Exhibit 4.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") made the 1st day of July, 1997
between INTEGRATED BRANDS INC. (the "Corporation"), having a place of business
at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000, and XXXXX X. XXXXX
("Employee"), residing at 00 Xxxxxx Xxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxx 00000.
WITNESSETH:
In consideration of the mutual covenants and conditions hereinafter set
forth, the parties hereto agree as follows:
I. Duties/Title: Subject to the terms and conditions of this Agreement,
the Corporation hereby employs Employee, and Employee hereby accepts employment
with the Corporation. Employee shall perform for the Corporation, and its
affiliates, such duties as Employee shall be directed to perform by the Chairman
of the Board or any other executive officer of the Corporation designated by the
Chairman of the Board, or by the Board of Directors. Employee shall have the
title of Vice Chairman, Chief Operating Officer and Vice President, and his
duties shall be consistent with such title.
1. Term/Effective Date: The term of Employee's employment hereunder
shall commence on the date hereof and shall continue until December 31, 2002
(the "Initial Term"). Thereafter, this Agreement shall automatically renew on
December 31 of each year for an additional one year term. After the Initial
Term, either party may terminate this Agreement at any time, with or without
cause, upon ninety (90) days written notice to the other party, provided that,
if the
Corporation terminates this Agreement after the Initial Term other than "for
cause", the Corporation shall, upon the effective date of such termination, pay
to Employee, in addition to any salary or other amounts owed to Employee, a
severance amount equal to eighteen (18) months of salary at the annual rate in
effect as of the date of such termination.
2. Salary: As compensation for his services hereunder to the
Corporation, Employee shall be paid a salary at the annual rate during the term
of this Agreement, as follows:
From January 1, 1997 - December 31, 1997 $126,240
From January 1, 1998 - December 31, 1998 185,000
From January 1, 1999 - December 31, 1999 215,000
From January 1, 2000 - December 31, 2000 225,000
From January 1, 2001 - December 31, 2001 240,000
From January 1, 2002 - December 31, 2002 250,000
From January 1 - December 31 during any
year after the Initial Term 265,000
3. Benefits. Employee shall be included in the Corporation's medical,
dental and life insurance program offered to senior executive officers of the
Corporation, on the same basis as offered to them. Employee shall be entitled to
participate, to the extent he is eligible under the terms and conditions
thereof, in any employee benefit plan of the Corporation generally available
which may be in effect from time to time during the period of his employment
hereunder.
4. Business Expenses. The Corporation shall pay or reimburse Employee
for all business expenses incurred by him in connection with the performance of
his duties hereunder upon the submission to the Corporation of appropriate
vouchers and receipts therefor. In addition, the Corporation shall provide for
Employee's use (a) an automobile of Employee's reasonable choice, to be owned or
leased and insured by the Corporation, and the Corporation shall pay or
reimburse Employee for all expenses incurred by him in connection with the
operation and maintenance of said vehicle, and (b) office equipment for use in
Employee's home office, consisting
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of a personal computer, printer and fax machine.
5. Full-Time Employment. In the performance of his duties, Employee
shall not be required to relocate from his current place of residence. Employee
covenants, represents, and warrants that, during the term of his employment, he
shall devote all of his business time and attention to the performance of his
duties hereunder except (i) to the extent reasonably required for the
supervision of his personal investments, none of which shall be in a corporation
competing with the Corporation, (except of Xxxxx Dairies, Inc. and its
affiliates, subsidiaries and successors, or of a public corporation no more than
one (1%) percent of whose stock is owned by Employee), and (ii) to spend no more
than 15% of his working time on behalf of Xxxxx Dairies, Inc. and its
affiliates, subsidiaries and successors.
