AMENDMENT BETWEEN PAUL AVERY AND OSI RESTAURANT PARTNERS, INC.


     

    Exhibit
      10.3


    OSI
      RESTAURANT PARTNERS, INC.

    Amendment

    


    THIS
      AMENDMENT (this “Amendment”) is made and entered into effective this
      5th
      day of
      November, 2006, by and among PAUL E. AVERY (“Employee” or “Optionee”), OSI
      RESTAURANT PARTNERS, INC., a Delaware corporation (the “Company”), and
      OUTBACK STEAKHOUSE OF FLORIDA, INC., a Florida corporation (“OSF”).

    


    W
      I T N E
      S S E T H:

    


    WHEREAS,
      the Company and Employee are party to an Officer Employment Agreement, effective
      as of January 1, 2004, as amended by Amendment to Officer Employment Agreement,
      effective as of March 8, 2005, among the Company, Employee and OS Restaurant
      Services, Inc., a Delaware corporation, and an Assignment of Officer Employment
      Agreement, effective as of April 4, 2006, among such parties (the “Employment
      Agreement”); and

    


    WHEREAS,
      the Company, OSF and Employee are party to the Stock Option Agreements set
      forth
      on Exhibit A attached hereto (the “Stock Option Agreements”); and

    


    WHEREAS,
      the Company, OSF and Employee desire to amend the Employment Agreement and
      the
      Stock Option Agreements as set forth herein.

    


    NOW,
      THEREFORE, in consideration of the foregoing recitals, and of the premises,
      covenants, terms and conditions contained herein, the parties hereto agree
      as
      follows:

    


    1. Terms
      used but not otherwise defined herein shall have the meanings ascribed to them
      in the Employment Agreement or the Stock Option Agreements.

    


    2. The
      Employment Agreement and the Stock Option Agreements are hereby amended to
      include the following defined terms having the following meanings:

    


    “Change
      of Control” means:

    


    (a)
      The
      acquisition by any individual, corporation, limited liability company, joint
      venture, partnership, trust, unincorporated organization or other legal entity
      or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
      Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of
      beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
      Exchange Act) of 50% or more of either (i) the then-outstanding shares of common
      stock of the Company (the “Outstanding Company Common Stock”) or (ii) the
      combined voting power of the then-outstanding voting securities of the Company
      entitled to vote generally in the election of directors (the “Outstanding
      Company Voting Securities”); provided, however, that, for purposes of this
      Agreement, the following acquisitions shall not constitute a Change of Control:
      (A) any acquisition directly from the Company, (B) any acquisition by the
      Company or (C) any acquisition by any employee benefit plan (or related trust)
      sponsored or maintained by the Company or any affiliated company;

     

    (b)
      Individuals who, as of the date hereof, constitute the Board of Directors of
      the
      Company (the “Incumbent Board”) cease for any reason to constitute at least a
      majority of the Board of Directors of the Company; provided, however, that
      any
      individual becoming a director subsequent to the date hereof whose election,
      or
      nomination for election by the Company’s stockholders, was approved by a vote of
      at least a majority of the directors then comprising the Incumbent Board shall
      be considered as though such individual were a member of the Incumbent Board,
      but excluding, for this purpose, any such individual whose initial assumption
      of
      office occurs as a result of an actual or threatened election contest with
      respect to the election or removal of directors or other actual or threatened
      solicitation of proxies or consents by or on behalf of a Person other than
      the
      Board of Directors of the Company;

     

