Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
made and entered into effective as of June 1, 1997 by and between Snapple
Beverage Corp., a Delaware corporation (the "Company"), Mistic Brands, Inc.,
a Delaware corporation ("Mistic"), and Xx. Xxxxxx X. Xxxxxxx, an individual
residing at 000 Xxxxxxx Xxxx, Xxxxxx Xxxxxxx, XX 00000 (the
"Executive").
WHEREAS, pursuant to an Employment and SAR Agreement entered into as of
August 9, 1995 by and between Mistic and the Executive (the "Original
Agreement"), the Executive agreed to serve as President and Chief Financial
Officer of Mistic and received as consideration, among other things, stock
appreciation rights with respect to 48.5 shares of Mistic's common stock (the
"SAR");
WHEREAS, Triarc Beverage Holdings Corp., a Delaware corporation
("TBHC"), is a wholly owned subsidiary of Triarc Companies, Inc., a Delaware
corporation ("Triarc"), and each of the Company and Mistic are subsidiaries of
TBHC;
WHEREAS, the Executive has assumed expanded responsibilities since the
Original Agreement was entered into, including acting as President and Chief
Operating Officer for each of the Company, Mistic, and Royal Crown Company, Inc.
a Delaware corporation ("Royal Crown") and an indirect wholly owned subsidiary
of Triarc;
WHEREAS, the Company, Mistic and Royal Crown operate as part of the
Triarc Beverage Group (collectively, the "Beverage Group");
WHEREAS, on August 19, 1997 (i) the board of directors of TBHC adopted
the Triarc Beverage Holdings Corp. 1997 Stock Option Plan (the "TBHC Plan");
(ii) the Compensation
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Committee of Triarc's board of directors approved amending the Original
Agreement to reflect, among other things, the elimination of the SAR (subject to
the approval of the TBHC Plan and proposed initial grants thereunder) and the
Executive's additional responsibilities, and (iii) the Performance Compensation
Subcommittee of the Compensation Committee of Triarc's board of directors
approved the TBHC Plan and initial grants thereunder;
WHEREAS, the Executive has agreed to the elimination of the SAR in
consideration of certain amendments to the Original Agreement reflected herein
and grants of stock options to the Executive under the TBHC Plan;
Now, therefore, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES; COMPENSATION
SECTION 1. Employment And Duties.
(a) During the Term of Employment, as defined in Section 2 of this
Article I, the Company hereby employs the Executive and the Executive hereby
accepts full time employment by the Company as its President and Chief Operating
Officer, on the terms and conditions set forth in this Agreement. The Executive
shall perform the duties and have the responsibilities customary for the
position of President and Chief Operating Officer, including such duties and
responsibilities as shall reasonably be assigned to him from time to time by (a)
the Board of Directors of the Company (the "Board of Directors"), (b) the Chief
Executive Officer or Chief Operating Officer
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of Triarc, or (c) the Chief Executive Officer of the Company. During the Term of
Employment the Executive shall also serve as President and Chief Operating
Officer of Mistic and Royal Crown as well as President and Chief Operating
Officer of TBHC and in such additional offices or capacities of the Company
and/or its affiliates to which the Executive may be elected or appointed from
time to time with the consent of the Executive, which consent shall not be
unreasonably withheld. The Executive shall not be entitled to any additional
compensation for such service. Such duties shall be performed by the Executive
primarily at the corporate headquarters of the Company which will be located in
the New York Metropolitan Area; provided, however, that the Executive
acknowledges and agrees that his duties hereunder may require the Executive to
engage in a reasonable amount of travel outside the New York Metropolitan Area,
from time to time.
(b) During the Term of Employment, the Company shall take steps so that
the Executive will be elected as a member of the Board of Directors of the
Company, TBHC and Mistic, as long as (i) each such corporation remains a
separate legal entity and (ii) he shall be an employee of the Company or an
officer of TBHC and Mistic, respectively.
