exhibit10-38.htm


    Exhibit
10.38

    


    SPLIT-DOLLAR
AGREEMENT

    


                THIS
AGREEMENT made and entered into this 12th day of August, 2008, effective as of
March 30, 2006 by and between OSI RESTAURANT PARTNERS, LLC (formerly known as
OUTBACK STEAKHOUSE, INC)., with principal offices and place of business in the
State of Florida (hereinafter referred to as the "Company") and JOSEPH J. KADOW
(hereinafter referred to as the "Employee"),

    


                 WITNESSETH
THAT:

    


                 WHEREAS,
the Employee is employed by the Company;

    


                 WHEREAS,
the Employee wishes to provide life insurance protection for his family in the
event of his death, under life insurance policy number 90848002, insuring the
life of the Employee, with a face amount of $5,236,268 as of January 31, 2008
(the "Policy"), which is described in Exhibit A attached hereto and by this
reference made a part hereof, and which was issued by John Hancock Variable Life
Insurance Company (the "Insurer");

    


                 WHEREAS,
the Company is willing to pay the premiums due on the Policy as an additional
employment benefit for the Employee, on the terms and conditions hereinafter set
forth;

    


                 WHEREAS,
the Company is the owner of the Policy and, as such, possesses all incidents of
ownership in and to the Policy, except as otherwise provided herein;
and

    


                 WHEREAS,
the Company wishes to retain such ownership rights, in order to secure the
repayment of the amount due it hereunder;

    


                 NOW,
THEREFORE, in consideration of the premises and of the mutual promises contained
herein, the parties hereto agree as follows:


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    1.           Purchase
of Policy. The Company has purchased the Policy from the Insurer in the
total face amount of $5,236,268 (as of January 31, 2008) and Increasing Death
Benefit Option (as such term is defined in the Policy). The parties hereto have
taken all necessary action to cause the Insurer to issue the Policy, and shall
take any further action which may be necessary to cause the Policy to conform to
the provisions of this Agreement. The parties hereto agree that the Policy shall
be subject to the terms and conditions of this Agreement and of the endorsement
to the Policy or beneficiary designation filed with the Insurer in accordance
herewith.

    


    2.           Ownership
of Policy. The Company shall be the sole and absolute owner of the
Policy, and may exercise all ownership rights granted to the owner thereof by
the terms of the Policy, except as may otherwise be provided
herein.

    


    3.           Designation
of Policy Beneficiary/Endorsement. The Company has executed a beneficiary
designation for and/or an endorsement to the Policy, using the form required by
the Insurer, naming itself as the beneficiary of the Policy death proceeds in an
amount equal to the greater of the total amount of the premiums paid by it
hereunder or the cash value of the Policy (excluding surrender charges or other
similar charges or reductions), and naming the beneficiary or beneficiaries
selected by the Employee as the beneficiary or beneficiaries of any balance of
the death proceeds provided under the Policy.

    


    4.           Election
of Settlement Option. The Employee may select the beneficiary or
beneficiaries to receive the portion of policy proceeds to which the Employee is
entitled hereunder, as well as the settlement option for payment of the death
benefit provided under the Policy in excess of the amount due the Company
hereunder, by specifying the same in a written notice to the Company. Upon
receipt of such notice, the Company shall promptly execute and deliver to the
Insurer the endorsement or beneficiary designation for such Policy under the
form


    
      
         


      

      
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    used by
the Insurer thereunder, to elect the requested settlement option and to
designate the requested person, persons or entity as the beneficiary or
beneficiaries to receive the death proceeds of the Policy in excess of the
amount to which the Company is entitled hereunder. The parties hereto agree to
take all action necessary to cause the beneficiary designation and settlement
option provisions of the Policy to conform to the provisions hereof. The Company
shall not terminate, alter or amend such endorsement or beneficiary designation
without the express written consent of the Employee.

