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SCHEDULE 13D
(RULE 13d-101)
Information to be Included in Statements Filed Pursuant to Rule 13d-1(a) and
Amendments Thereto Filed Pursuant to Rule 13d-2(a)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
RAINFOREST CAFE, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, no par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
75086K 10 4
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(CUSIP Number)
Mr. Steven Schussler
720 South Fifth Street
Hopkins, MN 55343
Phone: (612) 945-5400
With a copy to:
Neil P. Ayotte, Esq.
Maslon Edelman Borman & Brand, LLP
3300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-4140
Phone: (612) 672-8200
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
February 9, 2000
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box / /.
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule
13d-7(b) for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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CUSIP NO. 75086k 10 4 13D
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1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
(ENTITIES ONLY)
Steven Schussler
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions)
(a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
Not applicable
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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7 SOLE VOTING POWER
NUMBER OF
SHARES 0
----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY EACH 1,038,192(+)
REPORTING ----------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,038,192(+)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,038,192(+)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (See Instructions) [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.44%(+)
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
+ The filing of this Schedule 13D is not, and shall not be construed as, an
admission that Landry's or any of its executive officers or directors
beneficially owns any of the shares of Rainforest common stock subject to
the Stockholder Agreements. Nor is the filing of this Schedule 13D, nor
shall it be construed as, an affirmation of the existence of a group as
defined in Rule 13d-3(a).
- --------------------------------------------------------------------------------
2
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ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock, no par value, of Rainforest
Cafe, Inc., a Minnesota corporation ("Rainforest"). The address of Rainforest's
principal executive offices is 720 South Fifth Street, Hopkins, Minnesota 55343.
The principal executive officers of Rainforest are Lyle Berman, Chairman of the
Board and Chief Executive Officer and Kenneth W. Brimmer, President.
ITEM 2. IDENTITY AND BACKGROUND
This Schedule 13D is being filed by Steven Schussler. Mr. Schussler's
business address is 720 South Fifth Street, Hopkins, Minnesota 55343. Mr.
Schussler is currently Senior Vice President - Development of Rainforest.
During the last five years, Mr. Schussler has not been (i) convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors), or
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
Mr. Schussler is a citizen of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Not applicable.
ITEM 4. PURPOSE OF TRANSACTION
On February 9, 2000, Landry's Seafood Restaurants, Inc., a Delaware
corporation ("Landry's"), LSR Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Landry's ("Merger Sub"), and Rainforest entered into
an Agreement and Plan of Merger (the "Merger Agreement"). In connection with the
Merger Agreement, Landry's entered into a Stockholder Agreement dated as of
3
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February 9, 2000 with each of Lyle Berman and Steven Schussler (each, a
"Stockholder Agreement"). The discussion in this Schedule 13D of the Stockholder
Agreements and the Merger Agreement and the principal terms thereof is subject
to, and qualified in its entirety by reference to, the Stockholder Agreements
and the Merger Agreement which are incorporated herein by reference and filed as
exhibits hereto.
As of the date of the Stockholder Agreements, Mr. Berman held 1,524,749
shares of Rainforest common stock (or approximately 6.6% of the outstanding
Rainforest common stock) and Mr. Schussler held 930,000 shares of Rainforest
common stock (or approximately 4.0% of the outstanding Rainforest common stock).
As of February 9, 2000, 23,272,232 shares of Rainforest common stock were issued
and outstanding.
Pursuant to the Stockholder Agreements, each of Messrs. Berman and
Schussler agreed, among other things, to vote (or cause to be voted) at any
meeting of the holders of Rainforest common stock, or in connection with any
written consent of the holders of Rainforest common stock, all shares of
Rainforest common stock held of record or beneficially owned by him (the
"Subject Shares") in favor of the Merger Agreement, the transactions
contemplated by the Merger Agreement, and any actions required in furtherance of
any of the foregoing. Each of Messrs. Berman and Schussler also agreed to vote
their respective Subject Shares against a Company Takeover Proposal (as defined
in the Merger Agreement) and against any action or agreement that would impede,
frustrate, prevent or nullify the Merger Agreement, result in a breach of the
Merger Agreement by Rainforest, or result in a failure of the conditions to
consummation of the merger in the Merger Agreement not being fulfilled.
Pursuant to the Stockholder Agreements, each of Messrs. Berman and
Schussler also irrevocably granted to, and appointed, Tilman J. Fertitta, Steven
L. Scheinthal and Paul S. West, and each of them individually, in their
respective capacities as officers of Landry's, and any individual who may
succeed to any such office of Landry's, such person's proxy and attorney-in-fact
(with full power of substitution) to vote each such person's Subject Shares in
favor of the transactions contemplated by the Merger Agreement and against any
Company Takeover Proposal should either of Mr. Berman or Mr. Schussler fail to
cast such a vote of his own accord.
ITEM 5. INTEREST IN THE SECURITIES OF THE ISSUER
a.- b. As of February 9, 2000, 23,272,232 shares of Rainforest
common stock were issued and outstanding.
As of the date hereof, and as a result of the execution of
the Stockholder Agreements, Landry's and Mr. Schussler may be
deemed to have shared voting and dispositive power with
respect to the shares of Rainforest common stock owned by Mr.
Schussler and such shares of Rainforest common stock subject
to Mr. Schussler's Stockholder Agreement. Mr. Schussler
beneficially owns 1,038,192 shares of Rainforest common
stock, which includes
4
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94,500 shares acquirable upon the exercise of currently
exercisable options, or approximately 4.44% of the
outstanding shares of Rainforest common stock as of February
9, 2000. However, the filing of this Schedule 13D is not, and
shall not be construed as, an admission that Landry's or any
of its executive officers or directors beneficially owns any
of the shares of Rainforest common stock subject to the
Stockholder Agreements. Nor is the filing of this Schedule
13D, nor shall it be construed as, an affirmation of the
existence of a group as defined in Rule 13d-3(a). The Item 2
information with respect Mr. Berman and each of the executive
officers and directors of Landry's and the name and business
address of any organization in which such employment is
conducted, in each case as of the date hereof, are set forth
in Schedule 1 attached hereto and incorporated herein by
reference.
As of the date hereof, Landry's owns 100 shares of Rainforest
common stock or less than 0.1% of the outstanding shares of
Rainforest common stock and has sole voting and dispositive
power with respect to such shares.
Except as set forth above, neither Mr. Schussler, nor to the
best of Mr. Schussler's knowledge, Landry's or any of the
individuals named in Schedule 1 hereto beneficially owns any
shares of Rainforest common stock.
c. Other than as set forth in this Schedule 13D, neither Mr.
Schussler nor, to the best of his knowledge, Landry's nor any
of the individuals named in Schedule 1 hereto has effected
any transaction with respect to the shares of Rainforest
common stock within the last sixty days.
d. Not applicable.
e. Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS WITH RESPECT TO SECURITIES OF
THE ISSUER
See Item 4 above. Except as provided in the Merger Agreement, the
Stockholder Agreements and as set forth in this Schedule 13D, neither Mr.
Schussler, nor to the best of Mr. Schussler's knowledge, Landry's or any of the
individuals named in Schedule 1 hereto, has any contracts, arrangements,
understandings or relationships (legal or otherwise), with any person with
respect to any securities of Rainforest, including, but not limited to, transfer
or voting of any securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or
losses, or the giving or withholding of proxies.
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ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 2.01 Agreement and Plan of Merger, dated as of February 9, 2000,
by and among Landry's Seafood Restaurants, Inc., LSR
Acquisition Corp. and Rainforest Cafe, Inc.
Exhibit 10.01 Stockholder Agreement, dated as of February 9, 2000, by and
between Landry's Seafood Restaurants, Inc. and Lyle Berman.
Exhibit 10.02 Stockholder Agreement, dated as of February 9, 2000, by and
between Landry's Seafood Restaurants, Inc. and Steven
Schussler.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: February 18, 2000 /s/ Steven Schussler
--------------------------------
Steven Schussler
6
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SCHEDULE 1
The name, business address, principal occupation and organization of
employment of the executive officers and directors of Landry's Seafood
Restaurants, Inc. ("Landry's") are as follows (citizenship is of the
United States of America, unless otherwise indicated). Landry's owns
and operates seafood restaurants located in 26 states. Its principal
business address is 1400 Post Oak Boulevard, Suite 1010, Houston, Texas
77056.:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Name Position at Business Address Principal Occupation and
- ---- Landry's ---------------- Organization of Employment
-------- --------------------------
<S> <C> <C> <C>
Tilman J. Fertitta Chairman of the Landry's Seafood President and Chief
Board, Restaurants, Inc. Executive Officer of
President and 1400 Post Oak Blvd., Landry's
Chief Executive Suite 1010
Officer Houston, Texas 77056
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Steven L. Scheinthal Director, Vice Landry's Seafood Vice President of
President of Restaurants, Inc. Administration, General
Administration, 1400 Post Oak Blvd., Counsel and Secretary of
General Counsel Suite 1010 Landry's
and Secretary Houston, Texas 77056
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Paul S. West Director, Vice Landry's Seafood Vice President of Finance
President of Restaurants, Inc. and Chief Financial Officer
Finance and 1400 Post Oak Blvd., of Landry's
Chief Financial Suite 1010
Officer Houston, Texas 77056
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James E. Masucci Director Landry's Seafood Private business
Restaurants, Inc.
1400 Post Oak Blvd.,
Suite 1010
Houston, Texas 77056
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Joe Max Taylor Director Landry's Seafood Chief law enforcement
Restaurants, Inc. administrator for Galveston
1400 Post Oak Blvd., County, Texas
Suite 1010
Houston, Texas 77056
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Richard E. Ervin Vice President Landry's Seafood Vice President of Operations
of Restaurant Restaurants, Inc. of Landry's
Operations 1400 Post Oak Blvd.,
Suite 1010
Houston, Texas 77056
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</TABLE>
During the last five years, to the best of Mr. Schussler's knowledge,
none of the forementioned executive officers or directors of Landry's has been
(i) convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgement, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to,
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federal or state securities laws or finding any violation with respect to such
laws.
The name, business address, principal occupation and organization of
employment of Mr. Berman is as follows (to the best of Mr. Schussler's
knowledge, citizenship of Mr. Berman is of the United States of
America):
<TABLE>
<CAPTION>
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Name Position at Business Address Principal Occupation and
- ---- Rainforest ---------------- Organization of Employment
---------- --------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Lyle Berman Chairman of the Rainforest Cafe, Inc. Chairman and Chief Executive
Board and Chief 720 South Fifth Street Officer of Rainforest;
Executive Hopkins, MN 55343 Director of companies
Officer
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</TABLE>
During the last five years, to the best of Mr. Schussler's knowledge,
Mr. Berman has not been (i) convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors), or (ii) a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgement, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
2
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INDEX TO EXHIBITS
EXHIBIT EXHIBIT
NUMBER -------
- ------
2.01 Agreement and Plan of Merger, dated as of February 9, 2000,
by and among Landry's Seafood Restaurants, Inc., LSR
Acquisition Corp. and Rainforest Cafe, Inc.
10.01 Stockholder Agreement, dated as of February 9, 2000, by and
between Landry's Seafood Restaurants, Inc. and Lyle Berman.
10.02 Stockholder Agreement, dated as of February 9, 2000, by and
between Landry's Seafood Restaurants, Inc. and Steven
Schussler.
<PAGE> 1
EXHIBIT 2.01
AGREEMENT AND PLAN OF MERGER
By and Among
LANDRY'S SEAFOOD RESTAURANTS, INC.,
LSR ACQUISITION CORP.
and
RAINFOREST CAFE, INC.
Dated as of February 9, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
TERMS OF THE MERGER
<S> <C>
1.1. The Merger......................................................................................2
1.2. The Closing; Effective Time.....................................................................2
1.3. Merger Consideration............................................................................3
1.4. Election Procedure..............................................................................4
1.5. Issuance of Purchaser Stock and Payment of
Cash Consideration; Proration...................................................................6
1.6. Issuance of Purchaser Stock.....................................................................8
1.7. Payment of Cash Consideration...................................................................9
1.8. Options........................................................................................10
1.9. Dissenting Shares..............................................................................11
1.10. Articles of Incorporation and Bylaws...........................................................12
1.11. Stock Transfer Books...........................................................................12
1.12. Directors and Officers.........................................................................12
1.13. Other Effects of Merger........................................................................12
1.14. Registration Statement Prospectus/Proxy Statement..............................................12
1.15. Tax-Free Reorganization........................................................................15
1.16. Additional Actions.............................................................................15
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.1. Due Incorporation and Good Standing............................................................15
2.2. Capitalization.................................................................................16
2.3. Subsidiaries...................................................................................16
2.4. Authorization; Binding Agreement...............................................................17
2.5. Governmental Approvals.........................................................................18
2.6. No Violations..................................................................................18
2.7. Securities Filings.............................................................................19
2.8. Company Financial Statements...................................................................19
2.9. Absence of Certain Changes or Events; No Undisclosed Liabilities...............................20
2.10. Compliance with Laws...........................................................................20
2.11. Permits........................................................................................20
2.12. Litigation.....................................................................................21
2.13. Contracts......................................................................................21
2.14. Employee Benefit Plans.........................................................................21
</TABLE>
i
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<TABLE>
<CAPTION>
<S> <C>
2.15. Taxes and Returns..............................................................................23
2.16. Intellectual Property..........................................................................24
2.17. Finders and Investment Bankers.................................................................26
2.18. Fairness Opinion...............................................................................26
2.19. Insurance......................................................................................26
2.20. Vote Required; Ownership of Purchaser Capital Stock;
State Takeover Statutes........................................................................26
2.21. Title to Properties............................................................................27
2.22. Environmental Matters..........................................................................28
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.1. Due Incorporation and Good Standing............................................................29
3.2. Capitalization.................................................................................29
3.3. Authorization; Binding Agreement...............................................................30
3.4. Governmental Approvals.........................................................................30
3.5. No Violations..................................................................................30
3.6. Securities Filings.............................................................................31
3.7. Purchaser Financial Statements.................................................................32
3.8. Absence of Certain Changes or Events; No Undisclosed Liabilities...............................32
3.9. Compliance with Laws...........................................................................32
3.10. Litigation.....................................................................................32
3.11. Tax Returns....................................................................................33
3.12. Finders and Investment Bankers.................................................................33
3.13. Fairness Opinion...............................................................................33
3.14. No Prior Activities............................................................................33
3.15. Ownership of Company Stock.....................................................................33
ARTICLE IV
ADDITIONAL COVENANTS OF THE COMPANY
4.1. Conduct of Business of the Company and
the Company Subsidiaries.......................................................................34
4.2. Notification of Certain Matters................................................................37
4.3. Access and Information.........................................................................38
4.4. Shareholder Approval...........................................................................38
4.5. Reasonable Best Efforts........................................................................38
</TABLE>
ii
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<TABLE>
<CAPTION>
<S> <C>
4.6. Public Announcements...........................................................................39
4.7. Compliance.....................................................................................40
4.8. No Solicitation................................................................................40
4.9. Tax Opinion Certificate........................................................................42
4.10. SEC and Shareholder Filings....................................................................43
ARTICLE V
ADDITIONAL COVENANTS OF PURCHASER
5.1. Access and Information.........................................................................43
5.2. Notification of Certain Matters................................................................43
5.3. Reasonable Best Efforts........................................................................44
5.4. Compliance.....................................................................................44
5.5. SEC and Shareholder Filings....................................................................44
5.6. Tax Opinion Certificate........................................................................44
5.7. Indemnification................................................................................44
5.8. Benefit Plans and Employee Matters.............................................................46
ARTICLE VI
CONDITIONS
6.1. Conditions to Each Party's Obligations.........................................................46
6.2. Conditions to Obligations of the Company.......................................................47
6.3. Conditions to Obligations of Purchaser.........................................................49
6.4. Frustration of Conditions......................................................................51
ARTICLE VII
TERMINATION AND ABANDONMENT
7.1. Termination....................................................................................51
7.2. Effect of Termination and Abandonment..........................................................52
ARTICLE VIII
MISCELLANEOUS
8.1. Confidentiality................................................................................53
8.2. The Rainforest Cafe Friends of the Future Foundation...........................................54
8.3. Additional Approvals...........................................................................55
8.4. Amendment and Modification.....................................................................55
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
8.5. Waiver of Compliance; Consents.................................................................55
8.6. Survival.......................................................................................55
8.7. Notices........................................................................................55
8.8. Binding Effect; Assignment.....................................................................57
8.9. Expenses.......................................................................................57
8.10. Governing Law..................................................................................57
8.11. Counterparts...................................................................................57
8.12. Interpretation.................................................................................57
8.13. Entire Agreement...............................................................................58
8.14. Severability...................................................................................58
8.15. Specific Performance...........................................................................58
8.16. Third Parties..................................................................................59
8.17. Disclosure Schedules...........................................................................59
8.18. Obligation of Purchaser........................................................................59
</TABLE>
Exhibits:
Exhibit A - Form of Stockholder Agreements
Exhibit B - Form of Employee Termination, Consulting and Non-Competition
Agreement
iv
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made and entered into as
of February 9, 2000, by and among Rainforest Cafe, Inc., a Minnesota corporation
(the "Company"), Landry's Seafood Restaurants, Inc., a Delaware corporation
("Purchaser"), and LSR Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of Purchaser ("Merger Sub") .