6. Proprietary Information.
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a. Employee acknowledges that his relationship with the
Corporation, or its affiliates, is one of high trust and confidence by reason of
his access to, and contact with, the trade secrets or other confidential
information, of the Corporation, and its affiliates, and also with respect to
such secrets and information of the Corporation's franchisees, suppliers and
other parties to whom the Corporation may owe an obligation of confidence. Both
during the term of his employment by the Corporation and for two (2) years
thereafter, Employee shall not, without the prior written consent of the
Corporation, divulge or make accessible to any third party, or use for his own
benefit, or for any purpose other than the exclusive benefit of the Corporation,
any confidential information concerning its business and affairs, including, but
not limited to, information relating to new product developments, costs of
products, ingredients, formulations, manufacturing methods, proposed packaging,
financial information, marketing programs, business operations, or activities,
and other trade secrets, or its relationships with actual or potential
franchisees, customers, or suppliers, and the needs and requirements of any such
actual or potential franchisees, suppliers or customers; it being the intent
hereof that Employee shall not so divulge or use any such information which is
unpublished, or not readily available to the general public.
b. Upon termination of his employment by the Corporation, or at
any other time upon request, Employee will promptly deliver to the Corporation
all copies of such confidential information, including, without limitation, all
notes, memoranda, records, files and other documents which relate to the
business of the Corporation.
7. Non-Disruption/Non-Compete. To protect the relationships of the
Corporation its present or prospective customers, suppliers, industry
colleagues, franchisees, licensees, manufacturers, and employees, Employee
agrees as follows:
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a. During the term of this Agreement and for a period of one year
thereafter, Employee shall not directly, or indirectly (i) reveal the name of,
interfere with, or endeavor to entice away from the Corporation or any of its
affiliates, any of its suppliers, customers, franchisees, employees, or
licensees, or (ii) solicit, employ, or interfere with the relationship between
the Corporation and any person who, at any time within the preceding one-year
period, was an employee of, the Corporation.
b. Except for the Corporation, during the term of this Agreement,
and for one year thereafter, Employee shall not be involved as an employee,
officer, director, consultant, shareholder, owner, or in any other manner, in
any business other than that of the Corporation or Xxxxx Dairies, Inc. or its
affiliates, subsidiaries or successors, which manufacturers, sells, or
distributes ice cream, frozen yogurt, sorbet, sherbet, water ice, frozen fruit
juice bars or any other frozen confection products.
c. Nothing in this paragraph is intended to preclude Employee,
during the one year period after the termination of this Agreement, (i) from
dealing on his own behalf or on behalf of others, with any third party,
including, but not limited to customers, suppliers and distributors of the
Corporation, provided that in so doing (x) Employee is not in violation of any
provision of this Agreement, and (y) Employee does not cause the loss or
discontinuance of all, or a portion of, the Corporation's business with any such
third party or result in any material negative impact upon the Corporation's
sales in connection with its business with any such third party, or (ii) from
being employed by, or dealing on behalf of, Xxxxx Dairies, Inc. and its
affiliates.
8. Non-Disparagement. Employee shall not directly, or indirectly, at
any time, disparage the commercial business or financial reputation of the
Corporation or its affiliates or of any of their products or services.
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9. Termination. The Corporation shall have the right to terminate this
Agreement upon the occurrence of either of the following: (a) if Employee shall
die; or (b) "for cause". For purposes of this Agreement, "for cause" shall mean
(i) the commission of any act of moral turpitude affecting the business of the
Corporation; or (ii) commission of any felony against the Corporation.
10. No Conflicting Agreements. Employee represents and warrants that he
is not a party to any agreement, contract, or understanding, whether of
employment or otherwise which would, in any way, restrict or prohibit him form
undertaking or performing employment in accordance with the terms and conditions
of this Agreement.
11. Notice. Any notice, request, or other communication required or
desired to be given pursuant to this Agreement shall be in writing and delivered
by hand, or by overnight mail, or by certified, or registered mail, return
receipt requested, as follows (or to such other address as either party, by
notice to the other, may, from time to time, designate):
If to the Corporation:
INTEGRATED BRANDS INC.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
with a copy to
XXXXXX XXXXXXXXXX LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx, Esq.
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If to Employee:
Xxxxx X. Xxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
with a copy to:
Notice shall be deemed given upon the date of receipt by the other party.
12. Applicable Law. This Agreement and the performance of the parties
hereunder shall be governed by the laws of the State of New York. Any claim or
controversy arising out of, or in connection with, this Agreement, or the breach
thereof, shall be adjudicated by the Supreme Court, Queens County, State of New
York.
