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EXHIBIT 10.01
STOCKHOLDER AGREEMENT
Stockholder Agreement (this "Agreement"), dated as of February
9, 2000, by and between Xxxxxx'x Seafood Restaurants, Inc., a Delaware
corporation ("Parent"), and Xxxx Xxxxxx (the "Stockholder").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, LSR Acquisition Corp., a Delaware corporation ("Merger Sub"),
and, Rainforest Cafe, Inc., a Minnesota corporation (the "Company"), are
entering into an Agreement and Plan of Merger (as the same may be amended from
time to time, the "Merger Agreement"), pursuant to which the Company will be
merged with and into Merger Sub (the "Merger"), with Merger Sub being the
surviving corporation in the Merger; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements contained herein,
the parties hereto, intending to be legally bound, agree as follows:
Section 1. Definitions. For purposes of this Agreement:
(a) "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 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.
(b) "Company Common Stock" shall mean at any time the common
stock, no par value, of the Company.
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(c) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity.
(d) Capitalized terms used and not defined herein and which
are defined in the Merger Agreement have the respective meanings ascribed to
such terms in the Merger Agreement.
Section 2. Disclosure. The Stockholder hereby permits Parent
and Merger Sub to publish and disclose in the Prospectus/Proxy Statement
(including all documents and schedules filed with the SEC) and other filings and
communications his identity and ownership of Company Common Stock and Company
Options and the nature of his commitments, arrangements and understandings under
this Agreement.
Section 3. Voting Agreement. The Stockholder shall, at any
meeting of the holders of Company Common Stock, however called, or in connection
with any written consent of the holders of Company Common Stock, vote (or cause
to be voted) the Company Shares then held of record or Beneficially Owned by
such Stockholder: (i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the approval of the terms thereof and each
of the other actions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance thereof and hereof; and (ii) against any
Company Takeover Proposal and against any action or agreement that would impede,
frustrate, prevent or nullify this Agreement, or result in a breach in any
respect of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which would result in any
of the conditions set forth in Article VI of the Merger Agreement not being
fulfilled.
Section 4. No Inconsistent Arrangements. The Stockholder
hereby covenants and agrees that, except as contemplated by this Agreement and
the Merger Agreement, he shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of such Stockholder's Company Shares, Company
Options or any interest therein, (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of such
Company Shares, Company Options or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to such Company
Shares or Company Options, (iv) deposit such Company Shares or Company Options
into a voting trust or enter into a voting agreement or arrangement with respect
to such Company Shares or Company Options, or (v) take any other action that
would in any way restrict, limit or interfere with the performance of his
obligations hereunder or the transactions contemplated hereby or by the Merger
Agreement.
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Section 5. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and
appoints, Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxxxx and Xxxx X. Xxxx, and each of
them individually, in their respective capacities as officers of Parent, and any
individual who shall hereafter succeed to any such office of Parent, and each of
them individually, such Stockholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of such
Stockholder, to vote such Stockholder's Company Shares, or grant a consent or
approval in respect of the Company Shares in favor of the various transactions
contemplated by the Merger Agreement (the "Transactions") and against any
Company Takeover Proposal.
(b) The Stockholder represents that any proxies heretofore
given in respect of such Stockholder's Company Shares are not irrevocable, and
that any such proxies are hereby revoked.
(c) The Stockholder understands and acknowledges that Parent
is entering into the Merger Agreement in reliance upon such Stockholder's
execution and delivery of this Agreement. The Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 5 is given in connection with
the execution of the Merger Agreement, and that such irrevocable proxy is given
to secure the performance of the duties of such Stockholder under this
Agreement. The Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked. The
Stockholder hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 302A.449 of the Minnesota Business Corporation Act.
Section 6. No Solicitation. The Stockholder hereby agrees, in
his capacity as a stockholder of the Company, that neither such Stockholder nor
any of his affiliates shall, directly or indirectly, (i) solicit, initiate or
encourage (including by way of furnishing information), or take any other action
knowingly designed or reasonably likely to facilitate, any inquiries or the
making of any proposal which constitutes, or may reasonably be expected to lead
to, any Company Takeover Proposal, or (ii) participate in any discussion or
negotiations regarding any Company Takeover Proposal. The Stockholder will
immediately cease any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any Company Takeover Proposal. The
Stockholder will immediately communicate to Parent the terms of any proposal,
discussion, negotiation or inquiry such Stockholder receives in his capacity as
a stockholder of the Company (and will disclose any written materials received
by such Stockholder, in his capacity as a stockholder of the Company, in
connection with such proposal, discussion, negotiation or inquiry) and the
identity of the party making such proposal or inquiry which he may receive in
respect of any such transaction.
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Section 7. Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use their
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement and the Merger Agreement. Each party shall
promptly consult with the other and provide any necessary information and
material with respect to all filings made by such party with any Governmental
Authority in connection with this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby.
Section 8. Waiver of Appraisal Rights. The Stockholder
hereby waives any rights of appraisal or rights to dissent from the Merger that
he may have.
Section 9. Representations and Warranties of the Stockholder.