WITNESSETH:
WHEREAS, the respective Boards of Directors of Merger Sub, Purchaser and the
Company have approved the merger (the "Merger") of the Company with and into
Merger Sub in accordance with the laws of the State of Minnesota and the State
of Delaware and the provisions of this Agreement;
WHEREAS, as a condition and inducement to Purchaser's and the Merger Sub's
entering into this Agreement and incurring the obligations set forth herein,
concurrently with the execution and delivery of this Agreement, Purchaser is
entering into Stockholder Agreements, in the form of Exhibit A hereto (the
"Stockholder Agreements"), with each of the stockholders named therein, pursuant
to which, among other things, such stockholders have agreed to vote their
Company Shares (as defined in Section 1.3) in favor of the Merger provided for
herein;
WHEREAS, the Board of Directors of the Company (including all of the
disinterested directors of the Company's Board of Directors) has approved the
transactions contemplated by this Agreement and the Stockholder Agreements in
accordance with the provisions of Sections 302A.613 and 302A.673 of the
Minnesota Business Corporation Act ("MBCA");
WHEREAS, for United States federal income tax purposes, it is intended that the
Merger provided for herein shall qualify as a reorganization under Section
368(a) of the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder (the "Code"), and this Agreement is intended
to be and is adopted as a plan of reorganization within the meaning of Section
368 of the Code; and
WHEREAS, the Company, Merger Sub and Purchaser desire to make certain
representations, warranties and agreements in connection with, and establish
various conditions precedent to, the Merger.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements hereinafter set forth, the parties hereto
agree as follows:
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ARTICLE I
TERMS OF THE MERGER
1.1. The Merger. Upon the terms and subject to the conditions
of this Agreement, the Merger shall be consummated in accordance with the MBCA
and the Delaware General Corporation Law (the "DGCL"). At the Effective Time (as
defined below), upon the terms and subject to the conditions of this Agreement,
the Company shall be merged with and into Merger Sub in accordance with the MBCA
and the DGCL and the separate existence of the Company shall thereupon cease,
and Merger Sub, as the surviving corporation in the Merger (the "Surviving
Corporation") shall continue its corporate existence under the laws of the State
of Delaware as a subsidiary of Purchaser. The parties shall prepare and execute
Articles of Merger (the "Articles of Merger") and a Certificate of Merger (the
"Certificate of Merger") in order to comply in all respects with the
requirements of the MBCA and the DGCL, respectively, and with the provisions of
this Agreement.
1.2. The Closing; Effective Time. (a) The closing of the
Merger (the "Closing") shall take place at the offices of Skadden, Arps, Slate
Meagher & Flom LLP, Four Times Square, New York, New York 10036, at 10:00 a.m.
local time on a date to be specified by the parties which shall be no later than
the third business day after the date that all of the closing conditions set
forth in Article VI have been satisfied or waived (if waivable) unless another
time, date or place is agreed upon in writing by the parties hereto.
(b) The Merger shall become effective at the time of the
filing of the Articles of Merger with the Secretary of State of the State of
Minnesota and the Certificate of Merger with the Secretary of State of the State
of Delaware in accordance with the applicable provisions of the MBCA and the
DGCL or at such later time as may be specified in the Articles of Merger and
Certificate of Merger. The time when the Merger shall become effective is herein
referred to as the "Effective Time" and the date on which the Effective Time
occurs is herein referred to as the "Closing Date."
1.3. Merger Consideration. (a) Subject to the provisions of
this Agreement and any applicable backup or other withholding requirements, each
of the issued shares (the "Company Shares") of common stock, no par value, of
the Company (the "Company Stock") outstanding immediately prior to the Effective
Time (except for Company Shares to be canceled, as set forth in Section 1.3(d)
and Dissenting Shares, as defined in Section 1.9 hereof) shall be converted, by
virtue of the Merger and without any action on the part of the holder thereof,
into the right to receive such number of shares of the common stock, par value
$.01 per share, of Purchaser (the "Purchaser Stock") or cash, without any
interest thereon, as specified in Section 1.5 hereof, subject to payment of cash
in lieu of any fractional share as hereinafter provided (the "Merger
Consideration").
-2-
<PAGE> 8
(b) No fractional shares of Purchaser Stock shall be issued
pursuant to the Merger nor will any fractional share interest involved entitle
the holder thereof to vote, to receive dividends or to exercise any other rights
of a shareholder of Purchaser. In lieu thereof, any holder of Company Stock who
would otherwise be entitled to a fractional share of Purchaser Stock pursuant to
the provisions hereof shall receive an amount in cash pursuant to Section 1.5(h)
hereof.
(c) Subject to the provisions of this Agreement, at the
Effective Time, each share of Merger Sub common stock outstanding immediately
prior to the Merger shall be converted, by virtue of the Merger and without any
action on the part of the holder thereof, into one share of common stock of the
Surviving Corporation (the "Surviving Corporation Common Stock"), which shares
of Surviving Corporation Common Stock shall constitute all of the issued and
outstanding capital stock of the Surviving Corporation and shall be wholly owned
by Purchaser.
(d) Any shares of Company Stock owned by Purchaser, Merger Sub
or any other wholly owned subsidiaries of Purchaser immediately prior to the
Merger shall be canceled and retired at the Effective Time and shall cease to
exist and no Purchaser Stock or other consideration shall be delivered in
exchange therefor.
(e) On and after the Effective Time, holders of certificates
representing shares of Company Stock (the "Certificates") immediately prior to
the Effective Time shall cease to have any rights as stockholders of the
Company, except the right to receive the Merger Consideration for each Company
Share held by them or the right, if so demanded, to receive payment from the
Company of the "fair value" of such Company Shares as determined in accordance
with the MBCA.
1.4. Election Procedure. Each holder of Company Shares (other
than holders of Company Shares to be canceled as set forth in Section 1.3(d))
shall have the right to submit a request specifying the number of Company Shares
that such holder desires to have converted into Purchaser Stock in the Merger
and the number of Company Shares that such holder desires to have converted into
the right to receive $5.23 in cash per Company Share (the "Purchaser Share
Price"), without interest (the "Cash Consideration"), in the Merger in
accordance with the following procedure:
(a) Each holder of Company Shares may specify in a request
made in accordance with the provisions of this Section 1.4 (herein called an
"Election") (i) the number of Company Shares owned by such holder that such
holder desires to have converted into Purchaser Stock in the Merger (a "Stock
Election") and (ii) the number of Company Shares owned by such holder that such
holder desires to have converted into the right to receive the Cash
Consideration in the Merger (a "Cash Election").
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<PAGE> 9
(b) Purchaser shall prepare a form (the "Form of Election")
pursuant to which each holder of Company Shares at the close of business on the
Election Deadline (as defined in Section 1.4(d)) may make an election and which
shall be mailed to the Company's stockholders in accordance with Section 1.4(c)
so as to permit the Company's stockholders to exercise their right to make an
Election prior to the Election Deadline.
(c) Purchaser shall use all reasonable efforts to mail the
Form of Election available to all stockholders of the Company at least ten
business days prior to the Election Deadline.
(d) Any Company stockholder's election shall have been made
properly only if the person authorized to receive Elections and to act as
exchange agent under this Agreement, which exchange agent shall be mutually
acceptable to the Company and Purchaser (the "Exchange Agent") shall have
received, by 5:00 p.m. local time in the city in which the principal office of
such Exchange Agent is located, on the date of the Election Deadline, a Form of
Election properly completed and signed and accompanied by certificates for the
Company Shares to which such Form of Election relates (or by an appropriate
guarantee of delivery of such certificates, as set forth in such Form of
Election, from a member of any registered national securities exchange or of the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States provided such certificates are in fact delivered to
the Exchange Agent by the time required in such guarantee of delivery). Failure
to deliver Company Shares covered by such a guarantee of delivery within the
time set forth on such guarantee shall be deemed to invalidate any otherwise
properly made Election. As used herein, "Election Deadline" means the date
announced by Purchaser, as the last day on which Forms of Election will be
accepted; provided, that such date shall be a business day no earlier than
twenty business days prior to the Effective Time and no later than the date on
which the Effective Time occurs.
(e) Any Company stockholder may at any time prior to the
Election Deadline change his Election by written notice received by the Exchange
Agent prior to the Election Deadline accompanied by a revised Form of Election
properly completed and signed.
(f) Any Company stockholder may, at any time prior to the
Election Deadline, revoke his Election by written notice received by the
Exchange Agent prior to the Election Deadline or by withdrawal prior to the
Election Deadline of his certificates for Company Shares, or of the guarantee of
delivery of such certificates, previously deposited with the Exchange Agent. All
Elections shall be revoked automatically if the Exchange Agent is notified in
writing by Purchaser or the Company that this Agreement has been terminated. Any
Company stockholder who shall have deposited certificates for Company Shares
with the Exchange Agent shall have the right to withdraw such certificates by
written notice received by the Exchange Agent and thereby revoke his Election as
of the Election Deadline if the Merger shall not have been consummated prior
thereto.
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<PAGE> 10
(g) Purchaser shall have the right to make rules, not
inconsistent with the terms of this Agreement, governing the validity of the
Forms of Election, the manner and extent to which Elections are to be taken into
account in making the determinations prescribed by Section 1.5, the issuance and
delivery of certificates for Purchaser Stock into which Company Shares are
converted in the Merger and the payment of cash for Company Shares converted
into the right to receive the Cash Consideration in the Merger.
1.5. Issuance of Purchaser Stock and Payment of Cash
Consideration; Proration. The manner in which each Company Share (other than
Dissenting Shares and Company Shares to be canceled as set forth in Section
1.3(d)) shall be converted into Purchaser Stock or the right to receive the Cash
Consideration on the Effective Date shall be as set forth in this Section 1.5.
All references to "outstanding" Company Shares in this Section 1.5 shall mean
all Company Shares outstanding immediately prior to the Effective Time minus
Company Shares owned by Purchaser or by any direct or indirect wholly-owned
subsidiary of Purchaser.
(a) As is more fully set forth below, the number of Company
Shares to be converted into Purchaser Stock in the Merger pursuant to this
Agreement shall be equal as nearly as practicable to 65% of all outstanding
Company Shares and the number of Company Shares to be converted into the right
to receive the Cash Consideration in the Merger pursuant to this Agreement shall
be equal as nearly as practicable to 35% of all outstanding Company Shares.
(b) If Stock Elections are received for a number of Company
Shares that is 65% or less of the outstanding Company Shares, each Company Share
covered by a Stock Election shall be converted in the Merger into 0.5816 of a
share of Purchaser Stock (the "Conversion Fraction"). The parties hereto
acknowledge that the Conversion Fraction was based on an agreed upon value of
$9.00 per share of Purchaser Stock. In the event that between the date of this
Agreement and the Effective Time, the issued and outstanding shares of Purchaser
Stock shall have been affected or changed into a different number of shares or a
different class of shares as a result of a stock split, reverse stock split,
stock dividend, spin-off, extraordinary dividend, recapitalization,
reclassification or other similar transaction, the Conversion Fraction shall be
appropriately adjusted.
(c) If Stock Elections are received for more than 65% of the
outstanding Company Shares, each Non-Electing Company Share (as defined in
Section 1.5(g)) and each Company Share for which a Cash Election has been
received shall be converted into the right to receive the Cash Consideration in
the Merger, and the Company Shares for which Stock Elections have been received
shall be converted into Purchaser Stock and the right to receive the Cash
Consideration in the following manner:
(1) The Exchange Agent will distribute
to each holder of Company Shares as to which a Stock Election has been
made a number of shares of Purchaser Stock equal to the Conversion
Fraction for a fraction of such Company Shares, the numerator of which
fraction shall be 65% of
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<PAGE> 11
the number of then outstanding Company Shares and the denominator of
which shall be the aggregate number of Company Shares as to which Stock
Elections have been made.
(2) Company Shares covered by a Stock
Election and not fully converted into the right to receive Purchaser
Stock as set forth in clause (1) above shall be converted in the Merger
into the right to receive the Cash Consideration for each such Company
Share, in an amount to offset the reduction of shares of Purchaser
Stock affected pursuant to clause (1) above.
(d) If Cash Elections are received for a number of Company
Shares that is 35% or less of the outstanding Company Shares, each Company Share
covered by a Cash Election shall be converted in the Merger into the right to
receive the Cash Consideration.
(e) If Cash Elections are received for a number of Company
Shares that is more than 35% of the outstanding Company Shares, each
Non-Electing Company Share (as defined in Section 1.5(g)) and each Company Share
for which a Stock Election has been received shall be converted in the Merger
into a fraction of a share of Purchaser Stock equal to the Conversion Fraction,
and the Company Shares for which Cash Elections have been received shall be
converted into the right to receive the Cash Consideration and Purchaser Stock
in the following manner:
(1) The Exchange Agent will distribute
to each holder of Company Shares as to which a Cash Election has been
made the Cash Consideration for a fraction of such Company Shares, the
numerator of which fraction shall be 35% of the number of then
outstanding Company Shares and the denominator of which shall be the
aggregate number of Company Shares covered by Cash Elections.
(2) Company Shares covered by a Cash
Election and not fully converted into the right to receive the Cash
Consideration as set forth in clause (1) above shall be converted in
the Merger into the right to receive a number of shares of Purchaser
Stock equal to the Conversion Fraction for each such Company Share to
offset the reduction in Cash Consideration affected pursuant to clause
(1) above.
(f) If Non-Electing Company Shares are not converted under
either Section 1.5(c) or Section 1.5(e), the Exchange Agent shall convert each
Non-Electing Company Share into such combination of Purchaser Stock and Cash
Consideration such that the sum of the number of Company Shares converted into
cash pursuant to this Section 1.5(f) and the number of Company Shares for which
Cash Elections have been received is as close as practicable to 35% of the
outstanding Company Shares. The portion of each Non-Electing Company Share not
so converted into the right to receive the Cash Consideration pursuant to clause
(i) above shall be
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<PAGE> 12
converted in the Merger into a fraction of a share of Purchaser Stock equal to
the Conversion Fraction.
(g) For the purposes of this Section 1.5, outstanding Company
Shares as to which an Election is not in effect at the Election Deadline shall
be called "Non-Electing Company Shares." If Purchaser and the Company shall
determine that any Election is not properly made with respect to any Company
Shares, such Election shall be deemed to be not in effect, and the Company
Shares covered by such Election shall, for purposes hereof, be deemed to be
Non-Electing Company Shares.
(h) Notwithstanding anything to the contrary contained herein,
no certificates or scrip representing fractional shares of Purchaser Stock shall
be issued upon the surrender for exchange of Certificates, no dividend or
distribution with respect to Company Shares shall be payable on or with respect
to any fractional share and such fractional share interests shall not entitle
the owner thereof to vote or to any other rights of a stockholder of Purchaser.
In lieu of any such fractional share of Purchaser Stock, Purchaser shall pay to
each former stockholder of the Company who otherwise would be entitled to
receive a fractional share of Purchaser Stock an amount in cash determined by
multiplying (i) the Purchaser Share Price by (ii) the fractional interest in a
share of Purchaser Stock to which such holder would otherwise be entitled.
1.6. Issuance of Purchaser Stock. Immediately prior to the
Effective Time, Purchaser shall deliver, in trust, to the Exchange Agent
certificates representing an aggregate number of shares of Purchaser Stock as
nearly as practicable equal to the number of shares to be converted into
Purchaser Stock as determined in Section 1.5. As soon as practicable after the
Effective Time, each holder of Company Shares converted into Purchaser Stock
pursuant to Section 1.3(a), upon surrender to the Exchange Agent (to the extent
not previously surrendered with a Form of Election) of one or more certificates
for such Company Shares for cancellation, shall be entitled to receive
certificates representing the number of shares of Purchaser Stock into which
such Company Shares shall have been converted in the Merger. No dividends or
distributions that have been declared will be paid to persons entitled to
receive certificates for shares of Purchaser Stock until such persons surrender
their certificates for Company Shares, at which time all such dividends shall be
paid. In no event shall the persons entitled to receive such dividends be
entitled to receive interest on such dividends. If any certificate for such
Purchaser Stock is to be issued in a name other than that in which the
certificate for Company Shares surrendered in exchange therefor is registered,
it shall be a condition of such exchange that the person requesting such
exchange shall pay to the Exchange Agent any transfer or other taxes required by
reason of issuance of certificates for such Purchaser Stock in a name other than
the registered holder of the certificate surrendered, or shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any
party hereto shall be liable to a holder of Company Shares for any Purchaser
Stock or dividends thereon delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
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<PAGE> 13
1.7. Payment of Cash Consideration. Immediately following the
Effective Time, Purchaser shall deposit in trust with the Exchange Agent an
amount in cash up to an amount equal to the Purchaser Share Price multiplied by
the number of Company Shares to be converted into the right to receive the Cash
Consideration as determined in Section 1.5. As soon as practicable after the
Effective Time, the Exchange Agent shall distribute to holders of Company Shares
converted into the right to receive the Cash Consideration pursuant to Section
1.3(a), upon surrender to the Exchange Agent (to the extent not previously
surrendered with a Form of Election) of one or more certificates for such
Company Shares for cancellation, a bank check for an amount equal to the
Purchaser Share Price times the number of Company Shares so converted. In no
event shall the holder of any such surrendered certificates be entitled to
receive interest on any of the Cash Consideration to be received in the Merger.
