Exhibit
10.9


 


EMPLOYMENT
AGREEMENT


 


AGREEMENT
dated as of ________, 2015 between PHILIP THOMAS, residing at ___________ (“Executive”), and Long Island Iced Tea
Corp., a Delaware corporation having its principal office at 116 Charlotte Avenue, Hicksville, NY 11801 (“Company”);


 


WHEREAS,
Executive is currently employed as Chief Executive Officer of Long Island Brand Beverages LLC (“LIBB”);


 


WHEREAS,
the Company has entered into an Agreement and Plan of Reorganization (the “Merger Agreement”), dated as of
December 31, 2014 and amended as of April 23, 2015, by and among the Company, Cullen Agricultural Holding Corp.
(“Cullen Ag”), Cullen Merger Sub, Inc., LIBB Acquisition Sub, LLC, LIBB and the founders of LIBB;


 


WHEREAS,
the Company desires to enter into an employment agreement with Executive to take effect upon consummation of the transactions
contemplated by the Merger Agreement (the “Commencement Date”); and


 


WHEREAS,
Executive is willing to enter into such employment agreement on the terms, conditions and provisions hereinafter set forth.


 


NOW,
THEREFORE, in consideration of the mutual promises, terms, covenants and conditions set forth herein and the performance of each,
the parties hereby agree as follows:


 


IT
IS AGREED:


 


1.          Employment,
Duties and Acceptance.


 


1.1           General.
During the Term (as defined in Section 2), the Company shall employ Executive in the position of Chief Executive Officer of the
Company and such other positions as shall be given to Executive by the Board of Directors of the Company (the “Board”).
In addition, Executive agrees to serve as Chairman of the Board. All of Executive’s powers and authority in any capacity
shall at all times be subject to the direction and control of the Company’s Board of Directors. The Board may assign to
Executive such management and supervisory responsibilities and executive duties for the Company or any subsidiary of the Company,
including serving as an executive officer and/or director of any subsidiary, as are consistent with Executive’s status as
Chief Executive Officer. The Company and Executive acknowledge that Executive’s primary functions and duties as Chief Executive
Officer shall be to be responsible for the day to day operations of the Company; working with the board of directors to define
long-term strategic initiatives; insuring that directives from the Board of Directors are implemented to achieve maximum profitability
of the Company’s operations, maximize shareholder value; and overseeing the operations of the Company and its wholly owned
subsidiaries. The Executive’s duties shall be similar to those customarily performed by comparable officers of similar companies.
The Company also appoints Executive as Chairman and Chief Executive Officer to all of its subsidiaries.


 






    	 



    	 



    

 


1.2           Full-Time
Position. Executive accepts such employment and agrees to devote substantially all of his business time, energies and attention
to the performance of his duties hereunder. Nothing herein shall be construed as preventing Executive from making and supervising
personal investments, provided they will not interfere with the performance of Executive’s duties hereunder or violate the
provisions of Section 5.4 hereof.


 


1.3           Location.
Executive will perform his duties in or around Hicksville, New York. Executive shall undertake such occasional travel, within
or outside the United States, as is reasonably necessary in the interests of the Company.


 


2.          Term.
The term of Executive’s employment hereunder shall commence on the Commencement Date and shall continue until the second
anniversary of the Commencement Date (“Term”) unless terminated earlier as hereinafter provided in this Agreement,
or unless extended by mutual written agreement of the Company and Executive. This Agreement shall become null and void in the
event of the termination of the Merger Agreement prior to the consummation of the transactions contemplated thereby. Notwithstanding
any provision in this Agreement to the contrary, this Agreement shall become effective only upon consummation of the transactions
contemplated by the Merger Agreement. Unless the Company and Executive have otherwise agreed in writing, if Executive continues
to work for the Company after the expiration of the Term, his employment thereafter shall be under the same terms and conditions
provided for in this Agreement, except that his employment will be on an “at will” basis and the provisions of Sections
4.4 and 4.6(c) shall no longer be in effect.


 




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3.          Compensation
and Benefits.


 


3.1           Salary.
The Company shall pay to Executive a salary (“Base Salary”) at the annual rate of $150,000. Executive’s compensation
shall be paid in equal, periodic installments in accordance with the Company’s normal payroll procedures.


 


3.2           Incentives.
For the period from the Commencement Date until December 31st, 2015, the Executive shall be paid a bonus (“Bonus”)
of up to 50% of the Base Salary. The incentive paid (if any) will be determined by the Board at their discretion. The Bonus will
be paid in cash or stock as per the recommendation of the Board..