    


    5.           Payment
of Premiums. On or before the due date of each Policy premium, or within
the grace period provided therein, the Company shall pay the full amount of the
annual premium on the Policy to the Insurer, and shall, upon request, promptly
furnish the Employee evidence of timely payment of such premium. Subject to the
acceptance of such amount by the Insurer, the Company may, in its discretion, at
anytime and from time to time, make additional premium payments on the Policy.
The Company shall annually furnish the Employee a statement of the amount of
income reportable by the Employee for any Federal, state or local taxes, as
applicable, as a result of the insurance protection provided the Policy
beneficiary or beneficiaries hereunder.

    


    6.           Additional
Payment to Employee. Upon the Employee reaching 65 years of age and while
this Agreement is still in existence, the Company shall pay to the Employee, on
or before March 15"' of each year, as additional compensation, an amount equal
to the estimated Federal, state and local taxes, as applicable, on the amount of
income reportable by the Employee as a result of the insurance protection
provided the Policy beneficiary or beneficiaries hereunder for the immediately
preceding calendar year assuming the highest Federal, state and local tax,
income tax bracket for a married individual or single individual as the case may
be.


    
      
         


      

      
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    7.           Limitations
on Company's Rights in Policy. Notwithstanding any other provision hereof
or of the Policy, the Company shall not sell, assign, transfer, surrender or
cancel the Policy, change the beneficiary designation of the Policy, change the
Death Benefit Option provision, or decrease the Face Amount of Insurance Death
Benefit, without, in any such case, the express written consent of the
Employee.

    


    8.           Policy
Loans.

    


    a.           The
Company may pledge or assign the Policy, subject to the terms and conditions of
this Agreement, for the sole purpose of securing a loan from the Insurer or from
a third party. The amount of such loan, including accumulated interest thereon,
shall not exceed the lesser of (i) the cumulative amount of premiums on the
Policy paid by the Company hereunder, less any portion thereof previously
recovered by the Company through a loan from or against or a withdrawal from the
Policy permitted hereunder; or (ii) the cash surrender value of the Policy (as
defined therein) as of the date to which premiums have been paid. Interest
charges on such loan shall be paid by the Company. If the Company so encumbers
the Policy, other than by a policy loan from the Insurer, then, upon the death
of the Employee or upon the election of the Employee hereunder to purchase the
Policy from the Company, the Company shall promptly repay such loan from the
death proceeds of the Policy or the amount received from the Employee for the
purchase of the Policy, as the case may be, and thereafter shall promptly take
all action necessary to secure the release or discharge of such
encumbrance.

    


    b.           The
Company may make withdrawals from the Policy, subject to the terms and
conditions hereof. The amount of any such withdrawal shall not exceed the lesser
of:  (i) the
amount of the premiums on the Policy paid by the Company hereunder, less any
portion thereof previously recovered by the Company through a loan from or
against or a withdrawal permitted


    
      
         


      

      
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    hereunder;
or (ii) the cash surrender value of the Policy (as defined therein) as of the
date to which premiums have been paid, and shall reduce the amount to which the
Company would otherwise be entitled hereunder.

    


    9.           Collection
of Death Proceeds.

    


    a.           Upon
the death of the Employee, the Company shall cooperate with the beneficiary or
beneficiaries designated by the Company at the direction of the Employee to take
whatever action is necessary to collect the death benefit provided under the
Policy; when such benefit has been collected and paid as provided herein, this
Agreement shall thereupon terminate.