If such check is to be issued in the name of a person other than the person in
whose name the certificates for the Company Shares surrendered for exchange
therefor are registered, it shall be a condition of the exchange that the person
requesting such exchange shall pay to the Exchange Agent any transfer or other
taxes required by reason of issuance of such check to a person other than the
registered holder of the certificates surrendered, or shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any
party hereto shall be liable to a holder of Company Shares for any amount paid
to a public official pursuant to any applicable abandoned property, escheat or
similar law.
1.8. Options. (a) Except as provided in paragraph (b) below with
respect to the Company's 1996 Employee Stock Purchase Plan, as amended (the
"Company ESPP"), at the Effective Time, each then outstanding and unexercised
option (the "Company Options") exercisable for shares of Company Stock shall
become fully vested and exercisable (by virtue of their terms) and Purchaser
shall cause each holder of a Company Option to receive, by virtue of the Merger
and without any action on the part of the holder thereof, options exercisable
for shares of Purchaser Stock ("Purchaser Replacement Options") having the same
terms and conditions as the Company Options (including such terms and conditions
as may be incorporated by reference into the agreements evidencing the Company
Options pursuant to the plans or arrangements pursuant to which such Company
Options were granted) except that the exercise price and the number of shares
issuable upon exercise shall be divided and multiplied, respectively, by the
Conversion Fraction, and rounded to the nearest whole cent or number,
respectively. Purchaser shall use all reasonable efforts to ensure that any
Company Options that qualified as incentive stock options under Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code") prior to the
Effective Time continue to so qualify after the Effective Time. Purchaser shall
take all corporate action necessary to reserve for issuance a sufficient number
of shares of Purchaser Stock for delivery upon the exercise of Purchaser
Replacement Options after the Effective Time. Promptly after the Effective Time,
Purchaser shall file or cause to be filed all registration statements on Form
S-8 or other appropriate form as may be necessary in connection with the
purchase and sale of Purchaser Stock contemplated by such Purchaser Replacement
Options subsequent to the Effective Time, and shall maintain the effectiveness
of such registration statements (and maintain the current status of the
prospectus or prospectuses
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<PAGE> 14
contained therein) for so long as any of the Purchaser Replacement Options
registered thereunder remain outstanding. As soon as practicable after the
Effective Time, Purchaser shall qualify under applicable state securities laws
the issuance of such shares of Purchaser Stock issuable upon exercise of
Purchaser Replacement Options. Purchaser's Board of Directors shall take all
actions necessary on the part of Purchaser to enable the acquisition of
Purchaser Stock, Purchaser Replacement Options and subsequent transactions in
Purchaser Stock after the Effective Time pursuant to Purchaser Replacement
Options by persons subject to the reporting requirements of Section 16(a) of the
Securities Exchange Act (as defined below) to be exempt from the application of
Section 16(b) of the Securities Exchange Act, to the extent permitted
thereunder.
(b) The current offerings in process as of the date of this
Agreement under the Company ESPP shall continue, and Company Shares shall be
issued to participants thereunder on the next currently scheduled purchase dates
thereunder occurring after the date hereof as provided under, and subject to the
terms and conditions of, the Company ESPP. The Company may, consistent with past
practice, commence new offering periods under the Company ESPP on or after the
date hereof and prior to the Effective Time at an exercise price for each such
offering not less than as is required under the Company ESPP. Immediately prior
to the Effective Time, pursuant to the Company ESPP, all offerings under the
Company ESPP shall be terminated, and each participant shall be deemed to have
purchased immediately prior to the Effective Time, to the extent of payroll
deductions accumulated by such participant as of such offering period end, the
number of whole shares of Company Stock at a per share price determined pursuant
to the provisions of the Company ESPP, and each participant shall receive a cash
payment equal to the balance, if any, of such accumulated payroll deductions
remaining after such purchase of such shares. As of the Effective Time, each
participant shall receive, by virtue of the Merger, the number of whole shares
of Purchaser Stock or cash into which the shares of Company Stock such
participant has so purchased under the Company ESPP have been converted pursuant
to the Merger as provided in Section 1.3(a) hereof, plus the cash value of any
fraction of a share of Purchaser Common Stock as provided in Section 1.5(h)
hereof, plus any dividends or distributions as provided in Section 1.6. The
Company ESPP and all purchase rights thereunder shall terminate effective as of
the Effective Time.
1.9. Dissenting Shares. Notwithstanding any provision of this
Agreement to the contrary, each outstanding share of Company Stock, the holder
of which has demanded and perfected such holder's right to dissent from the
Merger and to be paid the fair value of such shares in accordance with Sections
302A.471 and 302A.473 of the MBCA and, as of the Effective Time, has not
effectively withdrawn or lost such dissenters' rights ("Dissenting Shares"),
shall not be converted into or represent a right to receive the Purchaser Stock
into which shares of Company Stock are converted, or to receive cash, pursuant
to Section 1.5 hereof, but the holder thereof shall be entitled only to such
rights as are granted by the MBCA. Purchaser shall cause the Company to make all
payments to holders of shares of Company Stock with respect to such demands in
accordance with the MBCA. The Company shall give Purchaser (i) prompt written
notice of any notice of intent to demand fair value for any shares of Company
Stock, withdrawals of such notices, and any other instruments served pursuant to
the MBCA and
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<PAGE> 15
received by the Company, and (ii) the opportunity to conduct jointly all
negotiations and proceedings with respect to demands for fair value for shares
of Company Stock under the MBCA. The Company shall not, except with the prior
written consent of Purchaser or as otherwise required by law, voluntarily make
any payment with respect to any demands for fair value for shares of Company
Stock or offer to settle or settle any such demands.
1.10. Articles of Incorporation and Bylaws. Subject to Section 5.7
hereof, at and after the Effective Time until the same have been duly amended,
(i) the Articles of Incorporation of the Surviving Corporation shall be
identical to the Articles of Incorporation of Merger Sub in effect at the
Effective Time, except that the name of the Surviving Corporation shall be
Rainforest Cafe, Inc. (or a name comparable thereto), and (ii) and the Bylaws of
the Surviving Corporation shall be identical to the Bylaws of Merger Sub in
effect at the Effective Time.
1.11. Stock Transfer Books. At the Effective Time, the stock
transfer books of the Company shall be closed and no transfer of Company Shares
shall thereafter be made. If, after the Effective Time, Certificates are
presented to the Surviving Corporation, they shall be canceled and exchanged for
cash and/or certificates representing Purchaser Stock pursuant to this Article
I.
1.12. Directors and Officers. At and after the Effective Time, the
directors of Merger Sub immediately prior to the Effective Time shall be the
directors of the Surviving Corporation, and the officers of the Merger Sub
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation, in each case until their successors are elected or appointed and
qualified. If, at the Effective Time, a vacancy shall exist on the Board of
Directors or in any office of the Surviving Corporation, such vacancy may
thereafter be filled in the manner provided by law.
1.13. Other Effects of Merger. The Merger shall have all further
effects as specified in the applicable provisions of the MBCA and the DGCL.
1.14. Registration Statement Prospectus/Proxy Statement.
(a) For the purposes of (i) registering Purchaser Stock for
issuance to holders of the Company Shares in connection with the Merger with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended, and the rules and regulations thereunder (the "Securities Act"), and
complying with applicable state securities laws, and (ii) holding the meeting of
the Company's shareholders to vote upon the approval of this Agreement and the
Merger and the other transactions contemplated hereby (collectively, the
"Company Proposals"), Purchaser and the Company will cooperate in the
preparation of a registration statement on Form S-4 (such registration
statement, together with any and all amendments and supplements thereto, being
herein referred to as the "Registration Statement"), including a
prospectus/proxy statement satisfying all requirements of applicable state
securities
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<PAGE> 16
laws, the Securities Act and the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder (the "Securities Exchange Act"). Such
prospectus/proxy statement in the form mailed by the Company to its
shareholders, together with any and all amendments or supplements thereto, is
herein referred to as the "Prospectus/Proxy Statement."
(b) The Company will furnish Purchaser with such information
concerning the Company and its subsidiaries as is necessary in order to cause
the Prospectus/Proxy Statement, insofar as it relates to the Company and its
subsidiaries, to comply with applicable Law. None of the information relating to
the Company and its subsidiaries supplied by the Company for inclusion in the
Prospectus/Proxy Statement will be false or misleading with respect to any
material fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Company agrees
promptly to advise Purchaser if, at any time prior to the meeting of the
shareholders of the Company, referenced herein, any information provided by it
in the Prospectus/Proxy Statement is or becomes incorrect or incomplete in any
material respect and to provide Purchaser with the information needed to correct
such inaccuracy or omission. The Company will furnish Purchaser with such
supplemental information as may be necessary in order to cause the
Prospectus/Proxy Statement, insofar as it relates to the Company and its
subsidiaries, to comply with applicable Law after the mailing thereof to the
shareholders of the Company.
(c) Purchaser will furnish the Company with such information
concerning Purchaser and its subsidiaries as is necessary in order to cause the
Prospectus/Proxy statement, insofar as it relates to Purchaser and its
subsidiaries, to comply with applicable Law. None of the information relating to
Purchaser and its subsidiaries supplied by Purchaser for inclusion in the
Prospectus/Proxy Statement will be false or misleading with respect to any
material fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Purchaser agrees
promptly to advise the Company if, at any time prior to the meeting of
shareholders of the Company referenced herein, any information provided by it in
the Prospectus/Proxy Statement is or becomes incorrect or incomplete in any
material respect and to provide the Company with the information needed to
correct such inaccuracy or omission. Purchaser will furnish the Company with
such supplemental information as may be necessary in order to cause the
Prospectus/Proxy Statement, insofar as it relates to Purchaser and its
subsidiaries, to comply with applicable Law after the mailing thereof to the
shareholders of the Company.
(d) The Company and Purchaser agree to cooperate in making any
preliminary filings of the Prospectus/Proxy Statement with the SEC, as promptly
as practicable, pursuant to Rule 14a-6 under the Securities Exchange Act.
(e) Purchaser will file the Registration Statement with the SEC
and appropriate materials with applicable state securities agencies as promptly
as practicable and will
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<PAGE> 17
use all reasonable efforts to cause the Registration Statement to become
effective under the Securities Act and all such state filed materials to comply
with applicable state securities Laws. Purchaser shall provide the Company for
its review a copy of the Registration Statement at least such amount of time
prior to each filing thereof as is customary in transactions of the type
contemplated hereby and shall not make any filing with the SEC without the prior
written consent of the Company, which consent shall not be unreasonably withheld
or delayed. The Company authorizes Purchaser to utilize in the Registration
Statement and in all such state filed materials, the information concerning the
Company and its subsidiaries provided to Purchaser in connection with, or
contained in, the Prospectus/Proxy Statement. Purchaser promptly will advise the
Company when the Registration Statement has become effective, and of any
supplements or amendments thereto, and Purchaser will furnish the Company with
copies of all documents. Except for the Prospectus/Proxy Statement or the
preliminary prospectus/proxy statement, neither Purchaser nor the Company shall
distribute any written material that might constitute a "prospectus" relating to
the Merger or the Company Proposals within the meaning of the Securities Act or
any applicable state securities Law without the prior written consent of the
other party.
1.15. Tax-Free Reorganization. The parties intend that the Merger
qualify as a reorganization within the meaning of Section 368(a) of the Code.
None of the parties will knowingly take any action that would cause the Merger
to fail to qualify as a reorganization within the meaning of Section 368(a) of
the Code.
1.16. Additional Actions. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or otherwise in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties or assets of Merger Sub or the Company or otherwise carry out
this Agreement, the officers and directors of the Surviving Corporation shall be
authorized to execute and deliver, in the name and on behalf of Merger Sub or
the Company, all such deeds, bills of sale, assignments and assurances and to
take and do, in the name and on behalf of Merger Sub or the Company, all such
other actions and things as may be necessary or desirable to vest, perfect or
confirm any and all right, title and interest in, to and under such rights,
properties or assets in the Surviving Corporation or otherwise to carry out this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure schedule from the Company to Purchaser to
be delivered upon the execution of this Agreement, which sets forth certain
disclosures concerning the Company and its business (the "Company Disclosure
Schedule"), each section of which only
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<PAGE> 18
qualifies the correspondingly numbered representation or warranty, the Company
hereby represents and warrants to Purchaser and Merger Sub as follows:
2.1. Due Incorporation and Good Standing. The Company and each
subsidiary of the Company (the "Company Subsidiaries") is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. The Company and each of the Company Subsidiaries is duly
qualified or licensed and in good standing to do business in each jurisdiction
in which the character of the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so duly qualified or licensed and in
good standing would not be reasonably likely to have a material adverse effect
on the business, assets, prospects, condition (financial or otherwise),
liabilities or the results of operations of the Company and its subsidiaries
taken as a whole, except in each case for any such effects resulting from,
arising out of, or relating to (i) general business or economic conditions, (ii)
conditions generally affecting the industry in which the Company competes, or
(iii) the taking of any action contemplated by this Agreement (a "Company
Material Adverse Effect"). The Company has heretofore made available to
Purchaser accurate and complete copies of the Articles of Incorporation and
Bylaws, as currently in effect, of the Company.
2.2. Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of 50 million shares of capital stock. As
of February 8, 2000, 23,272,232 shares of Company Stock were issued and
outstanding. No other shares of capital stock of the Company is authorized or
issued. As of February 8, 2000, a total of 4,966,716 Company Shares are reserved
for future issuance to employees and directors upon exercise of any Company
Options, warrants or other rights to purchase or acquire any shares of capital
stock of the Company (including restricted stock, stock equivalents and stock
units). As of February 8, 2000, there were 1,452,387 Company Options with an
exercise price of $5.625 or less. Since February 2, 2000, the Company has not
issued or granted additional Company Options. All issued and outstanding shares
of the Company Stock are, and all shares which may be issued upon exercise of
then outstanding Company Options will be when issued, duly authorized, validly
issued, fully paid and non-assessable. Except as otherwise contemplated by this
Agreement, as of the date hereof there are no outstanding rights, subscriptions,
warrants, puts, calls, unsatisfied preemptive rights, options or other
agreements of any kind relating to any of the outstanding, authorized but
unissued or unauthorized shares of capital stock or any other security of the
Company, and there is no authorized or issued security of any kind convertible
into or exchangeable, for any such capital stock or other security.
2.3. Subsidiaries. Section 2.3 of the Company Disclosure Schedule
sets forth the name and jurisdiction of incorporation or organization of each
Company Subsidiary, each of which is wholly owned by the Company except as
otherwise indicated in said Section 2.3 of the Company Disclosure Schedule. All
of the capital stock and other interests of the Company
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<PAGE> 19
Subsidiaries so held by the Company are owned by it or a Company Subsidiary as
indicated in said Section 2.3 of the Company Disclosure Schedule, free and clear
of any claim, lien, encumbrance, security interest or agreement with respect
thereto. All of the outstanding shares of capital stock in each of the Company
Subsidiaries directly or indirectly held by the Company are duly authorized,
validly issued, fully paid and non-assessable and were issued free of preemptive
rights and in compliance with applicable Laws. No equity securities or other
interests of any of the Company Subsidiaries are or may become required to be
issued or purchased by reason of any options, warrants, rights to subscribe to,
puts, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, shares of any capital
stock of any Company Subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Company Subsidiary is bound to issue
additional shares of its capital stock, or options, warrants or rights to
purchase or acquire any additional shares of its capital stock or securities
convertible into or exchangeable for such shares.
2.4. Authorization; Binding Agreement. The Company has all
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, including, but not limited to, the Merger, have been duly and validly
authorized by the Company's Board of Directors, and no other corporate
proceedings on the part of the Company or any Company Subsidiary are necessary
to authorize the execution and delivery of this Agreement or to consummate the
transactions contemplated hereby (other than the requisite approval of this
Agreement and the Merger by the shareholders of the Company in accordance with
the MBCA). This Agreement has been duly and validly executed and delivered by
the Company and constitutes the legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by principles of equity regarding the
availability of remedies ("Enforceability Exceptions"). The Company's Board of
Directors (including all of the disinterested directors of the Company's Board
of Directors) has approved for purposes of Sections 302A.613 and 302A.673 of the
MBCA (a) this Agreement and the Stockholder Agreements and the transactions
contemplated hereby and thereby, and (b) the formation of any "group" for
purposes of Section 13(d)(3) of the Securities Exchange Act that may be deemed
to exist as a result of the execution and delivery of the Stockholder Agreements
or otherwise in connection with the transactions contemplated by this Agreement
and the Stockholder Agreements.
