FORM OF] NON-COMPETITION AGREEMENT
Exhibit
10.4
[FORM
OF]
This
Non-Competition Agreement dated November 30, 2007 (the "Non-Competition
Agreement"), is by and among Rick’s Cabaret International, Inc., a Texas
corporation, (the ”Company“) and [Name], an individual residing in
Florida ([“Name”]).
W
I T N E S S E T H:
WHEREAS,
simultaneously herewith, [Name] has entered into a Stock Purchase Agreement
(the
“Stock Purchase Agreement”) with the Company to sell to the Company (i) ______
shares of common stock, no par value, of Miami Gardens Square One, Inc., a
Florida corporation (“MGSO”) which shares represent 50.05% of the issued and
outstanding shares of MGSO and (ii) 50 shares of common stock, $.01 par value,
of Stellar Management Corporation, a Florida corporation (“Stellar”)
which shares represent 50% of the issued and outstanding shares of Stellar
(collectively, the “Transaction”); and
WHEREAS,
[Name] is the [Title] of MGSO and [Title] of Stellar; and
WHEREAS,
MGSO owns and operates an adult entertainment cabaret known as an “Tootsie’s
Cabaret” (“Tootsie’s” or the “Club”) located at 000 XX 000xx Xxxxxx,
Xxxxx
Xxxxxxx, Xxxxxxx 00000 (the “Premises”); and
WHEREAS,
[Name] will benefit from the Transaction; and
WHEREAS,
the Company
requires that [Name] enter into this Non-Competition Agreement as a condition
to
the Company entering into the Transaction; and
WHEREAS,
to induce the Company to enter into the Stock Purchase Agreement and to complete
the Transaction, [Name] agreed to enter into this Non-Competition Agreement;
and
NOW,
THEREFORE, in consideration of the premises, the closing of the
Transaction and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Seller and the Company agree
as follows:
1.
Covenants. For
a period of five (5) years following the Closing
Date set forth in the Stock Purchase Agreement (such five (5) year period being
referred to herein as the “Restricted Period”), [Name] shall not, directly or
indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, investor or in any other
individual or representative capacity, whether for compensation or
not:
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(a)
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Own,
or have any rights of conversion to own, or share in the earnings
of,
carry on, manage, operate, control, be engaged in, render services
to,
solicit customers for any business engaged in the operation of an
establishment featuring live female nude or semi-nude entertainment
within
a twenty (20) mile radius of the Premises (the “Prohibited Area”), with
the exception of the existing business known as “Alley Cat” which is
operated at 0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx;
or
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(b)
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Solicit
or induce, or attempt to solicit or induce, wherever located, any
employee, independent contractor, or agent or consultant of MGSO
or
Stellar, the Club, the Company or any of their affiliates to leave
his or
her employment or terminate his or her agreement or relationship
with MGSO
or Stellar, the Club, the Company or any of their
affiliates.
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2.
[Name]’s
Acknowledgments and Agreements. [Name]
acknowledges and agrees that:
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(a)
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Due
to the nature of MGSO’s, Stellar’s and the Company’s business, the
foregoing covenants place no greater restraint upon [Name] than is
reasonably necessary to protect the business and goodwill of MGSO,
Stellar
and the Company;
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(b)
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These
covenants protect a legitimate interest of MGSO, Stellar and the
Company
and do not serve solely to limit the future competition of MGSO,
Stellar
or the Company;
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(c)
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This
Non-Competition Agreement is not an invalid or unreasonable restraint
of
trade;
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(d)
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A
breach of these covenants by [Name] would cause irreparable damage
to
MGSO, Stellar and the Company;
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(e)
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These
covenants will not preclude [Name] from obtaining reasonable business
relationships or becoming gainfully employed following the closing
of the
Stock Purchase Agreement;
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(f)
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These
covenants are reasonable in scope and are reasonably necessary to
protect
the business and goodwill and valuable and extensive trade which
MGSO,
Stellar and the Company have established through their own expense
and
effort;
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(g)
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The
signing of this Non-Competition Agreement is necessary as part of
the
consummation of the Transaction previously discussed;
and
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(h)
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[Name]
has carefully read and considered all provisions of this Non-Competition
Agreement and that all of the restrictions set forth are fair and
reasonable and are reasonably required for the protection of the
interests
of MGSO, Stellar and the Company.
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3.
