EMPLOYMENT AGREEMENT
Exhibit 10.21
THIS EMPLOYMENT AGREEMENT (this “Agreement”) by and among 00xx Xxxxxx General
Acquisition Corp., a Delaware corporation (the “Company”), and Crumbs Holdings LLC, a Delaware
limited liability company (“Crumbs” and together with the Company, the “Companies”) and Xxxxx Xxxxx
(“Executive”) (collectively, the “Parties”) is entered into as of May 5, 2011 (the “Execution
Date”).
WITNESSETH:
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that it is in the
best interests of the Company and its shareholders to employ Executive as Chief Executive Officer
of the Companies pursuant to the terms of this Agreement; and
WHEREAS, the Executive desires to accept employment as the Chief Executive Officer of the
Companies pursuant to the terms of this Agreement.
NOW THEREFORE, the Parties agree as follows:
1. EMPLOYMENT; DUTIES
As of the Effective Date, the Company hereby agrees to employ Executive as the Chief Executive
Officer of the Companies and Executive hereby accepts such employment upon the terms and conditions
set forth below.
2. TERM AND PLACE OF PERFORMANCE
The term of this Agreement shall begin on May 5, 2011 (the “Effective Date”), and, unless
sooner terminated as provided herein, shall end on December 31, 2015 (the “Term”); provided that
the Term shall automatically be extended for successive one-year periods unless either party gives
at least six months’ advance written notice of its intention not to extend the Term (a “Non-Renewal
Notice”). The Term may be sooner terminated by either party in accordance with the provisions of
Section 5. The principal place of employment of Executive shall be at Crumb’s headquarters in New
York, New York; provided, that, Executive shall be required to travel from time to
time on the business of the Companies during the Term.
3. POSITION AND DUTIES
3.1 Position and Duties.
(a) Executive shall serve as the Chief Executive Officer of the Companies and shall report to
the Board of Directors of the Company (the “Board”). Executive shall have those powers and duties
customarily associated with the office of Chief Executive Officer and as provided for in the
By-Laws of the Company, at all times, subject to the direction and control of the Board, and such
other powers and duties as may be assigned by the Board. If
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requested by the Board, Executive shall serve as an officer and/or director of any of the
Company’s affiliates or subsidiaries for no additional consideration.
(b) While Executive remains an employee of either of the Companies, the Company will nominate
Executive for election to the Board by the stockholders of the Company. During the period from the
Effective Date through the date of next annual meeting of the Company’s shareholders following the
Effective Date, Executive shall be appointed to serve as an interim member of the Board. Executive
shall not be entitled to any additional compensation in consideration for his service on the Board.
3.2 Devotion of Time and Effort. Executive shall use Executive’s good faith, best
efforts and judgment (a) in performing Executive’s duties required hereunder and (b) to act in the
best interests of the Companies. Executive shall devote his full time, attention and efforts to
the business of the Companies, but may participate in charitable and personal investment activities
to a reasonable extent, as long as such activities do not, in the reasonable discretion of the
Board, interfere with the performance of his duties and responsibilities hereunder.
4. COMPENSATION
4.1 Base Salary. For the services to be rendered by Executive under this Agreement,
Executive shall be entitled to receive, commencing as of the Effective Date, salary at the annual
rate of Seven Hundred Thousand Dollars ($700,000) (the “Base Salary”), less all applicable tax
withholdings and deductions by the Company. The Base Salary shall be payable in accordance with
the Company’s customary payroll practices. The Compensation Committee of the Board of Directors of
the Company (the “Committee”) shall review Executive’s Base Salary annually and may make
adjustments to increase but not decrease such Base Salary, in accordance with the compensation
practices and guidelines of the Company. In the Committee’s annual review of the Base Salary, it
shall in good faith and in consultation with Executive consider any material increase in value of
the Company from and after the Effective Date in determining any increase in the Base Salary.