    


    b.           Upon
the death of the Employee, the Company shall have the unqualified right to
receive a portion of such death benefit equal to the greater of: 
(1) the
total amount of the premiums paid by it hereunder reduced by any indebtedness
against the Policy incurred by the Company hereunder existing at the death of
the Employee, including any interest due on such indebtedness, or any
withdrawals made by the Company from the Policy; (2) or
the cash value of the Policy, net of any loans from the Insurer or withdrawals
permitted hereunder (excluding surrender charges or other similar charges or
reductions) immediately before the death of the Employee. The balance of the
death benefit provided under the Policy, if any, shall be paid directly to the
beneficiary or beneficiaries designated by the Company at the direction of the
Employee, in the manner and in the amount or amounts provided in the endorsement
or beneficiary designation provision of the Policy. In no event shall the amount
payable to the Company hereunder exceed the death proceeds payable under the
Policy at the death of the Employee. No amount shall be paid from such death
benefit to the beneficiary or beneficiaries designated by the Company at the
direction of the Employee, until the full amount due the


    
      
         


      

      
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    Company
hereunder has been paid. The parties hereto agree that the beneficiary
designation provision of the Policy shall conform to the provisions
hereof.

    


    c.           Notwithstanding
any provision hereof to the contrary, in the event that, for any reason
whatsoever, no death benefit is payable under the Policy upon the death of the
Employee and in lieu thereof the Insurer refunds all or any part of the premiums
paid for the Policy, the Company and the Employee's beneficiary or beneficiaries
shall have the unqualified right to share such premiums based on their
respective cumulative contributions thereto.

    


    10.           Termination
of the Agreement During the Employee's Lifetime.

    


    a.           This
Agreement shall terminate, during the Employee's lifetime, without notice, upon
bankruptcy, receivership or dissolution of the Company.

    


    b.           In
addition, either party may terminate this Agreement while no premium under the
Policy is overdue, by written notice to the other party; provided that the
Company shall have no power to terminate this Agreement.

    


    11.           Disposition
of the Policy on Termination of the Agreement During the Employee’s
Lifetime.

    


    a.           For
sixty (60) days after the date of the termination of this Agreement during the
Employee's lifetime, the Employee shall have the assignable option to purchase
the Policy from the Company. The purchase price for the Policy shall be (i) the
cumulative amount of the premium payments made by the Company hereunder, less
any portion thereof previously recovered by the Company as a result of a loan
from or against or a withdrawal from the Policy permitted hereunder, or (ii) the
then cash value of the Policy, net of any loans from the Insurer or withdrawals
(excluding surrender charges or other similar charges or reductions), less any
indebtedness incurred by the Company secured by the Policy which remains
outstanding as of the


    
      
         


      

      
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    date of
such termination, including any interest due on such indebtedness, or any
withdrawals made by the Company from the Policy. In no event shall the amount
payable to the Company hereunder exceed the death proceeds payable under the
Policy at the death of the Employee. Upon receipt of such amount, the Company
shall transfer all of its right, title and interest in and to the Policy to the
Employee or his assignee, by the execution and delivery of an appropriate
instrument of transfer.

    


    b.           If
the Employee or its assignee fails to exercise such option within such sixty
(60) day period, then, the Company may enforce its right to be repaid the amount
due it hereunder by surrendering or canceling the Policy for its cash surrender
value, or it may change the beneficiary designation provisions of the Policy,
naming itself or any other person or entity as revocable beneficiary thereof, or
exercise any other ownership rights in and to the Policy, without regard to the
provisions hereof.

    Thereafter,
neither the Employee nor his assigns or beneficiaries shall have any further
interest in and to the Policy, either under the terms thereof or under this
Agreement.

    


    12.           Insurer
Not a Party. The Insurer shall be fully discharged from its obligations
under the Policy by payment of the Policy death benefit to the beneficiary or
beneficiaries named in the Policy, subject to the terms and conditions of the
Policy. In no event shall the Insurer be considered a party to this Agreement,
or any modification or amendment hereof. No provision of this Agreement, nor of
any modification or amendment hereof, shall in any way be construed as
enlarging, changing, varying, or in any other way affecting the obligations of
the Insurer as expressly provided in the Policy, except insofar as the
provisions hereof are made a part of the Policy by the beneficiary designation
executed by the Company and filed with the Insurer in connection
herewith.


