NON-LOUISIANA NON-COMPETITION AGREEMENT
Exhibit 10.10
NON-LOUISIANA
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this “Agreement”) dated May 18, 2010 is made by Xxxxxxx
X. Xxxxx (“Executive”) and Planet Beach Franchising Corporation, a Delaware corporation
(the “Company”).
RECITALS:
WHEREAS, Executive and the Company have entered into an Employment Agreement dated this date
(the “Employment Agreement”), to which this Agreement is ancillary and incorporated by
reference, pursuant to which, among other things, the Company agrees to make certain payments to
Executive; and
WHEREAS, the Company and Executive have agreed to enter into this Agreement; and
NOW, THEREFORE, in consideration of Executive’s Employment Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Executive and
the Company hereby covenant and agree as follows:
1. Definitions. Each capitalized term not defined herein shall have the meaning assigned to
that term in the Employment Agreement. For purposes of this Agreement, the following terms shall
have the meaning ascribed to them:
“Affiliate” means the Company’s successors in interest, affiliates (as
defined in Rule 12b-2 under Section 12 of the Exchange Act), sister companies or
divisions, subsidiaries, parents, purchasers, or assignees;
“Franchisee” means a person or a business that operates a business under a
franchise contract with the Company or its Affiliates.
“Look Back Period” means the two years preceding the termination of
Executive’s employment with the Company, whatever the cause;
“Potential Franchisee” means a person or business that was given information
about becoming a Franchisee by the Company or its Affiliates during the Look Back
Period and who is not a Franchisee at the time of enforcement;
“Restricted Enterprise” means any person or entity engaged, directly or
indirectly, in (or intends or proposes to engage in, or has been organized for the
purpose of engaging in) any aspect of operations substantially similar to those
engaged in by the Company or its Franchisees during the Look Back Period;
“Restriction Period” means the period during Executive’s employment (whether
during the Term or thereafter) and the two years following the termination of
Executive’s employment with the Company, whatever the cause.
“Franchisee,” “area representative” and “master franchisor”
are intended to refer to such persons only in their respective capacities as
Franchisees, area representatives or master franchisors of the Company, and
references to the business of the Franchisees are intended to mean only those
businesses operated under agreements with the Company.
2. Non-Competition. By and in consideration of the Company’s entering into the Employment
Agreement and the payments to be made and benefits to be provided by the Company thereunder, the
Executive agrees that the Executive shall not during the Restriction Period, anywhere in North
America compete with the Company or its Affiliates or with any of the Franchisees or engage in any
other business similar to that of the Company or its Affiliates or of the Franchisees during the
Look Back Period, or which will probably or inevitably result in the use or disclosure of Company’s
Confidential Information to any Restricted Enterprise; provided, that in no event shall
ownership of two percent or less of the outstanding securities of any class of any issuer whose
securities are registered under the Securities Exchange Act of 1934, as amended, standing alone, be
prohibited by this Section, so long as the Executive does not have, or exercise, any rights to
manage or operate the business of such issuer other than rights generally held by all stockholders.
During the Restriction Period, upon request of the Company, the Executive shall notify the Company
of the Executive’s then-current employment status.
3. Non-Solicitation of Employees. During the Restriction Period, the Executive shall not,
other than on behalf of the Company, anywhere in the world solicit or assist any person to solicit
for employment or hire any person who is, or within four months prior to the date of such
solicitation or hire was, a director, officer, employee, Franchisee, area representative or master
franchisor of the Company or of its Franchisees, area representatives, master franchisors or
Affiliates, provided that the prohibition on solicitation in this Section 3 shall not include
solicitation of a person who responds to general advertising.
4. Non-Solicitation of Customers. During the Restriction Period, the Executive shall not, on
behalf of himself or any other person, anywhere in the world:
(a) Call upon any of the customers or clients of the Company, its Franchisees or its
Affiliates for the purpose of soliciting or providing any product or service that competes or could
compete with any product or service provided by the Company, its Franchisees or its Affiliates,
(b) Divert or take away, or attempt to take away from the Company, its Franchisees or its
Affiliates any of their respective customers, clients, or patrons; or
(c) Encourage any of the customers, clients, or patrons of the Company, its Franchisees or its
Affiliates to cease doing business with the Company, its Franchisees or Affiliates.
5. Non-Solicitation of Franchisees and Others. During the Restriction Period, the Executive
shall not, on behalf of himself or any other person, anywhere in the world:
(a) Call upon any of the Franchisees, Potential Franchisees, area representatives or master
franchisors of the Company or its Affiliates for the purpose of soliciting or providing any
product or service that competes or could compete with any product or service provided by the
Company, its Franchisees or its Affiliates,
(b) Divert or take away, or attempt to take away any of the Franchisees, area representatives
or master franchisors of the Company or its Affiliates; or
(c) Encourage any of the Franchisees, area representatives or master franchisors of the
Company or its Affiliates to cease doing business with the Company or its Affiliates.
