Contract
Exhibit
10.5
EXECUTION
VERSION
THIS LOCK-UP/LEAK-OUT AGREEMENT
(the “Agreement”) is made and entered into as of the 11th day
of April, 2008, between RICK’S
CABARET INTERNATIONAL, INC., a Texas corporation (“Rick’s”), and DPC HOLDINGS, LLC (“Holder”).
WHEREAS, the parties entered
into a Purchase Agreement dated March 4, 2008 (the “Purchase Agreement”),
between Xxxxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx XxXxxxx, Hotel Development-Texas,
Ltd., a Texas limited partnership (“Hotel Development”), HD Texas Management,
LLC, a Texas limited liability company (“HD”), Holder, Illusions-Dallas Private
Club, Inc., a not-for-profit Texas corporation (“Illusions”), Rick’s, RCI
Entertainment (Dallas), Inc., a Texas corporation (“Buyer”) and RCI Holdings,
Inc., a Texas corporation (“RCI”) pursuant to which pursuant to which
Buyer would acquire 100% of the limited partnership interest of Hotel
Development (the “Partnership Interest”) and 100% of the membership interest in
HD (the “Membership Interest”) and pursuant to which RCI would acquire the Real
Property (the “Transaction”), as amended; and
WHEREAS, pursuant to the terms
and condition of the Purchase Agreement, as amended, Holder has agreed to sell
to RCI the real property located at 0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxx,
Xxxxx 00000 (the “Real Property”); and
WHEREAS, under the terms of
the Purchase Agreement, as amended, Holder shall be entitled to
receive 57,918 shares of common stock of Rick’s (“Rick’s Common Stock”) upon the
Closing of the Purchase Agreement (“Closing Date”), which is conditioned upon,
among other things, the execution and delivery of this Agreement;
and
WHEREAS, Holder has agreed to
enter into this Agreement and to restrict the sale, assignment, transfer,
conveyance, or hypothecation of the Rick’s Common Stock, all on the terms set
forth below; and
WHEREAS, any capitalized terms
not defined herein shall have the meaning set forth in the Purchase Agreement,
as amended.
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
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1.
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The
Holder agrees he may not sell, pledge, hypothecate, transfer, assign or in
any other manner dispose of the Rick’s Common Stock for one year from
the date hereof.
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2.
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(a)
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Thereafter,
on or after one (1) year from the date hereof, the Holder shall have the
right, but not the obligation, to have Rick’s purchase from the Holder
1,379 of the Rick’s Common Stock per month (the “Monthly Shares”)
calculated at a price per share equal to $25.00 per share (“Value of the
Rick’s Common Stock”) until the Holder has received an aggregate of
$1,447,950 from (i) the sale of the Rick’s Common Stock, regardless of
whether sold to Rick’s, sold in the open market or in a private
transaction or otherwise and (ii) the payment of any Deficiency (as
hereinafter defined) by Rick’s. Holder shall notify Rick’s
during any given month of its election to “Put” the Monthly Shares to
Rick’s during that particular month and Rick’s shall have three (3)
business days to elect to buy the Monthly Shares or instruct the Holder to
sell the Monthly Shares in the open market. At Rick’s election,
during any given month, it may either buy the Monthly Shares or, if Rick’s
elects not to buy the Monthly Shares from Holder, then Holder shall sell
the Monthly Shares in the open market and any deficiency between the
amount which Holder receives from the sale of the Monthly Shares and the
Value of the Rick’s Common Stock (the “Deficiency”) shall be paid by
Rick’s within three (3) business days after receipt of written notice from
the Holder of the sale of the Monthly Shares which shall provide the
written sales confirmation and the amount of the
Deficiency. Rick’s obligation under this Section 2(a) to
purchase the Monthly Shares from Holder shall terminate and cease at such
time as Holder has received an aggregate amount of $1,447,950 from (i) the
sale of the Rick’s Common Stock, regardless of whether sold to Rick’s,
sold in the open market or in a private transaction or otherwise, and (ii)
the payments to Holder of any Deficiency by Rick’s. Holder
agrees to provide monthly statements to Rick’s as to the total number of
Rick’s Common Stock which Holder sold and the amount of proceeds derived
therefrom. Except as set forth below in Section 2(b), nothing contained in
this Section 2(a) shall limit or preclude Holder from selling the Rick’s
Common Stock in the open market or require Holder to “Put” the
Rick’s Common Stock to Rick’s during any given
month.
