MULTI-UNIT OPTION AGREEMENT
This
Multi-Unit Option Agreement ("Agreement") entered into this day of , 200__,
between Planet Beach Franchising Corporation, a Louisiana corporation, with
an
address at 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx 00000 (hereafter "Planet
Beach"), and_______________________________________ (hereafter "you").
Background
A.
Contemporaneous with the execution of this Agreement, you and Planet Beach
have
entered into a Single Unit Franchise Agreement (the "First Franchise Agreement")
for the right to establish and operate a single Planet Beach Tanning Spa (the
"First Spa") and paid the Initial Franchise Fee.
B.
Planet
Beach offers qualified franchisees the right and option to open and operate
2, 4
or 9 additional Planet Beach Tanning Spas (the "Additional Spas") during the
term of the option period (defined below) and otherwise upon the terms and
conditions of this Agreement.
C.
You
wish to purchase an option to establish and operate __ Additional Spas under
the
terms and conditions set forth in this Agreement.
NOW,
THEREFORE,
for
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
Agreement
| 1. |
Grant
of Option.
In consideration of your payment to Planet Beach of a $_______ option
fee
(the "Option Fee"), which is due and payable upon your execution
of this
Agreement, Planet Beach grants you the right and option to establish
and
operate __ Additional Spas under the terms and conditions of this
Agreement. This Option Fee is deemed fully earned upon payment and
is
nonrefundable.
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| 2. |
Eligibility.
You must purchase this Option when you execute the First Franchise
Agreement.
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| 3. |
Option
Period.
You may not execute a lease for any Additional Spa prior to exercising
your option pursuant to paragraph 4 below. Your option to establish
2
additional Spas will expire three years and one day from the date
of the
execution of this agreement. Your option to establish 4 additional
Spas
will expire four years and one day from the date of the execution
of this
agreement. Your option to establish 9 additional Spas will expire
five
years and one day from the date of execution of this agreement. You
must
have all of your Spas open and operating before the expiration of
the
option period in which you purchased. If you fail to meet the option
period listed above you no longer have an option for those additional
Spas
for which you do not have opened and operating, unless you request
in
writing an extension which will be approved at Planet Beach’s sole
discretion.
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| 4. |
Exercise
of Option.
In order to exercise your option for each Additional Spa you must
satisfy
all
of
the following conditions, upon the exercise of each option:
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4.1.
Execute a new franchise agreement ("Additional Franchise Agreement(s)"), in
the
form of the First Franchise Agreement, for each of your Additional Spas, each
with its own Data Sheet and Approved Location and Territory Addendum, but
without the provision of a Grand Opening Specialist, the Term of which will
coincide with the balance of the remaining Term under the First Franchise
Agreement;
4.2.
You
are not in default under this Agreement, or any other agreement with Planet
Beach and/or its affiliate, including any other franchise agreement or
development agreement and have fully and faithfully performed all of your
material obligations under any such agreements throughout their respective
terms;
4.3.
Neither this Agreement, the First Franchise Agreement or any other agreement
with you has expired or been terminated by Planet Beach and/or its affiliate;
4.4.
You
have timely paid any fees or other monies due Planet Beach as and when they
become due under the terms of the First Franchise Agreement or any other
agreement with Planet Beach, including interest or principal due under any
note
payable to Planet Beach;
4.5.
There has been no change in the effective control of you (by way of change
in
share ownership, membership or partnership interest, or otherwise) without
Planet Beach’s written consent; and
4.6.
Your
Designated Manager has successfully completed Planet Beach University Online
certifications and has successfully completed Franchisee and Manager School.
1 Your
Options may be applied only to opening a new Spa and may not be applied to
already existing locations.
2 Sale
or Assignment. Your
rights under this Agreement are personal and you may not sell, transfer, or
assign any right granted herein. Notwithstanding, if you are an individual
or a
partnership, you have the right to assign your rights under this Agreement
to a
corporation or limited liability company upon the same terms and conditions
as
provided in paragraph 23.6 of the First Franchise Agreement. Planet Beach has
the right to assign this Agreement in whole or in part in its sole discretion.
