TERMINATION AGREEMENT
Termination Agreement (this "Agreement"), dated as of April
26, 2000, by and among Xxxxxx'x Seafood Restaurants, Inc., a Delaware
corporation ("Purchaser"), LSR Acquisition Corp., a Delaware corporation
("Merger Sub"), and Rainforest Cafe, Inc., a Minnesota corporation (the
"Company"). Capitalized terms used but not defined herein and which are
defined in the Merger Agreement (as defined below) shall have the meanings
ascribed to such terms in the Merger Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Purchaser, Merger Sub and the Company entered into
that certain Agreement and Plan of Merger, dated as of February 9, 2000
(the "Merger Agreement"); and
WHEREAS, the parties hereto wish to terminate the Merger
Agreement in accordance with Section 7.1(a) thereof.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements set forth herein and for other good
and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
Section 1. Termination of Merger Agreement. Effective
immediately upon the execution of this Agreement by each of the parties
hereto, the parties hereto agree to abandon the Merger and mutually
terminate the Merger Agreement pursuant to Section 7.1 thereof in
accordance with and subject to the terms of the Merger Agreement.
Section 2. Press Releases. The Company and the Purchaser
agree that the press releases to be issued by each of them with respect to
this Agreement shall be in the forms attached hereto as Exhibit A and
Exhibit B, respectively.
Section 3. Ancillary Agreements. For the avoidance of doubt,
the parties hereto acknowledge and agree that effective immediately upon
the execution of this Agreement by each of the parties hereto, each of the
Stockholder Agreements and the Employee Termination, Consulting and
Non-Competition Agreements shall terminate in accordance with their terms.
Section 4. Authorization. Each of the parties hereto
represents and warrants to the other parties hereto: (i) such party has all
requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby; (ii) the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by
such party's board of directors, and no other corporate proceedings on the
part of such party are necessary to authorize the execution and delivery of
this Agreement or to consummate the transactions contemplated hereby; and
(iii) this Agreement has been duly and validly executed and delivered by
such party and constitutes the legal, valid and binding agreement of such
party, enforceable against such party in accordance with its terms.
Section 5. Governing Law. This Agreement shall be deemed to
be made in, and in all respects shall be interpreted, construed and
governed by and in accordance with the internal laws of, the State of
Delaware. Each of the Company, Purchaser and Merger Sub hereby irrevocably
and unconditionally consents to submit to the jurisdiction of the federal
and state courts located in Delaware for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any litigation relating thereto except in such
courts), waives any objection to the laying of venue of any such litigation
in such courts and agrees not to plead or claim in any such court that such
litigation brought therein has been brought in an inconvenient forum.
Section 6. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given
when delivered in person, by facsimile, receipt confirmed, or on the next
business day when sent by overnight courier or on the second succeeding
business day when sent by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified by
like notice):
If to the Company, to:
Rainforest Cafe, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: 000-000-0000
with a copy to (but which shall not constitute notice to the Company):
Maslon, Edelman, Xxxxxx & Brand
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy: 000-000-0000
If to Purchaser or Merger Sub, to:
Xxxxxx'x Seafood Restaurants, Inc.
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telecopy: 000-000-0000
with a copy to (but which shall not constitute notice to Purchaser):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopy: 000-000-0000
or to such other persons or addresses as may be designated in writing by
the party to receive such notice as provided above.
Section 7. Miscellaneous. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original
and all of which together shall constitute one and the same agreement. This
Agreement shall be construed without regard to the party or parties
responsible for its preparation, and it shall be deemed to have been
prepared jointly by the Company and Purchaser. Any ambiguity or uncertainty
arising herein shall not be interpreted or construed against any party
hereto. This Agreement may be amended, modified, and supplemented only by a
written document executed by each of the parties hereto which specifically
states that it is an amendment, modification or supplement to this
Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements and understandings, both
written and oral, between the parties, or any of them, with respect to the
termination of the Merger Agreement, other than the terms and provisions of
the Merger Agreement. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties and their respective
successors and assigns.
IN WITNESS WHEREOF, this Termination Agreement has been duly
executed and delivered by the duly authorized officers of the parties
hereto as of the date first written above.
XXXXXX'X SEAFOOD RESTAURANTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
LSR ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
RAINFOREST CAFE, INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
