OFFICES Section 1. The registered office shall be in the City of Dover, County of Kent, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE II. MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of Nashville, State of Tennessee, at such place as may be fixed from time to time by the Board of Directors, or at such other place as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held at such date and time as shall be designated from time to time by the Board of Directors. To be properly brought before an annual meeting business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a stockholder. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the meeting that the business was not properly brought before the meeting in accordance with the provisions of this Section 2, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. 2 Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III. DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than one nor more than twelve. The number of directorships at any time shall be that number most recently fixed by action of the Board of Directors or stockholders, or absent such action, shall be the number of directors elected at the preceding annual meeting of stockholders, or the meeting held in lieu thereof, plus the number elected since any such meeting to account for any increase in the size of the board. Section 2. Only persons who are nominated in accordance with the procedures set forth in this Section 2 shall be eligible for election as directors. Nominations of persons for election to the Board of Directors of the corporation may be made at a meeting of stockholders by or at the direction of the Board of Directors or by any stockholder of the corporation entitled to vote for the election of directors at the meeting who complies with the notice procedures set forth in this Section 2. Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the secretary of the corporation. The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures proscribed by the Bylaws, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. Section 3. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. 3 Section 4. The business of the corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these bylaws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 5. The Board of Directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 6. The first meeting of each newly elected Board of Directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected Board of Directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the directors. Section 7. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 8. Special meetings of the board may be called by the president without notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 9. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 10. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 11. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of 4 conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 12. The Board of Directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the bylaws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Section 13. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required. COMPENSATION OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 15. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. 5 ARTICLE IV. NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V. OFFICERS Section 1. The officers of the corporation shall be chosen by the Board of Directors and shall be a chairman, a president, a vice-president and a secretary. The Board of Directors may also choose additional vice-presidents, and one or more assistant secretaries. Any number of offices may be held by the same person, unless the certificate of incorporation or these bylaws otherwise provide. Section 2. The Board of Directors at its first meeting after each annual meeting of stockholders shall choose a chairman, president, one or more vice-presidents and a secretary. Section 3. The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the Board of Directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the corporation shall be filled by the Board of Directors. THE CHAIRMAN Section 6. The chairman shall preside at all meetings of the shareholders and the Board of Directors, shall see that all orders and resolutions of the Board of Directors are carried into effect and shall perform such other duties as the Board of Directors may from time to time prescribe. 6 THE PRESIDENT Section 7. The president shall be the chief executive officer of the corporation and shall have general and active management of the business of the corporation. Section 8. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 9. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 10. The secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 11. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. 7 ARTICLE VI. CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman of the Board of Directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The Board of Directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be canceled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A 8 determination of stockholders of record entitled to notice of or to vote at a meeting of stock holders shall apply to any adjournment of the meeting: provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII. GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The Board of Directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be the calendar year. 9 SEAL Section 6. The corporation shall have no seal. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII. AMENDMENTS Section 1. These bylaws may be altered, amended or repealed or new bylaws may be adopted by the stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors by the certificate of incorporation, at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new bylaws be contained in the notice of such special meeting. If the power to adopt, amend or repeal bylaws is conferred upon the Board of Directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal bylaws. 10 EX-3.37 37 g86000exv3w37.txt EX-3.37 CERTIFICATE OF FORMATION OF STONEY RIVER EXHIBIT 3.37 CERTIFICATE OF FORMATION OF STONEY RIVER, LLC This Certificate of Formation of Stoney River, LLC is to be filed with the Delaware Secretary of State pursuant to the Delaware Limited Liability Company Act (the "Act"), Section 18-201. 1. The name of the limited liability company is Stoney River, LLC. 2. The name, street and mailing address of the initial registered office and the registered agent for service of process of the limited liability company in the State of Delaware are as follows: The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 (New Castle County). 3. a. The limited liability company shall have the power to indemnify any person who has taken an action of management as a member, manager, employee or agent of the limited liability company, or any other person who is serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and any such indemnification may continue as to any person who has ceased to be a member, manager, employee, or agent and may inure to the benefit of the heirs, executors, and administrators of such a person. b. By action of the members, notwithstanding any interest of the managers in the action, the limited liability company may purchase and maintain insurance, in such amounts as the members deem appropriate, to protect any member, manager, employee, independent contractor or agent of the limited liability company or any other person who is or was serving at the request of the limited liability company in any such capacity with another foreign or domestic corporation, limited liability company, partnership, joint venture, trust, or other enterprise (including, without limitation, any employee benefit plan) against liability asserted against him or incurred by him in any such capacity or arising out of his status as such (including, without limitation, expenses, judgments, fines, and amounts paid in settlement) to the fullest extent permitted by the Act as it exists on the date hereof or as it may hereafter be amended, and whether or not the limited liability company would have the power or would be required to indemnify such person under the terms of any agreement or provision of its operating agreement or the Act. For purposes of this paragraph (b), "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan. Dated as of this 23rd day of December, 2002. /s/ J. James Jenkins, Jr. -------------------------------------- J. James Jenkins, Jr., Sole Organizer EX-3.38 38 g86000exv3w38.txt EX-3.38 OPERATING AGREEMENT OF STONEY RIVER, LLC EXHIBIT 3.38 OPERATING AGREEMENT OF STONEY RIVER, LLC OPERATING AGREEMENT OF STONEY RIVER, LLC THIS OPERATING AGREEMENT is made and entered into as of the 23rd day of December, 2002, by and among the persons listed on Exhibit A hereto (each, together with the other persons who may become members under the terms of this Agreement, a "Member" and collectively, the "Members"). W I T N E S S E T H: WHEREAS, the Member hereto desires to form a limited liability company under and pursuant to the Act (as defined below), to conduct certain business as a limited liability company, and to set forth the mutual rights and obligations of the Members in this Agreement; NOW, THEREFORE, in consideration of the mutual promises, covenants, and undertakings hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Members hereby agree as follows: ARTICLE I. DEFINITIONS 1.1 DEFINITIONS. As used herein the following terms have the indicated meanings: 1.1.1 "Act" means the Delaware Limited Liability Company Act, being Title 6, Sections 18-101 to 18-1109 of the Delaware Code Annotated, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.2 "Affiliate," with respect to any Entity, means (a) any other Entity, directly or indirectly, owning a 50% or greater ownership interest in such Entity; or (b) any other Entity in which such Entity has a 50% or greater ownership interest; or, (c) in the event a Member is a natural person, a member of such Member's Immediate Family or a trust for the benefit of the Member or a member of such Member's Immediate Family. 1.1.3 "Agreement" means this Operating Agreement, as amended from time to time. 1.1.4 "Assign" means to make an Assignment. 1.1.5 "Assignment" means any transfer, alienation, sale, conveyance, assignment, or other disposition of all or any part of an existing Membership Interest in the LLC, by operation of law or otherwise, including without limitation any gift, bequest, devise, hypothecation, mortgage, lien, pledge, encumbrance, or granting of a security interest. 1.1.6 "Available Cash Flow" means all cash, revenues, and funds received by the LLC, less the sum of the following to the extent paid or set aside by the LLC: (a) all principal and interest payments on indebtedness of the LLC and all other sums paid to lenders; (b) all cash expenditures incurred incident to the normal operation of the LLC's business; and (c) such reserves as the Members deem reasonably necessary to the proper operation of the LLC's business. 1.1.7 "Capital Account" in respect of any Member means the account established for that Member pursuant to Section 5.1 hereof, and as may be adjusted from time to time in accordance with this Agreement. 1.1.8 "Capital Contribution" shall mean any contribution to the capital of the LLC in cash or property by a Member whenever made. 1.1.9 "Certificate of Formation" means the Certificate of Formation of the LLC filed in the Office of the Secretary of State of the State of Delaware, as amended from time to time. 1.1.10 "Code" means the Internal Revenue Code of 1986, as amended from time to time, and any corresponding provisions of any successor legislation. 1.1.11 "Dissolution Event" has the meaning given to such term in Section 12.2 hereof. 1.1.12 "Entity" means any corporation, partnership, trust, limited liability company, or other entity. 1.1.13 "Financial Rights" means a Member's rights as a member of the LLC (a) to share in Net Income and Net Loss to the extent provided in this Agreement, and (b) to share in distributions to the extent provided in this Agreement. 1.1.14 "Governance Rights" means all of a Member's rights as a member of the LLC other than Financial Rights. 1.1.15 "Immediate Family" shall mean a Member's mother, father, brother, sister, son, daughter, son-in-law, daughter-in-law, grandson and granddaughter. 1.1.16 "LLC" means Stoney River, LLC, a Delaware limited liability company. 1.1.17 "Majority in Interest" and "majority in interest of the remaining Members" each mean Members (other than any Members excluded from the applicable vote, consent or other action by the terms of this Agreement or the Act) holding an interest in over 50% of the capital and profits of the LLC. 1.1.18 "Majority of the Membership Interests" and "majority of the voting power" each mean over 50% of the Membership Percentages (exclusive of any Membership Percentages excluded from the applicable vote, consent or other action by the terms of this Agreement or the Act). 2 1.1.19 "Managers" means the Chief Manager, Secretary and any other person appointed to be a "manager" as such term is used in the Act. 1.1.20 "Maximum Tax Liability" has the meaning given such term in Section 5.5 hereof. 1.1.21 "Members" means the persons who are, from time to time, admitted as members of the LLC pursuant to the Act and this Agreement and whose names are set forth on Exhibit A which is attached hereto and made part of this Agreement, as such Exhibit A may be amended from time to time. 1.1.22 "Membership Interest" means a Member's interest in the LLC, which when expressed as a percentage of all Membership Interests in the LLC shall be equal to such Member's Membership Percentage. 1.1.23 "Membership Percentage" means the percentage interest of a Member as shown on Exhibit A, as amended from time to time as provided in Section 4.5 hereof or as otherwise required by this Agreement, the Act, or the Code. 1.1.24 "Net Income" and "Net Loss," for each fiscal year or other period, means an amount equal to the LLC's taxable income or loss (including but not limited to any gain or loss to the LLC from any sale or disposition of all or any portion of the assets of the LLC) for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments: (i) Expenditures described in Section705(a)(2)(B) of the Code shall be included as an expense in the determination of Net Income and Net Loss; and (ii) Income exempt from taxation shall be included in the determination of Net Income and Net Loss. 1.1.25 "New Member" means any person other than Stoney River Management Company, Inc. 1.1.26 "Successor" means a Member's executor, administrator, guardian, conservator, other legal representative, or successor or assign. 1.1.27 "Treasury Regulations" means proposed, temporary, and final regulations promulgated under the Code. 3 ARTICLE II. ORGANIZATION 2.1 FORMATION. On December 23, 2002, the LLC was formed by the filing of the Certificate of Formation in the Office of the Secretary of State of the State of Delaware. 2.2 ADOPTION OF AGREEMENT. The Member hereto hereby adopts this Agreement as the limited liability company agreement of the LLC, as the term "limited liability company agreement" is used in the Act, to set forth the rules, regulations, and provisions regarding the governance of the LLC, the conduct of its business, and the rights and privileges of its Members. 2.3 NAME. The name of the LLC shall be Stoney River, LLC. The LLC may adopt and conduct its business under such assumed or trade names as the Members may from time to time determine. The LLC shall file any assumed or fictitious name certificates as may be required to conduct business in any state. 2.4 PRINCIPAL PLACE OF BUSINESS. The initial registered agent and registered office of the LLC shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, New Castle County. The principal executive office of the LLC shall be located at 3038 Sidco Drive, Davidson County, Nashville, Tennessee 37204, or such other place as the Members may from time to time determine. ARTICLE III. PURPOSE AND POWERS 3.1 PURPOSE. The purpose of the LLC shall be to engage in any lawful business permitted pursuant to the Act, as amended from time to time, or any successor provisions thereto. 3.2 POWERS. The LLC may exercise all powers that may be legally exercised by limited liability companies under the Act necessary or convenient to carry out its business and affairs and to effectuate the purpose described in Section 3.1 hereof. ARTICLE IV. CAPITAL CONTRIBUTIONS AND MEMBERSHIP INTERESTS 4.1 INITIAL CAPITAL CONTRIBUTION. Each Member shall be credited with having made an initial Capital Contribution to the LLC in cash and other property, tangible and intangible, in the amount set forth opposite such Member's name on Exhibit A hereto. 4.2 ADDITIONAL CONTRIBUTIONS. No Member shall be required to make any additional Capital Contribution. Members may make such additional Capital Contributions as may be approved from time to time by the Members. 4.3 WITHDRAWAL OR REDUCTION OF MEMBERS' CAPITAL CONTRIBUTIONS. No Member shall have the right to withdraw from the LLC except as provided in Section 12.3 hereof. A Member 4 shall not receive out of the LLC's property all or any part of such Member's Capital Contributions except as provided in Sections 5.7 and 12.4 hereof. 4.4 INTEREST AND PREFERENTIAL RIGHTS. No interest shall accrue on any Capital Contributions and no Member shall have any preferential rights with respect to distributions or upon dissolution of the LLC. 4.5 MEMBERSHIP INTERESTS AND AMENDMENTS TO EXHIBIT A. Each Member shall be credited with the Membership Interest (expressed as a percentage of all Membership Interests) and Capital Contribution set forth opposite such Member's name on Exhibit A. The amounts shown on Exhibit A with respect to Capital Contributions and Membership Interests shall from time to time be appropriately amended to reflect changes to such amounts as a result of any additional Capital Contributions by Members, any withdrawals or reductions in Capital Contributions, admission of any New Members to the LLC, or any Assignments of Membership Interests. Exhibit A shall also be amended from time to time to reflect any changes in the addresses of Members. ARTICLE V. ALLOCATION OF INCOME AND LOSSES; CASH DISTRIBUTIONS 5.1 CAPITAL ACCOUNTS. The LLC will maintain for each Member an account to be designated as such Member's "Capital Account." Each such Capital Account shall be credited (a) with the cash contributions of the respective Members, (b) with the fair market value of contributions of property by the respective Members (net of liabilities associated with such contributed property and assumed by the LLC), and (c) with the respective Member's share, determined as provided herein, of Net Income. Each Member's Capital Account shall be debited (a) with the respective Member's share, determined as provided herein, of Net Loss, (b) with the cash distributed to the respective Members, and (c) with the fair market value of all distributions of property to the respective Members (net of liabilities associated with such distributed property). The Capital Accounts shall be maintained in accordance with Section 1.704-1(b)(2)(iv) of the Treasury Regulations, and the items of income, profit, gain, expenditures, deductions, and losses that increase or decrease such capital accounts shall be those items that, pursuant to such Treasury Regulations, affect the balance of capital accounts. 5.2 ALLOCATION OF NET INCOME AND NET LOSS. Subject to Sections 5.3 and 5.4, hereof, Net Income or Net Loss of the LLC for each fiscal year, and all items of income, expense, and deduction entering into the determination of such Net Income or Net Loss, shall be allocated to the Members in proportion to their Membership Percentages. 5.3 SPECIAL ALLOCATIONS WITH RESPECT TO CONTRIBUTED OR REVALUED PROPERTY. If a Member contributes property to the LLC which has a difference between its tax basis and its fair market value on the date of its contribution, then all items of income, gain, loss, and deduction with respect to such contributed property shall be determined and allocated among the Members, and the Capital Accounts of the Members shall be determined in accordance with Section 704(c) of the Code, the Treasury Regulations thereunder, and Section 1.704-1(b) of the Treasury Regulations, so as to take into account the variation between the tax basis and fair market value 5 of such property at the time of its contribution. Furthermore, in the case of any required or optional revaluation of LLC property and corresponding adjustment of Capital Accounts, taxable income, gain, loss, and deduction with respect to such property shall be allocated among the Members in a manner that takes into account any variation between the adjusted tax basis of such property and its book value in the same manner as variations between tax basis and fair market value are taken into account under Section 704(c) of the Code in determining income, gain, loss, 5.4 ALLOCATIONS IN CASE OF ASSIGNMENT. Net Income or Net Loss allocable to any Member whose Membership Interest has been Assigned, in whole or in part, during any fiscal year shall be allocated among the persons who were the holders of such interests during such year in proportion to their respective holding periods, without separate determination of the results of LLC operations during such periods. Net Income or Net Loss attributable to a sale or other disposition of all or any portion of the assets of the LLC shall be allocated to those Members who were Members at the time of the occurrence of the disposition giving rise to such Net Income or Net Loss. 5.5 MANDATORY DISTRIBUTIONS. Unless all of the Members (excluding Financial Rights Holders) otherwise agree, the LLC shall distribute to each Member, no later than the forty-fifth day after the end of each quarter, an amount in cash equal to the Maximum Tax Liability for such Member for such quarter. To the extent there is not sufficient Available Cash Flow to distribute cash in the amount of the Maximum Tax Liability to each Member, the amount to be so distributed to the Members shall be reduced in proportion to their Membership Percentages so as to distribute no more than the total Available Cash Flow at the time of distribution. "Maximum Tax Liability" in respect of any Member for any quarter means an amount equal to the product of (x) the LLC's Net Income (as adjusted to the extent hereinafter provided) for such quarter, (y) a percentage equal to the then prevailing income tax rate applicable to individuals in the highest tax bracket for federal income tax purposes or, in the event a Member is an Entity subject to taxation, the income tax rate applicable to such Entity, and for state income tax purposes in the state having the highest applicable state income tax of any of the states in which any of the Members are subject to state income taxes and (z) a percentage equal to such Member's Membership Percentage. If there is a difference between the prevailing income and capital gains tax rates at either the federal or the state level, the Maximum Tax Liability shall be computed separately for ordinary income and capital gains, unless each of the Members otherwise agree. Income that is exempt from taxation shall not be included in the definition of Net Income for purposes of computing the Maximum Tax Liability. 5.6 DISTRIBUTION OF AVAILABLE CASH FLOW. In addition to the distributions provided for in Section 5.5 hereof, the LLC may, but is not obligated to, make current distributions out of Available Cash Flow as the Members may determine. Distributions shall be made to the Members in proportion to their respective Membership Percentages. 5.7 DISTRIBUTIONS UPON LIQUIDATION. Upon liquidation of the LLC, assets remaining after payment of all LLC debts and obligations in accordance with Section 18-804 of the Act shall be distributed in proportion to the Members' Membership Percentages. 5.8 CONSEQUENCES OF DISTRIBUTIONS. Upon the determination to distribute, remit, or pay funds in any manner expressly provided in this Article V, made in good faith, the Members 6 shall incur no liability on account of such distribution, even though such distribution may have resulted in the LLC retaining insufficient funds for the operation of its business, which insufficiency resulted in loss to the LLC or necessitated the borrowing of funds by the LLC. ARTICLE VI. MANAGEMENT BY MEMBERS 6.1 MANAGEMENT BY MEMBERS. The business and affairs of the LLC shall be managed by the Members. All powers to control the business and affairs of the LLC shall be exercised by or under the direction of the Members. 6.2 MUTUAL AGENCY OF THE MEMBERS. Each Member is an agent of the LLC for the purpose of its business, and the act of any Member, including the execution of any instrument in the name of the LLC, for apparently carrying on in the usual way the business of the LLC, shall bind the LLC, unless the Member so acting has in fact no authority to act for the LLC in the particular matter and the person with whom the Member is dealing has knowledge of the fact that such Member has no authority. An act of a Member which is not apparently for carrying on the business of the LLC in the usual way does not bind the LLC unless authorized by the Members as provided in this Agreement or the Certificate of Formation or as otherwise required by the Act. No action of a Member in contravention of such Member's authority shall bind the LLC to persons having knowledge of such restriction. 6.3 ACTIONS REQUIRING THE APPROVAL OF ALL OF THE MEMBERS. Unless authorized by all of the Members, no single Member or group of less than all of the Members shall have authority in the name of or on behalf of the LLC to: 6.3.1 dispose of the goodwill of all the business; 6.3.2 do any other act which would make it impossible to carry on the ordinary business of the LLC; 6.3.3 confess a judgment on behalf of the LLC; 6.3.4 submit a claim or liability to arbitration or reference; or 6.3.5 take any other action that would require the consent of all of the Members pursuant to this Agreement or the Act. 6.4 ACTIONS REQUIRING THE APPROVAL OF MEMBERS HOLDING A MAJORITY OF THE MEMBERSHIP INTERESTS. Unless authorized by Members holding at least a Majority of the Membership Interests, no single Member or group of Members shall have the authority in the name or on behalf of the LLC to: (i) sell, lease, exchange or otherwise dispose of any of the assets of the LLC or enter into any agreement to do the same, except for sales of assets in the ordinary course of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's 7 balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (ii) purchase, lease or otherwise acquire any assets, or enter into any agreement to do the same, except for acquisitions of assets in the ordinary course of business in an amount less than 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (iii) borrow money or incur indebtedness or other liabilities in excess of 10% of the LLC's net assets (as shown on the LLC's balance sheet as of the end of its most recently completed fiscal quarter) in any single transaction or series of related transactions; (iv) declare or make any distribution to Members except pursuant to Section 5.5 hereof; (v) enter into or agree to enter into any other transaction outside of the ordinary course of business of the LLC; or (vi) take any other action that would require the consent of the Members holding at least a Majority of the Membership Interests pursuant to this Agreement or the Act. 6.5 COMPENSATION AND REIMBURSEMENT. No Member shall have any right to compensation for any services performed on behalf of the LLC except as determined from time to time by Members holding at least a Majority of the Membership Interests. Notwithstanding the foregoing, a Member shall have the right to be reimbursed by the LLC for any out-of-pocket expenses incurred by such Member in connection with any services performed by the Member on behalf of the LLC. 6.6 NO EXCLUSIVE DUTY. Each Member may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have any right to share or participate in such other investments or activities of any other Member based on the fact that each are members of the LLC. No Member shall incur any liability to any other Member or the LLC as a result of engaging in any other business or venture. ARTICLE VII. MEETINGS OF MEMBERS AND ACTIONS ON WRITTEN CONSENT 7.1 MEETINGS. Meetings of the Members, for any purpose or purposes, may be called by the Chief Manager or any Member or Members holding, in the aggregate, 25% or more of the Membership Interests. 7.2 ACTION BY MEMBERS WITHOUT A MEETING. Action required or permitted to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken signed by all Members. Such written consent shall be filed with the minutes or records of the LLC. 8 7.3 PLACE OF MEETINGS; TELEPHONE MEETINGS. The Members may designate any place, either in or outside the State of Delaware, as the place of meetings for any meeting of the Members. If no designation is made, the place of meeting shall be the principal executive office of the LLC. A meeting may take place by telephone conference call or any other form of electronic communication through which the Members may simultaneously hear each other. Such meeting shall be deemed to be held at the principal executive office of the LLC or at the place properly named in the notice calling the meeting. 7.4 NOTICE OF MEETINGS. Written notice stating the place, day, and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than two days before the date of the meeting, either personally or by mail, by or at the direction of the person calling the meeting, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered as provided in Section 13.1 hereof. The business conducted at any meeting need not be limited to the matters referenced in the notice of the meeting. No notice shall be required for action by written consent pursuant to Section 7.2 hereof. 7.5 WAIVER OF NOTICE. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. Attendance by a Member at a meeting is a waiver of notice of such meeting, except if the Member objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and does not otherwise participate in the consideration of any matter at the meeting. 7.6 RECORD DATE. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the date on which notice of the meeting is mailed or the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 7.6, such determination shall apply to any adjournment thereof. 7.7 VOTING LIST. When a record date for any meeting has been set or any notice of a meeting has been mailed, the Secretary of the LLC shall prepare a list of names of all Members who are entitled to vote at the meeting and show the address of and Membership Interests held by each Member as reflected in the records of the LLC. Such list shall be available for inspection and copying by any Member, beginning two business days after notice of the meeting is given and continuing through the meeting at the LLC's principal executive office. Such list shall be identical to Exhibit A hereto, as amended from time to time, unless the Secretary prepares an alternative list. 7.8 QUORUM. Members holding at least a Majority of the Membership Interests, represented in person or by proxy, shall constitute a quorum at any meeting of Members except for any matter that requires the approval of all of the Members pursuant to the Act or this Agreement. 9 7.9 REQUIRED VOTE; MANNER OF ACTING. If a quorum is present, the affirmative vote of Members holding at least a Majority of the Membership Interests shall be the act of the Members, except as to matters as to which the consent of a lesser or a greater proportion of the Members is otherwise required by the Act or this Agreement. 7.10 PROXIES. At all meetings of Members, a Member may vote in person or by proxy executed in writing by a Member or by a duly authorized attorney-in-fact. Such proxy shall be filed with the LLC before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. ARTICLE VIII. MANAGERS 8.1 APPOINTMENT OF MANAGERS. The Members shall appoint a Chief Manager (which office may be designated "President" or "Chief Executive Officer" or such other designation as the Members may determine from time to time, but which officer shall in any event perform the functions of the "Chief Manager," and any references in this Agreement to the "Chief Manager" shall be deemed to be references to such officer) and a Secretary to serve as the Managers of the LLC. The initial Chief Manager shall be Gregory L. Burns. The initial Secretary shall be A. Chad Fitzhugh. The LLC shall have such additional Managers as may be appointed from time to time by the Members. 8.2 TERM; REMOVAL. The Managers shall serve for an indefinite term at the pleasure of the Members. A Manager may be removed from office at any time with or without cause by the Members. 8.3 DUTIES. 8.3.1 Chief Manager. The Chief Manager shall see that all orders and resolutions of the Members are carried into effect and shall perform such other duties as the Members may from time to time prescribe. 8.3.2 Secretary. The Secretary shall attend all meetings of the Members and shall be responsible for recording the minutes thereof. The Secretary shall have the responsibility of authenticating records of the LLC and receiving notices required to be sent to the Secretary and shall perform such other duties as the Members may from time to time prescribe. 8.4 RESIGNATION. Any Manager of the LLC may resign at any time by giving written notice to the Members. The resignation of any Manager shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 8.5 COMPENSATION AND REIMBURSEMENT. No Manager shall have any right to compensation for services performed on behalf of the LLC except as determined from time to time by the Members. Notwithstanding the foregoing, a Manager shall have the right to be 10 reimbursed by the LLC for any out-of-pocket expenses incurred by such Manager in connection with any services performed by such Manager on behalf of the LLC. 8.6 NO EXCLUSIVE DUTY. Each Manager may have other business interests and may engage in other activities in addition to those relating to the LLC. Neither the LLC nor any Member shall have the right to share or participate in such other investments or activities of such Manager based on such Manager's status as a Manager of the LLC. No Manager shall incur any liability to any Member or the LLC as a result of engaging in any other business or venture. ARTICLE IX. INDEMNIFICATION 9.1 AUTHORITY TO INDEMNIFY. The LLC shall indemnify, and upon request may advance expenses to, any Member, Manager, employee, or agent of the LLC, or any person who is serving at the request of the LLC in any such capacity with another Entity, to the extent, consistent with public policy, permitted by applicable law. 9.2 INSURANCE. The LLC may purchase and maintain insurance on behalf of an individual who is or was a Manager, employee, independent contractor, or agent of the LLC or who, while a Manager, employee, independent contractor, or agent of the LLC, is or was serving at the request of the LLC as a manager, employee, independent contractor, agent, partner, or trustee of another foreign or domestic limited liability company, corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by such individual in that capacity or arising from such individual's status as a Manager, employee, independent contractor or agent of the LLC whether or not the LLC would have the power to indemnify such individual against the same liability as provided in Section 9.1 hereof. 9.3 NON-EXCLUSIVE RIGHT. The indemnification granted pursuant to or provided by this Article IX shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled, whether contained in this Article IX, the Certificate of Formation, in the Act, in a resolution of the Members, or an agreement providing for such indemnification. This Section 9.3 does not limit the LLC's power to pay or reimburse expenses incurred by any person in connection with his or her appearance as a witness in a proceeding at a time when he or she has not been named defendant or respondent to the proceeding. ARTICLE X. FISCAL MATTERS 10.1 BOOKS AND RECORDS. Full and accurate books and records of the LLC (including without limitation all information and records required by the Act) shall be maintained at its principal place of business showing all receipts and expenditures, assets and liabilities, profits and losses, and all other records necessary for recording the LLC's business and affairs. All Members shall have the right to inspect and copy the books and records of the LLC, during regular business hours, at the LLC's principal place of business, upon provision of notice in 11 writing by any Member to the LLC at least five business days before the date on which such Member desires to inspect and copy said books and records. 10.2 FISCAL YEAR. The fiscal year of the LLC shall be determined by the Members and, in the absence of such determination, shall end on the last Sunday in December of each year. 10.3 TAX STATUS; ELECTIONS. The Member acknowledges that at all times that two or more persons or entities hold equity interests in the LLC for federal income tax purposes (i) it is the intention of the LLC to be treated as a "partnership" for federal and all relevant state tax purposes and (ii) the LLC will be treated as a "partnership" for federal and all relevant state tax purposes and shall make all available elections to be so treated. Until such time, however, it is the intention of the Member that the LLC be disregarded for federal and all relevant state tax purposes and that the activities of the LLC be deemed to be activities of the Member for such purposes. All provisions of the LLC's Certificate of Formation and this Agreement are to be construed so as to preserve that tax status under those circumstances. In the event that the LLC is treated as a partnership for tax purposes in accordance with this Section 10.3, then within ninety (90) days after the end of each fiscal year, the LLC will cause to be delivered to each person who was a Member at any time during such fiscal year a Form K-1 and such other information, if any, with respect to the LLC as may be necessary for the preparation of each Member's federal, state or local income tax (or information) returns, including a statement showing each Member's share of income, gain or loss, and credits for the fiscal year. 10.4 BANK ACCOUNTS. All funds of the LLC shall be deposited in its name at the LLC's principal financial institution or other financial institutions approved by the Members. ARTICLE XI. RESTRICTIONS ON TRANSFER OF MEMBERSHIP INTERESTS AND ADMISSION OF NEW MEMBERS 11.1 TRANSFER OF MEMBERSHIP INTERESTS. A Member may not Assign all or any part of such Member's Membership Interest in the LLC (including any Financial Rights, Governance Rights, or other rights pertaining to a Membership Interest) to any person other than an Affiliate of such Member without the prior written consent of Members holding a Majority of the Membership Interests. 11.2 RESTRICTIONS ON ASSIGNMENT NOT UNREASONABLE. Each of the Members hereby agrees and acknowledges that the restrictions on Assignment contained in this Article XI are not unreasonable in view of the nature of the parties and their relationships to one another and the nature of the business of the LLC. 11.3 ADMISSION OF NEW MEMBERS. An Assignment to an Affiliate of a Member or effected in accordance with this Article XI shall become effective and the assignee shall become a New Member and entitled to the rights of a Member under this Agreement upon (a) executing a copy of this Agreement and agreeing to be bound hereby and (b) delivering such executed copy to the LLC in accordance with Section 13.1 hereof. Upon receipt of such executed copy, the LLC will cause Exhibit A to be amended appropriately and will deliver to all Members, 12 including the New Member, in accordance with Section 13.1 hereof, a copy of amended Exhibit A. 11.4 RIGHTS AND OBLIGATIONS OF FORMER MEMBERS. A Member who Assigns all of his, her, or its Membership Interest shall cease to be a Member; provided, however, that such former Member or any Successor shall remain liable to the LLC (a) for any obligations of such Member for wrongful distributions under Section 18-607 of the Act, and (b) pursuant to any contribution agreements with the LLC existing at the time of the Assignment of all such Membership Interest. ARTICLE XII. DISSOLUTION, WINDING UP, AND TERMINATION OF THE LLC'S EXISTENCE 12.1 TERM. The duration of the LLC shall be perpetual and shall continue until terminated in accordance with the provisions of this Agreement or the Act. 12.2 EVENTS CAUSING DISSOLUTION AND WINDING UP. The LLC shall be dissolved and its affairs wound up upon the occurrence of any of the following events (individually, a "Dissolution Event"): 12.2.1 at any time with the prior approval of Members holding two-thirds or more of the Membership Interests; or 12.2.2 as may be otherwise required by law. Upon the occurrence of a Dissolution Event, the LLC shall be terminated when the winding up of the LLC's affairs has been completed following dissolution. 12.3 WITHDRAWAL OF A MEMBER. Any Member may withdraw from the LLC at any time upon not less than ninety days' prior written notice to the LLC and each other Member. A withdrawal of a Member shall not cause a Dissolution Event unless the remaining Members determine to dissolve pursuant to Section 12.2.1. If the existence and business of the LLC is continued by the remaining Members after such withdrawal: a. such withdrawing Member shall have no Governance Rights with respect to the LLC, and the rights of such withdrawing Member shall be deemed to be that of an assignee of such withdrawing Member's Financial Rights owned prior to such withdrawal, once notice of such Member's withdrawal is given by such withdrawing Member; b. no Member shall be entitled to any distribution from the LLC as a result of such withdrawal; and c. a withdrawn Member shall remain liable to the LLC for any existing liability of such withdrawn Member for wrongful distributions and pursuant to any contribution agreements at the time of such withdrawal. 13 12.4 WINDING UP AFFAIRS ON DISSOLUTION. Upon dissolution of the LLC, the Managers or other persons required or permitted by law to carry out the winding up of the affairs of the LLC shall promptly notify all Members of such dissolution; shall wind up the affairs of the LLC; shall prepare and file all instruments or documents required by law to be filed to reflect the dissolution of the LLC; and, after collecting the debts and obligations owed to the LLC and after paying or providing for the payment of all liabilities and obligations of the LLC, shall distribute the assets of the LLC in accordance with Section 5.7 hereof. 12.5 WAIVER OF RIGHT TO PARTITION AND DECREE OF DISSOLUTION. As a material inducement to each Member to execute this Agreement, each Member covenants and represents to each other Member that, during the period beginning on the date of this Agreement, no Member, nor such Member's heirs, representatives, successors, transferees, or assigns, will attempt to make any partition whatever of the assets of the LLC or any interest therein whether now owned or hereafter acquired, and each Member waives all rights of partition provided by statute or principles of law or equity, including partition in kind or partition by sale. The Members agree that irreparable damage would be done to the goodwill and reputation of the LLC if any Member should bring an action in a court to dissolve the LLC. The Members agree that there are fair and just provisions for payment and liquidation of the interest of any Member in the LLC, and fair and just provisions to prevent a Member from selling or otherwise alienating his or her interest in the LLC. Accordingly, each Member hereby waives and renounces his, her or its right to such a court decree of dissolution or to seek the appointment by court of a liquidator or receiver for the LLC. ARTICLE XIII. GENERAL PROVISIONS 13.1 NOTICES. All notices and other communications required or permitted to be given in respect of this Agreement shall be in writing, and sent by facsimile, courier service, hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid). Written notice by the LLC to the Members is effective when mailed, if mailed and correctly addressed to the Member's address as reflected in the LLC's records. Written notice to the LLC may be addressed to the LLC's registered agent at its registered office or to the LLC's Secretary at the LLC's principal executive office. Written notice to the LLC is effective at the earliest of the following: (a) when received; (b) five days after its deposit in the United States mail, if correctly addressed and first class postage affixed thereon; or (c) on the date shown in the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. 13.2 INTEGRATION. This Agreement embodies the entire agreement and understanding among the Members relating to the formation and operation of the LLC and supersedes all prior agreements and understandings, if any, among and between the Members relating to the subject matter hereof. 13.3 APPLICABLE LAW. This Agreement and the rights of the Members shall be governed by and construed and enforced in accordance with the laws of the State of Delaware and specifically the Act. 14 13.4 SEVERABILITY. In case any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and any other application thereof shall not in any way be affected or impaired thereby. 13.5 BINDING EFFECT. Except as herein otherwise provided to the contrary, this Agreement shall be binding upon, and inure to the benefit of, the Members and their respective heirs, executors, administrators, successors, transferees and assigns. 13.6 TERMINOLOGY. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, shall include all other genders; and the singular shall include the plural, and vice versa. Titles and Articles are for convenience only and neither limit nor amplify the provisions of this Agreement itself. 13.7 AMENDMENT. This Agreement may be amended, modified, or supplemented in writing (a) with the consent of the Members holding a Majority of the Membership Interests except that any requirement that an action be approved by Members holding a percentage other than a Majority of the Membership Interests shall not be amended except with the consent of Members holding such other percentage of the Membership Interests, and (b) with respect to Exhibit A hereto, under the circumstances set forth in Section 4.5. No other written or oral agreement, understanding, instrument or writing other than this agreement or any amendment hereto shall constitute part of the limited liability company agreement of the LLC. 13.8 EXECUTION OF ADDITIONAL INSTRUMENTS. Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney, and other instruments necessary to comply with any laws, rules, or regulations. 13.9 WAIVERS. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. 13.10 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Members may have by law, statute, ordinance, or otherwise. 13.11 HEIRS, SUCCESSORS, AND ASSIGNS. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the Members hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns. 13.12 CREDITORS. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the LLC. 13.13 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 15 IN WITNESS WHEREOF, the undersigned hereby agrees, acknowledges and certifies that the foregoing Agreement constitutes the limited liability company agreement of Stoney River, LLC adopted by the Member of the LLC as of the 23rd day of December, 2002. STONEY RIVER MANAGEMENT COMPANY, INC. By: /s/ Gregory L. Burns --------------------------------- Name: Gregory L. Burns Title: President 16 EXHIBIT A
MEMBERS NAME AND ADDRESS CAPITAL CONTRIBUTION MEMBERSHIP PERCENTAGES ------------------------ -------------------- ---------------------- Stoney River Management Company, Inc. $1,000.00 100% 3038 Sidco Drive Nashville, Tennessee 37204 TOTAL $1,000.00 100%
EX-3.39 39 g86000exv3w39.txt EX-3.39 CERTIFICATE OF LIMITED PARTNERSHIP EXHIBIT 3.39 CERTIFICATE OF LIMITED PARTNERSHIP OF STONEY RIVER LEGENDARY MANAGEMENT, L.P. I. The name of the limited partnership is Stoney River Legendary Management, L.P. II. The name and address of the initial registered agent for service of process and the address of the registered office required to be maintained by O.C.G.A. Section 14-9-104 are as follows: Name and Address of Initial Registered Agent: CT Corporation System 1201 Peachtree Street, N.E. Atlanta, Fulton County, Georgia 30361 Registered Office: 1201 Peachtree Street, N.E. Atlanta, Fulton County, Georgia 30361 III. The name and business address of the sole General Partner are as follows: O'Charley's Management Company, Inc. 3038 Sidco Drive Nashville, Tennessee 37204 IN WITNESS WHEREOF, the sole General Partner of the limited partnership has executed this Certificate of Limited Partnership of Stoney River Legendary Management, L.P. this 24th day of May, 2000. STONEY RIVER LEGENDARY MANAGEMENT, L.P. By: O'Charley's Management Company, Inc., its sole General Partner By: /s/ A. Chad Fitzhugh -------------------------------------- Name: A. Chad Fitzhugh Title: CFO EX-3.40 40 g86000exv3w40.txt EX-3.40 AMENDMENT TO CERTIFICATE EXHIBIT 3.40 CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF LIMITED PARTNERSHIP OF STONEY RIVER LEGENDARY MANAGEMENT, L.P. Pursuant to the provisions of Section 14-9-202 of the Georgia Revised Uniform Limited Partnership Act, the undersigned General Partner hereby executes the following certificate of amendment to the certificate of limited partnership: 1. The name of the limited partnership is Stoney River Legendary Management, L.P. 2. The date of filing of the certificate of limited partnership was May 25, 2000. 3. The amendment to the certificate of limited partnership is as follows: Article III shall be deleted in its entirety and the following shall be inserted in lieu thereof: " III. The name and business address of the sole General Partner are as follows: Stoney River, LLC 3038 Sidco Drive Nashville, Tennessee 37204" IN WITNESS WHEREOF, the sole General Partner of the limited partnership has executed this certificate of amendment to the certificate of limited partnership as of the 27th day of December, 2002. STONEY RIVER LEGENDARY MANAGEMENT, L.P. By: Stoney River, LLC Its: General Partner By: /s/ A. Chad Fitzhugh ----------------------------- Name: A. Chad Fitzhugh Title: Secretary EX-3.41 41 g86000exv3w41.txt EX-3.41 AGREEMENT OF LIMITED PARTNERSHIP EXHIBIT 3.41 STONEY RIVER LEGENDARY MANAGEMENT, L.P. LIMITED PARTNERSHIP AGREEMENT THIS AGREEMENT is made this 24th day of May, 2000, to form a limited partnership among O'Charley's Management Company, Inc., a Tennessee corporation, as General Partner, and Stoney River Management Company, Inc., a Delaware corporation, as Limited Partner (the General Partner and Limited Partner are collectively referred to herein as the "Partners"). WITNESSETH: ARTICLE I. GENERAL A. FORMATION; NAME. The parties hereto hereby form a limited partnership under the Georgia Revised Uniform Limited Partnership Act, O.C.G.A. Sections 14-9-100 et seq. (the "Act"). The name of the Partnership shall be "Stoney River Legendary Management, L.P." The Partnership will become effective upon the execution of this Agreement and the filing of the Certificate of Limited Partnership with the Secretary of State of the State of Georgia (the "Effective Date"). B. CHARACTER OF BUSINESS. The purpose and business of the Partnership shall be the conduct of any business or activity that may be conducted by a limited partnership organized pursuant to the Act. C. RECORD OFFICE AND AGENT FOR SERVICE. The address of the record office of the Partnership shall be 1201 Peachtree Street, N.E., Atlanta, Georgia 30361. The agent for service of process shall be CT Corporation System, whose address is the same as the record office. D. TERM. The term of the Partnership will begin on the Effective Date and will end on January 1, 2050, unless terminated earlier by operation of law or pursuant to this Agreement. E. PARTNERS' NAMES AND BUSINESS ADDRESSES. The names and business addresses of each of the Partners are as follows: O'Charley's Management Company, Inc. 3038 Sidco Drive Nashville, TN 37204 Agreement of Limited Partnership - Stoney River Legendary Management Stoney River Management Company, Inc. 300 Delaware Avenue, Suite 900 Wilmington, DE 19801 F. ADMISSION OF ADDITIONAL GENERAL PARTNERS. The General Partner may admit additional General Partners with the prior written consent of all General Partners provided such newly admitted General Partner agrees to be bound by the terms of this Agreement as though originally a party hereto. Any such General Partner admitted shall be included in the reference to the General Partner. G. ADMISSION OF ADDITIONAL LIMITED PARTNERS. The General Partner may admit additional Limited Partners with the prior written consent of all General Partners provided such newly admitted Limited Partner agrees to be bound by the terms of this Agreement as though originally a party hereto. Any such Limited Partner admitted shall be included in the reference to the Limited Partner. ARTICLE II. CAPITAL CONTRIBUTIONS AND UNIT ALLOCATION A. INITIAL CAPITAL CONTRIBUTIONS AND UNITS. Initial contributions shall be as set forth in Schedule A attached hereto, and each Partner shall receive the number of units shown on Schedule A. If any additional General or Limited Partner shall be subsequently admitted, the General Partner shall determine the capital contribution required of such additional Partner and the number of units to be assigned to such additional Partner, based on a good-faith determination of the fair market value of units at such time. B. ADDITIONAL CAPITAL CONTRIBUTIONS. No additional capital contributions shall be required of any Partner. If a Partner makes additional capital contributions, additional units may be issued to such Partner with the written consent of all of the Partners. The General Partner shall determine the number of units to be assigned to the contributing Partner in exchange for the contribution, based on a good-faith determination of the fair market value of units at such time. Furthermore, capital contributions may be made with or without the issuance of additional units if such contributions are made by all Partners pro rata based on the number of units they hold. C. LOANS BY PARTNERS. The General Partner may loan funds to the Partnership on arm's-length terms and the Limited Partner may loan funds to the Partnership with the permission of the General Partner and on such arm's-length terms as the General Partner shall determine to be appropriate. D. INTEREST ON CONTRIBUTIONS. Capital contributions to the Partnership shall not earn interest, except as otherwise expressly provided in this Agreement. Agreement of Limited Partnership - Stoney River Legendary Management - 2 - E. WITHDRAWAL AND RETURN OF CONTRIBUTION. Except as otherwise provided in this Agreement, no Partner shall be entitled to withdraw or to the return of a capital contribution. ARTICLE III. CAPITAL ACCOUNTS Capital accounts shall be maintained for Partners in accordance with federal tax requirements and other applicable law. The Limited Partner shall not be obligated to restore any deficit in its capital account. Solely for purposes of the preceding sentence, "Limited Partner" means any Partner who does not have unlimited liability for Partnership debts under applicable law. ARTICLE IV. ALLOCATIONS A. PROFITS AND LOSSES. Profits and losses shall be allocated among the Partners pro rata on the basis of the number of units they hold, except for losses attributable to deductions that are not nonrecourse deductions occurring after the Limited Partner's capital account is zero or less, in which case all losses attributable to deductions that are not nonrecourse deductions shall be allocated to the General Partner. Solely for purposes of the preceding sentence, "Limited Partner" means any Partner who is not obligated to restore any deficit in such Partner's capital account, and "General Partner" means any Partner who is so obligated. If, under the foregoing definition, there is no General Partner, such deductions shall be allocated to all Partners in proportion to their number of units. B. QUALIFIED INCOME OFFSET. If a Partner unexpectedly receives an adjustment, allocation or distribution described in Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), items of income and gain shall be allocated to any Partner with a deficit capital account in an amount and manner sufficient to eliminate such deficit balance as quickly as possible. C. MINIMUM GAIN CHARGEBACK. 1. If there is a net decrease in Partnership Minimum Gain for a fiscal year of the Partnership, then each Partner shall be allocated items of income and gain for such year (and if necessary for subsequent years) in accordance with Reg. Section 1.704-2(f). 2. Partnership Minimum Gain shall be determined in accordance with and have the meaning ascribed to such term by Reg. Section 1.704-2(d). 3. A Partner's share of Partnership Minimum Gain shall be determined in accordance with and have the meaning ascribed to such term by Reg. Section 1.704-2(g). Agreement of Limited Partnership - Stoney River Legendary Management - 3 - D. NONRECOURSE DEBT OF THE PARTNERSHIP. Each Partner's share of nonrecourse liabilities and allocation of deductions attributable thereto shall be in accordance with federal tax requirements and other applicable law. E. TAX ALLOCATIONS WITH RESPECT TO PROPERTY CONTRIBUTIONS. Whenever property contributed to the Partnership by a Partner has a basis different from its fair market value at the time of contribution (or has a basis determined by reference to such property), allocation of income, gain, loss and deductions with respect to such property shall be in accordance with federal tax requirements and other applicable law. F. ALLOCATIONS UPON THE ADMISSION OF ADDITIONAL PARTNERS. In the event additional Partners are admitted to the Partnership on different dates during any fiscal year, the profits or losses allocated to the Partners for each such fiscal year shall be allocated among the Partners in proportion to the interest in the Partnership each holds from time to time during such fiscal year in accordance with Code Section 706 using any convention permitted by law and selected by the General Partner. G. ITEMS NOT SPECIFICALLY DEALT WITH. Except as otherwise provided in this Agreement, all items of Partnership income, gain, loss, deduction, and any other allocations not otherwise provided for shall be divided by allocating such items to each Partner in accordance with such Partner's interest in the profits and losses of the Partnership. H. CONSTRUCTION. The provisions of this Article IV (and other related provisions in this Agreement) pertaining to the allocation of items of Partnership income, gain, loss, deductions, and credit shall be interpreted consistently with the Regulations issued under Code Section 704 and to the extent unintentionally inconsistent with such Regulations, shall be deemed to be modified to the extent necessary to make such provisions consistent with the Regulations. I. ALLOCATIONS BINDING ON PARTNERS. The Partners are aware of the income tax consequences of the allocations made by this Article IV and hereby agree to be bound by the provisions of this Article IV in reporting their shares of Partnership income and loss for income tax purposes. ARTICLE V. DISTRIBUTIONS A. UNIT DISTRIBUTIONS. The General Partner shall determine when distributions shall be made and the amount of the distributions. Distributions shall be made pro rata based upon the number of units each Partner shall hold. Distributions in kind shall be made only if all property is distributed to all Partners pro rata (with all Partners receiving identical fractional interests in all property distributed) or if any other in-kind distribution is consented to by all Partners, and in the case of any in-kind Agreement of Limited Partnership - Stoney River Legendary Management - 4 - distribution, capital accounts shall be appropriately adjusted as required by this Agreement and federal tax law. The General Partner shall in all cases be subject to fiduciary duties with respect to any decision to make distributions or accumulate Partnership earnings. B. AMOUNTS WITHHELD. All amounts withheld pursuant to the Code or any provision of any foreign, state or local tax law with respect to any payment or distribution to the Partners shall be treated as amounts distributed to the Partners pursuant to this Article V for all purposes under this Agreement. ARTICLE VI. RIGHTS, DUTIES AND POWERS OF PARTNERS A. POWER OF GENERAL PARTNER TO MANAGE THE BUSINESS. The General Partner shall have full and exclusive power and authority on behalf of the Partnership, in its name, to manage, control, administer and operate the business and affairs of the Partnership, and to do or cause to be done any and all acts deemed by the Partners to be necessary or appropriate thereto, and the scope of such power and authority shall encompass all matters in any way connected with such business or incident thereto. B. SPECIFIC POWERS OF THE GENERAL PARTNERS. The General Partner shall have the power: 1. To purchase, lease, or otherwise acquire real or personal property considered necessary or appropriate to carry on and conduct the business of the Partnership; 2. To borrow money for the business of the Partnership and from time to time, without limit as to amount, to draw, make, execute, and issue promissory notes and other negotiable or nonnegotiable instruments and evidences of indebtedness, and to secure the payment of the sums so borrowed and to mortgage, pledge, or assign in trust all or any part of the Partnership's property or assets, or to assign any money owing or to be owing to the Partnership, and to engage in any other means of financing; 3. To enter into any agreement for sharing of profits or joint venture with any person, firm, corporation, government or agency thereof engaged in any business or transaction that this Partnership is authorized to engage in, or any business or transaction capable of being conducted so as to directly or indirectly benefit this Partnership; 4. To manage, administer, conserve, improve, develop, operate, lease, utilize and defend the Partnership's property or assets, and to contract with third parties for such purposes, and to do any and all other things necessary or appropriate to carry out the terms and provisions of this Agreement that would or might be done by a normal and Agreement of Limited Partnership - Stoney River Legendary Management - 5 - prudent person in the management, administration, conservation, improvement, development, operation, lease and utilization of his own property; 5. To enter into, execute and deliver any easements, licenses or other agreements customarily employed in connection with the acquisition, sale, management, administration, conservation, improvement, development, operation, lease and utilization of properties or assets of the type owned by the Partnership, and any and all other instruments or documents considered by the Partners to be necessary or appropriate to carry on and conduct the business of the Partnership; 6. To sell, assign, convey, or otherwise dispose of for such consideration and upon such terms and conditions as the Partners may determine, all or any part of Partnership's property or assets, any interest therein or part thereof, or any interest payable therefrom, and in connection therewith to execute and deliver such deeds, assignments, and conveyances containing such warranties as the Partners may determine; 7. To employ on behalf of the Partnership agents, employees, accountants, lawyers, clerical help, and such other assistance and services as may seem proper and to pay therefor such remuneration as the Partners may deem reasonable and appropriate; 8. To purchase, lease, rent, or otherwise acquire or obtain the use of machinery, equipment, tools, materials, and all other kinds and types of real or personal property that may in any way be deemed necessary, convenient, or advisable in connection with carrying on the business of the Partnership, and to incur expenses for travel, telephone, telegraph, insurance, and for such other things, whether similar or dissimilar, as may be deemed necessary or appropriate for carrying on and performing the business of the Partnership; 9. To pay insurance premiums, property taxes, and any other amounts necessary or appropriate to the management, administration, conservation, improvement, development, operation, lease or utilization of any Partnership property or asset; 10. To make and to enter into such agreements and contracts with such parties and to give such receipts, releases, and discharges with respect to any and all of the foregoing and any matters incident thereto as the Partners may deem advisable or appropriate; 11. To sue and be sued, complain and defend in the name of and on behalf of the Partnership; 12. To quitclaim, surrender, release, or abandon any Partnership property or asset with or without consideration therefor; Agreement of Limited Partnership - Stoney River Legendary Management - 6 - 13. To make such classifications, determinations, and allocations as the Partners may deem advisable, having due regard for any relevant generally accepted accounting principles; and 14. To take such other action and to perform such other acts as may be deemed appropriate to carry out the business and affairs of the Partnership. C. LIMITS ON POWERS OF GENERAL PARTNERS. The General Partner may do the following only with the prior written consent of all the Partners: 1. Perform any act in contravention of the Partnership Agreement; 2. Make, execute or deliver any assignment for the benefit of creditors or any bond or confession of judgment; 3. Become a surety, guarantor or accommodation party to any obligation; 4. Perform any act that would make it impossible to carry on the ordinary business of the Partnership; 5. Possess Partnership property in the General Partner's name or assign the General Partner's rights in specific Partnership property for other than a Partnership purpose. D. TIME DEVOTED TO THE BUSINESS. The General Partner shall not be required to devote all of such Partner's time to the business. E. LIMITATION OF LIABILITY OF GENERAL PARTNERS. The General Partner shall not be liable to the Partnership or to any Partner for loss or damage caused by any act or omission in such capacity, except for any act or omission involving intentional misconduct or a knowing violation of law, or any transaction for which the General Partner received a personal benefit in violation or breach of any provision of this Partnership Agreement. Without limiting the generality of the foregoing, the General Partner shall not be personally liable for return of the capital of any Limited Partner, or the return of any other contribution to the Partnership made by any Limited Partner. F. INDEMNIFICATION OF GENERAL PARTNER. The Partnership shall indemnify the General Partner against expenses, including reasonable attorneys' fees, actually and reasonably incurred by the General Partner in connection with any claim relating to the General Partner's acting or failing to act in such capacity, except for any act or omission involving intentional misconduct or a knowing violation of law, or any transaction for Agreement of Limited Partnership - Stoney River Legendary Management - 7 - which such General Partner received a personal benefit in violation or breach of any provision of this Partnership Agreement. G. PROHIBITION OF MANAGEMENT BY LIMITED PARTNERS. The Limited Partner shall not participate in the management of the Partnership or in the business of the Partnership. (This provision shall not prevent a Limited Partner from being an agent, employee, officer, director, or shareholder of the General Partner, from attending Partner meetings, from rendering advice to the General Partner, or from guaranteeing or assuming any obligation of the Partnership, so long as such activity does not constitute participation in management under applicable law.) The Limited Partner shall have no authority to act for the Partnership or to bind it. The Limited Partner shall have no authority to sign any writing for the Partnership. The Limited Partner shall receive no salary from the Partnership or compensation for any service for the Partnership unless such compensation is approved in writing by the General Partner. H. LIABILITY OF LIMITED PARTNER. The liability of the Limited Partner for the obligations or losses of the Partnership shall not exceed the contributions such Limited Partner has previously made or has agreed to make pursuant to Article II hereof. ARTICLE VII. ASSIGNMENT AND TRANSFER OF PARTNERSHIP INTEREST A. RIGHT TO SELL OR ASSIGN. A General or Limited Partner may sell, assign or transfer any of the units in the Partnership owned by such Partner (subject to the rights provided under Paragraph B), but such purchaser, assignee or transferee shall not become a Partner in the Partnership except as provided in Paragraphs F and G of Article I. B. RIGHTS OF PARTNERSHIP. With respect to any proposed sale, assignment or transfer of an interest in the Partnership or any portion thereof, the Partnership shall have a right of first refusal to acquire such interest on the same terms as the proposed sale, assignment or transfer, except that cash may be substituted for any consideration other than cash or notes of the buyer. With respect to any involuntary transfer, the Partnership shall have an option to acquire such interest for seventy percent of its fair market value, or alternatively and at its election, for the amount of any positive balance in the capital account attributable to such interest, or for One Dollar ($1) per unit if there is no positive balance in such capital account. The rights and options granted to the Partnership pursuant to this paragraph may be exercised pro rata by all Partners electing to join in the exercise if not exercised by the Partnership. ARTICLE VIII. DISSOLUTION AND LIQUIDATION A. DISSOLUTION. The Partnership shall be dissolved upon the happening of any of the following: Agreement of Limited Partnership - Stoney River Legendary Management - 8 - 1. The election to terminate the Partnership by the General Partner unless the Limited Partner consents to continue the Partnership; 2. The Partnership being adjudicated insolvent or bankrupt; 3. The General Partner ceasing to be a General Partner by reason of an event described in Section D hereof, unless at the time there is at least one other General Partner who elects to continue the Partnership, but the Partnership shall not be dissolved if, within ninety (90) days after the occurrence of such event, the Limited Partner elects to continue the Partnership as provided in Section E; or 4. In any event on January 1, 2050. B. LIQUIDATION. Except as otherwise provided in Section E hereof, upon a dissolution of the Partnership, the General Partner shall be the liquidator of the Partnership; or, if there is no General Partner at the time of dissolution, the Limited Partner shall select a liquidator. The liquidator so determined shall liquidate the Partnership's assets and shall do so as promptly as is consistent with obtaining fair value for them, and shall apply and distribute the assets of the Partnership as follows: 1. First, to the payment and discharge of all of the Partnership's debts and liabilities to creditors of the Partnership other than the Partners; 2. Second, to the payment and discharge of all of the Partnership's debt and liabilities to creditors of the Partnership that are Partners; 3. Third, to the Partners in accordance with their Capital Accounts, after giving effect to all contributions, distributions, and allocations for all periods. C. COMPLIANCE WITH TIMING REQUIREMENTS OF REGULATIONS. In the event the Partnership is "liquidated" within the meaning of Reg. Section 1.704-1(b)(2)(ii)(g), distributions shall be made pursuant to this Article VIII by the end of the fiscal year in which such liquidation occurs, or if later, within ninety (90) days of such liquidation. Distributions pursuant to the preceding sentence may be distributed to a trust established for the benefit of the Partners for the purposes of liquidating Partnership assets, collecting amounts owed to the Partnership and paying any contingent or unforeseen liabilities or obligations of the Partnership or of the General Partner arising out of or in connection with the Partnership. The assets of any such trust shall be distributed to the Partners from time to time, in the reasonable discretion of the General Partner, in the same proportions as the amount distributed to such trust by the Partnership would otherwise have been distributed to the Partners pursuant to this Agreement; provided, however, that such trust may only be created if the Partnership has received an opinion from counsel, which is Agreement of Limited Partnership - Stoney River Legendary Management - 9 - generally recognized as being capable and qualified in the area of federal income taxation, that such trust will not be classified as an association that would be taxed as a corporation for federal income tax purposes. D. DISQUALIFICATION OF GENERAL PARTNER. The General Partner shall cease to be a General Partner of the Partnership upon the happening of any of the following events: 1. Death of the General Partner (or dissolution or termination if a General Partner is an entity, or distribution of all interest in the Partnership by the fiduciary if a General Partner is an estate); 2. Withdrawal of the General Partner; 3. Removal of the General Partner; 4. The assignment by the General Partner for the benefit of creditors; 5. The filing of a voluntary petition in bankruptcy by the General Partner, or the adjudication of the General Partner as bankrupt or insolvent; 6. The filing by the General Partner of a petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief for the General Partner; 7. The consent or acquiescence by the General Partner in the appointment of a trustee, receiver or liquidator of the General Partner or of all or any substantial part of the General Partner's property; 8. A proceeding against the General Partner seeking reorganization, arrangement, composition, readjustment, or similar relief, which has not been dismissed within one hundred twenty (120) days after the commencement of such proceeding; or 9. The appointment without the General Partner's consent or acquiescence of a trustee or receiver of the General Partner or all or any substantial part of the General Partner's property unless the appointment is vacated or stayed within ninety (90) days after such appointment (and if stayed, is vacated within ninety (90) days after the expiration of such stay). E. SUCCESSOR PARTNERSHIP. Upon the occurrence of an event described in Section D hereof, if at the time there is not at least one other General Partner who elects to continue the Partnership, the Partnership shall thereafter be liquidated pursuant to Section B hereof unless, within ninety (90) days after such occurrence, the remaining Agreement of Limited Partnership - Stoney River Legendary Management - 10 - Partners having in excess of a majority of outstanding units owned by such remaining Partners elect in writing to continue the Partnership. If an election to continue the Partnership is made by the Partners, and there is no General Partner, a successor General Partner shall be selected by the Limited Partners having a majority of outstanding units owned by the Limited Partners. If an election to continue the Partnership is made by the majority of the Limited Partners, then the successor General Partner shall have at least a one percent (1%) interest in the profits and losses, distributions and other items of the Partnership (with a corresponding reduction in the Limited Partners' interest in the Partnership); this interest may be sold or given by the Limited Partners to the new General Partner. This Agreement shall be amended in order to reflect the admission of the new General Partner. The interest of any General Partner who ceases to be a General Partner shall automatically be converted into a Limited Partner interest representing the General Partner's then effective interest in the profits and losses, distributions and other items of the Partnership. The Certificate of Limited Partnership shall be amended to reflect the changes described herein. ARTICLE IX. BOOKS, REPORTS, ACCOUNTING AND TAX ELECTIONS A. DOCUMENTS AT RECORD OFFICE. The General Partner shall maintain or cause to be maintained at the Partnership's record office, complete and accurate books and records with respect to all Partnership business and transactions, which books and records shall be kept in accordance with generally accepted accounting principles. At a minimum, the General Partner shall keep the following books and records at the record office of the Partnership: (i) a current list of the full name and last known business address of each Partner set forth in alphabetical order; (ii) a copy of the Certificate of Limited Partnership and all certificates of amendment, together with executed copies of any powers of attorney pursuant to which any certificate has been executed; (iii) copies of the Partnership's federal, state, and local income tax returns and reports for the three (3) most recent years; and (iv) copies of any effective written Partnership agreements and of any financial statements of the Partnership for the three (3) most recent years. B. FISCAL YEAR AND METHOD OF ACCOUNTING. The Partnership's fiscal year for both tax and financial reporting purposes shall end on the last Sunday in December of each year. The method of accounting for both tax and financial reporting purposes shall be the accrual method. C. REPORTS AND STATEMENTS. 1. Within ninety (90) days of the end of each fiscal year of the Partnership, the General Partner, at the expense of the Partnership, shall cause to be delivered to the Limited Partner with respect to the just completed fiscal year of the Agreement of Limited Partnership - Stoney River Legendary Management - 11 - Partnership such information as shall be necessary for the preparation by the Limited Partner of its federal, state and local income and other tax returns. 2. Within ninety (90) days after the end of each fiscal year of the Partnership, the General Partner shall cause to be delivered to the Limited Partner unaudited financial statements of the Partnership for the just completed fiscal year, prepared at the expense of the Partnership. 3. Within thirty (30) days after the end of each fiscal quarter the General Partner shall, at the Partnership's expense, cause to be delivered to the Limited Partner unaudited financial reports of the Partnership for the just completed fiscal quarter. D. TAX ELECTIONS. 1. The Tax Matters Partner shall have the sole discretion and authority to make or revoke any elections on behalf of the Partnership for tax purposes. 2. Without limiting the generality of paragraph 1, in the event of a transfer of all or part of the interest of a Partner in the Partnership, at the request of the transferee, the Tax Matters Partner may cause the Partnership to elect, pursuant to Code Section 754, or any corresponding provision of subsequent law, to adjust the basis of the Partnership property as provided by Code Sections 734 and 743. The cost of such election shall be borne by the transferee requesting such election. E. TAX MATTERS PARTNER. O'Charley's Management Company, Inc. is designated as the Tax Matters Partner of the Partnership, as provided in Regulations pursuant to Code Section 6231 (the "Tax Matters Partner") and authorized to perform such duties as are required or appropriate thereunder. If O'Charley's Management Company, Inc. is no longer a General Partner, the then General Partner shall designate a successor Tax Matters Partner from among their number. Each Partner by the execution of this Agreement consents to such designation of the Tax Matters Partner and agrees to execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices such documents as may be necessary or appropriate to evidence such consent. ARTICLE X. MISCELLANEOUS A. AMENDMENTS. Except as provided in Section E hereof, amendments to this Agreement shall be undertaken and effective only with the written consent of all of the Partners. B. BANK ACCOUNTS. Partnership funds shall be deposited in the name of the Partnership in accounts designated by the General Partner, and withdrawals shall be made only by persons duly authorized by the General Partner. Agreement of Limited Partnership - Stoney River Legendary Management - 12 - C. BINDING EFFECT. Except as provided to the contrary, the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of all the Partners, their personal representatives, heirs, successors, and assigns. D. CAPTIONS, GENDER AND NUMBER. The captions in this Agreement are inserted only as a matter of convenience and in no way affect the terms or intent of any provision of this Agreement. All defined phrases, pronouns, and other variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the actual identity of the organization, person or persons may require. E. CHOICE OF LAW AND SEVERABILITY. This Agreement shall be construed in accordance with the law of the State of Georgia. If any provision of this Agreement shall be contrary to the laws of the State of Georgia or any other applicable law, at the present time or in the future, such provision shall be deemed null and void, but this shall not affect the legality of the remaining provisions of this Agreement. This Agreement shall be deemed to be modified and amended so as to be in compliance with applicable law and this Agreement shall then be construed in such a way as will best serve the intention of the parties at the time of the execution of this Agreement. F. COUNTERPARTS. This Agreement may be executed in one or more counterparts. Each such counterpart shall be considered an original and all of such counterparts shall constitute a single agreement binding all the parties as if all had signed a single document. G. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the Partners regarding the terms and operations of the Partnership, except for any amendments to this Agreement adopted in accordance with Section A hereof. This Agreement supersedes all prior and contemporaneous agreements, statements, understandings, and representations of the parties regarding the terms and operation of the Partnership, except as provided in the preceding sentence. H. LAST DAY FOR PERFORMANCE OTHER THAN A BUSINESS DAY. In the event that the last day for performance of an act or the exercise of a right hereunder falls on a day other than a business day, the last day for such performance or exercise shall be the first business day immediately following the otherwise last day for such performance or such exercise. A business day means a day other than a Saturday, Sunday or a legal holiday on which federally chartered banks are generally closed for business. I. NOTICES. All notices, requests, consents or other communications provided for in or to be given under this Agreement shall be in writing, may be delivered in person, by facsimile transmission (fax), by overnight air courier or by mail, and shall be deemed to have been duly given and to have become effective (i) upon receipt if delivered in Agreement of Limited Partnership - Stoney River Legendary Management - 13 - person or by fax, (ii) one (1) day after having been delivered to an overnight air courier, or (iii) three (3) days after having been deposited in the mail as certified or registered matter, all fees prepaid, directed to the parties or their assignees at the following address (or at such other address as shall be given in writing by a party hereto): 1. If to the Partnership or to the General Partner, to the intendedrecipient at: O'Charley's Management Company, Inc. 3038 Sidco Drive Nashville, Tennessee 37204 2. If to a Limited Partner, to the intended recipient at the name and address listed in Article I(E). Agreement of Limited Partnership - Stoney River Legendary Management - 14 - IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the day and year first above written. GENERAL PARTNER: O'CHARLEY'S MANAGEMENT COMPANY, INC. /s/ Gregory L. Burns ---------------------------------- By: Gregory L. Burns Title: President LIMITED PARTNER: STONEY RIVER MANAGEMENT COMPANY, INC. /s/ Gregory L. Burns ---------------------------------- By: Gregory L. Burns Title: Gregory L. Burns Agreement of Limited Partnership - Stoney River Legendary Management - 15 - SCHEDULE A CAPITAL CONTRIBUTIONS AND UNITS
Partner Capital Contribution Number of Units ------- -------------------- --------------- O'Charley's Management Company, Inc., $ 10 1 General Partner Stoney River Management Company, Inc., $990 99 Limited Partner
FIRST AMENDMENT TO SCHEDULE A TO LIMITED PARTNERSHIP AGREEMENT OF STONEY RIVER LEGENDARY MANAGEMENT, L.P. CAPITAL CONTRIBUTIONS AND UNITS
Partner Capital Contribution Number of Units ------- -------------------- --------------- Stoney River, LLC, $ 10 1 General Partner Stoney River Management Company, Inc., $990 99 Limited Partner
Attest: The above information is true, complete and correct as of the 27th day of December, 2002. GENERAL PARTNER STONEY RIVER, LLC By: /s/ Gregory L. Burns ------------------------------------- Name: Gregory L. Burns Title: Chief Manager/President LIMITED PARTNER STONEY RIVER MANAGEMENT COMPANY, INC. By: /s/ Gregory L. Burns ------------------------------------- Name: Gregory L. Burns Title: President COUNTERPART TO LIMITED PARTNERSHIP AGREEMENT OF STONEY RIVER LEGENDARY MANAGEMENT, L.P. The undersigned General Partner of Stoney River Legendary Management, L.P. (the "Partnership"), in conjunction with its admission to the Partnership as a General Partner, hereby agrees to become a party to, and hereby agrees to be bound by the terms and conditions of, this Limited Partnership Agreement. IN WITNESS WHEREOF, the undersigned has executed this Counterpart as of the 27th day of December, 2002. STONEY RIVER, LLC By: /s/ Gregory L. Burns -------------------------------- Name: Gregory L. Burns Title: Chief Manager and President EX-4.3 42 g86000exv4w3.txt EX-4.3 FORM OF 9%SENIOR SUBORDINATED EXCHANGE NOTE EXHIBIT 4.3 [FORM OF EXCHANGE NOTE] [FACE OF NOTE] O'CHARLEY'S INC. THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 9% SENIOR SUBORDINATED NOTES DUE 2013 No. R-__ $___________________ CUSIP No. 670823 AB 9 O'Charley's Inc., a Tennessee corporation, promises to pay to Cede & Co. or registered assigns the principal sum of _______________ Dollars on November 1, 2013. Interest Payment Dates: May 1 and November 1, commencing May 1, 2004 Record Dates: April 15 and October 15. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officers. Dated: ------------------------ O'CHARLEY'S INC. By ------------------------------------ Name: Title: By ------------------------------------ Name: Title: Certificate of Authentication: THE BANK OF NEW YORK, as Trustee, certifies that this is one of the Notes referred to in the within- mentioned Indenture. Date: ------------------------- By ---------------------------------------- Authorized Signatory [REVERSE OF NOTE] O'CHARLEY'S INC. 9% SENIOR SUBORDINATED NOTES DUE 2013 1. Interest. O'Charley's Inc., a Tennessee corporation (the "Company"), promises to pay interest on the principal amount of this Note at 9% per annum from November 4, 2003 until maturity. The Company will pay interest semiannually on May 1 and November 1 of each year (each an "Interest Payment Date"), or if any such day is not a Business Day, on the next succeeding Business Day. Interest on the Notes will accrue from the most recent Interest Payment Date on which interest has been paid or, if no interest has been paid, from November 4, 2003; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be May 1, 2004. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate equal to the interest rate then in effect; it shall pay interest on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. 2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest) to the persons who are registered holders of Notes at the close of business on the record date immediately preceding the Interest Payment Date, even if such Notes are cancelled after the record date and on or before the Interest Payment Date, except as provided in Section 2.11 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose in the Borough of Manhattan, The City of New York maintained for such purposes, provided that payment by wire transfer of immediately available funds shall be required with respect to principal of, premium, if any, and interest on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal of, premium, if any, and interest on the Notes in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. 3. Paying Agent and Registrar. Initially, the Trustee will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-registrar without notice, as provided in the Indenture (defined below). Neither the Company nor any of its Subsidiaries may act as Paying Agent or Registrar. 4. Indenture. The Company issued the Notes under an Indenture, dated as of November 4, 2003 (the "Indenture"), among the Company, the Subsidiary Guarantors and the Trustee. Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 as in effect on the date of the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture pursuant to which the Notes are issued provides that an unlimited aggregate principal amount of Notes may be issued thereunder. 5. Guarantees. The Notes are general senior subordinated unsecured obligations of the Company. The Company's obligation to pay principal, premium, if any, and interest with respect to the Notes is unconditionally guaranteed on a senior subordinated basis, jointly and severally, by the Subsidiary Guarantors pursuant to Article Eleven of the Indenture. Certain limitations to the obligations of the Subsidiary Guarantors are set forth in further detail in the Indenture. 6. Subordination. Each Holder by accepting this Note agrees, that payment of principal, premium, if any, and interest on (or any other Obligations relating to) the Notes is subordinated in right of payment, to the extent and in the manner provided in Article Ten of the Indenture, to the prior payment in full in cash of all Senior Debt of the Company (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt. Each Holder by accepting this Note agrees, that any payment in respect of the Subsidiary Guarantee of each Subsidiary Guarantor is subordinated in right of payment, to the extent and in the manner provided in Article Twelve of the Indenture, to the prior payment in full in cash of all Senior Debt of the Company and such Subsidiary Guarantor (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt. 7. Optional Redemption. Except as described below, the Notes will not be redeemable at the Company's option prior to November 1, 2008. At any time on or after November 1, 2008, the Company may, at its option, redeem all or any portion of the Notes, subject to any restrictions or other provisions relating thereto in any Senior Debt, at the redemption prices (expressed as percentages of the principal amount of the Notes) set forth below, plus, in each case, accrued interest thereon to the applicable redemption date, if redeemed during the 12-month period beginning November 1 of the years indicated below:
Year Percentage ---- ---------- 2008 104.500% 2009 103.000% 2010 101.500% 2011 and thereafter 100.000%
Notwithstanding the foregoing, at any time and from time to time on or prior to November 1, 2006, the Company may redeem in the aggregate up to 35% of the aggregate original principal amount of the Notes issued under the Indenture with the net cash proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount) of 109.000%, plus accrued and unpaid interest, if any, to the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that (1) at least 65% of the aggregate principal amount of the Notes originally issued under the Indenture must remain outstanding after each such redemption and (2) any such redemption must occur within 60 days of the date of the closing of the Equity Offering. 8. Mandatory Redemption. The Company shall not be required to make mandatory redemption payments or sinking fund payments with respect to the Notes. 9. Selection and Notice of Redemption. Notice of redemption will be mailed to the Holder's registered address at least 30 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed. If less than all Notes are to be redeemed, the Trustee shall select the Notes to be redeemed in multiples of $1,000 pro rata, by lot or by any other method that the Trustee considers fair and appropriate; provided that if the Notes are listed on any securities exchange, that such method complies with the requirements of such exchange. Notes in denominations larger than $1,000 may be redeemed in part. On and after the redemption date interest ceases to accrue on Notes or portions of them called for redemption (unless the Company shall default in the payment of the redemption price or accrued interest). 10. Repurchase at Option of Holder. (a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to a Change of Control Offer at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon, to the date of purchase. Within 30 days following any Change of Control, the Company will mail a notice to each Holder describing, among other things, the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in such notice, which date shall be no earlier than 30 days and no later than 90 days from the date such notice is mailed, pursuant to the procedures required by the Indenture and described in such notice. (b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds at its option to (1) prepay, repay or purchase Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; provided, however, that if any Net Proceeds received in any Build-to-Suit Sale-Leaseback Transaction or any Expansion Equipment Sale-Leaseback Transaction are used to repay revolving credit Indebtedness, no corresponding reduction in commitments with respect thereto will be required; or (2) to purchase Replacement Assets or to make a capital expenditure in or that is used or useful in a Permitted Business or enter into a commitment to do so. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute "Excess Proceeds." Within 30 days after the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an "Asset Sale Offer" to all Holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes or any Subsidiary Guarantee containing provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount of the Notes purchased plus accrued and unpaid interest thereon to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. 11. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company is not required to transfer or exchange any Notes selected for redemption. Also, the Company is not required to transfer or exchange any Notes for a period of 15 days before the mailing of a notice of redemption of Notes to be redeemed. 12. Persons Deemed Owners. The registered Holder of a Note may be treated as the owner of it for all purposes and neither the Company, any Subsidiary Guarantor, the Trustee nor any Agent shall be affected by notice to the contrary. 13. Amendment, Supplement, Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes, and any past default or noncompliance with any provision may be waived with the consent of the Holders of a majority in aggregate principal amount of the Notes. Without the consent of any Holder, the Company may modify, amend or supplement the Indenture or the Notes to: cure any ambiguity, defect or inconsistency; provide for uncertificated Notes in addition to or in place of certificated Notes; provide for the assumption of the Company's or any Subsidiary Guarantor's Obligations to the Holders of the Notes in the case of a merger or consolidation or sale of all or substantially all of the Company's or such Subsidiary Guarantor's assets pursuant to the provisions of Section 5.01, 4.20(B) or 4.11 of the Indenture; to make any change that would provide any additional benefit or rights to the Holders or that does not adversely affect the legal rights under the Indenture of any such Holder; to comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA; to comply with Sections 4.20 (Release of Subsidiary Guarantees) and 4.22 (Additional Subsidiary Guarantors) of the Indenture; evidence and provide for the acceptance of appointment by a successor Trustee; or to provide for the issuance of Additional Notes in accordance with the Indenture. 14. Defaults and Remedies. If an Event of Default (other than an Event of Default related to bankruptcy or insolvency of the Company, any Subsidiary Guarantor or any Significant Subsidiary (or any Subsidiaries of the Company that, taken together as a whole, would constitute a Significant Subsidiary)) under the Indenture occurs and is continuing, then and in every such case the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes may declare the unpaid principal of, premium, if any, and accrued and unpaid interest on, all the Notes then outstanding to be due and payable immediately, by a notice in writing to the Company (and to the Trustee, if given by Holders) specifying the respective Event of Default and upon any such declaration such principal, premium, if any, and accrued and unpaid interest shall become immediately due and payable; provided, however, that so long as any Obligations under any Credit Agreement shall be outstanding or the commitments thereunder have not been terminated, that acceleration shall not be effective until the earlier of (1) the acceleration of all Obligations under the Credit Agreement or (2) five business days after receipt by the administrative agent under the Credit Agreement of written notice of the acceleration of the Notes. If an Event of Default related to bankruptcy or insolvency of the Company, any Subsidiary Guarantor or any Significant Subsidiary (or any Subsidiaries of the Company that, taken together as a whole, would constitute a Significant Subsidiary) occurs, all unpaid principal of, and accrued interest on, the Notes then outstanding will become due and payable immediately, without any declaration or other act on the part of the Trustee or any Holder. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity and security satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Notes may direct the Trustee in its exercise of any trust or power. 15. Trustee Dealings with Company and Subsidiary Guarantors. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company, the Subsidiary Guarantors or their respective Subsidiaries or Affiliates with the same rights it would have if it were not Trustee. 16. Authentication. This Note shall not be valid until the Trustee or an authenticating agent signs the certificate of authentication on the other side of this Note. 17. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Notes as a convenience to Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon. 18. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company, any Subsidiary Guarantor or the Trustee, shall not have any liability for any obligations of the Company, any Subsidiary Guarantor or the Trustee, under the Notes, the Subsidiary Guarantees or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes. 19. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). This Note shall be governed by and construed in accordance with the laws of the State of New York. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: O'Charley's Inc., 3038 Sidco Drive, Nashville, Tennessee 37204, Attention: A. Chad Fitzhugh. ASSIGNMENT FORM To assign this Note, fill in the form below: I or we assign and transfer this Note to: - -------------------------------------------------------------------------------- (Insert assignee's social security or tax I.D. no.) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type assignee's name, address and zip code) and irrevocably appoint as agent to ------------------------------------------- transfer this Note on the books of the Company. The agent may substitute another to act for him. - -------------------------------------------------------------------------------- Your Signature: ----------------------------------------------------------------- (Sign exactly as your name appears on the other side of this Note) Your Name: ---------------------------------------------------------------------- Date: ------------------------------------------ Signature Guarantee: ------------------------------------------------------------ FORM OF OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Note purchased by the Company pursuant to Section 4.11 or Section 4.16 of the Indenture, check the box: [ ] If you want to have only part of this Note purchased by the Company pursuant to Section 4.11 or Section 4.16 of the Indenture, state the amount (in integral multiples of $1,000: $ -------------------------- Date: Signature: ---------------------- -------------------------------- (Sign exactly as your name appears on the other side of this Note) Name: --------------------------------------------------------------------------- Signature Guarantee: ------------------------------------------------------------ [TO BE ATTACHED TO GLOBAL NOTES] SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE The following increases or decreases in this Global Note have been made:
======================================================================================== PRINCIPAL AMOUNT OF AMOUNT OF AMOUNT OF THIS SIGNATURE OF DECREASE IN INCREASE IN GLOBAL NOTE AUTHORIZED PRINCIPAL PRINCIPAL FOLLOWING SUCH SIGNATORY OF DATE OF AMOUNT OF THIS AMOUNT OF THIS DECREASE OR TRUSTEE OR NOTES EXCHANGE GLOBAL NOTE GLOBAL NOTE INCREASE CUSTODIAN ========================================================================================
EX-5 43 g86000exv5.txt EX-5 OPINION OF BASS, BERRY & SIMS PLC . . . EXHIBIT 5 BASS, BERRY & SIMS PLC A PROFESSIONAL LIMITED LIABILITY COMPANY ATTORNEYS AT LAW KNOXVILLE OFFICE DOWNTOWN OFFICE: 900 SOUTH GAY STREET, SUITE 1700 REPLY TO: AMSOUTH CENTER KNOXVILLE, TN 37902 AMSOUTH CENTER 315 DEADERICK STREET, SUITE 2700 (865) 521-6200 315 DEADERICK STREET, SUITE 2700 NASHVILLE, TN 37238-3001 NASHVILLE, TN 37238-3001 (615) 742-6200 MEMPHIS OFFICE (615) 742-6200 THE TOWER AT PEABODY PLACE MUSIC ROW OFFICE: 100 PEABODY PLACE, SUITE 950 WWW.BASSBERRY.COM 29 MUSIC SQUARE EAST MEMPHIS, TN 38103-2625 NASHVILLE, TN 37203-4322 (901) 543-5900 (615) 255-6161

