Exhibit
10.1
PROMISSORY
NOTE
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$4,350,000.00
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________________________,
2008
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FOR VALUE
RECEIVED, and WITHOUT GRACE, in installments as hereinafter provided, the last
of which shall be due and payable on or before five (5) year(s) from date
hereof, RCI HOLDINGS, INC., a Texas Corporation, ("Maker", whether one or more
and if more than one then jointly and severally) promise(s) to pay to the order
of TEXAS COMMUNITY BANK, N.A. (together with its successors and assigns and any
subsequent holders of this Note, the "Lender") at its offices at 16610
Interstate 45, The Woodlands, Texas 77384, or such other place as Lender may
from time to time designate by written notice to Maker, the sum of FOUR MILLION
THREE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($4,350,000.00), in immediately
available current funds and lawful money of the United States of America, which,
at the time of payment, shall be legal tender for the payment of public and
private debts, together with interest on the outstanding principal balance of
this Note from the date of advance until maturity at a varying rate per annum
(“Variable Rate”) which shall from day to day be equal to the greater
of: (i) TWO PERCENT (2%) above the Prime Rate, hereafter defined, or
(ii) SEVEN AND ONE-HALF PERCENT (7.50%) per annum; provided, however, the
Variable Rate shall never exceed the Maximum Legal Rate, hereafter
defined.
All past
due principal and interest, whether due as a result of acceleration or
otherwise, shall bear interest at the highest lawful rate permissible under the
laws applicable to this Note ("Maximum Legal Rate") from the date the payment
thereof shall have become due until the same shall have been repaid in
full. If the Maximum Legal Rate hereon is established under the laws of
the State of Texas, the applicable rate ceiling shall be the indicated (weekly)
rate ceiling, from time to time in effect and applicable to this Note, as
provided in Chapter 303 of the Texas Finance Code. However, if applicable
law establishes no Maximum Legal Rate then all past due principal and interest
shall bear interest at a rate equal to EIGHTEEN PERCENT (18%) per
annum. In addition, Lender may charge and collect a late fee of five
percent (5%) of any scheduled installment that is more than ten (10) days past
due. In no event shall the provisions of Chapter 346 of the Texas
Finance Code (which regulates certain revolving credit loan accounts and
revolving triparty accounts) apply to this Note.
The term
“Prime Rate” as used herein shall mean the prime rate quoted in the Money Market
Rate Section of the Wall Street Journal from time to time. Effective
the same day as the Prime Rate changes and without notice to the Maker or any
other party, the Variable Rate on this Note shall likewise change. In
the event that two or more rates or a range of rates are quoted, then the rate
applicable hereto shall be the highest of those quoted. If the Wall
Street Journal publishes a retraction or correction of such rate, the rate
reported in such retraction or correction shall apply. In the event
that the Wall Street Journal shall ever cease to publish a prime or base rate,
the then holder hereof shall designate a Bank having its principal banking
location in New York, New York, whose base or prime rate, from and after the
effective date of such designation shall be the Prime Rate for purposes
hereof.
In no
event is the rate of interest on the outstanding principal balance hereof ever
to exceed the Maximum Legal Rate and Lender, Maker and any co-maker, drawer,
accepter, endorser, guarantor, surety, accommodating party or other person or
entity now or hereafter primarily liable or secondarily liable for payment of
all or any part of this Note (each a “other liable party” or collectively “other
liable parties”), intend to conform and contract in strict compliance with
applicable usury law. Determination of the rate of interest for the
purposes of determining whether this Note is usurious shall be made by
amortizing, prorating, allocating and spreading during the time this Note is
outstanding all interest or other sums deemed to be interest at any time
contracted for, charged or received from the Maker. It is intended that
all interest due and payable under this Note shall not exceed the Maximum Legal
Rate and, notwithstanding anything to the contrary contained in this Note or any
agreement entered into in connection with or as security herefor, it is agreed
as follows: the aggregate of all consideration which constitutes interest
under applicable law which is taken, reserved, contracted for, charged or
received under this Note or under any agreement executed in connection with or
as security herefor, shall under no circumstances exceed the Maximum Legal Rate
and any excess shall be deemed a mistake and credited on this Note by the then
holder thereof (or if this Note shall have been paid in full, refunded to the
Maker). Neither the Maker, nor any other liable party shall ever be liable
for interest in excess of the Maximum Legal Rate and the provisions of this
paragraph shall control over all other provisions of this Note and all other
documents to or of which Lender is a party or a beneficiary now or hereafter
evidencing, securing, guaranteeing, modifying or otherwise relating to the
indebtedness evidenced hereby, and all extensions, renewals and modifications
thereof (the Note and the documents each a “Loan Document” or collectively the
“Loan Documents”) which may be in apparent conflict with the provisions of this
paragraph.