2.5. Governmental Approvals. No consent, approval, waiver or
authorization of, notice to or declaration or filing with ("Consent"), any
nation or government, any state or other political subdivision thereof, any
entity, authority or body exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
including, without limitation, any governmental or regulatory authority, agency,
department, board, commission, administration or instrumentality, any court,
tribunal or arbitrator or any self regulatory
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<PAGE> 20
organization ("Governmental Authority") on the part of the Company or any of the
Company Subsidiaries is required in connection with the execution or delivery by
the Company of this Agreement or the consummation by the Company of the
transactions contemplated hereby other than (i) the filing of the Articles of
Merger with the Secretary of State of the State of Minnesota in accordance with
the MBCA and the filing of the Certificate of Merger with the Secretary of State
of the State of Delaware in accordance with the DGCL, (ii) filings with the SEC,
state securities laws administrators and the National Association of Securities
Dealers, Inc. ("NASD"), (iii) filings under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder (the "HSR Act"), (iv) such filings as may be required in any
jurisdiction where the Company is qualified or authorized to do business as a
foreign corporation in order to maintain such qualification or authorization and
(v) those Consents that, if they were not obtained or made, would not be
reasonably likely to have a Company Material Adverse Effect.
2.6. No Violations. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby and compliance by the
Company with any of the provisions hereof will not (i) conflict with or result
in any breach of any provision of the Articles of Incorporation or Bylaws or
other governing instruments of the Company or any of the Company Subsidiaries,
(ii) except as set forth on Section 2.6 of the Company Disclosure Schedule,
require any Consent under or result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any agreement or other instrument to which the
Company or any Company Subsidiaries are parties or by which their respective
assets are bound, (iii) result in the creation or imposition of any lien or
encumbrance of any kind upon any of the assets of the Company or any Company
Subsidiary or (iv) subject to obtaining the Consents from Governmental
Authorities referred to in Section 2.5 hereof, contravene any applicable
provision of any statute, law, rule or regulation or any order, decision,
injunction, judgment, award or decree ("Law") to which the Company or any
Company Subsidiary or its or any of their respective assets or properties are
subject, except, in the case of clauses (ii), (iii) and (iv) above, for any
deviations from the foregoing which would not be reasonably likely to have a
Company Material Adverse Effect.
2.7. Securities Filings. (a) The Company has made available to
Purchaser true and complete copies of (i) its Annual Reports on Form 10-K for
the years ended January 3, 1999, December 28, 1997 and December 29, 1996 as
filed with the SEC, (ii) its proxy statements relating to all of the meetings of
shareholders (whether annual or special) of the Company since December 29, 1996,
as filed with the SEC, and (iii) all other reports, statements and registration
statements and amendments thereto (including, without limitation, Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K, as amended) filed by the
Company with the SEC since December 29, 1996. The reports and statements set
forth in clauses (i) through (iii) above, and those subsequently provided or
required to be provided pursuant to this Section 2.7, are referred to
collectively herein as the "Company Securities Filings." As of their respective
dates, and as of the date of the last amendment thereof, if amended after
filing, none of the Company Securities
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<PAGE> 21
Filings contained or, as to the Company Securities Filings subsequent to the
date hereof, will contain, any untrue statement of a material fact or omitted
or, as to the Company Securities Filings subsequent to the date hereof, will
omit, to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Each of the Company Securities Filings at the time of
filing and as of the date of the last amendment thereof, if amended after
filing, complied or, as to the Company Securities Filings subsequent to the date
hereof, will comply in all material respects with the Securities Exchange Act or
the Securities Act, as applicable.
2.8. Company Financial Statements. The audited consolidated
financial statements and unaudited interim financial statements of the Company
included in the Company Securities Filings (the "Company Financial Statements")
have been prepared or will be prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
therein or in the notes thereto) and present or will present fairly, in all
material respects, the financial position of the Company and its subsidiaries as
at the dates thereof and the results of their operations and cash flows for the
periods then ended, subject, in the case of the unaudited interim financial
statements, to normal year-end audit adjustments, any other adjustments
described therein and the fact that certain information and notes have been
condensed or omitted in accordance with the Securities Exchange Act. All
accounts receivable of the Company, whether reflected in the Company Financial
Statements or otherwise, represent sales actually made in the ordinary course of
business, and are current and collectible net of any reserves shown in the
Company Financial Statements filed prior to the date hereof.
2.9. Absence of Certain Changes or Events; No Undisclosed
Liabilities. Except as set forth in Section 2.9 of the Company Disclosure
Schedule, since January 3, 1999, through the date of this Agreement, there has
not been: (i) any event that has had or would reasonably be expected to have a
Company Material Adverse Effect, (ii) any declaration, payment or setting aside
for payment of any dividend or other distribution or any redemption or other
acquisition of any shares of capital stock or securities of the Company by the
Company or any Company Subsidiary, (iii) any material damage or loss to any
material asset or property, whether or not covered by insurance, or (iv) any
change by the Company in accounting principles or practices. Except as set forth
in Section 2.9 of the Company Disclosure Schedule, since June 30, 1999, through
the date of this Agreement, there has not been any action taken by the Company
or any of the Company Subsidiaries that, if taken during the period from the
date of this Agreement through the Effective Time, would constitute a breach of
Section 4.1. Except for those liabilities that are fully reflected or reserved
against on the balance sheet of the Company included in its January 3, 1999 Form
10-K and for liabilities incurred in the ordinary course of business consistent
with past practice, since January 3, 1999, neither the Company nor any of the
Company Subsidiaries has incurred any liability of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether due or to become
due) that, either individually or in the aggregate, has had or would be
reasonably likely to have a Company Material Adverse Effect.
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<PAGE> 22
2.10. Compliance with Laws. The business of the Company and each
of the Company Subsidiaries has been operated in compliance with all Laws
applicable thereto, except for any instances of non-compliance which would not
be reasonably likely to have a Company Material Adverse Effect.
2.11. Permits. (i) The Company and each of the Company
Subsidiaries have all permits (including signage permits) certificates,
licenses, approvals and other authorizations required in connection with the
operation of their respective businesses (collectively, "Company Permits"), (ii)
neither the Company nor any of the Company Subsidiaries is in violation of any
Company Permit and (iii) no proceedings are pending or, to the knowledge of the
Company, threatened, to revoke or limit any Company Permit, except, in each
case, those the absence or violation of which would not be reasonably likely to
have a Company Material Adverse Effect.
2.12. Litigation. Except as disclosed in the Section 2.12 of the
Company Disclosure Schedule, there is no suit, action or proceeding
("Litigation") pending or, to the knowledge of the Company, threatened against
the Company or any of the Company Subsidiaries which, individually or in the
aggregate, would be reasonably likely to have a Company Material Adverse Effect,
nor is there any judgment, decree, injunction, rule or order of any Governmental
Authority outstanding against the Company or any of the Company Subsidiaries
which, individually or in the aggregate, would be reasonably likely to have a
Company Material Adverse Effect.
2.13. Contracts.
(a) Neither the Company nor any of the Company Subsidiaries is a
party or is subject to any franchise, management, royalty, license, lease or
joint venture agreement or any material note, bond, mortgage, indenture,
contract, lease, license, agreement or instrument ("Company Material Contract")
that is not so listed in Section 2.13(a) of the Company Disclosure Schedule. All
such Company Material Contracts are valid and binding and are in full force and
effect and enforceable against the Company or such Company Subsidiary in
accordance with their respective terms, subject to the Enforceability
Exceptions. Neither the Company nor any of the Company Subsidiaries is in
violation or breach of or default under any such Company Material Contract where
such violation or breach would be reasonably likely to have a Company Material
Adverse Effect.
(b) Except as is listed in Section 2.13(b) of the Company
Disclosure Schedule, neither the Company nor any Company Subsidiary is a party
to, or has any of its assets or properties subject to, any agreement,
arrangement or understanding (written or oral) with any other person (including
a Company Subsidiary or an affiliate of the Company or of any Company
Subsidiary), which (i) provides capital, surplus, balance sheet or any other
form of economic or financial support to such other person, (ii) guarantees the
obligations of, or performance of any acts, by such other person, or (iii)
imposes legal liability on the Company or any Company
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<PAGE> 23
Subsidiary for any payments (contingent or otherwise) under any note, guarantee,
debt, bond, mortgage, indenture, contract, lease, license, agreement or
instrument.
2.14. Employee Benefit Plans. (a) Section 2.14 of the Company
Disclosure Schedule contains a complete and accurate list of all material
Benefit Plans (as defined below) maintained or contributed to by the Company or
any of the Company Subsidiaries ("Company Benefit Plan"). A "Benefit Plan" shall
include (i) an employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, together with all
regulations thereunder ("ERISA"), and (ii) whether or not described in the
preceding clause, any pension, profit sharing, stock bonus, deferred or
supplemental compensation, retirement, thrift, stock purchase or stock option
plan or any other compensation, welfare, fringe benefit or retirement plan,
program, policy or arrangement providing for benefits for or the welfare of any
or all of the current or former employees or agents of the Company or any of its
subsidiaries or their beneficiaries or dependents; provided that Benefit Plans
shall not include any multiemployer plan, as defined in Section 3(37) of ERISA
(a "Multiemployer Plan"). Each of the Company Benefit Plans has been maintained
in compliance in all material respects with its terms and all applicable Law.
Neither the Company nor any of the Company Subsidiaries contributes to, or has
any outstanding liability with respect to, any Multiemployer Plan.
(b) The Company has identified in Section 2.14(b) of the Company
Disclosure Schedule and has made available to Purchaser true and complete copies
of (1) all severance, employment consulting and other agreements with directors,
executive officers, key employees or consultants of the Company; (2) all
severance programs and policies of each of the Company and each Company
Subsidiary with or relating to its employees or directors; and (3) all plans,
programs, agreements and other arrangements of each of the Company and each
Company Subsidiary with or relating to its employees which contain change in
control provisions. Except as set forth in Section 2.14(b) of the Company
Disclosure Schedule (which includes the amount of the payments due under such
agreements, programs, policies, plans, or other arrangements referred to in the
preceding sentence), neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (either alone or
in conjunction with any other event, such as termination of employment) (A)
result in any material payment (including, without limitation, severance,
unemployment compensation, golden parachute or otherwise) becoming due to any
director or any employee of the Company or any Company Subsidiary or affiliate
from the Company or any Company Subsidiary or affiliate under any Company
Benefit Plan or otherwise, (B) materially increase any benefits otherwise
payable under any Company Benefit Plan or (C) result in any acceleration of the
time of payment or vesting of any material benefits.
(c) Except as set forth in Section 2.14(c) of the Company
Disclosure Schedule, neither the Company nor any Company Subsidiary is a party
to any contract, plan, or arrangement under which it is obligated to make or to
provide, or could become obligated to
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<PAGE> 24
make or to provide, a payment or benefit that would be nondeductible by virtue
of Section 162(m) or 280G of the Code.
2.15. Taxes and Returns. (a) The Company and each of its
subsidiaries has timely filed, or caused to be timely filed, all Tax Returns (as
defined below) required to be filed by it, and has paid, collected or withheld,
or caused to be paid, collected or withheld, all Taxes (as defined below)
required to be paid, collected or withheld, other than such Taxes for which
adequate reserves in the Company Financial Statements have been established.
There are no claims or assessments pending against the Company or any of the
Company Subsidiaries for any alleged deficiency in any Tax, and the Company has
not been notified in writing of any proposed Tax claims or assessments against
the Company or any of the Company Subsidiaries (other than, in each case, claims
or assessments for which adequate reserves in the Company Financial Statements
have been established or which are being contested in good faith or are
immaterial in amount). Neither the Company nor any of the Company Subsidiaries
has any outstanding waivers or extensions of any applicable statute of
limitations to assess any material amount of Taxes. There are no outstanding
requests by the Company or any of the Company Subsidiaries for any extension of
time within which to file any Tax Return or within which to pay any Taxes shown
to be due on any return. There are no liens for material amounts of Taxes on the
assets of the Company or any of the Company Subsidiaries except for statutory
liens for current Taxes not yet due and payable.
(b) None of the Company or any of the Company Subsidiaries has
taken or agreed to take any action that would prevent the Merger from
constituting a reorganization qualifying under the provisions of Section 368(a)
of the Code.
(c) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby (either alone or in
combination with another event) will not result in any payment (whether of
severance pay, unemployment compensation, golden parachute, bonus or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase in
benefits or obligation to fund benefits with respect to any employee or director
of the Company or any of the Company Subsidiaries.
(d) None of the Company or any of the Company Subsidiaries has
been a member of any consolidated, combined, unitary or affiliated group of
corporations for any Tax purposes other than a group of which the Company is or
was the common parent corporation.
(e) None of the Company or any of the Company Subsidiaries has
made any change in accounting method or received a ruling from, or signed an
agreement with, any taxing authority that could reasonably be expected to have a
Company Material Adverse Effect following the Closing.
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<PAGE> 25
(f) None of Company or any of the Company Subsidiaries is
currently being audited by any taxing authority and none of the Company or any
of its Subsidiaries has been notified by any tax authority that any such audit
is contemplated or pending.
(g) For purposes of this Agreement, the term "Tax" shall mean
any tax, custom, duty, governmental fee or other like assessment or charge of
any kind whatsoever, imposed by any Governmental Authority (including, but not
limited to, any federal, state, local, foreign or provincial income, gross
receipts, property, sales, use, license, excise, franchise, employment, payroll,
alternative or added minimum, ad valorem, transfer or excise tax) together with
any interest, addition or penalty imposed thereon. The term "Tax Return" shall
mean a report, return or other information (including any attached schedules or
any amendments to such report, return or other information) required to be
supplied to or filed with a Governmental Authority with respect to any Tax,
including an information return, claim for refund, amended return or declaration
or estimated Tax.
2.16. Intellectual Property. (a) The Company or the Company
Subsidiaries own, or are licensed or otherwise possess legally enforceable
rights to use all: (i) trademarks and service marks (registered or
unregistered), trade dress, trade names and other names and slogans embodying
business goodwill or indications of origin, all applications or registrations in
any jurisdiction pertaining to the foregoing and all goodwill associated
therewith; (ii) patentable inventions, technology, computer programs and
software (including password unprotected interpretive code or source code,
object code, development documentation, programming tools, drawings,
specifications and data) and all applications and patents in any jurisdiction
pertaining to the foregoing, including re-issues, continuations, divisions,
continuations-in-part, renewals or extensions; (iii) trade secrets, including
confidential and other non-public information; (iv) copyrights in writings,
designs, software programs, mask works or other works, applications or
registrations in any jurisdiction for the foregoing and all moral rights related
thereto; (v) databases and all database rights; and (vi) Internet Web sites,
domain names and applications and registrations pertaining thereto that, in each
case, are used in the respective businesses of the Company or the Company
Subsidiaries as currently conducted (as described in clauses (i) through (vi)
above, collectively, "Company Intellectual Property"), except for any such
failures to own, be licensed or possess that would not be reasonably likely to
have a Company Material Adverse Effect.
(b) Except as set forth on Section 2.16(b) of the Company
Disclosure Schedule, to the Company's knowledge, there are no conflicts with or
infringements of any material Company Intellectual Property by any third party
and the conduct of the businesses as currently conducted does not conflict with
or infringe any proprietary right of a third party, except for any such
conflicts or infringements that would not be reasonably likely to have a Company
Material Adverse Effect.
(c) Section 2.16 (c) of the Company Disclosure Schedule sets
forth a complete list of all material trademarks, registrations and applications
pertaining to the Company
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<PAGE> 26
Intellectual Property owned by the Company and the Company Subsidiaries. All
such Company Intellectual Property listed is owned by the Company and/or the
Company Subsidiaries, free and clear of liens or encumbrances of any nature.
(d) Section 2.16(d) of the Company Disclosure Schedule sets
forth a complete list of all licenses, sublicenses and other agreements in which
the Company and the Company Subsidiaries have granted rights to any person to
use the Company Intellectual Property. The Company will not, as a result of the
execution and delivery of this Agreement or the performance of its obligations
under this Agreement, be in breach of any license, sublicense or other agreement
relating to the Company Intellectual Property.
(e) The Company and each of the Company Subsidiaries own or have
the right to use all computer software currently used in and material to the
businesses, except for any failures to own or have the right to use that would
not be reasonably likely to have a Company Material Adverse Effect.
(f) All Company Intellectual Property was developed by: (i)
employees of the Company within the scope of their employment; or (ii)
independent contractors as "works- made-for-hire" as that term is defined under
Section 101 of the United States copyright laws, pursuant to written agreements.
2.17. Finders and Investment Bankers. Other than pursuant to the
Piper Engagement Letter, neither the Company nor any of its officers or
directors has employed any broker or finder or otherwise incurred any liability
for any brokerage fees, commissions or finders' fees in connection with the
transactions contemplated hereby. For purposes of this Agreement, the term
"Piper Engagement Letter" means the letter dated December 16, 1999 from U.S.
Bancorp Piper Jaffray to the Company, as amended by a letter dated February 8,
2000 from U.S. Bancorp Piper Jaffray to the Company. A true and complete copy of
the Piper Engagement Letter has been delivered by the Company to Purchaser prior
to the date hereof.
