Employment Agreement Between Steven Bogen

AGREEMENT made this 31st day of March, 1996 by and between Steven Smith residing at Five Lawson Lane, Great Neck, New York 11023 (the "Employee") and The Fresh Juice Company, Inc., a Delaware corporation whose address is 350 Northern Boulevard, Great Neck, NY 11021 (the "Employer").


WITNESSETH:


WHEREAS, Smith is presently employed as the President, Chief Executive Officer and general manager of the Employer, pursuant to that certain Employment Agreement dated October 5, 1986 between the Employee and the Employer as amended by Employment Agreement between the Employee and Employer dated August 17, 1994 (together, the "Old Employment Agreement"); and


WHEREAS, it has been agreed between the Employee and Employer that they desire to amend and supersede the terms and conditions of the Employee's employment with the Employer as set forth in the Old Employment Agreement and enter into this new employment agreement pursuant to which, among other things, the Employee will no longer serve as the Employer's Chief Executive Officer and general manager, but shall continue to be employed as the Employer's President, Assistant Secretary and Co-Chairman of the Board upon the terms and conditions set forth herein.


NOW, THEREFORE AND in consideration of the premises and mutual covenants herein contained, it is agreed between the Employee and the Employer as follows:


1. Employment. (a) The Employer hereby agrees to employ the Employee for the term of this Agreement, commencing as of the date hereof, as the President, Assistant Secretary and Co-Chairman of the Board. The Employee also agrees to serve as a director of the Employer and any direct or indirect Subsidiary thereof, if elected.


2. Duties. (a) The Employee shall perform the duties and functions customarily incident to the position of President, Assistant Secretary and Co-Chairman of the Board of a corporation, and such other duties incidental thereto and consistent therewith as may, from time to time be assigned to him by the Board of Directors. As the President of the Employer the Employee shall, subject to the directives of the Board of Directors, have such powers and duties as the Board of Directors of the Company shall assign or vest in him at any time and from time to time; it being understood that the Employee shall exercise such powers and perform such duties commensurate with such position and consistent with the powers and duties normally associated with such position and title at comparable publicly-held companies, including, but not limited to, the power to execute checks on behalf of the Employer and its Subsidiaries provided, however, that the powers and duties of the Employee hereunder or


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otherwise in connection with the operations of the Employer shall be subordinate to and shall not be in contravention of the powers, duties and directives of the Employer's Chief Executive Officer.
(b) The Employee's services hereunder may be rendered at the Employer's principal executive offices in New Jersey, the offices of the Employer's Subsidiaries in Florida or such other place as the parties may agree to at any time and from time to time or such other location as the Employee shall be fully capable of performing his duties and obligations hereunder. It is understood and agreed, however, that during the term the Employee's duties may require reasonable periods of travel from time to time as the Employer may reasonably request.


3. Other Business Interests. The Employee agrees, during the term of this Agreement, to use his best efforts to promote the interests and welfare of the Employer and to devote such time to his employment as shall be necessary to enable him properly to perform his duties hereunder. The Employee further agrees that unless otherwise approved by the Board of Directors of the Company, the Employee shall work a minimum of 1,000 hours per year. Notwithstanding the foregoing, however, the Employer acknowledges and understands that the Employee has or may have other business interests and is or may become an officer and director of other corporations and that the Employee will be required to devote some portion of his time to his other business interests. The Employer agrees that the Employee may so do, and that he may be an officer and director of the corporations in which the Employee has or may in the future obtain an interest. The Employer acknowledges that any services performed by the Employee for such other business entities in which he has or may obtain an interest, may occupy a significant portion of the Employee's business time and will be rendered at such times and in such manner as the Employee shall deem appropriate so long as same does not unreasonably interfere with the performance of his duties and obligations to the Employer. Under no circumstances shall the rendering of any services to such other business entities form the basis for any breach by the Employee of his duties and obligations hereunder or a basis for the termination by the Employer of the Employee's employment hereunder so long as the Employee is in compliance with his obligations to the Employer hereunder.


