EX-10.1






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 and the Company hereby agree as follows:




	 	1.	 	The Merger Agreement is hereby terminated and is of no further force or effect.






	 	2.	 	The Merger Agreement is terminated in accordance with Section 9.01(a). As a result,
the Merger Agreement is void and there shall be no liability on the part of any party
thereto or their respective affiliates or directors, officers, employees, agents or
representatives of any of them, and all rights and obligations of each party thereto shall
cease.






	 	3.	 	No Expense Reimbursement Amount or Termination Fees are due and owing by the Company
to Parent, Merger Sub or Fertitta, and none shall be paid. In addition, no Parent
Termination Fee or Expense Reimbursement Amount are due and owing to the Company and none
shall be paid by Parent, Merger Sub or Fertitta.






	 	4.	 	This Agreement shall be governed by, construed and enforced in accordance with, the
Laws of the state of Delaware without regard to the conflict of laws principles thereof.






	 	5.	 	This Agreement may be executed and delivered (including by facsimile transmission) in
one or more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.






	 	6.	 	If any part or any provision of this Agreement shall be finally determined to be
invalid or unenforceable under applicable law by a court of competent jurisdiction, that
part or provision shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts of said provision
or the remaining provisions of this Agreement.






	 	7.	 	This Agreement may be modified only by a written document signed by the parties
hereto. No waiver of this Agreement or any of the promises, obligations, terms or
conditions hereof shall be valid unless it is written and signed by the party against whom
the waiver is to be enforced.






	 	8.	 	The parties cooperated in the drafting of this Agreement, therefore, in the
construction of this Agreement, the provisions hereof shall not be construed against any
party. This Agreement contains the complete understanding and agreement between the
parties hereto.





IN WITNESS WHEREOF, Parent, Merger Sub, Fertitta and the Company, have caused this Agreement
to be executed as of the date first written above by the respective individuals thereunto duly
authorized.




FERTITTA HOLDINGS, INC.




By:     

Tilman J. Fertitta

Chief Executive Officer and President





FERTITTA ACQUISITION CO.




By:     

Tilman J. Fertitta

Chief Executive Officer and President





TILMAN J. FERTITTA, INDIVIDUALLY




By:     




Tilman J. Fertitta




LANDRY’S RESTAURANTS, INC.




By:     

Steven L. Scheinthal

Executive Vice President and General Counsel