13. No Waiver. The failure by either party to insist upon strict
compliance with any terms, covenants, or conditions hereof shall not be deemed a
waiver of such terms, covenants, or conditions, nor shall any waiver or
relinquishment of any right or power hereunder at any one time be deemed a
waiver or relinquishment of such right or power at any other time or times.
14. Severability. The invalidity or unenforceability of any provision of
this Agreement shall, in no way, affect the validity or enforceability of any
other provision.
15. Entire Agreement. This Agreement contains the entire understanding
of the parties and supersedes all prior agreements, arrangements, and
understandings, written or oral, relating to the subject matter hereof. It may
not be changed orally, but only by an agreement in writing signed by both
parties.
16. Indemnification. The Corporation shall indemnify and hold the
Employee
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harmless to the fullest extent permitted by law. Such obligation shall be in
addition to any indemnification of Employee contained in the Corporation's
Certificate of Incorporation and/or By-Laws and shall survive the termination of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
INTEGRATED BRANDS INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx
Chairman of the Board
EMPLOYEE:
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
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AMENDMENT NO.1
AMENDMENT NO. 1 to the employment agreement (the "Agreement") made the 1st
day of July 1997 between INTEGRATED BRANDS INC. (the "Corporation") and XXXXX X.
XXXXX ("Employee").
Paragraph 3 - Salary - is hereby deleted and the following paragraph
shall be substituted in lieu thereof.
"3. Salary. As compensation for his services hereunder to the
Corporation, Employee shall be paid a salary at the annual rate during the
term of this Agreement, as Follows:
From May 13, 1999 - December 31, 1999 $230,000
From January 1, 2000 - December 31, 2000 240,000
From January 1, 2001 - December 31, 2001 255,000
From January 1, 2002 - December 31, 2002 265,000
From January 1, - December 31 during any
year after the Initial Term 280,000"
Other than as provided above, all of the terms and conditions of the
Agreement shall remain in full force and effect.
INTEGRATED BRANDS INC.
BY: /s/ Xxxxxxx X. Xxxxx
-----------------------
Xxxxxxx X. Xxxxx
Chairman of the Board
Employee:
/s/ Xxxxx X. Xxxxx
----------------------
Xxxxx X. Xxxxx
Dated: May 13, 1999
AMENDMENT XX. 0
XXXXXXXXX XX. 0 to the employment agreement (the "Agreement") made the 1st
day of July 1997 between Integrated Brands, Inc. (the "Corporation") and Xxxxx
X. Xxxxx ("Employee"), as previously amended by the Amendment No. 1 dated May
13, 1999.
WHEREAS, (a) the parties have entered into the Agreement, as amended, and
the Corporation's parent, CoolBrands International Inc. (the "Parent") has
guaranteed the Corporation's obligations thereunder; (b) the Initial Term of the
Employment Agreement expired on December 31, 2002; (c) Paragraph 2 of the
Employment Agreement provides, among other things, that after the Initial Term
either party may terminate said agreement at any time, with or without cause,
upon ninety (90) days written notice to the other party (as more specifically
provided therein); (d) the Corporation wishes to continue to employ Employee in
his current position with the Corporation and its Parent; and (e) so that
Employee shall remained employed by the Corporation in his current position, the
parties mutually desire to amend the Employment Agreement as specifically
provided herein, provided that the parent shall guarantee the Corporation's
obligations under the Employment Agreement as hereby amended;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Paragraph 1 ("Duties/Title") is hereby amended as follows: the last
sentence shall be deleted and the following new sentence shall be substituted in
lieu thereof:
"Employee shall have the title of Co-Chief Executive Officer of the
Corporation and President and Co-Chief Executive Officer of
CoolBrands International Inc., and his duties shall be consistent
with such title."
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2. Paragraph 2 ("Term") is hereby amended as follows; (a) in the first
sentence, "2002" shall be deleted and "2013" shall be substituted in lieu
thereof; and (b) in the third sentence, (i) immediately after the words "pay to
Employee" shall be inserted the words "or to Employee's estate or other
successors in interest, if applicable," and (ii) "eighteen (18)" shall be
deleted and "thirty six (36)" shall be substituted in lieu thereof.
