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Exhibit 10.1
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
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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
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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.
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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: Chief Executive Officer
LSR ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
RAINFOREST CAFE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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EXHIBIT A
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RAINFOREST CAFE, INC. A Wild Place to Shop and Eat(R)
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000 For Further Information Contact:
Xxxxxxx X. Xxxxxxx
President
000-000-0000
xxx.xxxxxxxxxxxxxx.xxx
NATIONAL MARKET: RAIN
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RAINFOREST CAFE AND XXXXXX'X SEAFOOD RESTAURANTS
TERMINATE MERGER PLANS
RAINFOREST CANCELS SPECIAL SHAREHOLDER MEETING
MINNEAPOLIS--APRIL 26, 2000--Rainforest Cafe, Inc. (Nasdaq:RAIN) and Xxxxxx'x
Seafood Restaurants, Inc. (NYSE:LNDY) announced today that they will not proceed
with their proposed merger transaction and have terminated their merger
agreement. The termination was mutually agreed upon, and no payments will be
made by either party. The Rainforest Special Meeting of Shareholders which was
to have been held on April 28, 2000 to consider the merger has been canceled.
Xxxx Xxxxxx, Chairman and CEO commented, "Although we viewed the Xxxxxx'x
transaction as the best alternative currently available to Rainforest
shareholders, it has become apparent that this view was not shared by the
majority of our shareholders. Consequently we have jointly determined with
Xxxxxx'x to terminate our merger agreement. With the proposed merger activities
now concluded, management will continue to focus on the operating aspects of
Rainforest Cafe's business."
Rainforest Cafe, Inc. develops, owns, and operates combination restaurant/retail
facilities offering a stimulating and entertaining rain forest theme, providing
visitors with "A Wild Place to Shop and Eat(R)." There are currently 39
Rainforest Cafe(R)units open including 28 domestic locations and 11
international units. Rainforest Cafe, Inc. common shares are traded on the
NASDAQ national Market under the symbol RAIN.
# # #
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This news release (as well as information included in oral statements or other
written statements made or to be made by the Company) may contain
forward-looking statements, such as statements relating to future expansion,
that involve risks and uncertainties relating to future events. Actual events or
the Company's results may differ materially from the results discussed in the
forward-looking statements. The Company does
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not expect to update forward-looking statements continually as conditions
change. These risks and uncertainties include, but are not limited to, those
relating to competition, fluctuations and changes in consumer preferences and
attitudes, intellectual property protection, development and construction
activities, and results of shareholder litigation. Investors are referred to the
full discussion of risks and uncertainties associated with forward-looking
statements contained in the Company's Form 10K filed with the Securities and
Exchange Commission for the fiscal year ended January 3, 1999.
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EXHIBIT B
Company Press Release
Xxxxxx'x Seafood Restaurants Inc. Announces
Cancellation of Proposed Merger With Rainforest Cafe Inc.
HOUSTON--(BUSINESS WIRE)--April 26, 2000--Xxxxxx'x Seafood Restaurants Inc.
("Xxxxxx'x") (NYSE:LNY - news) announced today that the proposed merger with
Rainforest Cafe Inc. ("Rainforest") has been canceled. Xxxxxx'x cited
Rainforest's inability to obtain their shareholders' approval as the reason for
the cancellation. Although the majority of voting shareholders have voted in
favor of the merger, Minnesota law requires an affirmative vote by an absolute
majority of all shareholders. According to Xxxxxx'x Chairman, President and CEO,
Xxxxxx X. Xxxxxxxx, "Due to an extremely aggressive campaign by the State of
Wisconsin Investment Board urging Rainforest shareholders to vote against the
merger, it was apparent that Rainforest would not obtain the requisite votes
necessary to allow for consummation of the merger by the scheduled meeting of
shareholders."
Xxxxxxxx added, "We negotiated a deal that we believed was in the best interests
of Xxxxxx'x shareholders. We did substantial due diligence and made an offer
based on our actual knowledge of Rainforest's business. Obviously some of
Rainforest's shareholders believed we cut too good a deal for Xxxxxx'x
shareholders. We cannot be faulted for that. We are a disciplined buyer and were
not willing to increase our offer."
Statements contained in this press release are forward-looking statements as
that term is defined in the Private Securities Litigation Reform Act of 1995.
All forward-looking statements are subject to risks and uncertainties which
could cause actual results to differ from those anticipated.
Contact:
Xxxxxx'x Seafood Restaurants Inc., Houston
Xxxxxx X. Xxxxxxxx, 713/850-1010
or
Xxxxxx X. Xxxxxxxxxx, 713/850-1010
