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Exhibit (e)(6)
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
Xxxxxx X. Xxxxxxxxx (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 1.5 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,
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Purchaser shall pay to the Consultant: (i) a one-time fee equal to five hundred
thousand dollars ($500,000) on July 1, 2001; (ii) an aggregate amount equal to
one hundred thousand dollars ($100,000), through the monthly payment to the
Consultant of $8,333 after the first acceptance of Shares for payment under the
Offer, provided that (1) the first monthly payment to Employee shall be made
within fifteen days of the first acceptance of Shares for payment under the
Offer and subsequent payments shall be made every 30 days thereafter to employee
and (2) if the entire amount specified in this clause (ii) has not been paid to
the Consultant by July 1, 2001 through such monthly 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 two 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 (iii) 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; (iv) 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 (v) an amount equal to the six month cost to the Company of
continuing to provide Consultant's non-electable current 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 provided under Section 1.4 hereof, 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
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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 Setoff of Payments under this Agreement.
Notwithstanding anything to the contrary contained in this Agreement or in the
Change of Control Agreement, any amounts payable by Purchaser to the Consultant
(x) under this Agreement (including, without limitation, pursuant to Sections
1.2 and 1.3 hereof) and (y) under the Offer and the Merger in consideration for
his Shares, shall be offset (i) first, against any and all amounts of interest
due or owing to the Company by Consultant under the Loan Agreement, and (ii)
second, against any and all amounts of principal outstanding under the Loan
Agreement. For purposes of this Agreement, the term "Loan Agreement" means the
Secured Demand Note dated November 3, 1999, by Consultant in favor of the
Company, evidencing indebtedness in the amount of $1,700,000.
Section 1.5 Termination of Employment. 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; (ii) shall resign as a director of the Company and its subsidiaries
(including The Rainforest Cafe Friends of the Future Foundation); and (iii)
irrevocably and unconditionally discharges the Company of any and all of its
obligations under the Change of Control Agreement.
Section 1.6 Tender of Shares.
(a) In order to induce Purchaser to enter into the Merger
Agreement, the Consultant hereby agrees to validly tender (or cause the record
owner of such Shares to validly tender) (and hereby authorizes the Company to
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act on his behalf with respect to the Shares which are subject to Section 1.7
hereof) not later than the fifteenth business day after commencement of the
Offer pursuant to Section 1.1 of the Merger Agreement and Rule 14d-2 under the
Exchange Act, and not to withdraw, pursuant to and in accordance with the terms
of the Offer, all of the Shares which are Beneficially Owned by the Consultant
as of the date hereof, and any Shares acquired by the Consultant in any capacity
after the date hereof and prior to the termination of this Agreement by means of
purchase, dividend, distribution or in any other way; provided, however, that,
in the event that immediately preceding the expiration of the Offer more than
51% of the then outstanding Shares have been validly tendered (and not
withdrawn) into the Offer and Consultant has complied with this Section 1.6(a),
then Consultant may withdraw a number of his Shares from the Offer immediately
prior to the expiration of the Offer as is equal to the excess (if any) of the
actual number of Shares which have been validly tendered (and not withdrawn)
into the Offer over the number of Shares which are equal to 51% of the then
outstanding Shares. The Consultant hereby acknowledges and agrees that the
Purchaser's obligation to accept for payment and pay for the Shares in the
Offer, including the Shares Beneficially Owned by the Consultant, is subject to
the terms and conditions of the Offer.
(b) The Consultant hereby permits the Purchaser to publish and
disclose in the Offer documents and, if approval of the Company's shareholders
is required under applicable law, any proxy statement (including all documents
and schedules filed with the SEC), his identity and ownership of the Shares and
the nature of his commitments, arrangements and understandings under this
Agreement.
(c) For purposes of this Agreement, the term "Beneficially
Own" or "Beneficial Ownership" with respect to any securities shall mean having
"beneficial ownership" of such securities (as determined pursuant to Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
including pursuant to any agreement, arrangement or understanding, whether or
not
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in writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a person shall include securities
Beneficially Owned by all other persons with whom such person would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act.
Section 1.7 Perfected Security Interest. Concurrently with the
execution of this Agreement, the Consultant has delivered to the Company
certificates evidencing all of his Shares together with executed stock powers
and such documents as may be necessary to cause the Company to have a perfected
first priority security interest in the Shares securing the indebtedness owing
under the Loan Agreement. The Company shall tender such Shares into the Offer on
behalf of the Consultant as provided for under Section 1.6 above.
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
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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.
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
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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).
(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 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
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, 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
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business (i) 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 (ii) located in a facility
(or its surrounding environs) at a theme park owned, managed, leased or operated
in whole or in part by Disney or any one or more of its subsidiaries (each, a
"Disney Theme Park") in which facility (or surrounding environs) a Rainforest
Cafe is presently operated or is presently contemplated to be opened; 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) From and after the date hereof, the Consultant
shall not engage, directly or indirectly, in any communications (whether written
or oral) with any Disney entity or any officer, director, employee subsidiary,
affiliate or representative of any Disney entity or of any affiliate or
subsidiary of any Disney entity relating in any respect to Rainforest Cafe or
the historical or ongoing business (including, without limitation, the
performance, reputation, appeal or creative ideas relating thereto) of Purchaser
or Rainforest or any of their respective subsidiaries.
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 Rainforest
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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 ongoing 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 [Intentionally Omitted]
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;
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(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 or employee 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 Purchaser; and
(v) solicit or employ, or otherwise hire or
engage as an employee, 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
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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.
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,
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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 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.
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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
Telecopy No.: (000) 000-0000
If to the Consultant:
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx Xxxx, 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 restraining any violation or threatened violation of
the provisions of this Agreement. 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.
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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 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.
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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.
Section 5.9 Contents of Agreement. This Agreement sets forth
the entire agreement of the parties hereto with respect to the matters
contemplated hereby. This Agreement 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
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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. In the case of a violation of this Agreement by Consultant which is
capable of being cured, Consultant shall have up to ten days after the receipt
of the notice specified in the preceding sentence to cure such violation.
Section 5.13 Attorney Fees. Should either party bring an
action in connection with a breach of, or failure to perform, any of the terms
of this Agreement, then the prevailing party shall be entitled to recovery of
its attorney's fees and expenses from the non-prevailing party.
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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/ Xxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx
XXXXXX'X SEAFOOD
RESTAURANTS, INC.
By: /s/ Xxxxxx X. Schienthal
-------------------------
Name: Xxxxxx X. Schienthal
Title: Vice President Administration
and General Counsel