    (c)
      Consummation of a reorganization, merger, consolidation or sale or other
      disposition of all or substantially all of the assets of the Company (a
“Business Combination”), in each case, unless, immediately following such
      Business Combination, (i) all or substantially all of the Persons that were
      the
      beneficial owners of the Outstanding Company Common Stock and the Outstanding
      Company Voting Securities immediately prior to such Business Combination
      beneficially own, directly or indirectly, more than 50% of the then-outstanding
      common stock and the combined voting power of the then-outstanding voting
      securities entitled to vote generally in the election of directors, as the
      case
      may be, of the corporation resulting from such Business Combination (including,
      without limitation, a corporation that, as a result of such transaction, owns
      the Company or all or substantially all of the Company’s assets either directly
      or through one or more subsidiaries) in substantially the same proportions
      as
      their ownership immediately prior to such Business Combination of the
      Outstanding Company Common Stock and the Outstanding Company Voting Securities,
      as the case may be and (ii) at least a majority of the members of the board
      of
      directors of the corporation resulting from such Business Combination were
      members of the Incumbent Board at the time of the execution of the initial
      agreement or of the action of the Board of Directors of the Company providing
      for such Business Combination; or

     

    (d)
      Approval by the stockholders of the Company of a liquidation or dissolution
      of
      the Company.

     

    “Good
      Reason” means any of the following: (a) the assignment to Employee of any duties
      inconsistent in any respect with Employee’s position (including status, offices,
      titles, and reporting requirements), authority, duties or responsibilities
      as in
      effect immediately prior to a Change of Control or any action by the Company
      that results in a diminution in such position, authority, duties or
      responsibilities, excluding for this purpose an isolated, insubstantial and
      inadvertent action not taken in bad faith and that is remedied by the Company
      promptly after receipt of notice thereof given by Employee, (b) a reduction
      by
      the Company in Employee’s base salary or benefits as in effect immediately prior
      to a Change in Control, unless a similar reduction is made in salary and
      benefits of all employees or (c) the Company requires Employee to be based
      at or
      generally work from any location more than fifty miles from the location at
      which Employee was based or generally worked immediately prior to a Change
      in
      Control.

     

    “Severance
      Amount” means, with respect to Employee, an amount equal to (a) two multiplied
      by (b) the sum of (i) Employee’s gross annual base salary at the rate in effect
      immediately prior to a Change of Control and (ii) an amount equal to the
      aggregate cash bonus compensation paid to Employee for the two fiscal years
      preceding the year in which a Change of Control occurs divided by two.


     

    3. Section
      8(b) of the Employment Agreement is hereby amended in its entirety to read
      as
      follows:

     

    “(b) The
      Employee’s Disability during the Term of Employment. For purposes of this
      Agreement (other than for purposes of the definition of “disability” under a
      Stock Option Agreement granted prior to the date hereof), “Disability” means a
      permanent and total disability as defined in Section 22(e)(3) of the
      Code.”

     

    4. Section
      8(c) of the Employment Agreement is hereby amended in its entirety to read
      as
      follows:

     

    “(c) The
      existence of Cause. For purposes of this Agreement, “Cause” means any of the
      following: (a) gross neglect of duty or prolonged absence from duty (other
      than
      any such failure resulting from incapacity due to physical or mental illness)
      without the consent of the Company, as determined in good faith by the Board
      of
      Directors of the Company, (b) conviction or a plea of guilty or nolo contendere
      with respect to commission of a felony under federal law or in the law of the
      state in which such action occurred or (c) the willful engaging by Employee
      in
      illegal misconduct or gross misconduct that is materially and demonstrably
      injurious to the Company.”

     

    5. Section
      8
      of the Employment Agreement is hereby amended to add the following as the last
      sentence of that Section:

     

    “Notwithstanding
      anything to the contrary contained herein, in the event of a separation from
      service (as defined in Section 409A of the Internal Revenue Code of 1986, as
      amended, and the regulations thereunder (the “Code”)) of the Employee caused by
      the Company without Cause or by the Employee for Good Reason within two years
      after a Change of Control, the Severance Amount shall be paid in a lump sum
      by
      the Company upon or immediately following the Employee’s separation from
      service; provided, however, that if the Employee is a specified employee of
      the
      Company (as defined in Section 409A of the Code), the Severance Amount shall
      be
      paid on the date that is one day after the date that is six months following
      such separation from service (or such earlier date that payment of the Severance
      Amount can be made without incurring a tax pursuant to Section 409A of the
      Code).”

