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Exhibit (e)(5)
EMPLOYEE TERMINATION, CONSULTING
AND NON-COMPETITION AGREEMENT
Employee Termination, Consulting and Non-Competition Agreement
(this "Agreement"), dated as of September 26, 2000, by and between Xxxxxx'x
Seafood Restaurants, Inc., a Delaware corporation ("Purchaser"), and Xxxx Xxxxxx
(the "Consultant").
WITNESSETH:
WHEREAS, Purchaser, LSR Acquisition Corp., a Delaware
corporation (the "Merger Sub"), and Rainforest Cafe, Inc., a Minnesota
corporation (the "Company"), have entered into an Agreement and Plan of Merger
dated as of the date hereof (as the same may be amended from time to time, the
"Merger Agreement");
WHEREAS, the Company and Consultant have entered into a Change
of Control Agreement dated as of June 8, 2000 (the "Change of Control
Agreement");
WHEREAS, the Consultant desires to perform services for
Purchaser in accordance with and subject to the terms and conditions provided
herein;
WHEREAS, the Consultant desires to be bound by the
noncompetition, nonsolicitation, confidentiality and other terms and provisions
contained in this Agreement; and
WHEREAS, the Consultant acknowledges that Purchaser would not
have entered into the Merger Agreement absent the transactions contemplated by
this Agreement.
NOW, THEREFORE, in consideration of the premises and the
respective representations, warranties, covenants and agreements of the parties
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
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ARTICLE I
CERTAIN MATTERS
Section 1.1 Effectiveness. Sections 1.3 and 1.4 and Articles
II and III of this Agreement shall become effective only upon the time of first
acceptance for payment of Shares under the Offer (as such capitalized terms are
defined in the Merger Agreement). If the Merger Agreement is terminated for any
reason, then this Agreement shall terminate and be of no force or effect.
Section 1.2 Company Options. Notwithstanding anything to the
contrary contained in the Change of Control Agreement, each vested option to
acquire shares of Company common stock held by Consultant at the Effective Time
(as defined in the Merger Agreement) which has an exercise price less than the
Offer Price (as such term is defined in the Merger Agreement) shall be cancelled
and terminated at the Effective Time in consideration for a payment in cash by
the Company to Consultant promptly following the Effective Time of an amount
equal to the product obtained by multiplying (x) the excess (if any) of the
Offer Price over the per share exercise price of such option and (y) the number
of shares of Company common stock covered by such option. Notwithstanding
anything to the contrary contained in the Change of Control Agreement, effective
as of and subject to the Effective Time, Consultant releases, waives and forever
relinquishes any options to acquire shares of Company common stock held by
Consultant at the Effective Time pursuant to any stock option plan or otherwise,
whether or not such options are vested or unvested, in respect of which the
Company is not obligated to make a payment to the Consultant pursuant to the
immediately preceding sentence. Nothing in this Section 1.2 shall prohibit the
Consultant from exercising any options to acquire shares of Company common stock
prior to the Effective Time.
Section 1.3 Compensation and Related Matters.
(a) Consulting Fee. In consideration of the covenants
of the Consultant contained in this Agreement, Purchaser shall pay to the
Consultant: (i) a one-time
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fee equal to five hundred thousand dollars ($500,000) on July 1, 2001; (ii) an
amount equal to three times the Consultant's Annual Compensation (as defined in
the Change of Control Agreement), through the continued bi-weekly payment to the
Consultant of his annual base salary after the date of termination of
Consultant's employment, provided that if the entire amount specified in this
clause (ii) has not been paid to the Consultant by July 1, 2001 through such
bi-weekly payments then any such remaining amount shall be paid to the
Consultant in a lump sum on July 1, 2001; (iii) an amount equal to the six month
cost to Consultant of continuing Consultant's present health care coverage under
the Company's COBRA program (grossed up to compensate Consultant for the taxable
nature of such payment), payable in twelve equal bi-weekly installments after
the date of the termination of Consultant's employment with the Company; and
(iv) an amount equal to the six month cost to the Company of continuing to
provide Consultant's current non-electable life insurance and insurance coverage
for accidental death and disability assuming Consultant had continued as an
employee of the Company (all as grossed-up to compensate Consultant for the
taxable nature of such payments), payable in twelve equal bi-weekly installments
after the date of the termination of Consultant's employment with the Company.