February 2, 2004 O'Charley's Inc. 3038 Sidco Drive Nashville, Tennessee 37204 Re: Offer for All Outstanding 9% Senior Subordinated Notes Due 2013 of O'Charley's Inc. in Exchange for 9% Senior Subordinated Notes Due 2013 of O'Charley's Inc. - Registration Statement on Form S-4 Ladies and Gentlemen: We have acted as counsel to O'Charley's Inc., a Tennessee corporation (the "Company"), and the Guarantors (as defined below) in connection with the public offering of up to $125,000,000 aggregate principal amount of 9% Senior Subordinated Notes Due 2013 (the "New Notes") of the Company that are to be unconditionally guaranteed on an unsecured senior subordinated basis (the "Guarantees") by the subsidiaries of the Company listed on Schedule I attached hereto (the subsidiary guarantors set forth on Schedule I attached hereto being collectively referred to herein as the "Guarantors"). The New Notes are to be issued pursuant to an exchange offer (the "Exchange Offer") in exchange for a like principal amount and denomination of the Company's issued and outstanding 9% Senior Subordinated Notes due 2013 (the "Old Notes"), as contemplated by the Registration Rights Agreement, dated as of November 4, 2003 (the "Registration Rights Agreement"), by and among the Company, the Guarantors, Wachovia Capital Markets, LLC and Morgan Joseph & Co. Inc. The Old Notes were issued, and the New Notes will be issued, under an Indenture, dated as of November 4, 2003 (the "Indenture"), by and among the Company, the Guarantors and The Bank of New York, as Trustee (the "Trustee"). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Securities Act"). In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement on Form S-4 of the Company relating to the Exchange Offer, as filed with the Securities and Exchange Commission (the "Commission") on the date hereof (such Registration Statement being hereinafter referred to as the "Registration Statement"); (ii) an executed copy of the Registration Rights Agreement; (iii) an executed copy of the Indenture (which includes the Guarantees); (iv) the Form T-1 of the Trustee filed as an exhibit to the Registration Statement; and (v) the form of the New Notes. We also have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such records, documents, certificates and O'Charley's Inc. February 2, 2004 Page 2 other instruments as in our judgment are necessary or appropriate in order to express the opinions hereinafter set forth. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, facsimile, conformed or photostatic copies and the authenticity of the originals of such latter documents. In connection with this opinion, we have assumed that the Registration Statement will have become effective, and that the New Notes will be issued and sold in compliance with applicable federal and state securities laws and in the manner described in the Registration Statement. As to any facts material to the opinion expressed herein that have not been independently established or verified, we have relied upon the oral or written statements and representations of officers and other representatives of the Company, the Guarantors and others. Based on the foregoing, and subject to the qualifications and limitations stated herein, we are of the opinion that: 1. When the New Notes (in the form examined by us) have been duly executed and authenticated in accordance with the terms of the Indenture and have been delivered upon consummation of the Exchange Offer against receipt of Old Notes surrendered in exchange therefor in accordance with the terms of the Exchange Offer, the Registration Rights Agreement and the Indenture, the New Notes will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). 2. When the New Notes have been duly executed and authenticated in accordance with the terms of the Indenture and have been issued and delivered upon consummation of the Exchange Offer against receipt of Old Notes surrendered in exchange therefor in accordance with the terms of the Exchange Offer, the Registration Rights Agreement and the Indenture, the Guarantees will constitute the valid and binding obligation of the Guarantors, enforceable against each such Guarantor in accordance with its terms, except that the enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). We assume no obligation to advise you of changes in law or fact (or the effect thereof on the opinions expressed herein) that hereafter may come to our attention. The Indenture provides that the New Notes and the Indenture are governed by the laws of the State of New York, and we have assumed that a court considering the issue would respect that choice. O'Charley's Inc. February 2, 2004 Page 3 We hereby consent to the reference to our law firm in the Registration Statement under the caption "Legal Matters" and the filing of this opinion with the Commission as Exhibit 5 to the Registration Statement. Very truly yours, /s/ Bass, Berry & Sims PLC Bass, Berry & Sims PLC SCHEDULE I LIST OF GUARANTORS
JURISDICTION OF NAME ORGANIZATION AND ENTITY TYPE - ---- ---------------------------- Air Travel Services, Inc. Tennessee corporation DFI, Inc. Tennessee corporation O'Charley's Finance Company, Inc. Tennessee corporation O'Charley's Management Company, Inc. Tennessee corporation O'Charley's Restaurant Properties, LLC Delaware limited liability company O'Charley's Service Company, Inc. Tennessee corporation O'Charley's Sports Bar, Inc. Alabama corporation OCI, Inc. Delaware corporation OPI, Inc. Colorado corporation Stoney River Legendary Management, L.P. Georgia limited partnership Stoney River, LLC Delaware limited liability company Stoney River Management Company, Inc. Delaware corporation 99 Commissary, LLC Delaware limited liability company 99 Restaurants, LLC Delaware limited liability company 99 Restaurants of Boston, LLC Delaware limited liability company 99 Restaurants of Massachusetts, a Massachusetts Business Trust Massachusetts business trust 99 Restaurants of Vermont, LLC Vermont limited liability company 99 West, Inc. Massachusetts corporation
EX-10.1 44 g86000exv10w1.txt EX-10.1 FORM OF LEASE AGREEMENT EXHIBIT 10.1 O'Charley's ___/__________, ____________ County, __________ LEASE AGREEMENT THIS LEASE AGREEMENT ("Lease") is made and entered into as of ________ ____, 2003 (the "Effective Date"), by and between: (i) ______________, LP, a Delaware limited partnership, with its principal office and place of business at CNL Center at City Commons, 450 South Orange Avenue, Orlando, Florida 32801-3336 ("Landlord"), and (ii) ________________, a _____________________, with its principal place of business at 3038 Sidco Drive, Nashville, Tennessee 37204 ("Original Tenant"). W I T N E S S E T H: Landlord leases to Tenant (as hereinafter defined), for the use and purposes whatsoever permitted in this Lease, and subject to the terms and conditions of the Rent Addendum attached hereto, and Tenant rents from Landlord, the following described premises, (hereinafter "Premises"): the real property located at ______________________, __________, _________ County, ___________ and being more particularly described in Exhibit "A" attached hereto and made a part hereof (the "Land"), together with all (i) rights, privileges, easements, servitudes, rights-of-way and appurtenances belonging or appurtenant to the Land (the "Appurtenant Interests"), and (ii) all buildings, fixtures and other improvements now or hereafter located on the Land and all right, title and interest of Landlord in and to any improvements used in connection with or necessary for the exercise of the Appurtenant Interests. The following additional stipulations are hereby declared to be covenants of this Lease and shall, unless otherwise expressly stated, be applicable at all times throughout the term of this Lease and any extension or renewal thereof: 1. DEFINITIONS In addition to the defined terms appearing elsewhere in this Lease, the following terms shall be defined as follows for purposes of this Lease: "Annual Rent Commencement Date" shall mean the Effective Date. "Effective Date" shall mean the date set forth at the beginning of this Lease. "Landlord" shall mean CNL FUNDING 2001-A, LP, a Delaware limited partnership, its successors and assigns. "Lease" shall mean this Lease Agreement and all amendments hereto, if any, entered into from time to time hereafter, together with the Rent Addendum and Exhibits attached hereto. "Lease Year" shall mean a fiscal period beginning on the Annual Rent Commencement Date (and each annual anniversary thereof) and expiring on the last day preceding the next annual anniversary of the Annual Rent Commencement Date, provided, however, that in the event the Annual Rent Commencement Date is not the first (1st) day of a calendar month, then the first Lease Year shall commence on the first (1st) day of the calendar month following the Annual Rent Commencement Date and each subsequent Lease Year shall commence on the annual anniversary of the commencement date of the first (1st) Lease Year. "Material Taking" shall mean a Taking of the whole of the Land or a Taking of any portion of the Premises that, in Tenant's reasonable judgment exercised in good faith, will: (i) result in the loss of any material portion of the building located on the Land; (ii) materially impair access to the Land; or (iii) otherwise result in the permanent closure or removal of a portion of the improvements (including the loss of parking spaces) located on the Premises which can be reasonably demonstrated to have rendered uneconomical the continued use of the Land (or the remainder thereof) for Tenant's business operations. "Rent" shall mean the rent payable under this Lease as set forth in the Rent Addendum attached hereto and incorporated herein, and shall include Annual Rent (as defined in the Rent Addendum), together with all other items described in this Lease as "additional rent". "Taking" shall mean a taking of all or any part of the Premises for any public or quasi-public use under any governmental law, ordinance, regulation or right of eminent domain, or sale to the condemning authority under threat of condemnation or by agreement between Landlord and/or Tenant and those authorized to exercise such right under threat of condemnation. "Tenant" shall include the Original Tenant and its successors and any assignee thereof pursuant to an assignment under Paragraph 16 of this Lease. "Total Cost" shall mean the greater of $_____________ or the actual gross purchase price paid by any successor or assignee of Landlord to purchase the Premises pursuant to a bona fide purchase and sale transaction between unrelated parties which purchase and sale transaction relates only to the Premises. 2. TERM AND RENT (a) Term. The term of this Lease shall begin on the Effective Date and shall expire on ________________, unless previously terminated or renewed or extended as provided herein. As used herein, the "Termination Date" shall mean the last day of the initial term (as described above) or the last renewal term exercised by Tenant as described in Paragraph 10 below, as applicable. (b) Rent. Rent shall be due and payable as provided in the Rent Addendum attached hereto and incorporated herein. 2 3. ALTERATIONS AND IMPROVEMENTS, INVESTMENT TAX CREDIT, MECHANIC'S LIENS, LANDLORD'S DISCLAIMER (a) Alterations and Improvements. (i) Tenant's Property. Tenant shall be permitted to install, use on and about, and remove from the Premises at any time and from time to time all trade fixtures and other personal property (exclusive of lighting, electrical, and heating and air conditioning improvements) that are not a component of the building located or to be located on the Land (hereinafter referred to as the "Tenant's Property"), all of which at all times shall remain the property of Tenant with the right of removal (subject to Paragraph 3(d) below) at or prior to the expiration or termination of this Lease. Tenant's Property shall include: (1) removable decor items and office equipment; (2) building lettering, signs, sign posts and sign standards; (3) unattached food and customer service equipment; (4) food and customer service equipment attached to the building by bolts and screws and/or by utility connections, including without limitation, walk-in refrigerators and freezers, remote refrigeration systems, exhaust systems and hoods, and water heaters; and (5) Tenant's interest in any equipment or other item of property that is leased to Tenant pursuant to an equipment lease. (ii) Subsequent Improvements. Tenant shall also have the right to make any additions, alterations, changes and improvements, structural and nonstructural, including but not limited to construction of additional buildings and additions to the then existing buildings, as Tenant shall desire; provided, however, (x) as to any structural changes (but only if the cost of such change exceeds $100,000.00 (the "Alteration Amount")), (i) Tenant shall submit plans of all such changes to Landlord at least thirty (30) days in advance of the proposed construction date, which plans shall be subject to Landlord's approval which shall not be unreasonably withheld, conditional or delayed, (ii) Tenant shall provide Landlord with evidence of Tenant's financial ability to pay for such changes, and (iii) if Original Tenant has assigned or subleased its interest in this Lease to another party such assignee or sublessee shall deliver to Landlord unconditional payment and performance bonds for such work naming Landlord and such assignee or sublessee of Tenant as dual obligees, and (y) as to all changes, structural or non-structural, and regardless of whether any such change constitutes a structural change (and regardless of whether the cost of such change exceeds the Alteration Amount), (i) all such construction shall be completed in a workmanlike manner and in material compliance with all laws, building codes and ordinances applicable thereto, at Tenant's sole expense, and (ii) such additions, alterations, changes and improvements (whether structural or non-structural) shall not reduce the fair market value of the Premises. Notwithstanding the foregoing, the Alteration Amount shall increase to $150,000.00 at the expiration of the tenth (10th) Lease Year. In the event Landlord has reasonable cause to believe that such changes will reduce the fair market value of the Premises, Landlord shall designate an independent MAI appraiser within ten (10) days of Tenant's submission of plans of all changes to the Premises. Within ten (10) days after selection of Landlord's appraiser, Landlord shall notify Tenant of the determination made by Landlord's appraiser with respect to the anticipated fair market value of the Premises with such additions, alterations, changes and improvements. Tenant shall then have ten (10) days to dispute such determination and to 3 select its own independent MAI appraiser. In the event that Tenant fails to select its appraiser within such ten (10) day period, the determination of Landlord's appraiser shall constitute the anticipated fair market value. Within ten (10) days after selection of Tenant's appraiser, the two appraisers shall meet and attempt to agree as to the anticipated fair market value for the Premises. In the event that such appraisers are unable to agree as to such anticipated fair market value then: (i) if the difference between the two determinations is less than five percent (5%) of the lower determination, then the average of the two determinations shall be deemed to constitute the anticipated fair market value; or (ii) if the difference between the two determinations is equal to or greater than five percent (5%) of the lower determination, then the two appraisers shall jointly select a third independent MAI appraiser, which appraiser shall select which of the determinations of the first two appraisers shall constitute the anticipated fair market value. Such third appraiser shall not have the right to vary or modify the determinations of the appraisers selected by Landlord and Tenant. Any appraiser selected by Tenant or Landlord must have at least ten (10) years experience in appraising commercial real estate in the area in which the Premises is located. The appraisers shall not have the right to amend, modify or vary any of the terms of this Lease and the determination of the appraisers shall be final, binding and conclusive upon Landlord and Tenant. In all events, said fair market value shall be determined without regard or consideration for this Lease or rent payable hereunder. In the event Landlord has not granted or denied its approval of plans submitted in accordance with this Paragraph 3 within two (2) weeks after such plans have been delivered to Landlord, such plans shall be deemed approved by Landlord. (iii) Improvements Upon Termination, Subletting or Assignment. Subject to the requirements of this Paragraph 3, Tenant shall have the right, at its option and expense, to redecorate or otherwise remodel the Premises upon any termination hereof or upon any permitted subletting or assignment in such manner as will, without reducing the fair market value thereof, avoid the appearance of the O'Charley's Restaurant operated under this Lease; provided, however, that in addition to the other requirements of this Paragraph 3, Tenant shall not impair the structural condition of the improvements located on the Land, or reduce the size of the buildings located on the Land. Any dispute under this Paragraph as to whether a proposed change will reduce the fair market value of the Premises will be resolved by the same appraisal process described in subparagraph 3(a)(ii) above. (iv) All subsequent improvements referred to in Paragraph 3(a)(ii) above, all improvements upon termination, subletting or assignment referred to in Paragraph 3(a)(iii) above, and any and all other additions, alterations, changes and improvements of any type by Tenant to the Premises (excluding Tenant's Property) shall be deemed to be a part of the Premises and the sole property of Landlord. (b) Investment Tax Credit. Landlord hereby grants Tenant the right and privilege of applying for and receiving all investment tax credits, if any, under the Internal Revenue Code of 1986, as amended (the "Code") that may be available with respect to the building and other improvements which may be constructed on the 4 Premises. To this end, Landlord agrees to execute all such further documents and supply such additional information as may be required to make such election effective. (c) Mechanic's and Other Liens. Tenant shall not do anything by which the Premises, or any part thereof, shall be encumbered by a mechanic's, materialman's, or other lien for work or labor done, services performed, materials, appliances, or power contributed, used, or furnished in or to the Premises or in connection with any operations or any other activity of Tenant, and, if, whenever and as often as any lien may be filed against the Premises, or any part thereof, purporting to be for or on account of any labor done, materials or services furnished in connection with any work in or about the Premises, done by, for or under the authority of Tenant, or anyone claiming by, through or under Tenant, Tenant shall discharge the same of record within thirty (30) days after service upon Tenant of written notice of the filing thereof; provided, however, Tenant shall have the right to remove the lien as an encumbrance upon the Premises by bonding same in accordance with applicable law and to contest any such lien; provided further that Tenant shall diligently prosecute any such contest, at all times effectively staying or preventing any official or judicial sale of the Premises under execution or otherwise, and, if unsuccessful, satisfy any final judgment against Tenant adjudging or enforcing such lien or, if successful, procuring record satisfaction or release thereof. Landlord shall, at the request of Tenant, execute or join in the execution of any instruments or documents necessary in connection with such proceedings, but Landlord shall incur no cost or obligation thereby. (d) Landlord's Disclaimer. All of Tenant's Property placed in or upon the Premises by Tenant shall remain the property of Tenant with the right to remove the same at any time during the term of this Lease or any extension or renewal thereof. Landlord, if requested by Tenant, agrees to execute a Subordination of Landlord's Lien in the form of Exhibit "D" attached hereto or such other documentation as may be reasonably required by any equipment lender or lessor of Tenant by which Landlord shall subordinate its lien rights to the lien rights of any equipment lender or lessor with respect to Tenant's Property, and to all rights of levy for distraint for rent against the same; provided, however, that any damage caused by, or resulting from the removal of any of Tenant's Property or other personal property (including the leaving of holes or other openings in the roof or exterior of the building on the Land) shall be promptly repaired by Tenant or the party entitled to remove the same. Landlord agrees that such equipment lender or lessor shall have a period not to exceed thirty (30) days after notice to such lender or lessor that a Default has occurred hereunder to remove such equipment (and Landlord may thereafter remove such equipment at such lessor's or lender's expense). Landlord shall be entitled to reimbursement by Tenant for its reasonable costs and expenses in connection with the execution of such documentation, and Tenant agrees to pay such reasonable costs and expenses as a condition precedent to Landlord's execution of such documents. 4. DESTRUCTION OF PREMISES; INSURANCE (a) If the improvements located on the Land are damaged or destroyed by fire, flood, tornado or other element, or by any other casualty and such damage or destruction 5 does not occur within the last twenty four (24) months of the original or of any extended or renewed term of this Lease, or in the event Tenant elects not to terminate this Lease following a casualty that would allow Tenant to so terminate (as described below), this Lease shall continue in full force and effect and, unless Tenant effects an economic substitution as permitted in this Paragraph 4(a) and Paragraph 36 hereof, Tenant shall, as promptly as possible, restore, repair or rebuild the improvements located on the Land to substantially the same condition as existed before the damage or destruction, as modified to incorporate any improvements or alterations required to be made by any governmental body, county or city agency, due to any changes in code or building regulations. Tenant shall for this purpose use all, or such part as may be necessary, of the insurance proceeds received from insurance policies required to be carried under the provisions of Paragraph 4(b) hereinof. If such insurance proceeds are not sufficient to pay such costs, Tenant shall pay such deficit. Notwithstanding the foregoing provisions of this Paragraph 4(a), in the event that Tenant has an obligation hereunder to repair or rebuild the improvements located on the Land as a result of a casualty and Tenant determines that the repair or rebuilding of such improvements is not economically practicable, Tenant shall have the option to elect, by written notice to Landlord within sixty (60) days after such casualty, to substitute another restaurant property for the Premises pursuant to Paragraph 36 hereof, and in such event, (i) such substitution shall be completed within six (6) months after the delivery of such notice; (ii) all insurance proceeds payable with respect to the casualty affecting the Premises shall be paid to Tenant upon the completion of such substitution; and (iii) Tenant shall continue to pay Rent and its other monetary obligations hereunder and to provide general liability insurance pursuant to Paragraph 4(c) hereof until the substitute restaurant property is subject to a lease with Landlord as described in Paragraph 36 hereof. Should the improvements located on the Land be damaged or destroyed by any of the foregoing described casualties within the last twenty-four (24) months of the original term or of any extended or renewed term of this Lease, then to the extent that the Premises are untenantable or unsuitable, in Tenant's reasonable opinion, for continued use in the normal conduct of Tenant's business, including, without limitation, if restoration or reconstruction either (A) is not permitted by then existing laws or governmental regulations applicable to the restoration or reconstruction of the improvements on the Land or (B) is not economically practicable, in the reasonable judgment of Tenant, as a result of the cost of compliance with then existing laws or governmental regulations applicable to the restoration or reconstruction of the improvements on the Land (a "Total Loss"), Tenant shall have the right, exercisable by written notice to Landlord given within forty-five (45) days after the date of such damage or destruction, to terminate this Lease effective upon the date of such damage or destruction. If Tenant terminates this Lease as thus provided Landlord shall be entitled to all of the insurance proceeds on the Premises, but not to the proceeds of any business interruption insurance carried by Tenant or any insurance carried by Tenant on Tenant's Property; provided, however, Tenant shall not have the right to terminate this Lease unless (i) the damage or destruction of the improvements located on the Land was caused by a peril which was insured against as required by the provisions of Paragraph 4(b) of this Lease; and (ii) at the time of such damage and destruction the said insurance policies required to be carried by Tenant were in the amounts required by Paragraph 4(b) hereof (without deduction or co-insurance unless Tenant agrees to pay to Landlord (upon 6 termination hereof) the amount of any such deductible or co-insurance) and in full force and effect; and (iii) the insurer has confirmed coverage and its obligation to pay. If Tenant defaults in its obligation to carry insurance in the amounts required under Paragraph 4(b), then, prior to Tenant's termination of this Lease and in addition to the requirements set forth in the preceding sentence, Tenant shall be obligated to pay toward such reconstruction or to Landlord, as the case may be, the difference between the amount of insurance actually carried and the amount required to be carried under Paragraph 4(b). (b) Tenant, at its expense and as additional rent hereunder, shall throughout the term of this Lease and any extension or renewal thereof, keep the improvements located on the Land insured with (i) "Special Form Causes of Loss" coverage (as such term is used in the insurance industry), at least as broad as the most current ISO Special Cause of Loss Form, including coverage for glass breakage, vandalism and malicious mischief, and builder's risk (if the improvements located on the Land are to be constructed or substantially refurbished or rebuilt pursuant to the terms of this Lease) for one hundred percent (100%) of the insurable replacement value with no co-insurance penalty, with any deductible in excess of One Hundred Thousand Dollars and No/100 Dollars ($100,000.00) to be approved by Landlord which approval of deductible shall not be unreasonably withheld, and (ii) "Ordinance and Law Coverage" with limits of not less than the building value for Coverage A (loss to the undamaged portion of the building), a limit of not less than fifteen percent (15%) of the building value for Coverage B (Demolition Cost Coverage), and a limit of not less than fifteen percent (15%) of the building value for Coverage C (Increased Cost of Construction Coverage). (c) Tenant, at its expense, shall throughout the term of this Lease and any extension or renewal thereof, maintain commercial general liability insurance including product liability and liquor liability (if alcohol is served by Tenant) covering the Premises at least as broad as the most commonly available ISO Commercial General Liability policy form (occurrence basis) covering bodily injury, property damage and personal and advertising injury, for the joint benefit of and insuring Tenant and Landlord, with limits of not less than One Million Dollars ($1,000,000.00) per occurrence with any deductible in excess of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) to be approved by Landlord which approval shall not be unreasonably withheld, with a general aggregate of not less than Two Million Dollars ($2,000,000.00) and a "following form" umbrella liability policy or excess liability policy to include product liability and liquor liability (if alcohol is served by Tenant), in an amount of not less than Ten Million Dollars ($10,000,000.00) per occurrence, with any deductible in excess of Five Hundred Thousand Dollars ($500,000.00) to be approved by Landlord which approval shall not be unreasonably withheld. (d) [INTENTIONALLY DELETED] (e) In the event the Premises are located in an area identified by the National Flood Insurance Program as an area having "special flood hazards" (zones beginning with "A" or "V," Tenant shall maintain throughout the term of this Lease and any extension thereof, flood insurance for the full replacement value of the improvements 7 located on the Land, with any deductible in excess of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) to be approved by Landlord which approval of deductible shall not be unreasonably withheld. (f) In the event the Land is located in an area designated as a "Zone 1 or Zone 2 Earthquake Zone" by the U.S. Geological Survey and earthquake insurance is available, Tenant shall, throughout the term of this Lease, and any extension or renewal thereof, maintain earthquake insurance for the full replacement value of the Premises with any deductible in excess of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) to be approved by Landlord which approval shall not be unreasonably withheld. (g) Landlord and Tenant shall periodically (but no more frequently than once in any five (5) year period) and in good faith revise the deductible amounts from time to time due to inflation and changes in the insurance underwriting market. (h) All insurance companies providing the coverage required under this Paragraph 4 shall be selected by Tenant, shall be rated A minus (A-) or better by Best's Insurance Rating Service (or equivalent rating service if not available), and shall be licensed to write insurance policies in the state in which the Land is located. Tenant shall provide Landlord with copies of all policies or certificates of such coverage for the insurance coverages referenced in this Paragraph 4, and all commercial general liability and umbrella liability or excess liability policies shall name Landlord (and if Landlord is either a general or limited partnership, its general partners if so requested by Landlord) and any mortgagee whose name and address has been provided by written notice from Landlord to Tenant sent in accordance with this Lease as additional insured(s) thereunder. Any such coverage for additional insureds shall be primary and non-contributory with any insurance carried by Landlord or any other additional insured thereunder. All property insurance policies shall name Landlord as an additional named insured or as a loss payee as Landlord's interests may appear. All such policies of insurance shall provide that the amount thereof shall not be reduced and that none of the provisions, agreements or covenants contained therein shall be modified or canceled by the insuring company or companies without thirty (30) days prior written notice being given to Landlord (except for non-payment for which ten (10) days prior written notice will be provided); and that all insurance proceeds (if such payment exceeds $100,000.00) shall be paid by check payable to Landlord to be held in trust and applied pursuant to the terms of this Lease. Tenant may receive insurance proceeds directly if the insurance payment is $100,000.00 or less. Such policy or policies of insurance may also cover loss or damage to Tenant's Property, and the insurance proceeds applicable to Tenant's Property, together with the proceeds of any business interruption insurance maintained by Tenant, shall not be paid to Landlord or any mortgagee but shall accrue and be payable solely to Tenant. In the event of a casualty, Tenant shall be responsible for any deficiency between the replacement cost of the Premises and the amount actually paid by the insurance company. 8 5. MAINTENANCE AND REPAIR (a) Tenant shall, during the term of this Lease and any extension or renewals thereof, (i) maintain the Land and all buildings and improvements thereon (interior and exterior, structural and otherwise) in good order and repair, subject to normal wear and tear (and subject to provisions hereof relating to condemnation and casualty) and perform all its obligations to maintain Appurtenant Interests as are imposed on Landlord or Tenant by the instruments granting such Appurtenant Interests; (ii) not commit waste or permit impairment or deterioration of the Premises (normal wear and tear excepted and subject to the provisions hereof relating to casualty and condemnation); (iii) keep the Tenant's Property, including trade fixtures, equipment, machinery and appliances thereon so that such items function as originally intended and shall replace such items of Tenant's Property when necessary in accordance with Tenant's normal operations to keep such items so that such items function as originally intended; (iv) comply in all material respects with all laws, ordinances, regulations and requirements of any governmental body applicable to the Premises (provided, however, Tenant shall have the right to contest the same); (v) provide prompt notification to Landlord of any material adverse changes to the Premises, such as material changes in any environmental condition, including the presence of biocontaminants, such as, but without limitation mold, and shall promptly undertake reasonable remediation (and preventative) actions in connection with any such environmental condition on the Land and the improvements thereon (to the extent required by applicable environmental law); and (vi) subject to the provisions of Paragraph 4(a) with respect to damage within the last twenty-four (24) months of the Lease resulting from a casualty, and Paragraph 6 herein, return the Premises and all buildings and improvements thereon at the expiration of the term of this Lease or any extension or renewal thereof in as reasonably as good condition as when received, subject to normal wear and tear (and subject to provisions hereof relating to condemnation and casualty) and surrender the Appurtenant Interests and shall have performed all of its obligations, if any, with respect to maintaining such Appurtenant Interests. (b) Tenant agrees that Landlord shall have no obligation under this Lease to make any repairs or replacements (including the replacement of obsolete components) to the Premises or the buildings or improvements thereon, or any alteration, addition, change, substitution or improvement thereof or thereto, whether structural or otherwise. The terms "repair" and "replacement" include, without limitation, the replacement of any portions of the Premises for which Tenant is responsible hereunder that have outlived their useful life during the term of this Lease (or any extensions or renewals thereof). Landlord and Tenant intend that the Rent received by Landlord shall be free and clear of any expense to Landlord for the construction, care, maintenance (including common area maintenance charges and charges accruing under easements or other agreements relating to the Premises), operation, repair, replacement, alteration, addition, change, substitution and improvement of or to the Premises. Upon the expiration or earlier termination of this Lease, Tenant shall remain responsible for, and shall pay to Landlord, any cost, charge or expense for which Tenant is otherwise responsible for hereunder attributable to any period (prorated on a daily basis) prior to the expiration or earlier termination of this Lease. 9 (c) Tenant acknowledges and agrees that the Premises are and shall be leased by Landlord to Tenant in its present "AS IS" condition, and that Landlord makes absolutely no representations or warranties whatsoever with respect to the Premises or the condition thereof. Tenant acknowledges that Landlord has not investigated and does not warrant or represent to Tenant that the Premises are fit for the purposes intended by Tenant or for any other purpose or purposes whatsoever, and Tenant acknowledges that the Premises are to be leased to Tenant in their existing condition, i.e., "AS IS", on and as of the Effective Date. 6. CONDEMNATION (a) In the event a Material Taking shall occur during the term of this Lease or any extension or renewal, then in such event, Tenant shall have the option of terminating this Lease as of a date no earlier than the date of such Material Taking, such termination date to be specified in a written notice of termination to be given by Tenant to Landlord not fewer than fourteen (14) days prior to the date on which possession of the Premises, or the affected part thereof, must be surrendered to the condemning authority or its designee. (b) In the event of any Taking which does not constitute a Material Taking or in the event Tenant does not elect to terminate this Lease upon the occurrence of a Material Taking, then this Lease shall terminate only with respect to the portion of the Premises taken by such Taking and Landlord shall make its award available to Tenant and Tenant shall, to the extent of the award from such Taking (which term "award" shall mean the net proceeds after deducting expenses of any settlement, or net purchase price under a sale in lieu of a Taking), promptly restore or repair the Premises (except those items of Tenant's Property which Tenant is permitted to remove under the terms of this Lease unless the award expressly includes compensation for such items) to substantially the same condition as existed immediately prior to such Taking insofar as is reasonably possible. If the estimated cost of restoration or repair shall exceed the amount of Landlord's award, Tenant shall deposit with Landlord the amount of such excess. The award and any excess shall be held in trust by Landlord and made available by Landlord to Tenant, to the extent required herein, for the purpose of such restoration or repair. A just and proportionate part of the Rent payable hereunder shall be abated from the date of such Taking until ten (10) days after Tenant has restored the same and thereafter the Rent shall be reduced in proportion to the reduction in the then rental value of the Premises after the Taking in comparison with the rental value prior to the Taking. Landlord and Tenant shall make a good faith determination of the rental value of the Premises after such Taking based upon the negative economic impact of the Taking upon the profitability of the business of Tenant conducted at the Premises. If the award (excluding any portion of the award belonging to Tenant pursuant to Paragraph 6(c) below) shall exceed the amount spent or to be spent promptly to effect such restoration, repair or replacement, such excess shall unconditionally belong to Landlord and shall be paid to Landlord. (c) In the event of any Taking that does not result in the termination of this Lease, Tenant shall not be entitled (except for use in reconstruction as set forth herein) to 10 any part of the compensation or award given Landlord for the Taking of the Land, but Tenant shall have the right to recover from the condemning authority such compensation as is specifically awarded to Tenant (i) to reimburse Tenant for any Taking of Tenant's Property or for any cost which Tenant may incur in removing Tenant's Property from the Premises and (ii) for loss of Tenant's business. (d) If this Lease is terminated by reason of a Taking, then Landlord shall be entitled to receive the entire award in any such condemnation or eminent domain proceedings or purchase in lieu thereof and Tenant hereby assigns to Landlord all of its right, title and interest in and to all and any part of such award, provided, however, Tenant shall be entitled to receive any award specifically made to reimburse Tenant for any Taking of Tenant's Property, moving expenses or business losses. 7. TAXES AND ASSESSMENTS (a) Except as set forth herein, Tenant shall pay prior to delinquency all taxes and assessments which may be levied upon or assessed against the Land and all the improvements located thereon (and the Appurtenant Interests to the extent levied upon or assessed against Tenant as the direct or indirect beneficiary of such Appurtenant Interests) with respect to any Lease Year and all taxes and assessments of every kind and nature whatsoever arising in any way from the use, occupancy or possession of the Land and all the improvements located thereon (and the Appurtenant Interests to the extent levied upon or assessed against Tenant as the direct or indirect beneficiary of such Appurtenant Interests) with respect to any Lease Year, together with all taxes levied upon or assessed against Tenant's Property with respect to any Lease Year. To that end, except as otherwise expressly provided below, Landlord shall not be required to pay any taxes or assessments whatsoever which relate to or may be assessed with respect to any Lease Year against this Lease, the Rent and other amounts due hereunder, the Premises or Tenant's Property; provided, however, that any taxes or assessments which may be levied or assessed against the Land and all the improvements located thereon (and the Appurtenant Interests to the extent levied upon or assessed against Tenant as the direct or indirect beneficiary of such Appurtenant Interests) for a period ending after the termination hereof shall be prorated between Landlord and Tenant as of such date. Landlord agrees to provide to Tenant, within ten (10) business days after its receipt thereof, any tax bills and other legal or governmental notices relating to the Premises that Landlord receives. Notwithstanding any terms of this Lease to the contrary, nothing contained in this Paragraph 7 or elsewhere in this Lease shall obligate Tenant to pay (i) any income, profit, franchise or similar tax that may be imposed upon or assessed against Landlord with respect to the Rent and income derived from this Lease under any law now in force or hereafter enacted, or (ii) to pay any inheritance, estate, succession, gift or any form of property transfer tax which may be assessed or levied against Landlord (excluding any real estate assessments based on value after a transfer to a third party). (b) Within thirty (30) days after Tenant receives any paid receipted tax bills relating to the Premises, Tenant shall furnish Landlord with copies thereof. Tenant may, at its option, contest in good faith and by appropriate and timely legal proceedings any tax or assessment relating to the Premises; provided, however, that Tenant shall 11 indemnify and hold Landlord harmless from any loss or damage resulting from any such contest, and all expenses of the same (including, without limitation, all attorneys' and paralegal fees, and court and other costs) shall be paid solely by Tenant. Landlord shall, at the request of Tenant, execute or join in the execution of any instruments or documents necessary in connection with such contest or proceedings, but Landlord shall incur no cost or obligation thereby. 8. COMPLIANCE, UTILITIES, SURRENDER (a) Tenant, at its expense shall (i) promptly comply in all material respects with all municipal, county, state, federal and other governmental requirements and regulations, whether or not compliance therewith shall require structural or other changes in the Land and the improvements thereon (and the Appurtenant Interests to the extent properly imposed upon Tenant as the direct or indirect beneficiary of such Appurtenant Interests); (ii) obtain and maintain all permits, licenses and other authorizations required for the use of the Premises or any part thereof then being made by Tenant and for the lawful and proper installation, operation and maintenance by Tenant of all equipment and appliances necessary or appropriate for the operation and maintenance of the Land and the improvements thereon (and the Appurtenant Interests to the extent properly imposed upon Tenant as the direct or indirect beneficiary of such Appurtenant Interests); and (iii) comply in all material respects with all easements, restrictions, reservations and other instruments of record applicable to the Premises, including without limitation, any requirement in such instruments on behalf of the owner or occupant of the Land and improvements thereon (and the direct or indirect beneficiary of the Appurtenant Interests) to obtain and maintain insurance, and whether now in effect or recorded during the term of this Lease, provided, however that Landlord shall not execute or record any easements, restrictions or other instruments against or affecting the Premises without the prior written consent of Tenant. Tenant shall indemnify and save Landlord harmless from all expenses and damages by reason of any notices, orders, violations or penalties filed against or imposed upon the Premises, or against Landlord as owner thereof, because of Tenant's failure to comply with this paragraph. Notwithstanding the foregoing, Tenant shall be entitled to contest any governmental requirement, restriction or other matter described above so long as all costs incurred in connection therewith are paid by Tenant. (b) Tenant shall pay all charges for heat, water, gas, sewage, electricity and other utilities used or consumed on the Land and the improvements thereon (and the Appurtenant Interests to the extent properly imposed upon Tenant as the direct or indirect beneficiary of such Appurtenant Interests) during the term hereof and shall contract for the same in its own name. Landlord shall not be liable for any interruption or failure in the supply of any such utility service to the Premises, except to the extent such interruption or failure results from the willful misconduct or gross negligence of Landlord or its agents, employees or contractors. (c) Tenant shall peacefully surrender possession of the Premises (excluding Tenant's Property), to Landlord at the expiration, or earlier termination, of the original term of this Lease or any extension or renewal thereof. 12 9. QUIET ENJOYMENT Landlord covenants and warrants that Landlord has full power and authority to enter into this Lease, and that Tenant shall have and enjoy full, quiet and peaceful possession of the Premises, its appurtenances and all rights and privileges incidental thereto during the term hereof and any extension or renewal thereof, subject to the provisions of this Lease and any easements, restrictions, reservations and other instruments of record applicable to the Premises and in existence at the time of the conveyance of the Premises to Landlord by Tenant or thereafter (subject, however, to the restriction on Landlord's ability to execute and record such easements, restrictions and instruments, as described in Paragraph 8 above). Landlord agrees to cause the holder of any mortgage now or hereafter relating to the Premises to execute and deliver to Tenant a Subordination and Nondisturbance Agreement in the form contemplated by Paragraph 18. 10. OPTION TO RENEW Tenant shall have four (4) successive five (5) year options to extend the original term of this Lease for up to an additional twenty (20) years upon the same terms, covenants, conditions and rental as set forth herein, provided that Tenant is not in Default (as hereafter defined, beyond applicable periods of notice and cure) hereunder at the commencement of the applicable option period. In the event Tenant elects not to exercise the option to extend the term hereof for the next succeeding five (5) year option period, Tenant shall give written notice to Landlord not less than six (6) months prior to the then-existing expiration date of the term hereof. Should Tenant fail to give Landlord such timely written notice during the required period, this Lease shall automatically renew for the next succeeding five (5) year option period pursuant to the terms hereof. 11. NONCOMPETE Tenant shall not own an interest in, or operate, an O'Charley's Restaurant (other than the restaurant at the Premises or any O'Charley's Restaurant currently operating as of the date hereof) within a one (1) mile radius of the Land during the term of this Lease and any renewals hereof. Violation of this covenant shall, at Landlord's option, be and constitute a default hereunder and, because the parties agree that damages would not be an adequate remedy, Tenant hereby agrees that Landlord shall be entitled to equitable relief, including injunctive relief and specific performance in addition to any remedy available at law. Tenant further agrees that the restrictions and the duration of such restrictions set forth in this paragraph are reasonable under the circumstances and in particular, in relation to Tenant's restaurant business. Notwithstanding the foregoing, the requirements of this Paragraph 11 shall not apply to (a) any O'Charley's Restaurant in which Tenant owns an interest or operates as of the Effective Date, or (b) any other type or concept of restaurant (other than an O'Charley's Restaurant) now or hereafter owned or operated by Tenant. 12. DEFAULT (a) If any one or more of the following events occur, said event or events shall hereby be referred to as a "Default": 13 (i) If Tenant fails to pay Rent or any other charges required (x) under this Lease or at Landlord's option, under any other lease or agreement dated as of the date hereof or within ninety (90) days of the date hereof with Landlord or an affiliate of Landlord when same shall become due and payable, provided, however, the aggregate of all amounts in default under such Leases exceeds the sum of Fifty Thousand Dollars ($50,000.00), and (y) such failure continues for ten (10) days or more after written notice from Landlord. In the event of any such default, Landlord shall be entitled to the default interest rate specified in the applicable leases (if any) during the term of any such default, and any of Tenant's monies deposited with Landlord shall be immediately and irrevocably assigned to Landlord to apply to any obligations of Tenant owed to Landlord in any manner Landlord deems necessary. (ii) If Tenant shall fail to perform or observe any term, condition, covenant, agreement, or obligation required: (x) under this Lease or at Landlord's option, any other lease or other agreement dated as of the date hereof or within ninety (90) days of the date hereof with Landlord or an affiliate of Landlord; and (y) such failure continues for thirty (30) days after written notice from Landlord (except that such thirty (30) day period shall be automatically extended for such additional period of time as is reasonably necessary to cure such Default, if such Default cannot reasonably be cured within such period, provided Tenant is in the process of diligently curing the same). (iii) If Tenant fails to continuously operate its business upon the Land except for temporary periods of closure caused by casualty, condemnation, repairs, Acts of God, or temporary and reasonable periods of remodeling or while actively seeking to sublease or assign the Premises, not to exceed (in any such event) two hundred seventy (270) days (plus any additional period as may reasonably be required in order to repair or restore the Premises following a casualty or condemnation so long as Tenant has been diligently proceeding with such repair or restoration) in any Lease Year without first obtaining Landlord's written approval. (iv) If Tenant shall make an assignment for the benefit of creditors or file a petition, in any federal or state court, in bankruptcy or reorganization, or make an application in any such proceedings for the appointment of a trustee or receiver for all or any portion of its property. (v) If any petition shall be filed under federal or state law against Tenant in any bankruptcy, reorganization, or insolvency proceedings, and said proceedings shall not be dismissed or vacated within ninety (90) days after such petition is filed. (vi) If a receiver or trustee shall be appointed under federal or state law for Tenant for all or any portion of the property of Tenant, and such receivership or trusteeship shall not be set aside within ninety (90) days after such appointment. Notwithstanding the foregoing, a default under any such other lease or agreement as of the date hereof or within ninety (90) days of the date hereof with Original Tenant that has been (x) assigned to or become the subject of a sublease with a franchisee of Original Tenant (and provided such franchisee is not then in monetary default under such other lease or agreement), or 14 (y)sold and assigned by Original Tenant to an unrelated third party, shall not be deemed to be, or considered in determining the existence of, a Default hereunder. Likewise, a Default hereunder shall not be deemed to be, or considered in determining the existence of, a default under any such other lease or agreement as of the date hereof or within ninety (90) days of the date hereof originally with Original Tenant that has been (xx) assigned to or become the subject of a sublease with a franchisee of Original Tenant or (yy) sold and assigned by Original Tenant to an unrelated third party. (b) During the continuance of any one or more of the aforementioned Defaults which are not cured within the cure period applicable thereto, if any, Landlord shall have the right, in addition to any other rights and remedies, to terminate this Lease by giving written notice of same to Tenant. Upon such notice, this Lease shall cease and expire, and Tenant shall surrender the Premises to Landlord. Notwithstanding such termination, Tenant's liability and obligation under all provisions of this Lease, including the obligation to pay Rent and any and all other amounts due hereunder shall survive and continue. In lieu of Tenant's continuing obligations hereunder (and as final liquidated damages therefor), during the continuance of Tenant's Default under this Lease, Landlord may, by notice to Tenant, accelerate the monthly installments of Rent due hereunder for the remaining term of this Lease. If Landlord does accelerate the Rent due hereunder, then the accelerated Rent shall be equal to the Rent which accrued prior to the date of termination, plus the Rent that would have accrued during the balance of the term (not including any renewal (term(s) not theretofore exercised by Tenant) of the Lease (as if this Lease had not been terminated), less the fair rental value of the Premises for the corresponding period, plus any and all reasonable expenses which Landlord may have incurred in re-letting the Premises including, but not limited to, allocable overhead, reasonable alterations to the building to protect the integrity of existing improvements or to facilitate reletting of the existing improvements and the Premises, leasing, construction, architectural, reasonable legal and accounting fees. The accelerated Rent shall be discounted to present value at an annual interest rate equal to eight and one-half percent (8.5%). Tenant hereby expressly agrees that its occupation of the Premises after any such termination constitutes forcible detainer (or equivalent) as is defined by the law in force in the jurisdiction in which the Land is located. Tenant further agrees that in the event of a Default, any monies deposited by Tenant with Landlord shall be immediately and irrevocably assigned and released to Landlord (without further action by Landlord or Tenant) to be applied by Landlord against any and all of Tenant's obligations under this Lease, in any manner as Landlord may determine. (c) If this Lease shall terminate as provided hereinabove, Landlord may re-enter the Premises and remove Tenant, its agents and subtenants, together with all or any of Tenant's Property, by suitable action at law, or by force. Tenant waives any right to the service of any notice of Landlord's intention to re-enter and Landlord shall not be liable in any way in connection with any action it takes pursuant to this paragraph. Notwithstanding such re-entry or removal, Tenant's liability under this Lease shall survive and continue unless Tenant has paid in full the liquidated damages set forth in Paragraph 12(b) above. 15 (d) In case of re-entry, repossession or termination (following a Default) of this Lease (unless Landlord exercises its right to liquidated damages as described above), Tenant shall remain liable for Rent, any additional rent and all other charges provided for in this Lease for the otherwise remaining term of this Lease as and when due hereunder, and any and all expenses which Landlord may have incurred in re-entering the Premises including, but not limited to, allocable overhead, alterations to the building, leasing, construction, architectural, legal and accounting fees. Landlord shall have the right, but not the obligation (provided, however, that Landlord shall use reasonable efforts to mitigate Tenant's damages), to relet the whole or part of the Premises upon terms which Landlord, in its reasonable discretion, deems appropriate and Tenant shall be responsible for all expenses incurred by Landlord in reletting or attempting to relet and all rent collected from reletting shall be credited against all of Tenant's obligations hereunder. (e) In the event of a Default, Landlord may, at its sole option, enter upon the Premises, if deemed necessary by Landlord in its sole discretion, and/or do whatever may be deemed necessary by Landlord in its sole discretion to cure such Default by Tenant. Tenant shall pay to Landlord within five (5) days after Landlord's request, all costs incurred by Landlord in connection with Landlord's curing of such Default. In addition to the above costs, in the event Landlord does not receive payment from Tenant when due under this Paragraph 12(e), then interest at the rate of ten percent (10%) per annum or, if less, the highest rate allowable by law, shall be due and payable with respect to such payment from the due date thereof until Landlord receives such payment. (f) In the event of a Default, if Landlord engages legal counsel in connection with the enforcement of any of the terms and provisions of this Lease, then, in addition to all other sums due from Tenant to Landlord under this Lease, Tenant shall pay to Landlord (if Landlord is the prevailing party) any and all attorneys' fees, paralegal fees, and legal costs and expenses incurred by Landlord, whether or not judicial proceedings are filed, and including on appeal and in any bankruptcy proceedings. (g) Notwithstanding the foregoing, in the event Tenant fails (beyond any applicable cure periods set forth herein) to (1) maintain and keep in full force and effect any or all of the insurance policies required pursuant to Paragraph 4 of this Lease, or (2) pay when due any and all taxes and/or assessments levied or assessed against the Premises, then in the event Landlord does not terminate this Lease, and at Landlord's request and in Landlord's sole discretion, Tenant shall escrow funds for payment of such insurance premiums and taxes and assessments in the following manner: (i) Tenant shall immediately pay to Landlord all sums expended by Landlord, plus an additional ten percent (10%) thereof (which shall not be a penalty, but shall instead become part of the "Escrow Funds" described below), for purposes of: (1) bringing current or reinstating or purchasing the insurance required under Paragraph 4 of this Lease; and/or (2) paying all taxes and assessments which are past due or currently due. Thereafter, Tenant shall pay to Landlord on the first (1st) business day of each month along with the monthly payment of Rent a sum (the "Escrow Funds") equal to one-twelfth (1/12th) of: (A) the yearly premium(s) for the insurance required to be maintained by Tenant pursuant to Paragraph 4 of this Lease; and/or (B) the annual taxes 16 and assessments levied or assessed against the Premises as reasonably estimated by Landlord, based on the prior year's taxes and assessments levied or assessed against the Premises. (ii) Landlord shall apply the Escrow Funds to pay said insurance and/or taxes and assessments. No interest shall be payable by Landlord on the Escrow Funds unless required by applicable law, in which event all such interest shall be first applied by Landlord to pay such insurance premiums and/or taxes and assessments. Landlord shall provide to Tenant an annual accounting of the Escrow Funds in Landlord's normal format showing credits and debits to the Escrow Funds and the purpose for which each debit to the Escrow Funds was made. (iii) If the amount of the Escrow Funds held by Landlord at the time of the annual accounting thereof shall exceed the amount deemed necessary by Landlord to provide for the payment of such insurance premiums and/or taxes and assessments as they become due, such excess shall be credited to Tenant against the next monthly installment or installments of Escrow Funds due. If at any time the amount of the Escrow Funds held by Landlord shall be less than the amount deemed necessary by Landlord to pay such insurance premiums and/or taxes and assessments as they become due, Tenant shall pay to Landlord any amount necessary to make up the deficiency within thirty (30) days after written notice from Landlord to Tenant requesting payment thereof. (iv) The foregoing Escrow Funds arrangement shall terminate if Tenant fully and faithfully complies with the provisions of this Paragraph 11(g) for a period of twenty-four (24) consecutive months. Upon the termination or expiration of this Lease or upon termination of the foregoing Escrow Funds arrangement pursuant to the preceding sentence, Landlord shall promptly refund (or credit to Tenant against amounts due to Landlord in the case of termination due to Tenant's Default) any Escrow Funds held by Landlord. (h) The rights and remedies of Landlord set forth herein shall be in addition to any other right and remedy now or hereafter provided by law, and all such rights and remedies shall be cumulative. No action or inaction by Landlord shall constitute a waiver of any Default, and no waiver of any Default shall be effective unless it is in writing, signed by Landlord. 13. HOLDING OVER In the event Tenant remains in possession of the Premises after the expiration of this Lease without executing a new written lease acceptable to Landlord and Tenant, Tenant shall occupy the Premises as a tenant from month to month subject to all the terms hereof (except as modified by this Paragraph), but such possession shall not limit Landlord's rights and remedies by reason thereof nor constitute a holding over. In the event of such month to month tenancy, the monthly installment of Rent due for each such month shall increase to be one hundred fifty percent (150%) the monthly installment thereof which was payable during the last month of the term of this Lease. 17 14. WAIVER OF SUBROGATION Notwithstanding anything in this Lease to the contrary, other than Tenant's obligations to repair, restore or rebuild described in Paragraph 4 of this Lease, neither party shall be liable to the other for any damage or destruction of the Premises resulting from fire or other casualty covered by insurance required of either party hereunder, whether or not such loss, damage or destruction of the Premises is caused by or results from the negligence of such party (which term includes such party's officers, employees, agents and invitees), and each party hereby expressly releases the other from all liability for or on account of any said insured loss, damage or destruction, whether or not the party suffering the loss is insured against such loss, and if insured whether fully or partially. Notwithstanding the foregoing, the waiver and release provisions set forth above shall not apply with respect to an action of either party hereto that has the effect of voiding the applicable insurance or otherwise preventing recovery thereof. Each party shall procure all endorsements of insurance policies carried by it necessary to protect the other from any right of subrogation and/or liability in the event of such loss. 15. LANDLORD'S LIEN FOR RENTS As security for Tenant's payment of Rent and all other payments required to be made by Tenant hereunder (including, by way of illustration only, taxes, damage to the Premises, court costs, and attorneys' fees) Tenant acknowledges Landlord's lien to the extent granted by statute or common law upon all of Tenant's Property now or hereafter located upon the Premises; provided, however, that the foregoing language shall not be deemed to grant a lien or security interest to Landlord if the State in which the Premises is located does not create such lien by statute or common law. The lien herein provided shall be subordinate to the lien of any chattel mortgage, collateral assignment or security interest given by Tenant to any seller of Tenant's Property or to any creditor that has made a loan to Tenant that is secured by such Tenant's Property. During the continuance of a Default, Landlord may enter upon the Premises and take possession of Tenant's Property, or any part thereof, and may sell all or any part of Tenant's Property at public or private sale in one or successive sales, upon ten (10) business days' prior written notice, to the highest bidder for cash and on behalf of Tenant. Landlord may sell and convey Tenant's Property, or any part thereof, to such bidder, delivering to such bidder all of Tenant's title and interest in such property sold to such bidder. The proceeds of such sale shall be applied by Landlord first toward the costs of such sale and then toward the payment of all sums due from Tenant to Landlord under this Lease. Notwithstanding anything above to the contrary, in connection with Tenant's financing of Tenant's Property, Landlord agrees to subordinate any lien provided in this paragraph to which it may be entitled, and agrees to execute a Subordination of Landlord's Lien in the form of Exhibit "D" attached hereto or such other customary documents requested by an entity providing such financing to evidence such subordination, provided the form and content of any such subordination are reasonably satisfactory to Landlord and its counsel. As part of such subordination, Landlord agrees to permit such entity providing such financing to store equipment, fixtures or furnishings at the Premises for a period not to exceed thirty (30) days (or Landlord may remove such equipment, fixtures or furnishings at such financing entity's expense), or to remove such Tenant's Property from the Premises following reasonable notice to Landlord, provided such financing entity restores the Premises including without limitation, the covering and sealing of holes in the roof or outside walls caused by such removal and repairs all other damage caused by such removal. 18 Notwithstanding the foregoing, (x) in no event shall any lien or security interest granted to Landlord pursuant to this Paragraph 15 including any equipment, trade fixtures or other property that is leased to Tenant pursuant to an equipment lease, and (y) Landlord hereby waives any statutory "landlord's lien" or other interest in and to any equipment, trade fixtures or other property that is leased to Tenant pursuant to an equipment lease. 16. ASSIGNMENT AND SUBLETTING (a) Except as set forth in Paragraph 16(b) hereof, Tenant shall not have the right, without first obtaining Landlord's prior written consent (which consent may not be unreasonably withheld) to assign this Lease or sublet any part or all of the Premises to any party for any purpose. If Tenant is not then (or after consummation will not then be) a publicly traded company, a change in ownership of the controlling interest of Tenant, which shall mean the sale, assignment or other transfer, in a single transaction or a series of related transactions of 50.1% or more of the outstanding common stock of Tenant (without regard to any sale, assignment, gift or other transfer to any spouse or direct descendent of any holder of such common stock as of the date hereof) to any "person" or "group" within the meaning of Section 13(d)(3) of the Securities and Exchange Act of 1934 as amended. Notwithstanding the foregoing, any change in ownership of any shares of Tenant's stock shall not constitute an assignment for the purposes of this subparagraph if Tenant is a publicly traded company at such time. Landlord agrees to provide its consent to an assignment or subletting so long as: (i) such assignment or subletting would not violate the terms of any then agreement of record applicable to the Premises in effect prior to the Effective Date or agreements recorded on or after the Effective Date as long as Tenant has consented in writing to the terms, if any, of such agreements recorded on or after the Effective Date which materially affect assignment rights granted in this Paragraph or the permitted use of the Premises, and (ii) such assignee or subtenant has a net worth of $2,500,000 or more and which such assignee or subtenant then presently operates not less than five (5) restaurant units, and (iii) the proposed use does not violate any applicable governmental codes or regulations, and (iv) the proposed use is not "noxious or offensive" as defined in Paragraph 19 hereof, and (v) the assignee or subtenant has the financial capacity to meet the obligations imposed on it by this Lease (as reasonably determined by Landlord), and (vi) such assignment will not result in the downgrade of any bonds issued in connection with a net lease securitization of this Lease. No assignment or subletting or consent thereto by Landlord shall relieve Tenant of its liability for the continued performance of all terms, covenants and conditions of this Lease, including without limitation the payment of all Rent and other charges thereunder. Likewise, as a condition of any such assignment by Tenant, the assignee shall be required to execute and deliver to Landlord, upon the effective date of such assignment, an agreement, in recordable form, whereby such assignee assumes and agrees to discharge all obligations of Tenant under this Lease. (b) Notwithstanding the foregoing Paragraph 16(a) hereof, Tenant shall have the right to sublet the Premises, and to assign or otherwise transfer its interest in, to and under this Lease, to (i) an affiliate or an operating subsidiary of Tenant, (ii) a franchisee of Original Tenant, (iii) any surviving corporation resulting from a merger or consolidation of Tenant with any other corporation, or (iv) any entity which purchases or 19 otherwise acquires all or substantially all of the assets of Tenant, all without Landlord's approval. (c) Prior to any permitted assignment or subletting hereunder, Tenant shall deliver to Landlord written notice of such assignment or subletting, together with: (i) a copy of the assignment or subletting documents (including copies of any documents related thereto to be recorded); (ii) the name, address and telephone number of such assignee or sublet tenant and a designated contact person therefor; (iii) a new insurance policy and binder complying with the terms of this Lease and naming such assignee or sublet tenant as the tenant of the Premises; and (iv) an agreement executed by such assignee or sublet tenant, in recordable form, whereby such assignee or sublet tenant assumes and agrees to discharge all obligations of Tenant under this Lease. (d) Subject to the provisions of Paragraph 17, below, Landlord shall have the right without limitation to sell, convey, transfer or assign its interest in the Premises or its interest in this Lease, and upon such conveyance being completed all covenants and obligations of Landlord under this Lease accruing thereafter (but not before such conveyance) shall cease, but such covenants and obligations shall run with the land and shall be binding upon the subsequent landlord or owners of the Premises or of this Lease. Commensurate with any such transfer, Landlord shall deliver all Escrow Funds then held by Landlord to the applicable transferee. 17. RIGHT OF FIRST REFUSAL (a) Except in transactions consummated prior to the end of the fourth (4th) Lease Year, Landlord shall not at any time sell or convey or agree to sell or convey the Premises without first having complied with the requirements of this Paragraph 17. Provided that no Default exists or has occurred and is continuing, if Landlord shall desire to sell or convey the Premises and Landlord shall obtain an offer, acceptable to Landlord, to purchase the Premises, then Landlord shall submit a written copy of the offer to Tenant and shall give Tenant fourteen (14) days within which to elect to purchase the Premises on the precise terms and conditions of the offer (except that if the offer shall be in whole or in part for consideration other than cash, Tenant shall have the right to pay in cash the fair market value of such non-cash consideration). If Tenant elects to so purchase the Premises, Tenant shall give to Landlord written notice thereof ("Acceptance Notice") and the closing shall be held within sixty (60) days after the date of the Acceptance Notice, whereupon Landlord shall convey the Premises to Tenant. At the closing Landlord shall deliver to Tenant a special warranty deed (or local equivalent) and a bill of sale, sufficient to convey to Tenant fee simple title to the Premises free and clear of all liens, restrictions and encumbrances (other than those in existence as of the Effective Date). In the event Tenant shall elect not to so purchase the Premises, Landlord may thereafter sell the Premises only to the party making the offer or its assignee(s) and only in accordance with the terms thereof, unless a further offer is submitted to Tenant in accordance with this Paragraph 17. Any such sale of the Premises shall, in all events, be subject to this Lease. 20 (b) In no event shall the provisions of this Paragraph 17 or the rights and privileges of Tenant under this Paragraph 17 be construed as limiting in any manner any other rights granted elsewhere in this Lease to Tenant. (c) Notwithstanding anything to the contrary herein, the provisions of this Paragraph 17 shall not apply to (i) any sale or conveyance of the Premises in foreclosure sale (or similar proceeding) of a bona-fide mortgage or deed of trust or to any conveyance in lieu of foreclosure of such a mortgage or deed of trust, or to any transfer subsequent to a foreclosure sale or deed in lieu thereof in connection with the requirements of any rating agencies if the Lease is securitized, (ii) any sale or conveyance of the Premises which occurs during the existence of a Default hereunder, (iii) any sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the beneficial ownership interest, membership interest or other equity interest in Landlord, or the change of the trustee, manager or other controlling person of the Landlord, or (iv) any transfer to any affiliate under the control of Landlord or its affiliates. Any and all references in this Lease to a "mortgage" shall also be deemed to refer to a deed of trust or deed to secure debt. (d) If Tenant shall have agreed to purchase the Premises pursuant to an offer under which the third party offeror was to acquire the Premises under and subject to the lien of any mortgage, Tenant may, at its option (but without any obligation to do so) purchase the Premises for cash free and clear of such mortgage but only if (i) the cash portion of the offer is increased by an amount equal to the principal and interest secured by the mortgage, and (ii) Tenant pays (in addition to the purchase price) all prepayment premiums or defeasance deposits, yield maintenance amounts, satisfaction fees and any and all other sums which become owing as a result of such prepayment or defeasance, as the case may be; all to the end and effect that Landlord will net the same amount as Landlord would have netted had the Premises been sold under and subject to the lien of the mortgage, pursuant to the offer. (e) The foregoing right of first refusal shall remain in existence notwithstanding its non-exercise with respect to any sale and shall be binding upon Landlord's successors in title. 18. SUBORDINATION, NON DISTURBANCE, ATTORNMENT, ESTOPPEL CERTIFICATE. (a) Upon written request of the holder of any mortgage (which term "mortgage" shall also include deeds of trust or deeds to secure debt) granted by Landlord now or hereafter relating to the Premises, Tenant shall subordinate its rights under this Lease to the lien thereof and to all advances made or hereafter to be made upon the security thereof, and Tenant shall, within fourteen (14) days of the receipt of such request, execute, acknowledge and deliver an instrument substantially in the form of Exhibit "B" attached hereto or in other reasonable form customarily used by such encumbrance holder to effect such subordination so long as such form is consistent with the provisions of this Paragraph 18; provided, however, as a condition of all such subordinations, the holder of such mortgage shall be first required to agree with Tenant 21 that, notwithstanding the existence of such mortgage or the foreclosure or other exercise of rights under any such first or other mortgage, Tenant's possession and occupancy of the Premises and its leasehold estate shall not be disturbed or interfered with nor shall Tenant's rights and obligations under this Lease (including without limitation Tenant's rights to use insurance and condemnation proceeds to repair and rebuild the Premises as contemplated hereby) be altered or adversely affected thereby so long as Tenant is not in Default. (b) Notwithstanding anything in Paragraph 18(a) above to the contrary, in the event the holder of any such mortgage elects to have this Lease be superior to its mortgage, then upon notification to Tenant to that effect by such encumbrance holder, this Lease shall be deemed prior to the lien of said mortgage, whether this Lease is dated prior or subsequent to the date of said mortgage, and Tenant shall execute, acknowledge and deliver an instrument, in the form customarily used by such encumbrance holder to effect such priority. (c) In the event proceedings are brought for the foreclosure of, or in the event of the exercise of the power of sale under any mortgage made by Landlord encumbering the Premises, or in the event of delivery of a deed in lieu of foreclosure under such a mortgage, Tenant shall attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as "Landlord" under this Lease; provided, however, that (i) so long as Tenant is not then in Default hereunder, this Lease and the leasehold estate hereby created will not be extinguished or terminated and the rights hereunder of Tenant will not be disturbed, affected or impaired by the foreclosure of such mortgage, delivery of a deed in lieu of foreclosure of such mortgage, or the exercise of other rights and remedies that such mortgage provides; (ii) Tenant shall not be named or joined as a party defendant or otherwise in any proceeding for the foreclosure of such mortgage or to enforce any rights under such mortgage: (iii) all condemnation awards and payments and all proceeds of insurance paid or payable with respect to the Premises shall continue to be applied and used in the manner set forth in this Lease; and (iv) neither such mortgage nor any other security instrument executed in connection therewith shall be construed as subjecting any of Tenant's Property to the lien thereof. Upon the request of such purchaser or Tenant, Tenant and such purchaser shall execute, acknowledge and deliver an instrument, in form and substance reasonably satisfactory to such purchaser and Tenant, evidencing such attornment and agreement of non-disturbance. (d) Each party agrees, within seven (7) days after written request by the other, to execute, acknowledge and deliver to and in favor of any proposed mortgagee, purchaser, assignee or subtenant of the Premises, an estoppel certificate, substantially in the form of Exhibit "C" attached hereto, stating, among other things (i) whether this Lease is in full force and effect, (ii) whether this Lease has been modified or amended and, if so, identifying and describing any such modification or amendment, (iii) the date to which Rent and other charges have been paid, and (iv) whether the party furnishing such certificate knows of any default on the part of the other party under this Lease, or has any claim against such party and, if so, specifying the nature of such default or claim. 22 (e) Upon written notice to Tenant by the holder of any mortgage granted by Landlord encumbering the Premises, Tenant shall provide, in the manner set forth in Paragraph 20 hereof, concurrent notice to such encumbrance holder at the address specified in such notice, including a copy of any notice that Tenant is required to provide to Landlord hereunder in the event of any casualty damage to the Premises or in the event of any default on the part of Landlord under this Lease, and shall agree to allow such encumbrance holder the same period granted to Landlord, if any, after written notice to cure or cause the curing of such default before exercising Tenant's rights under this Lease, or terminating or declaring a default under this Lease. Upon written request of the encumbrance noted Tenant shall forthwith execute, acknowledge and deliver an agreement in favor of and in the form reasonably required by such encumbrance holder, by the terms of which Tenant shall agree to give prompt written notice to such encumbrance holder. 19. USE OF PREMISES The use of the Premises by Tenant shall be limited to the operation of an O'Charley's Restaurant, or such other use as may be made pursuant to a permitted assignment of this Lease or subletting of the Premises, or such other use as Landlord, in its sole discretion, otherwise may approve, in writing and in advance, which approval shall not be unreasonably withheld. Landlord shall not be required to approve (i) any use which Landlord deems to be "noxious or offensive", which shall be defined to mean an off-track betting business, massage parlor, blood bank, or adult or adult video rental store (which are defined as stores in which thirty percent (30%) or more of the inventory is not available for sale to children under eighteen (18) years old); or (ii) a business, the primary or exclusive operation of which consists of a dance hall, bar serving alcoholic beverages (excluding a restaurant with a bar so long as such restaurant with bar derives less than forty percent (40%) of its gross sales from alcohol), billiard or pool hall, bingo parlor, video game arcade or night club. Except as provided in subparagraph 12(a)(iii) hereof, Tenant shall continuously operate such restaurant on the Premises. Tenant shall at all times maintain the Premises, to the extent required by Paragraph 5 hereof, and operate its business in compliance in all material respects with all applicable regulations and requirements of all county, municipal, state, federal and other governmental authorities affecting the Premises which are now in force or which are enacted during the term of this Lease (except to the extent that the Premises are "grandfathered" under such regulations and requirements(s)), and instruments of record affecting the Premises which are recorded prior to the Effective Date and on or after the Effective Date so long as Tenant has consented in writing to any instrument recorded on or after the Effective Date, which consent shall not be unreasonably withheld. 20. NOTICES All notices, approvals, consents and other communications required or permitted to be given hereunder shall be in writing and shall be delivered by a nationally recognized overnight courier or mailed by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: 23 If to Landlord: ______________________ 450 South Orange Avenue Orlando, FL 32801-3336 Attention: Property Management Fax: (407) 422-2933 with copy to: TIMOTHY J. MANOR, ESQUIRE Office of the General Counsel 450 South Orange Avenue 14th Floor Orlando, Florida 32801 Fax: (407) 650-1543 If to Tenant: ________________ 3038 Sidco Drive Nashville, Tennessee 37204 Attention: Chad Fitzhugh, CFO Fax: (615) 782-5031 with copy to: BASS BERRY & SIMS PLC 315 Deaderick Street, Suite 2700 Nashville, Tennessee 37238 Attention: D. Mark Sheets Fax: (615) 742-2758 Any party may change its address for notices by written notice in like manner as provided in this paragraph and such change of address shall be effective seven (7) days after the date notice of such change of address is given. Notice for purposes of this Lease shall be deemed given when it shall have been received or refused from the U.S. certified or registered mail, or a nationally recognized overnight courier, by the party who is the intended recipient of such notice. With respect to any such notice, Tenant shall, and Landlord shall use its best efforts to, simultaneously deliver a copy of such notice by facsimile at the appropriate facsimile number above to the other party; provided however, that certified mail or overnight courier delivery shall nevertheless be required to effect proper notice hereunder. 21. INDEMNIFICATION Tenant does hereby indemnify and exonerate Landlord against and from all liabilities, losses, obligations, damages, penalties, claims, costs, charges and expenses, including reasonable architects' fees, attorneys' fees, paralegal fees, and legal costs and expenses incurred by Landlord, whether or not judicial proceedings are filed, and including on appeal and in any bankruptcy proceedings, which may be imposed upon or asserted against or incurred by Landlord by reason of any of the following occurring during the term of this Lease or renewal and any extension thereof: 24 (a) any work or thing done by Tenant or its agent, employee or contractor in respect of construction of, in or to the Premises or any part of the improvements now or hereafter constructed on the Premises; (b) any use, possession, occupation, operation, maintenance or management of the Premises or any part thereof by Tenant or its agent, employee or contractor; (c) any failure by Tenant or its agent, employee or contractor to, or to properly, use, possess, occupy, operate, maintain or manage the Premises or any part thereof; (d) the condition, including environmental conditions which shall include the presence of mold or other naturally occurring bio-contaminants, of the Premises or any part thereof; (e) any negligence on the part of Tenant or any of its agents, contractors, servants, employees, licensees or invitees; (f) any accident, injury or damage to any person or property occurring in, on or about the Premises or any part thereof including any sidewalk adjacent thereto; or (g) any failure on the part of Tenant to perform or comply with any of the covenants, agreements, terms or conditions contained in this Lease on its part to be performed or complied with, provided, however that, notwithstanding any terms of this Lease to the contrary, nothing in this Paragraph 21 or elsewhere in this Lease shall obligate or require Tenant to indemnify, defend or hold Landlord harmless from and against any losses, liabilities, damages, costs, expenses, suits, judgments or claims arising from injury or damage during the term of this Lease or any extension or renewal thereof to person or property caused by the willful misconduct or gross negligence of Landlord or any of its agents, employees or contractors. 22. COOPERATION Landlord shall fully cooperate with Tenant throughout the term of this Lease and any extension or renewal thereof to secure or maintain proper zoning, building and other permits and compliance with all applicable laws. Landlord shall execute any petitions, requests, applications, easements and the like as Tenant shall reasonably request in order to obtain any permit, license, variances and approvals which, in the reasonable judgment of Tenant, are necessary for the lawful construction and/or operation of Tenant's business on the Premises, provided, however, that Tenant shall indemnify and hold Landlord harmless from any and all expenses, costs, charges, liabilities, losses, obligations, damages and claims of any type which may be imposed upon, asserted against or incurred by Landlord by reason of the same. 23. HOLD HARMLESS Tenant agrees to hold Landlord harmless against any and all claims, damages, accidents and injuries to persons or property caused by or resulting from or in connection with anything in or pertaining to or upon the Premises during the term of this Lease or while Tenant is occupying 25 the Premises, except if such claim, damage, accident or injury shall be caused by the actions or negligence of Landlord or its agents, employees or contractors. Landlord shall not be liable to Tenant, Tenant's employees, agents, invitees, licensees or any other person whomsoever for any injury to person or damage to property on or about the Premises caused by the negligence or misconduct of Tenant, or its agents, servants or employees or of any other person entering the building on the Land under expressed or implied invitation by Tenant or due to any other cause whatsoever, unless caused by the negligence or neglect of Landlord, its employees or its authorized representatives. 24. LANDLORD'S LIABILITIES Neither Landlord nor any partner, shareholder or beneficiary thereof shall have any personal liability with respect to any of the provisions of this Lease, and if Landlord is in default with respect to its obligations hereunder, Tenant shall look solely to the interests of Landlord in the Premises. 25. SUCCESSORS The covenants, conditions and agreements contained in this Lease shall bind and inure to the benefit of Landlord and Tenant and their respective heirs, legal representatives, successors and assigns. 26. ENTIRE AGREEMENT, MEMORANDUM OF LEASE This Lease contains the entire agreement between the parties hereto and may not be modified in any manner other than in writing signed by the parties hereto or their successors in interest. A memorandum of this Lease shall be executed by the parties and shall be recorded in the official records of the county where the Premises are located. 27. GENDER Whenever the context hereof permits or requires, words in the singular may be regarded as in the plural and vice-versa, and personal pronouns may be read as masculine, feminine and neuter. 28. BROKERAGE FEES It is understood and agreed that neither party has incurred any real estate brokerage fees or commissions arising out of this Lease and each party agrees to hold the other harmless from and against all such fees and commissions incurred, and costs related thereto including legal fees, as a result of its own conduct or alleged conduct. 29. CAPTIONS The captions of this Lease are for convenience only, and do not in any way define, limit, disclose, or amplify terms or provisions of this Lease or the scope or intent thereof. 26 30. NOT A SECURITY ARRANGEMENT The parties hereto agree and acknowledge that this transaction is not intended as a security arrangement or financing secured by real property, but shall be construed for all purposes as a true lease. 31. NET LEASE It is the intention of the parties hereto that this Lease is and shall be treated as a triple net lease. Any present or future law to the contrary notwithstanding, this Lease shall not terminate (except as expressly provided in Paragraph 4(a) or Paragraph 6) nor shall Tenant be entitled to any abatement, suspension, deferment, reduction (except as expressly provided in Paragraph 6 hereof), setoff, counterclaim, or defense with respect to Rent, nor shall the obligations of Tenant hereunder be affected by reason of: (i) any damage to or destruction of the Premises or any part thereof; (ii) any Taking of any Premises or any part thereof or interest therein by condemnation or otherwise (except as expressly provided in Paragraph 6(b) hereof); (iii) any prohibition, limitation, restriction or prevention of Tenant's use, occupancy or enjoyment of the Premises or any part thereof, or any interference with such use, occupancy or enjoyment by any person or for any other reason unless arising or resulting from the grossly negligent acts or willful misconduct of Landlord or its agents, employees or contractors; (iv) any title defect or encumbrance or any matter affecting title to the Premises or any part thereof unless arising or resulting from Landlord's recordation of an encumbrance against the Premises in violation of the provisions of this Lease; (v) any default by Landlord hereunder; (vi) any proceeding relating to Landlord; (vii) any action of governmental authority; (viii) any breach of warranty or misrepresentation; (ix) any defect in the condition, quality or fitness for use of the Premises or any part thereof; or (x) any other cause whether similar or dissimilar to the foregoing and whether or not Tenant shall have notice or knowledge of any of the foregoing. The parties intend that the obligations of Tenant hereunder shall be separate and independent covenants and agreements and shall continue unaffected unless such obligations shall have been modified or terminated in accordance with an express provision of this Lease. 32. WAIVER No waiver by Landlord of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Tenant of the same or any other provision. Landlord's consent to, or approval of, any act as required hereunder shall not be deemed to render unnecessary the obtaining of Landlord's consent to or approval of any such subsequent act by Tenant. The acceptance of Rent hereunder by Landlord shall not be a waiver of any preceding Default by Tenant of any provision hereof, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such Rent. 33. TIME OF THE ESSENCE Landlord and Tenant agree that time shall be of the essence of all terms and provisions of this Lease. 27 34. GOVERNING LAW This Lease shall be construed and governed in accordance with the laws of the state in which the Premises are located without regard to conflict of law principles. 35. LEASE SECURITIZATION. Subject to Paragraph 17 hereof, Landlord reserves the right to assign, transfer, participate, pledge, hypothecate or encumber, or any combination thereof, all or any part of Landlord's interest in this Lease without Tenant's consent. Without limiting the generality of the foregoing, Tenant acknowledges that this Lease may be securitized, and Tenant agrees to cooperate in good faith with Landlord's reasonable requests relating to the securitization program process and requirements, and agrees and acknowledges that all information relating to Tenant and this Lease required to be provided by Tenant to Landlord under the terms of this Lease may be made available by Landlord to the other participants in the lease securitization (subject to the limitations set forth below), and Tenant agrees to assist Landlord in completing any documents reasonably necessary to accomplish any such transfer and/or securitization transaction (so long as Tenant's rights and entitlements under this Lease are not reduced thereby), at Landlord's sole expense. Tenant hereby authorizes Landlord to provide any information in Landlord's possession regarding Tenant in all reports required as part of a lease securitization program or by any governmental body that regulates Landlord, provided, however, that Landlord shall not disclose Tenant's proprietary information, including, without limitation, same store sales and store level profit and loss statements, which is not otherwise available to third parties, without a confidentiality agreement in the form attached hereto as Exhibit "E". 36. ECONOMIC SUBSTITUTION In the event the Premises is damaged, rendered unuseable or otherwise materially and adversely affected as a result of a casualty or a Taking, or in the event Tenant determines in its reasonable business discretion, exercised in good faith, that the Premises is unprofitable for the purposes for which the same are then used pursuant to this Lease (for purposes hereof "unprofitable" shall mean that for the most recent 24 months of operation at the Premises the restaurant operation generated negative net cash flow), then Tenant may, at Tenant's option, during the term of this Lease or any extensions thereof, give written notice to Landlord of its intention to substitute another improved property having an O'Charley's Restaurant located thereon, which shall have a value no less than the greater of the following: (i) the then current value of the Premises (using the same appraisal methodology used in valuing the then current Landlord's acquisition of the Premises, including, without limitation, discounted cash flow analysis, comparable market sales, lease analysis, etc.) as established by a qualified independent appraiser selected by Landlord (who is a member of the American Institute of Real Estate Appraisers); or (ii) the Total Cost; provided, however, the substitute property meets all of Landlord's underwriting requirements, including, but not limited to, confirmation that the rating of any bonds or trust certificates issued in connection with a securitization in which this Lease is included will not change as a result of the substitution. Such other substitute property shall be subject to (iii) Landlord's written approval which shall not be unreasonably withheld; and (iv) the approval of any then mortgagee having an interest in the Premises. In addition to any other requirements of this paragraph with respect to the substitute property, it shall not be 28 unreasonable for Landlord to reject a substitute property based on: (x) an unacceptable site inspection performed by Landlord or its agents, (y) Tenant's failure to comply with any of Landlord's normal, commercially reasonable due diligence and opinion letter requirements or (z) failure of the substitute property to comply with any of Landlord's normal commercially reasonable due diligence requirements. Landlord shall respond to any request by Tenant for substitution within thirty (30) days after all required due diligence has been received. The terms (including without limitation the rent amounts) of the related lease for such substitute property shall be identical to this Lease, except that the term shall be for the then remainder of the term of this Lease (including any remaining renewal options). Tenant shall pay all reasonable costs associated with the closing to effect the substitution. Upon Landlord's and any mortgagee's approval of the substitution of the Premises, a closing of title (whereby the Premises and any accompanying insurance proceeds and condemnation awards shall be conveyed by Landlord to Tenant and the substitute property shall be conveyed by Tenant to Landlord; at either party's request, the other party shall cooperate with all reasonable requests in order to cause such transfers to occur on a tax deferred basis) shall take place as soon as reasonably practical thereafter, but in no event later than sixty (60) days after Tenant is notified that the Landlord has approved the substitution. If the Landlord and the Landlord's mortgagee (if any) do not approve such substitute property, Tenant may submit other properties to the Landlord for the Landlord's (and the Landlord's mortgagee, if any) approval. 37. SEVERABILITY If any provision of this Lease becomes unenforceable for any reason, such unenforceability shall not limit or impair the operation or validity of any other provision of this Lease. 38. JURISDICTION, VENUE If any party to this Lease institutes any lawsuit or other action or proceeding against the other party and pertaining to this Lease, any right or obligation of any party hereunder, breach of this Lease or otherwise pertaining to the Premises, the sole and exclusive venue and jurisdiction for filing and maintaining any such lawsuit or other action or proceeding shall be in the jurisdiction where the Premises is located, and the parties to this Lease waive the right to institute or maintain any such suit, action or proceeding in any other courts or forums whatsoever. Each party by executing this Lease consents and submits itself to the personal jurisdiction of such court. LANDLORD AND TENANT MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A JURY TRIAL IN RESPECT OF ANY LITIGATION BASED ON THIS LEASE, ARISING OUT OF THIS LEASE OR ANY OF THE OTHER RELATED DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER IS GIVEN AS A MATERIAL INDUCEMENT TO LANDLORD TO ACCEPT THIS LEASE. 39. ATTORNEY'S FEES In the event of any litigation or other proceeding brought by either party to enforce the other party's obligations under this Lease, to the extent permitted by applicable law, the 29 prevailing party shall be entitled to recover all court costs, attorney's fees and other costs and expenses incurred in connection therewith from the other party. 40. EASEMENTS During the term of this Lease and any extension or renewal thereof, Landlord agrees to grant such utility easements on, over and above the Premises as Tenant may reasonably request. 41. CONSENT, APPROVAL Wherever in this Lease Landlord or Tenant is required to give its consent or approval to any action on the part of the other, such consent or approval must be in writing and shall not be unreasonably withheld or delayed or conditioned upon the payment of money or the performance or assumption of additional liabilities or obligations. In the event of failure to give any such consent or approval, the other party shall be entitled to specific performance and shall have such other remedies as are reserved to it under this Lease, provided, however, that in no event shall Landlord or Tenant be liable in monetary damages for failure to give its consent or approval unless consent or approval is withheld maliciously or in bad faith. [SIGNATURES ON NEXT PAGE] 30 IN WITNESS WHEREOF, the parties hereto have executed and sealed this Lease Agreement to be effective as of the day and date first above written. "LANDLORD" Signed, Sealed and Delivered in the presence of: ____________________________________ Name: ______________________________ ____________________________________ Name: ______________________________ By:_________________________________ Name:_______________________________ Title:______________________________ [Insert Appropriate Notary Block] 31 "TENANT" Signed, sealed and Delivered in the presence of: By:_________________________________ ______________________________________ _______________, Name:_________________________________ _______________ (CORPORATE SEAL) ______________________________________ Name:_________________________________ [Insert Appropriate Notary Block] EXHIBITS ATTACHED Exhibit "A" - Legal Description Exhibit "B" - Subordination, Non-Disturbance and Attornment Agreement Exhibit "C" - Estoppel Certificate Exhibit "D" - Subordination of Landlord's Lien Exhibit "E" - Confidentiality Agreement 32 EXHIBIT "A" LEGAL DESCRIPTION OF THE PREMISES O'Charley's ____/___________, __________ County, _____________ EXHIBIT "B" SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT THIS AGREEMENT, made and entered into as of the _____ day of ________ __, 200__, by and between ___________________________________________, a _________________, whose address is____________________________________________ ___________ (hereinafter referred to as the "Lender"), ________________________ _____________________, a _______________, whose address is ____________________ _____________________________ (hereinafter referred to as the "Tenant"), and _______________, a _____________, whose address is ___________________________ (hereinafter referred to as the "Landlord"); W I T N E S S E T H: WHEREAS, Lender is the holder of a mortgage loan (hereinafter referred to as the "Loan") to Landlord, which Loan is secured by, inter alia, a [[ Commercial Mortgage/Deed of Trust ]] and Security Agreement executed by Landlord to and in favor of Lender (hereinafter referred to as the "Mortgage"), encumbering the Landlord's property located at _______________________________, in ___________ County, ________ (hereinafter referred to as the "Mortgaged Premises"); and WHEREAS, Landlord has leased all or some portion of the Mortgaged Premises (hereinafter referred to as the "Premises") to Tenant by Lease dated ______________________, 20___, as amended by __________________________ dated __________________, 20___ (hereinafter collectively referred to as the "Lease") as evidenced by a Memorandum of Lease of record in __________________ County, ______________________; and WHEREAS, Lender, in connection with the Loan, requires that the Lease and all of the rights of Tenant thereunder be subordinated to the Mortgage and all of the rights of Lender thereunder subject to the terms of this Agreement; and WHEREAS, Tenant desires to receive certain assurances that its possession of the Premises and its rights under the Lease will not be disturbed in such event, and Lender is willing to grant certain assurances upon the terms and conditions hereinafter set forth; NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants herein contained and intending to be legally bound, hereby agree as follows: 1. Subject to the terms of this Agreement, the Lease and all of the rights of Tenant thereunder shall be and are hereby declared to be and at all times hereafter shall be and remain subject and subordinate in all respects to the Mortgage and all of the rights of Lender thereunder. Notwithstanding such subordination, Lender hereby agrees (on its behalf and on behalf of any purchaser at foreclosure) that (a) so long as Tenant is not then in Default under the Lease the Lease and the leasehold estate thereby created will not be extinguished or terminated and the rights thereunder of Tenant will not be disturbed, affected or impaired by the foreclosure of such Mortgage, delivery of a deed in lieu of foreclosure of such Mortgage, or the exercise of other rights and remedies that the Mortgage provides; (b) Tenant shall not be named or joined as a party defendant or otherwise in any proceeding for the foreclosure of such Mortgage or to enforce any rights under the Mortgage; (c) all condemnation awards and payments and all proceeds of insurance paid shall be applied and used in the manner set forth in this Lease; and (d) neither the Mortgage nor any other security instrument executed in connection therewith shall be construed as subjecting in any manner to the lien thereof any trade fixtures, business equipment, signs or other personal property at any time supplied or installed by Tenant in or on the Premises, regardless of the manner or mode of attachment thereof to the Premises. In the event that Lender succeeds to the interest of Landlord under the Lease and/or title to the Premises, Tenant shall not terminate or otherwise be disturbed in the event of a foreclosure of the Mortgage or in the event of any other exercise of remedies thereunder so long as Tenant is not in Default under the Lease beyond applicable cure period. Tenant agrees to attorn to and to recognize Lender (as mortgagee in possession or otherwise), or the purchaser at such foreclosure sale, as Tenant's landlord for the balance of the term of the Lease, in accordance with the terms and provisions thereof, but subject, nevertheless, to the provisions of this Agreement, which Agreement shall be controlling in the event of any conflict. Accordingly, from and after such event, Lender and Tenant shall have the same remedies against one another for the breach of an agreement contained in the Lease as Tenant and Landlord had before Lender (or such other purchaser) succeeded to the interest of Landlord thereunder. 2. Notwithstanding Paragraph 1 above, Lender hereby agrees with Tenant that, so long as Tenant and/or its permitted successors and assigns are not in default under the Lease beyond applicable periods of notice and cure, Tenant's possession of the Premises under the Lease and Tenant's rights and entitlements under the Lease (including without limitation Tenant's rights to use insurance and condemnation proceeds for repair and restoration as provided in the Lease) shall not be disturbed, altered, adversely affected or interfered with by Lender or any purchaser at foreclosure. 3. Tenant hereby agrees that Lender, or any purchaser at a foreclosure sale, shall not be (a) liable for any act or omission of Landlord under the Lease occurring prior to the date that Lender or such purchaser acquires the Property and becomes the Landlord under this Lease, (b) subject to any offsets or defenses which Tenant may have at any time hereafter against Landlord with respect to any event occurring prior to the date that Lender or such purchaser acquires the Property and becomes the Landlord under this Lease, (c) bound by any rent which Tenant may have paid to Landlord for more than the current month, and (d) bound by any amendment or modification of the Lease made without Lender's prior written consent. 4. Tenant hereby agrees that any entity or person which at any time hereafter becomes the landlord under the Lease, including, without limitation, Lender or the purchaser at a foreclosure sale, shall be liable only for the performance of the obligations of the landlord under the Lease which arise and accrue during the period of such entity's or person's ownership of the Premises. 5. Tenant hereby agrees that, thirty (30) days before exercising any of its rights and remedies under the Lease in the event of any default by Landlord thereunder, it shall send written notice to Lender at the address set forth above, by certified mail, return receipt requested, of the 2 occurrence of any default by Landlord in the terms and provisions of the Lease and describe with reasonable specificity the events constituting such default. Tenant further agrees that with respect to any default of Landlord which would entitle Tenant to cancel the Lease or offset or abate the rent payable thereunder, any provision of the Lease to the contrary notwithstanding, no such cancellation or offset or abatement of rent shall be effective unless Lender shall have received notice in the form and manner required by the provisions of this Paragraph, and shall have failed within thirty (30) days of the date of receipt of such notice to cure or cause to be cured, or if such default cannot be cured within such thirty (30) day period, shall have failed to commence and diligently prosecute the cure of, such default. 6. This Agreement shall supersede, as between the parties hereto, all of the terms and provisions of the Lease which are inconsistent herewith. 7. This Agreement may not be modified orally or in any other manner than by an agreement in writing signed by the parties hereto, or their respective successors in interest. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and their successors and assigns. 8. This Agreement shall be construed in accordance with the laws of the state in which the Mortgage Premises is located. 9. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute but one Agreement. 3 The parties hereto have caused this Agreement to be duly executed as of the day and year first above written. LENDER: ________________________________ ________________________________ By:_____________________________ Name:___________________________ Title:__________________________ TENANT: ________________________________ ________________________________ By:_____________________________ Name:___________________________ Title:__________________________ LANDLORD: ________________________________ ________________________________ By:_____________________________ Name:___________________________ Title:__________________________ 4 EXHIBIT "C" ESTOPPEL CERTIFICATE The undersigned with respect to the premises at ____________________________________ as more particularly described in Exhibit "A" attached hereto and made a part hereof by this reference (the "Premises"), certifies and affirms the following to _________________________ [[("Tenant")]] [[("Landlord")]] and to ____________________________________ [[("Mortgagee")]] [[("Purchaser")]]: 1. Tenant leases the Premises from Landlord under that certain Lease dated ____________, attached hereto and made a part hereof by this reference (the "Lease"). 2. Rental under the Lease has been paid through ________________________, 20__. No rent has been paid more than thirty (30) days in advance, except as described in the preceding sentence. The monthly base rental amount under the Lease as of the date hereof is $_________________. 3. The term of the Lease is ___________________ through __________________, a period of ____________ years. Tenant has ________ options to extend the Lease for ________ years each, for a total term including all options through _____________________ as set forth in the Lease. 4. Tenant, to the best of the undersigned's knowledge and belief without any independent investigation, is not in default under any term of the Lease. 5. Landlord, to the best of the undersigned's knowledge and belief without any independent investigation, is not in default under any terms of the Lease. 6. The Lease is in full force and effect and there have been no modifications or amendments unless attached hereto. This Certificate may be relied upon by [[Purchaser]] [[Mortgagee]], who intends to [[purchase the Premises] [and the Lease from Landlord], and by any mortgage lender of such person]] [[provide secured [lease] [loan] financing to [Landlord] [Tenant]]. Dated this _____ day of _______________, 200____ [[Landlord]] [[Tenant]]:______________________ By:___________________________________________ Title:________________________________________ EXHIBIT "D" SUBORDINATION OF LANDLORD'S LIEN Lender: [[Name and Address of Lender]] Premises: [[Concept/Site #/Address]], the legal description of which is attached to this Subordination of Landlord's Lien as Exhibit "A" Landlord: [[Name and Address of Landlord]] Tenant: [[Name and Address of Tenant]] 1. Subordination of Landlord's Lien as to Personal Property: Landlord hereby subordinates, as to the lien related to Lender's security interest only, any lien, right or claim it may now or hereafter possess relative to certain goods and equipment (hereinafter referred to as "Collateral", a description of which is attached as Exhibit "B"), now or to be installed on or deposited at the above described Premises, provided that: (a) The Collateral shall remain personal property and not be deemed a fixture whether or not it becomes attached to any real property. (b) The Collateral may be recovered or repossessed at any time by Lender and Landlord will not interfere therewith, regardless of the manner or degree of the attachment of the Collateral to the Premises, provided Lender provides Landlord with twenty-four (24) hours prior written notice of its intent to remove the Collateral. In the event that such removal creates any type of holes or openings in the roof or exterior of the building, Lender will immediately repair, close, secure, and seal such holes or openings in such a manner that (a) leaves the building in a secure condition and (b) prevents the intrusion of weather, vermin or other damaging elements into the building and Lender shall be liable for any and all damage caused to the building by its failure to repair, close, secure, and seal any such holes or openings. Further, Lender shall be responsible for restoring and repairing to Landlord's reasonable satisfaction any and all damages to the Premises caused by the removal, recovery or repossession of the Collateral, all of which shall be completed within seven (7) days from such removal, recovery or repossession. If such Collateral is not removed within thirty (30) days after Landlord serves Lender written notice of termination of the Lease, then such Collateral shall be deemed abandoned. (c) Lender may enter upon the Premises at any reasonable time in order to inspect the Collateral; provided, however, Lender shall make arrangements with Tenant prior to such inspection. If the Premises have been vacated, such arrangements shall be coordinated with Landlord. 2. Notice to Landlord: In the event Tenant shall fail, refuse or neglect to perform, observe or comply with any term, condition, covenant, agreement or obligation contained in any agreement entered into by and between Lender and Tenant in conjunction with the Collateral in favor of Lender as to Tenant's interest in the Collateral, Lender shall provide Landlord with written notice of the same and Landlord may, at its option and sole discretion, enter upon the Premises, and/or do whatever may be deemed necessary by Landlord to cure such failure by Tenant. Further, Lender shall provide Landlord with written notice of Tenant's satisfaction of its obligations to Lender related to the Collateral, within thirty (30) days of such satisfaction. 3. Notice: Notice from one party to another relating to this Subordination of Landlord's Lien shall be deemed effective if made in writing and delivered to the recipient's address set forth below by any of the following means: i) hand delivery, ii) registered or certified mail, postage prepaid, or iii) overnight courier service such as Federal Express, Airborne or United States Postal Service Express Mail. Notice made in accordance with these provisions shall be deemed delivered on receipt if delivered by hand on a business day during business hours of the recipient (or if not during such business hours then on the next business day), on the third (3rd) business day after mailing if mailed by registered or certified mail, or on the next business day after mailing or deposit with an overnight courier service. Addresses for notices shall be as follows: If to Landlord:_________________________________ ________________________________________________ ________________________________________________ ________________________________________________ If to Lender:___________________________________ ________________________________________________ ________________________________________________ ________________________________________________ If to Lender:___________________________________ ________________________________________________ ________________________________________________ ________________________________________________ 4. This Subordination of Landlord's Lien shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors, and assigns. 5. This Subordination of Landlord's Lien is made and entered into under, and shall be construed according to, the laws of the State of Florida, and the exclusive jurisdiction for any action arising hereunder shall be the State in which the Premises are located. 2 6. This Subordination of Landlord's Lien may not be amended except by a written instrument signed by the parties hereto. 7. This Subordination of Landlord's Lien shall not impair, modify or otherwise affect the terms of the Lease, including, without limitation, Tenant's obligations to pay rent and any other sums payable by Tenant pursuant to the terms of the Lease. (SIGNATURES ON FOLLOWING PAGES) 3 "LANDLORD" Signed, Sealed and Delivered in the Presence of: _____________________________________ _____________________________________ Name:________________________________ By:__________________________________ Name:________________________________ As Its:______________________________ _____________________________________ Name:________________________________ (INSERT APPROPRIATE NOTARY BLOCK) 4 "LENDER" Signed, Sealed and Delivered in the Presence of: _____________________________________ _____________________________________ Name:________________________________ By:__________________________________ Name:________________________________ As Its:______________________________ _____________________________________ Name:________________________________ (INSERT APPROPRIATE NOTARY BLOCK) 5 "TENANT" Signed, Sealed and Delivered in the Presence of: _____________________________________ _____________________________________ Name:________________________________ By:__________________________________ Name:________________________________ As Its:______________________________ _____________________________________ Name:________________________________ (INSERT APPROPRIATE NOTARY BLOCK) 6 EXHIBIT "A" LEGAL DESCRIPTION OF THE PREMISES (attach copy of legal description) EXHIBIT "B" The Collateral means the following owned by Tenant, or in which Tenant has an interest (but only to the extent of such interest): all furniture, trade fixtures, building lettering, signs, sign posts, sign standards, food and customer service equipment (whether unattached or attached to the improvements by bolts and screws and/or by utility connections including, without limitation, walk-in refrigerators and freezers, remote refrigeration systems and exhaust systems and hoods and water heaters), equipment and other items of personal property now owned, acquired, held or used by Tenant in its operation of a [[Insert Restaurant Concept Name]] restaurant at the Premises and all additions to, substitutions for and replacements of the foregoing, but does not mean and specifically excludes (except as specifically set forth above) all lighting, electrical, heating, air cooling and air conditioning apparatus, gas, electric and power equipment, pipes, pumps, tanks, conduits, switchboards, plumbing, lifting, cleaning, fire prevention, and communications apparatus, drapes, attached floor coverings, including carpeting, storm doors and windows, toilets and sinks, ducts and compressors, and related machinery and equipment including but not limited to compressors, regardless of whether any of the foregoing are affixed or attached to the Premises. EXHIBIT "E" CONFIDENTIALITY AGREEMENT THIS CONFIDENTIALITY AGREEMENT (the "Agreement") is entered into on or as of ___________, 20__, by and between ______________________________ (the "Receiving Party"), and _____________________________ and any subsidiaries or affiliates thereof (collectively, the "Disclosing Party"), for purposes of preserving the confidentiality of certain non-public information concerning the business affairs and operations of O'Charley's, Inc. (and its affiliates [[and the tenant(s) under the affected Lease(s)]]) (collectively, the "Tenant") to be provided to the Receiving Party for purposes of its evaluation of one or more potential acquisition transactions with the Disclosing Party (the "Transaction"). Certain of the Information (as hereafter defined) relates to the Tenant and the Tenant's business and, to that extent, the Tenant is a third party beneficiary of this Agreement and has the right to enforce this Agreement as if it were a party hereto. This Agreement may not be amended without the prior written consent of O'Charley's, Inc. SECTION 1. The Receiving Party hereby agrees that it will hold and keep confidential the Information received by it from the Disclosing Party, and that the Receiving Party will not disclose the Information to any other person or use it for any purpose other than for evaluating the Transaction, except that the Receiving Party may, subject to the confidentiality provisions of this Agreement, without such consent, disclose the Information to any of the following who need to know such Information for purposes of evaluating the Transaction and for the purposes indicated below: (a) to directors, officers and employees of the Receiving Party and its affiliates and to a lender of the Receiving Party in connection with a financing of the Transaction and the legal counsel thereof; and (b) to auditors or accountants of the Receiving Party and its affiliates as may be required in connection with any audit or other review of the books or records of any such person; and (c) to such other parties as may be required by law, government regulation or order, subpoena or any other legal, administrative or legislative process; provided, however, that the Receiving Party will remain liable and responsible for any disclosure of Information in violation of this Agreement by any person to whom Information is disclosed pursuant to subsections (a) or (b) above of this SECTION 1. In the event of any request for disclosure of Information pursuant to subsection (c) above, the Receiving Party agrees to use reasonable commercial efforts to provide the Disclosing Party and the Tenant with advance notice of any such request for disclosure as promptly as feasible in order that the Disclosing Party and/or the Tenant may at its expense seek a protective order or such other appropriate remedy as the Disclosing Party or the Tenant, as the case may be, deems necessary, provided, however, that the Receiving Party shall have no obligation to undertake any action in order to maintain the confidentiality of the Information where the request for the disclosure is made pursuant to subsection (c) above other than the obligation to use reasonable commercial efforts to give notice as provided by this sentence. SECTION 2. The term "Information" includes all financial and other information about the financial condition, business, products and services, real estate interests and related analyses relating to the Transaction, the Tenant or the Tenant's business that is furnished to the Receiving Party by the Disclosing Party pursuant to the terms of this Agreement. Notwithstanding any of the foregoing, Information will not be considered confidential and the Receiving Party may disclose such Information without restriction in any of the following circumstances: (a) if such Information is publicly available (as opposed to information and data that has been complied, processed, formatted and/or reported, which shall be deemed Information which is confidential to the Disclosing Party and/or the Tenant) prior to receipt by the Receiving Party of the Information or if such Information is thereafter made publicly available (either to the general public or to any relevant trade or industry) other than by the Receiving Party's breach of its undertakings in this Agreement; (b) if such Information becomes available to the Receiving Party from a source other than the Disclosing Party or the Tenant and the Receiving Party has no knowledge that such source is under an obligation to the Disclosing Party or the Tenant to keep the Information confidential; (c) if the Receiving Party can demonstrate that such Information was known to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party; and (d) if such Information is independently developed by the Receiving Party and the Receiving Party can present proof thereof. The above-described obligations to keep Information confidential and not to disclose the Information shall automatically terminate and expire three years after the date hereof. All Information provided by the Disclosing Party to the Receiving Party pursuant to this Agreement is and shall remain the property of the Disclosing Party or the Tenant, as the case may be, and all such documents, and any copies thereof, shall be promptly returned to the Disclosing Party, or otherwise disposed of, according to the reasonable written request or instructions of the Disclosing Party. SECTION 3. In the event the Receiving Party has requested a consent from the Disclosing Party to disclose Information relating to the Tenant or the Tenant's business or if the Disclosing Party becomes aware of a disclosure in violation of this Agreement or if the Disclosing Party receives notice that the Receiving Party believes that it is required by law, government regulation or order, subpoena or any other legal, administrative or legislative process to disclose Information, the Disclosing Party shall provide prompt notification in writing to the Tenant of such request for consent or disclosure. SECTION 4. Each party acknowledges that, in the event of a breach of this Agreement, remedies at law would be inadequate and that the Disclosing Party or the Tenant, as the case may 2 be, shall be entitled to seek an injunction restraining such breach, in addition to any other remedy provided by equity or at law. SECTION 5. The Receiving Party understands that Information received from the Disclosing Party or the Tenant may be material, non-public information within the meaning of applicable federal and state securities laws. The Receiving Party shall not utilize or rely upon any of the Information in connection with any transaction involving the purchase or sale of securities of any issuer to which the Information may directly or indirectly relate. SECTION 6. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior understandings, written or oral, with respect thereto. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, without giving effect to the principles of conflicts of laws. If any party to this Agreement institutes any lawsuit or other action or proceeding against the other party and pertaining to this Agreement, any right or obligation of any party hereunder, breach of this Agreement or otherwise pertaining to the Information, the sole and exclusive venue and jurisdiction for filing and maintaining any such lawsuit or other action or proceeding shall be in the Circuit Court for Orange County, Florida, and the parties to this Agreement waive the right to institute or maintain any such suit, action or proceeding in any other courts or forums whatsoever. Each party, by executing this Agreement, consents and submits itself to the personal jurisdiction of such court. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. A party shall have no duties, responsibilities or authority hereunder except those expressly set forth herein and no fiduciary relationship with the other party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other document referred to herein or otherwise exist against any party. This Agreement shall be binding upon the successors and assigns of the parties hereto, and shall inure to the benefit of the successors and assigns of the parties hereto and the Tenant. A fully executed copy of this Agreement must be delivered by the Disclosing Party to the Tenant prior to the delivery of any Information to the Receiving Party. SECTION 7. All notices required or permitted to be given hereunder shall be in writing and shall be delivered by a nationally recognized overnight courier or mailed by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: If to Disclosing Party: ____________________________ ____________________________ ____________________________ If to Receiving Party: ____________________________ ____________________________ ____________________________ 3 If to Tenant: ____________________________ ____________________________ ____________________________ Notice for purposes of this Agreement shall be deemed given when it shall have been received by the recipient. Any party listed above may change its address for notices by written notice in like manner as provided in this SECTION 7. 4 IN WITNESS WHEREOF, the undersigned have hereunto executed this Agreement as of the above date. DISCLOSING PARTY: ______________________________, a _____________________________ By:____________________________ Name:__________________________ As Its:________________________ RECEIVING PARTY: ___________________________, a _______________________________ By:____________________________ Name:__________________________ As Its:________________________ [INSERT APPROPRIATE ACKNOWLEDGEMENT FORM FOR EACH PARTY] 5 O'Charley's ___/____________, _____________ County, ____________ RENT ADDENDUM TO LEASE AGREEMENT THIS RENT ADDENDUM dated _______ ____, 2003, by and between ___________ __________, a Delaware limited partnership as "Landlord", and ________________, a _____________________, as "Tenant", for O'Charley's ___, ___________, _________ County, ___________, is attached to and made a part of that certain Lease Agreement by and between Landlord and Tenant of even date herewith (the "Lease"). Notwithstanding any other provision to the contrary which may be contained in said Lease, it is specifically agreed by and between Landlord and Tenant as follows: 1. DEFINITIONS. Capitalized terms used in this Rent Addendum shall, unless otherwise defined, have the meanings ascribed to them in the Lease. 2. COMMENCEMENT OF RENT. On the date hereof, Landlord has simultaneously entered into the Lease with Tenant pursuant to which Tenant has agreed to lease from Landlord the Premises and all improvements now or hereafter constructed thereon. Payment of Annual Rent shall commence as of the Annual Rent Commencement Date, notwithstanding that some or all of the improvements contemplated to be constructed on the Premises may not be constructed or complete at that time. 3. ANNUAL RENT. (a) Beginning on the Annual Rent Commencement Date, Tenant covenants and agrees to pay to Landlord annual rent ("Annual Rent") according to the following schedule:
MONTHLY LEASE YEAR ANNUAL RENT INSTALLMENT ---------- ----------- ----------- 1 $________ $_________ 2 $________ $_________ 3 $________ $_________ 4 $________ $_________ 5 and following $________ $_________
All payments of Annual Rent shall be paid in equal monthly installments paid monthly in advance on the first (1st) business day of each month by electronic funds. (ACH). (b) Increases in Annual Rent. Commencing at the end of the fifth (5th) Lease Year after the Annual Rent Commencement Date, and on each one (1) year anniversary of such date thereafter and through the fifteenth (15th) Lease Year during the term of this Lease, Annual Rent shall be increased by an amount equal to the previous year's Annual Rent multiplied by seventy percent (70%) of the percentage increase in the Base Index as herein defined for the previous twelve (12) month period, in accordance with only positive changes in the Base Index, subject to a maximum annual increase of no more than one and three quarters percent (1.75%). For purposes of this Lease, "Base Index" shall be defined as the Consumer Price Index for U.S. City Average, all Urban Consumers on the 1982-1984 = 100 base published by the Bureau of Labor Statistics, U.S. Department of Labor. If the Base Index is discontinued or revised during the term hereof, such other government index or computation with which it is replaced by the Bureau of Labor Statistics shall be used in order to obtain substantially the same result as would be obtained if the Base Index has not been discontinued or raised, and if the Base Index is not so replaced, Landlord shall adopt a substitute index or substitute procedure which reasonably reflects changes in the purchasing power of the U.S. Dollar. At the end of Lease Years sixteen (16) through twenty (20) and additionally at the end of each Lease Year during any Lease renewal option periods, the Annual Rent increase shall be equal to previous year's Annual Rent multiplied times fifty percent (50%) of the percentage increase in the Base Index for the previous twelve (12) month period, in accordance with only positive changes in the Base Index, subject to a maximum Annual Rent increase of no more than one and one quarter percent (1.25%). (c) Partial Months. If the date on which Annual Rent shall be first due and payable shall fall on a day other than the first day of a calendar month, then Annual Rent for the partial rental month shall be prorated on a per diem basis on the first Annual Rent payment and shall be paid by Tenant to Landlord for such month. (d) Annual Rent Adjustment in the Event of Certain Sales of Premises. Notwithstanding the foregoing, in the event the Landlord shall sell the Premises and assign this Lease to an unrelated third party at any time during the first four (4) Lease Years, the Annual Rent payable from and after the date of such sale and assignment through the end of the fifth Lease Year shall be adjusted to the Annual Rent shown in subparagraph (a) above for the fifth (5th) Lease Year, effective as of the day of closing of said sale and assignment. To compensate Tenant for such increase and as a condition to such increase, Landlord shall pay to Tenant upon the close of escrow and assignment of the Lease a lump sum payment equal to the difference between (i) the total of all Annual Rent payments outlined in subparagraph (a) above, which would have otherwise (but for such sale and assignment by Landlord) been due and payable by Tenant hereunder for the period beginning on the day of such closing through the end of the fourth (4th) Lease Year, and (ii) the total of all Annual Rent payments as adjusted pursuant to this paragraph (d) for the period beginning on the day of such closing through the end of the fourth (4th) Lease Year. Landlord shall not be permitted to adjust Annual Rent as provided in this paragraph in the event of any such sale that closes after the fourth (4th) Lease Year. For purposes of this paragraph, the term "unrelated third party" shall not include any affiliate of the Landlord or any transferee in connection with the securitization of the Lease by the Landlord. 4. PERCENTAGE RENT. [INTENTIONALLY DELETED] 5. SALES/USE TAX. Tenant shall also pay to Landlord any sales and use tax imposed on any Rent payable hereunder from time to time by state law or any other governmental entity, which sums are due monthly as to monthly Rent payments on the due date of the Rent payment under this Lease. 6. REPORTING. Tenant shall, during the term of this Lease and any extensions thereto: (i) keep books and records reflecting its financial condition including, but not limited to, the operation of the Premises in accordance with generally accepted accounting principles consistently applied; (ii) furnish to Landlord within forty-five (45) days after the end of each fiscal quarter of Tenant an unaudited financial statement (including a balance sheet, income and expense statement, statement of cash flows, and debt and lease schedules of Tenant) of Tenant and a statement of income and expenses of the Premises; and (iii) furnish to Landlord, fiscal year-end audited current signed financial statements of Tenant (including an annual balance sheet, a profit/loss statement, statement of cash flows and footnotes) within one hundred twenty (120) days after the end of each fiscal year; provided, however that Landlord agrees to accept Tenant's 10-Q and 10-K filings in satisfaction of Tenant's requirements under clauses (ii) and (iii) above. Landlord shall have the right, from time to time during normal business hours, upon reasonable prior notice, to examine such books, records and accounts at the offices of Tenant or other entity as is maintaining such books, records and accounts, and to make such copies or extracts thereof as Landlord shall desire. Further, in the event Landlord seeks to securitize or otherwise transfer the Lease, then (upon Landlord's request), Tenant agrees to cooperate with Landlord in providing such information as would be reasonably required for the transaction, including but not limited to income and expense statements for the Premises. Landlord shall maintain confidentiality of such information in the same manner Landlord has agreed in the Lease to maintain the confidentiality of other reports and information provided by Tenant pursuant to the terms of this Lease. 7. LATE CHARGES. In the event any installment of Rent is not received by Landlord within ten (10) days after Tenant's receipt of written notice from Landlord that such installment has not been received on or before its respective due date, there shall be an automatic late charge due to Landlord from Tenant in the amount of five percent (5%) of such delinquent installment of Rent. All such late charges due hereunder shall be deemed additional rent, and are not penalties but rather are charges attributable to administrative and collection costs arising out of such delinquency. In addition to such late charge, in the event Landlord does not receive Rent when due hereunder, interest at the rate of the lesser of 10% per annum or the maximum rate allowable by law shall be due and payable with respect to such payment from the expiration of any applicable grace period until Landlord receives such Rent. 8. PAYMENTS OF RENTS. All Rent payments shall be made by electronic funds transfer to Landlord to the account and in accordance with the procedures designated by Landlord, or in such other manner as Landlord or its successors or assigns, respectively, may from time to time designate in writing. 9. NO ABATEMENT. Unless otherwise stated in the Lease, no abatement, offset, diminution or reduction of (a) Rent, charges or other compensation, or (b) Tenant's other obligations under this Lease shall be allowed to Tenant or any person claiming under Tenant, under any circumstances or for any reason whatsoever. 10. INTEREST CHARGES. Notwithstanding any provision of the Lease or this Rent Addendum to the contrary relating to the payment of interest, late fees or charges or similar costs, it is the intent of Landlord and Tenant that Landlord shall not be entitled to receive, collect, reserve or apply, as interest, any amount in excess of the maximum amount of interest permitted to be charged by applicable laws or regulations, as amended or enacted from time to time. In the event the Lease or this Rent Addendum requires a payment of interest that exceeds The following lease agreements are substantially identical to the Form of Lease Agreement shown here, except for the landlord, the tenant, the location of the restaurant, the annual rent due under the lease, and the commencement date and expiration date of the lease. These documents are not filed as separate documents in accordance with Rule 12b-31 under the Securities Exchange Act of 1934.
COMMENCEMENT EXPIRATION LANDLORD TENANT RESTAURANT LOCATION ANNUAL RENT DATE DATE CNL Funding 2001-A, LP O'Charley's Inc. Oxford, AL Year 1 - $125,768.16 October 17, 2003 October 31, 2023 Year 2 - $133,059.07 Year 3 - $140,349.98 Year 4 - $147,640.89 Year 5 and after - $154,931.80 CNL Funding 2001-A, LP O'Charley's Inc. Painfield (Avon), IN Year 1 - $186,613.61 October 17, 2003 October 31, 2023 Year 2 - $197,431.79 Year 3 - $208,249.97 Year 4 - $219,068.15 Year 5 and after - $229,886.33 CNL Funding 2001-A, LP O'Charley's Inc. Centerville, GA Year 1 - $124,513.61 October 17, 2003 October 31, 2023 Year 2 - $131,731.79 Year 3 - $138,949.97 Year 4 - $146,168.15 Year 5 and after - $153,386.33 CNL Funding 2001-A, LP O'Charley's Inc. Mobile, AL Year 1 - $170,868.77 October 17, 2003 October 31, 2023 Year 2 - $180,774.21 Year 3 - $190,679.64 Year 4 - $200,585.08 Year 5 and after - $210,490.52 CNL Funding 2001-A, LP O'Charley's Inc. Mobile, AL Year 1 - $141,450.00 October 17, 2003 October 31, 2023 Year 2 - $149,650.00 Year 3 - $157,850.00 Year 4 - $166,050.00 Year 5 and after - $174,250.00 CNL Funding 2001-A, LP O'Charley's Inc. Marietta, GA Year 1 - $150,548.27 October 17, 2003 October 31, 2023 Year 2 - $159,275.71 Year 3 - $168,003.14 Year 4 - $176,730.58 Year 5 and after - $185,458.02 CNL Funding 2001-A, LP O'Charley's Inc. Bloomington, IN Year 1 - $142,682.27 October 17, 2003 October 31, 2023 Year 2 - $150,953.71