2.18. Fairness Opinion. The Company has received from U.S. Bancorp
Piper Jaffray, its financial advisor, a written opinion addressed to it for
inclusion in the Prospectus/Proxy Statement to the effect that the consideration
to be received in the Merger by the Company's shareholders is fair to the
Company's shareholders from a financial point of view.
2.19. Insurance. Section 2.19 of the Company Disclosure Schedule
sets forth a true and complete list of all insurance policies carried by, or
covering the Company and the Company Subsidiaries with respect to their
businesses, assets and properties and with respect to which records are
maintained at the Company's principal executive offices, together with, in
respect of each such policy, the amount of coverage and the deductible. The
Company and the Company Subsidiaries maintain insurance policies against all
risk of a character, including without limitation, business interruption
insurance, and in such amounts as are usually insured against by similarly
situated companies in the same or similar businesses. Each insurance policy
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<PAGE> 27
set forth on Section 2.19 of the Company Disclosure Schedule is in full force
and effect and all premiums due thereon have been paid in full.
2.20. Vote Required; Ownership of Purchaser Capital Stock; State
Takeover Statutes. (a) The approval of the Company Proposal by a vote of a
majority of the holders of the issued and outstanding Company Shares is the only
vote of the holders of any class or series of the Company's capital stock
necessary to approve the Merger and the transactions contemplated hereunder.
(b) Neither the Company nor any of the Company Subsidiaries
beneficially owns, either directly or indirectly, any shares of Purchaser
capital stock.
(c) The Company has taken all actions necessary under the MBCA
to approve the transactions contemplated by this Agreement and the Stockholder
Agreements. Assuming for purposes of this Section 2.20(c) that no person or
entity associated or affiliated with Purchaser is an "interested shareholder"
(as such term is defined in the MBCA) of the Company who has not continuously
been an interested shareholder of the Company during the four-year period
preceding the Merger, Section 302A.673 of the MBCA applicable to a "business
combination" does not, and will not, prohibit the transactions contemplated
hereunder, and the restrictions contained in Section 302A.671 of the MBCA
applicable to "control share acquisitions" will not prohibit the authorization,
execution, delivery and performance of this Agreement or the consummation of the
Merger by the Company. The authorization, execution and delivery of this
Agreement and the Stockholder Agreements do not, and the consummation of the
transactions contemplated hereunder and thereunder do not, and any formation of
a "group" for purposes of Section 13(d)(3) of the Securities Exchange Act in
connection with this Agreement and the Stockholder Agreements will not, result
in a "control share acquisition" as defined in Section 302A.011 of the MBCA. No
other "fair price," "moratorium," or other similar anti-takeover statute or
regulation prohibits (by reason of Company's participation therein) the Merger
or the other transactions contemplated by this Agreement.
2.21. Title to Properties. Section 2.21 of the Company Disclosure
Schedule sets forth a complete list of all material real property owned in fee
by Company or any of the Company Subsidiaries and sets forth all material real
property leased by Company or any of the Company Subsidiaries as lessee as of
the date hereof (such owned and leased material real property, including all
improvements thereon, referred to collectively as the "Company Real Property").
The Company Real Property set forth in Section 2.21 of the Company Disclosure
Schedule comprises all of the material real property necessary and/or currently
used in the operations of the business of the Company and the Company
Subsidiaries. The Company and the Company Subsidiaries have good and valid title
to, or, as to Company Real Property designated as leased, a valid leasehold
interest in, all of the Company Real Property. The Company Real Property is free
of encumbrances, except for (a) liens with respect to Taxes either not
delinquent or being diligently contested in appropriate proceedings; (b)
mechanics', materialmen's or similar statutory liens for amounts not yet due or
being diligently contested in
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<PAGE> 28
appropriate proceedings; and (c) other exceptions with respect to title to
Company Real Property (including easements of public record) that do not and
would not materially interfere with the current and intended use of such Company
Real Property (clauses, (a), (b), and (c) being referred to herein as "Permitted
Encumbrances"), and the consummation of the transactions contemplated hereby
will not create any encumbrance (other than Permitted Encumbrances) on any of
the Company Real Property. Each of the Company and the Company Subsidiaries
enjoys peaceful and undisturbed possession under all leases of Company Real
Property, except for such breaches of the right to peaceful and undisturbed
possession that do not materially interfere with the ability of the Company and
the Company Subsidiaries to conduct their business on such property.
2.22. Environmental Matters. The Company has not, and no third
party has, generated, treated, stored, released or disposed of, or otherwise
placed, deposited in or located on the Company Real Property, any toxic or
hazardous substances or wastes, pollutants or contaminants (including, without
limitations, asbestos, urea formaldehyde, the group of organic compounds known
as polychlorinated biphenyls, petroleum products including gasoline, fuel oil,
crude oil and various constituents of such products, and any hazardous substance
as defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42 U.S.C. ss. 9601-9657, as amended)
(collectively, "Hazardous Substances") except in material compliance with all
applicable Laws, and no Hazardous Substances have been generated, treated,
stored, released or disposed of, or otherwise placed, deposited in or located on
the Company Real Property except in material compliance with all applicable
Laws, nor has any activity been undertaken on the Company Real Property that
would cause or contribute to (a) the Company Real Property becoming a treatment,
storage or disposal facility in material violation of, the Resource Conservation
and Recovery Act of 1976 ("RCRA"), 42 U.S.C. ss. 6901 et seq., or any similar
state law or local ordinance, (b) a release or threatened release of toxic or
hazardous wastes or substances, pollutants or contaminants from the Company Real
Property in material violation of CERCLA or any similar state law or local
ordinance, or (c) the discharge of pollutants or effluents into any water source
or system, the dredging or filling of any waters or the discharge into the air
of any emissions, for which the Company does not have all material required
permits under the Federal Water Act, 33 U.S.C. ss. 1251 et seq., or the Clean
Air Act, 42 U.S.C. ss. 7401 et seq., or any similar state law or local
ordinance, in each case except for any such noncompliance, violations, or
failures as would not be reasonably likely to have a Company Material Adverse
Effect. There are no substances or conditions in or on the Company Real Property
that may support a claim or cause of action under RCRA, CERCLA or any other
federal, state or local environmental statutes, regulations, ordinances or other
environmental regulatory requirements, except for any such claims or causes of
action as would not be reasonably likely to have a Company Material Adverse
Effect. There are no above ground or underground tanks that have been located
under, in or about the Company Real Property which have been subsequently
removed or filled. To the extent storage tanks exist on or under the Company
Real Property, such storage tanks have been duly registered with all appropriate
regulatory and governmental bodies and are otherwise in compliance with
applicable federal, state and local statutes, regulations, ordinances and other
regulatory requirements.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as set forth in the disclosure schedule from Purchaser to the Company to
be delivered upon the execution of this Agreement, which sets forth certain
disclosures concerning Purchaser and its business (the "Purchaser Disclosure
Schedule"), each section of which qualifies only the correspondingly numbered
representation or warranty, Purchaser hereby represents and warrants to the
Company as follows:
3.1. Due Incorporation and Good Standing. Each of Purchaser
and Merger Sub is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization
and has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as now being conducted. Purchaser is
duly qualified or licensed and in good standing to do business in each
jurisdiction in which the character of the property owned, leased or operated by
it or the nature of the business conducted by it makes such qualification or
licensing necessary, except where the failure to be so duly qualified or
licensed and in good standing would not be reasonably likely to have a material
adverse effect on the business, assets, prospects, condition (financial or
otherwise), liabilities or the results of operations of Purchaser and its
subsidiaries taken as a whole except in each case for any such effects resulting
from, arising out of, or relating to (i) general business or economic
conditions, (ii) conditions generally affecting the industry in which Purchaser
competes, or (iii) the taking of any action contemplated by this Agreement
("Purchaser Material Adverse Effect"). Purchaser has heretofore made available
to the Company accurate and complete copies of the Articles of Incorporation and
Bylaws, as currently in effect, of Purchaser.
3.2. Capitalization. As of the date hereof, the authorized
capital stock of Purchaser consists of sixty million shares of common stock, par
value $.01 per share, and two million shares of preferred stock, par value $.01
per share. As of February 4, 2000, 24,824,133 shares of Purchaser Stock were
issued and outstanding and 6,421,157 shares of Purchaser were held in the
treasury of Purchaser. No other capital stock of Purchaser is authorized or
issued. All issued and outstanding shares of the Purchaser Stock are, and all
such shares to be issued to Company stockholders in connection with the Merger
will upon issuance be, duly authorized, validly issued, fully paid and
non-assessable.
3.3. Authorization; Binding Agreement. Purchaser and Merger
Sub have all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, including, but not limited to, the Merger, have been duly
and validly authorized by the respective Boards of
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Directors of Purchaser and Merger Sub, as appropriate, and no other corporate
proceedings on the part of Purchaser or Merger Sub are necessary to authorize
the execution and delivery of this Agreement or to consummate the transactions
contemplated hereby (other than the requisite approval by the sole shareholder
of Merger Sub of this Agreement and the Merger). This Agreement has been duly
and validly executed and delivered by each of Purchaser and Merger Sub and
constitutes the legal, valid and binding agreement of Purchaser and Merger Sub,
enforceable against each of Purchaser and Merger Sub in accordance with its
terms, subject to the Enforceability Exceptions.
3.4. Governmental Approvals. No Consent from or with any
Governmental Authority on the part of Purchaser or Merger Sub is required in
connection with the execution or delivery by Purchaser of this Agreement or the
consummation by Purchaser of the transactions contemplated hereby other than (i)
the filing of the Articles of Merger with the Secretary of State of the State of
Minnesota in accordance with the MBCA and the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware in accordance with
the DGCL; (ii) filings with the SEC, state securities laws administrators and
the New York Stock Exchange (the "NYSE"); (iii) filings under the HSR Act; (iv)
such filings as may be required in any jurisdiction where Purchaser is qualified
or authorized to do business as a foreign corporation in order to maintain such
qualification or authorization; and (v) those Consents that, if they were not
obtained or made, would not be reasonably likely to have a Purchaser Material
Adverse Effect.
3.5. No Violations. Except as set forth in Section 3.5 of the
Purchaser Disclosure Schedule, the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and compliance by Purchaser
and Merger Sub with any of the provisions hereof will not (i) conflict with or
result in any breach of any provision of the Articles of Incorporation or Bylaws
or other governing instruments of Purchaser or Merger Sub, (ii) require any
Consent under or result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any agreement or other instrument to which Purchaser
is a party or by which its assets are bound, (iii) result in the creation or
imposition of any lien or encumbrance of any kind upon any of the assets of
Purchaser or Merger Sub or (iv) subject to obtaining the Consents from
Governmental Authorities referred to in Section 3.4 hereof, contravene any Law
to which Purchaser or Merger Sub or its or any of their respective assets or
properties are subject, except, in the case of clauses (ii), (iii) and (iv)
above, for any deviations from the foregoing which would not be reasonably
likely to have a Purchaser Material Adverse Effect.
3.6. Securities Filings. Purchaser has made available to the
Company true and complete copies of (i) its Annual Reports on Form 10-K for the
year ended December 31, 1998, as filed with the SEC, (ii) its proxy statements
relating to all of the meetings of shareholders (whether annual or special) of
Purchaser since December 31, 1998, as filed with the SEC, and (iii) all other
reports, statements and registration statements and amendments thereto
(including,
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without limitation, Quarterly Reports on Form 10-Q and Current Reports on Form
8-K, as amended) filed by Purchaser with the SEC since December 31, 1998. The
reports and statements set forth in clauses (i) through (iii) above, and those
subsequently provided or required to be provided pursuant to this Section 3.6,
are referred to collectively herein as the "Purchaser Securities Filings." As of
their respective dates, or as of the date of the last amendment thereof, if
amended after filing, none of the Purchaser Securities Filings contained or, as
to Purchaser Securities Filings subsequent to the date hereof, will contain, any
untrue statement of a material fact or omitted or, as to Purchaser Securities
Filings subsequent to the date hereof, will omit, to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. Each of
the Purchaser Securities Filings at the time of filing or as of the date of the
last amendment thereof, if amended after filing, complied or, as to Purchaser
Securities Filings subsequent to the date hereof, will comply in all material
respects with the Securities Exchange Act or the Securities Act, as applicable.
3.7. Purchaser Financial Statements. The audited consolidated
financial statements and unaudited interim financial statements of Purchaser
included in the Purchaser Securities Filings (the "Purchaser Financial
Statements") have been prepared or will be in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
therein or in the notes thereto) and present or will present fairly, in all
material respects, the financial position of Purchaser and its subsidiaries as
at the dates thereof and the results of their operations and cash flows for the
periods then ended, subject, in the case of the unaudited interim financial
statements, to normal year-end audit adjustments, any other adjustments
described therein and the fact that certain information and notes have been
condensed or omitted in accordance with the Securities Exchange Act.
3.8. Absence of Certain Changes or Events; No Undisclosed
Liabilities. Except as set forth in Section 3.8 of the Purchaser Disclosure
Schedule, since December 31, 1998, through the date of this Agreement, there has
not been (i) any event that has had or would reasonably be expected to have a
Purchaser Material Adverse Effect or (ii) any declaration, payment or setting
aside for payment any dividend or other distribution or redemption or other
acquisition of any shares of capital stock of Purchaser by Purchaser. Except for
those liabilities that are fully reflected or reserved against on the
consolidated balance sheet of Purchaser included in its December 31, 1998, Form
10-K and for liabilities incurred in the ordinary course of business consistent
with past practice, since December 31, 1998, neither Purchaser nor any of the
Purchaser Subsidiaries has incurred any liability of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether due or to become
due) that, either individually or in the aggregate, has had or would be
reasonably likely to result in a Purchaser Material Adverse Effect.
3.9. Compliance with Laws. The business of Purchaser and each
of its subsidiaries has been operated in compliance with all Laws applicable
thereto, except for any
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instances of non-compliance which would not be reasonably likely to have a
Purchaser Material Adverse Effect.
3.10. Litigation. Except as disclosed in Section 3.10 of the
Purchaser Disclosure Schedule, there is no Litigation pending or, to the
knowledge of Purchaser, threatened against, Purchaser or any of its subsidiaries
which, individually or in the aggregate, would be reasonably likely to have a
Purchaser Material Adverse Effect, nor is there any judgment, decree,
injunction, rule or order of any Governmental Authority outstanding against
Purchaser or any of its subsidiaries which, individually or in the aggregate,
would be reasonably likely to have a Purchaser Material Adverse Effect.
3.11. Tax Returns. Purchaser has timely filed, or caused to be
timely filed, all material Tax Returns required to be filed by it, and has paid,
collected or withheld, or caused to be paid, collected or withheld, all material
amounts of Taxes required to be paid, collected or withheld, other than such
Taxes for which adequate reserves in the Purchaser Financial Statements have
been established or which are being contested in good faith. There are no
material claims or assessments pending against Purchaser for any alleged
deficiency in any Tax. To Purchaser's knowledge, none of Purchaser or any of the
Purchaser Subsidiaries has taken or agreed to take any action that would prevent
the Merger from constituting a reorganization qualifying under the provisions of
Section 368(a) of the Code.
3.12. Finders and Investment Bankers. Other than Banc of
America Securities LLC, neither Purchaser nor any of its officers or directors
has employed any broker or finder or otherwise incurred any liability for any
brokerage fees, commissions or finders' fees in connection with the transactions
contemplated hereby.
3.13. Fairness Opinion. Purchaser's Board of Directors has
received from its financial advisor, Banc of America Securities LLC, a written
opinion addressed to it for inclusion in the Prospectus/Proxy Statement to the
effect that the Merger Consideration is fair to Purchaser from a financial point
of view.
3.14. No Prior Activities. Except for obligations or
liabilities incurred in connection with its incorporation or organization or the
negotiation and consummation of this Agreement and the transactions contemplated
hereby, Merger Sub has not incurred any obligations or liabilities, and has not
engaged in any business or activities of any type or kind whatsoever or entered
into any agreements or arrangements with any person or entity.
3.15. Ownership of Company Stock. Purchaser does not
beneficially own, either directly or indirectly, more than 100 shares of Company
Stock. None of the Purchaser Subsidiaries beneficially owns, either directly or
indirectly, any shares of Company Stock.
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3.16. Financing. Purchaser will have prior to the satisfaction
of the conditions to the Merger, sufficient funds available to purchase the
Company Shares converted into the right to receive Cash Consideration.
