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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
Employment Agreement made as of this 1st day of June, 1995 by and between
Mike's Original, Inc., a Delaware corporation (hereinafter the "Company") and
Xxxxxxx Xxxxx (hereinafter called the "Employee").
W I T N E S S E T H:
Whereas, the Company and Employee entered into an Employment Agreement on
March 31, 1994; and
Whereas, the Company desires to enter into a new Employment Agreement with
Employee (the "Agreement"); and
Whereas, Employee desires to be employed by the Company in an executive
capacity on the terms and conditions set forth herein.
Now, therefore, in consideration of the premises and of the mutual
covenants and conditions herein contained, the parties hereto agree as follows:
1. Prior Agreements Superseded. The Agreement supersedes any
employment or consulting agreements, oral or written, entered into between the
Employee and the Company or any of its subsidiaries, prior to the date of this
Agreement.
2. Term. The Company hereby employs Employee to perform such duties of an
executive nature as shall be determined and assigned to him by the Board of
Directors of the Company and Employee shall so serve the Company on a full-time
basis for a term of four (4) years, commencing on the date of this Agreement;
subject, however, to termination as hereinafter provided. Employee hereby
accepts such employment.
3. Remuneration. The Company shall pay to Employee an annual salary at the
rate of $100,000 for the first year and $125,000 for the second, third and
fourth years of the Agreement, payable in weekly installments, or in such other
manner as shall be agreed to by the Company and Employee.
4. Employee Benefits; Expenses. The Company shall reimburse Employee for
all proper expenses incurred by him, including disbursements made in the
performance of his duties to the Company; provided, however, that no
extraordinary expenses and/or disbursements shall be incurred by Employee
without the prior approval of the Chief Executive Officer or the Board of
Directors of the Company.
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5. Non-Competition. Employee agrees that during the term of this Agreement
he will not directly or indirectly enter into or remain in the employ of any
person, firm or corporation, or engage in or have a financial interest in any
business which is then directly or indirectly competitive to the business of the
Company or is then manufacturing any article or product or performing any
service which is the same as, or similar to, any articles or products
manufactured, or service performed by the Company. In the event of a breach of
this covenant not to compete, the parties acknowledge that the Company may be
irreparably damaged and may not have an adequate remedy at law. The Company may
therefore obtain injunctive relief, without the necessity of posting a bond, for
any breach or threatened breach of this covenant. The parties hereto further
acknowledge that this covenant not to compete is intended to conform with the
laws of the State of New York. Any court of competent jurisdiction is hereby
authorized to expend or contract the restrictions of this covenant not to
compete in order to conform with the laws of New York so that it shall bind the
parties hereto.
Employee further agrees that he will not use the name "Mike's Original" or
any variation thereof, or otherwise allow any person to use such name or permit
any member of his family to use such name, or authorize the use of such name as
or in the name of any corporation, partnership, firm or venture which
manufactures any article, product, special process or performs any service which
is the same as, or similar or in competition with any article, product, special
process or service manufactured or performed by the Company, or as in the name
of any such article or product.
6. Termination. Employee's employment hereunder may be terminated by
the Company for a material breach of the terms of this Agreement which is not
cured after Employee receives five days notice thereof. This Agreement shall
also terminate on his death.
7. Confidential Information. With respect to any patent, invention,
trademark or copyright hereafter developed by Employee, Employee shall promptly
notify the Company of any such patent, etc., and shall execute such documents as
the Company may reasonably request in order to evidence the Company's title to
same. In the event Employee determines to develop on his own time and expense
and outside of the Company's facilities any invention, trademark or copyright
not related to the Company's business, he shall have the right to retain
ownership of such invention, trademark or copyright.
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8. Ordinary Course. Employee shall not, on behalf of the Company, enter
into any contract other than those in the ordinary course of business of the
Company, unless approved by the Board of Directors of the Company.