Notwithstanding
any term or provision of this Note to the contrary, Maker confirms to Lender
that neither Maker nor its legal counsel, if any, is aware that this Note, or
the transaction in connection which this Note was issued, is or maybe usurious
in any respect. To induce Lender to make the loan evidenced by this
Note, Maker agrees with and covenants to Lender that if at anytime Maker
believes or discovers that any term or provision of this Note or any action
taken by Lender in connection with Note is or may be in violation of the usury
laws or any other applicable law, Maker will immediately give notice to Lender
specifying with particularity the nature and extent of any such potential
violation of the usury laws or any other applicable law, and afford to Lender a
reasonable period (which in no event will be less than sixty (60) days) within
which to cure same. Maker agrees with and covenants to Lender that in
no instance will Maker make any claim, bring any suit, prosecute or otherwise
assert any cause of action, claim, counterclaim, or defense in respect of any
violation of the usury laws or any other applicable law, unless, as a condition
precedent thereto, Maker has given to Lender such notice and afforded to Lender
such opportunity to cure as provided herein.
Interest
hereon shall be computed on the basis of a year consisting of THREE HUNDRED
SIXTY (360) days unless either (a) the holder of this Note elects or (b)
compliance with applicable law requires that interest for any period of time be
computed on the basis of the actual number of days in the applicable calendar
year in which accrued, in either of which events interest for that period of
time shall be so computed.
The
principal of this Note and the interest to accrue hereon is and shall be due and
payable in 60 consecutive monthly installments as
follows:
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1.
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SUBJECT TO INCREASE AS
HEREINAFTER PROVIDED,
the first 59 of such installments shall be in
the amount which is the greater of: (i) THIRTY-FIVE THOUSAND FORTY-THREE
AND 30/100 DOLLARS ($35,043.30) each, which amount includes the interest
which has accrued to the date of such installment or (ii) the amount of
interest which has accrued to the due date of each such installment, with
the first such installment becoming due and payable
________________________, 2008, with a like installment becoming due and
payable on the same day of each succeeding month
thereafter;
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2.
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The
60th and final installment shall be due and payable on or before five (5)
year(s) from date hereof and shall be in the amount of the then unpaid
principal balance of this Note, together with all of the then unpaid
accrued interest hereon.
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IN
THE EVENT THE VARIABLE RATE INCREASES FROM TIME TO TIME, THE LENDER HAS THE
RIGHT (BUT NOT THE OBLIGATION) IN ITS SOLE AND ABSOLUTE DISCRETION AT ANYTIME
AND FROM TIME TO TIME TO INCREASE THE AMOUNT OF THE MONTHLY INSTALLMENTS TO AN
AMOUNT THAT WOULD BE SUFFICIENT TO REPAY THE UNPAID PRINCIPAL BALANCE OF THIS
NOTE FROM THE DATE OF LENDER’S ELECTION OF SUCH CHANGE OF AMOUNT IN FULL ON OR
BEFORE TWENTY (20) YEARS FROM THE DATE OF THIS NOTE (EVEN THOUGH THIS NOTE HAS
AN ACTUAL MATURITY OF FIVE (5) YEARS) AT THE NEW INTEREST RATE (CALCULATED AS A
FIXED RATE BASED ON THE THEN VARIABLE RATE) IN SUBSTANTIALLY EQUAL
INSTALLMENTS. THE LENDER WILL GIVE MAKER NOTICE OF THE AMOUNT OF THE
NEW MONTHLY INSTALLMENT. NEITHER THE FAILURE TO EXERCISE, NOR DELAY
IN EXERCISING, LENDER’S RIGHT TO INCREASE THE MONTHLY INSTALLMENTS HEREUNDER MAY
BE, OR CONSTRUED TO BE, A WAIVER OF SUCH RIGHT AND LENDER SHALL HAVE THE RIGHT
TO EXERCISE SUCH RIGHT AT ANYTIME AND FROM TIME TO TIME.