4. Salary. The Employee shall be paid, as base compensation for the services rendered by him to the Employer, a salary in the amount of $360,000 per annum (the "annual base compensation"), payable weekly or in such other manner as shall be determined by the Employer, plus an annual bonus, which bonus, if any, shall be determined by the Board of Directors.


The annual base compensation of the Employee, as adjusted each year in accordance with the further provisions of this paragraph, shall be increased each year, commencing with the year beginning April 1, 1997, by an amount equal to, the percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (New York, N.Y.--Northern N.J. -- all items in 1967=100) as periodically published by the Board of Labor Statistics of the U.S. Department of Labor, in March of each year that this Agreement continues in force and effect, over the said Index for the month of March in the


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preceding year, times the base compensation. For example, if the said Index for the month of March, 1997 has increased by 5% over the said Index for the month of March 1996, the Employee's annual base compensation for the year commending April 1, 1997, shall be increased by $18,000 (i.e., 5% of $360,000) to the amount of $378,000. If the said Index for the month of March 1998 has increased by 5% over the said Index for the month of March 1997, the Employee's base compensation for the year commencing April 1, 1998 shall be increased by $18,900 (i.e., 5% of $378,000, to the amount of $396,900). If the said Index or its publication shall be discontinued and no comparable Index shall be published in place thereof, the Employer and Employee shall endeavor to agree upon a substitute Index or formula which then reflects the relative comparable value of the dollar; and if they do not agree upon such substitution, then the question of a substituted Index or formula shall be submitted to arbitration in accordance with the arbitration provisions of this Agreement.


5. Salary Increases; Bonuses. It is understood and agreed that the Employee's agreement to accept the foregoing base compensation for his services to the Employer during the term of this Agreement shall not prohibit, limit or restrict the Board of Directors of the Employer, from increasing the Employee's compensation or from paying the Employee any bonuses during the term of this Agreement, if the directors deem same appropriate in light of the services rendered by the Employee, the business done by the Employer, the results of operations of the Employer, and such other factors as the Board of Directors, in their discretion, may deem relevant. Notwithstanding anything herein to the contrary, the aggregate amount of salary and bonuses paid to the Employee by the Employer shall not be lower than the aggregate amount of salary and bonuses paid to the Employer's most highly compensated executive officer (other than the Employee), inclusive of any amount paid to such executive officer's family members.


6. Lump Sum Payment. (a) If, in the absence of a "Change in Control" (as defined in Section 15 hereof), the Employer terminates this Agreement for reasons other than those specified in Section 16 hereof or the Employer determines not to renew the Employee's employment under the same or similar terms as this Agreement (the "Nonrenewal of this Agreement") and the termination or nonrenewal occurs neither after a Change in Control nor in connection with a Change in Control, then the Employee shall be entitled to receive, in addition to any compensation to which he is entitled pursuant to Sections 4 and 5 hereof through the date of termination, a lump sum payment (the "Lump Sum Payment") in an amount equal to (i) the highest sum of the Employee's annual salary and bonus during any one year period of the term of this Agreement or any one year during any renewal period, as the case may be, plus (ii) his full base salary (as specified in Section 4 hereof) for the remainder of the term of this Agreement or any renewal period, as the case may be, at the rate in effect on the date of termination, plus all other amounts to which he is entitled under any compensation plan of the Employer on the date of termination. The Employee shall be entitled to receive the Lump Sum Payment within ten (10) days following (i) the termination date, or (ii) the end of the term of this Agreement or any renewal period, as the case may be, in the event of such Nonrenewal of this Agreement by the Employer. Any amounts which the