SECTION 2. Term Of Employment. Except as otherwise provided in Article
II or Article III, the Term of Employment under this Agreement shall commence
effective as of June 1, 1997 and shall terminate as of the close of business on
January 2, 2000, provided that such initial term shall automatically be extended
for successive one year periods, unless either the Executive or the Company, in
their respective sole discretion, gives notice to the other, at least 180 days
before the expiration of the initial or any renewal Term of Employment that
either the Executive or the Company, as the case may be, does not want such Term
of Employment to be so extended for an
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additional one year period, subject to earlier termination at any time during
the Executive's employment as hereinafter provided.
SECTION 3. Compensation, Benefits And Expenses. As compensation and
consideration for the performance by the Executive of his duties and
responsibilities pursuant to this Agreement, the Company agrees to pay the
Executive, and the Executive agrees to accept, the following amounts and
benefits:
(a) Base Salary. A base salary (the "Base Salary") at a rate of Four
Hundred Thousand Dollars ($400,000) per annum, which amount shall be payable in
equal installments pursuant to the Company's normal payroll policies.
(b) Annual Bonus. Participation in an annual cash incentive plan
pursuant to which the Executive shall be eligible throughout the Term of
Employment to receive annual bonuses, as appropriate, as the Compensation
Committee of the Board of Directors of Triarc or any subcommittee thereof (the
"Compensation Committee") shall determine, in its sole discretion (the "Annual
Bonus").
(c) Special Bonus A special bonus (the "Special Bonus") in the aggregate
amount of $2,000,000, subject to vesting, payable to the Executive on January 2,
2000. One million dollars ($1,000,000) of the Special Bonus shall be deemed to
have vested as of July 1, 1997, and one-third of the remaining $1,000,000 shall
vest on each of January 2, 1998, 1999 and 2000; provided, however, that if the
Executive voluntarily leaves the employment of the Company during the Term of
Employment, the Executive will be entitled to receive on January 2, 2000 only
that portion of the Special Bonus that had vested through such termination date;
provided, further, that if the
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employment of the Executive hereunder terminates at any time due to death,
disability, Good Cause (as defined below), without Good Cause or a Change in
Control (as defined below), then the right to payment of the Special Bonus shall
be determined in accordance with the applicable provisions of Article II or III,
as the case may be.
(d) Option. An option (the "Option") to purchase 10,000 shares of Class
A Common Stock of Triarc at an exercise price equal to $13.50 per share was
granted to the Executive on August 9, 1995 pursuant to Triarc's 1993 Equity
Participation Plan (the "Triarc Plan"). The Option is exercisable for a period
of ten years from the date thereof and vests as to one-third of the shares
subject to such Option on each of the third, fourth and fifth anniversary of the
date of grant; provided, however, that if the Company gives notice to the
Executive that the Term of Employment is not automatically extended for an
additional period of one year pursuant to Section 2 above, then all the shares
subject to the Option that have not yet vested will vest on the last day of the
then current Term of Employment; provided, further, that if the employment of
the Executive hereunder terminates at any time due to death, disability, Good
Cause, without Good Cause or Change in Control, then the term of exercisability
of the Option and its vesting shall be determined in accordance with the
applicable provisions of Article II or III, as the case may be. In addition, the
Executive has been granted options to purchase other shares of Triarc stock and
may be granted additional options to purchase shares of Triarc stock in the
future. All such future grants shall be made by the Compensation Committee in
its sole discretion.
(e) Insurance, etc. Participation in any life insurance, disability
insurance and medical, dental, hospitalization and surgical expense, vacation,
pension and retirement plan and other
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employee benefits and perquisites made generally available by the Company to its
senior officers from time to time.
(f) Car. The Company shall provide to the Executive an automobile
allowance of $900 per month during the Term of Employment, in lieu of all other
reimbursable automobile expenses, including, without limitation, all operating
costs, such as insurance, maintenance and fuel, for such automobile.
