EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), entered into as of the 1st
day of February 2004, by and between RICK'S CABARET INTERNATIONAL, INC., a
Texas corporation (the "Company"), and XXXXXX XXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, Company desires to employ Executive as provided herein; and
WHEREAS, Executive desires to accept such employment.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. Company hereby employs Executive and Executive hereby
accepts employment with Company upon the terms and conditions hereinafter set
forth.
2. DUTIES. Subject to the power of the Board of Directors of Company
to elect and remove officers, Executive will serve the Company as its Executive
Vice President, Director of Technology and will faithfully and diligently
perform the services and functions relating to such office or otherwise
reasonably incident to such office, provided that all such services and
functions will be reasonable and within Executive's area of expertise.
Executive will, during the term of this Agreement (or any extension thereof),
devote his full business time, attention and skills and best efforts to the
promotion of the business of Company. The foregoing will not be construed as
preventing Executive from making investments in other businesses or enterprises
provided that (a) Executive agrees not to become engaged in any other business
activity that interferes with his ability to discharge his duties and
responsibilities to Company and (b) Executive does not violate any other
provision of this Agreement.
3. TERM. Subject to the terms and conditions hereof, the term of
employment of Executive will commence as of the date hereof (the "Commencement
Date") and will end on that date in the year 2007, unless earlier terminated by
either party pursuant to the terms hereof. The term of this Agreement is
referred to herein as the "Term."
4. COMPENSATION AND BENEFITS DURING THE EMPLOYMENT TERM.
(a) Salary. Commencing upon the date of this Agreement, Executive will be
paid an annual base salary of $175,000, payable bi-weekly (the
"Salary"). At any time, and from time to time the Salary may be
increased for the remaining portion of the term if so determined by
the Board of Directors of Company after a review of Executive's
performance of his duties hereunder.
(b) Expenses. Upon submission of a detailed statement and reasonable
documentation, Company will reimburse Executive in the same manner as
other executive officers for all reasonable and necessary or
appropriate out-of-pocket
EMPLOYMENT AGREEMENT - PAGE 1
travel and other expenses incurred by Executive in rendering services
required under this Agreement.
(c) Benefits; Insurance.
(i) Medical, Dental and Vision Benefits. During this Agreement,
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Executive and his dependents will be entitled to receive such
group medical, dental and vision benefits as Company may provide
to its other executives, provided such coverage is reasonably
available, or be reimbursed if Executive is carrying his own
similar insurance.
(ii) Benefit Plans. The Executive will be entitled to participate in
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any benefit plan or program of the Company which may currently be
in place or implemented in the future.
(iii) Other Benefits. During the Term, Executive will be entitled to
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receive, in addition to and not in lieu of base salary, bonus or
other compensation, such other benefits and normal perquisites as
Company currently provides or such additional benefits as Company
may provide for its executive officers in the future.
(d) Vacation. Executive will be entitled to two weeks paid vacation each year
of this Agreement.
5. CONFIDENTIALITY AND NON-COMPETITION.
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(a) Confidentiality. In the course of the performance of Executive's duties
hereunder, Executive recognizes and acknowledges that Executive may have
access to certain confidential and proprietary information of Company or
any of its affiliates. Without the prior written consent of Company,
Executive shall not disclose any such confidential or proprietary
information to any person or firm, corporation, association, or other
entity for any reason or purpose whatsoever, and shall not use such
information, directly or indirectly, for Executive's own behalf or on
behalf of any other party. Executive agrees and affirms that all such
information is the sole property of Company and that at the termination
and/or expiration of this Agreement, at Company's written request,
Executive shall promptly return to Company any and all such information so
requested by Company.
The provisions of this Section 5 shall not, however, prohibit Executive
from disclosing to others or using in any manner information that:
(i) has been published or has become part of the public domain other than
by acts, omissions or fault of Executive;
EMPLOYMENT AGREEMENT - PAGE 2
(ii) has been furnished or made known to Executive by third parties (other
than those acting directly or indirectly for or on behalf of
Executive) as a matter of legal right without restriction on its use
or disclosure;
(iii) was in the possession of Executive prior to obtaining such
information from Company in connection with the performance of this
Agreement; or
(iv) is required to be disclosed by law.
