Exhibit 10.20
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT, dated as of January 1, 1996, among The New York
Restaurant Group, L.L.C., a Delaware limited liability company ("NYRG"), Xx.
Xxxx X. Xxxxxxxx ("Xxxxxxxx"), and Xxxxxx X. Xxx Company, a Massachusetts sole
partnership, Xxxxxx X. Xxx Equity Partners, L.P., a Delaware limited
partnership, and THL-CCI Limited Partnership, a Massachusetts limited
partnership (collectively, "Xxx").
1. XXXXXXXX.
1.1. Xxxxxxxx agrees that, subject to Section 1.2 hereof, during the
Non-Competition Period (defined below), Xxxxxxxx will not, directly or
indirectly, own, finance, manage or operate any Prohibited Business (defined
below); PROVIDED, HOWEVER, that nothing in this Agreement will prevent Xxxxxxxx
from fulfilling all obligations of Xxxxxxxx or his Affiliates (defined below) as
of the date hereof to St. Xxxxx Associates, L.P. and Xxxxx & Wollensky
restaurant.
1.2. Xxxxxxxx agrees that, during the Offer Period (defined below),
if Xxxxxxxx wishes to participate in any Opportunity (defined below) presented
to Xxxxxxxx, Xxxxxxxx shall offer such Opportunity in writing (the "Xxxxxxxx
Notice") to NYRG for review by the Advisory Committee of NYRG. The Advisory
Committee shall consider such Opportunity, and the Xxx designees on the Advisory
Committee (the "Xxx Designees") shall determine, by notice in writing to
Xxxxxxxx within 30 days after receipt of the Xxxxxxxx Notice, whether to
recommend that NYRG pursue or reject such Opportunity. If the Xxx Designees
shall recommend that NYRG reject such Opportunity, Xxxxxxxx shall be free,
notwithstanding Section 1.1 hereof, to pursue such Opportunity on his own
behalf. If the Xxx Designees shall recommend that NYRG pursue such Opportunity,
then Xxxxxxxx shall not pursue such Opportunity on his own behalf and Xxxxxxxx
shall cause the Manager of NYRG to determine in its discretion (subject to any
applicable provisions of the Note Purchase Agreement or the Members' Agreement)
whether or not NYRG should pursue such Opportunity.
2. XXX. Xxx agrees that, during the Offer Period, if Xxx or any of its
Affiliates wishes to participate in any Opportunity presented to any of them
(other than an Opportunity relating to Restaurants Unlimited), Xxx shall offer
to NYRG in writing (the "Xxx Notice") the opportunity to participate in such
Opportunity. The Manager of NYRG shall determine, by notice in writing to Xxx
within 30 days after receipt of the Xxx Notice, whether NYRG wishes to
participate in such Opportunity. If NYRG does not wish to participate in such
Opportunity, Xxx and its Affiliates shall be free to pursue such Opportunity. If
NYRG wishes to participate in such Opportunity, NYRG shall have the
right to participate therein on terms which are commercially reasonable taking
into account the size of the transaction and the resources of NYRG.
3. Definitions.
(i) "Affiliate" means any entity or individual directly or
indirectly controlling, controlled by or under common control with the entity of
which it is an affiliate.
(ii) "Closing Date" means the date of closing of the Note Purchase
Agreement.
(iii) "Members' Agreement" means the Members' Agreement, dated as
the date hereof, among NYRG and the other parties thereto.
(iv) "Non-Competition Period" means the period beginning on the
Closing Date and ending on the earlier of (x) the fourth anniversary of the
Closing Date and (y) the first anniversary of the date of termination of
Xxxxxxxx'x employment for any reason (or, in the event such termination occurs
prior to the first anniversary of the Closing Date, then, the second anniversary
of the date of such termination); provided, however, that if there is a material
breach of this Agreement by Xxx at any time prior to the end of the Non-Compete
Period as set forth herein and such breach is not cured within 20 days after
written notice thereof from Xxxxxxxx, then the Non-Competition Period with
respect to Xxxxxxxx shall terminate.
(v) "Note Purchase Agreement" means the Note Purchase Agreement,
dated as of September 29, 1995, among NYRG, THL-CCI Limited Partnership and
Xxxxxx X. Xxx Equity Partners, L.P.