Except as may be agreed to in writing by the Consultant, the Purchaser shall
have no right of setoff under this Agreement.
(b) Business Expenses. The Consultant will be
reimbursed by Purchaser for all ordinary and reasonable business expenses
incurred by him in connection with his performance of consulting services
hereunder upon submission by the Consultant of receipts and other documentation
as may be requested by Purchaser.
Section 1.4 Termination of Employment.
(a) Effective as of the time of first acceptance of Shares for
payment under the Offer, the Consultant irrevocably and unconditionally
discharges the Company of any and all of its obligations under the Change of
Control Agreement and agrees that the Change of Control Agreement shall expire
and terminate and be of no further force or effect.
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(b) Effective as of the time of first acceptance of Shares for
payment under the Offer, the Consultant: (i) acknowledges and agrees that his
employment with the Company shall be terminated, and, except as expressly
provided for under this Agreement, the Company shall not owe Consultant any
monies, securities, severance payments or other consideration with respect to
his terminated employment including any compensation, benefits, and any other
amounts payable under the Change of Control Agreement; and (ii) shall resign as
a director of the Company and its subsidiaries (including the Rainforest Cafe
Friends of the Future Foundation).
ARTICLE II
CONSULTING
Section 2.1 Engagement as Consultant. Purchaser hereby agrees
to engage the Consultant, and the Consultant hereby agrees to perform services
for Purchaser, on the terms and conditions set forth herein.
Section 2.2 Term. The term (the "Term") of the covenants
contained in Article II of this Agreement is for the twenty-four month period
commencing as of the time of first acceptance for payment of Shares under the
Offer, subject to earlier termination pursuant hereto.
Section 2.3 Duties and Reporting Relationship. From time to
time during the Term, the Consultant shall perform such services relating to the
business of Purchaser as the Consultant and the President of the Purchaser (or
his designee) shall mutually agree. The Consultant shall in no event be required
to provide more than ten (10) hours per week of consulting services to Purchaser
for the first three months of the Term, and no more than twenty (20) hours per
month of consulting services to Purchaser thereafter, except in each case as
agreed to by the Consultant. The scheduling of such time shall be at the
Consultant's sole discretion. Except as provided in Article IV hereof, Purchaser
acknowledges that the Consultant is permitted to pursue other activities,
whether of a personal or business nature, and, accordingly, may not always be
immediately available to Purchaser.
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Section 2.4 Place of Performance. The Consultant shall perform
his duties and conduct his business at such locations as are reasonably
acceptable to him; provided, however, that, as mutually agreed, the Consultant
will be available to travel domestically to meet from time to time with
representatives of Purchaser.
ARTICLE III
TRANSITION MATTERS
Section 3.1 Transition Matters. The Consultant shall render
such services to Purchaser as the Consultant and the President of the Purchaser
(or his designee) shall mutually agree with respect to (i) Purchaser and Company
business matters relating to the transition period prior to and following the
Merger and (ii) integration of the business of the Company with the business of
Purchaser.
ARTICLE IV
NON-COMPETITION
Section 4.1 Reasonableness of Provisions.
(a) The Consultant acknowledges and agrees that the
provisions contained in Article IV of this Agreement are reasonable with respect
to their duration, geographical area and scope. Without limiting the generality
of the foregoing, the Consultant further acknowledges and agrees that any and
all of the provisions of Article IV of this Agreement are reasonable and
necessary to protect the legitimate interests of the Purchaser. For purposes of
this Article IV only, the term "Purchaser" shall mean any and all of Purchaser
and its subsidiaries from time to time (including, without limitation, the
Surviving Corporation (as such term is defined in the Merger Agreement) from and
after the time of the first acceptance for payment of Shares under the Offer).
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(b) The Consultant acknowledges and agrees that the
food service and theme restaurant business of the Purchaser (as such business is
conducted as of the date of this Agreement and may be conducted from time to
time in the future, the "Business") is intensely competitive and that the
Consultant has had access to, has and may in the future have knowledge of
confidential information of the Purchaser, including, but not limited to, the
identity of the Purchaser's suppliers, franchisees and other persons with whom
Purchaser has business relationships, the identity of the representatives of
such persons with whom the Purchaser has dealt, information concerning the
creation or development of products offered by Purchaser, demographic and other
information related to actual and targeted customers of Purchaser, computer
software applications and other programs, personnel information, intellectual
property and other trade secrets (collectively, the "Confidential Information").