In addition to the amounts and benefits provided for above, the Company
shall provide the Executive during the Term of Employment with a private office,
stenographic and secretarial help and such other facilities and services as are
suitable to his position and adequate for the performance of his duties, and
shall reimburse the Executive for all entertainment, travel and other expenses
reasonably incurred by him in the course of attending to and promoting the
affairs of the Company, subject to the Company's normal rules with respect to
documentation of such expenses.
ARTICLE II
TERMINATION
SECTION 1. Termination Due To Death. The employment of the Executive
under this Agreement shall terminate upon the Executive's death. In the event of
the death of the Executive during the Executive's employment hereunder, the
estate or other legal representative of the Executive shall be entitled only to
the following:
(a) Base Salary. The Company shall pay to the Executive's estate or
other legal representative his Base Salary through the last day of the calendar
quarter in which the Executive dies plus any earned but unpaid Base Salary or
vacation and any Annual Bonus in respect of a
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prior year. Such amount shall be paid by the Company in a lump sum, subject to
all withholdings, within thirty (30) days of the date of death.
(b) Annual Bonus. The Company shall pay to the Executive's estate or
other legal representative (i) Annual Bonus, if any, accrued in respect of the
immediately preceding year but not yet paid as of the date of death and (ii) the
pro-rata portion of the Executive's Annual Bonus for the year in which death
occurs. Such payment shall be calculated by multiplying the amount determined to
be payable as an Annual Bonus by a fraction, the numerator of which is the
number of weeks in the applicable year which precede and include the date of
death and the denominator of which is 52. Such amount shall be paid by the
Company in a lump sum, subject to all withholdings, and the determination of the
Compensation Committee as to the amount of the Annual Bonus shall be conclusive
and binding.
(c) Special Bonus. The Company shall pay to the Executive's estate or
other legal representative the amount of the Special Bonus, which has vested as
of the date of death. Such amount shall be paid by the Company in a lump sum,
subject to all withholdings, within thirty (30) days of the date of death.
(d) Option. The Option shall vest immediately and in its entirety and
shall remain exercisable by the Executive's estate or other legal representative
until the earlier of one year following the date of death or the expiration of
the Option in accordance with its terms.
SECTION 2. Termination Due To Disability. If the Executive shall be
unable to perform all or substantially all of his duties and responsibilities on
account of his illness (either physical or mental) or other incapacity, the
Company shall continue to pay the Executive the full amounts
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and benefits provided for in Section 3 of Article I above for the period of such
illness or incapacity; provided, however, that in the event such illness or
incapacity continues for a period longer than 180 consecutive days or for an
aggregate of 175 days during any consecutive nine-month period (each, a
"disability"), the Board of Directors shall have the right to terminate the Term
of Employment by giving the Executive not less than thirty (30) days written
notice of its election to do so. In the event the Executive's employment is
terminated on account of disability under this Section 2, the Executive shall be
entitled to the compensation and benefits set forth in Section 1 of Article II
above.
SECTION 3. The Company's Right To Terminate For "Good Cause".
(a) Notwithstanding anything in this Agreement to the contrary, the Term of
Employment and the Executive's employment hereunder may be terminated by the
Company at any time for "Good Cause" (as defined below). In the event the Board
of Directors shall determine that grounds exist for terminating the Term of
Employment and the Executive's employment hereunder for Good Cause, the Company
shall send written notice to the Executive that his employment is so terminated
and specifying the facts based upon which Good Cause exists for the termination
of the Term of Employment and the Executive's employment by the Company. In the
event the Board of Directors shall so terminate the Term of Employment and the
Executive's employment, Executive shall be entitled only to the following:
(i) Base Salary. Within thirty (30) days of the date of
termination, the Company shall pay the Executive his Base Salary accrued through
the date of termination of
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employment plus any earned but unpaid vacation plus any earned but unpaid Base
Salary, vacation or Annual Bonus in respect of a prior year.