     

    6. Section
      19 of the Employment Agreement is hereby amended in its entirety to read as
      follows:

     

    “19.  Effect
      of Termination.
      The
      termination of this Agreement, for whatever reason, or the expiration of this
      Agreement shall not extinguish those obligations of Employee specified in
Section
      9,
      Section
      10,
      Section
      11, Section 12
      and
Section
      14
      hereof
      or those obligations of the Company specified in Section
      8
      and
Section
      33 hereof.
      The restrictive covenants of Section
      9, Section 10, Section 11, Section 12, and
      Section 14 shall
      survive the termination or expiration of this Agreement.”

    


    7. The
      Employment Agreement is hereby amended to add the following as Section 33
      thereof:

     

    “33. Excess
      Parachute Tax Gross-Up.
      It is
      possible that a payment or distribution (including, without limitation, any
      distribution or payment with respect to the vesting of any stock options or
      restricted stock grants or the vesting of any benefits) to Employee or for
      Employee’s benefit (whether paid or payable or distributed or distributable)
      pursuant to the terms of this Agreement, a stock option agreement, a restricted
      stock agreement or otherwise (a “Payment”) may constitute a “parachute payment”
within the meaning of Section 280G of the Code. The Company acknowledges that
      the protections set forth in this Section
      33
      are
      important, and it is agreed that, except as provided in Section 33(a) below,
      Employee should not have to bear the burden of any excise tax that might be
      levied under Section 4999 of the Code (such excise tax, together with any
      interest or penalties incurred by Employee with respect to such excise tax,
      being collectively referred to as the “Excise Tax”) as a result of Employee’s
      receipt of the amounts or benefits payable to Employee pursuant to this
      Agreement, a stock option agreement, a restricted stock agreement or otherwise.
      The following shall therefore apply:

    


    (a) If
      it is
      determined that any Payment is subject to the Excise Tax, then the Company
      shall
      pay to or on behalf of Employee an additional payment (a “Gross-Up Payment”) in
      an amount such that after payment by Employee of all taxes (including any
      interest or penalties imposed with respect to such taxes), including, without
      limitation, any income taxes (and any interest or penalties imposed with respect
      thereto) and Excise Tax, imposed upon the Gross-Up Payment, but excluding any
      income taxes and penalties imposed pursuant to Section 409A of the Code,
      Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
      imposed upon the Payment. Notwithstanding the foregoing provisions of this
      Section 33(a), if it shall be determined that Employee is entitled to the
      Gross-Up Payment, but that the Parachute Value (as defined below) of all
      Payments does not exceed 110% of the Safe Harbor Amount (as defined below),
      then
      no Gross-Up Payment shall be made to Employee and the amounts payable under
      this
      Agreement shall be reduced so that the Parachute Value of all Payments, in
      the
      aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable
      hereunder, if applicable, shall be made by first reducing the Severance Amount,
      unless an alternative method of reduction is elected by Employee, and in any
      event shall be made in such a manner as to maximize the Value (as defined below)
      of all Payments actually made to Employee. For purposes of reducing the Payments
      to the Safe Harbor Amount, only amounts payable under this Agreement (and no
      other Payments) shall be reduced. If the reduction of the amount payable under
      this Agreement would not result in a reduction of the Parachute Value of all
      Payments to the Safe Harbor Amount, no amounts payable under the Agreement
      shall
      be reduced pursuant to this Section 33(a). The foregoing determinations will
      be
      made by the Company’s tax accountants serving immediately prior to a Change of
      Control (the “Accountants”) in consultation with Employee and the Company and in
      accordance with the analysis, valuations and calculations prepared by the
      Accountants in connection with Section
      33(b),
      below.
      Employee and the Company will each provide the Accountants access to and copies
      of any books, records, and documents in the possession of Employee or the
      Company, as the case may be, reasonably requested by the Accountants, and
      otherwise cooperate with the Accountants in connection with the preparation
      and
      issuance of the determinations and calculations contemplated by this
Section
      33.