(c) The Consultant acknowledges and agrees that the
direct or indirect disclosure by the Consultant of any Confidential Information
to existing or potential competitors of the Purchaser or the Business would
place the Purchaser at a competitive disadvantage and would do serious damage,
monetary and otherwise, to the Purchaser and the Business.
(d) The Consultant acknowledges and agrees that the
Consultant's engaging in any of the activities prohibited by this Agreement may
constitute improper appropriation or use of the Confidential Information or
both. The Consultant acknowledges the trade secret status of the Confidential
Information and that the Confidential Information constitutes a protectible
business interest of Purchaser.
Section 4.2 Noncompetition.
(a) During the Restricted Period, the Consultant
shall not (either directly or indirectly, through Representatives or otherwise),
anywhere in the world, engage in, invest in, own, manage, operate,
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finance, control, or participate in the ownership, management, operation,
financing, or control of, be associated with as an officer, employee, partner,
director or otherwise with, or aid or assist any other person in the conduct
of, any restaurant, food service or restaurant business (i) with an
environmental, jungle, forest, zoological, animal (including living, mannequin
or robotic animals) or aquarium theme, (ii) with a name, logo, trade dress or
other Company Intellectual Property (as such term is defined in the Merger
Agreement) used by, or similar to the name, logo, trade dress or other Company
Intellectual Property of, the Company (including, without limitation, the
"Rainforest Cafe" name, logo, trade dress and other Company Intellectual
Property), or (iii) located at a theme park owned, managed, leased or operated
in whole or in part by Disney or any one or more of its subsidiaries; provided,
however, that notwithstanding anything to the contrary in this Section 4.2(a),
the Consultant may purchase or otherwise acquire up to ten percent (10%) of any
class of securities of any person (but without otherwise participating in the
activities of such person) if such securities are listed on any national
securities exchange or NASDAQ.
(b) During the Restricted Period, the Consultant
shall not (either directly or indirectly, through Representatives or otherwise),
engage in, invest in, own, manage, operate, finance, control, or participate in
the ownership, management, operation, financing, or control of, be associated
with as an officer, employee, partner, director or otherwise with, or aid or
assist any other person in the conduct of, any restaurant, food service or
restaurant business (i) within a two mile radius of any Rainforest Cafe
identified on Exhibit A hereto during the period from and after the date hereof
through to and including the second anniversary of the Closing Date and (ii)
within a one mile radius of any Rainforest Cafe identified on Exhibit A hereto
during the period after the second anniversary of the Closing Date through to
and including the fifth anniversary of the Closing Date; provided, however, that
notwithstanding anything to the contrary in this Section 4.2(b), (A) the
Consultant may purchase or otherwise acquire up to ten percent (10%) of any
class of securities of any person (but without otherwise participating
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in the activities of such person) if such securities are listed on any national
securities exchange or NASDAQ, (B) the Consultant may be involved in any manner
with the "Redstone Grill" restaurant concept within the forementioned radius of
the Mall of America, and (C) the Consultant may engage in, invest in, own,
manage, operate, finance, control, or participate in the ownership, management,
operation, financing, or control of, any food service or restaurant business (1)
which has a restaurant inside the applicable forementioned radius and which
either (I) has been in operations for at least twelve months at the time of his
involvement or (II) does not constitute the primary asset of such food service
or restaurant business (provided further that the exclusions contained in
clauses (C)(1)(I) and (C)(1)(II) shall not be available to Consultant with
respect to any restaurant, food service or restaurant business located at a
theme park owned, managed, leased or operated in whole or in part by Disney or
any one or more of its subsidiaries), (2) which is located on property currently
owned by Lakes Gaming Inc. in the vicinity of the MGM Grand Hotel in Las Vegas,
Nevada, or (3) which is located in a casino managed by Lakes Gaming Inc.
