Exhibit 99(d)(4)
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
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Restaurants, Inc., a Delaware corporation ("Purchaser"), and Xxxx Xxxxxx (the
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"Consultant").
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W I T N E S S E T H:
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WHEREAS, Purchaser, LSR Acquisition Corp., a Delaware corporation (the
"Merger Sub"), and Rainforest Cafe, Inc., a Minnesota corporation (the
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"Company"), have entered into an Agreement and Plan of Merger dated as of the
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date hereof (as the same may be amended from time to time, the "Merger
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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");
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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:
ARTICLE I
CERTAIN MATTERS
Section 1.1 Effectiveness. Sections 1.3 and 1.4 and Articles II and
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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
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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.
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(a) Consulting Fee. In consideration of the covenants of the
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Consultant contained in this Agreement, 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 amount equal to three times the Consultant's Annual Compensation
(as defined in
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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
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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.
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(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.
(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
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shall not owe Consultant any monies, securities, sever ance 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 Rain forest Cafe Friends of the Future Foundation).
ARTICLE II
CONSULTING
Section 2.1 Engagement as Consultant. Purchaser hereby agrees to
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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
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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 Relation ship. From time to time
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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 activi-
ties, 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
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duties and conduct his business at such locations as are reasonably acceptable
to him; provided, however, that, as mutually agreed, the Consultant will be
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available to travel domestically to meet from time to time with representatives
of Purchaser.
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ARTICLE III
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TRANSITION MATTERS
Section 3.1 Transition Matters. The Consultant shall render such
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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.
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(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
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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
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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
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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, per-
sonnel information, intellectual property and other trade secrets (collectively,
the "Confidential Information").
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(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.
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(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 other wise
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
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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
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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
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after the second anniversary of the Closing Date through to and including the
fifth anniversary of the Closing Date; provided, however, that notwithstanding
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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 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 restau-
rant, food service or restaurant business located at a theme park owned,
managed, leased or operated in whole or
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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
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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
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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
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(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 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
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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.
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(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, how
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ever, that nothing in clause (ii) of this Section 4.3
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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.
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(a) Except as and only to the extent set forth in Section 4.4(b)
hereof, the Consultant shall, and 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, in
terrogatories, requests for information or
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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 reliable
assurance that confidential treatment will be accorded such disclosed
Confidential Information.
Section 4.5 Nonsolicitation.
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(a) During the Restricted Period, the Consultant shall not (either
directly or indirectly through Control Representatives, circulars, advertise-
ments 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,
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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
(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
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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
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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.
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Section 4.7 Term.
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(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
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Period" means the period commencing on the date hereof through to the fifth
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annual anniversary of the Closing Date.
Section 4.8 Definitions. For purposes of Article IV of this
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Agreement, the following terms shall have the following meanings:
(a) "affiliate" of any person means another person that directly or
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indirectly controls, is controlled by, or is under common control with, such
first person, where "control" means the possession, directly or indirectly, of
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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;
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(b) "Control Representative" of any person means the Representatives
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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
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such person other than the Control Representatives of such person;
(d) "person" means any natural person, firm, partnership, association,
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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
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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
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(f) "subsidiary" of any party means (x) a corporation, a majority of
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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).
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ARTICLE V
MISCELLANEOUS
Section 5.1 Independent Contractor. During the term of this
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Agreement, the Consultant shall be an independent contractor and not an employee
of Purchaser.
Section 5.2 Successors; Binding Agreement. This Agreement and all
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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
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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
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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
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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.
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Section 5.6 Interpretation. The parties have participated jointly
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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,
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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
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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
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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, together with
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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
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understandings among the parties hereto relating to the subject matter hereof.
Section 5.10 Section Headings and Gender. All Section headings and
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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
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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
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in the event that Purchaser has knowledge that Consultant has materially
violated any of his obligations under this Agreement; provided, however, that
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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
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Xxxx Xxxxxx
XXXXXX'X SEAFOOD
RESTAURANTS, INC.
/s/ Xxxxxx Xxxxxxxxxx
By:_________________________
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
EXHIBIT A
Rainforest Cafe
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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