4.2 Annual Bonus. Commencing on the Effective Date, Executive shall participate in
the Company’s annual performance based bonus program, as the same may be established from time to
time by the Committee in consultation with the Executive for executive officers of the Company and
any annual bonus earned thereunder (the “Annual Bonus”) shall be paid no later than the 15th day of
the third month following the end of the fiscal year for which it is earned (and no earlier than
January 1 of the year following such fiscal year) and following certification by the Committee of
the achievement of agreed-upon performance measures and the amount of the bonus to be paid by
Executive for the applicable fiscal year; provided, that in the event that such certification does
not occur on or prior to the 15th day of the third month following the end of such
fiscal year, the Annual Bonus will be paid no later than December 31 of the year following such
fiscal year.
4.3 Vacation. During the Term, Executive shall be entitled to four (4) weeks of paid
vacation per year to be used and accrued in accordance with the Company’s policy as it may be
established from time to time. In addition, Executive shall receive other paid time-off in
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accordance with the Company’s policies for senior executives as such policies may exist from
time to time.
4.4 Welfare, Pension and Incentive Benefit Plans. During the Term, the Companies
shall provide Executive with employee benefit plans and insurance programs on a basis no less
favorable than as in effect with respect to Executive at Crumbs immediately prior to the Effective
Date, including, without limitation, company-paid medical benefits; provided, that if the provision
of such company-paid medical benefits would cause the imposition of any tax under Section 4980D of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Code”), the
parties agree to negotiate in good faith an alternative arrangement for providing such benefits in
an economically neutral manner which does not cause the imposition of such tax.
4.5 Automobile Perquisite. During the Term, the Company shall (i) provide Executive
with a luxury automobile of his choosing with a monthly lease value not in excess of $1,300 for his
use and provide customary insurance coverage for such automobile and (ii) pay for all maintenance
costs, including gasoline, repairs and service for such automobile, in each case on a basis no less
favorable, including vehicle make and model, than as in effect with respect to the Executive at
Crumbs immediately prior to the Effective Date.
4.6 Business Expenses. Executive will be promptly reimbursed for all reasonable
business expenses incurred by Executive in connection with Executive’s employment in accordance
with the Company’s expense reimbursement policies.
5. TERMINATION; TERMINATION BENEFITS
5.1 Due to Death or Disability.
(a) If Executive dies during the Term, Executive’s employment and this Agreement shall
terminate on the date of his death. The Company may terminate Executive’s employment if he becomes
“Disabled,” as defined below, upon delivery of a Notice of Termination (as defined below) to
Executive.
Upon termination of Executive’s employment due to Executive’s death or by the Company due to
Executive’s Disability, Executive (or his estate, as applicable) shall be entitled to compensation
and payment for any unreimbursed expenses incurred, accrued but unpaid then current Base Salary and
Annual Bonus and other accrued but unpaid employee benefits as provided in this Agreement, in each
case through the Date of Termination (as defined below) (the “Accrued Amounts”); provided, that the
portion of such Accrued Amounts representing unreimbursed expenses shall be paid as soon as
practicable following remittance of such expenses by Executive;
(b) For purposes of this Agreement, the term “Disabled” or “Disability” shall mean a medically
determined physical or mental incapacity as a result of which Executive becomes eligible to receive
long term disability benefits under the Company’s long term disability policy, which shall be in
effect as of the Effective Date, or if no such policy is in effect, entitles Executive to a Social
Security disability award.
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5.2 By the Company Without “Cause”.
(a) The Company may terminate Executive’s employment without “Cause” (as defined below) at any
time following the Effective Date upon delivery of a Notice of Termination to Executive.
(b) Upon termination of Executive’s employment by the Company Without Cause, Executive shall
be entitled to:
(i) the Accrued Amounts, payable in accordance with Section 5.1(a);
(ii) subject to Executive’s execution (without revocation) of a release of claims in such form
as reasonably determined by the Company and containing carveouts for (A) indemnification,
contribution, and directors and officers insurance rights to which Executive may be entitled, (B)
rights in his capacity as an equityholder, (C) rights to collect the Severance Payment and COBRA
Coverage, and (D) rights to any vested employee benefits (which execution version of such release
will be provided no later than five (5) calendar days following the Date of Termination) (the
“Release”), a lump sum payment equal to eighteen (18) months’ Base Salary, which payment will be
made on the 60th day following the Date of Termination (the “Severance Payment”) subject
to the delay of payment under Section 5.7; and
(iii) if Executive elects to continue his medical coverage under COBRA, the Company shall pay
for coverage under COBRA for eighteen (18) months following the Date of Termination (the “COBRA
Coverage”).