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(b)
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In
the event the Holder elects not to “Put” the Rick’s Common Stock to
Rick’s, the Holder shall sell (i) not more than 2,758 shares of Rick’s
Common Stock per 7-day period, (ii) not more than 6,895 shares of Rick’s
Common Stock per 30-day period, and (iii) not more than 19,306 shares of
Rick’s Common Stock per 90-day period regardless of whether the Holder
“Puts” the Rick’s Common Stock to Rick’s or sells them in the open market,
in a private transaction or otherwise. In the event that the
Holder elects to sell the Rick’s Common Stock pursuant to this Section
2(b), then any amount sold at prices less than the Value of the Rick’s
Common Stock shall be deemed to be sold at $25.00 for purposes of this
Section 2(b).
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3.
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The
Holder acknowledges and agrees that Rick’s may advise its Transfer Agent
of this Agreement and issue a stop transfer order to the Transfer Agent to
ensure that any sale of the Rick’s Common Stock by the Holder is in
accordance with the terms and conditions
hereof.
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4.
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The
Holder agrees that it will not engage in any short selling of the Rick’s
Common Stock during the term of this
Agreement.
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5.
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Except
as otherwise provided in this Agreement or any other agreements between
the parties, the Holder shall be entitled to their respective beneficial
rights of ownership of the Rick’s Common Stock, including the right to
vote the Rick’s Common Stock for any and all
purposes.
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6.
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The
resale restrictions on the Rick’s Common Stock set forth in this Agreement
shall be in addition to all other restrictions on transfer imposed by
applicable United States and state securities laws, rules and
regulations.
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7.
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If
either Rick’s or the Holder fails to fully adhere to the terms and
conditions of this Agreement, it shall be liable to the other party for
any damages suffered by the other party by reason of any such breach of
the terms and conditions hereof. Rick’s and the Holder agree
that in the event of a breach of any of the terms and conditions of this
Agreement by Rick’s or the Holder, that in addition to all other remedies
that may be available in law or in equity to Rick’s or the Holder, as the
case may be, a preliminary and permanent injunction and an order of a
court requiring Rick’s or the Holder to cease and desist from violating
the terms and conditions of this Agreement and specifically requiring
Rick’s or the Holder to perform their obligations hereunder is fair and
reasonable by reason of the inability of the parties to this Agreement to
presently determine the type, extent or amount of damages that Rick’s or
the Holder may suffer as a result of any breach or continuation thereof.
In the event of default hereunder, the non-defaulting party shall be
entitled to recover reasonable attorney's fees incurred in the enforcement
of this Agreement.
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8.
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This
Agreement sets forth the entire understanding of the parties hereto with
respect to the subject matter hereof, and may not be amended except by a
written instrument executed by the parties
hereto.
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9.
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This
Agreement shall be governed by, and construed in accordance with, the laws
of the State of Texas, without regard to principles of conflict of
laws.
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10.
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This
Agreement may be executed in two or more counterparts, all of which when
taken together shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need
not sign the same counterpart. In the event that any signature
is delivered by facsimile transmission or by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original
thereof.
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[SIGNATURES
APPEAR ON THE FOLLOWING PAGE.]
IN WITNESS WHEREOF, the
undersigned have duly executed and delivered this Lock-Up/Leak-Out Agreement as
of the day and year first above written.
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Date:
April 11, 2008
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RICK’S
CABARET INTERNATIONAL, INC.
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By:
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/s/ Xxxx Xxxxxx
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Xxxx
Xxxxxx, President
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HOLDER
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/s/ Xxxxxxx X. XxXxxxx
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DPC
HOLDINGS, LLC
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By:
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Xxxxxxx
X. XxXxxxx
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Its:
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Managing
Member
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Number
of Rick’s Common Stock Subject to this Agreement:
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57,918
shares of Rick’s Common Stock
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Lock-Up/Leak-Out Agreement
- Page 4