Remedies,
Injunction. In the event of [Name]’s
actual breach of any provisions of this Non-Competition Agreement, [Name] agrees
that MGSO, Stellar and the Company shall be entitled to a temporary restraining
order, preliminary injunction and/or permanent injunction restraining and
enjoining [Name] from violating the provisions herein. Nothing in
this Non-Competition Agreement shall be construed to prohibit MGSO, Stellar
or
the Company from pursuing any other available remedies for such breach or
threatened breach, including the recovery of damages from
[Name]. [Name] further agrees that, for the purpose of any such
injunction proceeding, it shall be presumed that MGSO’s, Stellar’s and the
Company's legal remedies would be inadequate and that MGSO, Stellar and the
Company would suffer irreparable harm as a result of [Name]’s violation of the
provisions of this Non-Competition Agreement.
Non-Competition
Agreement - Page
2
4.
Severability. In
the event that any of the provisions of this Non-Competition Agreement are
held
to be invalid or unenforceable in whole or in part, those provisions to the
extent enforceable and all other provisions shall nevertheless continue to
be
valid and enforceable as though the invalid or unenforceable parts had not
been
included in this Non-Competition Agreement. In the event that any
provision relating to the time period or scope of a restriction shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or scope such court deems reasonable and enforceable, then the time period
or
scope of the restriction deemed reasonable and enforceable by the court shall
become and shall thereafter be the maximum time period or the applicable scope
of the restriction. [Name] further agrees that such covenants and/or
any portion thereof are severable, separate and independent, and should any
specific restriction or the application thereof, to any person, firm,
corporation, or situation be held to be invalid, that holding shall not affect
the remainder of such provisions or covenants.
5.
General
Provisions.
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(a)
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Notices. Any
notices to be given hereunder by either party to the other may be
effected
either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested or by a
recognized overnight delivery service. Mailed notices shall be
addressed to the parties at the addresses set forth below, but each
party
may change their address by written notice in accordance with this
Paragraph (a). Notices delivered personally shall be
deemed communicated as of actual receipt; mailed notices shall be
deemed
communicated as of three (3) days after mailing; and overnight delivery
service shall be deemed delivered one (1) day after depositing with
the
overnight delivery service.
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If
to
Company: Xxxx
Xxxxxx, President
00000
Xxxxxx Xxxx
Xxxxxxx,
Xxxxx 00000
With
a
copy
to: Xx.
Xxxxxx X. Xxxxxxx
Xxxxxxx,
Xxxxx &
Xxxxxxxxx
0000
Xxxxxxxx Xxxxx, Xxxxx
000
Xxxxxxx,
Xxxxx 00000
If
to
[Name]: 000
XX 000xx
Xxxxxx, Xxxxx 000
Xxxxx
Xxxxxxx,
Xxxxxxx 00000
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(b)
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Law
Governing Non-Competition Agreement and Venue. This
Non-Competition Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida, without regard
to
principles of conflict of laws. In any action between or among
any of the parties, whether arising out of this Agreement or otherwise,
each of the parties irrevocably consents to the exclusive jurisdiction
and
venue of the federal and state courts located in Dade County,
Florida.
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Non-Competition
Agreement - Page
3
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(c)
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Contract
Terms to be Exclusive. This Non-Competition Agreement
contains the sole and entire agreement between the parties and shall
supersede any and all other agreements between the parties with respect
to
the Seller’s and [Name]’s agreement not to compete with MGSO and the
Company.
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(d)
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Waiver
or Modification Ineffective Unless in Writing. It is
further agreed that no waiver or modification of this Non-Competition
Agreement or of any covenant, condition, or limitation herein contained
shall be valid unless in writing and duly executed by the party to
be
charged therewith and that no evidence of any waiver or modification
shall
be offered or received in evidence in any proceeding or litigation
between
the parties hereto arising out of or affecting this Non-Competition
Agreement, or the rights or obligations of any party hereunder, unless
such waiver or modification is in writing, duly executed as
aforesaid.
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(e)
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Assignment. The
rights and benefits of MGSO, Stellar and the Company under this
Non-Competition Agreement shall inure to the benefit of and be binding
upon the successors and assigns of MGSO, Stellar and the
Company. The rights of [Name] hereunder are personal and
nontransferable except that the rights and benefits hereof shall
inure to
the benefit of the heirs, executors and legal representatives of
the
Seller and [Name].
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(f)
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Binding
Effect. Except as otherwise provided herein, this
Non-Competition Agreement shall be binding upon and inure to the
benefit
of the parties hereto and their respective successors and
assigns.
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(g)
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Execution. 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]
Non-Competition
Agreement - Page
4
IN
WITNESS WHEREOF, this Non-Competition Agreement has been executed as of the
30th
day of November, 2007.
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RICK’S
CABARET INTERNATIONAL, INC.
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By:
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Xxxx
Xxxxxx, President
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[NAME],
INDIVIDUALLY
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Non-Competition
Agreement - Page 5
