CONSULTING AGREEMENT
Consulting Agreement made as of this 14th day of October, 1998 by and
between Mike's Original, Inc., a Delaware corporation (hereinafter the
"Company") and Xxxxxx Xxxxxxxxx(hereinafter called the "Consultant").
W I T N E S S E T H:
Whereas, the Company is aware of Consultant's business expertise and
desires to enter into a Consulting Agreement with Consultant; and
Whereas, Consultant desires to act as a consultant to the Company 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 Prior Agreements Superseded.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 Consultant and
the Company or any of its subsidiaries, prior to the date of this Agreement.
2. Term. The Company hereby retains Consultant to perform management, sales
and marketing consulting services to the Company for a term of five (5) years,
commencing on the effective date of the acquisition of New Yorker Ice Cream
Corp. and Jerry's Ice Cream Co., Inc.; subject, however, to termination as
hereinafter provided. Consultant hereby accepts such retention.
3. Remuneration. The Company shall pay to Consultant an annual salary at
the rate of $60,000, payable in monthly installments, or in such other manner as
shall be agreed to in writing by the Company and Consultant.
4. Consultant Benefits; Expenses. The Company shall reimburse Consultant
for all proper expenses incurred by him, including disbursements made in the
performance of his duties to the Company; provided, however, that no expenses
and/or disbursements shall be incurred by Consultant without the prior approval
of the Board of Directors of the Company.
5. Non-Competition. Consultant agrees that during the term of this
Agreement and provided he is receiving payment hereunder, 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 manufacturing any article or product which is the same as, or similar to,
any articles or products manufactured 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.
Consultant further agrees that he will not use the name "Mike's Original"
or any variation thereof, or successor name, 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. 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 Consultant's
obligations hereunder shall continue in favor of such successor corporation.
7. 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. Xxxxxx Xxxxxxxxx
c/o The Associated Companies
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
To: Mike's Original, Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
8. 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. In addition, this Agreement shall be binding upon and inure to
the benefit of the Consultant and his heirs, executors, legal representatives
and assigns, provided, however, that the obligations of Consultant hereunder may
not be delegated without the prior written approval of the Board of Directors of
the Company.
9. Amendments. This Agreement may not be altered, modified, amended or
terminated except by a written instrument signed by each of the parties hereto.
10. 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: _____________________________
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Xxxxxx Xxxxxxxxx