Whenever
any payment to be made under this Note is stated to be due on a Saturday, Sunday
or legal holiday for commercial banks under applicable law, then such payment is
due and may be made on the next succeeding business day, and such extension of
time will be included in the computation of interest under this
Note.
All or
any part of the principal hereof may be prepaid at any time without the payment
of any penalty or premium; however, at Lender's option, all voluntary
prepayments shall be applied to future installments due hereon in the inverse
order of their maturity.
All
payments hereunder, whether designated as payments of principal or interest,
shall be applied first to accrued and unpaid interest, then to the discharge of
any expenses which the holder may be entitled to reimbursement for by reason
hereof or under the terms of any Loan Document, and lastly, to unpaid
principal.
As
additional security for this Note, the Maker hereby grants to Lender an express
lien and security interest in and to all property and any and all deposits
(general or special, time or demand, provisional or final) at any time held by
the Lender for the credit or for the account of Maker. Without impairing
or limiting the continued existence and viability of Lender’s express security
interests in such property and deposits, in the event this Note is not paid at
maturity, however such maturity may be brought about, or if a default should
occur and be continuing under any Loan Document, Lender is hereby authorized at
any time, and from time to time, without notice to Maker (any such notice being
hereby expressly waived by Maker), to set off and apply any and all such
deposits at any time held or other indebtedness at any time owing by Lender to
or for the credit or the account of Maker against the outstanding principal
balance of, and the accrued interest on, this Note. The foregoing rights
of Lender are in addition to and cumulative of all other rights and remedies
(including, without limitation, other liens, security interests and rights of
setoff) which Lender may have.
It is
agreed that time is of the essence of this Note and that in the event of a
failure to pay any installment of principal and/or interest herein provided when
due, or a breach of the provisions of any of the Loan Documents, or in the event
of a failure to pay any obligation, or loan of whatever nature owed by Maker to
Lender, whether such obligation is in existence now or in the future, upon
Maker's death, dissolution, termination of existence, insolvency or business
failure, the appointment of a receiver of all or any part of the Maker's
property, an assignment for the benefit of creditors of Maker, a calling of a
meeting of creditors of Maker, the commencement of any proceeding under any
bankruptcy, insolvency or debtor relief laws by or against Maker or any other
liable party, or if Maker or any other liable party fails to furnish financial
or other information requested by Lender, or if Maker or any other liable party
furnishes or has furnished any financial or other information or statements that
are misleading in any material respect, or a writ or order of attachment or
garnishment is issued or made against any of the property of Maker, the Lender,
at its option, may declare the entire unpaid principal balance and all unpaid
accrued interest owing hereon at once due and payable, without notice.
Failure to exercise this option shall not constitute a waiver of the right to
exercise the same in the event of any subsequent default.
The
remedies of Lender in this Note and in the Loan Documents, or at law or in
equity, shall be cumulative and concurrent, and may be pursued singly,
successively or together in Lender’s sole discretion and as often as the
occasion therefore shall arise. Neither the failure to exercise, nor
delay in exercising, Lender’s right to accelerate the maturity of this Note or
any other right, power or remedy upon any default may be construed as a waiver
of such default or as a waiver of the right to exercise any such right, power or
remedy at anytime. No single or partial exercise by Lender of any
right, power or remedy exhausts the same or precludes any other or further
exercise thereof, and every such right, power or remedy may be exercised at
anytime and from time to time.
Remittances
and payment of any part of this Note other than in the required amount in
immediately available funds at the place where this Note is payable shall not,
regardless of any receipt or credit issued therefore, constitute payment until
the required amount is actually received by Lender in full and in accordance
herewith and shall be made and accepted subject to the condition that any check
or draft may be handled for collection in accordance with the practice of the
collecting bank or banks. Acceptance by Lender of any payment in an
amount less than the full amount then due shall be deemed an acceptance on
account only and the failure to pay the entire amount then due shall be and
continued to be an event of default in the payment of this
Note.