 


3.3           Benefits.
Executive shall be entitled to such medical, life, disability and other benefits as are generally afforded to other executives
of the Company, subject to applicable waiting periods and other conditions, as well as participation in all other company-wide
employee benefits, including a defined contribution pension plan and 401(k) plan, as may be made available generally to executive
employees from time to time. If the benefits in this Section 3.3 are not implemented by the date being six (6) months from the
Commencement Date the Executive will accept by way of substitution the sum of $500.00 per month for the period until the benefits
are made available to the Executive.


 


3.4           Vacation
and Sick Days. Executive shall be entitled to twenty (20) days of paid vacation and five (5) days of paid sick days in each
year during the Term and to a reasonable number of other days off for religious and personal reasons in accordance with customary
Company policy.


 


3.5           Expenses.
The Company shall pay or reimburse Executive for all transportation, hotel and other expenses reasonably incurred by Executive
on business trips and for all other ordinary and reasonable out-of-pocket expenses actually incurred by him in the conduct of
the business of the Company against itemized vouchers submitted with respect to any such expenses and approved in accordance with
customary procedures.


 




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3.6           Stock
Options. Subject to approval by the Board, the Company shall grant Executive an option (“Option”) to purchase
80,000 shares of the Company’s Common Stock under the Company’s 2014 Long-Term Incentive Equity Plan, such Option
to vest quarterly in equal portions over the Term and have an exercise price of $3.75. The duration of the Option is for a five
year period ending December 31, 2019.


 


4.          Termination.


 


4.1           Death.
If Executive dies during the Term, Executive’s employment hereunder shall terminate and the Company shall pay to Executive’s
estate the amount set forth in Section 4.6(a).


 


4.2           Disability.
The Company, by written notice to Executive, may terminate Executive’s employment hereunder if Executive shall fail because
of illness or incapacity to render services of the character contemplated by this Agreement for six (6) consecutive months. Upon
such termination, the Company shall pay to Executive the amount set forth in Section 4.6(a).


 


4.3           By
Company for “Cause”. The Company, by written notice to Executive, may terminate Executive’s employment hereunder
for “Cause”. As used herein, “Cause” shall mean: (a) the refusal or failure by Executive to carry out
specific directions of the Board which are of a material nature and consistent with his status as Chief Executive Officer (or
whichever positions Executive holds at such time), or the refusal or failure by Executive to perform a material part of Executive’s
duties hereunder; (b) the commission by Executive of a material breach of any of the provisions of this Agreement; (c) fraud or
dishonest action by Executive in his relations with the Company or any of its subsidiaries or affiliates (“dishonest”
for these purposes shall mean Executive’s knowingly or recklessly making of a material misstatement or omission for his
personal benefit); or (d) the conviction of Executive of a felony under federal or state law. Notwithstanding the foregoing, no
“Cause” for termination shall be deemed to exist with respect to Executive’s acts described in clauses (a) or
(b) above, unless the Company shall have given written notice to Executive within a period not to exceed ten (10) calendar days
of the initial existence of the occurrence, specifying the “Cause” with reasonable particularity and, within thirty
(30) calendar days after such notice, Executive shall not have cured or eliminated the problem or thing giving rise to such “Cause;”
provided, however, no more than two cure periods need be provided during any twelve-month period. Upon such termination, the Company
shall pay to Executive the amount set forth in Section 4.6(b).


 




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4.4           By
Executive for “Good Reason”. The Executive, by written notice to the Company, may terminate Executive’s
employment hereunder if a “Good Reason” exists. For purposes of this Agreement, “Good Reason” shall mean
the occurrence of any of the following circumstances without the Executive’s prior written consent: (a) a substantial and
material adverse change in the nature of Executive’s title, duties and/or responsibilities with the Company that represents
a demotion from his title, duties or responsibilities as in effect immediately prior to such change (such change, a “Demotion”);
(b) material breach of this Agreement by the Company; (c) a failure by the Company to make any payment to Executive when due,
unless the payment is not material and is being contested by the Company, in good faith; or (d) a liquidation, bankruptcy or receivership
of the Company. Notwithstanding the foregoing, no “Good Reason” shall be deemed to exist with respect to the Company’s
acts described in clauses (a), (b) or (c) above, unless Executive shall have given written notice to the Company within a period
not to exceed ten (10) calendar days of the Executive’s knowledge of the initial existence of the occurrence, specifying
the “Good Reason” with reasonable particularity and, within thirty (30) calendar days after such notice, the Company
shall not have cured or eliminated the problem or thing giving rise to such “Good Reason”; provided, however, that
no more than two cure periods shall be provided during any twelve-month period of a breach of clauses (a), (b) or (c) above. Upon
such termination, the Company shall pay to Executive the amount set forth in Section 4.6(c).