5.3 By the Company For Cause.
(a) The Company may terminate Executive’s employment for “Cause” in accordance with the
requirements of this Section 5.3.
(b) Upon termination of Executive’s employment by the Company for Cause, Executive shall be
entitled to the Accrued Amounts.
(c) For purposes of this Agreement, “Cause” shall mean:
(i) continuing and substantial willful failure, neglect or refusal by Executive to perform his
duties under this Agreement or to follow the lawful instructions of the Board which has not been
cured by Executive (if curable) within ten (10) days after written notice thereof to Executive from
the Company;
(ii) Executive’s commission of any material act of fraud or embezzlement against the Company;
(iii) any material breach of any covenant in Section 6, 7 or 8 of this Agreement, which breach
has not been cured by Executive (if curable) within thirty (30) days after written notice thereof
to Executive from the Company;
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(iv) Executive’s conviction of (or pleading guilty or nolo contendere to) any felony; or
(v) alcohol or other substance abuse by Executive which, in the reasonable discretion of the
Board, materially adversely affects Executive’s ability to perform his duties and responsibilities
to the Companies.
(d) Cause shall not exist unless and until there shall have been delivered to the Executive a
copy of a resolution, duly adopted by the affirmative vote of not less than a majority of the
entire membership of the Board at a meeting of the Board held for the purpose (after five (5) days’
prior written notice to the Executive of such meeting and the purpose thereof and an opportunity
for the Executive, together with his counsel, to be heard before the Board at such meeting), of a
finding that, in the good faith opinion of the Board, the Executive was guilty of any of the
conduct set forth above in subparagraph (iv) or (v) and specifying the particulars thereof in
detail. No act or failure to act by the Executive shall be considered “willful” if done or omitted
by him in good faith with reasonable belief that his action or omission was in the best interests
of the Company.
5.4 By Executive For Good Reason.
(a) Executive may terminate his employment for “Good Reason” (as defined below) by providing a
Notice of Termination to the Board within sixty (60) days of the occurrence of the circumstances
giving rise to such Good Reason. The foregoing notice shall describe the claimed event or
circumstance and set forth Executive’s intention to terminate his employment with the Company;
provided, that, the Company has not substantially cured such event within thirty
(30) days after receiving such notice. Upon termination by Executive of his employment for “Good
Reason”, Executive will be entitled to:
(i) the Accrued Amounts payable in accordance with Section 5.1(b);
(ii) subject to Executive’s execution (without revocation) of the Release, the Severance
Payment which payment will be made on the 60th day following the Date of Termination,
subject to the delay of payment under Section 5.7; and
(iii) the COBRA Coverage.
(b) For purposes of this Agreement, “Good Reason” shall mean:
(i) any material failure of the Companies to fulfill their obligations under this Agreement,
including the failure to make any payment due hereunder when due, or any other material breach of a
term or condition of this Agreement;
(ii) a material and adverse change to, or a material reduction of, Executive’s duties and
responsibilities to the Companies, including no longer reporting to the Board or a change in title;
provided however, that, the hiring or engagement of any person or entity by the
Company with the approval of Executive to perform any of Executive’s duties and responsibilities to
the Companies shall not constitute Good Reason;
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(iii) a reduction in Executive’s Annual Base Salary;
(iv) the relocation of Executive’s primary office to a location more than 35 miles from the
Company’s current headquarters as of the Effective Date; or
(v) the occurrence of a Change in Control.
An event set forth in the foregoing clauses (i) through (iv) shall not constitute “Good Reason”
unless and until Executive shall have provided the Companies with notice thereof no later than 60
days following Executive’s becoming aware of such event and the Companies shall have failed to
remedy such event within 30 days of receipt of such notice.
