TERMINATION OF
AGREEMENT AND PLAN OF MERGER
THIS TERMINATION OF AGREEMENT AND
PLAN OF MERGER , dated as of January 11, 2009 (this
“Agreement”), is by and among Fertitta Holdings, Inc.,
a Delaware corporation (“Parent”), Fertitta Acquisition
Co., a Delaware corporation and a wholly-owned subsidiary of Parent
(“Merger Sub”), Tilman J. Fertitta
(“Fertitta”), and Landry’s Restaurants, Inc., a
Delaware corporation (the “Company”). All capitalized
terms used and not otherwise defined herein have the meanings
ascribed to them in the Merger Agreement.
RECITALS
WHEREAS, the parties have entered
into that certain Agreement and Plan of Merger, dated as of
June 16, 2008, and the First Amendment to Agreement and Plan
of Merger dated as of October 18, 2008 (together, the “
Merger Agreement ”);
WHEREAS, all parties hereto have
determined that all of the conditions required to consummate the
Merger cannot be satisfied;
WHEREAS, the Special Committee (with
authority delegated by the Board) and the Board have determined
that it is in the best interests of the Company and its
stockholders, other than Fertitta, to terminate the Merger
Agreement in accordance with this Agreement;
WHEREAS, each of the Boards of
Directors of Parent and Merger Sub and Fertitta have determined
that it is in their respective best interests to terminate the
Merger Agreement in accordance with this Agreement; and
WHEREAS, accordingly, the parties
desire to terminate the Merger Agreement as set forth below:
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Parent, Merger
Sub, Fertitta