If
default occurs in the payment of this Note at maturity, whether the maturity may
occur by acceleration or otherwise, or if this Note is collected through
probate, bankruptcy or other proceedings, Maker promises to pay all costs and
expenses of collection and enforcement. If this Note is placed in the
hands of an attorney for collection, Maker promises to pay, in addition to all
other costs and expenses of collection and enforcement, an additional amount
equal to fifteen percent (15%) of the principal and interest then due, as
attorney's fees.
Lender
may require payment by Maker and any other liable party without first resorting
to any security. Maker and all other liable parties on this Note consent
to the release or discharge of any other liable party on this Note and to the
release, impairment or substitution of any collateral for this Note by
Lender.
MAKER AND EVERY
OTHER LIABLE PARTY WAIVE PRESENTMENT FOR PAYMENT, PROTEST, NOTICE OF DISHONOR,
GRACE, NOTICE OF INTENT TO ACCELERATE AND NOTICE OF ACCELERATION AND ANY OTHER
NOTICE, FILING OF SUIT AND DILIGENCE IN COLLECTION OF THIS NOTE AND THE
ENFORCEMENT OF ANY OF THE SECURITY RIGHTS OF LENDER, AND CONSENT AND AGREE THAT
TIME OF PAYMENT OF THIS NOTE MAY BE EXTENDED WITHOUT NOTICE AT ANY TIME AND FROM
TIME TO TIME, AND FOR PERIODS OF TIME WHETHER OR NOT FOR A TERM OR TERMS IN
EXCESS OF THE ORIGINAL TERM OF THIS NOTE WITHOUT NOTICE OR CONSIDERATION TO, OR
CONSENT FROM, ANY OF THEM
.
Without
being limited thereto or thereby, this Note is secured by that certain Deed of
Trust, Security Agreement and Financing Statement of even date herewith to JAMES
EBREY, Trustee, covering and describing Lot 1A, Block B/6489, Murdock Addition,
City of Dallas, DALLAS County, Texas together with an easement
estate.
Maker and
each other liable party acknowledges and agrees that Lender may, at anytime, and
from time to time, without the consent of or notice to Maker or any other liable
party assign, sell, transfer or grant participations in all or part of the
obligations of Maker evidenced by this Note, together with any liens or
collateral securing the payment of this Note. Lender may disseminate to any
assignee, purchaser, transferee or participant or prospective assignee,
purchaser, transferee or participant any information that Lender has pertaining
to the loan evidenced by this Note, including without limitation, any
information regarding Maker, any other liable party, or any property owned or
held by Maker or other liable party or offered as security for or securing the
loan evidenced by this Note. If Maker elects to assign, sell,
transfer, or participate any Overline Portion, as hereafter defined, of the
obligations evidenced by this Note and if either: (i) Lender is
unable (having no obligation) to procure an assignee, purchaser, transferee or
participant, upon terms and conditions that are acceptable to Lender in its
sole, exclusive and absolute discretion, or (ii) an assignee, purchaser,
transferee or participant fails or refuses to advance to Maker any Overline
Portion through no fault of Lender, then Lender has no obligation and/or
liability to Maker or any other liable party for failure to fund such Overline
Portion, nor does Lender have any obligation to procure funds from other
sources. In no event is Lender obligated to fund any amount under
this Note that would cause Lender to be in violation of any state or federal law
with respect to Maker or any other liable party or any of their related
interests being liable to Lender in an amount in excess of that permitted by
such applicable law, including applicable law on the amount that Lender may
legally loan to one borrower and its related interests. “Overline
Portion” means the amount of loan proceeds in excess of the amount that Lender
is permitted by applicable law to loan to Maker and its related
interests.