    
      
         


      

      
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    13.           Assignment
by Employee. Notwithstanding any provision hereof to the contrary, the
Employee shall have the right to absolutely and irrevocably assign by gift all
of his right, title and interest in and to this Agreement and the rights it
provides in and to the Policy to an assignee. This right shall be exercisable by
the execution and delivery to the Corporation of a written assignment, in
substantially the form attached hereto as Exhibit B, which by this reference is
made a part hereof. Upon receipt of such written assignment executed by the
Employee and duly accepted by the assignee thereof, the Corporation shall
consent thereto in writing, and shall thereafter treat the Employee's assignee
as the sole owner of all of the Employee's right, title and interest in and to
this Agreement and in and to the Policy. Thereafter, the Employee shall have no
right, title or interest in and to this Agreement or the Policy, all such rights
being vested in and exercisable only by such assignee.

    


    14.           Named
Fiduciary, Determination of Benefits, Claims Procedure and
Administration.

    


    a.           Named
Fiduciary. The Company is hereby designated as the named fiduciary under
this Agreement. The named fiduciary shall have authority to control and manage
the operation and administration of this Agreement, and it shall be responsible
for establishing and carrying out a funding policy and method consistent with
the objectives of this Agreement.

    


    b.           Claim.
A person who believes that he or she is being denied a benefit to which he or
she is entitled (hereinafter referred to as "Claimant"), or his or her duly
authorized representative, may file a written request for such benefit with the
Chief Legal Officer of the Company (the "First Level Reviewer") setting forth
his or her claim. Such claim must be addressed to the Chief Legal Officer of the
Company, at its then principal place of business.


    
      
         


      

      
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    c.           Claim
Decision. Upon receipt of a claim, the First Level Reviewer shall advise
the Claimant that a reply will be forthcoming within a reasonable period of
time, but ordinarily not later than ninety (90) days, and shall, in fact,
deliver such reply within such period. However, the First Level Reviewer may
extend the reply period for an additional ninety (90) days for reasonable cause.
If the reply period will be extended, the First Level Reviewer shall advise the
Claimant in writing during the initial ninety (90) day period indicating the
special circumstances requiring an extension and the date by which the First
Level Reviewer expects to render the benefit determination.

    


                If
the claim is denied in whole or in part, the First Level Reviewer will render a
written opinion, using language calculated to be understood by the Claimant,
setting forth:

    


    (1)           the
specific reason or reasons for the denial;

    


    (2)           the
specific references to pertinent provisions of the Agreement on which the denial
is based;

    


    (3)           a
description of any additional material or information necessary for the Claimant
to perfect the claim and an explanation as to why such material or such
information is necessary;

    


    (4)           appropriate
information as to the steps to be taken if the Claimant wishes to submit the
claim for review, including a statement of the Claimant's right to bring a civil
action under Section 502(a) of ERISA following an adverse benefit determination
on review; and

    


    (5)           the
time limits for requesting a review of the denial under Section 14(c) hereof and
for the actual review of the denial under Section 14(d) hereof.


    
      
         


      

      
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    d.           Request
for Review. Within sixty (60) days after the receipt by the Claimant of
the written opinion described above, the Claimant may request in writing that
the Chairman of the Compensation Committee of the Board of Directors of the
Company (the "Second Level Reviewer") review the First Level Reviewer's prior
determination. Such request must be addressed to the Chairman of the
Compensation Committee of the Board of Directors of the Company, at its then
principal place of business. The Claimant or his or her duly authorized
representative may submit written comments, documents, records or other
information relating to the denied claim, which such information shall be
considered in the review under this subsection without regard to whether such
information was submitted or considered in the initial benefit
determination.