(c) For purposes of this Agreement, “Change of Control” shall mean:
(i) Any sale, lease, exchange or other transfer (in one or a series of related transactions)
of all or substantially all of the assets of the Company to a non-affiliate;
(ii) Any “person” as such term is used in Section 13(d) and Section 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) is or becomes, directly or indirectly, the
“beneficial owner” as defined in Rule 13d-3 under the Exchange Act of securities of the Company
that represent more than 50% of the combined voting power of the Company’s then outstanding voting
securities (the “Outstanding Company Voting Securities”); provided, however, that,
for purposes of this Section 5.4(c), the following acquisitions shall not constitute a Change in
Control: (I) any acquisition directly from the Company, (II) any acquisition by the Company, (III)
any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the
Company or any Affiliate, (IV) any acquisition by any corporation pursuant to a transaction that
complies with Sections 5.4(c)(iv)(A) and 5.4(c)(iv)(B), (V) any acquisition involving beneficial
ownership of less than a majority of the then-outstanding Common Shares (the “Outstanding Company
Common Shares”) or the Outstanding Company Voting Securities that is determined by the Board, based
on review of public disclosure by the acquiring Person with respect to its passive investment
intent, not to have a purpose or effect of changing or influencing the control of the Company;
provided, however, that for purposes of this clause (V), any such acquisition in
connection with (x) an actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies or consents or (y) any
“Business Combination” (as defined below) shall be presumed to be for the purpose or with the
effect of changing or influencing the control of the Company;
(iii) During any period of two (2) consecutive years, the individuals who at the beginning of
such period constituted the Board together with any individuals subsequently elected to the Board
whose nomination by the shareholders of the Company was approved by a vote of the then incumbent
Board (i.e. those members of the Board who either have been directors from the beginning of such
two-year period or whose election or nomination for election was previously approved by the Board
as provided in this Section 5.4(c)(iii)) cease for any reason to constitute a majority of the
Board;
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(iv) The Board or the shareholders of the Company approve and consummate a merger,
amalgamation or consolidation (a “Business Combination”) of the Company with any other corporation,
unless, following such Business Combination, (A) all or substantially all of the individuals and
entities that were the beneficial owners of the Outstanding Company Common Shares and the
Outstanding Company Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for
a non-corporate entity, equivalent securities) and (B) the combined voting power of the
then-outstanding voting securities entitled to vote generally in the election of directors (or, for
a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting
from such Business Combination (including, without limitation, an entity that, as a result of such
transaction, owns the Company or all or substantially all of the Company’s assets either directly
or through one or more subsidiaries);
5.5 By Executive Without Good Reason.
(a) Executive may terminate his employment without Good Reason by providing a Notice of
Termination to the Company at least thirty (30) days prior to the Date of Termination.
(b) Upon termination by Executive of his employment without Good Reason, Executive shall be
entitled to receive the Accrued Amounts payable in accordance with Section 5.1(a).
5.6 Non-Renewal of the Term.
(a) Upon termination of Executive’s employment as a result of non-renewal of the Term by the
Company, Executive will be entitled to the Accrued Amounts payable in accordance with Section
5.1(a).
(b) Upon termination of Executive’s employment as a result of non-renewal of the Term by the
Executive, Executive will be entitled to the Accrued Amounts payable in accordance with Section
5.1(a).
5.7 Nonqualified Deferred Compensation. Notwithstanding any provision of this
Agreement to the contrary, if all or any portion of the payments due under Section 5 are determined
to be “nonqualified deferred compensation” subject to Section 409A of the Code, and the Company
determines that Executive is a “specified employee” (as defined in Section 409A(a)(2)(B)(i) of the
Code and other guidance issued thereunder), then such Severance Payment will be made on the first
day of the seventh month following the month in which Executive’s termination of employment occurs.
5.8 Notice of Termination; Non-Renewal. Any termination of employment pursuant to
Sections 5.1 through 5.5 shall be communicated by a Notice of Termination to the other party hereto
given in accordance with Section 16.2.
(a) For purposes of this Agreement, a “Notice of Termination” means a written notice that (i)
indicates the specific termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances
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claimed to provide a basis for termination of Executive’s employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt
of such notice, specifies the termination date. The failure by Executive or the Company to set
forth in the Notice of Termination any fact or circumstance that contributes to a showing of Good
Reason or Cause shall not waive any right of Executive or the Company, as the case may be,
hereunder or preclude Executive or the Company, as the case may be, from asserting such fact or
circumstance in enforcing Executive’s or the Company’s rights hereunder.