Whenever
pursuant to this Note or any Loan Document Lender exercises any right given to
it to approve or disapprove, or any arrangement or term is to be satisfactory to
Lender, the decision of Lender to approve or disapprove or to decide whether
arrangements or terms are satisfactory or not satisfactory shall be (except as
is otherwise specifically and expressly provided herein to the contrary) in the
sole and absolute discretion of Lender and shall be final and
conclusive.
If any
provision of this Note or the application thereof, to any person or
circumstances shall, for any reason and to any extent, be invalid or
unenforceable, then neither the remainder of this Note nor the application of
such provision to other persons or circumstances nor the other instruments
referred to herein shall be affected thereby, but rather shall be enforced to
the greatest extent permitted by applicable law.
Neither
this Note nor any of the Loan Documents may be changed, waived, supplemented,
discharged or terminated orally or by any act or failure to act on the part of
Maker or Lender, but only by an agreement in writing signed by the party against
whom enforcement thereof is sought and then only to the extent expressly set
forth in such writing. No person other than a duly authorized officer
or agent of Lender shall be deemed an agent of Lender nor have any authority to
waive, modify, supplement or terminate in any manner whatsoever any terms of
this Note.
Neither
this Note nor any Loan Document nor any uncertainty or ambiguity herein or
therein shall be construed or resolved against Lender by virtue of the fact that
such document has originated with Lender as drafter. Maker
acknowledges that it has reviewed this Note and has had the opportunity to
consult with counsel on same. This Note, therefore, shall be
construed and interpreted according to the ordinary meanings of the words used
so as to fairly accomplish the purposes and intentions of the parties
hereto. Reference to days for performance shall mean calendar days
unless business days are expressly indicated.
From time
to time, at the request of Lender, Maker will: (i) promptly correct
any defect, error or omission which may be discovered in the contents of this
Note or in any Loan Document or in the execution or acknowledgment thereof; (ii)
execute, acknowledge, deliver, record and/or file (or cause to be executed,
acknowledged, delivered, recorded and/or filed), such further documents and
instruments, including, without limitation, further deeds of trust, security
agreements, financing statements, continuation statements, and assignment of
rents, and perform such further acts and provide such further assurances as may
be necessary, desirable, or proper, in Lender’s opinion: (a) to carry out more
effectively the purposes of this Note and the Loan Documents and the
transactions contemplated hereunder and thereunder, (b) to confirm the rights
created under this Note and the Loan Documents, (c) to protect and further the
validity, priority and enforceability of this Note and the Loan Documents and
the liens and security interests created thereby, and (d) to subject to the Loan
Documents any property of Maker intended by the terms of any or one or more of
the Loan Documents to be encumbered by the Loan Documents; and (iii) pay all
costs in connection with any of the foregoing.
THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO
CONFLICTS OF LAWS) AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Maker for itself and its successors and assigns hereby
irrevocably: (i) submits to the non-exclusive jurisdiction of the
state and federal courts in Texas; (ii) waives, to the fullest extent permitted
by law, any objection which it may now or in the future have in the laying of
venue of any litigation arising out of or in connection with this Note or any
Loan Documents brought in the District Court of MONTGOMERY County, Texas or in
the United States District Court for the Southern District of Texas, Houston
division; (iii) waives any objection it may now or hereafter have as to the
venue of any such action or proceeding brought in such court or that such court
is an inconvenient forum; and (iv) agrees that any legal proceeding against any
party to any of the Loan Documents arising out of or in connection with any of
the Loan Documents may be brought in the foregoing courts. The scope
of each of the foregoing waivers is intended to be all encompassing of any and
all disputes that may be filed in any court and that relate this subject matter
of this transaction, including, without limitation, contract claims, tort
claims, breach of duty claims, and other common law and statutory
claims. Maker acknowledges that these waivers are a material
inducement to Lender’s agreement to enter into the agreements and obligations
evidenced by this Note and the Loan Documents, and that Lender has already
relied on these waivers and will continue to rely on each of these waivers and
related future dealings. These waivers are irrevocable, meaning that
they may not be modified either orally or in writing, and these waivers apply to
any future renewals, extensions, amendments, modifications, increases, or
replacements in respect of any and all of the Note or the Loan
Documents.