    


                The
Claimant or his or her duly authorized representative shall be provided, upon
request and free of charge, reasonable access to, and copies of, all documents,
records and other information which (i) was relied upon by the First Level
Reviewer in making its initial claims decision, (ii) was submitted, considered
or generated in the course of the First Level Reviewer making its initial claims
decision, without regard to whether such instrument was actually relied upon by
the First Level Reviewer in making its decision or (iii) demonstrates compliance
by the First Level Reviewer with its administrative processes and safeguards
designed to ensure and to verify that benefit claims determinations are made in
accordance with this Agreement and that, where appropriate, the provisions of
this Agreement have been applied consistently with respect to similarly situated
claimants. If the Claimant does not request a review of the First Level
Reviewer's determination within such sixty (60) day period, he or she shall be
barred and estopped from challenging such determination.


    
      
         


      

      
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    e.           Review of
Decision. Within a reasonable period of time, ordinarily not later than
sixty (60) days, after the Second Level Reviewer's receipt of a request for
review, it will review the First Level Reviewer's prior determination. If
special circumstances require that the sixty (60) day time period be extended,
the Second Level Reviewer will so notify the Claimant within the initial sixty
(60) day period indicating the special circumstances requiring an extension and
the date by which the Second Level Reviewer expects to render its decision on
review, which shall be as soon as possible but not later than 120 days after
receipt of the request for review. In the event that the Second Level Reviewer
extends the determination period on review due to a Claimant's failure to submit
information necessary to decide a claim, the period for making the benefit
determination on review shall not take into account the period beginning on the
date on which notification of extension is sent to the Claimant and ending on
the date on which the Claimant responds to the request for additional
information.

    


                The
Second Level Reviewer has discretionary authority to determine a Claimant's
eligibility for benefits and to interpret the terms of this Agreement. Benefits
under this Agreement will be paid only if the Second Level Reviewer decides in
its discretion that the Claimant is entitled to such benefits. The decision of
the Second Level Reviewer shall be final and non-reviewable, unless found to be
arbitrary and capricious by a court of competent review. Such decision will be
binding upon the Company and the Claimant.

    


                If
the Second Level Reviewer makes an adverse benefit determination on review, the
Second Level Reviewer will render a written opinion, using language calculated
to be understood by the Claimant, setting forth:

    


    (1)           the
specific reason or reasons for the denial;


    
      
         


      

      
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    (2)           the
specific references to pertinent provisions of the Agreement on which the denial
is based;

    


    (3)           a
statement that the Claimant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of, all documents, records and other
information which (i) was relied upon by the Second Level Reviewer in making its
decision, (ii) was submitted, considered or generated in the course of the
Second Level Reviewer making its decision, without regard to whether such
instrument was actually relied upon by the Second Level Reviewer in making its
decision or (iii) demonstrates compliance by the Second Level Reviewer with its
administrative processes and safeguards designed to ensure and to verify that
benefit claims determinations are made in accordance with this Agreement, and
that, where appropriate, the provisions of this Agreement have been applied
consistently with respect to similarly situated claimants; and

    


    (4)           a
statement of the Claimant's right to bring a civil action under Section 502(a)
of ERISA following the adverse benefit determination on such
review.

    


    15.           Amendment.
This Agreement may not be amended, altered or modified, except by a written
instrument signed by the parties hereto, or their respective successors or
assigns, and may not be otherwise terminated except as provided
herein.

    


    16.           Binding
Effect. This Agreement shall be binding upon and inure to the benefit of
the Company and its successors and assigns, and the Employee, his successors,
assigns, and beneficiaries.

    


    17.           Notices.
Any notice, consent or demand required or permitted to be given under the
provisions of this Agreement shall be in writing, and shall be signed by the
party giving or making the same. If such notice, consent or demand is mailed to
a party hereto, it shall be sent


    
      
         


      

      
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    by United
States certified mail, postage prepaid, addressed to such party's last known
address as shown on the records of the Company. The date of such mailing shall
be deemed the date of notice, consent or demand.

    


    18.           Governing
Law. This Agreement, and the rights of the parties hereunder, shall be
governed by and construed in accordance with the laws of the State of
Florida.

    


                IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate,
as of the day and year first above written.