(b) For purposes of this Agreement, “Date of Termination” means (i) if Executive’s employment
is terminated pursuant to Section 5.1 through 5.5, the date of receipt of the Notice of Termination
(in the case of a termination with or without Good Reason, provided, such Date of
Termination is in accordance with Section 5.4 or 5.5, as the case may be), (ii) if Executive’s
employment is terminated by reason of death, the date of death, and (iii) the expiration of the
Term.
(c) A termination of employment pursuant to Section 5.6 shall be communicated by a Notice of
Non-Renewal to the other party hereto given in accordance with Section 2 and Section 16.2.
6. NON-SOLICITATION
Executive acknowledges that by virtue of Executive’s position as Chief Executive Officer of
the Company, and Executive’s employment hereunder, he will have advantageous familiarity with, and
knowledge about, the Company and will be instrumental in establishing and maintaining goodwill
between the Company and its customers, which goodwill is the property of the Company. Therefore,
Executive agrees as follows during the Term and for an eighteen (18) month period following the
Date of Termination (twelve (12) months in the case of a non-renewal of the Term): (a) Executive
shall not on behalf of himself, or any other person or entity, solicit, take away, hire, employ or
endeavor to employ any of the employees of the Company and/or (b) Executive shall not influence or
attempt to influence vendors or business partners of the Company or any of its present or future
subsidiaries or affiliates, either directly or indirectly, to divert their business to any
individual, partnership, firm, corporation or other entity then in competition with the business of
the Company, or any subsidiary or affiliate of the Company.
7. NON-COMPETITION
Executive acknowledges and recognizes the highly competitive nature of the business of the
Company and its affiliates and accordingly agrees as follows: During his employment and for an
eighteen (18) month period commencing from the Date of Termination (twelve (12) months in the case
of a non-renewal of the Term), Executive will not, directly or indirectly, (a) engage in any
business for Executive’s own account that competes with the business of the Company or its
affiliates (including, without limitation, businesses which the Company or its affiliates have
specific plans to conduct in the future and as to which Executive is aware of such planning), (b)
enter the employ of, or render any services to, any person engaged in any business that competes
with the business of the Company or its affiliates, (c) acquire a financial interest in any person
engaged in any business that competes with the business of the Company or its affiliates, directly
or indirectly, as an individual, partner, stockholder, officer,
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director, principal, agent, trustee or consultant, or (d) interfere with business
relationships (whether formed before or after the date of this Agreement) between the Company or
any of its affiliates and customers, suppliers, partners, members or investors of the Company or
its affiliates. Notwithstanding anything to the contrary in this Agreement, Executive may,
directly or indirectly, own, solely as an investment, securities of any person engaged in the
business of the Company or its affiliates which are publicly traded on a national or regional stock
exchange or on an over-the-counter market if Executive (i) is not a controlling person of, or a
member of a group which controls, such person and (ii) does not, directly or indirectly, own five
percent (5%) or more of any class of securities of such person.
8. CONFIDENTIALITY/TRADE SECRETS
Executive specifically agrees that Executive will not at any time, whether during or
subsequent to the Term, in any fashion, form or manner, except in furtherance of Executive’s duties
at the Company or with the specific written consent of the Company, either directly or indirectly
use, divulge, disclose or communicate to any person in any manner whatsoever, any confidential
information or trade secrets of any kind, nature or description concerning any matters affecting or
relating to the business of the Company (the “Proprietary Information”), including (a) all
information, design or software programs (including object codes and source codes), techniques,
drawings, plans, experimental and research work, inventions, patterns, processes and know-how,
whether or not patentable, and whether or not at a commercial stage related to the Company or any
subsidiary thereof, (b) buying habits or practices of any of its customers or vendors, (c) the
Company’s marketing methods, sales activities, promotion, credit and financial data and related
information, (d) the Company’s costs or sources of materials, (e) the prices it obtains or has
obtained or at which it sells or has sold its products or services, (f) lists or other written
records used in the Company’s business, (g) compensation paid to employees and other terms of
employment, or (h) any other confidential information of, about or concerning the business of the
Company, its manner of operation, or other confidential data of any kind, nature, or description
(excluding any information that is or becomes publicly known or available for use through no fault
of Executive or as directed by court order). The Parties hereto stipulate that as between them,
Proprietary Information constitutes trade secrets that derive independent economic value, actual or
potential, from not being generally known to the public or to other persons who can obtain economic
value or cause economic harm to the Company from its disclosure or use and that Proprietary
Information is the subject of efforts which are reasonable under the circumstances to maintain its
secrecy and of which this Section 8 is an example, and that any breach of this Section 8 shall be a
material breach of this Agreement. All Proprietary Information shall be and remain the Company’s
sole property.