COMMENCEMENT EXPIRATION LANDLORD TENANT RESTAURANT LOCATION ANNUAL RENT DATE DATE Year 3 - $159,225.14 Year 4 - $167,496.58 Year 5 and after - $175,768.02 CNL Funding 2001-A, LP O'Charley's Inc. Indianapolis, IN Year 1 - $150,876.02 October 17, 2003 October 31, 2023 Year 2 - $159,622.46 Year 3 - $168,368.89 Year 4 - $177,115.33 Year 5 and after - $185,861.77 CNL Funding 2001-A, LP d/b/a O'Charley's Restaurant Louisville, KY Year 1 - $175,722.44 October 17, 2003 October 31, 2023 CNL Funding 2001-A, LP, a Properties, LLC Year 2 - $185,909.25 Delaware limited partnership Year 3 - $196,096.05 Year 4 - $206,282.86 Year 5 and after - $216,469.67 CNL Funding 2001-A, LP d/b/a O'Charley's Restaurant Lexington, KY Year 1 - $131,538.77 October 17, 2003 October 31, 2023 CNL Funding 2001-A, LP, a Properties, LLC Year 2 - $139,164.21 Delaware Limited Partnership Year 3 - $146,789.64 Year 4 - $154,415.08 Year 5 and after - $162,040.52 CNL Funding 2001-A, LP d/b/a O'Charley's Restaurant Hopkinsville, KY Year 1 - $132,981.84 October 17, 2003 October 31, 2023 CNL Funding 2001-A, LP, a Properties, LLC Year 2 - $140,690.93 Delaware Limited Partnership Year 3 - $148,400.02 Year 4 - $156,109.11 Year 5 and after - $163,818.21 CNL Funding 2001-A, LP d/b/a O'Charley's Restaurant Florence, KY Year 1 - $223,936.40 October 17, 2003 October 31, 2023 CNL Funding 2001-A, LP, a Properties, LLC Year 2 - $236,918.22 Delaware Limited Partnership Year 3 - $249,900.04 Year 4 - $262,881.86 Year 5 and after - $275,863.68 CNL Funding 2001-A, LP O'Charley's Inc. Tupelo, MS Year 1 - $124,074.56 October 17, 2003 October 31, 2023 Year 2 - $131,267.29 Year 3 - $138,460.01 Year 4 - $145,652.74 Year 5 and after - $152,845.47 CNL Funding 2001-A, LP d/b/a O'Charley's Inc. Asheville, NC Year 1 - $116,923.61 October 17, 2003 October 31, 2023 CNL Funding 2001-A, Limited Year 2 - $123,701.79 Partnership Year 3 - $130,479.97 Year 4 - $137,258.15 Year 5 and after - $144,036.33 CNL Funding 2001-A, LP O'Charley's Inc. Burlington, NC Year 1 - $140,715.77 October 17, 2003 October 31, 2023