    


     

    (b) The
      Company shall cause all determinations required to be made under this
Section
      33,
      including the assumptions to be utilized in arriving at such determinations,
      to
      be made by the Accountants, which shall provide Employee and the Company with
      their determinations and detailed supporting calculations with respect thereto
      at least 15 business days prior to the date on which Employee would be entitled
      to receive a Payment (or as soon as practicable in the event that the
      Accountants have less than 15 business days advance notice that Employee may
      receive a Payment) in order that Employee may determine whether Employee concurs
      with such determination. For the purpose of determining whether any of the
      Payments will be subject to the Excise Tax and the amount of such Excise Tax,
      such Payments will be treated as “parachute payments” within the meaning of
      Section 280G of the Code, and all “parachute payments” in excess of the “base
      amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as
      subject to the Excise Tax, unless and except to the extent that in the opinion
      of the Accountants such Payments (in whole or in part) either do not constitute
      “parachute payments” or represent reasonable compensation for services actually
      rendered (within the meaning of Section 280G(b)(4) of the Code) in excess of
      the
“base amount,” or such “parachute payments” are otherwise not subject to such
      Excise Tax. Any determination by the Accountants shall be binding upon the
      Company and Employee. The amount of any Gross-Up Payment shall be paid in a
      lump
      sum within seven days following such determination by the Accountants. In the
      event that the Accountant’s determination is not finally accepted by the
      Internal Revenue Service (the “IRS”), Employee shall notify the Company in
      writing of any such claim by the IRS. Such notification shall be given as soon
      as practicable after Employee is informed in writing of such claim and shall
      apprise the Company of the nature of such claim and the date on which any
      incremental tax attributable to such claim is requested to be paid. In
      connection with any claim or potential contest of such claim, Employee and
      the
      Company will provide each other access to and copies of any books, records,
      and
      documents in the possession of Employee or the Company, as the case may be,
      reasonably requested by the other party, and will otherwise cooperate with
      each
      other in connection with any such claim. In the event that Employee or the
      Company contest such claim, the Company shall bear and pay directly all costs
      and expenses (including additional interest and penalties) incurred in
      connection with such contest. Upon resolution of any such claim, an appropriate
      adjustment, including penalties and interest, if any, shall be computed (with
      an
      additional Gross-Up Payment, if applicable) by the Accountants based upon the
      final amount of the Excise Tax so determined. Such adjustment shall be paid
      by
      the appropriate party in a lump sum within seven days following the computation
      of such adjustment by the Accountants. Nothing contained in this Section
      33
      shall
      limit Employee’s ability or entitlement to settle or contest as the case may be,
      any claim or issue asserted by the IRS. All fees and expenses of the Accountants
      incurred pursuant to this Section
      33
      and all
      costs associated with such claims by the IRS or any other taxing authority
      shall
      be borne solely by the Company.”

    


    (c) The
      following terms shall have the following meanings for purposes of this Section
      33.

    


    (i) “Parachute
      Value” of a Payment shall mean the present value as of the date of the change of
      control for purposes of Section 280G of the Code of the portion of such Payment
      that constitutes a “parachute payment” under Section 280G(b)(2), as determined
      by the Accountants for purposes of determining whether and to what extent the
      Excise Tax will apply to such Payment.

    


    (ii) The
“Safe
      Harbor Amount” means 2.99 times the Employee’s “base amount,” within the meaning
      of Section 280G(b)(3) of the Code.

    


    (iii) “Value”
      of a Payment shall mean the economic present value of a Payment as of the date
      of the change of control for purposes of Section 280G of the Code, as determined
      by the Accountants using the discount rate required by Section 280G(d)(4) of
      the
      Code.

    


    Notwithstanding
      any other provision of this Section 33, the Company may, in its sole discretion,
      withhold and pay over to the Internal Revenue Service or any other applicable
      taxing authority, for the benefit of Employee, all or any portion of any
      Gross-Up Payment, and Employee hereby consents to such withholding.

    


    8. Each
      of
      the Stock Option Agreements is hereby amended to provide that, to the extent
      the
      Stock Option Agreement or plan under which it was granted did not define
      Disabled, Disability or disability, such terms shall mean a permanent and total
      disability as defined in Section 22(e)(3) of the Code.