(b) Non-Competition. Executive agrees that he will not, for himself, on behalf
of, or in conjunction with any person, firm, corporation or entity, either
as principal, employee, shareholder, member, director, partner, consultant,
owner or part-owner of any corporation, partnership or any other type of
business entity, directly or indirectly, own, manage, operate, control, be
employed by, participate in, or be connected in any manner with the
ownership, management, operation, or control of any establishment which has
live female nude or semi-nude entertainment or is in any business similar
to or competitive with the female entertainment business presently
conducted by the Company anywhere in the United States within 50 miles of
any female entertainment business of the Company or any female
entertainment business of the Company under construction, under contract,
in development or leased by or to the Company, for a period of two years
(the "Non-Compete Period") from the termination of this Agreement. However,
in the event of the termination of Executive's employment pursuant to
Section 7(d) or 7(f), the Non-Compete Period shall be six months.
Executive agrees not to hire, solicit or attempt to solicit for employment
by Executive or any company to which he may be involved, either directly or
indirectly, any party who is an employee or independent contractor of the
Company or any entity which is affiliated with the Company, or any person who
was an employee or independent contractor of the Company or any entity which is
affiliated with the Company within the two year period immediately following the
termination of this Agreement.
Executive acknowledges that he has carefully read and considered all
provisions of this Agreement and agrees that:
(i) Due to the nature of the Company's business, the foregoing covenants
place no greater restraint upon Executive than is reasonably necessary
to protect the business and goodwill of the Company;
(ii) These covenants protect the legitimate interests of the Company and do
not serve solely to limit the Company's future competition;
(iii) This Agreement is not an invalid or unreasonable restraint of trade;
(iv) A breach of these covenants by Executive would cause irreparable
damage to the Company;
EMPLOYMENT AGREEMENT - PAGE 3
(v) These covenants are reasonable in scope and are reasonably necessary
to protect the Company's business and goodwill which the Company has
established through its own expense and effort; and
(vi) The signing of this Agreement is necessary as part of the consummation
of the transactions described in the preamble.
6. INDEMNIFICATION. The Corporation shall to the full extent permitted
by law or as set forth in the Articles of Incorporation and the Bylaws of the
Company, indemnify, defend and hold harmless Executive from and against any and
all claims, demands, liabilities, damages, loses and expenses (including
reasonable attorney's fees, court costs and disbursements) arising out of the
performance by him of his duties hereunder except in the case of his willful
misconduct.
7. TERMINATION. This Agreement and the employment relationship created
hereby will terminate (i) upon the death or disability of Executive under
section 7(a) or 7(b); (ii) with cause under Section 7(c); (iii) for good reason
under Section 7(d); (iv) upon the voluntary termination of employment by
Executive under Section7(e); or without cause under Section 7(f).
(a) Disability. The Company shall have the right to terminate the
employment of the Executive under this Agreement for disability in the
event Executive suffers an injury, illness, or incapacity of such
character as to substantially disable him from performing his duties
without reasonable accommodation by the Company hereunder for a period
of more than one hundred eighty (180) consecutive days upon the
Company giving at least thirty (30) days written notice of
termination.
(b) Death. This Agreement will terminate on the Death of the Executive.
(c) With Cause. The Company may terminate this Agreement at any time
because of (i) Executive's material breach of any term of the
Agreement, (ii) the determination by the Board of Directors in the
exercise of its reasonable judgment that Executive has committed an
act or acts constituting a felony or other crime involving moral
turpitude, dishonesty or theft or fraud; or (iii) Executive's gross
negligence in the performance of his duties hereunder, provided, in
each case, however, that the Company shall not terminate this
Agreement pursuant to this Section 7(c) unless the Company shall first
have delivered to the Executive, a notice which specifically
identifies such breach or misconduct and the executive shall not have
cured the same within fifteen (15) days after receipt of such notice.