 


4.5           By
Company Without “Cause”. The Company may terminate Executive’s employment hereunder without “Cause”
by giving at least thirty (30) days written notice to Executive. Upon such termination, the Company shall pay to Executive the
amount set forth in Section 4.6(c).


 


4.6           Compensation
Upon Termination. In the event that Executive’s employment hereunder is terminated, the Company shall pay to Executive
the following compensation:


 




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(a)          Payment
Upon Death or Disability. In the event that Executive’s employment is terminated pursuant to Sections 4.1 or 4.2, the
Company shall no longer be under any obligation to Executive or his legal representatives pursuant to this Agreement except for:
(i) the Base Salary due Executive pursuant to Section 3.1 hereof through the date of termination; (ii) all valid expense reimbursements;
(iii) all accrued but unused vacation pay; and (iv) all earned and previously approved but unpaid Bonuses for any year prior to
the year of termination.


 


(b)          Payment
Upon Termination by the Company For “Cause”. In the event that the Company terminates Executive’s employment
hereunder pursuant to Section 4.3, the Company shall have no further obligations to the Executive hereunder, except for: (i) the
Base Salary due Executive pursuant to Section 3.1 hereof through the date of termination; (ii) all valid expense reimbursements;
and (iii) all unused vacation pay through the date of termination required by law to be paid.


 


(c)          Payment
Upon Termination by Company Without Cause or by Executive for Good Reason. In the event that Executive’s employment
is terminated pursuant to Sections 4.4 or 4.5, the Company shall have no further obligations to Executive hereunder except for:
(i) six (6) months of Base Salary due Executive pursuant to Section 3.1; (ii) all valid expense reimbursements; and (iii) all
accrued but unused vacation pay (pro rata for the period to the date of termination).


 


(d)          Executive
shall have no duty to mitigate awards paid or payable to him pursuant to this Agreement, and any compensation paid or payable
to Executive from sources other than the Company will not offset or terminate the Company’s obligation to pay to Executive
the full amounts pursuant to this Agreement.


 


5.          Protection
of Confidential Information; Non-Competition.


 


5.1           Acknowledgment.
Executive acknowledges that:


 


(a)          As
a result of his employment with the Company, Executive has obtained and will obtain secret and confidential information concerning
the business of the Company and its subsidiaries (referred to collectively in this Section 5 as the “Company”), including,
without limitation, financial information, proprietary rights, trade secrets and “know-how,” customers and sources
(“Confidential Information”).


 




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(b)          The
Company will suffer substantial damage which will be difficult to compute if, during the period of his employment with the Company
or thereafter, Executive should enter a business competitive with the Company or divulge Confidential Information.


 


(c)          The
provisions of this Agreement are reasonable and necessary for the protection of the business of the Company.


 


5.2           Confidentiality.
Executive agrees that he will not at any time, during the Term or thereafter, divulge to any person or entity any Confidential
Information obtained or learned by him as a result of his employment with the Company, except (i) in the course of performing
his duties hereunder, (ii) with the Company’s prior written consent; (iii) to the extent that any such information is in
the public domain other than as a result of Executive’s breach of any of his obligations hereunder; or (iv) where required
to be disclosed by court order, subpoena or other government process. If Executive shall be required to make disclosure pursuant
to the provisions of clause (iv) of the preceding sentence, Executive promptly, but in no event more than 48 hours after learning
of such subpoena, court order, or other government process, shall notify, confirmed by mail, the Company and, at the Company’s
expense, Executive shall: (a) take all reasonably necessary and lawful steps required by the Company to defend against the enforcement
of such subpoena, court order or other government process, and (b) permit the Company to intervene and participate with counsel
of its choice in any proceeding relating to the enforcement thereof.


 


5.3           Documents.
Upon termination of his employment with the Company, Executive will promptly deliver to the Company all memoranda, notes, records,
reports, manuals, drawings, blueprints and other documents (and all copies thereof) relating to the business of the Company and
all property associated therewith, which he may then possess or have under his control; provided, however, that Executive shall
be entitled to retain copies of such documents reasonably necessary to document his financial relationship with the Company.


