AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.3
EXECUTION VERSION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) by and among Crumbs Bake
Shop, Inc., a Delaware corporation (“CBS”), and Crumbs Holdings LLC, a Delaware limited liability
company (“Crumbs” and together with CBS, the “Company”) and Xxx Xxxxx (“Executive”) (collectively,
the “Parties”) is entered into as of November 14, 2011 (the “Execution Date”).
W I T N E S S E T H :
WHEREAS, the Executive was employed as the Chief Creative Officer of CBS and Crumbs pursuant
to an Employment Agreement dated as of May 5, 2011 (the “Base Agreement”) through the Execution
Date hereof;
WHEREAS, the Board of Directors of CBS (the “Board”), the board of managers of Crumbs and
Executive have together determined that it is in the best interests of the Company and its
shareholders or members, as the case may be, that Executive be redesignated and employed as
Vice-President and Creative Director of CBS and Crumbs, with the additional title of Founder of
Crumbs, pursuant to the terms of this Agreement; and
WHEREAS, the Executive desires to accept employment as Vice-President and Creative Director
of CBS and Crumbs, with the additional title of Founder of Crumbs, pursuant to the terms of this
Agreement.
NOW THEREFORE, the Parties agree as follows:
1. EMPLOYMENT; DUTIES
As of the Effective Date, CBS and Crumbs hereby agree to employ Executive as Vice-President
and Creative Director, with the additional title of Founder of Crumbs, 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 November 14, 2011 at 5:00 p.m. (the “Effective
Date”), and, unless sooner terminated as provided herein, shall end on December 31, 2013 (the
“Term”). 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 CBS’s headquarters in New
York, New York; provided, that Executive shall be required to travel from time to
time on the business of the Company during the Term.
3. POSITION AND DUTIES
3.1 Position and Duties. Executive shall serve as Vice-President and Creative
Director of CBS and Crumbs and shall report to the Chief Executive Officer of CBS and Crumbs.
In such position, Executive shall have such duties and authority as shall be reasonably outlined by
the Chief Executive Officer from time to time and consistent with her title.
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 Company. Executive shall devote her full time, attention and efforts to the
business of the Company, but may participate in charitable and personal investment activities to a
reasonable extent, as long as such activities do not, in the reasonable determination of the Chief
Executive Officer, interfere with the performance of her 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 One Hundred and Fifty Thousand Dollars ($150,000) (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.
4.2 Annual Bonus. Commencing January 1, 2012, Executive shall participate in CBS’s
annual performance based bonus program, as the same may be established from time to time by the
Committee for executives of CBS, 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
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 Company shall
provide Executive with employee benefit plans and insurance programs on a basis no less favorable
than that provided to other senior executives of the Company, 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 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.
2
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 her death. Executive’s employment hereunder may be terminated by the
Company if she 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 her 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.
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 her capacity as an equityholder, (C) rights to collect the Severance Payment, 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 Base Salary for the lesser of (i) six (6) months or (ii) the number of months
remaining in the Term, 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.
3
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) willful failure, neglect or refusal by Executive to perform her duties under this
Agreement or to follow the lawful instructions of the Chief Executive Officer which has not been
cured by Executive (if curable) within five (5) days after written notice thereof to Executive from
CBS or Crumbs, as applicable;
(ii) Executive’s commission of any act of fraud or embezzlement against the Company;
(iii) any breach of any of the material terms of this Agreement, which breach has not been
cured by Executive (if curable) within five (5) days after written notice thereof to Executive from
CBS or Crumbs, as applicable;
(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
Chief Executive Officer, materially adversely affects Executive’s ability to perform her duties and
responsibilities to the Company.
An event set forth in the foregoing clauses (ii) and (iv) shall be referred to herein as an
“Excluded Event.”
5.4 By Executive For Good Reason.
(a) Executive may terminate her employment for “Good Reason” (as defined below) by providing a
Notice of Termination to the Board within ten (10) 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 her 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 her employment for “Good Reason”,
Executive will be entitled to: the Accrued Amounts payable in accordance with Section 5.1(b); and,
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.
4
(b) For purposes of this Agreement, “Good Reason” shall mean:
(i) any material failure of the Company to fulfill its 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 reduction of Executive’s duties and responsibilities to the Company, including
no longer reporting to the Chief Executive Officer 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 Company shall not
constitute Good Reason;
(iii) a reduction in Executive’s 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 Company with notice thereof no later than ten
(10) days following Executive’s becoming aware of such event and the Company 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 CBS 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 CBS that
represent more than 50% of the combined voting power of CBS’s then outstanding voting securities
(the “Outstanding 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 stock, $0.0001 par value, of CBS (the
“Outstanding Common Stock”) or the Outstanding 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 CBS;
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 CBS;
5
(iii) During any period of two (2) consecutive years, commencing on the Effective Date, 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 CBS 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; and
(iv) The Board or the shareholders of CBS approve and consummate a merger, amalgamation or
consolidation (a “Business Combination”) of CBS 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 Common Stock and the Outstanding 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 her 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 her employment without Good Reason, Executive shall be
entitled to receive the Accrued Amounts payable in accordance with Section 5.1(a).