The Stockholder hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. Such Stockholder is the record and
Beneficial Owner of the Company Shares and Company Options set forth on Schedule
I hereto (collectively, the "Existing Shares"). On the date hereof, the Existing
Shares set forth on Schedule I constitute all of the Company Shares and Company
Options owned of record or Beneficially Owned by such Stockholder. Such
Stockholder has sole voting power and sole power to issue instructions with
respect to any and all of the matters set forth in this Agreement, sole power of
disposition, sole power of conversion, sole power to demand appraisal rights and
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to any and all of the Existing Shares with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(b) Power; Binding Agreement. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement, arrangement or understanding (in each case, oral or written) to which
such Stockholder is a party including, without limitation, any voting agreement,
proxy arrangement, pledge agreement, shareholders agreement or voting trust.
This Agreement has been duly and validly executed and delivered by such
Stockholder and, assuming that this Agreement has been duly executed and
delivered by the other party hereto, constitutes a valid and binding agreement
of such Stockholder, enforceable against such Stockholder in accordance with its
terms. There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Stockholder is a trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
such Stockholder of the transactions contemplated hereby.
(c) No Conflicts. Except for filings under the HSR Act and
the Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Authority for the execution of this Agreement by
such Stockholder and the consummation by
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such Stockholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by such Stockholder, the consummation
by such Stockholder of the transactions contemplated hereby or compliance by
such Stockholder with any of the provisions hereof shall (A) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Stockholder is a party or by
which such Stockholder or any of his properties or assets may be bound, or (B)
violate any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to such Stockholder or any of his properties or assets.
(d) No Encumbrances. Except (i) as permitted by this
Agreement and (ii) for any such Permitted Encumbrances or proxies arising under
this Agreement, the Existing Shares and the certificates representing such
Existing Shares are now, and at all times during the term hereof will be, held
by such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of all encumbrances, liens, restrictions, proxies,
voting trusts or agreements, understandings or arrangements or any other rights
whatsoever.
(e) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder.
(f) Reliance by Parent. The Stockholder understands and
acknowledges that Parent is entering into, and causing Merger Sub to enter into,
the Merger Agreement in reliance upon such Stockholder's execution and delivery
of this Agreement.
Section 10. Representations and Warranties of Parent. Parent
hereby represents and warrants to the Stockholder as follows:
(a) Power; Binding Agreement. Parent has the corporate power
and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by Parent
will not violate any other agreement, arrangement or understanding (in each
case, oral or written) to which Parent is a party. This Agreement has been duly
and validly executed and delivered by Parent and, assuming that this Agreement
has been duly executed and delivered by the other party hereto, constitutes a
valid and binding agreement of Parent, enforceable against Parent in accordance
with its terms.
(b) No Conflicts. Except as set forth on Section 3.5 of the
Purchaser Disclosure Schedule and except for filings under the HSR Act and the
Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Authority is necessary for the execution of this
Agreement by Parent and the consummation by Parent of the
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transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Parent, the consummation by Parent of the transactions
contemplated hereby or compliance by Parent with any of the provisions hereof
shall (A) conflict with or result in any breach of any organizational documents
applicable to Parent, (B) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which Parent is a party or by which Parent or any of its properties or
assets may be bound, or (C) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to Parent or any of its
properties or assets.
Section 11. Further Assurances. From time to time, at the
other party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
Section 12. Stop Transfer. The Stockholder shall not request
that the Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Existing Shares,
unless such transfer is made in compliance with this Agreement. In the event of
a stock dividend or distribution, or any change in the Company Common Stock by
reason of any stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, the term "Company Shares" shall refer to and include the
Company Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Company Shares may be changed
or exchanged.
Section 13. Termination. The covenants, agreements and proxy
contained in this Agreement shall terminate upon the termination of the Merger
Agreement in accordance with its terms. The representations and warranties of
the parties hereto shall survive any termination of this Agreement indefinitely.
Section 14. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations
hereunder shall attach to the Existing Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of such Existing Shares
shall pass, whether by operation of law or otherwise, including, without
limitation, a Stockholder's heirs, guardians, administrators or
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successors. Notwithstanding any transfer of Existing Shares, the transferor
shall remain liable for the performance of all obligations of the transferor
under this Agreement.
(c) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties, provided that Parent may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent, but no such assignment shall relieve Parent of its obligations hereunder
if such assignee does not perform such obligations.
(d) Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy (with a
confirmation copy sent for next day delivery via courier service, such as
Federal Express), or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to the Stockholder:
Xxxx Xxxxxx
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
If to Parent:
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
Copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by such party of any covenants or
agreements contained in this Agreement will cause the other party to sustain
damages for which it would not have an adequate remedy at law for money damages,
and therefore in the event of any such breach the aggrieved party shall be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(l) Jurisdiction. Each party hereby irrevocably submits to
the exclusive jurisdiction of the Court of Chancery in the State of Delaware and
the United States District Court for the Southern District of New York in any
action, suit or proceeding arising in
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connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection based
on forum non conveniens or any other objection to venue therein). Each party
hereto hereby waives any right to a trial by jury in connection with any such
action, suit or proceeding.
(m) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have caused this
Stockholder Agreement to be duly executed as of the day and year first above
written.
XXXXXX'X SEAFOOD RESTAURANTS, INC.
By:/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, President and Chief
Executive Officer
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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Schedule I
Number of Company Shares
and Company options
Name of Stockholder Beneficially Owned
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Xxxx Xxxxxx 1,524,749 shares
750,000 options