(d) Good Reason. The Executive may terminate his employment for "Good
Reason" if:
(i) he is assigned, without his express written consent, any duties
materially inconsistent with his positions, duties,
responsibilities, or status with the Company as of the date
hereof, or a change in his reporting
EMPLOYMENT AGREEMENT - PAGE 4
responsibilities or titles as in effect as of the date hereof;
provided, however, that Executive must provide the Company with
written notice of his dispute of such re-assignment of duties or
change in his reporting responsibilities under this Section
7(d)(i) and give the Company opportunity to cure such
inconsistency. If such dispute is not resolved within thirty (30)
days, the Company shall submit such dispute to arbitration under
Section 14.
(ii) his compensation is reduced;
(iii) the Company does not pay any material amount of compensation due
hereunder and then fails either to pay such amount within the ten
(10) day notice period required for termination hereunder or to
contest in good faith such notice. Further, if such contest is
not resolved within thirty (30) days, the Company shall submit
such dispute to arbitration under Section 14.
(e) Voluntary Termination. The Executive may terminate his employment
voluntarily.
(f) Without Cause. The Company may terminate this Agreement without cause.
8. OBLIGATIONS OF COMPANY UPON TERMINATION.
(a) In the event of the termination of Executive's employment pursuant to
Section 7 (a), (b), (c) or (e), Executive will be entitled only to the
compensation earned by him hereunder as of the date of such
termination (plus life insurance or disability benefits if applicable
and provided for pursuant to Section 4(c)).
(b) In the event of the termination of Executive's employment pursuant to
Section 7 (d) or (f), Executive will be entitled to receive in one
lump sum payment the full remaining amount under the Term of this
Agreement to which he would have been entitled had this Agreement not
been terminated.
9. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
10. COSTS. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party will be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition to
any other relief to which he or it may be entitled.
11. NOTICES. Any notices, consents, demands, requests, approvals and
other communications to be given under this Agreement by either party to the
other will be deemed to have been duly given if given in writing and personally
delivered or within two days if sent by mail, registered or certified, postage
prepaid with return receipt requested, as follows:
EMPLOYMENT AGREEMENT - PAGE 5
If to Company: Rick's Cabaret International, Inc.
000 Xxxxx Xxxx, Xxx. 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx, President
If to Executive: Xxxxxx Xxxxx
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Notices delivered personally will be deemed communicated as of actual
receipt.
12. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understanding, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
13. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
this Agreement, such provision will be fully severable and this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision there will be added
automatically as part of this Agreement a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
14. ARBITRATION. If a dispute should arise regarding this Agreement
the parties agree that all claims, disputes, controversies, differences or other
matters in question arising out of this relationship shall be settled finally,
completely and conclusively by arbitration in Houston, Texas in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (the
"Rules"). The governing law of this Agreement shall be the substantive law of
the State of Texas, without giving effect to conflict of laws. A decision of
the arbitrator shall be final, conclusive and binding on the Company and
Executive. Any arbitration held in accordance with this paragraph shall be
private and confidential and no person shall be entitled to attend the hearings
except the arbitrator, Executive, Executive's attorneys, a representative of the
Company, the Company's attorneys, and advisors to or witnesses for any party.
The matters submitted to arbitration, the hearings and proceedings and the
arbitration award shall be kept and maintained in the strictest confidence by
Executive and the Company and shall not be discussed, disclosed or communicated
to any persons except as may be required for the preparation of expert
testimony. On request of any party, the record of the proceeding shall be
sealed and may not be disclosed except insofar, and only insofar, as may be
necessary to enforce the award of the arbitrator and any judgment enforcing an
award. The prevailing party shall be entitled to recover reasonable and
necessary attorneys' fees and costs from the non-prevailing party and the
determination of such fees and costs and the award thereof shall be included in
the claims to be resolved by the arbitrator hereunder.
EMPLOYMENT AGREEMENT - PAGE 6
15. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
16. GENDER AND NUMBER. When the context requires, the gender of all
words used herein will include the masculine, feminine and neuter and the number
of all words will include the singular and plural.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument, but only one of which need be produced.
18. COMPANY AUTHORIZATION. The Company represents that the Board of
Directors has approved this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
COMPANY:
RICK'S CABARET INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx,
President and Chief Executive Officer
EXECUTIVE:
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
EMPLOYMENT AGREEMENT - PAGE 7