(vi) "Offer Period" means the period beginning on the Closing Date
and ending on the earlier of (x) the fourth anniversary of the Closing Date and
(y) the date of termination of Xxxxxxxx'x employment for any reason; provided,
however, that if there is a material breach of this Agreement by Xxx or Xxxxxxxx
at any time prior to the end of the Offer Period as set forth herein and such
breach is not cured within 20 days after written notice thereof from the
non-breaching party, then the Offer Period with respect to the non-breaching
party shall terminate.
(vii) "Opportunity" means any opportunity presented to Xxxxxxxx or
to Xxx (or their respective Affiliates), as the case may be (the "Recipient"),
by any third party, with respect to the Recipient's directly or indirectly
owning, financing, managing or operating any "high-end, white table cloth"
restaurant during the Offer Period, and
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pursuant to which the Recipient would have an interest, directly or indirectly,
in 10% or more of the net revenues of such restaurant.
(viii) "Prohibited Business" means any "high-end, white table cloth"
restaurant located in a Restricted Area (such as The Manhattan Ocean Club, Park
Avenue Cafe, La Cite, Xxxxx & Wollensky, The Post House and Xxx. Xxxxx Tavern).
(ix) "Restricted Area" means any city (or, in the case of New York
City, any borough) in which NYRG or its subsidiaries at such time own, operate
or manage (or, on the Closing Date, have binding commitments to lease premises
to operate) and "high-end, white table cloth" restaurants.
4. Exception. Nothing in this Agreement shall restrict Xxxxxxxx and his
Affiliates or Xxx and its Affiliates from owning up to 5% of the equity interest
in any Prohibited Business.
5. Remedies. The parties agree that any breach of the terms of this
Agreement would result in irreparable injury and damage to the other (the
"Non-Breaching Party"), for which such party would have no adequate remedy at
law; the parties therefore also agree that in the event of any such breach or
threat thereof, the Non-Breaching Party shall be entitled to an immediate
injunction and restraining order to prevent such breach and/or threatened breach
and/or continued breach by the other party, without having to prove damages, in
addition to any other remedies to which the Non-Breaching Party may be entitled
at law or in equity.
6. Amendment; Waiver. No provision of this Agreement may be amended,
modified or waived unless such amendment, modification or waiver is agreed to in
writing and signed by the parties hereto. No waiver by any party hereto at any
time of any breach by any other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
7. Entire Agreement. This Agreement sets forth the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, between them as to such subject matter.
8. Severability. If any provision of this Agreement, or any application
thereof to any circumstances, is invalid, in whole or in part, such provision or
application shall to that extent be severable and shall not affect other
provisions or applications of this Agreement.
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9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to the
principles of conflict of laws.
10. Counterparts. This Agreement may be executed in separate counterparts,
each of which shall be an original and all of which taken together shall
constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
THE NEW YORK RESTAURANT GROUP, L.L.C.
By: La Cite, Inc.,
its Manager
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name:
Title:
THE XXXXXX X. XXX COMPANY
By:
----------------------------------------
Name:
Title:
XXXXXX X. XXX EQUITY PARTNERS, L.P.
By: THL Equity Advisors Limited Partnership,
its General Partner
By: THL Equity Trust, its General Partner
By:
----------------------------------------
Name:
Title:
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THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp., its
General Partner
By:
----------------------------------------
Name:
Title:
/s/ Xxxx X. Xxxxxxxx
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XXXX X. XXXXXXXX
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
THE NEW YORK RESTAURANT GROUP, L.L.C.
By: La Cite, Inc.,
its Manager
By:
----------------------------------------
Name:
Title:
THE XXXXXX X. XXX COMPANY
By: /s/ X. Xxxxxx
----------------------------------------
Name:
Title:
XXXXXX X. XXX EQUITY PARTNERS. L.P.
By: THL Equity Advisors Limited Partnership,
its General Partner
By: THL Equity Trust, its General Partner
By: /s/ X. Xxxxxx
----------------------------------------
Name:
Title:
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THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp., its
General Partner
By: /s/ X. Xxxxxx
----------------------------------------
Name:
Title:
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XXXX X. XXXXXXXX
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