     

    9. The
      second sentence of Section 2 of the Stock Option Agreement, effective as of
      April 25, 2001, among OSF, the Company and Optionee is hereby
      deleted.

     

    10. Section
      2
      of each of the Stock Option Agreements is hereby amended to add the following
      as
      the last sentence thereof:

     

    “Notwithstanding
      Section 4 hereof, the Option shall become fully vested and exercisable if,
      within two years after the effective date of a Change of Control (a) Optionee’s
      employment is terminated by the Company without Cause, (b) Optionee resigns
      for
      Good Reason or (c) Optionee dies or suffers a Disability, and in such event,
      the
      Option shall expire on the earlier of (x) the date that is 10 years after the
      date of this Agreement and (y) the date that is one year after the date of
      termination, resignation, death or Disability (provided, however, that, the
      post-termination exercise period shall be reduced to the later of (1) the 15th
      day of the third month following the date the exercise period otherwise would
      have expired pursuant to the terms of this Agreement without regard to the
      extension provided in this sentence and (2) December 31 of the calendar year
      in
      which the exercise period otherwise would have expired pursuant to the terms
      of
      this Agreement without regard to the extension provided in this sentence, to
      the
      extent that the one-year exercise period provided in clause (y) hereof would
      be
      considered to be an “extension” within the meaning of the regulations under
      Section 409A of the Code).”

    


    11. The
      introductory clause of Section 4 of each of the Stock Option Agreements is
      hereby amended in its entirety to read as follows:

     

    “4.
       Termination
      of Option.
      Subject
      to the last sentence of Section 2 hereof, the Option granted herein, to the
      extent not theretofore exercised, and the Exercise Price for the exercised
      Shares paid by Optionee, shall terminate and be null and void immediately upon
      the first to occur of any of the following:”

    


    12. The
      second paragraph of Section 4 of each of the Stock Option Agreements is hereby
      amended in its entirety to read as follows:

     

    “Subject
      to the last sentence of Section 2 hereof, in the event Optionee dies or becomes
      disabled, Optionee’s Beneficiary (as defined below), in the case of death, or
      Optionee or Optionee’s guardian, in the case of disability, shall have ninety
      (90) days from the date of death or disability (“Special Exercise Period”) to
      exercise the Option to the same extent, and for the same number of Shares,
      as
      Optionee could have exercised as of the date of death or
      disability.”

     

    13. This
      Amendment may be executed in counterparts, each of which will constitute an
      original and all of which together will constitute one agreement. The signature
      page of any individual or entity, or copies or facsimiles thereof, may be
      appended to any counterpart of this Amendment and when so appended will
      constitute an original.

     

    14. Except
      as
      expressly amended by this Amendment, all terms and conditions of the Employment
      Agreement and the Incentive Compensations Agreements remain in full force and
      effect and are unmodified hereby.

     

    IN
      WITNESS WHEREOF, the parties have executed or caused this Amendment to be
      executed as of the day and year first above written.

    


    


    OSI
      RESTAURANT PARTNERS, INC.

    


    


    By:
      /s/
      Joseph W. Hartnett   

    Name:
       Joseph
      W. Hartnett   

    Title:
      Vice
      President    

     

    OUTBACK
      STEAKHOUSE OF FLORIDA, INC. 

    


    


    By:
      /s/
      Joseph W. Hartnett   

    Name:
       Joseph
      W. Hartnett   

    Title:
      Vice
      President    

     

    


    /s/
      Paul E. Avery    

    Paul
      E.
      Avery


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      A

     

    1. Stock
      Option Agreement, effective as of July 23, 1997, among OSF, the Company and
      Optionee

     

    2. 
      Stock
      Option Agreement, effective as of February 2, 2000, among OSF, the Company
      and
      Optionee

     

    3. Stock
      Option Agreement, effective as of April 25, 2001, among OSF, the Company and
      Optionee

     

    4. Stock
      Option Agreement, effective as of January 2, 2003, among OSF, the Company and
      Optionee

     

    


    


    23120,
      91001, 101378147.1