9. INJUNCTIVE RELIEF
Executive acknowledges that any violation of any provision of Sections 6 through 8 hereof by
Executive will cause irreparable damage to the Company, that such damages will be incapable of
precise measurement and that, as a result, the Company will not have an adequate remedy at law to
redress the harm which such violations will cause. Therefore, in the event of any violation or
threatened violation of any provision of Sections 6 through 8 by Executive, in addition to any
other rights at law or in equity, Executive agrees that the Company will be
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entitled to seek injunctive relief including, but not limited to, temporary and/or permanent
restraining orders to restrain any violation or threatened violation of such Sections by Executive.
10. BLUE PENCIL
It is the desire and intent of the Parties that the provisions of Section 6 through 8 hereof
shall be enforced to the fullest extent permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. Accordingly, if any portion of Sections 6
through 8 shall be adjudicated to be invalid or unenforceable, such provision shall be deemed
amended either to conform to such restrictions as the court or arbitrator may allow, or to delete
therefrom or reform the portion thus adjudicated to be invalid and unenforceable, such deletion or
reformation to apply only with respect to the operation of such Section in the particular
jurisdiction in which such adjudication is made. It is expressly agreed that any court or
arbitrator shall have the authority to modify any provision of Sections 6 through 8 if necessary to
render it enforceable, in such manner as to preserve as much as possible the Parties’ original
intentions, as expressed therein, with respect to the scope thereof.
11. COMPANY’S AND EXECUTIVE’S DUTIES ON TERMINATION
In the event of termination of Executive’s employment pursuant to Section 5, Executive agrees
to deliver promptly to the Company all Proprietary Information which is or has been in Executive’s
possession or under Executive’s control. Upon termination of Executive’s employment by the Company
for any reason whatsoever and at any earlier time the Company so requests, Executive will deliver
to the custody of the person designated by the Company all originals and copies of such documents
and other property of the Company in Executive’s possession, under Executive’s control or to which
Executive may have access.
12. NON-DISPARAGEMENT
During the Term, for any reason, neither Executive nor his agents, on the one hand, nor the
Company, or its senior executives or the Board, on the other hand, shall directly or indirectly
issue or communicate any public statement, or statement likely to become public, that maligns,
denigrates or disparages the other (including, in the case of communications by Executive or his
agents, any of the Company’s officers, directors or employees). The foregoing shall not be
violated by truthful responses to legal process or governmental inquiry or by private statements to
any of the Company’s officers, directors or employees; provided, that, in the case
of Executive, such statements are made in the course of carrying out his duties pursuant to this
Agreement.
13. INDEMNIFICATION
Except in the case of Executive’s bad faith or willful misconduct, the Company shall
indemnify, defend and hold Executive harmless from and against any and all causes of action,
claims, demands, liabilities, damages, costs and expenses of any nature whatsoever directly or
indirectly arising out of or related to Executive’s discharging Executive’s duties hereunder on
behalf of the Company and/or its respective subsidiaries and affiliates to the fullest extent
permitted by law.