9. Consolidation or Merger. In the event of any consolidation or merger of
the Company into or with any other corporation during the term of this
Agreement, or the sale of all or substantially all of the assets of the Company
to another corporation during the term of this Agreement, such successor
corporation shall assume this Agreement and become obligated to perform all of
the terms and provisions hereof applicable to the Company, and Employee's
obligations hereunder shall continue in favor of such successor corporation.
10. Notices. Notice is to be given hereunder to the parties by telegram
or by certified or registered mail, addressed to the respective parties at the
addresses hereinbelow set forth or to such addresses as may be hereinafter
furnished, in writing:
To: Mr. Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
To: Mike's Original, Inc.
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Copy to: Xxxxx X. Xxxxxxxxx, Esq.
Blau, Kramer, Wactlar & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
11. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the Company. Unless
clearly inapplicable, reference herein to the Company shall be deemed to
include such other successor.
12. Change of Control.
(a) In the event there shall be a change in the present control of the
Company as hereinafter defined, or in any person directly or indirectly
presently controlling the Company, as hereinafter defined, Employee shall have
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the option, exercisable within six (6) months of his becoming aware of such
event, to terminate this Agreement forthwith. Upon such termination, Employee
shall have the right to immediately receive as a lump sum payment an amount
equal to three times the total compensation paid to Employee during the
immediately preceding fiscal year of the Company, less $1.00.
(b) For purposes of this Agreement, a change in control of the
Company, or in any person directly or indirectly controlling the Company, shall
mean:
(i) a change in control as such term is presently defined in
Regulation 240.12b-2 under the Securities Exchange Act of 1934 ("Exchange Act");
or
(ii) if during the term of this Agreement, individuals who at the
beginning of such agreement constitute the Board of Directors, cease for any
reason to constitute at least a majority thereof, unless the election of each
director who is not a director at the beginning of such period has been approved
in advance by directors representing at least two-thirds (2/3) of the directors
then in office who were directors at the beginning of the period.
13. Amendments. This Agreement may not be altered, modified, amended or
terminated except by a written instrument signed by each of the parties hereto.
14. Governing Law. This Agreement is entered into and shall be construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MIKE'S ORIGINAL, INC.
By: /s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx, Secretary/Treasurer
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Employee
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MODIFICATION AGREEMENT
MODIFICATION AGREEMENT made this 6th day of February, 1997 by and between
MIKE'S ORIGINAL, INC., a Delaware corporation (hereinafter the "Company") and
XXXXXXX XXXXX (hereinafter "Employee")
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into an Employment Agreement
dated as of June 1, 1995 (hereinafter the "Employment Agreement"); and
WHEREAS, the Company and Employee desire to amend the Employment Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Paragraph "2" of the Employment Agreement is hereby deleted in its
entirety, and in its place and stead shall be the following:
"2. Term. The Company hereby employs Employee to perform such
duties of an executive nature as shall be determined and assigned
to him by the Board of Directors of the Company and Employee shall so
serve the Company on a full-time basis for a term of six (6) years,
commencing on June 1, 1995; subject, however, to termination as
hereinafter provided. Employee hereby accepts such employment."
2. Paragraph "3" of the Employment Agreement is hereby deleted in its
entirety and in its place and stead shall be the following:
"3. Remuneration. The Company shall pay to Employee an annual
salary at the rate of $100,000 for the first year and $125,000 for
the second through sixth years of the Agreement, payable in weekly
installments, or in such other manner as shall be agreed to by the
Company and Employee."
3. Paragraph "4A" shall be added to the Employment Agreement to be and read
as follows:
"4A. (i) For the third through sixth years of the term of
employment, Employee shall receive an annual bonus of $50,000 for
each such year provided the Company's pre-tax income for
such year exceeds $1,000,000.
(ii) Any bonus payable under this Agreement shall be paid to
Employee upon receipt of audited financial statements for the year
with respect to which it is to be received.
The aforesaid Employment Agreement in all other respects is hereby ratified
and confirmed.
IN WITNESS WHEREOF, the undersigned have executed this Modification
Agreement as of the day and year first above written.
MIKE'S ORIGINAL, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Vice President-Finance
/s/ Xxxxxxx Xxxxx
Employee