3 Time
of the Essence.
Time is
of the essence with respect to any time fixed for performance of any requirement
set forth in this Agreement.
4 Acknowledgment.
You
acknowledge that this Agreement is not a franchise agreement and does not confer
upon you any rights to use the Planet Beach Proprietary Marks or the System.
5 Notices.
All
notices, requests and reports to be given under this Agreement are to be in
writing, and delivered by either hand, e-mail with a confirming receipt,
overnight mail, or certified mail, return receipt requested, prepaid, to the
addresses set forth above (which may be changed by written notice).
6 Governing
Law. This
Agreement shall be deemed to have been made in the State of Louisiana and shall
be construed according to the laws of Louisiana without regard to its conflict
of laws, LCC Arts. 3515 et seq., and any amendments and/or revisions thereto.
7 Mediation.
At
Planet
Beach's option, all claims or disputes between you and Planet Beach or its
affiliates arising out of, or in any way relating to, this Agreement, or any
of
the parties' respective rights and obligations arising out of this agreement,
shall be submitted first to mediation, in the Parish of Jefferson, Louisiana,
under the auspices of the National Franchise
Mediation
Program ("NFMP"), in accordance with the NFMP's Commercial Mediation Rules
then
in effect. Before commencing any legal action against Planet Beach or its
affiliates with respect to any such claim or dispute, you must submit a notice
to Planet Beach, which specifies, in detail, the precise nature and grounds
of
such claim or dispute. Planet Beach will have a period of 30 days following
receipt of such notice within which to notify you as to whether Planet Beach
or
its affiliates elects to exercise its option to submit such claim or dispute
to
mediation. You may not commence any action against Planet Beach or its
affiliates with respect to any such claim or dispute in any court unless Planet
Beach fails to exercise its option to submit such claim or dispute to mediation,
or such mediation proceedings have been terminated either: (i) as the result
of
a written declaration of the mediator(s) that further mediation efforts are
not
worthwhile; or (ii) as a result of a written declaration by Planet Beach. The
parties shall each bear their own costs of mediation and shall share equally
the
filing fee imposed by NFMP and the mediator’s fees. Planet Beach’s rights to
mediation, as set forth herein, may be specifically enforced by Planet Beach.
11.
Arbitration.
All
disputes and claims relating to this Agreement or any other agreement entered
into between the parties, the rights and obligations of the parties, or any
other claims or causes of action relating to the making, interpretation, or
performance of either party under this Agreement, shall be settled by
arbitration in Xxxxxxxxx Xxxxxx, Louisiana in accordance with the Federal
Arbitration Act and the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). The right and duty of the parties to this Agreement to
resolve any disputes by arbitration shall be governed by the Federal Arbitration
Act, as amended. The following shall supplement and, in the event of a conflict,
shall govern any arbitration: If the claim is for less than $35,000 than the
matter shall be heard before a single arbitrator. If the claim, or a
counterclaim, is for $35,000 or more, the matter may be heard before a panel
of
three (3) arbitrators if both parties agree and each party shall appoint its
own
arbitrator, and the appointed arbitrators shall appoint a “neutral” arbitrator
from the AAA’s list of arbitrators. If the parties do not agree the matter shall
be heard before a single arbitrator. Arbitrability will be decided by the
arbitrator. Neither party shall pursue class claims and/or consolidate the
arbitration with any other proceeding to which the franchisor is a party. Each
party must bear its own costs of arbitration including the fee for their
respective arbitrator; provided, however, that the neutral or the single
arbitrator's fee shall be shared equally by Planet Beach and you. The
arbitrator's award shall include all fees, costs and attorneys' fees for the
prevailing party. The arbitrators shall have no authority to amend or modify
the
terms of the Agreement. To the extent permitted by applicable law, no issue
of
fact or law shall be given preclusive or collateral estoppel effect in any
arbitration, except to the extent such issue may have been determined in another
proceeding between the parties. Judgment upon the award of the arbitrator shall
be submitted for confirmation to the United States District for the Eastern
District of Louisiana and, if confirmed, may be subsequently entered in any
court having competent jurisdiction. This agreement to arbitrate shall survive
any termination or expiration of this Agreement.