6. Extension of Restriction Period. The Restriction Period shall be tolled for any period
during which the Executive is in breach of any of Sections 2, 3, 4 or 5.
7. Existing Franchises. Notwithstanding anything in Sections 2, 3, 4 or 5, the Executive
shall not be prohibited from operating in their normal course any business owned and operated by
the Executive under franchise agreements with the Company or any of its Affiliates or under other
agreement with the Company or its Affiliates in effect as of the date of this Agreement or as
expressly hereafter authorized by the Company’s board of directors.
8. Blue Pencil. If any court of competent jurisdiction shall at any time deem the duration or
the geographic scope of any of the provisions of Sections 2, 3, 4 or 5 unenforceable, the other
provisions of Sections 2, 3, 4 or 5 shall nevertheless stand and the duration and/or geographic
scope set forth herein shall be deemed to be the longest period and/or greatest size permissible by
law under the circumstances, and the parties hereto agree that such court shall reduce the time
period and/or geographic scope to permissible duration and/or size. The parties further authorize
a court of competent jurisdiction to reduce or otherwise modify the scope of activities restrained
by Sections 2, 3, 4 or 5 should the provisions of this Agreement be deemed overly broad in the
scope of activities restrained by them.
9. Remedies. The Executive agrees that any breach of the terms of Sections 2, 3, 4 or 5 would
result in irreparable injury and damage to the Company for which the Company would have no adequate
remedy at law; the Executive therefore also agrees that in the event of said breach or any threat
of breach, the Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any
and all persons acting for and/or with the Executive, without having to prove damages, in addition
to any other remedies to which the Company may be entitled at law or in equity, including, without
limitation, the obligation of the Executive to return to the Company any Severance Payments paid
pursuant to Section 3.2 of the Employment Agreement. No bond shall be required if an injunction is
sought by Company to enforce the restrictions in this Agreement on Executive. The terms of this
Section 9 shall not prevent the Company from pursuing any other available remedies for any breach
or threatened breach hereof, including, without limitation, the recovery of damages from the
Executive. The Executive and the Company further agree that the provisions of the covenants
contained in Sections 2, 3, 4 or 5 are reasonable and necessary to protect the businesses of the
Company and its Affiliates because of the Executive’s access to Confidential Information and his
material participation in the operation of such businesses.
10. Notice and Early Resolution Conference. During the Restriction Period, Executive will
give Company written notice at least thirty (30) days prior to going to work for a Restricted
Enterprise, will provide Company with a description of the duties and activities of the new
position, and will participate in a mediation or in-person conference if requested to do so by
Company within thirty days of such a request in order to help avoid unnecessary legal disputes.
11. ARBITRATION. THE COMPANY AND EXECUTIVE AGREE TO SUBMIT ALL DISPUTES, CLAIMS, OR
CONTROVERSIES THAT EXIST OR THAT MAY ARISE BETWEEN THEM, INCLUDING WITHOUT LIMITATION ALL DISPUTES,
CLAIMS, OR CONTROVERSIES THAT MAY ARISE OUT OF OR RELATE TO EXECUTIVE’S EMPLOYMENT WITH OR
SEPARATION OF EMPLOYMENT FROM THE COMPANY, AND INCLUDING WITHOUT LIMITATION ALL CLAIMS THAT THE
COMPANY OR ANY OF ITS AGENTS ENGAGED IN CONDUCT PROHIBITED ON ANY BASIS UNDER ANY FEDERAL, STATE,
OR LOCAL STATUTE, ORDINANCE, REGULATION, RULE OF DECISION, OR PRINCIPLE OF COMMON LAW, TO
ARBITRATION BY A SINGLE ARBITRATOR IN THE CITY OF NEW ORLEANS, IN ACCORD WITH THE EMPLOYMENT
PROCEDURES OF THE JUDICIAL ARBITRATION AND MEDIATION SERVICE IN EFFECT AT THE TIME ANY PARTY
DEMANDS ARBITRATION, OR SUCH OTHER PROCEDURES AS THE PARTIES MAY AGREE UPON. JUDGMENT UPON THE
ARBITRATION AWARD WILL BE FINAL, BINDING, AND CONCLUSIVE UPON THE PARTIES AND MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION. BY THIS AGREEMENT, NEITHER THE COMPANY NOR EXECUTIVE INTENDS TO WAIVE
ANY OF THE SUBSTANTIVE REMEDIES TO WHICH THEY MAY BE ENTITLED UNDER APPLICABLE LAW, BUT ONLY TO
SPECIFY CERTAIN PROCEDURES FOR THE PROMPT RESOLUTION OF ALL DISPUTES, CLAIMS, OR CONTROVERSIES.