(c) Notwithstanding anything to the contrary in this
Section 4.2, the Consultant shall not be deemed to be in violation of this
Section 4.2 solely by reason of (i) Consultant's equity ownership in Park Place
Entertainment, Inc. ("Park Place") or (ii) Consultant's serving as a member of
the Board of Directors of Park Place, which, in the case of either clause (i) or
(ii), causes Consultant to have violated this Agreement by reason of acts
undertaken by Park Place and its affiliates; provided, however, that all times
Consultant shall not propose in any manner, directly or indirectly, any action
taken by Park Place or any of its affiliates which would have otherwise violated
Section 4.2(a) or 4.2(b).
(d) Notwithstanding anything to the contrary in this
Section 4.2, the Consultant shall not be deemed to be in violation of this
Section 4.2 solely by reason of (i) Consultant's equity ownership in
Xxxxxxxxxx.xxx ("Foodstreet") or (ii) Consultant's serving as a member of the
Board of Directors of Foodstreet, which, in the case of either clause (i) or
(ii), causes
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Consultant to have violated this Agreement by reason of acts undertaken by
Foodstreet and its affiliates; provided, however, that all times Consultant
shall not propose in any manner, directly or indirectly, any action taken by
Foodstreet or any of its affiliates which would have otherwise violated Section
4.2(a) or 4.2(b).
Section 4.3 No Disparagement or Communication.
(a) Consultant shall not make, or cause to be made,
any statement, observation or opinion, or communicate any information (whether
oral or written) to the press, media or any third party, that (i) disparages the
reputation or business of Purchaser, the Offer, the Merger or the other
transactions contemplated by the Merger Agreement, or (ii) discusses or
otherwise relates to the Rainforest Cafe concept, its creation, or the
historical or ongoing business of the Company or Rain forest Cafe, or new
restaurant openings; provided, however, that nothing in clause (ii) of this
Section 4.3 shall prohibit Consultant from making factual statements relating to
the Company or Rainforest Cafe with respect to the period of time between its
creation and the time of first acceptance for payment of Shares under the Offer.
In the event that the Consultant is questioned, or is asked to comment or
respond to a statement or inquiry from any press or media which relates,
directly or indirectly, to business activities of the Company or Rainforest Cafe
or the opening of a new restaurant, then Consultant shall unequivocally state at
the outset of any such interaction that he is no longer employed by the Company
and that all inquiries relating to the Company or Rainforest Cafe should be
referred to Purchaser.
(b) The Purchaser shall not make, or cause to be
made, any statement, observation or opinion, or communicate any information
(whether oral or written) to the press, media or any third party, that
disparages the reputation of the Consultant.
Section 4.4 Confidentiality.
(a) Except as and only to the extent set forth in
Section 4.4(b) hereof, the Consultant shall, and
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shall cause the Control Representatives of such Consultant to, and shall use his
reasonable best efforts to ensure that the Other Representatives of such
Consultant shall, hold in strict confidence, and not (directly or indirectly)
make known, or disclose, furnish or otherwise make available to any person or
business, any of the Confidential Information.
(b) Notwithstanding Section 4.4(a) hereof:
(i) the Consultant shall not have any
obligation under Section 4.4(a) with respect to, and only to the extent
that, any Confidential Information becomes generally known or is
publicly disclosed or publicly available, in each case, through
disclosure other than by the Consultant or the Representatives of such
Consultant; and
(ii) in the event that the Consultant or any
of its Representatives are requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand, any investigation by any Governmental Authority
(as defined in the Merger Agreement) or arbitration tribunal or
otherwise) to disclose any of the Confidential Information, the
Consultant shall, to the extent permitted under law, notify the
Purchaser promptly orally and in writing so that the Purchaser may seek
a protective order or other appropriate remedy. In such an event, the
Consultant (on its own behalf and on behalf of each of the
Representatives of such Consultant) (x) agrees that only such portion
of the Confidential Information shall be disclosed which is legally
required to be so disclosed or which the Consultant or the
Representative of such Consultant is advised by counsel as being
reasonably likely to be legally required to be so disclosed and (y)
shall exercise reasonable best efforts to obtain
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reliable assurance that confidential treatment will be accorded such
disclosed Confidential Information.
Section 4.5 Nonsolicitation.