LANDLORD TENANT RESTAURANT LOCATION ANNUAL RENT COMMENCEMENT DATE EXPIRATION DATE d/b/a CNL Funding 2001-A, Year 2 - $148,873.21 Limited Partnership Year 3 - $157,030.64 Year 4 - $165,188.08 Year 5 and after - $173,345.52 CNL Funding 2001-A, LP d/b/a O'Charley's Inc. Carey, NC Year 1 - $143,665.52 October 17, 2003 October 31, 2023 CNL Funding 2001-A, Limited Year 2 - $151,993.96 Partnership Year 3 - $160,322.39 Year 4 - $168,650.83 Year 5 and after - $176,979.27 CNL Funding 2001-A, LP d/b/a O'Charley's Inc. Monroe, NC Year 1 - $136,409.90 October 17, 2003 October 31, 2023 CNL Funding 2001-A, Limited Year 2 - $144,317.72 Partnership Year 3 - $152,225.54 Year 4 - $160,133.36 Year 5 and after - $168,041.18 CNL Funding 2001-A, LP O'Charley's Inc. Chattanooga, TN Year 1 - $175,950.00 October 17, 2003 October 31, 2023 Year 2 - $186,150.00 Year 3 - $196,350.00 Year 4 - $206,550.00 Year 5 and after - $216,750.00 CNL Funding 2001-A, LP O'Charley's Inc. Murfreesboro, TN Year 1 - $163,885.63 October 17, 2003 October 31, 2023 Year 2 - $173,386.24 Year 3 - $182,886.86 Year 4 - $192,387.47 Year 5 and after - $201,888.09 CNL Funding 2001-A, LP O'Charley's Inc. Smyrna, TN Year 1 - $175,457.27 October 17, 2003 October 31, 2023 Year 2 - $185,628.71 Year 3 - $195,800.14 Year 4 - $205,971.58 Year 5 and after - $216,143.02 CNL Funding 2001-A, LP O'Charley's Inc. Bristol, VA Year 1 - $137,110.52 October 17, 2003 October 31, 2023 Year 2 - $145,058.96 Year 3 - $153,007.39 Year 4 - $160,955.83 Year 5 and after - $168,904.27 CNL Funding 2001-A, LP O'Charley's Inc. Richmond, VA Year 1 - $147,096.41 October 17, 2003 October 31, 2023 Year 2 - $155,623.74 Year 3 - $164,151.06 Year 4 - $172,678.39 Year 5 and after - $181,205.72

