Exhibit 10.32
NONCOMPETITION AGREEMENT
NONCOMPETITION AGREEMENT, by and between The Xxxxx & Wollensky Restaurant
Group, Inc., a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxxx, an
individual residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Executive"), dated as of May 1, 2001. This Agreement shall become effective
upon the effectiveness of an Amended and Restated Employment Agreement of even
date between the Company and the Executive (the "Employment Agreement"). Terms
used as defined terms herein and not otherwise defined shall have the meanings
set forth in the Employment Agreement.
WHEREAS, the Company and the Executive entered into an Executive
Employment Agreement dated as of January 1, 1998 (the "Original Employment
Agreement") and are entering into on this date the Employment Agreement;
WHEREAS, the Company desires to be assured that the unique and expert
services of the Executive will be exclusively available to the Company.
NOW, THEREFORE, in consideration of this Agreement and the mutual
covenants and promises herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive agree as follows:
Section 1. CONSIDERATION. In consideration of this Agreement, the Company
shall pay the Executive $36,774 on the last days of March, June, September and
December on each of years 2002, 2003 and 2004.
Section 2. PROPRIETARY INFORMATION.
Section 2.01. PROPRIETARY INFORMATION. In the course of his service to the
Company pursuant to the Amended Employment Agreement, the Executive will have
access to confidential, business plans, financial information, recipes, supplier
lists and other trade secrets,
all of which are confidential and may be proprietary and are owned or used by
the Company, or any of its subsidiaries or affiliates. Such information shall
hereinafter be called "Proprietary Information" and shall include any and all
items enumerated in the preceding sentence and coming within the scope of the
business of the Company or any of its subsidiaries or affiliates as to which the
Executive may have access, whether conceived or developed by others or by the
Executive alone or with others during the period of his service to the Company,
whether or not conceived or developed during regular working hours. Proprietary
Information shall not include any records, data or information which are in the
public domain during the period of service by the Executive provided the same
are not in the public domain as a consequence of disclosure directly or
indirectly by the Executive in violation of this Agreement.
Section 2.02. FIDUCIARY OBLIGATIONS. The Executive agrees that Proprietary
Information is of critical importance to the Company and a violation of this
Section 2.02 and Section 2.03 would seriously and irreparably impair and damage
the Company's business. The Executive agrees that he shall keep all Proprietary
Information in a fiduciary capacity for the sole benefit of the Company.
Section 2.03. NON-USE AND NON-DISCLOSURE. During the period commencing on
the effective date hereof and continuing until either (i) the sixth anniversary
of such effective date or (ii) if the Employment Term is extended beyond its
initial five (5) year term or the Executive becomes a consultant, the date which
is one year after the termination for any reason of the Employment Term or the
Consulting Period, the Executive shall not (a) disclose, directly or indirectly,
any Proprietary Information to any person other than the Company or authorized
employees thereof at the time of such disclosure, or such other persons to whom
the Executive has been specifically instructed to make disclosure by the Board
and in all such cases only to the
extent required in the course of the Executive's service to the Company or (b)
use any Proprietary Information, directly or indirectly, for his own benefit or
for the benefit of any other person or entity. At the termination of the Amended
Employment Agreement pursuant to Section 9 therein, the Executive shall deliver
to the Company all notes, letters, documents and records which may contain
Proprietary Information which are then in his possession or control and shall
destroy any and all copies and summaries thereof.
Section 3. RESTRICTIONS ON ACTIVITIES OF THE EXECUTIVE
Section 3.01. ACKNOWLEDGEMENTS. The Executive agrees that he is being
employed hereunder in a key management capacity with the Company and that the
Company is engaged in a highly competitive business and that the success of the
Company's business in the marketplace depends upon its goodwill and reputation
for quality and dependability. The Executive further agrees that reasonable
limits may be placed on his ability to compete against the Company as provided
herein so as to protect and preserve the legitimate business interests and good
will of the Company.