(a) During the Restricted Period, the Consultant
shall not (either directly or indirectly through Control Representatives,
circulars, advertisements or otherwise), whether on behalf of the Consultant or
on behalf of any other person:
(i) solicit (or cause, or authorize, to be
solicited), divert or otherwise attempt to obtain the business of any
person who is, or has at any time within three (3) years prior to the
date of such action been, a franchisee, licensee or business relation
of the Purchaser for any purpose which is competitive with the
Business;
(ii) disturb or attempt to disturb in any
adverse respect any business relationship between any person and the
Purchaser;
(iii) seek or attempt to persuade, induce or
encourage any director, officer, employee, consultant, advisor or other
agent of the Purchaser to discontinue his or her status or employment
therewith or to become employed or otherwise engaged in a business of
the same or of a similar nature to the Business;
(iv) solicit or employ, or otherwise hire or
engage as an employee, independent contractor, consultant, advisor or
otherwise, any person employed by, under contract with, providing
services to, or otherwise engaged by Purchaser; and
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(v) solicit or employ, or otherwise hire or
engage as an employee, independent contractor, consultant, advisor or
other wise, any person at any time within six (6) months following the
date of cessation of employment of such person or the termination of
such person's other status, as the case may be, with the Purchaser;
provided, however, that nothing in this clause (v) shall prohibit the
Consultant from employing any Group 2 Employee (as defined in the
Merger Agreement) as an employee, independent contractor, consultant,
advisor or otherwise, at any time from and after ninety days following
the time of first acceptance for payment of Shares under the Offer
provided that such Group 2 Employee has ceased to be employed by
Purchaser.
Section 4.6 Additional Acknowledgments and Agreements. In
addition to the foregoing, Consultant acknowledges and agrees that he will not
make any use whatsoever of any Company Intellectual Property for any reason
whatsoever. Consultant also acknowledges and agrees that he has no right, title,
or interest in, or to any Company Intellectual Property. Notwithstanding the
foregoing, to the extent that Consultant created any Company Intellectual
Property, Consultant hereby assigns to Company all of his right, title and
interest (if any) in, to and under, all Company Intellectual Property
retroactive to the date he created such Company Intellectual Property.
Section 4.7 Term.
(a) Unless otherwise expressly limited by the terms
hereof, all covenants contained in Sections 4.3, 4.4 and 4.6 of this Agreement
shall remain in effect and survive indefinitely.
(b) For purposes of Article IV of this Agreement, the
term "Restricted Period" means the period commencing on the date hereof through
to the fifth annual anniversary of the Closing Date.
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Section 4.8 Definitions. For purposes of Article IV of this
Agreement, the following terms shall have the following meanings:
(a) "affiliate" of any person means another person
that directly or indirectly controls, is controlled by, or is under common
control with, such first person, where "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
policies of a person, whether through the ownership of voting securities, by
contract, as trustee or executor, or otherwise. For the purposes of this
Agreement, the term "affiliated" has a meaning correlative to the foregoing;
(b) "Control Representative" of any person means the
Representatives of such person which are controlled (as such term is defined in
the definition of "affiliate" above) by such person;
(c) "Other Representative" of any person means all
Representatives of such person other than the Control Representatives of such
person;
(d) "person" means any natural person, firm,
partnership, association, corporation, company, limited liability company,
unincorporated organization, joint venture, trust, self-regulatory organization,
business trust, Governmental Authority or other entity;
(e) "Representative" of any person means such
person's subsidiaries and affiliates and the directors, officers, employees,
agents, affiliates, consultants, advisors and other representatives of such
person and each of such person's subsidiaries and affiliates; and
(f) "subsidiary" of any party means (x) a
corporation, a majority of the voting or capital stock of which is as of the
time in question directly or indirectly owned by such party and (y) any other
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or similar entity, in which
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such party, directly or indirectly, owns a majority of the equity interest
thereof or has the power to elect or direct the election of a majority of the
members of the governing body of such entity or otherwise has control over such
entity (e.g., as the managing partner of a partnership).
ARTICLE V
MISCELLANEOUS
Section 5.1 Independent Contractor. During the term of this
Agreement, the Consultant shall be an independent contractor and not an employee
of Purchaser.