RESTAURANT COMMENCEMENT EXPIRATION LANDLORD TENANT LOCATION ANNUAL RENT DATE DATE CNL Funding 2001-A, LP O'Charley's Inc. Dothan, AL Year 1 - $131,211.02 October 17, 2003 October 31, 2023 2002 Year 2 - $138,817.46 Year 3 - $146,423.89 Year 4 - $154,030.33 Year 5 and after - $161,636.77 CNL Income Fund VI, Ltd., CNL O'Charley's Inc. Dalton, GA Year 1 - $131,100.00 November 7, 2003 November 30, 2023 Income Fund XI, Ltd., CNL Year 2 - $138,700.00 Income Fund XV, Ltd., and CNL Year 3 - $146,300.00 Income Fund XVI, Ltd. Year 4 - $153,900.00 Year 5 and after - $161,500.00 CNL Income Fund X, Ltd., CNL O'Charley's Inc. Tucker, GA Year 1 - $106,009.12 November 7, 2003 November 30, 2023 Income Fund XIII, Ltd., CNL Year 2 - $112,154.57 Income Fund XIV, Ltd., and CNL Year 3 - $118,300.03 Income Fund XV, Ltd. Year 4 - $124,445.48 Year 5 and after - $130,590.94 CNL Funding 2001-A, LP O'Charley's Inc. Evansville, IN Year 1 - $125,253.70 November 7, 2003 November 30, 2023 Year 2 - $132,514.78 Year 3 - $139,775.87 Year 4 - $147,036.95 Year 5 and after - $154,298.04 CNL Funding 2001-A, LP O'Charley's Inc. Cincinnati, OH Year 1 - $108,518.16 November 7, 2003 November 30, 2023 Year 2 - $114,809.07 Year 3 - $121,099.98 Year 4 - $127,390.89 Year 5 and after - $133,681.80 CNL Funding 2001-A, LP O'Charley's Inc. Franklin, TN Year 1 - $156,818.16 November 7, 2003 November 30, 2023 Year 2 - $165,909.07 Year 3 - $174,999.98 Year 4 - $184,090.89 Year 5 and after - $193,181.80 CNL Funding 2001-A, LP O'Charley's Inc. O'Fallon, IL Year 1 - $137,546.39 December 30, 2003 December 31, 2023 Year 2 - $144,981.33 Year 3 - $152,416.27 Year 4 - $159,851.21 Year 5 and after - $167,286.15 CNL Funding 2001-A, LP d/b/a O'Charley's Paducah, KY Year 1 - $120,754.53 December 30, 2003 December 31, 2023 CNL Funding 2001-A, LP, a Restaurant Year 2 - $127,281.80 Delaware Limited Partnership Properties, LLC Year 3 - $133,809.08 Year 4 - $140,336.35 Year 5 and after - $146,863.62