5.6 [Intentionally left blank.]
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.
6
5.8 Notice of Termination. 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 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.
6. NON-SOLICITATION
Executive acknowledges that by virtue of Executive’s position as Vice President and Creative
Director of the Company, and Executive’s employment hereunder, she will have advantageous
familiarity with, and knowledge about, the Company and will be instrumental in establishing and
maintaining goodwill between the Company or its present or future subsidiaries or controlled
affiliates and its or their customers, which goodwill is the property of the Company or its
present or future subsidiaries or controlled affiliates, as the case may be. Therefore, Executive
agrees as follows during the Term and for a twelve (12) month period following the Date of
Termination: (a) Executive shall not on behalf of herself, or any other person or entity, solicit,
take away, hire, employ or endeavor to employ any of the employees of the Company or its present
or future subsidiaries or controlled affiliates 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 controlled 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 its present or future subsidiaries or controlled affiliates.
7. NON-COMPETITION
Executive acknowledges and recognizes the highly competitive nature of the business of the
Company and of its present or future subsidiaries or controlled affiliates and accordingly agrees
as follows: During her employment and for a twelve (12) month period commencing from the Date of
Termination, 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 present or future
subsidiaries or controlled affiliates (including, without limitation, businesses which the Company
or its present or future subsidiaries or controlled affiliates has specific plans to conduct in
the future and as to which Executive is aware of such planning prior to the Date of Termination),
(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 present or future subsidiaries or controlled
affiliates, (c) acquire a financial interest in any person engaged in any business that competes
with the business of the Company or its present or future subsidiaries or controlled affiliates,
directly or indirectly, as an
7
individual, partner, stockholder, officer, 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 its present or future subsidiaries or controlled affiliates, on
the one hand, or any of its customers, suppliers, partners, members or investors of the Company or
its present or future subsidiaries or controlled affiliates, on the other hand. 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 present or
future subsidiaries or controlled 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
one percent (1%) 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 CBS or Crumbs, as applicable, 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 or its present or
future subsidiaries or controlled affiliates (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 its
present or future subsidiaries or controlled affiliates, (b) buying habits or practices of any of
its customers or vendors, (c) the Company’s, or that of its present or future subsidiaries or
controlled affiliates, marketing methods, sales activities, promotion, credit and financial data
and related information, (d) the Company’s, or that of its present or future subsidiaries or
controlled affiliates, 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, or that of its present or future subsidiaries or controlled affiliates, 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, or its present or future
subsidiaries or controlled affiliates, 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 or its
present or future subsidiaries or controlled affiliates 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 or that of its present or future subsidiaries or controlled
affiliates, as the case may be.
8
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 or its present or future
subsidiaries or controlled affiliates, that such damages will be incapable of precise measurement
and that, as a result, the Company or its present or future subsidiaries or controlled affiliates
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 or its present or future subsidiaries or controlled affiliates will be 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 CBS 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 Chief Executive Officer of CBS and Crumbs 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 her 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 her
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 her duties pursuant to this
Agreement.
9
13. INDEMNIFICATION
Except in the case of Executive’s bad faith or willful misconduct or for proceedings arising
from or related to an Excluded Event, 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 (except for those arising under or relating to this
Agreement) to the fullest extent permitted by law.
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 her 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
10
(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.
15. INTERPRETATION
Any action, suit, proceeding, claim, dispute or controversy concerning this Agreement or the
subject matter thereof shall be brought in the courts of the State of New York, in New York
County, or in the federal courts of the United States within the State and County of New York, to
the exclusive jurisdiction of which courts the parties hereto hereby agree. Any service of
process in any such action, suit, proceeding, claim, dispute or controversy shall be by delivering
the same or by mailing the same (by referred or certified mail, return receipt requested) to the
relevant addresses set forth in Section 16.2 or to such other addresses as may have been
designated in writing.
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 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, 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,
Crumbs Bake Shop, Inc.
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx Xxxxxxxx & Schole LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxxxxx & Schole LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
11
If to Executive,
Xxx Xxxxx
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
c/o Crumbs Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxx Xxxxx, Esq.
DLA Piper LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLA Piper LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(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, 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 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.
12
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-l(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 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)
13
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the date
first written above.
| CRUMBS BAKE SHOP, INC. |
||||
| By: | /s/ Xxxx X. Ireland | |||
| Name: | Xxxx X. Ireland | |||
| Title: | CFO | |||
| CRUMBS HOLDINGS LLC |
||||
| By: | /s/ Xxxx X. Ireland | |||
| Name: | Xxxx X. Ireland | |||
| Title: | CFO | |||
| /s/ Xxx Xxxxx | ||||
| XXX XXXXX | ||||
[Signature Page to Employment Agreement]
