AMENDMENT TO SEVERANCE AND CONSULTING AGREEMENT
AMENDMENT dated as of June 28, 1999 to AGREEMENT dated as of May 21,
1999 between BIG CITY BAGELS, INC., a New York corporation with offices at 00
Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000 ("Company"), and XXXX XXXXXXX,
("Xxxxxxx").
WHEREAS, Company has entered into an Agreement and Plan of
Reorganization and Merger, dated as of May 21, 1999, among the Company, Big City
Acquisition Corp. I, and Big City Acquisition Corp. II, and Intelligent Computer
Solutions, Inc. ("ICS"), VillageNet, Inc. ("VillageNet") and the shareholders
set forth in Schedule 2.1 thereto, as amended to date ("Merger Agreement");
WHEREAS, Company and Xxxxxxx have entered into an Amended and Restated
Employment Agreement, dated August 21, 1998, which provided for Weinreb's
employment with Company through December 31, 1999 (the "Employment Agreement");
WHEREAS, Company and Xxxxxxx have entered into an Agreement dated as of
May 21, 1999 ("Severance and Consulting Agreement") providing for the
termination of the Employment Agreement as provided therein simultaneously with
the closing ("Closing") of the transactions contemplated by the Merger Agreement
and providing for the provision of consulting services to company by Xxxxxxx
after the closing;
WHEREAS, on June 21, 1999, the Board of Directors of Company awarded to
Xxxxxxx, pursuant to Section 10 of Company's 1998 Performance Equity Plan, a
grant of 125,000 shares of Common Stock of Company subject to and conditional
upon the execution and delivery of this Amendment and the Closing; and
WHEREAS, Company and Xxxxxxx hereby mutually desire to amend the
Severance and Consulting Agreement as provided therein.
IT IS AGREED:
1. Elimination of Cash Severance.
Clauses (i) and (vi) of Section 1(c) of the Severance and
Consulting Agreement, providing for a certain cash payment and for delivery of a
Promissory Note at the Closing, are hereby deleted.
2. Stock Grant Award.
On the date of Closing, the Company shall issue and deliver to
Xxxxxxx a certificate registered in the name of Xxxxxx Xxxxxx & Xxxxxxxxx
Capital Corp. ("PHD") (see Section 3 below) representing 125,000 fully paid and
non-assessable shares of Common Stock of Company ("Xxxxxxx Shares"), such Common
Stock to have no restrictions on transferability other than restrictions under
applicable securities laws and the following contractual restrictions:
Until 11 1/2 months (50 weeks) from the Closing, except for
transfers by will or by the laws of descent and distribution in
the event of death of Xxxxxxx, without the consent of the
Company, the Xxxxxxx Shares may only be transferred in accordance
with the following schedule:
(i) 40,000 of the Xxxxxxx Shares will be immediately
transferable, subject to the further limitations below.
(ii) 42,500 of the Xxxxxxx Shares will not be transferable
until the earlier of:
(a) three months after Weinreb's consultancy under the
Severance and Consulting Agreement with the Company
has been terminated; or
(b) six months from the date of Closing, in either
case, subject to the further limitations below.
(iii) 42,500 of the Xxxxxxx Shares will not be transferable
until three months after the shares set forth in clause (ii)
above have become transferable, but in any event not earlier
than eight months after the date of Closing and subject to
the further limitations below.
(iv) The transfers permitted by clauses (i), (ii) and (iii)
above will be subject to the following additional
limitations:
(a) no more than 1,000 of the Xxxxxxx Shares
per day can be transferred unless trading
volume for Company's Common Stock for the
day (exclusive of the Xxxxxxx Shares) is at
least 25,000 shares - - if volume (exclusive
of the Xxxxxxx Shares) is greater than
25,000, but less than 300,000, Xxxxxxx can
sell a maximum of 2,500 of the Xxxxxxx
Shares that day;
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(b) no more than 5,000 of the Xxxxxxx Shares
can be sold in any one calendar week (with
no carryover from prior periods), however:
(A) if trading volume on any given
day (exclusive of the Xxxxxxx
Shares) equals 300,000 shares or
more, Xxxxxxx may transfer up to
3,000 shares on that day which will
not be counted against the 5,000
share per week limitation;
(B) if trading volume on any given
day (exclusive of the Xxxxxxx
Shares) equals 500,000 shares or
more, Xxxxxxx may transfer up to
5,000 of the Xxxxxxx Shares on that
day which will not be counted
against the 5,000 per week limitation;
(C) if trading volume on any given
day (exclusive of the Xxxxxxx
Shares) equals 1,000,000 shares or
more, Xxxxxxx may transfer up to
10,000 of the Xxxxxxx Shares on that
day which will not be counted
against the 5,000 share per week
limit; and
(D) any "block sales" (at least
20,000 shares) negotiated with and
sold through Xxxxxx, Holden &
Xxxxxxxxx Capital Corp. will not be
counted against the 5,000 per week
limitation nor against any daily
limitation.
(v) Since the Xxxxxxx Shares have been registered on Form
S-8, the certificates will not be legended. However, in
order to monitor compliance with the transfer restrictions
set forth herein, Xxxxxxx agrees to deposit the Xxxxxxx
Shares in a brokerage account established by him at Xxxxxx,
Holden & Xxxxxxxxx Capital Corp. ("PHD") and agrees that the
Xxxxxxx Shares cannot be withdrawn from such account or sold
away from PHD until 11 1/2 months (50 weeks) after the
Closing, at which point all restrictions will lapse.
3. Agreement to Monitor Transfers.
By its execution hereof, PHD agrees to accept deposit of the
Xxxxxxx Shares into a brokerage account established by Xxxxxxx at PHD and PHD
shall not permit transfer of the Xxxxxxx Shares except as provided in this
Agreement.
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4. Full Force and Effect
Except as expressly amended hereby, the Severance and
Consulting Agreement shall continue in full force and effect.
5. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute one instrument.
IN WITNESS WHEREOF, this Amendment has been signed as of the
day and year first above written.
_____________________________________
XXXX XXXXXXX
BIG CITY BAGELS, INC.
By: ____________________________________
Xxxxxx Xxxx, Chief Financial Officer
AS TO SECTION 3 ONLY:
XXXXXX, XXXXXX & XXXXXXXXX CAPITAL CORP.
By: ____________________________________
Xxxxxx Xxxxx, Vice President