THIS NOTE AND THE LOAN DOCUMENTS
CONSTITUTE THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF AND ALL PRIOR AGREEMENTS, WHETHER WRITTEN OR
ORAL, RELATIVE HERETO AND THERETO WHICH ARE NOT CONTAINED HEREIN OR THEREIN ARE
SUPERSEDED AND TERMINATED HEREBY AND THIS NOTE AND THE LOAN DOCUMENTS MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO
.
Whenever
necessary, as used in this Note, the singular number shall include the plural,
the masculine shall include the feminine and the neuter, and the word "Maker"
and "Lender" shall be deemed to include the maker and holder of this Note and
their respective heirs, successors and assigns. It is expressly understood
and agreed that Lender shall never be construed for any purposes as a partner,
joint venturer, co-principal, or associate of Maker or any other person or party
claiming by, through or under the Maker.
In
Witness Whereof, Maker, intending to be legally bound hereby, has duly executed,
and unconditionally delivered, this Note as of the date and year first above
written.
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RCI
HOLDINGS, INC., a Texas Corporation
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BY
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/s/ Eric Langan
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NAME:
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ERIC SCOTT LANGAN
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TITLE:
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PRESIDENT
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Exhibit
10.2
EXECUTION
VERSION
NON-COMPETITION
AGREEMENT
This
Non-Competition Agreement dated June ____, 2008 (the "Non-Competition
Agreement"), is by and among Rick’s Cabaret International, Inc., Texas
corporation, (“Rick’s”), RCI Entertainment (Northwest Highway), Inc.,
a Texas corporation (the “Buyer”) and John Auletta (“Auletta”).
W
I T N E S S E T H:
WHEREAS
, the parties entered
into an Asset Purchase Agreement dated May 10, 2008 (the “Asset Purchase
Agreement”), between the Buyer, Rick’s, North by East Entertainment,
Ltd., a Texas limited partnership (the “Seller”) by and through its general
partner, Northeast Platinum, LLC, a Texas limited liability company (the
“General Partner”) and Auletta pursuant to which Buyer will acquire the assets
of Seller for a total cash purchase price of $1,500,000 (the
“Transaction”).
WHEREAS
, Seller owns and
operates an adult entertainment cabaret known as “Platinum Club II” (the
“Business”), located at 10557 Wire Way, Dallas, Texas 75220 (the
“Real Property”).
WHEREAS
, pursuant to the terms
and condition of the Asset Purchase Agreement, Seller has agreed to sell to
Buyer all of the assets related to the Business (the “Acquisition”);
and
WHEREAS
, Auletta is the sole
principal of the Seller and will benefit from the Transaction; and
WHEREAS
, in connection with
the Transaction, Buyer has agreed to pay Seller consideration as more fully
described in the Asset Purchase Agreement; and
WHEREAS
, Buyer and Rick’s
require that Auletta enter into this Non-Competition Agreement as a condition to
Buyer and Rick’s entering into the Transaction; and
WHEREAS
, Auletta agree to
enter into this Non-Competition Agreement in consideration of acts on the part
of Buyer and Rick’s as contemplated by the Transaction; and
WHEREAS
, all terms not defined
herein shall have the meaning set forth in the Asset Purchase
Agreement.
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 parties agree as follows:
1.
Covenants.
From
and after the date of this Non-Competition Agreement through and including the
five (5) year period immediately following the date of this Non-Competition
Agreement (such five (5) year period, the “Restricted Period”), Auletta shall
not compete with Rick’s or Buyer or any of Rick’s subsidiaries or
affiliates, or the club known as “Platinum Club II”, and shall not either
individually or jointly, directly or indirectly, whether for compensation or
not, alone or in association with any other person or entity, without the
express written consent of Rick’s by:
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(a)
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Owning
or sharing in the earnings of, carry on, manage, operate, control, be
engaged in, render services to, solicit customers for, participate in or
otherwise be connected with, any business engaged in the operation of an
establishment with an urban theme that both serves liquor and provides
live female nude or semi-nude adult entertainment in Dallas
County, Tarrant County, Texas, or any of the adjacent counties
thereto; provided, however, that the Non-Competition Agreement will permit
Auletta the right to own and/or operate an establishment without an urban
theme that both serves liquor and provides live female nude or semi-nude
adult entertainment in Dallas County, Texas, Tarrant County, Texas, or any
of the adjacent counties thereto;
or
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(b)
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Soliciting
or inducing, or attempting to solicit or induce, any employee, independent
contractor, or agent or consultant of Rick’s or Platinum Club II to leave
his or her employment or terminate his or her agreement or relationship
with Rick’s or the Platinum Club
II.
