EXHIBIT 99(d)(5)
AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT
This Amended and Restated Change of Control Agreement ("Agreement") is
dated September 26, 2000 among Stephen Cohen, an individual resident of the
State of Minnesota ("Employee"), Rainforest Cafe, Inc., a Minnesota corporation
("Rainforest"), and Landry's Seafood Restaurants, Inc., a Delaware corporation
("Landry's").
RECITALS
A. The Employee is currently employed by Rainforest and is a party to
that certain Change of Control Agreement by and between Employee and Rainforest
(the "Change of Control Agreement").
B. In the event of a "Change of Control" as defined in the Change of
Control Agreement, the Employee may be eligible under certain circumstances to
receive certain benefits pursuant to the terms and conditions of the Change of
Control Agreement.
C. Rainforest has entered into an Agreement and Plan of Merger dated as
of September 26, 2000 (the "Merger Agreement") by and among Rainforest, Landry's
and LSR Acquisition Corp., pursuant to which Landry's would commence a cash
tender offer for all outstanding shares of Rainforest ("Tender Offer") and, at
the effective time of the merger (the "Effective Time"), Rainforest would become
a wholly-owned subsidiary of Landry's (the "Merger").
D. There will be a Change of Control if more than 50% of the outstanding
shares of Rainforest common stock are acquired by Landry's pursuant to the
Tender Offer.
E. The parties hereto believe that, given the Tender Offer, it is in the
best interests of such parties for the Employee to terminate and waive all
rights under the Change of Control Agreement upon the acceptance for payment of
shares of Rainforest common stock under the Tender Offer by Landry's which,
together with shares of Rainforest common stock owned by Landry's immediately
prior to the launch of the Tender Offer, constitutes at least a majority of the
outstanding shares of Rainforest common stock (the "Closing").
F. In contemplation of the Tender Offer, Landry's desires to enter into
this Agreement whereby Employee will receive certain payments based on prior
years of service in consideration for, among other things, Employee's
terminating and waiving all rights under the Change of Control Agreement and
Employee's relinquishing certain of his outstanding stock options.
G. Attached hereto as Exhibit B is a statement of certain rights relating
to the ERISA plan of which this Agreement constitutes a part.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged,
Employee, Rainforest and Landry's, intending to be legally bound, hereby agree
as follows:
1. Waiver of Rights, etc.
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a. Effective as of and subject to the Closing, the Employee releases,
waives and forever relinquishes all rights to payments, benefits,
compensation or any other consideration under the Change of Control
Agreement.
b. The Employee agrees that he or she will not exercise any option to
acquire Rainforest's common stock. Each vested option to acquire
Rainforest's common stock held by Employee at the Effective Time which has
an exercise price less than the Offer Price (as such term is defined in the
Merger Agreement) shall be cancelled and terminated at the Effective Time
in consideration for a payment in cash by Rainforest to Employee promptly
following the Effective Time of an amount equal to the product obtained by
multiplying (x) the excess (if any) of the Offer Price over the per share
exercise price of such option and (y) the number of shares of Rainforest
common stock covered by such option. Effective as of and subject to the
Effective Time, Employee releases, waives and forever relinquishes any
options to acquire Rainforest's common stock held by Employee at the
Effective Time pursuant to any stock option plan or otherwise, whether or
not such options are vested or unvested, in respect of which Rainforest is
not obligated to make a payment to the Employee pursuant to the immediately
preceding sentence.
c. Sections 2, 3 and 4 of this Agreement shall become effective only
upon the Closing. If the Closing does not occur, then this Agreement shall
terminate and be of no force or effect.
2. Change of Control Payment.
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a. In consideration for Employee's representations, warranties,
covenants and agreements under this Agreement and in addition to all other
compensation due and payable to Employee as of the date of his termination
(which, for the avoidance of doubt, does not include any payments,
benefits, compensation and other consideration payable under the Change of
Control Agreement and the Change of Control Policy
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adopted by Rainforest), Rainforest agrees to pay the Change of Control
Payment to Employee based on Employee's prior years of service in
accordance with and subject to, this Section 2. For purposes of this
Agreement, the term "Change of Control Payment" shall mean an amount equal
to 200% of Employee's annual base salary as of the date of this Agreement.