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Employee may earn should he seek other employment shall not be offset against the amount of the continuing salary or Lump Sum Payment to which he is entitled to otherwise receive hereunder. In addition, the Employee shall not be obligated to seek any such other employment to mitigate any payments he is entitled to receive pursuant to this Agreement. Subject to Section 15 hereof, the Employee shall not be entitled to receive continuing salary payments or the Lump Sum Payment in the event that he, not the Employer, determines not to renew this Agreement at the end of the term hereof, or any renewal period, as the case may be.
(b) Further, the termination, as described in Section 6(a) above, or the Nonrenewal of this Agreement will entitle the Employee to continued benefits coverage provided for hereunder for twelve (12) months from the date of termination or the end of the term of this Agreement or any renewal period, as the case may be. In addition, the Employer will provide the Employee, at the Employer's expense, with counseling services of a mutually acceptable outplacement firm for twelve (12) months from the date of termination or the end of the term of this Agreement or any renewal period, as the case may be, subject to the next to last sentence in this paragraph. The Employee will be permitted to use the same Employer's vehicle provided to him pursuant to Section 7 below, for a period of twelve (12) months from the date of termination or the end of the term of this Agreement or any renewal period, as the case may be, subject to the following sentence. The Employee agrees that he will notify the Employer immediately upon obtaining other employment and that his use of the outplacement services will cease immediately and use of the Employer vehicle will cease on the first day of the following month. The Employee shall return the Employer's vehicle to the Employer, at the Employee's expense (or assume the monthly costs thereof in the case of a leased vehicle), on or before the first day of such following month.


7. Automobile. The Employer shall provide the Employee with the use of an automobile while he is employed by the Employer, of such make and model as the Employee shall reasonably determine. The Employer agrees to pay all costs of operating, maintaining, servicing, repairing, insuring and garaging said automobile along with the costs of any car phone which the Employee has or elects to have installed in such automobile. In the event this Agreement continues beyond the initial three-year term, the Employer shall provide the Employee with a new automobile every three years while he is employed by the Employer.


8. Benefits. (a) Commencing on the date hereof, during the term hereof and any extension thereof, the Employee shall be entitled to participate in and enjoy the benefits of any profit sharing, health or other group insurance, retirement, pension or other similar plan or plans which are in effect or may be instituted by the Employer for the benefit of its executive officers or employees generally, upon such term as may be therein provided.


9. Vacation, Holidays and Personal Days. (a) The Employee shall receive a paid vacation of five weeks a year during the term of this Agreement. In the event there is


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any unused vacation time due to the Employee upon termination of his employment with the Employer, he shall be paid for such unused vacation time. Unused vacation time shall not accrue from year to year.
(b) The Employee shall be entitled to as many holidays and personal days as are in accordance with the Employer's policy then in effect for its executive officers generally (but no less favorable than the Employer's policy existing on the date hereof), upon such terms as may be provided to all executive officers of the Employer generally.


10. Expenses. The Employer recognizes that the Employee will incur expenses in connection with his duties hereunder and the business of the Employer for items such as entertaining, travel, hotels, gifts and similar items. The Employer agrees to provide the Employee with a corporate American Express Card in order to pay such expenses and to otherwise reimburse the Employee for, all such expenses paid or incurred by him (and/or, if requested by the Employee, to advance the Employee amounts required to cover such expenses).
Notwithstanding the foregoing, the Employer further recognizes that the Employee's local expenses and various miscellaneous expenses paid by the Employee in connection with his duties hereunder and the business of the Employer may be difficult to account for by the Employee. Accordingly, it is agreed that the Employee shall be entitled to receive an appropriate amount from the Employer, as determined by the Employer from time to time, as reimbursement for local and miscellaneous expenses for which the Employee shall not be required to account, not to be less than $500 or more than $1,000 per month. This shall be in addition to reimbursement for travelling, entertainment, gifts and other items, for which the Employee is able to account.


11. Disability. In the event the Employee becomes ill or disabled during the duration of this Agreement, so that he is unable to perform his duties to the Employer hereunder, this Agreement shall continue in full force and effect and the Employee's compensation and other benefits required to be paid or maintained for the Employee by the Employer shall continue to be paid and maintained by the Employer during the duration of such illness or disability; provided, however, that in the event the Employee is ill or disabled for a continuous period of more than one year during which time he is unable to perform his duties to the Employer hereunder, the Employer shall have the right, at its option, at any time during the continuance of said illness or disability after the said one-yea ...