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14. REPRESENTATIONS AND WARRANTIES
14.1 Executive hereby represents and warrants to the Company, and Executive acknowledges, that
the Company has relied on such representations and warranties in employing Executive and entering
into this Agreement, as follows:
(a) Executive has the legal capacity and right to execute and deliver this Agreement and to
perform his obligations contemplated hereby, and this Agreement has been duly executed by
Executive;
(b) the execution, delivery and performance of this Agreement by Executive does not and will
not, with or without notice or the passage of time, conflict with, breach, violate or cause a
default under any agreement, contract or instrument to which Executive is a party or any judgment,
order or decree to which Executive is subject;
(c) Executive is not a party to or bound by any employment agreement, consulting agreement,
non-compete agreement, fee for services agreement, confidentiality agreement or similar agreement
with any other person;
(d) upon the execution and delivery of this Agreement by the Company and Executive, this
Agreement will be a legal, valid and binding obligation of Executive, enforceable in accordance
with its terms;
(e) Executive understands that the Company will rely upon the accuracy and truth of the
representations and warranties of Executive set forth herein and Executive consents to such
reliance.
14.2 The Company hereby represents and warrants to Executive, and the Company acknowledges
that Executive has relied on such representations and warranties in entering into this Agreement,
as follows:
(a) the Company has all requisite power and authority to execute and deliver this Agreement
and to perform its obligations hereunder, and this Agreement has been duly executed by the Company;
(b) the execution, delivery and performance of this Agreement by the Company does not and will
not, with or without notice or the passage of time, conflict with, breach, violate or cause a
default under any agreement, contract or instrument to which the Company is a party or any
judgment, order or decree to which the Company is subject;
(c) upon the execution and delivery of this Agreement by the Company and Executive, this
Agreement will be a legal, valid and binding obligation of the Company, enforceable in accordance
with its terms; and
(d) the Company understands that Executive will rely upon the accuracy and truth of the
representations and warranties of the Company set forth herein and the Company consents to such
reliance.
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15. ARBITRATION
Any controversy arising out of or relating to this Agreement, its enforcement or
interpretation, or because of an alleged breach, default, or misrepresentation in connection with
any of its provisions, or any other controversy arising out of Executive’s employment with the
Company or the termination of Executive’s employment with the Company, including, but not limited
to, any state or federal statutory claims, shall be submitted to arbitration in New York, New York,
before a sole arbitrator selected from the American Arbitration Association,; provided,
however, that provisional injunctive relief may, but need not, be sought by either party to
this Agreement in a court of law while arbitration proceedings are pending, and any provisional
injunctive relief granted by such court shall remain effective until the matter is finally
determined by the arbitrator. Final resolution of any dispute through arbitration may include any
remedy or relief which the arbitrator deems just and equitable, including any and all remedies
provided by applicable state or federal statutes. The Company shall bear all administrative costs
of any arbitration initiated under this Section 15, including any filing fees and arbitrator fees.
At the conclusion of the arbitration, the arbitrator shall issue a written decision that sets forth
the essential findings and conclusions upon which the arbitrator’s award or decision is based. Any
award or relief granted by the arbitrator hereunder shall be final and binding on the Parties
hereto and may be enforced by any court of competent jurisdiction. The Parties acknowledge and
agree that they are hereby waiving any rights to trial by jury in any action, proceeding or
counterclaim brought by either of the Parties against the other in connection with any matter
whatsoever arising out of or in any way connected with this Agreement. The arbitrator shall award
reasonable attorney’s fees (including reasonable disbursements) to the party that the arbitrator
has determined to be the prevailing party in such arbitration. Except as may be necessary to enter
judgment upon the award or to the extent required by applicable law, all claims, defenses and
proceedings (including, without limiting the generality of the foregoing, the existence of the
controversy and the fact that there is an arbitration proceeding) shall be treated in a
confidential manner by the arbitrator, the Parties and their counsel, and each of their agents,
employees and all others acting on behalf of or in concert with them. Without limiting the
generality of the foregoing, no one shall divulge to any third party or person not directly
involved in the arbitration the contents of the pleadings, papers, orders, hearings, trials, or
awards in the arbitration, except as may be necessary to enter judgment upon an award as required
by applicable law. Any court proceedings relating to the arbitration hereunder, including, without
limiting the generality of the foregoing, to prevent or compel arbitration or to confirm, correct,
vacate or otherwise enforce an arbitration award, shall be filed under seal with the court, to the
extent permitted by law.