Rainforest agrees to provide Employee with 10 days advance written notice
of employment termination in the event that such termination will occur
before 24 months following the Closing, unless termination is for "cause".
b. The Change of Control Payment shall be paid by Rainforest as
follows, subject to Section 2(f) below:
(i) 1/5 of the Change of Control Payment upon the Closing;
(ii 1/5 of the Change of Control Payment at the completion
of 6 months of employment following the Closing; and
(ii 1/5 of the Change of Control Payment at the completion
of 12 months of employment following the Closing.
(iv 1/5 of the Change of Control Payment at the completion
of 18 months of employment and/or providing consulting
services (if any) to the Company (provided that at
least 12 months were spent as an employee); and
(v) 1/5 of the Change of Control Payment at the completion
of 24 months of employment and/or providing consulting
services (if any) to the Company (provided that at
least 12 months were spent as an employee).
c. In the case of death or disability (as defined under the Social
Security Act) of Employee, any remaining unpaid portion of the Change of
Control Payment shall be paid immediately to the extent not previously
paid.
d. Subject to the provisions of paragraph (e) below, if Rainforest
terminates Employee other than for "cause" (as defined in Section 5) or
Employee is "constructive[ly] terminat[ed]" (as defined in Section 5), in
either case, prior to the completion of 12 months of employment following
Closing (as specified in Section 2(b) above), then, sixteen days after
execution and delivery of the Release (the "Invocation Date") and assuming
that the Release has not been revoked in such intervening period, the
Employee
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shall be entitled to: (i) any remaining unpaid portion of the Change of
Control Payment, which shall be paid on the dates provided for in Section
2(b) above; and (ii) following the Invocation Date, the Employee shall also
receive in twelve equal bi-weekly installments, (x) an amount equal to the
six month cost to Employee of continuing Employee's present health care
coverage under Rainforest's COBRA program (grossed up to compensate
Employee for the taxable nature of such payment) and (y) an amount equal to
the six months cost to Rainforest of continuing to provide Employee's
non-electable current life insurance and insurance coverage for accidental
death and disability assuming Employee had continued as an employee of
Rainforest (all as grossed-up to compensate Employee for the taxable nature
of such payments). For purposes of this Agreement, the payments referred to
in this paragraph (d) shall be referred to as the "Severance Payment".
e. As a condition for receiving the Severance Payment, Employee shall
execute and deliver to Rainforest a General Release and Waiver Agreement in
the form attached hereto as Exhibit A (the "Release").
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f. If Employee resigns from employment prior to the first anniversary
of the Closing other than due to a "constructive termination" or is
terminated for "cause" or if Employee fails to honor his obligations under
Section 2(h) below, Employee shall not receive any further Change of
Control Payment payments, any Severance Payment or any other payments,
benefits, compensation or other consideration payable under this Agreement.
g. Payment of the Change of Control Payment and other consideration
under this Agreement shall be in lieu of any other payments owed by
Landry's or its subsidiaries (including Rainforest) to Employee pursuant to
any severance, vacation, personal time-off, "change of control," retention,
or bonus policy (which, for the avoidance of doubt, includes any and all
amounts and benefits payable under the Change of Control Agreement and
Change of Control Policy adopted by Rainforest).
h. Consulting Services.
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(i) At any time following the completion of one year of
employment with Rainforest following the Closing,
Rainforest and Employee shall each have the right to
terminate Employee's employment with Rainforest and
concurrently with such termination Employee shall
become a consultant to Rainforest.
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(ii) From time to time during the period from the date of
termination of Employee's employment with Rainforest
through to the second anniversary of the Closing, the
Employee shall perform such services relating to the
business of Rainforest as the Employee and the
President of Landry's (or his designee) shall mutually
agree. The Employee shall in no event be required to
provide more than ten hours per week of consulting
services to Rainforest thereafter until the second
anniversary of the Closing, except in each case as
agreed to by the Employee. The scheduling of such time
shall be at the Employee's sole reasonable discretion
with the needs of the Company in mind. Rainforest
acknowledges that the Employee is permitted to pursue
other activities, whether of a personal or business
nature, and, accordingly, may not always be immediately
available to Rainforest.
(iii) The Employee shall perform his duties as a consultant
at such locations as are reasonably acceptable to him;
provided, however, that, as mutually agreed, the
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Employee will be available to travel domestically to
meet from time to time with representatives of
Rainforest.
(iv) During any period when Employee shall be performing
his duties as a consultant hereunder, Rainforest shall
reimburse him for any reasonable expenses incurred in
the course of his duties, and will pay (in addition to
any payments due under this Agreement) a mutually
agreed upon fee to Employee in respect of his services
as a consultant (which shall not be less than $100 per
hour).
i. For so long as Employee remains an employee of Landry's or its
subsidiaries (including Rainforest), Rainforest shall pay for continuing
legal education (any required courses) and for any reasonable costs and
expenses arising in connection with his attendance at the October 2000
conference of the International Council of Shopping Centers (ICSC).