Section 5.2 Successors; Binding Agreement. This Agreement and
all rights of the parties hereunder shall inure to the benefit of and be
enforceable by each party's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
Section 5.3 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by the notice):
If to Purchaser:
Xxxxxx'x Seafood Restaurants, Inc.
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
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If to the Consultant:
Xxxx Xxxxxx
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Section 5.4 Specific Performance. The Consultant recognizes
and agrees that if for any reason any of the provisions of this Agreement are
not performed in accordance with their specific terms or are otherwise breached,
immediate and irreparable harm or injury would be caused to the Purchaser for
which money damages would not be an adequate remedy. Accordingly, the Consultant
agrees that, in addition to any other available remedies, the Purchaser shall be
entitled to an injunction re straining any violation or threatened violation of
the provisions of this Agreement without the necessity of posting a bond or
other form of security. In the event that any action should be brought in equity
to enforce the provisions of this Agreement, the Consultant shall not allege,
and the Consultant hereby waives the defense, that there is an adequate remedy
at law.
Section 5.5 Severability; Modification. If any provision(s) of
this Agreement shall for any reason be invalid or unenforceable in any
jurisdiction, such provision(s) shall be ineffective in such jurisdiction to the
extent of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction. Without limiting the
generality of the immediately preceding sentence, in the event that a court of
competent jurisdiction determines that the provisions of this Agreement would be
unenforceable as written because they cover too extensive a geographic area, too
broad a range of activities, or too long a period of time, or otherwise, then
such provisions will automatically be modified to cover the maximum geographic
area, range of activities, and period of time as may be
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enforceable, and, in addition, such court is hereby expressly authorized so to
modify this Agreement and to enforce it as so modified.
Section 5.6 Interpretation. The parties have participated
jointly in the negotiation and drafting of this Agreement. Consequently, in the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
Section 5.7 Assignment. Neither this Agreement, nor any
rights, interests or obligations hereunder, may be directly or indirectly
assigned, delegated or transferred by any party to this Agreement, in whole or
in part, to any other person without the prior written consent of the other
party hereto; provided, however, that the Purchaser may freely assign (whether
by operation of law or otherwise) all or a portion of its rights under this
Agreement. The Company shall be entitled to rely upon the Consultant's
undertakings and agreements contained in this Agreement.
Section 5.8 Miscellaneous. No provisions of this Agreement may
be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by the parties hereto. No waiver by a party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by the parties which are not set forth
expressly in this Agreement. This Agreement shall be governed and construed in
accordance with the laws of the State in which the Purchaser is incorporated on
the date hereof, without giving effect to the principles of conflicts of law
thereunder or of any other jurisdiction.
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Section 5.9 Contents of Agreement. This Agreement, together
with any letter agreements entered into concurrently herewith, sets forth the
entire agreement of the parties hereto with respect to the matters contemplated
hereby. This Agreement, together with such letter agreements, supersedes all
prior agreements and understandings among the parties hereto relating to the
subject matter hereof.
Section 5.10 Section Headings and Gender. All Section headings
and the use of a particular gender are for convenience only and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 5.11 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but both of which
together will constitute one and the same instrument.
Section 5.12 Provision of Notice. Purchaser shall notify
Consultant in the event that Purchaser has knowledge that Consultant has
materially violated any of his obligations under this Agreement; provided,
however, that any failure by Purchaser to provide, or any delay in Purchaser's
providing, any such notice to Consultant shall not in any manner affect, limit,
discharge, waive or restrict (i) any of the Purchaser's or the Company's rights
under this Agreement or under law or (ii) any of the Consultant's obligations
under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Employee Termination, Consulting and Non-Competition Agreement as of the date
and year first above written.
/s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx
XXXXXX'X SEAFOOD
RESTAURANTS, INC.
By: /s/ Xxxxxx X. Schienthal
------------------------------------
Name: Xxxxxx X. Schienthal
Title: Vice President Administration
and General Counsel
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EXHIBIT A
Rainforest Cafe
1. Disney Downtown Market, Orlando, Florida
2. Disney Animal Kingdom, Orlando, Florida
3. MGM Hotel, Las Vegas, Nevada
4. Disney, Anaheim, California
5. Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx
6. Mall of America, Minneapolis, Minnesota