Section 3.02. GENERAL RESTRICTIONS.
During the Restricted Period, the Executive will not engage or
participate in, directly or indirectly, as principal, agent, executive,
employee, consultant, investor or partner, or assist in the management of, or
own any stock or any other ownership interest in, any business which is
Competitive with the Company (as defined below). For purposes of this Agreement,
a business shall be considered "Competitive with the Company" only if it
directly or indirectly owns, operates or manages one or more high end steak
restaurants which operate within a five mile radius of any site owned, operated
or managed by the Company or any of its subsidiaries.
Notwithstanding the foregoing, the Executive may own, directly or indirectly,
less than 5% of the capital stock of any public Company.
Section 3.03. NON-SOLICITATION.
During the Restricted Period, the Executive will not directly or
indirectly solicit, or attempt to solicit, any officer, director, consultant or
employee of the Company or any of its subsidiaries or affiliates to leave his or
her engagement with the Company or such subsidiary or affiliate nor will he
directly hire any person who was a director, consultant, officer or employee of
the Company or any of its affiliates or subsidiaries at the time of the
termination of the Amended Employment Agreement pursuant to Section 9 thereof or
during the three month period preceding such termination.
Section 4. REMEDIES. It is specifically understood and agreed that any
breach of the provisions of Sections 2 or 3 of this Agreement is likely to
result in irreparable injury to the Company and that the remedy at law alone
will be an inadequate remedy for such breach, and that in addition to any other
remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Executive and to seek both temporary and
permanent injunctive relief (to the extent permitted by law) without the
necessity of proving actual damages.
Section 5. SEVERABLE PROVISIONS. The provisions of this Agreement are
severable and the invalidity of any one or more provisions shall not affect the
validity of any other provision. In the event that a court of competent
jurisdiction shall determine that any provision of this Agreement or the
application thereof is unenforceable in whole or in part because of the duration
or scope thereof, the parties hereto agree that said court in making such
determination shall have the power to reduce the duration and scope of such
provision to the extent necessary to make it
enforceable, and that the Agreement in its reduced form shall be valid and
enforceable to the full extent permitted by law.
Section 6. NOTICES. All notices hereunder, to be effective, shall be
in writing and shall be delivered by hand or mailed by certified mail,
postage and fees prepaid, as follows:
If to the Company: The Xxxxx & Wollensky Restaurant Group, Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
Copy to: Xxxxx Xxxxxx, Esq.
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
If to the Executive: Xxxx X. Xxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
or to such other address as a party may notify the other pursuant to a notice
given in accordance with this Section 6.
Section 7. MISCELLANEOUS.
Section 7.01. MODIFICATION. This Agreement constitutes the entire
Agreement between the parties hereto with regard to the subject matter hereof,
superseding all prior understandings and agreements, whether written or oral.
This Agreement may not be amended or revised except by a writing signed by the
parties.
Section 7.02. ASSIGNMENT AND TRANSFER. This Agreement shall not be
terminated by the merger or consolidation of the Company with any corporate or
other entity or by the transfer of all or substantially all of the assets of the
Company to any other person, corporation, firm or entity. The provisions of this
Agreement shall be binding on and shall inure to the benefit of any such
successor in interest to the Company. Neither this Agreement nor any of the
rights, duties or
obligations of the Executive shall be assignable by the Executive, nor shall any
of the payments required or permitted to be made to the Executive by this
Agreement be encumbered, transferred or in any way anticipated.
Section 7.03. CAPTIONS. Captions herein have been inserted solely for
convenience of reference and in no way define, limit or describe the scope or
substance of any provision of this Agreement.
Section 7.04. GOVERNING LAW. This Agreement shall be construed under and
enforced in accordance with the laws of The State of New York.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as a sealed instrument as of the day and year first above written.
THE XXXXX & WOLLENSKY RESTAURANT GROUP,
INC.
By:
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President
EXECUTIVE
By:
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Name: Xxxx X. Xxxxxxxx