12. Consideration. Executive acknowledges and agrees that no other consideration for
Executive’s covenants in this Agreement, other than that specifically referred to in Section 3 of
the Employment Agreement, has or will be paid or furnished to him by the Company.
13. Reasonable Restrictions. Executive represents to the Company that the enforcement of the
restrictions contained in this Agreement would not be unduly burdensome to Executive and
acknowledges that Executive is willing and able to compete in other geographical areas not
prohibited by this Agreement. The parties to this Agreement hereby agree that the covenants
contained in this Agreement are reasonable.
14. Entire Agreement. Except with respect to the Employment Agreement executed concurrently
herewith, this Agreement constitutes the entire agreement between the parties hereto with respect
to the subject matter of this Agreement and supersedes and is in full substitution for any and all
prior agreements and understandings whether written or oral between said parties relating to the
subject matter of this Agreement. This Agreement shall not supersede or substitute for, nor be
superseded or substituted by, the Employment Agreement, but shall have full force and effect
concurrently therewith.
15. Amendment. This Agreement may not be amended or modified in any respect except by an
agreement in writing executed by the parties in the same manner as this Agreement except as
provided in Section 18 of this Agreement.
16. Assignment. This Agreement (including, without limitation, Executive’s obligations under
Sections 2, 3, 4 or 5) may be assigned by the Company without the consent of Executive in
connection with the sale, transfer or other assignment of all or substantially all of the capital
stock or assets of, or the merger of, the Company, provided that the party acquiring such capital
stock or assets or into which the company merges assumes in writing the obligations of the Company
hereunder and provided further that no such assignment shall release the Company from its
obligations hereunder. This Agreement (including, without limitation, Executive’s obligations
under Sections 2, 3, 4 or 5) may not be assigned or encumbered in any way by Executive without the
written consent of the Company.
17. Successors. This Agreement (including, without limitation, Executive’s obligations under
Sections 2, 3, 4 or 5) shall be binding upon and shall inure to the benefit of and be enforceable
by each of the parties and their respective successors and assigns.
18. Unenforceable Provisions. If, and to the extent that, any section, paragraph, part, term
and/or provision of this Agreement would otherwise be found null, void, or unenforceable under
applicable law by any court of competent jurisdiction, that section, paragraph, part, term and/or
provision shall automatically not constitute part of this Agreement. Each section, paragraph,
part, term and/or provision of this Agreement is intended to be and is severable from the remainder
of this Agreement. If, for any reason, any section, paragraph, part, term and/or provision herein
is determined not to constitute part of this Agreement or to be null, void, or unenforceable under
applicable law by any court of competent jurisdiction, the operation of the other sections,
paragraphs, parts, terms and/or provisions of this Agreement as may remain otherwise intelligible
shall not be impaired or otherwise affected and shall continue to have full force and effect and
bind the parties hereto.
19. Notice. All notices, consents, requests, approvals or other communications in connection
with this Agreement and all legal process in regard hereto shall be in writing and shall be deemed
validly delivered, if delivered personally or sent by certified mail, postage prepaid. Unless
changed by written notice pursuant hereto, the address of each party for the purposes hereof is as
follows:
If to Executive:
|
If to the Company: | |
To the most recent home address
|
Planet Beach Franchising Corporation | |
that the company maintains in its
|
0000 Xxxxxxxxx Xxxx | |
records for the Executive
|
Xxxxxxx, XX 00000 | |
| Attn: Chief Financial Officer | ||
| Facsimile: (000) 000-0000 | ||
| Telephone: (000) 000-0000 |
Notice given by mail as set out above shall be deemed delivered only when actually received.
20. Descriptive Headings. The descriptive headings of the several sections of this Agreement
are inserted for convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
21. Governing Law. This Agreement shall be construed and enforced in accordance with, and the
rights and obligations of the parties hereto shall be governed by, the laws of the State of
Delaware, without giving effect to the conflicts of law principles thereof.
22. Effective Date. This Agreement shall be effective as of the date on which securities of
the Company are first sold under a registration statement filed with the Securities and Exchange
Commission. If no such sale occurs before December 31, 2010, this Agreement shall be void.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above
written.
| Executive: |
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| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
| Planet Beach Franchising Corporation. |
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| By: | /s/ Xxxxxxx X. Xxxx | |||
| Xxxxxxx X. Xxxx, Senior Vice-President | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Xxxxxx Xxxxxx, | ||||
| Chairman, Corporate Governance, Nominating and Compensation Committee |
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