ARTICLE IV
ADDITIONAL COVENANTS OF THE COMPANY
The Company covenants and agrees as follows:
4.1. Conduct of Business of the Company and the Company
Subsidiaries. (a) Unless Purchaser shall otherwise agree in writing and except
as expressly contemplated by this Agreement or as set forth on Section 4.1 of
the Company Disclosure Schedule (the inclusion of any item having been consented
to by Purchaser), during the period from the date of this Agreement to the
Effective Time, (i) the Company shall conduct, and it shall cause each of the
Company Subsidiaries to conduct, its or their businesses in the ordinary course
and consistent with past practice, and the Company shall, and it shall cause
each of the Company Subsidiaries to, use its or their reasonable best efforts to
preserve intact its business organization, to keep available the services of its
officers and employees, to maintain satisfactory relationships with all persons
with whom it does business, and to preserve the possession, control and
condition of all of its assets and (ii) without limiting the generality of the
foregoing, neither the Company nor any Company Subsidiary will:
(A) amend or propose to amend its Articles of Incorporation
or Bylaws (or comparable governing instruments);
(B) authorize for issuance, issue, grant, sell, pledge,
dispose of or propose to issue, grant, sell, pledge or dispose of any shares of,
or any options, warrants, commitments, subscriptions or rights of any kind to
acquire or sell any shares of, the capital stock or other securities of the
Company or any of its subsidiaries including, but not limited to, any securities
convertible into or exchangeable for shares of stock of any class of the Company
or any of its subsidiaries, except for (i) the issuance of Company Shares
pursuant to the exercise of stock options outstanding on the date of this
Agreement in accordance with their present terms, and (ii) subject to the
limitations set forth in Section 1.8, the grant of purchase rights pursuant to
the Company ESPP or the issuance of Company Stock upon the exercise of such
purchase rights;
(C) split, combine or reclassify any shares of its capital
stock or declare, pay or set aside any dividend or other distribution (whether
in cash, stock or property or any combination thereof) in respect of its capital
stock, other than dividends or distributions to the Company or any Company
Subsidiary, or directly or indirectly redeem, purchase or otherwise acquire or
offer to acquire any shares of its capital stock or other securities and other
than
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pursuant to commitments outstanding on the date of this Agreement in accordance
with their present terms as set forth on Schedule 4.1 of the Company Disclosure
Schedule.
(D) (a) create, incur, assume, forgive or make any changes to
the terms or collateral of any debt, receivables or employee or officer loans or
advances, except incurrences that constitute refinancing of existing obligations
on terms that are no less favorable to the Company or its subsidiaries than the
existing terms; (b) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, indirectly, contingently or otherwise) for the
obligations of any person; (c) make any capital expenditures or incur any
pre-opening expenses, other than consistent as set forth in Section 4.1 of the
Company Disclosure Schedule; (d) make any loans, advances or capital
contributions to, or investments in, any other person (other than to a Company
subsidiary and customary travel, relocation or business advances to employees);
(e) acquire the stock or assets of, or merge or consolidate with, any other
person; (f) voluntarily incur any material liability or obligation (absolute,
accrued, contingent or otherwise) other than in the ordinary course of business
consistent with past practice; or (g) sell, transfer, mortgage, pledge, or
otherwise dispose of, or encumber, or agree to sell, transfer, mortgage, pledge
or otherwise dispose of or encumber, any assets or properties, real, personal or
mixed material to the Company and the Company Subsidiaries taken as a whole
other than to secure debt permitted under subclause (a) of this clause (D) or
other than in the ordinary course of business consistent with past practice;
(E) increase in any manner the wages, salaries, bonus,
compensation or other benefits of any of its officers or employees or enter
into, establish, amend or terminate any employment, consulting, retention,
change in control, collective bargaining, bonus or other incentive compensation,
profit sharing, health or other welfare, stock option or other equity, pension,
retirement, vacation, severance, termination, deferred compensation or other
compensation or benefit plan, policy, agreement, trust, fund or arrangement
with, for or in respect of, any shareholder, officer, director, other employee,
agent, consultant or affiliate other than as required pursuant to the terms of
agreements in effect on the date of this agreement, or enter into or engage in
any agreement, arrangement or transaction with any of its directors, officers,
employees or affiliates except current compensation and benefits in the ordinary
course of business, consistent with past practice;
(F) (i) commence or settle any litigation or other
proceedings with any Governmental Authority or other person, or (ii) make or
rescind any election relating to Taxes, settle any claim, action, suit,
litigation, proceeding, arbitration, investigation, audit or controversy
relating to Taxes, file any amended Tax Return or claim for refund, change any
method of accounting or make any other material change in its accounting or Tax
policies or procedures, or commit or omit to do any act which act or omission
would cause the Merger to fail to qualify as a reorganization within the meaning
of Section 368(a) of the Code.
(G) adopt or amend any resolution or agreement concerning
indemnification of its directories, officers, employees or agents;
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<PAGE> 35
(H) commit or omit to do any act which act or omission would
cause a breach of any covenant contained in this Agreement or would cause any
representation or warranty contained in this Agreement to become untrue, as if
each such representation and warranty were continuously made from and after the
date hereof;
(I) fail to maintain its books, accounts and records in the
usual manner on a basis consistent with that heretofore employed;
(J) materially increase or decrease the average restaurant,
corporate or warehouse facility inventory or house bank accounts in any
restaurant;
(K) enter into any new line of business;
(L) enter into any lease, contract or agreement pursuant to
which the Company is obligated to pay or incur obligations of more than $25,000
per year, other than (i) the purchase of inventory in the ordinary course of
business consistent with past practice or in connection with the construction of
restaurants as listed in Section 4.1 of the Company Disclosure Schedule and
approved, if required, pursuant to clause (N) below;
(M) make any changes to its current investment strategy,
policy or practices;
(N) make, engage or incur costs for the design or
construction of any new restaurant, the remodeling or renovation of existing
restaurants or restaurants under construction without approval by Purchaser (it
being understood that Purchaser shall have approval of all design and
construction matters);
(O) allow any employee or other person to remove any Company
asset, display, proprietary asset, retail item or other property from the
corporate office, warehouses, restaurants of the Company or any other Company
facilities;
(P) issue any gift certificates, coupons or complimentary
rights for dining or retail other than in such amounts as are in the ordinary
course of business consistent with past practice; or
(Q) authorize any of, or agree to commit to do any of, the
foregoing actions.
(b) The Company shall, and the Company shall cause each of
its subsidiaries to, use its or their reasonable best efforts to comply in all
material respects with all Laws applicable to it or any of its properties,
assets or business and maintain in full force and effect all the Company Permits
necessary for, or otherwise material to, such business.
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4.2. Notification of Certain Matters. The Company shall give
prompt notice to Purchaser if any of the following occur after the date of this
Agreement: (i) receipt of any notice or other communication in writing from any
third party alleging that the Consent of such third party is or may be required
in connection with the transactions contemplated by this Agreement, provided
that such Consent would have been required to have been disclosed in this
Agreement; (ii) receipt of any material notice or other communication from any
Governmental Authority (including, but not limited to, the NASD or any
securities exchange) in connection with the transactions contemplated by this
Agreement; (iii) the occurrence of an event which would be reasonably likely to
have a Company Material Adverse Effect; or (iv) the commencement or threat of
any Litigation involving or affecting the Company or any Company Subsidiary, or
any of their respective properties or assets, or, to its knowledge, any
employee, agent, director or officer, in his or her capacity as such, of the
Company or any Company Subsidiary which, if pending on the date hereof, would
have been required to have been disclosed in this Agreement or which relates to
the consummation of the Merger.
4.3. Access and Information. Between the date of this
Agreement and the Effective Time, the Company will give, and shall direct its
accountants and legal counsel to give, Purchaser and its respective authorized
representatives (including, without limitation, its financial advisors,
accountants and legal counsel), at all reasonable times, access as reasonably
requested to all offices and other facilities and to all contracts, agreements,
commitments, books and records of or pertaining to the Company and its
subsidiaries, will permit the foregoing to make such reasonable inspections as
they may require and will cause its officers promptly to furnish Purchaser with
(a) such financial and operating data and other information with respect to the
business and properties of the Company and the Company Subsidiaries as Purchaser
may from time to time reasonably request, and (b) a copy of each material
report, schedule and other document filed or received by the Company or any
Company Subsidiary pursuant to the requirements of applicable securities laws or
the NASD.
4.4. Shareholder Approval. As soon as practicable, the Company
shall call, give notice of, convene and hold a meeting of its shareholders for
the purpose of approving the Company Proposals and for such other purposes as
may be necessary or desirable in connection with effectuating the transactions
contemplated hereby. Except as otherwise contemplated by this Agreement, the
Company will use reasonable best efforts to obtain any necessary approval by the
Company's shareholders of the Company Proposals. Notwithstanding the foregoing,
unless the Board of Directors of the Company, based on the opinion of its
outside legal counsel, determines that to do so would result in a breach of the
fiduciary duties of the Company's Board of Directors under applicable law, the
Company, acting through its Board of Directors, shall include in the
Prospectus/Proxy Statement the recommendation of the Board of Directors that
shareholders of the Company vote in favor of the Company Proposals.
4.5. Reasonable Best Efforts.
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(a) Subject to the terms and conditions herein provided, the
Company agrees to use its 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 to consummate and make effective as promptly as practicable the Merger
and the other transactions contemplated by this Agreement, including, but not
limited to, (i) obtaining all Consents from Governmental Authorities and other
third parties required for the consummation of the Merger and the transactions
contemplated hereby (provided that the Company shall not make any payment or
amend the terms of any agreement in connection with obtaining any such Consent
without the prior written approval of Purchaser) and (ii) timely making all
necessary filings under the HSR Act. Upon the terms and subject to the
conditions hereof, the Company agrees to use reasonable best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary to satisfy the other conditions to Closing set forth herein.
(b) The Company agrees to inform Purchaser regularly, and to
respond to requests of Purchaser, as to the status of whether or not each
material Consent required from third parties (other than Governmental
Authorities) in connection with this Agreement and the transactions contemplated
hereby have been obtained. The Company shall promptly deliver to Purchaser in
writing a reasonably detailed notice (the "Consent Notice") as to the status of
all such material Consents on the sixtieth calendar day (such date, the "Consent
Notice Date") following public announcement of the Merger. In the event that the
Company has not obtained any one or more of such material Consents by the
Consent Notice Date, then Purchaser shall have up to and including the date (the
"Decision Date") which is ten business days following the later of the date of
its receipt of such written notice and the Consent Notice Date to (i) terminate
this Agreement in accordance with Section 7.1(f) hereof or (ii) waive any such
one or more material Consents by delivery of a reasonably detailed written
notice to the Company (any such material Consents so waived in writing by
Purchaser, collectively, the "Waived Consents"); provided, however, that in the
event that Purchaser has not by or on the Decision Date either (i) terminated
this Agreement in accordance with Section 7.1(f) hereof or (ii) waived all such
material Consents, then this Agreement shall terminate without any action by any
party hereto in accordance with Section 7.1(g) hereof. Notwithstanding any such
waiver of material Consents, if Purchaser has not so terminated this Agreement,
the Company shall continue to use its reasonable best efforts to actually obtain
the Waived Consents pursuant to Section 4.5(a) up to the Closing Date.
4.6. Public Announcements. So long as this Agreement is in
effect, the Company shall not, and shall cause its affiliates not to, (a) issue
or cause the publication of any press release or any other announcement or
communication with respect to the Merger or the other transactions contemplated
hereby without the written consent of Purchaser, or (b) discuss with the press
or the media this Agreement, the Merger or the transactions contemplated hereby
(and will refer any and all questions and inquiries to Purchaser), except in any
case under (a) or (b) where such release or announcement is required by
applicable Law or pursuant to any applicable listing agreement with, or rules or
regulations of, the NASD, in which case the Company, prior to making such
announcement, will consult with Purchaser regarding the same.
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4.7. Compliance. In consummating the Merger and the other
transactions contemplated hereby, the Company shall comply in all material
respects with the provisions of the Securities Exchange Act and the Securities
Act and shall comply, and/or cause its subsidiaries to comply or to be in
compliance, in all material respects, with all other applicable Laws.
4.8. No Solicitation. (a) The Company shall, and shall direct
and cause its officers, directors, employees, representatives and agents to,
immediately cease any discussions or negotiations with any parties that may be
ongoing with respect to a Company Takeover Proposal (as defined below) and
immediately request that all confidential information furnished by or on behalf
of the Company be returned. The Company shall not, nor shall it permit any of
its subsidiaries to, nor shall it authorize or permit any of its officers,
directors or employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it or any of its subsidiaries,
directly or indirectly, to (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; provided, however, that if, at any time
prior to the Company shareholder meeting with respect to the transactions
contemplated hereby, the Board of Directors of the Company determines in good
faith, based on the advice of its outside legal counsel, that the failure to do
so would result in a breach of its fiduciary duties to the Company's
shareholders under applicable Law, the Company may, in response to a Company
Superior Proposal (as defined below), and subject to compliance with Section
4.8(c), (x) furnish information with respect to the Company to any person
pursuant to a customary confidentiality agreement (as determined by the Company
after consultation with outside legal counsel) and (y) participate in
negotiations regarding such Company Takeover Proposal for purposes of
determining in good faith if such Company Takeover Proposal is a Company
Superior Proposal. "Company Takeover Proposal" means any inquiry, proposal or
offer from any person relating to (1) any direct or indirect acquisition or
purchase of assets representing 20% or more of the consolidated assets of the
Company and the Company Subsidiaries, (2) any issuance, sale, or other
disposition of (including by way of merger, consolidation, business combination,
share exchange, joint venture, or any similar transaction) securities (or
options, rights or warrants to purchase, or securities convertible into or
exchangeable for, such securities) representing 20% or more of the voting power
of the Company, (3) any tender offer, exchange offer or other transaction in
which, if consummated, any person shall acquire beneficial ownership (as such
term is defined in Rule 13d-3 under the Securities Exchange Act), or the right
to acquire beneficial ownership, or any "group" (as such term is defined under
the Securities Exchange Act) shall have been formed which beneficially owns or
has the right to acquire beneficial ownership, of, 20% or more of the
outstanding voting capital stock of the Company, or, (4) any merger,
consolidation, share exchange, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the Company or any
Company Subsidiary, other than the transactions contemplated by this Agreement.
Notwithstanding any provision to the contrary
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contained in this Section 4.8, the provision by the Company of copies of its SEC
filings by its investor relations department to third parties in a manner
consistent with its historical practices, shall not be deemed a violation of
this Section 4.8. For purposes of this Agreement, a "Company Superior Proposal"
means any bona fide proposal made by a third party to acquire, directly or
indirectly, for consideration consisting of cash and/or securities, more than a
majority of the combined voting power of the Company Shares then outstanding or
all or substantially all the assets of the Company, on terms which the Board of
Directors of the Company determines in its good faith judgment based on the
advice of the Company's financial advisers and outside legal counsel to be more
favorable to the Company's shareholders, from a financial point of view, than
the Merger (taking into account all factors relating to such proposed
transaction deemed relevant by the Board of Directors of the Company, including,
without limitation, the financing thereof and all other conditions thereto).
(b) Except as set forth in this Section 4.8, neither the
Company nor the Board of Directors, or any committee thereof, shall (i) withdraw
or modify, or propose publicly to withdraw or modify, in a manner adverse to
Purchaser, the approval or recommendation by such Board of Directors of the
Company of the Company Proposals, (ii) approve or recommend, or propose publicly
to approve or recommend, any Company Takeover Proposal or (iii) cause the
Company to enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement (each, a "Company Acquisition Agreement")
related to any Company Takeover Proposal. Notwithstanding the foregoing, in the
event that prior to the Company shareholder meeting with respect to the
transactions contemplated hereby, the Board of Directors of the Company
determines in good faith, based on the advice of outside legal counsel, that the
failure to do so would result in a breach of its fiduciary duties to the
Company's shareholders under applicable Law, the Board of Directors of the
Company may (subject to this and the following sentences) (x) withdraw or modify
its approval or recommendation of the Company Proposals or (y) approve or
recommend a Company Superior Proposal, but in each case, only at a time that is
after the second business day following Purchaser's receipt of written notice
advising Purchaser that the Company's Board of Directors has received a Company
Superior Proposal, specifying the material terms and conditions of such Company
Superior Proposal, and identifying the person making such Company Superior
Proposal.
(c) In addition to the obligations of the Company set forth
in paragraphs (a) and (b) of this Section 4.8, the Company shall promptly advise
Purchaser orally and in writing of any request for information or of any Company
Takeover Proposal, the material terms and conditions of such request or the
Company Takeover Proposal and the identity of the person making such request or
Company Takeover Proposal and shall keep Purchaser fully informed on a prompt
basis with respect to any developments with respect to the foregoing.
(d) Nothing contained in this Agreement shall prohibit the
Board of Directors of the Company from taking and disclosing to its shareholders
a position contemplated by Rule 14e-2(a) promulgated under the Securities
Exchange Act or from making any disclosure to the Company's shareholders if, in
the good faith judgment of the Board of Directors of the Company,
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based on the advice of its outside counsel, failure so to disclose would result
in a breach of its fiduciary duties to the Company's shareholders under
applicable law; provided, however, neither the Company nor its Board of
Directors, shall, except as permitted by Section 4.8(b), withdraw or modify, or
propose publicly to withdraw or modify, its position with respect to the Company
Proposals or approve or recommend, or propose publicly to approve or recommend,
a Company Takeover Proposal. Notwithstanding anything to the contrary contained
herein, the Company Proposals shall be submitted to the shareholders of the
Company at the meeting of such shareholders for the purpose of approving the
Company Proposals and the Merger, and, subject to termination of this Agreement
in accordance with the terms of Article VII hereof, nothing in this Agreement to
the contrary shall be deemed to relieve Company of such obligation.