    


    


    OSI
RESTAURANT PARTNERS, LLC

    


    By:  /s/ Dirk A.
Montgomery_________

    Name:
Dirk A.
Montgomery                                                      

    Title:
Chief Financial
Officer_________

    


    ATTEST:

    


    /s/ Joseph J.
Kadow__________

    Joseph J.
Kadow,

    Secretary

                                                                                         "COMPANY"

    


    


    /s/ Joseph J.
Kadow_________________

    JOSEPH J.
KADOW

     

                                      "EMPLOYEE"


    
      
         


      

      
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    EXHIBIT
A

    


    


                The
following life insurance Policy is subject to the Split-Dollar Agreement to
which this Exhibit is attached:

    


    


    Insurer
John Hancock Variable
Life Insurance Company

    


    Insured
Joseph J.
Kadow_________________________

    


    Policy
Number 90848002________________________

    


    Date of
Issue March 30,
2006_____________________

    


    Face
Amount $5,236,268 (as
of January 31, 2008)_____

    


    Death
Benefit Option Increasing Death Benefit
Option__



    
      
         


      

      
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    EXHIBIT
B

    


    


                THIS
ASSIGNMENT, dated this day
of                                                                                                 ,
20__.

    


                WITNESSETH
THAT:

    


                WHEREAS,
the undersigned (the "Assignor") is the Employee under that certain Split-Dollar
Agreement effective as of March 30, 2006 (the "Split-Dollar Agreement"), between
OSI RESTAURANT PARTNERS, LLC (formerly known as Outback Steakhouse, Inc.) with
principal offices and place of business in the State of Florida (the "Company")
and JOSEPH KADOW, which Split-Dollar Agreement confers upon the undersigned
certain rights and benefits with regard to one or more policies of insurance
insuring the Assignor's life; and

    


                WHEREAS,
pursuant to the provisions of said Split-Dollar Agreement, the Assignor retained
the right, exercisable by the execution and delivery to the Corporation of a
written form of assignment, to absolutely and irrevocably assign all of the
Assignor's right, title and interest in and to said Split-Dollar Agreement to an
assignee; and

    


                WHEREAS,
the Assignor desires to exercise said right;

    


                NOW,
THEREFORE, the Assignor, without consideration, and intending to make a gift,
hereby absolutely and irrevocably assigns, gives, grants and transfers to
______________ (the "Assignee"), all of the Assignor's right, title and interest
in and to the Split-Dollar Agreement and said policies of insurance, intending
that, from and after this date, the Split-Dollar Agreement be solely between the
Corporation and the Assignee and that hereafter the Assignor shall neither have
nor retain any right, title or interest therein.

    


    _____________________________

    JOSEPH
KADOW

    


    Assignor


    
      
         


      

      
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    ACCEPTANCE OF
ASSIGNMENT

    


                The
undersigned Assignee hereby accepts the above assignment of all right, title and
interest of the Assignor therein in and to the Split-Dollar Agreement, and the
undersigned hereby agrees to be bound by all of the terms and conditions of said
Split-Dollar Agreement, as if the original Employee thereunder.

    


    ___________________________________________________________,            Trustee

    


    Assignee

    


    Dated:__________,
20__

    


    


    CONSENT TO
ASSIGNMENT

    


                The
undersigned Company hereby consents to the foregoing assignment of all of the
right, title and interest of the Assignor in and to the Split-Dollar Agreement,
to the Assignee designated therein. The undersigned Company hereby agrees that,
from and after the date hereof, the undersigned Company shall look solely to
such Assignee for the performance of all obligations under said Split-Dollar
Agreement which were heretofore the responsibility of the Assignor, shall allow
all rights and benefits provided therein to the Assignor to be exercised only by
said Assignee, and shall hereafter treat said Assignee in all respects as if the
original Employee thereunder.

    


    OSI
RESTAURANT PARTNERS, LLC

    By:  ____________________________

    Name:  __________________________

    Title:  ___________________________

    


    Dated:___________,
20__

     

    
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