(ii) Annual Bonus. The Company shall pay the Executive his Annual
Bonus, if any, accrued in respect of any preceding year but not yet paid. The
amount shall be paid at the time it would have been paid had the Executive's
employment not been terminated. No Annual Bonus shall be paid with respect to
the year in which the Executive is terminated.
(iii) Special Bonus. The Executive's right to the Special
Bonus, whether vested or unvested, shall be forfeited on the date of
termination.
(iv) Option. The Executive's right to exercise the Option,
whether vested or unvested, shall terminate on the date of termination.
(b) For purposes of this Agreement, "Good Cause" shall mean:
(i) any willful failure by the Executive to perform his duties
of President and Chief Operating Officer of the Company, Mistic or
Royal Crown;
(ii) any material misconduct (including misconduct involving
moral turpitude) by the Executive in the performance of his duties as
President and Chief Operating Officer of the Company, Mistic or Royal
Crown, which misconduct is materially injurious to the Company, Mistic
or Royal Crown or results in the Executive's conviction of a felony
under the laws of the United States of America, any state thereof or an
equivalent crime under the laws of any other jurisdiction;
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(iii) any willful and unexcused refusal by the Executive to obey
the lawful and reasonable instructions of the Board of Directors or of
the individuals designated in clause (b) of Article I, Section 1(a)
above;
(iv) any willful failure by the Executive to substantially comply
with any written rule, regulation, policy or procedure of the Company,
Triarc, or their respective subsidiaries and Affiliates furnished to
Executive, which noncompliance could reasonably be expected to have a
material and adverse effect on the Company's or Triarc's business; or
(v) any willful failure by the Executive to comply with Triarc's
policies with respect to xxxxxxx xxxxxxx which are furnished to
Executive.
Notwithstanding the foregoing, any termination for "Good Cause"
under clause (i) above shall be effective upon the giving of the written
notice referred to in the first paragraph of subsection (a) of this Section 3;
provided, however, that the Executive shall not be deemed to have been
terminated for "Good Cause" by reason of clause (i) above if within 5 days after
such notice to the Executive, such conduct is no longer continuing,
provided that such notice is the first such notice under this Section 3.
SECTION 4. The Company's Right To Terminate Without Good Cause.
Notwithstanding anything in this Agreement to the contrary, the Term of
Employment and the Executive's employment hereunder may be terminated by the
Company at any time without Good Cause upon thirty (30) days prior notice;
provided, however, that in the event the Executive's employment hereunder is so
terminated, the Executive shall be entitled only to the following:
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(a) Base Salary; Annual Bonus; Special Bonus. The Company shall pay the
Executive an amount equal to the sum of (i) the greater of (x) his Base Salary,
as in effect for the year in which such termination occurs, for one year and (y)
the entire amount of Base Salary that would be payable to the Executive
hereunder through the last day of the then current Term of Employment if such
termination had not occurred plus any earned but unpaid Base Salary, vacation or
Annual Bonus in respect of a prior year owing to Executive accrued with respect
to the period prior to the date of termination, (ii) the Executive's Annual
Bonus for the year in which such termination occurs, and (iii) the full amount
of the Special Bonus (such sum of clauses (I)-(iii) is hereinafter referred to
as the "Severance Amount"). The amounts payable to the Executive pursuant to
this subsection 4(a) shall be payable when and as such amounts would otherwise
be payable hereunder if such termination had not occurred. The determination of
the Compensation Committee as to the amount of Annual Bonus shall be conclusive
and binding.
(b) Option. The Option shall vest immediately and in its entirety as of
the date of such termination and shall remain exercisable by the Executive until
the earlier of one year from the date of termination or the expiration of the
Option in accordance with its terms.
(c) Other Benefits; Car. All other benefits set forth in Article I,
Section 3(e) and 3(f) shall continue until the first to occur of (i) the first
anniversary of the date of termination and (ii) the date the Executive commences
full-time employment with another employer.