| 12. |
Third
Party Beneficiaries. Planet
Beach’s officers, directors, shareholders, agents, employees and/or
affiliates are express third party beneficiaries of this Agreement
and the
mediation and arbitration provisions contained herein, each having
authority to specifically enforce the right to mediate and arbitrate
claims asserted against such person(s) by you.
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| 13. |
Injunctive
Relief. Nothing
contained in this Agreement herein shall prevent the parties from
applying
to or obtaining from any court having jurisdiction, without bond,
a writ
of attachment, temporary injunction, preliminary injunction and/or
other
emergency relief available to safeguard and protect the parties’ interest
prior to the filing of any arbitration proceeding or pending the
trial or
handing down of a decision or award pursuant to any arbitration proceeding
conducted hereunder.
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| 1. |
Jurisdiction
and Venue. With
respect to any proceeding not subject to arbitration, the parties
agree
that any action at law or in equity instituted against either party
to
this Agreement shall be commenced only in the 24th Judicial District
for
the Parish of Jefferson, Louisiana or the United States District
Court for
the Eastern District of Louisiana at Planet Beach’s discretion.
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| 2. |
Jury
Trial Waiver. With
respect to any proceeding not subject to arbitration, the parties
hereby
agree to waive trial by jury in any action, proceeding or counterclaim,
whether at law or equity, regardless of which party brings suit.
This
waiver shall apply to any matter whatsoever between the parties hereto
which arises out of or is related in any way to this Agreement, the
performance of either party, and/or your purchase from Planet Beach
of the
franchise, option and/or any goods or services.
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| 3. |
Waiver
of Punitive Damages. You
waive to the fullest extent permitted by law, any right to or claim
for
any punitive, exemplary, incidental, indirect, special or consequential
damages (including, without limitation, lost profits) which you may
have
against Planet Beach, its affiliates, successors or assigns, arising
out
of any cause whatsoever (whether such cause be based in contract,
negligence, strict liability, other tort or otherwise) and agree
that in
the event of a dispute, recovery shall be limited to actual damages.
If
any other term of this Agreement is found or determined to be
unconscionable or unenforceable for any reason, the foregoing provisions
shall continue in full force and effect, including, without limitation,
the waiver of any right to claim any consequential damages.
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| 4. |
Class
Action Waiver. You
hereby agree to waive any class action proceeding or counterclaim
against
Planet Beach, its affiliates, successors or assigns, whether at law
or
equity, regardless of which party brings suit. This waiver shall
apply to
any matter whatsoever between the parties hereto which arises out
of or is
related in any way to this Agreement, the performance of either party,
and/or your purchase from Planet Beach, its affiliates, successors
or
assigns of the franchise and/or any goods or services.
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| 5. |
Attorneys’
Fees. If
either party institutes any judicial or arbitration proceeding to
enforce
any monetary or non-monetary obligation or interpret the terms of
this
Agreement and Planet Beach prevails in the action or proceeding,
you shall
be liable to Planet Beach for all costs, including reasonable attorneys’
fees, incurred in connection with such proceeding.
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| 6. |
Nonwaiver.
Planet
Beach’s failure to insist upon strict compliance with any provision of
this Agreement shall not be a waiver of Planet Beach's right to do
so, any
law, custom, usage or rule to the contrary notwithstanding. Delay
or
omission by Planet Beach respecting any breach or default shall not
affect
Planet Beach's rights respecting any subsequent breaches or defaults.
All
rights and remedies granted in this Agreement shall be cumulative.
Planet
Beach's election to exercise any remedy available by law or contract
shall
not be deemed a waiver or preclude exercise of any other remedy.