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2.
Acknowledgments
and Agreements of Auletta
.
Auletta
acknowledges and agrees that:
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(a)
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Due
to the nature of Rick’s and Buyer’s business, the foregoing covenants
place no greater restraint upon Auletta than is reasonably necessary to
protect the business and goodwill of Rick’s or the
Buyer;
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(b)
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These
covenants protect a legitimate interest of Rick’s and the Buyer and do not
serve solely to limit Rick’s and the Buyer’s future
competition;
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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 Auletta would cause irreparable damage to
Rick’s and Buyer;
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(e)
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These
covenants will not preclude Auletta from becoming gainfully employed
following the closing of the Asset Purchase
Agreement;
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(f)
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These
covenants are reasonable in scope and are reasonably necessary to protect
Rick’s and the Buyer’s business and goodwill and valuable and extensive
trade which Rick’s has established through its own expense and
effort;
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Non-Competition
Agreement - Page 2
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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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Auletta
has carefully read and considered all provisions of this Non-Competition
Agreement and agrees that all of the restrictions set forth are fair and
reasonable and are reasonably required for the protection of the interests
of Rick’s and the Buyer.
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3.
Remedies,
Injunction
.
In the event of
an actual breach of any provisions of this Non-Competition Agreement by Auletta,
Auletta agrees that Rick’s and the Buyer shall be entitled to a temporary
restraining order, preliminary injunction and/or permanent injunction
restraining and enjoining Auletta from violating the provisions
herein. Nothing in this Non-Competition Agreement shall be construed
to prohibit Rick’s or Buyer from pursuing any other available remedies for such
breach or threatened breach, including the recovery of damages from
Auletta. Auletta further agrees that, for the purpose of any such
injunction proceeding, it shall be presumed that Rick’s and the Buyer’s legal
remedies would be inadequate and that Rick’s and the Buyer would suffer
irreparable harm as a result of any violation of the provisions of this
Non-Competition Agreement by Auletta.
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. Auletta 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 Rick’s, Buyer
|
Eric
Langan, President
|
10959
Cutten Road
Houston,
Texas 77066
Non-Competition
Agreement - Page 3
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With
a copy to:
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Mr.
Robert D. Axelrod
|
Axelrod,
Smith & Kirshbaum
5300
Memorial Drive, Suite 700
Houston,
Texas 77007
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If
to Auletta:
|
John
Auletta
|
1595 N.
Central Expressway
Richardson,
Texas 75080
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With
a copy to:
|
Art
Selander
|
Quilling,
Selander, Cummiskey & Lownds, P.C.
2001
Bryan Street, Suite 1800
Dallas,
Texas 75201
|
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(b)
|
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 Texas, without regard to principles of conflict of
laws.
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(c)
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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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(d)
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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 agreement of
Auletta not to compete with Rick’s or the
Buyer.
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(e)
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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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(f)
|
Assignment.
The
rights and benefits of Rick’s and the Buyer under this Non-Competition
Agreement shall inure to the benefit of and be binding upon the successors
and assigns of Rick’s and the Buyer. The rights of Auletta
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 Auletta.
|
Non-Competition
Agreement - Page 4
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(g)
|
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.
|
IN
WITNESS WHEREOF, this Non-Competition Agreement has been executed as of the
______ day of June, 2008.
|
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RICK’S
CABARET INTERNATIONAL, INC.
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By:
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/s/ Eric Langan
|
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Eric Langan, President
|
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RCI
ENTERTAINMENT (NORTHWEST HIGHWAY), INC.
|
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By:
|
/s/ Eric Langan
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Eric Langan, President
|
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/s/ John Auletta
|
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John
Auletta, Individually
|
Non-Competition Agreement -
Page 5