4.9. Tax Opinion Certificate. The Company shall execute and
deliver a certificate, in form reasonably satisfactory to Purchaser, (the
"Company Tax Opinion Certificate") signed by an officer of the Company setting
forth factual representations and covenants that will serve as a basis for the
tax opinion required pursuant to Section 6.2(e) of this Agreement.
4.10. SEC and Shareholder Filings. The Company shall send to
Purchaser a copy of all material public reports and materials as and when it
sends the same to its shareholders, the SEC or any state or foreign securities
commission.
ARTICLE V
ADDITIONAL COVENANTS OF PURCHASER
Purchaser covenants and agrees as follows:
5.1. Access and Information. Between the date of this
Agreement and the Effective Time, Purchaser will give, and shall direct its
accountants and legal counsel to give, the Company and its authorized
representatives (including, without limitation, its financial advisors,
accountants and legal counsel), at all reasonable times, access as reasonably
requested to all offices and other facilities and to all contracts, agreements,
commitments, books and records of or pertaining to Purchaser and its
subsidiaries or to any Pending Purchaser Transactions, if any, and to the
parties thereto, will permit the foregoing to make such reasonable inspections
as they may require and will cause its officers promptly to furnish the Company
with (a) such financial and operating data and other information with respect to
the business and properties of Purchaser and its subsidiaries as the Company may
from time to time reasonably request and (b) a copy of each material report,
schedule and other document filed or received by Purchaser or any of its
subsidiaries pursuant to the requirements of applicable securities laws or the
NYSE.
5.2. Notification of Certain Matters. Notification of
Certain Matters. Purchaser shall give prompt notice to the Company if any of the
following occur after the date of this
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Agreement: (i) receipt of any notice or other communication in writing from any
third party alleging that the Consent of such third party is or may be required
in connection with the transactions contemplated by this Agreement, provided
that such Consent would have been required to have been disclosed in this
Agreement; (ii) receipt of any material notice or other communication from any
Governmental Authority (including, but not limited to, the NYSE or any
securities exchange) in connection with the transactions contemplated by this
Agreement; (iii) the occurrence of an event which would be reasonably likely to
have a Purchaser Material Adverse Effect or (iv) the commencement or threat of
any Litigation involving or affecting Purchaser or any of its subsidiaries, or
any of their respective properties or assets, or, to its knowledge, any
employee, agent, director or officer, in his or her capacity as such, of
Purchaser or any of its subsidiaries which, if pending on the date hereof, would
have been required to have been disclosed in this Agreement or which relates to
the consummation of the Merger.
5.3. Reasonable Best Efforts. Subject to the terms and
conditions herein provided, Purchaser agrees to use its 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 to consummate and make effective as
promptly as practicable the Merger and the other transactions contemplated by
this Agreement, including, but not limited to, (i) obtaining all Consents from
Governmental Authorities and other third parties required for the consummation
of the Merger and the other transactions contemplated hereby and (ii) timely
making all necessary filings under the HSR Act. Upon the terms and subject to
the conditions hereof, Purchaser agrees to use reasonable best efforts to take,
or cause to be taken, all actions and to do, or cause to be done, all things
necessary to satisfy the other conditions to Closing set forth herein.
5.4. Compliance. In consummating the Merger and the other
transactions contemplated hereby, Purchaser shall comply in all material
respects with the provisions of the Securities Exchange Act and the Securities
Act and shall comply, and/or cause its subsidiaries to comply or to be in
compliance, in all material respects, with all other applicable Laws.
5.5. SEC and Shareholder Filings. Purchaser shall send to the
Company a copy of all material public reports and materials as and when it sends
the same to its shareholders, the SEC or any state or foreign securities
commission.
5.6. Tax Opinion Certificate. Purchaser shall execute and
deliver a certificate, in form reasonably satisfactory to Company, (the
"Purchaser Tax Opinion Certificate") signed by an officer of Purchaser setting
forth factual representations and covenants that will serve as a basis for the
tax opinions required pursuant to Section 6.3(f) of this Agreement.
5.7. Indemnification. (a) As of the Effective Time, the
indemnification and exculpation provisions contained in the Bylaws and the
Articles of Incorporation of the Surviving Corporation shall be at least as
favorable to individuals who immediately prior to the Closing Date were
directors, officers, agents or employees of the Company or otherwise entitled to
indemnification under the Company's Bylaws or Articles of Incorporation (an
"Indemnified
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Party") as those contained in the Bylaws and the Articles of Incorporation of
the Company, respectively, and shall not be amended, repealed or otherwise
modified for a period of six years after the Closing Date in any manner that
would adversely affect the rights thereunder of any Indemnified Party. The
Company hereby covenants that it shall, to the fullest extent permitted under
Minnesota law and regardless of whether the Merger becomes effective, indemnify,
defend and hold harmless, and after the Effective Time, Purchaser and the
Surviving Corporation shall jointly and severally, to the fullest extent
permitted under Delaware law, indemnify, defend and hold harmless, each
Indemnified Party against any costs or expenses (including reasonable attorneys'
fees), judgments, fines, losses, claims, damages, liabilities and amounts paid
in settlement in connection with any claim, action, suit, proceeding or
investigation, including, without limitation, liabilities arising out of this
Agreement or under the Securities Exchange Act, occurring through the Closing
Date, and in the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the Effective Time), (i) the
Company or the Surviving Corporation shall pay the reasonable fees and expenses
of counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to the Company or the Surviving Corporation, promptly as
statements therefor are received, and (ii) the Company and the Surviving
Corporation will cooperate in the defense of any such matter; provided, however,
that neither the Company nor the Surviving Corporation shall be liable for any
settlement effected without its written consent (which consent shall not be
unreasonably withheld); and provided, further, that neither the Company nor the
Surviving Corporation shall be obliged pursuant to this Section 5.7 to pay the
fees and disbursements of more than one counsel for all Indemnified Parties in
any single action except to the extent that, in the opinion of counsel for the
Indemnified Parties, two or more of such Indemnified Parties have conflicting
interests in the outcome of such action. Purchaser shall cause the Surviving
Corporation to reimburse all expenses, including reasonable attorney's fees and
expenses, incurred by any person to enforce the obligations of Purchaser and the
Surviving Corporation under this Section 5.7. To the fullest extent permitted by
law, Purchaser shall cause the Surviving Corporation to advance expense in
connection with the foregoing indemnification.
(b) If the Surviving Corporation or any of its successors or
assigns (i) consolidates with or merges into any other person and shall not be
the continuing or surviving corporation or entity of such consolidation or
merger or (ii) transfers all or substantially all of its properties and assets
to any person, then and in each such case, proper provision shall be made so
that the successors and assigns of the Surviving Corporation assume the
obligations set forth in this Section 5.7.
5.8. Benefit Plans and Employee Matters.
(a) Purchaser shall to the extent practicable cause the
Surviving Corporation to provide employee benefits and programs to the Company's
and the Company Subsidiaries' employees that, in the aggregate, are
substantially comparable to those of Purchaser. From and after the Effective
Time, Purchaser shall honor, in accordance with their terms, all employment
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and severance agreements in effect immediately prior to the Closing Date that
are applicable to any current or former employees or directors of the Company or
any Company Subsidiaries.
(b) To the extent that service is relevant for purposes of
eligibility, level of participation, or vesting under any employee benefit plan,
program or arrangement established or maintained by Purchaser, the Company or
any of their respective subsidiaries, employees of the Company and its
subsidiaries shall be credited for service accrued or deemed accrued prior to
the Effective Time with the Company or such subsidiary, as the case may be.
Under no circumstances shall employees receive credit for service accrued or
deemed accrued prior to the Effective Time with the Company or such Subsidiary,
as the case may be, for benefit accruals under any employee pension benefit plan
(as defined by Section 3(2) of ERISA) or any retiree health plan.
ARTICLE VI
CONDITIONS
6.1. Conditions to Each Party's Obligations. The respective
obligations of each party to effect the Merger shall be subject to the
fulfillment or waiver at or prior to the Effective Time of the following
conditions:
(a) Shareholder Approval. The Company Proposals shall have
been approved at or prior to the Effective Time by the requisite vote of the
shareholders of the Company required under the MBCA.
(b) No Injunction or Action. No order, statute, rule,
regulation, executive order, stay, decree, judgment or injunction shall have
been enacted, entered, promulgated or enforced by any court or other
Governmental Authority since the date of this Agreement which prohibits or
prevents the consummation of the Merger which has not been vacated, dismissed or
withdrawn prior to the Effective Time. The Company and Purchaser shall use their
reasonable best efforts to have any of the foregoing vacated, dismissed or
withdrawn by the Effective Time.
(c) HSR Act. Any waiting period applicable to the Merger
under the HSR Act shall have expired or early termination thereof shall have
been granted.
(d) Registration Statement. The Registration Statement shall
have been declared effective and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no action, suit,
proceeding or investigation for that purpose shall have been initiated or
threatened by any Governmental Authority.
(e) Blue Sky. Purchaser shall have received all state
securities law authorizations necessary to consummate the transactions
contemplated hereby.
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(f) Listing of Purchaser Stock. The shares of Purchaser Stock
comprising the Merger Consideration shall have been approved for listing on the
NYSE.
6.2. Conditions to Obligations of the Company. The obligation
of the Company to effect the Merger shall be subject to the fulfillment at or
prior to the Effective Time of the following additional conditions, any one or
more of which may be waived by the Company:
(a) Purchaser Representations and Warranties. The
representations and warranties of Purchaser and Merger Sub set forth in this
Agreement shall be true and correct in all material respects (except that where
any statement in a representation or warranty expressly includes a "material
adverse effect", "material" or other materiality qualifier, such representation
or warranty shall be true and correct in all respects) as of date hereof and as
of the Closing Date as if made on and as of the Closing Date, except those
representations and warranties that speak of an earlier date, which shall be
true and correct as of such earlier date (it being understood that, for purposes
of determining the accuracy of such representations and warranties, any update
of or modification to the Purchaser Disclosure Schedule made or purported to
have been made after the date of this Agreement shall be disregarded).
(b) Performance by Purchaser. Each of Purchaser and Merger Sub
shall have performed and complied with all the covenants and agreements in all
material respects and satisfied in all material respects all the conditions
required by this Agreement to be performed or complied with or satisfied by
Purchaser and/or Merger Sub at or prior to the Effective Time.
(c) No Material Adverse Change. There shall have been no
changes, conditions, events, or developments (including but not limited to with
respect to any matters described in this Agreement or in the Purchaser
Securities Filings or on the Purchaser Disclosure Schedule) that have or would
reasonably be expected to have a Purchaser Material Adverse Effect since the
date of this Agreement; provided, however, that for purposes of determining
whether there shall have been any such Purchaser Material Adverse Effect, (i)
any adverse change resulting from or relating to general business or economic
conditions shall be disregarded, (ii) any adverse change resulting from or
relating to conditions generally affecting the industry in which Purchaser
competes shall be disregarded, and (iii) any adverse change resulting from or
relating to the taking of any action contemplated by this Agreement shall be
disregarded.
(d) Certificates and Other Deliveries. Purchaser shall have
delivered, or caused to be delivered, to the Company: (i) a certificate executed
on its behalf by its President or another authorized officer to the effect that
the conditions set forth in Sections 6.2(a), (b) and (c) hereof have been
satisfied; (ii) a certificate of good standing from the Secretary of State of
the State of Delaware stating that Purchaser is a validly existing corporation
in good standing; (iii) a certificate of good standing from the Secretary of
State of Delaware stating that Merger Sub is a
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validly existing corporation in good standing; (iv) duly adopted resolutions of
the Board of Directors of Purchaser and the Board of Directors and the
shareholder of Merger Sub approving the execution, delivery and performance of
this Agreement and the instruments contemplated hereby, each certified by its
respective Secretary; (v) the duly executed Purchaser Tax Opinion Certificate;
and (vi) such other documents and instruments as the Company reasonably may
request.
(e) Tax Opinion. The Company shall have received an opinion
from its tax counsel substantially to the effect that, if the Merger is
consummated in accordance with the provisions of this Agreement, under current
Law, for federal income tax purposes, the Merger will qualify as a
reorganization within the meaning of Section 368(a) of the Code. For purposes of
rendering its opinion, the Company's tax counsel may rely on the statements and
representations set forth in the Company Tax Opinion Certificate and the
Purchaser Tax Opinion Certificate, without regard to any qualification as to
knowledge and belief.
6.3. Conditions to Obligations of Purchaser. The obligations
of Purchaser to effect the Merger shall be subject to the fulfillment at or
prior to the Effective Time of the following additional conditions, any one or
more of which may be waived by Purchaser:
(a) Company Representation and Warranties. The representations
and warranties of the Company set forth in this Agreement shall be true and
correct in all material respects (except that where any statement in a
representation or warranty expressly includes a "material adverse effect",
"material" or other materiality qualifier, such representation or warranty shall
be true and correct in all respects) as of the date hereof and as of the Closing
Date as if made on and as of the Closing Date, except those representations and
warranties that speak of an earlier date, which shall be true and correct as of
such earlier date (it being understood that, for purposes of determining the
accuracy of such representations and warranties, any update of or modification
to the Company Disclosure Schedule made or purported to have been made after the
date of this Agreement shall be disregarded).
(b) Performance by the Company. The Company shall have
performed and complied with all the covenants and agreements in all material
respects and satisfied in all material respects all the conditions required by
this Agreement to be performed or complied with or satisfied by the Company at
or prior to the Effective Time.
(c) No Material Adverse Change. There shall have been no
changes, conditions, events, or developments (including but not limited to with
respect to any matters described in this agreement or in the Company Securities
Filings or on the Company Disclosure Schedule) that have or would reasonably be
expected to have a Company Adverse Effect since the date of this Agreement;
provided, however, that for purposes of determining whether there shall have
been any such Company Material Adverse Effect, (i) any adverse change resulting
from or relating to general business or economic conditions shall be
disregarded, (ii) any adverse change resulting from or relating to conditions
generally affecting the industry in which the
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Company competes shall be disregarded, and (iii) any adverse change resulting
from or relating to the taking of any action contemplated by this Agreement
shall be disregarded.
(d) Certificates and Other Deliveries. The Company shall have
delivered, or caused to be delivered, to Purchaser (i) a certificate executed on
its behalf by its President or another duly authorized officer to the effect
that the conditions set forth in Sections 6.3(a), (b) and (c) hereof have been
satisfied; (ii) a certificate of good standing from the Secretary of State of
the State of Minnesota stating that the Company is a validly existing
corporation in good standing; (iii) duly adopted resolutions of its Board of
Directors approving the execution, delivery and performance of this Agreement
and the instruments contemplated hereby, and of the Company's shareholders
approving the Company Proposals, each certified by the Secretary of the Company;
(iv) a true and complete copy of the Articles of Incorporation of the Company
certified by the Secretary of State of the State of Minnesota, and a true and
complete copy of the Bylaws of the Company certified by the Secretary thereof;
(v) the duly executed Company Tax Opinion Certificate; and (vi) such other
documents and instruments as Purchaser reasonably may request.
(e) Tax Opinion. Purchaser shall have received an opinion from
its tax counsel substantially to the effect that, if the Merger is consummated
in accordance with the provisions of this Agreement, under current Law, for
federal income tax purposes, the Merger will qualify as a reorganization within
the meaning of Section 368(a) of the Code. For purposes of rendering its
opinion, Purchaser's tax counsel may rely on the statements and representations
set forth in the Purchaser Tax Opinion Certificate and the Company Tax Opinion
Certificate, without regard to any qualification as to knowledge and belief.
(f) Governmental Approval. All Consents of any Governmental
Authority required for the consummation of the Merger and the transactions
contemplated by this Agreement shall have been obtained, except as may be waived
by Purchaser or those Consents the failure or which to obtain will not have a
Company Material Adverse Effect or a Purchaser Material Advise Effect.
(g) Required Consents. Except with respect to any Waived
Consents, any material required Consents of any person to the Merger or the
transactions contemplated hereby shall have been obtained and be in full force
and effect.
(h) Employee Termination, Consulting and Non-Competition
Agreements. Concurrently with the execution and delivery of this Agreement,
Purchaser, is entering into an Employee Termination, Consulting and
Non-Competition Agreement, in the form of Exhibit B hereto with each of the
directors and officers named therein and each of such Employee Termination,
Consulting and Non-Competition Agreements shall be in full force and effect.
6.4. Frustration of Conditions. Neither Purchaser nor the
Company may rely on the failure of any condition set forth in this Article VI to
be satisfied if such failure was
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caused by such party's failure to comply with or perform any of its covenants or
obligations set forth in this Agreement.