(d) The parties agree that the Executive shall not be obligated to
mitigate damages by seeking other employment and any earnings from subsequent
employment shall not reduce the amounts payable by the Company under this
Section 4.
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ARTICLE III
CHANGE IN CONTROL
SECTION 1. Definition Of Change In Control. The term "Change in
Control" shall mean:
(a) the acquisition by any person or entity of 50% or more of the
combined voting power of the outstanding securities entitled to vote generally
in the election of directors of either TBHC or the Company or of any other
corporation (a "Parent Corporation") that owns directly or indirectly 50% or
more of the combined voting power of TBHC's or the Company's outstanding
securities entitled so to vote;
(b) a majority of the board of directors of TBHC or the Company or any
Parent Corporation of either thereof shall be individuals who are not nominated
by the then current board of directors of TBHC, the Company or such Parent
Corporation, as the case may be; or
(c) TBHC, the Company or any Parent Corporation of either thereof is
merged or consolidated with a corporation or entity other than the Company,
Mistic or a Parent Corporation, or all or substantially all of the assets of
TBHC, the Company or a Parent Corporation are acquired by a corporation or
entity that is not TBHC, the Company or a Parent Corporation; provided, however,
that in each case, (i) the acquisition of any portion of the combined voting
power of the Company, TBHC or Triarc by DWG Acquisition Group, L.P., Xxxxxx
Xxxxx and/or Xxxxx X. May or by any person affiliated with such persons shall in
no event constitute a Change in Control (ii) the merger, consolidation or sale
of assets of the Company, TBHC or Triarc or any subsidiary of Triarc with or to
any corporation or entity controlled by DWG Acquisition Group,
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L.P., Xxxxxx Xxxxx and/or Xxxxx X. May or by any person affiliated with such
persons shall in no event constitute a Change in Control and (iii) the
consummation of registered initial public offering of capital stock of the
Company, TBHC or any Parent Corporation of either thereof pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
shall in no event constitute a Change in Control. "Affiliate" of a specified
person or entity shall mean any other person or entity who directly, or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with, the person or entity specified.
SECTION 2. Effects Of Change In Control.
If (i) the Executive terminates his employment hereunder (x) within
twelve months following a Change in Control, (y) during the Term of Employment
and (z) as a result of any substantial diminution of the Executive's title,
duties, or responsibilities or any material reduction in the Executive's
aggregate compensation and benefits hereunder following such Change in Control,
or (ii) the Executive's employment hereunder is terminated by the Company
without Good Cause within one (1) year following the consummation of a Change in
Control, then the Executive shall be entitled to receive the Severance Amount,
plus continuation of employee benefits for a period of 12 months.
ARTICLE IV
COVENANT NOT TO COMPETE; CONFIDENTIALITY; INVENTIONS
SECTION 1. Covenant Not To Compete. The Executive acknowledges that as the
Company's President and Chief Operating Officer he will be involved, at the
highest level, in the development, implementation and management of the
Company's and the Beverage Group's
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business strategies and plans, including those which involve the Company's and
the Beverage Group's finances, marketing, operations, industrial relations and
acquisitions. By virtue of the Executive's unique and sensitive position, the
employment of the Executive by a competitor of the Company or the Beverage Group
represents a serious competitive danger to the Company and the Beverage Group,
and the use of the Executive's talent and knowledge and information about the
Company's and the Beverage Group's business, strategies and plans can and would
constitute a valuable competitive advantage over the Company and the Beverage
Group. In view of the foregoing, if either (i) the Executive's employment with
the Company ends prior to the last day of the Term of Employment as a result of
the Executive's voluntary resignation or (ii) the Executive's employment
hereunder is terminated by the Company for Good Cause pursuant to Section 3 of
Article II, then the Executive covenants and agrees that in either of such
events for a period of eighteen (18) months following termination of the
Executive's employment under this Agreement, the Executive will not engage or be
engaged, in any capacity, directly or indirectly, including, but not limited to,
as an employee, agent, consultant, manager, executive, owner or stockholder
(except as a passive investor owning less that a 2% interest in a publicly held
company) in the "premium" or carbonated beverage industry. The covenant not to
compete contained in this Section 1 shall survive any termination of the Term of
Employment regardless of whether such termination shall have been initiated or
otherwise caused by the Company.