Employee shall work on matters primarily related to Rainforest and its
businesses. For so long as Employee is an employee of Rainforest, Employee
shall be entitled to the services of a dedicated administrative assistant.
If, at any time while Employee is engaged as an employee or consultant in
accordance with the terms of this Agreement Employee shall
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be required to travel outside the United States on Rainforest business,
Employee shall be entitled to travel in world business class.
3. Continued Employment. Upon the Closing, Employee will immediately
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become an at-will employee of Rainforest and employment with Rainforest will
continue until otherwise terminated by Employee or Rainforest. Employee will be
paid a base salary equal to the salary now paid by Rainforest to the Employee.
In addition, Employee will be eligible to receive compensation adjustments,
bonuses, stock options, and other benefits, including vacation time and health,
life and disability insurance, as Rainforest provides to its other similarly
situated employees. Employee's length of service period with Rainforest shall
be recognized in determining the Employee's entitlement to benefits under
applicable benefit programs. Notwithstanding anything to the contrary contained
in this Agreement, the Employee acknowledges and agrees that Landry's and its
subsidiaries (including Rainforest) shall have the right to amend from time to
time or terminate any benefit program applicable to Employee (other than the
payments provided for under Section 2 hereof).
4. Job Responsibilities. Rainforest and Employee agree that, without
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Employee's consent, Employee will not incur a significant or material job
description change, taking into consideration Rainforest's new status as a
subsidiary of Landry's. Rainforest shall not impose new job responsibilities
beyond Employee's capabilities or expertise. Rainforest shall not, without
cause, harass, intimidate, threaten or coerce Employee to resign, or engage in
any conduct designed for the purpose of terminating Employee's employment to
deprive Employee from receiving any Change of Control Payment otherwise due
Employee.
Nothing contained herein shall prohibit Rainforest from (i) requesting Employee
to travel to conduct business for Landry's or Rainforest in furtherance of
normal and routine business practices, or (ii) relocating Rainforest's
headquarters in Minnesota to any other location within fifty (50) miles of
Rainforest's existing headquarters.
5. Definitions.
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a. For Cause Termination. For the purposes of this Agreement, "cause"
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shall mean: (i) dishonesty which is not the result of an inadvertent or
innocent mistake of Employee with respect to Landry's or any of its
subsidiaries (including Rainforest); (ii) a willful or intentional
disregard of the lawful and reasonable instructions of Rainforest, Landry's
or their supervisors; (iii) willful misfeasance of duty by Employee
intended to injure or having the effect of injuring the reputation,
goodwill, business, or business relationships of Landry's or any of its
subsidiaries (including Rainforest) or any of their respective officers,
directors, or employees; (iv) material violation by Employee of any term of
employment; (v) conviction of Employee of (or a plea of nolo contendere by
Employee to) any felony or
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misdemeanor or any other crime (including any crime involving moral
turpitude), other than a misdemeanor vehicular offense; or (vi) failure of
Employee to perform normal and routine duties of employment or to adhere to
policies of employment after having received at least two (2) written
notices of non-compliance ("write-ups") from Landry's or any of its
subsidiaries (including Rainforest).
b. Constructive Termination. For purposes of this Agreement,
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"constructive termination" shall mean: (i) a material adverse change of
Employee's responsibilities with respect to Rainforest, provided that any
changes in responsibilities resulting from Rainforest's new status as a
subsidiary of Landry's shall not be deemed grounds for a "constructive
termination"; (ii) a material adverse change of Employee's compensation or
benefits, provided that the provision of benefits to Employee which are
generally available to similarly situated Landry's employees shall not be
deemed to be a material adverse change of Employee's benefits; (iii) a
requirement to relocate in excess of fifty (50) miles from Employee's then
current place of employment without Employee's consent; or (iv) the breach
by Landry's of any material provision of this Agreement.
6. Confidentiality.
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a. Except to the extent required by law, Employee shall keep
confidential and shall not, without Landry's prior, express written
consent, disclose to any third party, other than as reasonably necessary or
appropriate in connection with Employee's performance of his duties under
this Agreement or any employment agreement, any information regarding
Landry's or Rainforest's business, methods of operation, employees,
projects, plans and prospects, which information has not been released to
the public by Landry's or any of its subsidiaries (including Rainforest).