ARTICLE VII
TERMINATION AND ABANDONMENT
7.1. Termination. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval of the
shareholders of the Company and the shareholders of Purchaser described herein:
(a) by mutual written consent of Purchaser and the Company;
(b) by either Purchaser or the Company if:
(i) the Merger shall not have been consummated on or prior to
August 31, 2000, provided, however, that the right to terminate this Agreement
pursuant to this Section 7.1(b) (i) shall not be available to any party whose
failure to perform any of its obligations under this Agreement results in the
failure of the Merger to be consummated by such time;
(ii) the vote of the Company's shareholders shall have been
taken at a meeting duly convened therefor or at any adjournment or postponement
thereof and shall be insufficient to approve the Company Proposals;
(iii) any Governmental Authority shall have issued an order,
decree or ruling or taken any other action permanently enjoining, restraining or
otherwise prohibiting the consummation of the Merger and such order, decree or
ruling or other action shall have become final and nonappealable;
(c) by Purchaser if the Company shall have breached in any
material respect any of its representations, warranties, covenants or other
agreements contained in this Agreement, which breach or failure to perform is
incapable of being cured or has not been cured within 20 business days after the
giving of written notice to the Company;
(d) by Purchaser if (i) the Board of Directors of the Company
shall have withdrawn or modified in a manner adverse to Purchaser its approval
or recommendation of any of the Company Proposals, or failed to reconfirm its
recommendation within 15 business days after a written request to do so, or
approved or recommended any Company Superior Proposal or (ii) the Board of
Directors of the Company shall have resolved to take any of the foregoing
actions;
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(e) by the Company if Purchaser shall have breached in any
material respect any of its representations, warranties, covenants or other
agreements contained in this Agreement, which breach or failure to perform is
incapable of being cured or has not been cured within 20 business days after the
giving of written notice to Purchaser;
(f) by Purchaser on or before the Decision Date if any one or
more material Consents required from third parties (other than Governmental
Authorities) in connection with this Agreement and the transactions contemplated
hereby have not been obtained; and
(g) without any action on the part of any party hereto on the
day immediately following the Decision Date in the event that, and only in the
event that, (i) Purchaser has not terminated this Agreement by or on the
Decision Date pursuant to Section 7.1(f) or (ii) Purchaser has not waived any
material Consents specified in the Consent Notice and which are required from
third parties (other than Governmental Authorities) in connection with this
Agreement and the transactions contemplated hereby which have not been obtained
by the Company prior to or on the Decision Date.
The party desiring to terminate this Agreement pursuant to the preceding
paragraphs shall give written notice of such termination to the other party in
accordance with Section 8.7 hereof.
7.2. Effect of Termination and Abandonment. (a) In the event
of termination of this Agreement and the abandonment of the Merger pursuant to
this Article VII, this Agreement (other than Sections 7.2, 8.1, 8.4, 8.5, 8.6,
8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18) shall
become void and of no effect with no liability on the part of any party hereto
(or of any of its directors, officers, employees, agents, legal or financial
advisors or other representatives); provided, however, that no such termination
shall relieve any party hereto from any liability for any breach of this
Agreement prior to termination. If this Agreement is terminated as provided
herein, each party shall use its reasonable best efforts to redeliver all
documents, work papers and other material (including any copies thereof) of any
other party relating to the transactions contemplated hereby, whether obtained
before or after the execution hereof, to the party furnishing the same.
(b) In the event that prior to termination of this Agreement a
bona fide Company Takeover Proposal shall have been made known to the Company or
has been made directly to its shareholders generally or any person shall have
publicly announced an intention (whether or not conditional) to make a bona fide
Company Takeover Proposal (a "Competing Company Takeover Proposal"), and
thereafter this Agreement is (x) terminated pursuant to Section 7.1(b)(i),
7.1(b)(ii) or 7.1(g) or (y) terminated by Purchaser pursuant to Section 7.1(c),
7.1(d) or 7.1(f), then the Company shall promptly, but in no event later than,
in the case of termination by Purchaser, two days after, or in the case of
termination by the Company, immediately prior to, termination of this Agreement
giving rise to the Company's payment obligation, pay Purchaser a fee equal to
$1,000,000 (the "Termination Fee"), payable by wire transfer of same day funds.
The Company acknowledges that the agreements contained in this
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Section 7.2(b) are an integral part of the transactions contemplated by this
Agreement and that, without these agreements, Purchaser would not enter into
this Agreement. Notwithstanding the foregoing, no fee or expense reimbursement
shall be paid pursuant to this Section 7.2(b) if Purchaser shall be in material
breach of its obligations hereunder.
(c) Purchaser acknowledges that payments made under Section
7.2(b) hereof shall constitute its exclusive remedy with respect to any
termination of this Agreement that gives rise to such payment obligation.
ARTICLE VIII
MISCELLANEOUS
8.1. Confidentiality. Unless (i) otherwise expressly provided
in this Agreement, (ii) required by applicable Law or any listing agreement
with, or the rules and regulations of, any applicable securities exchange or the
NASD, (iii) necessary to secure any required Consents as to which the other
party has been advised or (iv) consented to in writing by Purchaser and the
Company, any information or documents furnished in connection herewith shall be
kept strictly confidential by the Company, Purchaser and their respective
officers, directors, employees and agents. Prior to any disclosure pursuant to
the preceding sentence, the party intending to make such disclosure shall
consult with the other party regarding the nature and extent of the disclosure.
Nothing contained herein shall preclude disclosures to the extent necessary to
comply with accounting, SEC and other disclosure obligations imposed by
applicable Law. To the extent required by such disclosure obligations, Purchaser
or the Company, after consultation with the other party, may file with the SEC a
Report on Form 8-K pursuant to the Securities Exchange Act with respect to the
Merger, which report may include, among other things, financial statements and
pro forma financial information with respect to the other party. In connection
with any filing with the SEC of a registration statement or amendment thereto
under the Securities Act, the Company or Purchaser, after consultation with the
other party, may include a prospectus containing any information required to be
included therein with respect to the Merger, including, but not limited to,
financial statements and pro forma financial information with respect to the
other party, and thereafter distribute said prospectus. Purchaser and the
Company shall cooperate with the other and provide such information and
documents as may be required in connection with any such filings. In the event
the Merger is not consummated, each party shall return to the other any
documents furnished by the other and all copies thereof any of them may have
made and will hold in absolute confidence any information obtained from the
other party except to the extent (i) such party is required to disclose such
information by Law or such disclosure is necessary or desirable in connection
with the pursuit or defense of a claim, (ii) such information was known by such
party prior to such disclosure or was thereafter developed or obtained by such
party independent of such disclosure or (iii) such information becomes generally
available to the public other than by breach of this Section 8.1. Prior to any
disclosure of information pursuant to the exception in clause (i) of the
preceding
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sentence, the party intending to disclose the same shall so notify the party
which provided the name in order that such party may seek a protective order or
other appropriate remedy should it choose to do so.
8.2. The Rainforest Cafe Friends of the Future Foundation. At
the Effective Time, the directors of Rainforest Cafe Friends of the Future
Foundation (the "Foundation"), shall resign and shall elect successor directors
as designated by Purchaser. For all purposes of this Agreement, the Foundation
shall be deemed a "Company Subsidiary."
8.3. Additional Approvals. If, contrary to the parties'
understanding, the approval of the shareholders of Purchaser shall be required
to effectuate the transactions contemplated hereby, Purchaser shall, as soon as
reasonably practicable, call, give notice of, convene and hold a meeting of its
shareholders for purpose of seeking to obtain such approval. Notwithstanding
anything to the contrary contained herein, no such approval of the shareholders
of Purchaser as described in the preceding sentence shall be deemed a breach of
any representation, warranty, covenant, agreement or other provision of this
Agreement.
8.4. Amendment and Modification. This Agreement may be
amended, modified or supplemented only by a written agreement among the Company,
Purchaser and Merger Sub.
8.5. Waiver of Compliance; Consents. Any failure of the
Company on the one hand, or Purchaser on the other hand, to comply with any
obligation, covenant, agreement or condition herein may be waived by Purchaser
on the one hand, or the Company on the other hand, only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure. Whenever this Agreement requires or permits consent by or on
behalf of any party hereto, such consent shall be given in writing in a manner
consistent with the requirements for a waiver of compliance as set forth in this
Section 8.5.
8.6. Survival. The respective representations, warranties,
covenants and agreements of the Company and Purchaser contained herein or in any
certificates or other documents delivered prior to or at the Closing shall
survive the execution and delivery of this Agreement, notwithstanding any
investigation made or information obtained by the other party, but shall
terminate at the Effective Time, except for those covenants contained in
Sections 1.4, 1.5, 1.6, 1.7, 1.13, 5.7, 8.1 and 8.16 hereof, which shall survive
beyond the Effective Time in accordance with their terms.
8.7. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
in person, by facsimile, receipt confirmed, or on the next business day when
sent by overnight courier or on the second succeeding business day when sent by
registered or certified mail (postage prepaid, return receipt
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requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(i) if to the Company, to:
Rainforest Cafe, Inc.
720 South Fifth Street
Hopkins, Minnesota 55343
Attention: Kenneth W. Brimmer
Telecopy: 612-945-5484
with a copy to (but which shall not constitute
notice to the Company):
Maslon, Edelman, Borman & Brand
3300 Norwest Center
Minneapolis, Minnesota 55402
Attention: Neil P. Ayotte, Esq.
Telecopy: 612-672-8397
and
(ii) if to Purchaser or Merger Sub, to:
Landry's Seafood Restaurants, Inc.
1400 Post Oak Blvd., Suite 1010
Houston, Texas 77056
Attention: Steven L. Scheinthal
Telecopy: 713-623-4702
with a copy to (but which shall not constitute notice to Purchaser):
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: Paul T. Schnell, Esq.
Telecopy: 212-735-2001
8.8. Binding Effect; Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective
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successors and permitted assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto prior to the Effective Time without the prior written consent of the
other parties hereto.
8.9. Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such costs or expenses.
8.10. Governing Law. This Agreement shall be deemed to be made
in, and in all respects shall be interpreted, construed and governed by and in
accordance with the internal laws of, the State of Delaware. Each of the
Company, Purchaser and Merger Sub hereby irrevocably and unconditionally
consents to submit to the jurisdiction of the federal and state courts located
in Delaware for any litigation arising out of or relating to this Agreement and
the transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), waives any objection to the laying of
venue of any such litigation in such courts and agrees not to plead or claim in
any such court that such litigation brought therein has been brought in an
inconvenient forum.
8.11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which together be deemed an original, but all of
which together shall constitute one and the same instrument.
8.12. Interpretation. The article and section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the parties and shall not in any way affect the meaning
or interpretation of this Agreement. As used in this Agreement, (i) the term
"Person" shall mean and include an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an association, an
unincorporated organization, a Governmental Authority and any other entity, (ii)
unless otherwise specified herein, the term "affiliate," with respect to any
person, shall mean and include any person controlling, controlled by or under
common control with such person, (iii) the term "subsidiary" of any specified
person shall mean any corporation any of the outstanding voting power of which,
or any partnership, joint venture, limited liability company or other entity any
of the total equity interest of which, is directly or indirectly owned by such
specified person, (iv) the term "knowledge," when used with respect to the
Company, shall mean the knowledge of the directors and executive officers of the
Company when used with respect to Purchaser, shall mean the knowledge of the
directors and executive officers of Purchaser, and (v) the term "including"
shall mean "including, without limitation".
8.13. Entire Agreement. This Agreement and the documents or
instruments referred to herein including, but not limited to, the Exhibit(s)
attached hereto and the Disclosure Schedules referred to herein, which
Exhibit(s) and Disclosure Schedules are incorporated herein by reference, embody
the entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
representations,
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warranties, covenants, or undertakings, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and the
understandings between the parties with respect to such subject matter.
8.14. Severability. In case any provision in this Agreement
shall be held invalid, illegal or unenforceable in a jurisdiction, such
provision shall be modified or deleted, as to the jurisdiction involved, only to
the extent necessary to render the same valid, legal and enforceable, and the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby nor shall the validity, legality
or enforceability of such provision be affected thereby in any other
jurisdiction.
8.15. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties further agree that each party shall
be entitled to an injunction or restraining order to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other right or remedy to which such party may be entitled under
this Agreement, at law or in equity.
8.16. Third Parties. Nothing contained in this Agreement or in
any instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be deemed to
have been executed for the benefit of, any person or entity that is not a party
hereto or thereto or a successor or permitted assign of such a party; provided
however, that the parties hereto specifically acknowledge that the provisions of
Sections 5.7 and 5.9 hereof are intended to be for the benefit of, and shall be
enforceable by, the current or former employees, officers and directors of the
Company and/or the Company Subsidiaries affected thereby and their heirs and
representatives.
8.17. Disclosure Schedules. The Company and Purchaser
acknowledge that the Company Disclosure Schedule and the Purchaser Disclosure
Schedule (i) relate to certain matters concerning the disclosures required and
transactions contemplated by this Agreement, (ii) are qualified in their
entirety by reference to specific provisions of this Agreement and (iii) are not
intended to constitute and shall not be construed as indicating that such matter
is required to be disclosed, nor shall such disclosure be construed as an
admission that such information is material with respect to the Company or
Purchaser, as the case may be, except to the extent required by this Agreement.
8.18. Obligation of Purchaser. Whenever this Agreement
requires Merger Sub to take any action, such requirement shall be deemed to
include an undertaking on the part of Purchaser to cause Merger Sub to take such
action.
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<PAGE> 54
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement and
Plan of Merger to be signed and delivered by their respective duly authorized
officers as of the date first above written.
LANDRY'S SEAFOOD RESTAURANTS, INC.
By: /s/ Tilman J. Fertitta
-----------------------------------------
Name: Tilman J. Fertitta
Title: Chairman, President and
Chief Executive Officer
RAINFOREST CAFE, INC.
By: /s/ Kenneth W. Brimmer
-----------------------------------------
Name: Kenneth W. Brimmer
Title: President
LSR ACQUISITION CORP.
By: /s/ Tilman J. Fertitta
-----------------------------------------
Name: Tilman J. Fertitta
Title: President
<PAGE> 1
EXHIBIT 10.01
STOCKHOLDER AGREEMENT
Stockholder Agreement (this "Agreement"), dated as of February
9, 2000, by and between Landry's Seafood Restaurants, Inc., a Delaware
corporation ("Parent"), and Lyle Berman (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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<PAGE> 2
(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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<PAGE> 3
Section 5. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and
appoints, Tilman J. Fertitta, Steven L. Scheinthal and Paul S. West, 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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<PAGE> 4
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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<PAGE> 5
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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<PAGE> 6
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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<PAGE> 7
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:
Lyle Berman
433 Bushaway
Wayzata, Minnesota 55391
Telephone No.: (612) 473-5533
If to Parent:
Landry's Seafood Restaurants, Inc.
1400 Post Oak Blvd., Suite 1010
Houston, Texas 77056
Attention: Steven L. Scheinthal
Telephone No.: (713) 850-1010
Telecopy No.: (713) 623-4702
Copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: Paul T. Schnell, Esq.
Telephone No.: (212) 735-3000
Telecopy No.: (212) 735-2001
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<PAGE> 8
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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<PAGE> 9
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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<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have caused this
Stockholder Agreement to be duly executed as of the day and year first above
written.
LANDRY'S SEAFOOD RESTAURANTS, INC.
By:/s/ Tilman J. Fertitta
----------------------------------------
Name: Tilman J. Fertitta
Title: Chairman, President and Chief
Executive Officer
/s/ Lyle Berman
----------------------------------------
Lyle Berman
<PAGE> 11
Schedule I
Number of Company Shares
and Company options
Name of Stockholder Beneficially Owned
- ------------------- --------------------
Lyle Berman 1,524,749 shares
750,000 options
<PAGE> 1
EXHIBIT 10.02
STOCKHOLDER AGREEMENT
Stockholder Agreement (this "Agreement"), dated as of February 9, 2000,
by and between Landry's Seafood Restaurants, Inc., a Delaware corporation
("Parent"), and Steven Schussler (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.
<PAGE> 2
(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, Tilman
J. Fertitta, Steven L. Scheinthal and Paul S. West, 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
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<PAGE> 3
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.
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<PAGE> 4
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
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<PAGE> 5
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,
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<PAGE> 6
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
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<PAGE> 7
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:
Steven Schussler
3216 Gettysburg Avenue South
St. Louis Park, Minnesota 55416
Telephone No.: (612) 936-9651
If to Parent:
Landry's Seafood Restaurants, Inc.
1400 Post Oak Blvd., Suite 1010
Houston, Texas 77056
Attention: Steven L. Scheinthal
Telephone No.: (713) 850-1010
Telecopy No.: (713) 623-4702
Copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: Paul T. Schnell, Esq.
Telephone No.: (212) 735-3000
Telecopy No.: (212) 735-2001
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.
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<PAGE> 8
(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
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<PAGE> 9
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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<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have caused this Stockholder
Agreement to be duly executed as of the day and year first above written.
LANDRY'S SEAFOOD RESTAURANTS, INC.
By: /s/ Tilman J. Fertitta
------------------------------------------------------
Name: Tilman J. Fertitta
Title: Chairman, President and Chief Executive Officer
/s/ Steven Schussler
------------------------------------------------------
Steven Schussler
<PAGE> 11
Schedule I
<TABLE>
<CAPTION>
Number of Company Shares
and Company options
Name of Stockholder Beneficially Owned
- ------------------- -------------------------
<S> <C>
Steven W. Schussler 943,953 shares
201,500 options
</TABLE>