SECTION 2. Injunctive Relief. The Executive agrees that in addition to
any other remedy provided at law or in equity or in this Agreement, the Company
or any member of the Beverage Group shall be entitled to a temporary restraining
order and both preliminary and permanent
14
injunctions restraining the Executive from violating any provision of Section 1
or Section 3 of this Article IV.
SECTION 3. Confidentiality. The Executive agrees to treat as
confidential and not to disclose to anyone other than the Company and its
subsidiaries and affiliated companies the affairs of the Company and its
subsidiaries and affiliated companies (including the Beverage Group), and he
agrees that he will not at any time during his employment under this Agreement
and for a period of four (4) years thereafter, without the prior written consent
of the Company, divulge, furnish or make known or accessible to, or use for the
benefit of, anyone other than the Company and its subsidiaries and affiliated
companies (including the Beverage Group), any information of a confidential
nature relating in any way to the business of the Company or its subsidiaries or
affiliated companies (including the Beverage Group) or any of their respective
customers, unless (i) the Executive is required to disclose any such information
by judicial or administrative process or, in the opinion of his counsel, by
other requirements of law, (ii) such information is in the public domain through
no fault of the Executive, (iii) such information has been lawfully acquired by
the Executive from other sources unless the Executive knows that such
information was obtained in violation of an agreement of confidentiality or (iv)
such information was known to the Executive prior to June 6, 1995.
SECTION 4. Inventions. The Executive agrees that any product,
"know-how," trade secret, idea, formula, operational method, recipe, method of
manufacture, invention, development, discovery or other knowledge or technical
improvement (collectively, "Special Information") in which he participates,
whether patentable or not, made or conceived by the Executive during his
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employment under this Agreement or within six (6) months thereafter, whether
made within or without the course of the Executive's employment with the
Company, which relates in any way to the business of the Company or its
subsidiaries or affiliates (including the Beverage Group) and/or results
directly or indirectly from the Executive's employment with the Company or any
member of the Beverage Group shall be treated as owned by and for the benefit
of, shall be assigned by the Executive without further compensation to, and
shall be the property of, the Company. Further, in such regard, the Executive
shall communicate and promptly disclose to the Board of Directors all such
Special Information and will assist the Company in every proper way at its
expense to obtain a patent or patents thereon in the United States and any other
jurisdiction that the Company deems appropriate, and the Executive agrees to
execute all instruments and to take all steps necessary to make the benefits of
such Special Information available to the Company as its exclusive property.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 1. Indemnification. The Company shall indemnify and hold
harmless the Executive if he should become a party or he should be threatened to
be made a party to any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that the Executive is or was a director, officer, employee, or agent
of the Company or is or was serving at the request of the Company as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, non profit or for profit, partnership, joint venture, trust or other
enterprise, in the manner and to the
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maximum extent permitted by the Delaware General Corporation Law, as amended
from time to time. The indemnification provided for in this Section 1 shall not
be deemed exclusive of any other right to which the Executive may be entitled
under the Company's Certificate of Incorporation or By-laws or any agreement,
vote of shareholders or disinterested directors, or otherwise, and shall
continue after the Executive has ceased to be a director, trustee, officer,
employee or agent and shall inure to the benefit of the Executive's heirs,
executors, and administrators. To the extent and for the period that the Company
or Triarc purchases and maintains insurance on behalf of any of its directors,
officers, or employees, against liability asserted against any such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, the Company hereby covenants that the Executive will be included
as an insured under such policy.