16. GENERAL PROVISIONS
16.1 Assignment, Binding Effect. Neither the Company nor Executive may assign,
delegate or otherwise transfer this Agreement or any of their respective rights or obligations
hereunder without the prior written consent of the other party, except that the Company may assign
this Agreement to its successors (including any purchaser of its assets), and affiliates, parent or
subsidiary corporations. This Agreement shall be binding upon and inure
12
to the benefit of any permitted successors or assigns of the Parties and the heirs, executors,
administrators and/or personal representatives of Executive.
16.2 Notices.
(a) All notices, requests, demands or other communications that are required or may be given
under this Agreement shall be in writing and shall be given by personal delivery, by certified or
registered United States mail (postage prepaid, return receipt requested), by a nationally
recognized overnight delivery service for next day delivery, or by facsimile transmission, as
follows (or to such other address as any party may give in a notice given in accordance with the
provisions hereof):
If to the Company,
00xx Xxxxxx Acquisition Corp.
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to Executive,
Xxxxx Xxxxx:
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to,
Xxxxx Xxxxx, Esq.
DLA Piper LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
DLA Piper LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
(b) All notices, requests or other communications will be effective and deemed given only as
follows: (i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified
or registered mail, on the fifth business day after being deposited in the United States mail,
(iii) if sent for next day delivery by overnight delivery service, on the date of delivery as
confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon the transmitter’s
confirmation of receipt of such facsimile transmission, except that if such confirmation is
received after 5:00 p.m. (in the recipient’s time zone) on a business day, or is received on a day
that is not a business day, then such notice, request or communication will not
13
be deemed effective or given until the next succeeding business day. Notices, requests and
other communications sent in any other manner, including by electronic mail, will not be effective.
16.3 Governing Law. This Agreement is governed by, and is to be construed and
enforced in accordance with, the laws of New York without regard to principles of conflicts of
laws.
16.4 Amendment. No provisions of this Agreement may be amended, modified or waived
unless such amendment or modification is agreed to in writing signed by Executive and by a duly
authorized officer selected at such time by the Board, and such waiver is set forth in writing and
signed by the party to be charged.
16.5 Entire Agreement. This Agreement sets forth the entire agreement of the Parties
hereto in respect of the subject matter contained herein and shall supersede all prior agreements,
promises, covenants, arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto in respect of such subject
matter. Any prior agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled as of the date hereof.
16.6 Withholding. All payments hereunder shall be subject to any required withholding
of federal, state and local taxes pursuant to any applicable law or regulation.
16.7 Severability. The paragraphs and provisions of this Agreement are severable. If
any paragraph or provision is found to be unenforceable, the remaining paragraphs and provisions
will remain in full force and effect.
16.8 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together will constitute one and the same instrument.
16.9 Section 409A. Notwithstanding anything herein to the contrary, this Agreement is
intended to be interpreted and applied so that the payment of the benefits set forth herein either
shall be exempt from the requirements of Section 409A of the Code, or shall comply with the
requirements of such provision. Furthermore, the Company and its respective officers, directors,
employees or agents make no guarantee that this Agreement complies with, or is exempt from, the
provisions of Section 409A of the Code and none of the foregoing shall have any liability for the
failure of this Agreement to comply with, or be exempt from, the provisions of Code Section 409A.
The parties hereto agree to make such amendments from time to time to the terms and conditions of
this Agreement as are necessary to ensure that this Agreement complies with the terms of and in a
manner permitted by Section 409A of the Code and any regulation or other official guidance
promulgated thereunder. Each payment due hereunder shall be treated as a separate payment under
Section 409A of the Code. To the extent required by Code Section 409A, “termination of employment”
(or any similar terms) shall mean “separation from service” (as defined in Treasury Regulations
Section 1.409A-1(h) and the default presumptions thereof). With regard to any provision herein
that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by
Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to
liquidation or exchange for another
14
benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided
during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind
benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or
before the last day of Executive’s taxable year following the taxable year in which the expense was
incurred.
(signature page follows)
15
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the date
first written above.
| 57TH STREET GENERAL ACQUISITION CORP. |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Chairman and CEO | |||
| CRUMBS HOLDINGS LLC |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Chief Executive Officer | |||
| /s/ Xxxxx Xxxxx | ||||
| Xxxxx Xxxxx | ||||
[Signature Page to Employment Agreement]
