Exhibit (d)(5)
AMENDMENT NO. 4 TO MERGER AGREEMENT
AMENDMENT NO. 4 TO MERGER AGREEMENT entered into as of July 15, 2002
(this "AMENDMENT") by and among Xxxxxx'x Holdings, LLC, a Delaware corporation
(formerly known as Xxxxxx'x Holdings, Inc., the "BUYER"), Morton's Acquisition
Company, a Delaware corporation and a direct wholly-owned subsidiary of the
Buyer (the "TRANSITORY SUBSIDIARY"), and Xxxxxx'x Restaurant Group, Inc., a
Delaware corporation (the "COMPANY"). The Buyer, the Transitory Subsidiary and
the Company are individually referred to herein as a "PARTY" and collectively
referred to herein as the "PARTIES". All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings provided such terms
in the Merger Agreement referred to below.
PRELIMINARY STATEMENT
WHEREAS, the Buyer, the Transitory Subsidiary and the Company are
parties to a Merger Agreement, dated as of March 26, 2002 (as in effect on the
date hereof, the "MERGER AGREEMENT"); and
WHEREAS, the Parties wish to amend the Merger Agreement as herein
provided;
NOW, THEREFORE, the Parties agree as follows:
I. AMENDMENTS TO MERGER AGREEMENT.
1. Section 2.1(c) of the Merger Agreement (entitled "EXCHANGE OF
SHARES") is hereby amended by deleting the reference therein to "$16.00" and
inserting in lieu thereof a reference to "$17.00".
II. MISCELLANEOUS.
1. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Merger
Agreement or any other related document or agreement.
2. This Amendment may be executed in two (2) or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective on the date (the "FOURTH AMENDMENT EFFECTIVE DATE") when two (2) or
more counterparts have been signed by each of the Parties and delivered
(including, without limitation, by way of facsimile transmission) to the other
Parties.
3. This Amendment shall be governed by and construed in accordance
with the internal laws of the State of Delaware without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of laws of any
jurisdictions other than those of the State of Delaware.
4. Subject to Section 9.5 of the Merger Agreement, this Amendment
will be binding upon, inure to the benefit of, and be enforceable by, the
Parties and their respective successors and assigns.
5. From and after the Fourth Amendment Effective Date, all
references in the Merger Agreement and in any other related document or
agreement to the Merger Agreement shall be deemed to be references to the Merger
Agreement as modified hereby.
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IN WITNESS WHEREOF, the Company, the Buyer and the Transitory
Subsidiary have caused this Agreement to be signed by their respective officers
thereunto duly authorized as of the date first written above.
XXXXXX'X RESTAURANT GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chairman of the Board of
Directors, President and Chief
Executive Officer
XXXXXX'X HOLDINGS, LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
MORTON'S ACQUISITION COMPANY
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
