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 Xxxxxx Xxxxxxxxx (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.
(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.
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.
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 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,
(ii) for any such Permitted Encumbrances or proxies arising under this
Agreement and (iii) for the Pledge 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. For
purposes of this Agreement, the term "Pledge Agreement" means the Pledge
Agreement, made and entered into as of the 3rd day of November 1999, by and
between Stockholder and the Company, with respect to 930,000 shares of
Company Common Stock.
(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
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
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:
Xxxxxx Xxxxxxxxx
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx Xxxx, 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
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 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)
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
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, President and
Chief Executive Officer
/s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx
Schedule I
Number of Company Shares
and Company options
Name of Stockholder Beneficially Owned
------------------- ------------------------
Xxxxxx X. Xxxxxxxxx 943,953 shares
201,500 options