SECTION 2. Failure To Enforce And Waiver. The failure to insist upon
strict compliance with any of the terms, covenants or conditions of this
Agreement shall not be deemed a waiver of such terms, covenants or conditions,
and the waiver or relinquishment of any right or power under this Agreement at
any one or more times shall not be deemed a waiver or relinquishment of such
right or power at any other time or times.
SECTION 3. Remedy For Breach Of Contract. The parties agree that in the
event there is any breach or asserted breach of the terms, covenants or
conditions of this Agreement, the remedy of the parties hereto shall be in law
and in equity and injunctive relief shall lie for the enforcement or
nonenforcement of any provisions of this Agreement.
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SECTION 4. Assignment. The rights and obligations of the Company under
this Agreement (i) are assignable by the Company to TBHC or to any parent or
subsidiary of the Company or TBHC, to any successor by merger to the Company and
to any person which acquires all or substantially all of the assets and business
of the Company as a going concern and (ii) shall inure to the benefit and shall
be binding upon the successors and assigns of the Company. The rights and
obligations of the Executive under this Agreement (including the Option) are not
assignable or transferable by the Executive (whether by operation of law or
otherwise or whether voluntarily or involuntarily); provided, however, that the
Option may be transferred by will or by the laws of descent and distribution.
SECTION 5. Notices. All notices required or permitted to be given under
this Agreement shall be given in writing and shall be deemed sufficiently given
if delivered by hand or mailed by registered mail, return receipt requested, to
his residence in the case of the Executive and to its principal executive
offices in the case of the Company. Either party may by notice to the other
party change the address at which he or it is to receive notices hereunder.
SECTION 6. Applicable Law And Severability. This Agreement shall take
effect and be construed and enforced in accordance with the laws of the State of
New York, excluding any such laws which direct the application of the laws of
some other forum. If any provision or provisions, as the case may be, of this
Agreement are void or unenforceable or so declared, such provision or provisions
shall be deemed and hereby are severed from this Agreement, which shall
otherwise remain in full force and effect.
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SECTION 7. Headings. The headings used in this Agreement are for
convenience only and shall not be deemed to curtail or affect the meaning or
construction of any provision under this Agreement.
SECTION 8. Withholding. All payments or benefits to the Executive under
this Agreement shall be reduced by any amounts required to be withheld by the
Company under federal, state or local income tax laws or similar laws then in
effect.
SECTION 9. Entire Agreement; Amendment. This Agreement amends and
restates the Original Agreement is its entirety and contains the entire
agreement between the parties hereto with respect to the subject matter hereof.
This Agreement may not be changed orally but only by an agreement in writing,
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
SECTION 10. Generally Accepted Accounting Principles. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance with generally
accepted accounting principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Company's independent
public accountants and disclosed in writing to the Executive) with the most
recent audited consolidated financial statements of the Company.
SECTION 11. Arbitration. Any dispute or question arising from this
Agreement or its interpretation shall be settled exclusively by arbitration in
New York City, New York, in accordance with the commercial rules then in effect
of the American Arbitration Association. The arbitrator(s) shall set forth in
writing and deliver to the parties findings of fact and conclusions
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reached. Judgment upon an award rendered by the arbitrator(s) may be entered in
any court of competent jurisdiction, including courts in the State of New York.
Any award so rendered shall be final and binding upon the parties hereto. All
costs and expenses of the arbitrator(s) shall be borne by equally by the parties
hereto and all costs and expenses of attorneys, experts, witnesses and other
persons retained by the parties shall be borne by the party that retained such
attorneys, experts, witnesses or other persons; provided, however, that the
arbitrator(s) shall have the authority to reallocate responsibility for such
costs and expenses in connection with its arbitration decision. In the event
that injunctive relief shall become necessary under this Agreement, either of
the parties shall have the right to seek provisional remedies prior to an
ultimate resolution by arbitration.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
SNAPPLE BEVERAGE CORP.
By: XXXXXXX XXXXXXXXX
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
MISTIC BRANDS, INC.
By: XXXXXXX XXXXXXXXX
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
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