LANDLORD TENANT RESTAURANT LOCATION ANNUAL RENT COMMENCEMENT DATE EXPIRATION DATE CNL Funding 2001-A, LP O'Charley's Inc. Greenwood, SC Year 1 - $121,090.94 December 30, 2003 December 31, 2023 Year 2 - $127,636.39 Year 3 - $134,181.85 Year 4 - $140,727.30 Year 5 and after - $147,272.76 CNL Funding 2001-A, LP O'Charley's Inc. Hermitage, TN Year 1 - $192,400.00 December 30, 2003 December 31, 2023 Year 2 - $202,800.00 Year 3 - $213,200.00 Year 4 - $223,600.00 Year 5 and after - $234,000.00 CNL Funding 2001-A, LP O'Charley's Inc. Jackson, TN Year 1 - $183,318.20 December 30, 2003 December 31, 2023 Year 2 - $193,227.29 Year 3 - $203,136.39 Year 4 - $213,045.48 Year 5 and after - $222,954.57 CNL Funding 2001-A, LP O'Charley's Inc. Johnson City, TN Year 1 - $139,590.94 December 30, 2003 December 31, 2023 Year 2 - $147,136.39 Year 3 - $154,681.85 Year 4 - $162,227.30 Year 5 and after - $169,772.76
EX-12 45 g86000exv12.txt EX-12 STATEMENT REGARDING COMPUTATION OF RATIOS . . . EXHIBIT 12 O'CHARLEY'S INC. CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
40 WEEKS ENDED -------------------- OCTOBER 6, OCTOBER 5, 1998 1999 2000 2001 2002 2002 2003 ----- ----- ------ ----- ----- ---------- --------- FIXED CHARGES Interest Expense 2,705 4,052 7,260 6,412 5,176 4,029 9,547 Capitalized Interest 202 230 392 438 290 235 230 Amortized premiums, discounts, and capitalized expenses related to indebtedness 96 122 138 198 380 176 878 Estimated interest in rental expense (See below) 1,667 1,958 2,293 2,674 2,799 2,160 5,254 Total fixed charges 4,670 6,362 10,083 9,722 8,645 6,600 15,909 CALCULATION OF ESTIMATED INTEREST IN RENTAL EXPENSE Rent expense 5,007 5,880 6,886 8,031 8,406 6,485 15,779 Interest component per norm 33.3% 33.3% 33.3% 33.3% 33.3% 33.3% 33.3% Implied interest in rent 1,667 1,958 2,293 2,674 2,799 2,160 5,254 CALCULATION OF EARNINGS Net earnings, before taxes and cumulative effect of change in accounting principle 19,846 24,783 29,785 26,899 41,059 30,550 27,528 Fixed charges 4,670 6,362 10,083 9,722 8,645 6,600 15,909 Less capitalized interest (202) (230) (392) (438) (290) (235) (230) Earnings 24,314 30,915 39,476 36,183 49,414 36,915 43,207 Ratio of earnings to fixed charges 5.21 4.86 3.92 3.72 5.72 5.59 2.72
EX-23.1 46 g86000exv23w1.txt EX-23.1 CONSENT OF KPMG LLP EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors O'Charley's Inc.: We consent to the use of our report dated February 5, 2003, except as to note 18, which is as of January 30, 2004, with respect to the consolidated balance sheets of O'Charley's Inc. and subsidiaries as of December 29, 2002 and December 30, 2001, and the related consolidated statements of earnings, shareholders' equity and comprehensive income, and cash flows for each of the years in the three-year period ended December 29, 2002, incorporated herein by reference, and to the reference to our firm under the heading "Experts" in the prospectus. Our report refers to a change in accounting for goodwill and other intangible assets in 2002. /s/ KPMG LLP Nashville, Tennessee January 30, 2004 EX-23.2 47 g86000exv23w2.txt EX- 23.2 CONSENT OF KPMG LLP EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT The Board of Directors 99 Restaurant & Pub: We consent to the use of our report dated January 24, 2003, with respect to the combined balance sheets of 99 Restaurant & Pub as of June 30, 2002 and June 24, 2001, and the related combined statements of earnings, stockholders' equity and comprehensive income, and cash flows for each of the years then ended, incorporated herein by reference and to the reference to our firm under the heading "Experts" in the prospectus. /s/ KPMG LLP Boston, Massachusetts January 30, 2004 EX-25 48 g86000exv25.txt EX-25 STATEMENT OF ELIGIBILITY ON FORM T-1 EXHIBIT 25 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |__| --------------------------- THE BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (State of incorporation (I.R.S. employer if not a U.S. national bank) identification no.) One Wall Street, New York, N.Y. 10286 (Address of principal executive offices) (Zip code) --------------------------- O'Charley's Inc. (Exact name of obligor as specified in its charter) Tennessee 62-1192475 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) AIR TRAVEL SERVICES, INC. (Exact name of obligor as specified in its charter) Tennessee 62-1489922 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) DFI, INC. (Exact name of obligor as specified in its charter) Tennessee 62-1720174 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) O'CHARLEY'S FINANCE COMPANY, INC. (Exact name of obligor as specified in its charter) Tennessee 74-2997021 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) -2- O'CHARLEY'S MANAGEMENT COMPANY, INC. (Exact name of obligor as specified in its charter) Tennessee 62-1720173 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) O'CHARLEY'S RESTAURANT PROPERTIES, LLC (Exact name of obligor as specified in its charter) Delaware 62-1720172 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) O'CHARLEY'S SERVICE COMPANY, INC. (Exact name of obligor as specified in its charter) Tennessee 62-1795132 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) -3- O'CHARLEY'S SPORTS BAR, INC. (Exact name of obligor as specified in its charter) Alabama 72-1368015 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 101 Southgate Drive Pelham, Alabama 35124 (Address of principal executive offices) (Zip code) OCI, INC. (Exact name of obligor as specified in its charter) Delaware 51-0367532 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 300 Delaware Avenue, 9th Floor Wilmington, Delaware 19801 (Address of principal executive offices) (Zip code) OPI, INC. (Exact name of obligor as specified in its charter) Colorado 74-3021441 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) -4- 99 COMMISSARY, LLC (Exact name of obligor as specified in its charter) Delaware 48-1289672 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) 99 RESTAURANTS, LLC (Exact name of obligor as specified in its charter) Delaware 82-0573653 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) 99 RESTAURANTS OF BOSTON, LLC (Exact name of obligor as specified in its charter) Delaware 82-0573657 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) -5- 99 RESTAURANTS OF MASSACHUSETTS, A MASSACHUSETTS BUSINESS TRUST (Exact name of obligor as specified in its charter) Massachusetts 82-0573656 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 160 Olympia Avenue Woburn, Massachusetts 01801 (Address of principal executive offices) (Zip code) 99 RESTAURANTS OF VERMONT, LLC (Exact name of obligor as specified in its charter) Vermont 82-0573655 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) 99 WEST, INC. (Exact name of obligor as specified in its charter) Massachusetts 04-2580280 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 160 Olympia Avenue Woburn, Massachusetts 01801 (Address of principal executive offices) (Zip code) -6- STONEY RIVER MANAGEMENT COMPANY, INC. (Exact name of obligor as specified in its charter) Delaware 74-2990687 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) STONEY RIVER, LLC (Exact name of obligor as specified in its charter) Delaware 30-0141495 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) STONEY RIVER LEGENDARY MANAGEMENT, L.P. (Exact name of obligor as specified in its charter) Georgia 36-4370600 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3038 Sidco Drive Nashville, Tennessee 37204 (Address of principal executive offices) (Zip code) --------------------------- 9% Senior Subordinated Notes due 2013 (Title of the indenture securities) -7- 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE: (A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
- -------------------------------------- ----------------------------------------- Name Address - -------------------------------------- ----------------------------------------- Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006, of New York and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation Washington, D.C. 20429 New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. Yes. 2. AFFILIATIONS WITH OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. None. 16. LIST OF EXHIBITS. EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(d). 1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.) 4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.) 6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) 7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. -8- SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 12th day of January, 2004. THE BANK OF NEW YORK By: /S/ ROBERT A. MASSIMILLO ------------------------------------- Name: ROBERT A. MASSIMILLO Title: VICE PRESIDENT -9- EXHIBIT 7 Consolidated Report of Condition of THE BANK OF NEW YORK of One Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business September 30, 2003, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts In Thousands ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin .......... $ 3,688,426 Interest-bearing balances ................................... 4,380,259 Securities: Held-to-maturity securities ................................. 270,396 Available-for-sale securities ............................... 21,509,356 Federal funds sold in domestic offices ......................... 1,269,945 Securities purchased under agreements to resell ................ 5,320,737 Loans and lease financing receivables: Loans and leases held for sale .............................. 629,178 Loans and leases, net of unearned income ..........38,241,326 LESS: Allowance for loan and lease losses ............813,502 Loans and leases, net of unearned income and allowance ...... 37,427,824 Trading Assets ................................................. 6,323,529 Premises and fixed assets (including capitalized leases) ....... 938,488 Other real estate owned ........................................ 431 Investments in unconsolidated subsidiaries and associated companies ........................................ 256,230 Customers' liability to this bank on acceptances outstanding ................................................. 191,307 Intangible assets Goodwill .................................................... 2,562,478 Other intangible assets ..................................... 798,536 Other assets ................................................... 6,636,012 ----------- Total assets ................................................... $92,203,132 ===========
LIABILITIES Deposits: In domestic offices ......................................... $35,637,801 Noninterest-bearing ...............................15,795,823 Interest-bearing ..................................19,841,978 In foreign offices, Edge and Agreement subsidiaries, and IBFs .................................... 23,759,599 Noninterest-bearing ..................................599,397 Interest-bearing ..................................23,160,202 Federal funds purchased in domestic offices .................... 464,907 Securities sold under agreements to repurchase ................. 693,638 Trading liabilities ............................................ 2,634,445 Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) ................................... 11,168,402 Bank's liability on acceptances executed and outstanding ................................................. 193,690 Subordinated notes and debentures .............................. 2,390,000 Other liabilities .............................................. 6,573,955 ----------- Total liabilities .............................................. $83,516,437 =========== Minority interest in consolidated subsidiaries ................. 519,418 EQUITY CAPITAL Perpetual preferred stock and related surplus .................. 0 Common stock ................................................... 1,135,284 Surplus ........................................................ 2,057,234 Retained earnings .............................................. 4,892,597 Accumulated other comprehensive income ......................... 82,162 Other equity capital components ................................ 0 ----------- Total equity capital ........................................... 8,167,277 ----------- Total liabilities minority interest and equity capital ......... $92,203,132 ===========