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| 7. |
Severability.
The
parties agree that if any provisions of this Agreement may be construed
in
two ways, one of which would render the provision illegal or otherwise
voidable or unenforceable and the other which would render it valid
and
enforceable, such provision shall have the meaning, which renders
it valid
and enforceable. The language of all provisions of this Agreement
shall be
construed according to fair meaning and not strictly construed against
either party. The provisions of this Agreement are severable, and
this
Agreement shall be interpreted and enforced as if all completely
invalid
or unenforceable provisions were not contained herein, and partially
valid
and enforceable provisions shall be enforced to the extent that they
are
valid and enforceable. If any material provision of this Agreement
shall
be stricken or declared invalid, the parties agree to negotiate mutually
acceptable substitute provisions. In the event that the parties are
unable
to agree upon such provisions, Planet Beach reserves the right to
terminate this Agreement.
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| 1. |
Construction
of Language. Any
term defined in the First Franchise Agreement which is not defined
in this
Agreement will be ascribed the meaning given to it in the First Franchise
Agreement. The language of this Agreement will be construed according
to
its fair meaning, and not strictly for or against either party. All
words
in this Agreement refer to whatever number or gender the context
requires.
If more than one party or person is referred to as you, their obligations
and liabilities must be joint and several. Headings are for reference
purposes and do not control interpretation.
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| 2. |
Successors.
References to "Planet Beach" or "you" include the respective parties'
successors, assigns or transferees, subject to the limitations of
Paragraph 5 of this Agreement.
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| 3. |
Additional
Documentation. You
must from time to time, subsequent to the date first set forth above,
at
Planet Beach’s request and without further consideration, execute and
deliver such other documentation or agreement and take such other
action
as Planet Beach may reasonably require in order to effectuate the
transactions contemplated in this Agreement. In the event that you
fail to
comply with the provisions of this Section, you hereby appoint Planet
Beach as your attorney-in-fact to execute any and all documents on
your
behalf, reasonably necessary to effectuate the transactions contemplated
herein.
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| 4. |
No
Right to Offset. You
may not withhold all or any part of any payment to Planet Beach or
any of
its affiliates on the grounds of the alleged nonperformance of Planet
Beach or any of its affiliates or as an offset against any amount
Planet
Beach or any of its affiliates may owe or allegedly owe you under
this
Agreement or any related agreements.
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| 5. |
State
Law Applies. If
any provision of this Agreement, including but not limited to its
provisions for transfer, renewal, termination, notice of termination,
or
cure rights, is inconsistent with any valid law or regulation of
the state
in which your Spa is located, then the valid law or regulation of
that
state applicable to the franchised business will supersede any provision
of this Agreement that is less favorable to you.
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| 6. |
Entire
Agreement.
This Agreement contains the entire agreement between the parties
concerning the purchase and operation of additional Spas; no promises,
inducements or representations (other than those in the Offering
Circular)
not contained in this Agreement have been made, nor shall any be
of any
force or effect, or binding on the parties. Modifications of this
Agreement must be in writing and signed by both parties. Planet Beach
reserves the right to change Planet Beach's policies, procedures,
standards, specifications or manuals at Planet Beach's discretion.
In the
event of a conflict between this Agreement and any Additional Franchise
Agreement(s), the terms, conditions and intent of this Agreement
shall
control.
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IN
WITNESS WHEREOF,
AND
INTENDING TO BE LEGALLY BOUND HEREBY, THE PARTIES HERETO HAVE CAUSED THIS
AGREEMENT TO BE EXECUTED EFFECTIVE THE DATE FIRST SET FORTH ABOVE.
By:
__________________________________________
This
Agreement is not fully executed until signed by the CEO or COO of Planet Beach
Franchising Corporation:
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FRANCHISEE:
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___________________________
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_____________________________________
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| __________________ |
__________________________
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Witness
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__________________________
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________________________________________
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_____________________
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__________________________________
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Witness
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