3. Paragraph 3 ("Salary") is hereby deleted and the following new
paragraph shall be substituted in lieu thereof;
"Salary. At compensation for his services hereunder to the
Corporation, Employee shall be paid a salary at the annual rate (in
US$) during the term of this Agreement as follows:
From June 1, 2003 to December 31, 2003 $490,000
From January 1, 2004 to December 31, 2004 500,000
From January 1, 2005 to December 31, 2005 520,000
From January 1, 2006 to December 31, 2006 540,000
From January 1, 2007 to December 31, 2007 560,000
From January 1, 2008 So December 31, 2008 580,000
From January 1, 2009 to December 31, 2009 600,000
From January 1, 2010 to December 31, 2010 620,000
From January 1, 2011 to December 31, 2011 640,000
From January 1, 2012 to December 31, 2012 660,000
From January 1, 2013 to December 31, 2013 680,000
From January 1 to December 31 during
any year after the Initial Term 700,000,"
4. Paragraph 10 ("Termination") is hereby amended as follows: After the
second sentence, the following new sentence shall be added:
"Upon the death of Employee, the Corporation shall pay to Employee's
estate or other successors in interest (x) all salary earned or
accrued hereunder to the date of Employee's death and all salary
Employee would have earned or accrued through the expiration of the
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Initial Term, (y) the reimbursement of any expenses not previously
paid pursuant to paragraph 5 above and (z) any other compensation or
benefits provided to Employee under this Agreement, including, but
not limited to, the severance under paragraph 2 above, and
thereafter the Corporation shall continue."
5. The Parent hereby agrees to guarantee the obligations of the
Corporation under the Employment Agreement as hereby amended,
Other than as specifically set forth in this Amendment No. 2, the
Agreement remains unchanged and in full force and effect. Any conflict between
the Agreement and this Amendment No. 2 shall be controlled by the Amendment No.
2.
INTEGRATED BRANDS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
Co-Chairman of the Board
EMPLOYEE:
/s/ Xxxxx X.Xxxxx
---------------------
Xxxxx X. Xxxxx
THE UNDERSIGNED AGREES TO BE
BOUND BY PARAGRAPHS ABOVE:
COOLBRANDS INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
Co-Chairman of the Board
Dated: July 1, 2003
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GUARANTEE
This GUARANTEE is made as of July 1, 2003 by CoolBrands International Inc.
(the "Guarantor") to and in favor of Xxxxx X. Xxxxx (the "Employee").
WHEREAS, the Guarantor's wholly-owned subsidiary, Integrated Brands, Inc.,
("Integrated Brands") and Employee have, entered into to that certain Employment
Agreement dated July, 1997 (the "Employment Agreement"), as amended by that
certain Amendment No. 1 dated May 13, 1999, and
WHEREAS, the Guarantor has guaranteed the obligations of Integrated Brands
under the Employment Agreement, as amended; and
WHEREAS, simultaneous herewith Integrated Brands and Employee are entering
into that certain Amendment No. 2 dated July 1. 2003 (the "Amendment No. 2")
further amending certain provisions of the Employment Agreement; and
WHEREAS, to induce Employee to enter into the Amendment No. 2, the
Guarantor desires to guarantee the obligations of Integrated Brands under the
Employment Agreement, as amended by the Amendment No. 2, as provided herein;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein act forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
The Guarantor hereby agrees to guarantee the performance by Integrated
Brands of each and every obligation of Integrated Brands under the Employment
Agreement, as amended by the Amendment No. 2, including, without limitation, any
obligations to make payments to Employee or to Employee's estate or other
successors in interest, if applicable, for salary, severance, business expenses
or other amount owed or compensation or benefit provided to Employee under the
Employment Agreement, and to indemnify, defend and hold Employee (or, if
applicable, Employee's estate or other successors in interest) harmless from and
against any failure by Integrated Brands to perform any such obligation and, if
necessary, to directly perform such obligation on Integrated Brands' behalf.
IN WITNESS WHEREOF, the parties hereto have executed this Guarantee as of
the date first above written.
COOLBRANDS INTERNATIONAL INC. EMPLOYEE
By: Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
----------------------- ------------------
Title: CO-CHAIRMAN & CO-CEO Xxxxx X. Xxxxx
Date: 07/1/03