I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief. Thomas J. Mastro, Senior Vice President and Comptroller We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct. Thomas A. Renyi Gerald L. Hassell Alan R. Griffith Directors EX-99.1 49 g86000exv99w1.txt EX-99.1 LETTER OF TRANSMITTAL EXHIBIT 99.1 LETTER OF TRANSMITTAL TO TENDER OUTSTANDING 9% SENIOR SUBORDINATED NOTES DUE 2013 OF O'CHARLEY'S INC. PURSUANT TO THE EXCHANGE OFFER AND PROSPECTUS DATED , 2004 THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON , 2004 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS EXTENDED BY THE COMPANY. The Exchange Agent for the Exchange Offer is: THE BANK OF NEW YORK By Overnight Courier and By Mail: Hand Delivery: By Facsimile: The Bank of New York The Bank of New York (212) 298-1915 101 Barclay Street 101 Barclay Street (For Eligible Institutions Only) New York, NY 10286 New York, NY 10286 Confirm By Telephone: Attn: Reorganization Department Attn: Reorganization Department ( ) - (registered or certified mail recommended)

Delivery of this Letter of Transmittal to an address other than as set forth above or transmission of instructions via a facsimile transmission to a number other than as set forth above will not constitute a valid delivery. If you wish to exchange currently outstanding 9% Senior Subordinated Notes due 2013 (the "Outstanding Notes") for an equal aggregate principal amount at maturity of new 9% Senior Subordinated Notes due 2013 pursuant to the Exchange Offer, you must validly tender (and not withdraw) Outstanding Notes to the Exchange Agent prior to the Expiration Date. The undersigned hereby acknowledges receipt and review of the Prospectus, dated , 2004 (the "Prospectus"), of O'Charley's Inc., a Tennessee corporation (the "Company"), and this Letter of Transmittal (the "Letter of Transmittal"), which together describe the Company's offer (the "Exchange Offer") to exchange its 9% Senior Subordinated Notes due 2013 (the "New Notes") that have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of its issued and outstanding 9% Senior Subordinated Notes due 2013 (the "Outstanding Notes"). Capitalized terms used but not defined herein have the respective meanings given to them in the Prospectus. The Company reserves the right, at any time or various times, to extend the Exchange Offer at its discretion, in which event the term "Expiration Date" shall mean the latest date to which the Exchange Offer is extended. The Company shall notify the Exchange Agent and each registered holder of the Outstanding Notes of any extension by oral or written notice no later than 9:00 a.m., Eastern time, on the business day after the previously scheduled Expiration Date. This Letter of Transmittal is to be used by a holder of Outstanding Notes if Outstanding Notes are to be forwarded herewith. An Agent's Message (as defined in the next sentence) is to be used if delivery of Outstanding Notes is to be made by book-entry transfer to the account maintained by the Exchange Agent at The Depository Trust Company (the "Book-Entry Transfer Facility") pursuant to the procedures set forth in the Prospectus under the caption "Exchange Offer -- Procedures for Tendering." The term "Agent's Message" means a message, transmitted by the Book-Entry Transfer Facility and received by the Exchange Agent and forming a part of the confirmation of a book-entry transfer ("Book-Entry Confirmation"), which states that the Book-Entry Transfer Facility has received an express acknowledgment from a participant tendering Outstanding Notes that are the subject of such Book-Entry Confirmation and that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that the Company may enforce such agreement against such participant. Holders of Outstanding Notes whose Outstanding Notes are not immediately available, or who are unable to deliver their Outstanding Notes and all other documents required by this Letter of Transmittal to the Exchange Agent on or prior to the Expiration Date, or who are unable to complete the procedure for book-entry transfer on a timely basis, must tender their Outstanding Notes according to the guaranteed delivery procedures set forth in the Prospectus under the caption "Exchange Offer -- Guaranteed Delivery Procedures." Delivery of documents to the Book-Entry Transfer Facility does not constitute delivery to the Exchange Agent. The term "holder" with respect to the Exchange Offer means any person in whose name Outstanding Notes are registered on the books of the Company or any other person who has obtained a properly completed bond power from such registered holder. The undersigned has completed, executed and delivered this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer. Holders who wish to tender their Outstanding Notes must complete this Letter of Transmittal in its entirety. 2 SIGNATURES MUST BE PROVIDED. PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY. Ladies and Gentlemen: 1. The undersigned hereby tenders to the Company the Outstanding Notes described in the box entitled "Description of Outstanding Notes Tendered" pursuant to the Company's offer of $1,000 principal amount at maturity of New Notes in exchange for each $1,000 principal amount at maturity of the Outstanding Notes, upon the terms and subject to the conditions contained in the Prospectus, receipt of which is hereby acknowledged, and in this Letter of Transmittal. 2. The undersigned hereby represents and warrants that it has full authority to tender the Outstanding Notes described above. The undersigned will, upon request, execute and deliver any additional documents deemed by the Company to be necessary or desirable to complete the tender of Outstanding Notes. 3. The undersigned understands that the tender of the Outstanding Notes pursuant to all of the procedures set forth in the Prospectus will constitute an agreement between the undersigned and the Company as to the terms and conditions set forth in the Prospectus. 4. The undersigned acknowledge(s) that the Exchange Offer is being made in reliance upon interpretations contained in no-action letters issued to third parties by the staff of the Securities and Exchange Commission (the "SEC"), including Exxon Capital Holdings Corp., SEC No-Action Letter (available May 13, 1988), Morgan Stanley & Co., Inc., SEC No-Action Letter (available June 5, 1991) and Shearman & Sterling, SEC No-Action Letter (available July 2, 1993), that the New Notes issued in exchange for the Outstanding Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by holders thereof (other than a broker-dealer who purchased Outstanding Notes exchanged for such New Notes directly from the Company to resell pursuant to Rule 144A or any other available exemption under the Securities Act of 1933, as amended (the "Securities Act"), and any such holder that is an "affiliate" of the Company within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Notes are acquired in the ordinary course of such holders' business and such holders are not participating in, and have no arrangement with any person to participate in, the distribution of such New Notes. 5. Unless the box under the heading "Special Registration Instructions" is checked, the undersigned hereby represents and warrants that: a. the New Notes acquired pursuant to the Exchange Offer are being obtained in the ordinary course of business of the undersigned, whether or not the undersigned is the holder; b. neither the undersigned nor any such other person has an arrangement or understanding with any person to participate in the distribution of such New Notes; c. neither the holder nor any such other person is an "affiliate," as such term is defined under Rule 405 promulgated under the Securities Act, of the Company or if it is an affiliate, such holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable; and d. neither the undersigned nor any such other person is engaging in or intends to engage in a distribution of such New Notes. 6. The undersigned may, if unable to make all of the representations and warranties contained in Item 5 above and as otherwise permitted in the registration rights agreement, dated as of November 4, 2003 (the "Registration Rights Agreement"), by and among the Company and the Initial Purchasers (as defined therein), elect to have its Outstanding Notes registered in the shelf registration statement described in the Registration Rights Agreement. Such election may be made by checking the box below entitled "Special Registration Instructions." By making such election, the undersigned agrees, as a holder of Outstanding Notes participating in a shelf registration, to indemnify and hold harmless the Company and its affiliates, their 3 respective officers, directors, employees, representatives and agents and each person who controls the Company within the meaning of either the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and all losses, claims, damages or liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in any shelf registration statement or prospectus, or in any supplement thereto or amendment thereof, or caused by the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; but only with respect to information relating to the undersigned furnished in writing by or on behalf of the undersigned expressly for use in a shelf registration statement, a prospectus or any amendments or supplements thereto. Any such indemnification shall be governed by the terms and subject to the conditions set forth in the Registration Rights Agreement, including, without limitation, the provisions regarding notice, retention of counsel, contribution and payment of expenses set forth therein. The above summary of the indemnification provision of the Registration Rights Agreement is not intended to be exhaustive and is qualified in its entirety by the Registration Rights Agreement. 7. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Outstanding Notes, it represents that the Outstanding Notes to be exchanged for New Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. If the undersigned is a broker-dealer and Outstanding Notes held for its own account were not acquired as a result of market-making or other trading activities, such Outstanding Notes cannot be exchanged pursuant to the Exchange Offer. 8. Any obligation of the undersigned hereunder shall be binding upon the successors, assigns, executors, administrators, trustees in bankruptcy and legal and personal representatives of the undersigned. 9. Unless otherwise indicated herein under "Special Delivery Instructions," please issue the certificates for the New Notes in the name of the undersigned. 4 List below the Outstanding Notes to which this Letter of Transmittal relates. If the space below is inadequate, list the registered numbers and principal amounts on a separate signed schedule and affix the list to this Letter of Transmittal.
- --------------------------------------------------------------------------------------------------------- DESCRIPTION OF OUTSTANDING NOTES TENDERED - --------------------------------------------------------------------------------------------------------- NAME(S) AND ADDRESS(ES) OF AGGREGATE PRINCIPAL REGISTERED HOLDER(S) AMOUNT EXACTLY AS NAME(S) REPRESENTED BY APPEAR(S) ON OUTSTANDING REGISTERED OUTSTANDING PRINCIPAL AMOUNT NOTES NUMBER(S)* NOTE(S) TENDERED** - --------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------- ----------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------- * Need not be completed by book-entry holders. ** Unless otherwise indicated, any tendering holder of Outstanding Notes will be deemed to have tendered the entire aggregate principal amount represented by such Outstanding Notes. All tenders must be in integral multiples of $1,000. - ---------------------------------------------------------------------------------------------------------
METHOD OF DELIVERY [ ] Check here if tendered Outstanding Notes are enclosed herewith. [ ] Check here if tendered Outstanding Notes are being delivered by book-entry transfer made to an account maintained by the Exchange Agent with the Book-Entry Transfer Facility and complete the following: Name of Tendering Institution: - -------------------------------------------------------------------------------- Account Number: - -------------------------------------------------------------------------------- Transaction Code Number: - -------------------------------------------------------------------------------- [ ] Check here if tendered Outstanding Notes are being delivered pursuant to a Notice of Guaranteed Delivery and complete the following: Name(s) of Registered Holder(s): - -------------------------------------------------------------------------------- Date of Execution of Notice of Guaranteed Delivery: - -------------------------------------------------------------------------------- Window Ticket Number (if available): - -------------------------------------------------------------------------------- Name of Eligible Institution that Guaranteed Delivery: - -------------------------------------------------------------------------------- Account Number (If delivered by book-entry transfer): - -------------------------------------------------------------------------------- 5 SPECIAL ISSUANCE INSTRUCTIONS (SEE INSTRUCTIONS 5 AND 6) To be completed ONLY (i) if Outstanding Notes in a principal amount not tendered, or New Notes issued in exchange for Outstanding Notes accepted for exchange, are to be issued in the name of someone other than the undersigned, or (ii) if Outstanding Notes tendered by book-entry transfer that are not exchanged are to be returned by credit to an account maintained at the Book-Entry Transfer Facility. Issue New Notes and/or Outstanding Notes to: Name: - -------------------------------------------------------------------------------- (TYPE OR PRINT) Address: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (ZIP CODE) - -------------------------------------------------------------------------------- (TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER) (COMPLETE SUBSTITUTE FORM W-9) [ ] Credit Unexchanged Outstanding Notes Delivered by Book-Entry Transfer to the Book-Entry Transfer Facility Set Forth Below: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (BOOK-ENTRY TRANSFER FACILITY ACCOUNT NUMBER) SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 5 AND 6) To be completed ONLY if the New Notes are to be issued or sent to someone other than the undersigned or to the undersigned at an address other than as indicated above. Mail [ ] Issue [ ] (check appropriate boxes) Name: - -------------------------------------------------------------------------------- (TYPE OR PRINT) Address: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (ZIP CODE) - -------------------------------------------------------------------------------- (TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER) 6 SPECIAL REGISTRATION INSTRUCTIONS To be completed ONLY if (i) the undersigned satisfies the conditions set forth in Item 6 above, (ii) the undersigned elects to register its Outstanding Notes in the shelf registration statement described in the Registration Rights Agreement and (iii) the undersigned agrees to indemnify certain entities and individuals as set forth in Item 6 above. (See Item 6.) [ ] By checking this box, the undersigned hereby (i) represents that it is unable to make all of the representations and warranties set forth in Item 5 above, (ii) elects to have its Outstanding Notes registered pursuant to the shelf registration statement described in the Registration Rights Agreement and (iii) agrees to indemnify certain entities and individuals identified in, and to the extent provided in, Item 6 above. SPECIAL BROKER-DEALER INSTRUCTIONS [ ] Check here if you are a broker-dealer and wish to receive 10 additional copies of the Prospectus and 10 copies of any amendments or supplements thereto. Name: - -------------------------------------------------------------------------------- (PLEASE PRINT) Address: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (ZIP CODE) 7 IMPORTANT PLEASE SIGN HERE WHETHER OR NOT OUTSTANDING NOTES ARE BEING PHYSICALLY TENDERED HEREBY (COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9) Signature(s) of Registered Holders of Outstanding Notes: X - -------------------------------------------------------------------------------- X - -------------------------------------------------------------------------------- Dated: --------------------------------------------- (The above lines must be signed by the registered holder(s) of Outstanding Notes as its name(s) appear(s) on the Outstanding Notes or on a security position listing, or by person(s) authorized to become registered holder(s) by a properly completed bond power from the registered holder(s), a copy of which must be transmitted with this Letter of Transmittal. If Outstanding Notes to which this Letter of Transmittal relate are held of record by two or more joint holders, then all such holders must sign this Letter of Transmittal. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, then such person must (i) set forth his or her full title below and (ii) unless waived by the Company, submit evidence satisfactory to the Company of such person's authority so to act. See Instruction 5 regarding completion of this Letter of Transmittal, printed below.) Name(s): - -------------------------------------------------------------------------------- (PLEASE TYPE OR PRINT) Capacity: - -------------------------------------------------------------------------------- Address - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (ZIP CODE) Area Code and Telephone Number - -------------------------------------------------------------------------------- SIGNATURE GUARANTEE (SEE INSTRUCTION 5) CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION - -------------------------------------------------------------------------------- (NAME OF ELIGIBLE INSTITUTION GUARANTEEING SIGNATURES) - -------------------------------------------------------------------------------- (ADDRESS (INCLUDING ZIP CODE) AND TELEPHONE NUMBER (INCLUDING AREA CODE) OF FIRM) - -------------------------------------------------------------------------------- (AUTHORIZED SIGNATURE) - -------------------------------------------------------------------------------- (PRINTED NAME) - -------------------------------------------------------------------------------- (TITLE) Dated: --------------------------------------------- 8 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER 1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OUTSTANDING NOTES OR BOOK-ENTRY CONFIRMATIONS. All physically delivered Outstanding Notes or any confirmation of a book-entry transfer to the Exchange Agent's account at the Book-Entry Transfer Facility of Outstanding Notes tendered by book-entry transfer (a "Book-Entry Confirmation"), as well as a properly completed and duly executed copy of this Letter of Transmittal or Agent's Message or facsimile hereof, and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at its address set forth herein prior to 5:00 p.m., Eastern time, on the Expiration Date. The method of delivery of the tendered Outstanding Notes, this Letter of Transmittal and all other required documents to the Exchange Agent is at the election and risk of the holder and, except as otherwise provided below, the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If such delivery is by mail, it is recommended that registered mail, properly insured, with return receipt requested, be used. Instead of delivery by mail, it is recommended that the holder use an overnight or hand delivery service. In all cases, sufficient time should be allowed to assure delivery to the Exchange Agent before the Expiration Date. No Letter of Transmittal or Outstanding Notes should be sent to the Company. 2. GUARANTEED DELIVERY PROCEDURES. Holders who wish to tender their Outstanding Notes and whose Outstanding Notes are not immediately available or who cannot deliver their Outstanding Notes, this Letter of Transmittal or any other documents required hereby to the Exchange Agent prior to the Expiration Date, or who cannot complete the procedure for book-entry transfer on a timely basis and deliver an Agent's Message, must tender their Outstanding Notes according to the guaranteed delivery procedures set forth in the Prospectus. Pursuant to such procedures, a tender may be effected if the Exchange Agent has received at its office, on or prior to the Expiration Date, a properly completed and duly executed Notice of Guaranteed Delivery by facsimile transmission, mail or hand delivery or a properly transmitted Agent's Message and Notice of Guaranteed Delivery from an Eligible Institution (defined as a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States, or an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under the Securities Exchange Act) setting forth the name and address of the tendering holder, the name(s) in which the Outstanding Notes are registered, the certificate number(s) and the principal amount of the Outstanding Notes to be tendered, and stating that the tender is being made thereby and guaranteeing that, within three New York Stock Exchange trading days after the expiration date, such properly completed and executed Letter of Transmittal or facsimile transmission thereof by the Eligible Institution, such Outstanding Notes, in proper form for transfer (or a confirmation of book-entry transfer of such Outstanding Notes into the Exchange Agent's account at the Book-Entry Transfer Facility), will be delivered by such Eligible Institution together with any other required documents to the Exchange Agent. Unless Outstanding Notes being tendered by the above-described method are deposited with the Exchange Agent within the time period set forth above (accompanied or preceded by a properly completed Letter of Transmittal and any other required documents), the Company may, at its option, reject the tender. Any holder of Outstanding Notes who wishes to tender Outstanding Notes pursuant to the guaranteed delivery procedures described above must ensure that the Exchange Agent receives the Notice of Guaranteed Delivery prior to 5:00 p.m., Eastern time, on the Expiration Date. Upon request of the Exchange Agent, a Notice of Guaranteed Delivery will be sent to holders who wish to tender their Outstanding Notes according to the guaranteed delivery procedures set forth above. See "Exchange Offer -- Guaranteed Delivery Procedures" in the Prospectus. 9 3. TENDER BY HOLDER. Only a registered holder of Outstanding Notes may tender such Outstanding Notes in the Exchange Offer. Any beneficial holder of Outstanding Notes who is not the registered holder and who wishes to tender should arrange with the registered holder to execute and deliver this Letter of Transmittal on his behalf or must, prior to completing and executing this Letter of Transmittal and delivering his Outstanding Notes, either make appropriate arrangements to register ownership of the Outstanding Notes in such holder's name or obtain a properly completed bond power from the registered holder. 4. PARTIAL TENDERS. Tenders of Outstanding Notes will be accepted only in integral multiples of $1,000. If less than the entire principal amount of any Outstanding Notes is tendered, the tendering holder should fill in the principal amount tendered in the appropriate column of the box entitled "Description of Outstanding Notes Tendered" above. The entire principal amount of Outstanding Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated. If the entire principal amount of all Outstanding Notes is not tendered, then Outstanding Notes for the principal amount of Outstanding Notes not tendered and New Notes issued in exchange for any Outstanding Notes accepted will be sent to the holder at his or her registered address, unless a different address is provided in the appropriate box on this Letter of Transmittal, promptly after the Outstanding Notes are accepted for exchange. 5. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Letter of Transmittal (or facsimile hereof) is signed by the registered holder(s) of the Outstanding Notes tendered hereby, the signature must correspond with the name(s) as written on the face of the Outstanding Notes without alteration, enlargement or any change whatsoever. If this Letter of Transmittal (or facsimile hereof) is signed by a participant in the Book-Entry Transfer Facility, the signature must correspond with the name as it appears on the security position listing as the holder of the Outstanding Notes. If this Letter of Transmittal (or facsimile hereof) is signed by the registered holder or holders of Outstanding Notes listed and tendered hereby and the New Notes issued in exchange therefor are to be issued (or any untendered principal amount of Outstanding Notes is to be reissued) to the registered holder, the holder need not and should not endorse any tendered Outstanding Notes, nor provide a separate bond power. In any other case, such holder must either properly endorse the Outstanding Notes tendered or transmit a properly completed separate bond power with this Letter of Transmittal, with the signatures on the endorsement or bond power guaranteed by an Eligible Institution. If this Letter of Transmittal (or facsimile hereof) is signed by a person other than the registered holder or holders of any Outstanding Notes listed, such Outstanding Notes must be endorsed or accompanied by appropriate bond powers, in each case signed as the name of the registered holder or holders appears on the Outstanding Notes. If this Letter of Transmittal (or facsimile hereof) or any Outstanding Notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, evidence satisfactory to the Company of their authority to act must be submitted with this Letter of Transmittal. Endorsements on Outstanding Notes and signatures on bond powers required by this Instruction 5 must be guaranteed by an Eligible Institution. All signatures on this Letter of Transmittal (or facsimile hereof) must be guaranteed by an Eligible Institution. 6. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering holders should indicate, in the applicable box or boxes, the name and address (or account at the Book-Entry Transfer Facility) to which New Notes or substitute Outstanding Notes for principal 10 amounts not tendered or not accepted for exchange are to be issued or sent, if different from the name and address of the person signing this Letter of Transmittal. In the case of issuance in a different name, the taxpayer identification or social security number of the person named must also be indicated. Tax law requires that a holder of any Outstanding Notes that are accepted for exchange must provide the Company (as payor) with its correct taxpayer identification number ("TIN"), which, in the case of a holder who is an individual, is his or her social security number. If the Company is not provided with the correct TIN, the holder may be subject to a monetary penalty imposed by Internal Revenue Service. (If withholding results in an overpayment of taxes, a refund may be obtained). Certain holders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. See the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional instructions. To prevent backup withholding, each tendering holder must provide such holder's correct TIN by completing the Substitute Form W-9 set forth herein, certifying that the TIN provided is correct (or that such holder is awaiting a TIN), and that (i) the holder has not been notified by the Internal Revenue Service that such holder is subject to backup withholding as a result of failure to report all interest or dividends or (ii) the Internal Revenue Service has notified the holder that such holder is no longer subject to backup withholding. If the Outstanding Notes are registered in more than one name or are not in the name of the actual owner, see the enclosed "Guidelines for Certification of Taxpayer Identification Number of Substitute Form W-9" for information on which TIN to report. The Company reserves the right in its sole discretion to take whatever steps necessary to comply with the Company's obligations regarding backup withholding. 7. VALIDITY OF TENDERS. All questions as to the validity, form, eligibility (including time of receipt), acceptance, and withdrawal of tendered Outstanding Notes will be determined by the Company, in its sole discretion, which determination will be final and binding. The Company reserves the absolute right to reject any or all tenders not in proper form or the acceptance for exchange of which may, in the opinion of counsel for the Company, be unlawful. The Company also reserves the absolute right to waive any of the conditions of the Exchange Offer or any defect or irregularity in the tender of any Outstanding Notes. The Company's interpretation of the terms and conditions of the Exchange Offer (including the instructions on the Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Outstanding Notes must be cured within such time as the Company shall determine. Although the Company intends to notify holders of defects or irregularities with respect to tenders of Outstanding Notes, neither the Company, the Exchange Agent, nor any other person shall be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give such notification. Tenders of Outstanding Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Outstanding Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering holders, unless otherwise provided in the Letter of Transmittal, promptly following the Expiration Date. 8. WAIVER OF CONDITIONS. The Company reserves the absolute right to waive, in whole or part, any of the conditions to the Exchange Offer set forth in the Prospectus or in this Letter of Transmittal. 9. NO CONDITIONAL TENDER. No alternative, conditional, irregular or contingent tender of Outstanding Notes on transmittal of this Letter of Transmittal will be accepted. 11 10. MUTILATED, LOST, STOLEN OR DESTROYED OUTSTANDING NOTES. Any holder whose Outstanding Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions. 11. REQUEST FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance or for additional copies of the Prospectus or this Letter of Transmittal may be directed to the Exchange Agent at the address or telephone number set forth on the cover page of this Letter of Transmittal. Holders may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Exchange Offer. 12. WITHDRAWAL. Tenders may be withdrawn only pursuant to the limited withdrawal rights set forth in the Prospectus under the caption "Exchange Offer -- Withdrawal of Tenders." IMPORTANT: This Letter of Transmittal or a manually signed facsimile hereof (together with the outstanding notes delivered by book-entry transfer or in original hard copy form) must be received by the Exchange Agent, or the Notice of Guaranteed Delivery must be received by the Exchange Agent, prior to the Expiration Date. 12
- ---------------------------------------------------------------------------------------------------------------- PAYOR'S NAME: O'CHARLEY'S INC. - ---------------------------------------------------------------------------------------------------------------- SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT --------------------------------- FORM W-9 THE RIGHT AND CERTIFY BY SIGNING AND DATING Social Security Number BELOW. Or DEPARTMENT OF THE TREASURY --------------------------------- INTERNAL REVENUE SERVICE Name: ------------------------------------------ Employer Identification Number ------------------------------------------------ PAYOR'S REQUEST FOR Business Name TAXPAYER IDENTIFICATION NUMBER Please check appropriate box ("TIN") [ ] Individual/Sole Proprietor [ ] Corporation [ ] Partnership [ ] Other ------------------------------------------------ Address ------------------------------------------------ City, State, Zip Code ------------------------------------------------------------------------------------ PART 2 -- For Payees exempt from back-up withholding, see the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9, check the Exempt box below and complete the Substitute Form W-9 Exempt: [ ] PART 3 -- CERTIFICATION -- Under penalties of perjury, I certify that: (1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me); and (2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report all interest on dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and (3) I am a U.S. person (include resident alien). ------------------------------------------------------------------------------------ CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you have been notified by the IRS that you are currently subject to backup withholding because of under reporting interest or dividends on your tax return. Signature: ------------------------------------ PART 4 -- AWAITING TIN [ ] Please complete the Certificate of Date: ----------------------------------------- Awaiting Taxpayer Identification Numbers below. - ----------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF ANY PAYMENTS MADE TO YOU PURSUANT TO AN OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 4 OF SUBSTITUTE FORM W-9. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED PART 4 OF THE SUBSTITUTE FORM W-9. 13 CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalty of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number within 60 days of the payment date the withholding amount will be remitted to the IRS. Signature: ------------------------------ Date: -------------------------, 2004 14 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYOR. Social Security numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payor.
- ------------------------------------------------------------ GIVE THE NAME AND TAXPAYER IDENTIFICATION FOR THIS TYPE OF ACCOUNT: NUMBER OF: - ------------------------------------------------------------ 1. An individual's The individual account 2. Two or more The actual owner of the account individuals (joint or, if combined funds, the account) first individual on the account(1) 3. Custodian account of a The minor(2) minor (Uniform Gift to Minors Act) 4. a. The usual revocable The grantor-trustee(1) savings trust account (grantor is also trustee) b. So-called trust The actual owner(1) account that is not a legal or valid trust under state law 5. Sole proprietorship The owner(3) account 6. A valid trust, estate, The legal entity (Do not or pension trust furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title)(4) - ------------------------------------------------------------