The provisions of this Section 6 shall remain in effect indefinitely after
the expiration or termination of this Agreement.
b. Employee agrees that the restrictions on disclosure in this
Agreement are fair, reasonable and necessary for the protection of the
interests of Landry's and Rainforest. Employee further agrees that a
breach of any of the covenants set forth in this Section 6 or Section 12 of
this Agreement will result in irreparable injury and damage to Landry's and
Rainforest for which Landry's and Rainforest would have no adequate remedy
at law, and Employee further agrees that in the event of a breach, Landry's
will be entitled to an immediate restraining order and injunction to
prevent such violation or continued violation, without having to prove
damages, in
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addition to any other remedies to which Landry's or Rainforest may be
entitled to at law or in equity.
7. Payments. All payments made to Employee pursuant to this Agreement
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shall be subject to withholding as required by applicable law, and such
withholding shall, to the extent permitted by applicable law, be calculated in
the same manner as regular wages.
8. Governing Law. This Agreement shall be governed by and construed an
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enforced in accordance with the laws of the State of Minnesota.
9. Counterparts. This Agreement may be executed simultaneously in two or
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more counterparts and via fax, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
10. Binding Agreement; Assignment. This Agreement shall be binding upon,
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and inure to the benefit of and be enforceable by, the parties hereto and their
respective heirs, personal representatives, successors and assigns; provided,
however, Employee may not assign any of Employee's rights or obligations under
this Agreement.
11. Complete Agreement. This Agreement and the recitals set forth above
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contain the full and complete understanding between the parties pertaining to
the subject matter hereof and cannot be modified except by a written instrument
signed by the parties.
12. Non-Solicitation. Commencing as of the date hereof and continuing for
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a period of two (2) years following Employee's termination of employment with
Landry's and its subsidiaries (including Rainforest), Employee will not, either
directly or indirectly, on Employee's behalf or on behalf of others, solicit,
divert or hire away, or attempt to solicit, divert or hire away, any person
employed by Landry's or any of its subsidiaries (including Rainforest), whether
such person is a full-time or temporary employee engaged by Landry's or any of
its subsidiaries (including Rainforest), and will not make known to any person
or entity the names and addresses of any of the employees of Landry's and its
subsidiaries (including Rainforest) or any information pertaining to the
employees of Landry's and its subsidiaries (including Rainforest).
13. Amendment, Modification and Waiver. This Agreement may not be
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amended, modified or waived except by an instrument or instruments in writing
signed and delivered on behalf of each of the parties hereto.
14. Interpretation. The parties have participated jointly in the
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negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or
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burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
15. Jurisdiction. Each of the parties hereto irrevocably and
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unconditionally submits to the exclusive jurisdiction of any federal court
located in the State of Minnesota or, if such court will not accept
jurisdiction, any state court of competent civil jurisdiction sitting in
Hennepin County, Minnesota. In any action, suit or other proceeding, each of
the parties hereto irrevocably and unconditionally waives and agrees not to
assert by way of motion, as a defense or otherwise any claims that it is not
subject to the jurisdiction of the above courts, that such action or suit is
brought in an inconvenient forum or that the venue of such action, suit or other
proceeding is improper. Each of the parties hereto also agrees that any final
and unappealable judgment against a party hereto in connection with any action,
suit or other proceeding shall be conclusive and binding on such party and that
such award or judgment may be enforced in any court of competent jurisdiction,
either within or outside of the United States. A certified or exemplified copy
of such award or judgment shall be conclusive evidence of the fact and amount of
such award or judgment.
16. Guarantee. Landry's guarantees the performance of all obligations of
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Landry's subsidiaries (including Rainforest) under this Agreement (including,
without limitation, the payments payable by Rainforest under this Agreement).
17. Attorney Fees. Should either party bring an action in connection with
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a breach of, or failure to perform, any of the terms of this Agreement, then the
prevailing party shall be entitled to recovery of its attorney's fees and
expenses from the non-prevailing party.
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THIS AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT has been executed by
and among the parties as of the date indicated above.
Employee
/s/ Stephen Cohen
_____________________________
Name: Stephen Cohen
LANDRY'S SEAFOOD
RESTAURANTS, INC.
/s/ Steven Scheintha;
By__________________________
Vice President
Title ________________________
RAINFOREST CAFE, INC.
/s/ Lyle Berman
By__________________________
President
Title ________________________
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