- ------------------------------------------------------------ GIVE THE NAME AND TAXPAYER IDENTIFICATION FOR THIS TYPE OF ACCOUNT: NUMBER OF: - ------------------------------------------------------------ 7. Corporate account The corporation 8. Association, club, The organization religious, charitable, educational or other tax-exempt organization 9. Partnership account The partnership 10. A broker or registered The broker or nominee nominee 11. Account with the The public entity Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments - ------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a Social Security number, that person's number must be furnished. (2) Circle the minor's name and furnish the minor's social security number. (3) YOU MUST SHOW YOUR INDIVIDUAL NAME. You may also enter your business or "DBA" name. You may use either your Social Security number or your employer identification number (if you have one). (4) List first and circle the name of the legal trust, estate or pension trust. NOTE: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed. RESIDENT ALIEN INDIVIDUALS: If you are a resident alien individual and you do not have, and are not eligible to get, a Social Security number, your taxpayer identification number is your individual taxpayer identification number ("ITIN") as issued by the Internal Revenue Service. Enter it on the portion of the Substitute Form W-9 where the Social Security number would otherwise be entered. If you do not have an ITIN, see "Obtaining a Number" below. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 PAGE 2 OBTAINING A NUMBER If you do not have a taxpayer identification number, obtain Form SS-5, Application for a Social Security Number Card (for individuals), or Form SS-4, Application for Employer Identification Number (for businesses and all other entities), at the local office of the Social Security Administration or the Internal Revenue Service (the "IRS") and apply for a number. Resident alien individuals who are not eligible to get a Social Security number and need an ITIN should obtain Form W-7, Application for Individual Taxpayer Identification Number, from the IRS. PAYEES AND PAYMENTS EXEMPT FROM BACKUP WITHHOLDING The following is a list of payees exempt from backup withholding and for which no information reporting is required. For interest and dividends, all listed payees are exempt except the payee in item (9). For broker transactions, payees listed in items (1) through (13) and a person registered under the Investment Advisers Act of 1940 who regularly acts as a broker are exempt. Payments subject to reporting under sections 6041 and 6041A are generally exempt from backup withholding only if made to payees described in items (1) through (7). Unless otherwise indicated, all "section" references are to sections of the Internal Revenue Code of 1986, as amended (the "Code"). LIST OF EXEMPT PAYEES: (1) A corporation. (2) An organization exempt from tax under section 501(a), or an IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2). (3) The United States or any of its agencies or instrumentalities. (4) A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities. (5) A foreign government or any of its political subdivisions, agencies or instrumentalities. (6) An international organization or any of its agencies or instrumentalities. (7) A foreign central bank of issue. (8) A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States. (9) A futures commission merchant registered with the Commodity Futures Trading Commission. (10) A real estate investment trust. (11) An entity registered at all times during the tax year under the Investment Company Act of 1940. (12) A common trust fund operated by a bank under section 584(a). (13) A financial institution. (14) A middleman known in the investment community as a nominee or custodian. (15) A trust exempt from tax under section 664 or described in section 4947. PAYMENTS OF DIVIDENDS AND PATRONAGE DIVIDENDS NOT GENERALLY SUBJECT TO BACKUP WITHHOLDING INCLUDE THE FOLLOWING: Payments to nonresident aliens subject to withholding under section 1441. Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident partner. Payments of patronage dividends where the amount received is not paid in money. Payments made by certain foreign organizations. Section 404(k) distributions made by an ESOP. PAYMENTS OF INTEREST NOT GENERALLY SUBJECT TO BACKUP WITHHOLDING INCLUDE THE FOLLOWING: Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of your trade or business and you have not provided your correct taxpayer identification number to the payor. Payments of tax-exempt interest (including exempt-interest dividends under section 852). Payments described in section 6049(b)(5) to non-resident aliens. Payments on tax-free covenant bonds under section 1451. Payments made by certain foreign organizations. Payments of mortgage or student loan interest to you. EXEMPT PAYEES DESCRIBED ABOVE SHOULD FILE SUBSTITUTE FORM W-9 TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE THIS FORM WITH THE PAYOR; FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER; WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND DATE THE FORM AND RETURN IT TO THE PAYOR. IF YOU ARE A NON-RESIDENT ALIEN OR A FOREIGN ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE WITH PAYOR THE APPROPRIATE COMPLETED INTERNAL REVENUE SERVICE FORM W-8. Certain payments other than interest, dividends and patronage dividends, that are not subject to information reporting are also not subject to backup withholding. For details, see Sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N of the Code and the Treasury regulations promulgated thereunder. PRIVACY ACT NOTICE -- Section 6109 requires most recipients of dividend, interest, or other payments to give their correct taxpayer identification numbers to payors who must report the payments to the IRS. The IRS uses the numbers for identification purposes and to verify the accuracy of tax returns. The IRS also may provide this information to the Department of Justice for civil and criminal litigation and to cities, states, and the District of Columbia to carry out their tax laws. Payors must be given the numbers whether or not recipients are required to file tax returns. Payors must generally withhold tax from payments of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payor. The current rate of such withholding tax is 30%. Certain penalties may also apply. PENALTIES (1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER -- If you fail to furnish your correct taxpayer identification number to a payor, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING -- If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500. (3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION -- Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. EX-99.2 50 g86000exv99w2.txt EX-99.2 FORM OF LETTER TO CLIENTS EXHIBIT 99.2 O'CHARLEY'S INC. LETTER TO CLIENTS FOR TENDER OF ALL OUTSTANDING 9% SENIOR SUBORDINATED NOTES DUE 2013 IN EXCHANGE FOR 9% SENIOR SUBORDINATED NOTES DUE 2013 THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON , 2004, UNLESS EXTENDED (THE "EXPIRATION DATE"). NOTES TENDERED IN THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M., EASTERN TIME, ON THE EXPIRATION DATE. To Our Clients: We have enclosed herewith a Prospectus, dated , 2004, of O'Charley's Inc., a Tennessee corporation (the "Company"), and a related Letter of Transmittal, which together constitute the Company's offer (the "Exchange Offer") to exchange its 9% Senior Subordinated Notes due 2013 (the "New Notes"), which have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of its issued and outstanding 9% Senior Subordinated Notes due 2013 (the "Outstanding Notes"), upon the terms and subject to the conditions set forth in the Exchange Offer. The Exchange Offer is not conditioned upon any minimum number of Outstanding Notes being tendered. We are the holder of record of Outstanding Notes held by us for your account. A tender of such Outstanding Notes can be made only by us as the record holder and pursuant to your instructions. The Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender Outstanding Notes held by us for your account. We request instructions as to whether you wish to tender any or all of the Outstanding Notes held by us for your account pursuant to the terms and conditions of the Exchange Offer. We also request that you confirm that we may, on your behalf, make the representations and warranties contained in the Letter of Transmittal. Very truly yours, PLEASE RETURN YOUR INSTRUCTIONS TO US IN THE ENCLOSED ENVELOPE WITHIN AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION DATE. INSTRUCTION TO REGISTERED HOLDER AND/OR BOOK-ENTRY TRANSFER PARTICIPANT To Registered Holder and/or Participant in the Book-Entry Transfer Facility: The undersigned hereby acknowledges receipt of the Prospectus, dated , 2004 (the "Prospectus"), of O'Charley's Inc., a Tennessee corporation (the "Company"), and the accompanying Letter of Transmittal (the "Letter of Transmittal"), that together constitute the Company's offer (the "Exchange Offer") to exchange its 9% Senior Subordinated Notes due 2013 (the "New Notes") for all of its outstanding 9% Senior Subordinated Notes due 2013 (the "Outstanding Notes"). This will instruct you, the registered holder and/or book-entry transfer facility participant, as to the action to be taken by you relating to the Exchange Offer with respect to the Outstanding Notes held by you for the account of the undersigned. The aggregate face amount of the Outstanding Notes held by you for the account of the undersigned is (FILL IN AMOUNT): $ -------------------------------- of the 9% Senior Subordinated Notes due 2013 With respect to the Exchange Offer, the undersigned hereby instructs you (CHECK APPROPRIATE BOX): [ ] To TENDER the following Outstanding Notes held by you for the account of the undersigned (INSERT PRINCIPAL AMOUNT OF OUTSTANDING NOTES TO BE TENDERED) (IF ANY): $ ----------------------------- of the 9% Senior Subordinated Notes due 2013 [ ] NOT to TENDER any Outstanding Notes held by you for the account of the undersigned. If the undersigned instructs you to tender the Outstanding Notes held by you for the account of the undersigned, it is understood that you are authorized to make, on behalf of the undersigned (and the undersigned by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner, including, but not limited to, the representations, that (i) the New Notes acquired in exchange for the Outstanding Notes pursuant to the Exchange Offer are being acquired in the ordinary course of business of the person receiving such New Notes, (ii) the undersigned is not engaging in and does not intend to engage in a distribution of the New Notes, (iii) the undersigned does not have any arrangement or understanding with any person to participate in the distribution of New Notes, and (iv) neither the undersigned nor any such other person is an "affiliate" (within the meaning of Rule 405 under the Securities Act of 1933, as amended (the "Securities Act")) of the Company or if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Outstanding Notes that were acquired as a result of market-making or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such New Notes. 2 SIGN HERE Name of beneficial owner(s): - -------------------------------------------------------------------------------- SIGNATURE(S) Name(s): - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (PLEASE PRINT) Address: - -------------------------------------------------------------------------------- Telephone number: - -------------------------------------------------------------------------------- Taxpayer Identification or Social Security Number: - -------------------------------------------------------------------------------- Date: - -------------------------------------------------------------------------------- 3 EX-99.3 51 g86000exv99w3.txt EX-99.3 FORM OF LETTER TO REGISTERED HOLDERS EXHIBIT 99.3 O'CHARLEY'S INC. LETTER TO REGISTERED HOLDERS AND DEPOSITORY TRUST COMPANY PARTICIPANTS FOR TENDER OF ALL OUTSTANDING 9% SENIOR SUBORDINATED NOTES DUE 2013 IN EXCHANGE FOR 9% SENIOR SUBORDINATED NOTES DUE 2013 THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON , 2004, UNLESS EXTENDED (THE "EXPIRATION DATE"). NOTES TENDERED IN THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M., EASTERN TIME, ON THE EXPIRATION DATE. To Registered Holders and Depository Trust Company Participants: We are enclosing herewith the material listed below relating to the offer by O'Charley's Inc., a Tennessee corporation (the "Company"), to exchange its 9% Senior Subordinated Notes due 2013 (the "New Notes"), which have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of its issued and outstanding 9% Senior Subordinated Notes due 2013 (the "Outstanding Notes") upon the terms and subject to the conditions set forth in the Company's Prospectus, dated , 2004, and the related Letter of Transmittal (which together constitute the "Exchange Offer"). Enclosed herewith are copies of the following documents: 1. Prospectus, dated , 2004; 2. Letter of Transmittal (together with accompanying Substitute Form W-9 Guidelines); 3. Notice of Guaranteed Delivery; 4. Letter that may be sent to your clients for whose accounts you hold Outstanding Notes in your name or in the name of your nominee; and 5. Letter that may be sent from your clients to you with such client's instruction with regard to the Exchange Offer. We urge you to contact your clients promptly. Please note that the Exchange Offer will expire on the Expiration Date unless extended. The Exchange Offer is not conditioned upon any minimum number of Outstanding Notes being tendered. Pursuant to the Letter of Transmittal, each holder of Outstanding Notes will represent to the Company that (i) the New Notes acquired in exchange for Outstanding Notes pursuant to the Exchange Offer are being acquired in the ordinary course of business of the person receiving such New Notes, (ii) the holder is not engaging in and does not intend to engage in a distribution of the New Notes, (iii) neither the holder nor any such other person has an arrangement or understanding with any person to participate in the distribution of New Notes, and (iv) neither the holder nor any such other person is an "affiliate" (within the meaning of Rule 405 under the Securities Act) of the Company or if it is an affiliate, such holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable. If the holder is a broker-dealer that will receive New Notes for its own account in exchange for Outstanding Notes that were acquired as a result of market-making activities or other trading activities, it must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. The enclosed Letter to Clients contains an authorization by the beneficial owners of the Outstanding Notes for you to make the foregoing representations. The Company will not pay any fee or commission to any broker or dealer or to any other person (other than the Exchange Agent) in connection with the solicitation of tenders of Outstanding Notes pursuant to the Exchange Offer. Additional copies of the enclosed material may be obtained from the undersigned. Very truly yours, O'CHARLEY'S INC. 2 EX-99.4 52 g86000exv99w4.txt EX-99.4 FORM OF NOTICE OF GUARANTEED DELIVERY NOTICE OF GUARANTEED DELIVERY TO TENDER OUTSTANDING 9% SENIOR SUBORDINATED NOTES DUE 2013 OF O'CHARLEY'S INC. PURSUANT TO THE EXCHANGE OFFER AND PROSPECTUS DATED , 2004 As set forth in the Prospectus, dated , 2004 (as the same may be amended or supplemented from time to time, the "Prospectus"), of O'Charley's Inc. (the "Company") under the caption "Exchange Offer -- Guaranteed Delivery Procedures" and in the Letter of Transmittal to tender 9% Senior Subordinated Notes due 2013 of O'Charley's Inc., this form or one substantially equivalent hereto must be used to accept the Exchange Offer (as defined below) if: (i) certificates for outstanding 9% Senior Subordinated Notes due 2013 (the "Outstanding Notes") of the Company are not immediately available, (ii) time will not permit all required documents to reach the Exchange Agent on or prior to the Expiration Date (as defined below), or (iii) the procedures for book-entry transfer cannot be completed on or prior to the Expiration Date. This form may be delivered by facsimile transmission, by registered or certified mail, by hand, or by overnight delivery service to the Exchange Agent. See "Exchange Offer -- Procedures for Tendering" in the Prospectus. THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON , 2004 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS EXTENDED BY THE COMPANY. The Exchange Agent for the Exchange Offer is: THE BANK OF NEW YORK By Mail: By Overnight Courier and Hand Delivery: By Facsimile: The Bank of New York The Bank of New York (212) 298-1915 101 Barclay Street 101 Barclay Street (For Eligible Institutions New York, NY 10286 New York, NY 10286 Only) Attn: Reorganization Department Attn: Reorganization Department Confirm By Telephone: (registered or certified mail ( ) - recommended)

Delivery of this Notice of Guaranteed Delivery to an address other than as set forth above or transmission of instructions via a facsimile transmission to a number other than as set forth above will not constitute a valid delivery. Ladies and Gentlemen: The undersigned hereby tenders to the Company, upon the terms and conditions set forth in the Prospectus and in the Letter of Transmittal (which together constitute the "Exchange Offer"), receipt of which is hereby acknowledged, the principal amount of Outstanding Notes set forth below pursuant to the guaranteed delivery procedures described in the Prospectus and in the Letter of Transmittal. The undersigned understands and acknowledges that the Exchange Offer will expire at 5:00 p.m., Eastern time, on , 2004, unless extended by the Company. All authority herein conferred or agreed to be conferred by this Notice of Guaranteed Delivery shall survive the death or incapacity of the undersigned and every obligation of the undersigned under this Notice of Guaranteed Delivery shall be binding upon the heirs, personal representatives, executors, administrators, successors, assigns, trustees in bankruptcy and other legal representatives of the undersigned.
- ------------------------------------------------------------------------------------------- DESCRIPTION OF OUTSTANDING NOTES TENDERED - ------------------------------------------------------------------------------------------- CERTIFICATE NUMBER(S) (IF KNOWN) OF OUTSTANDING NOTES OR ACCOUNT NUMBER AGGREGATE PRINCIPAL AMOUNT AGGREGATE PRINCIPAL AMOUNT AT THE BOOK-ENTRY FACILITY REPRESENTED TENDERED - ------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------- - ----------------------------------------------------------------------------- - ----------------------------------------------------------------------------- Total: Total: - -------------------------------------------------------------------------------------------
PLEASE SIGN AND COMPLETE Signature(s): Name(s): --------------------------------------- ------------------------------------------ Address: Capacity (full title), if signing in a representative -------------------------------------------- capacity: -------------------------------------------- -------------------------------------------- (ZIP CODE) Area Code and Telephone Number: - ------------------------------------------------------------------------------------------------------------ Dated: Taxpayer Identification or Social Security ---------------------------------------------- Number: -------------------------------------------

THE GUARANTEE ON THE FOLLOWING PAGE MUST BE COMPLETED 2 GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEES) The undersigned, being a member firm of a registered national securities exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office or correspondent in the United States, or an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended, hereby guarantees (a) that the above named person(s) "own(s)" the Outstanding Notes tendered hereby within the meaning of Rule 14e-4 ("Rule 14e-4") under the Securities Exchange Act of 1934, as amended, (b) that such tender of such Outstanding Notes complies with Rule 14e-4, and (c) to deliver to the Exchange Agent the certificates representing the Outstanding Notes tendered hereby or confirmation of book-entry transfer of such Outstanding Notes into the Exchange Agent's account at The Depository Trust Company, in proper form for transfer, together with the Letter of Transmittal (or facsimile thereof), properly completed and duly executed, with any required signature guarantees and any other required documents, within three New York Stock Exchange trading days after the Expiration Date. Name of Firm: - -------------------------------------------------------------------------------- Address: - -------------------------------------------------------------------------------- Area Code and Telephone No.: - -------------------------------------------------------------------------------- Authorized Signature: - -------------------------------------------------------------------------------- Name: - -------------------------------------------------------------------------------- Title: - -------------------------------------------------------------------------------- Dated: - -------------------------------------------------------------------------------- NOTE: DO NOT SEND CERTIFICATES OF OUTSTANDING NOTES WITH THIS FORM. CERTIFICATES OF OUTSTANDING NOTES SHOULD BE SENT ONLY WITH A LETTER OF TRANSMITTAL. 3 GRAPHIC 54 g86000pi20-79.gif GRAPHIC begin 644 g86000pi20-79.gif M1TE&.#EAI0`T`/<``/___\S__YG__V;__S/__P#____,_\S,_YG,_V;,_S/, M_P#,__^9_\R9_YF9_V:9_S.9_P"9__]F_\QF_YEF_V9F_S-F_P!F__\S_\PS M_YDS_V8S_S,S_P`S__\`_\P`_YD`_V8`_S,`_P``____S,S_S)G_S&;_S#/_ MS`#_S/_,S,S,S)G,S&;,S#/,S`#,S/^9S,R9S)F9S&:9S#.9S`"9S/]FS,QF MS)EFS&9FS#-FS`!FS/\SS,PSS)DSS&8SS#,SS``SS/\`S,P`S)D`S&8`S#,` MS```S/__F("`@(B(B)"0D)B8F*"@ MH*BHJ+"PL+BXN,#`P,C(R-#0T-C8V.#@X.CHZ/#P\/CX^``````````````` M`````````````````````"'Y!`$`````+`````"E`#0`!PC_``$('$BPH,&# M"!,J7,BPH<.'$"-*G$BQHL6+&#-J1"@/G96-($.*'`F17;9KU\J17,FRI<:3 M*%FYG$FS9D)W*&-&I+?"IL^?$7'F#!21U35V0),J15@.)M*"\MRA0_>M:KBI MWU"&6\JU*\YO`^E9";0MI]FS*.EU70LT4#9Y`.2Y14O7+#JV>&FRV[:"7B"Z MK-"Y&RC/2M:<,O,J)KD"'3V3:`/!1>@.YK7)>?NVI.<.\T\K:%D-7DC/Z.6" M4JE6#82NITNQ9>^NM.*T9>%R57/_/1M(;4.QK@%8"6<9[;;1(^4US?DTN=FM M)`W7C3R1'KKBK,I-)6X6^49WX=#Z_QZ)[OE(*V5S;ON6/O3$ZSFSH?,,H+3Z MD-;=KRR?4_9&>8==(Q]F[-#5G$/RF(92.>,5!%I.WFGT8$XJK41/>"C1=Q%D M,34(@()F;0/1"I:)II`\9@4'TFXH'4A2>409Y,Z,'C(TX36L>%C.=!\U)!1* MO3&T(XXOFE6C2-OD*)!8X;074X\VFI6-ARM,=PUT"\EC68P^NG-D1@$FQA(Z M2LI5'%H5*O0C2E`.%&!=#07(95>6I4F25/4->4UN9PI(FI,B0F4E2BH>-.$V M7_Y4)7.;`0#9-R[R9]9"++)ID)[316A0>Q]Q-J.7#JWPJ4:27E/C"KB5M9YC M2W[J*HU,"?_HXD`W@I40BE(>Y"1*9VI*T(WH19:H=&>%4ZB#VU3HSF%*`H`A MD02M\*:4/95ZEG]A_<6*A@0-R9="F*9DT*)F5766KP/M6I>M!:V@;GQ'!KLG M@-<*5.>O\0D&'Z_TV'?6-FTN:52S`(Q:$$\,G7FLM4>!>`VZPOTKF%1GN5BK M.RL4V!]JTQH(`+E'#20IP:7>Y2]*B!XT<+]DGI7=-MBJ>58V!SV+,@!H'>NF M64$.A"FV:\YI&;L%T_6-%>X$4M53I?IVHV=!"W3C-0?]]=:^V97CL$/68DG0 MKD2AE1#(*1-4LMDYA=.@>6$Y'#-!80JD9;FYL5>N0"!37=!NC4'_2)`\SSID M\S5OXWP6TL4.E'3'"UYJUH$7!E:0QBC%3,_="9E58:6#LGLNOM=802[1`^WF MT+2:YOVPM9TRSC9!('*+FLTN7IY3P`2MB12N.=7M>U50@HB<4"KI639!]CFT MJX9K$NIPOP[71;#M-Q\D%EETT;>F[``TW3WF#=DLV]RVO@FP00@W)+:,:/$. M)`"0J9UD.9=Z2QP M.=-';*8@Z/R,('N)3SEZ19=CJ8Y@1R%ITAI'Y;X4]P&/8RS M$G2<%*/BK(!$&?I0BFAEE_&4:E;MF=5`_^J'%)#1["%&U!BV3E87W"4D7!IR M7_:DMK&/G44@_&%0K@1"Q(*\R4/NXUZEU+(FTOWJ6P2AB]=$UB>S*!"#%3N( ME;`5%0,44_>%2AJUF4\9OHCJQ)B.R<^1T4):AQ%\#:+4P+0S[D2,4`]F&GDN M)G=6\(RVOM08=CCR+$=3BU>G,M5VGHD5)DRH:G4 M"NRPJD16$#W)+&1?;&VK)WMWDFS,=95>)8I>)9*?T`AF/!F;BX`6*MB"L!"- M%RF'%?QR6(O(I:6\*6MEYY8OT39$IV_,"),&%9C45A9Y.A7,:QV2FMP37(6G 2L\VM;G?+V][Z]K?`M4E````[ ` end -----END PRIVACY-ENHANCED MESSAGE-----


Tennessee	5812	62-1192475
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)






		Proposed Maximum	Proposed Maximum	Amount of
Title of Each Class of	Amount	Offering	Aggregate	Registration
Securities to be Registered	to be Registered	Price Per Unit(1)	Offering Price(1)	Fee(1)


9% Senior Subordinated Notes due 2013	$125,000,000	100%	$125,000,000	$15,838
Guarantees of 9% Senior Subordinated Notes due 2013(2)	—	—	—	—
Total	$125,000,000	100%	$125,000,000	$15,838


Tennessee	4812	62-1489922
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Tennessee	3119	62-1720174
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Tennessee	5511	74-2997021
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Tennessee	5511	62-1720173
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Delaware	7221	62-1720172
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Tennessee	5511	62-1795132
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Alabama	7221	72-1368015
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Delaware	5511	51-0367532
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Colorado	5419	74-3021441
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Delaware	3119	48-1289672
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Delaware	7221	82-0573653
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Delaware	7221	82-0573657
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Massachusetts	5511	82-0573656
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)



											40 Weeks Ended
		Fiscal Years
											October 6,			October 5,
		2000(1)			2001			2002(2)			2002			2003(3)


		(Dollars in thousands)
Statement of Earnings Data:
Revenues		$	377,262		$	444,931		$	499,912		$	381,395		$	576,018
Costs of restaurant and commissary sales			292,668			347,667			385,137			295,425			463,820
Advertising, general and administrative expenses			24,480			29,979			37,677			27,858			41,385
Income from operations			37,207			33,698			46,497			34,669			37,855
Interest expense, net			7,398			6,610			5,556			4,205			10,425
Other expense (income), net			24			189			(118	)		(87	)		(98	)
Earnings before cumulative effect of change in accounting principle			19,360			17,552			26,791			19,935			18,416
Net earnings			19,360			17,552			20,668			13,812			18,416
Other Data:
Restaurants in operation at end of period:
	O’Charley’s		138			161			182			178			205
	Ninety Nine		—			—			—			—			85
	Stoney River		2			3			6			5			6
Same store sales increase (decrease) over prior period:(4)
	O’Charley’s		2.6	%		2.1	%		(0.1	)%		(0.1	)%		(2.6	)%
	Ninety Nine		—			—			—			—			1.7	%
	Stoney River		—			—			0.6	%		0.6	%		(0.7	)%
Balance Sheet Data (at end of period):
Cash and cash equivalents		$	2,552		$	6,369		$	8,311		$	1,181		$	3,175
Working capital (deficit)(5)			(20,185	)		(15,222	)		(21,417	)		(18,683	)		(24,761	)
Property and equipment, net			274,271			330,553			381,553			373,221			465,072
Total assets			311,018			383,430			428,791			414,413			645,242
Long-term debt, including current portion			92,442			89,306			98,181			103,283			223,230
Capitalized lease obligations, including current portion			29,802			32,623			33,921			29,867			42,833
Total shareholders’ equity			143,490			204,202			229,964			222,164			298,925



											40 Weeks Ended
		Fiscal Years
											October 6,			October 5,
		2000(1)			2001			2002(2)			2002			2003(3)


		(Dollars in thousands)
Other Financial Data:
Depreciation and amortization		$	18,202		$	22,135		$	25,527		$	19,300		$	27,423
EBITDA(6)		$	55,385		$	55,644		$	72,142		$	54,056		$	65,376
Net cash provided by (used in):
	Operating activities	$	40,010		$	46,708		$	64,893		$	42,341		$	44,610
	Investing activities	$	(72,296	)	$	(72,972	)	$	(68,776	)	$	(58,887	)	$	(166,619	)
	Financing activities	$	31,660		$	30,081		$	5,825		$	11,358		$	116,873
Capital expenditures		$	56,796		$	73,467		$	69,711		$	60,017		$	54,596
Rent expense		$	6,886		$	8,031		$	8,406		$	6,485		$	15,779



								40 Weeks Ended
		Fiscal Years
								October 6,		October 5,
		2000		2001		2002		2002		2003


		(In thousands)
Cash flows provided by operating activities		$	40,010	$	46,708	$	64,893	$	42,341	$	44,610
Add:
	Changes in working capital items excluding changes in accrued current income taxes and accrued interest		15,375		8,936		7,249		11,715		20,766

EBITDA		$	55,385	$	55,644	$	72,142	$	54,056	$	65,376


Vermont	7221	82-0573655
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Massachusetts	7221	04-2580280
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Delaware	5511	74-2990687
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Delaware	5511	30-0141495
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


Georgia	7221	36-4370600
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)


PROSPECTUS SUMMARY
RISK FACTORS
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS AND MARKET DATA
THE EXCHANGE OFFER
USE OF PROCEEDS
CAPITALIZATION
SELECTED CONSOLIDATED FINANCIAL INFORMATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
BUSINESS
DESCRIPTION OF CERTAIN INDEBTEDNESS
DESCRIPTION OF THE NOTES
PLAN OF DISTRIBUTION
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
LEGAL MATTERS
EXPERTS
WHERE YOU CAN FIND ADDITIONAL INFORMATION
INCORPORATION OF INFORMATION BY REFERENCE
Ex-3.3 Charter of Air Travel Services, Inc.
Ex-3.4 Amendment to Charter/Air Travel Services
Ex-3.5 Bylaws of Air Travel Services, Inc.
Ex-3.6 Charter of DFI, Inc.
Ex-3.7 Bylaws of DFI, Inc.
Ex-3.8 Charter of O'Charley's Finance Company, INC
Ex-3.9 Bylaws of O'Charley's Finance Company
Ex-3.10 Charter of O'Charley's Management Company
Ex-3.10 Bylaws of O'Charley's Management Company
Ex-3.12 Certificate of Formation O'Charley's
Ex-3.13 Operating Agreement of O'Charley's
Ex-3.14 Charter of O'Charley's Service Company
Ex-3.15 Bylaws of O'Charley's Service Company
Ex-3.16 Articles of Incorporation of O'Charley's
Ex-3.17 Bylaws of O'Charley's Sports Bar, Inc.
Ex-3.18 Certificate of Incorporation of OCI, Inc.
Ex-3.19 Bylaws of OCI, Inc.
Ex-3.20 Articles of Incorporation Of OPI, Inc.
Ex-3.21 Bylaws of OPI, Inc.
Ex-3.22 Certificate of Formation of 99 Commissary
Ex-3.23 Operating Agreement of 99 Commissary, LLC
Ex-3.24 Certificate of Formation of 99 Restaurants
Ex-3.25 Operating Agreement of 99 Restaurants, LLC
Ex-3.26 Certificate of Formation of 99 Restaurants
Ex-3.27 Op. Agmt. of 99 Restaurants of Boston, LLC
Ex-3.28 Declaration of Trust of 99 Restaurants
Ex-3.29 By-laws of 99 Restaurants of Massachusetts
Ex-3.30 Articles of Organization of 99 Restaurants
Ex-3.31 Operating Agreement of 99 Restaurants
Ex-3.32 Articles of Organization of 99 West, Inc.
Ex-3.33 Articles of Merger
Ex-3.34 Bylaws of 99 West, Inc.
Ex-3.35 Certificate of Incorporation
Ex-3.36 Bylaws of Stoney River Management Company
Ex-3.37 Certificate of Formation of Stoney River
Ex-3.38 Operating Agreement of Stoney River, LLC
Ex-3.39 Certificate of Limited Partnership
Ex-3.40 Amendment to Certificate
Ex-3.41 Agreement of Limited Partnership
EX-4.3 FORM OF 9%SENIOR SUBORDINATED EXCHANGE NOTE
EX-5 OPINION OF BASS, BERRY & SIMS PLC
Ex-10.1 Form of Lease Agreement
Ex-12 Statement regarding computation of ratios
Ex-23.1 Consent of KPMG LLP
EX- 23.2 CONSENT OF KPMG LLP
Ex-25 Statement of Eligibility on Form T-1
Ex-99.1 Letter of Transmittal
Ex-99.2 Form of Letter to Clients
Ex-99.3 Form of Letter to Registered Holders
Ex-99.4 Form of Notice of Guaranteed Delivery


	Page

Prospectus Summary		1
Risk Factors		11
Cautionary Note Regarding Forward-Looking Statements and Market Data		23
The Exchange Offer		25
Use of Proceeds		35
Capitalization		36
Selected Consolidated Financial Information		38
Unaudited Pro Forma Condensed Consolidated Financial Statements		41
Management’s Discussion and Analysis of Financial Condition and Results of Operations		45
Business		65
Description of Certain Indebtedness		72
Description of the Notes		73
Plan of Distribution		116
Certain U.S. Federal Income Tax Considerations		117
Legal Matters		119
Experts		119
Where You Can Find Additional Information		119
Incorporation of Information by Reference		119


Outstanding Notes		9% senior subordinated notes due 2013, which were issued on November 4, 2003.

New Notes		9% senior subordinated notes due 2013, which have been registered under the Securities Act.

Exchange Offer		We are offering to exchange new notes for outstanding notes. The exchange offer is not conditioned on a minimum aggregate principal amount of the outstanding notes being tendered.

Expiration Date		The exchange offer will expire at 5:00 p.m., Eastern time, on , 2004, unless we decide to extend it.


Procedures for Tendering Outstanding Notes		To participate in the exchange offer, you must complete, sign and date the letter of transmittal and send it, together with all other documents required by the letter of transmittal, including the outstanding notes that you wish to exchange, to The Bank of New York, as exchange agent, at the address indicated on the cover page of the letter of transmittal. In the alternative, you can tender your outstanding notes by following the procedures for book-entry transfer described in this prospectus.

		If your outstanding notes are held through The Depository Trust Company, or DTC, and you wish to participate in the exchange offer, you may do so through the automated tender offer program of DTC. If you tender under this program, you will agree to be bound by the letter of transmittal that we are providing with this prospectus as though you had signed the letter of transmittal.

		If a broker, dealer, commercial bank, trust company or other nominee is the registered holder of your outstanding notes, we urge you to contact that person promptly to tender your outstanding notes in the exchange offer.

		For more information on tendering your outstanding notes, see “The Exchange Offer — Terms of the Exchange Offer,” “— Procedures for Tendering” and “— Book-Entry Transfer.”

Guaranteed Delivery Procedures		If you wish to tender your outstanding notes and you cannot get your required documents to the exchange agent on time, you may tender your outstanding notes according to the guaranteed delivery procedures described in “The Exchange Offer — Guaranteed Delivery Procedures.”

Withdrawal of Tenders		You may withdraw your tender of outstanding notes at any time prior to the expiration date of the exchange offer. To withdraw, you must deliver a written or facsimile transmission notice of withdrawal to the exchange agent at its address indicated on the cover page of the letter of transmittal before 5:00 p.m., Eastern time, on the expiration date of the exchange offer.

Acceptance of Outstanding Notes and Delivery of New Notes		If you fulfill all conditions required for proper acceptance of outstanding notes, we will accept any and all outstanding notes that you properly tender in the exchange offer on or before 5:00 p.m., Eastern time, on the expiration date. We will return any outstanding notes that we do not accept for exchange to you promptly after the expiration date and acceptance of the outstanding notes for exchange. See “The Exchange Offer — Terms of the Exchange Offer.”

Broker-Dealers		Each broker-dealer registered as such under the Exchange Act that receives new notes for its own account in exchange for outstanding notes, when such outstanding notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of those new notes. See “Plan of Distribution.”


Fees and Expenses		We will bear all expenses related to the exchange offer. See “The Exchange Offer — Fees and Expenses.”

Use of Proceeds		We will not receive any proceeds from the issuance of the new notes. We are making this exchange offer solely to satisfy our obligations under the registration rights agreement.

Consequences of Failure to Exchange Outstanding Notes		If you do not exchange your outstanding notes in this exchange offer, you will no longer be able to require us to register the outstanding notes under the Securities Act, except in the limited circumstances provided under the registration rights agreement. In addition, you will not be able to resell, offer to resell or otherwise transfer the outstanding notes unless we have registered the outstanding notes under the Securities Act, or unless you resell, offer to resell or otherwise transfer the outstanding notes under an exemption from the registration requirements of, or in a transaction not subject to, the Securities Act.

U.S. Federal Income Tax Considerations		The exchange of the new notes for the outstanding notes in the exchange offer should not be a taxable event for U.S. federal income tax purposes. See “Certain U.S. Federal Income Tax Considerations.”

Exchange Agent		We have appointed The Bank of New York as exchange agent for the exchange offer. You should direct questions and requests for assistance, requests for additional copies of this prospectus or the letter of transmittal and requests for the notice of guaranteed delivery to the exchange agent addressed as follows: The Bank of New York, 101 Barclay Street, New York, New York 10286, Attention: Reorganization Department. Eligible institutions may make requests by facsimile at (212) 298-1915.


Issuer		O’Charley’s Inc., a Tennessee corporation.

Notes Offered		$125,000,000 aggregate principal amount of 9% Senior Subordinated Notes due 2013.

Maturity Date		November 1, 2013.

Interest Payment Dates		May 1 and November 1 of each year, beginning May 1, 2004.

Guarantees		The new notes will be guaranteed, jointly and severally, on an unsecured, senior subordinated basis by certain of our current subsidiaries and by all of our future domestic subsidiaries, if any, that guarantee any indebtedness, as defined in the indenture


	restricted subsidiaries, as defined in the indenture governing the notes, to:


		• incur additional debt or issue preferred stock;

		• pay dividends or make other distributions on, redeem or repurchase capital stock;

		• make investments or other restricted payments;

		• restrict dividends or other payments from subsidiaries;

		• enter into transactions with affiliates;

		• engage in sale and lease-back transactions;

		• sell, transfer or issue shares of capital stock of restricted subsidiaries;

		• sell assets;

		• create liens on assets; and

		• effect a consolidation, liquidation or merger.

		These covenants are subject to important exceptions and qualifications that are described in this prospectus in “Description of the Notes — Certain Covenants.”

Transfer Restrictions		The new notes have been registered under the Securities Act and generally will be freely transferable. We do not intend to list the new notes on any securities exchange or other trading market.

Use of Proceeds		We will not receive any proceeds from the issuance of the new notes. We are making the exchange offer solely to satisfy our obligations under the registration rights agreement.

Trading Market		There is no established trading market for the new notes.


	*Changing consumer preferences and discretionary spending patterns could force us to modify our concepts and menus and could result in a reduction in our revenues.*


	Same store sales at our O’Charley’s restaurants have declined, and initiatives we have implemented at our O’Charley’s restaurants to improve our same store sales have resulted in increased costs and could continue to adversely affect our results of operations.


	A recent outbreak of Hepatitis A affecting customers and employees of a Knoxville, Tennessee O’Charley’s restaurant has adversely affected our customer traffic, negatively impacted our results of operations and resulted in litigation against us, and we may be further impacted by another outbreak of Hepatitis A linked to restaurants in Georgia, including two O’Charley’s restaurants.


	*Our continued growth depends on our ability to open new restaurants and operate our new restaurants profitably, which in turn depends upon our continued access to capital.*


	*We may not be able to successfully integrate the operations of Ninety Nine Restaurant and Pub, which could adversely affect our business, financial condition and results of operations.*


	*Our growth may strain our management and infrastructure, which could slow our development of new restaurants and adversely affect our ability to manage existing restaurants.*


	*Unanticipated expenses and market acceptance could affect the results of restaurants we open in new and existing markets.*