 




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5.4           Non-Competition.
For and in consideration of the transactions contemplated by the Merger Agreement and the consideration the Executive will receive
as a result thereby, Executive hereby agrees as follows:


 


(a)          Executive
shall not during the period of his employment by or with the Company and for the Applicable Period (defined below), for himself
or on behalf of, or in conjunction with, any other person, persons, company, partnership, limited liability company, corporation
or business of whatever nature:


 


(i)          engage,
as an officer, director, manager, member, shareholder, owner, partner, joint venturer, trustee, or in a managerial capacity, whether
as an employee, independent contractor, agent, consultant or advisor, or as a sales representative, in an entity that designs,
researches, develops, markets, sells or licenses products or services that are substantially similar to or competitive with the
business of the Company that is located within seventy-five (75) miles of any market in which Company currently operates or has
plans to do business in at the time of termination;


 


(ii)         call
upon any person who is at that time, or within the preceding twenty-four (24) months has been, an employee of the Company, for
the purpose, or with the intent, of enticing such employee away from, or out of, the employ of the Company or for the purpose
of hiring such person for Executive or any other person or entity, unless any such person was terminated by the Company more than
six (6) months prior thereto;


 


(iii)        call
upon any person who, or entity that is then or that has been within one year prior to that time, a customer of the Company, for
the purpose of soliciting or selling products or services in competition with the Company; or


 


(iv)        call
upon any prospective acquisition or investment candidate, on the Executive’s own behalf or on behalf of any other person
or entity, which candidate was known by Executive to have, within the previous twenty-four (24) months, been called upon by the
Company or for which the Company made an acquisition or investment analysis or contemplated a joint marketing or joint venture
arrangement with, for the purpose of acquiring or investing or enticing such entity into a joint marketing or joint venture arrangement.


 




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For purposes
of this Section 5:


 


		·	the
                                         term “Company” shall be deemed to include the Company, Cullen Ag, LIBB and
                                         any of its respective subsidiaries; and



 


		·	the
                                         term “Applicable Period” shall mean two (2) years from the consummation of
                                         the Merger Agreement.



 


5.5           Injunctive
Relief. If Executive commits a breach, or threatens to commit a breach, of any of the provisions of Section 5.2 or 5.4, the
Company shall have the right and remedy to seek to have the provisions of this Agreement specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed by Executive that the services being rendered hereunder to the Company are
of a special, unique and extraordinary character and that any such breach or threatened breach will cause irreparable injury to
the Company and that money damages will not provide an adequate remedy to the Company. The rights and remedies enumerated in this
Section 5.5 shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or equity.
In connection with any legal action or proceeding arising out of or relating to this Agreement, the prevailing party in such action
or proceeding shall be entitled to be reimbursed by the other party for the reasonable attorneys’ fees and costs incurred
by the prevailing party.


 


5.6           Modification.
If any provision of Section 5.2 or 5.4 is held to be unenforceable because of the scope, duration or area of its applicability,
the tribunal making such determination shall have the power to modify such scope, duration, or area, or all of them, and such
provision or provisions shall then be applicable in such modified form.


 


5.7           Survival.
The provisions of this Section 5 shall survive the termination of this Agreement for any reason.


 


6.          Miscellaneous
Provisions.


 


6.1           Notices.
All notices provided for in this Agreement shall be in writing, and shall be deemed to have been duly given when (i) delivered
personally to the party to receive the same, or (ii) when mailed first class postage prepaid, by certified mail, return receipt
requested, addressed to the party to receive the same at his or its address set forth below, or such other address as the party
to receive the same shall have specified by written notice given in the manner provided for in this Section 6.1. All notices shall
be deemed to have been given as of the date of personal delivery or mailing thereof.


 




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If
to Executive:


 


Thomas
Philip


 


If
to the Company:


 


Long
Island Ice Tea Corp.


116
Charlotte Avenue


Hicksville,
New York 11801


 


With
a copy in either case to:


 


6.2           Entire
Agreement; Waiver. This Agreement sets forth the entire agreement of the parties relating to the employment of Executive and
is intended to supersede all prior negotiations, understandings and agreements. No provisions of this Agreement may be waived
or changed except by a writing by the party against whom such waiver or change is sought to be enforced. The failure of any party
to require performance of any provision hereof or thereof shall in no manner affect the right at a later time to enforce such
provision.


 


6.3           Governing
Law. All questions with respect to the construction of this Agreement, and the rights and obligations of the parties hereunder,
shall be determined in accordance with the law of the State of New York applicable to agreements made and to be performed entirely
in New York.


 


6.4           Binding
Effect; Nonassignability. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the
Company. This Agreement shall not be assignable by Executive, but shall inure to the benefit of and be binding upon Executive’s
heirs and legal representatives.


 




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6.5           Severability.
Should any provision of this Agreement become legally unenforceable, no other provision of this Agreement shall be affected, and
this Agreement shall continue as if the Agreement had been executed absent the unenforceable provision.


 


6.6           Section
409A. This Agreement is intended to comply with the provisions of Section 409A of the Internal Revenue Code (“Section
409A”). To the extent that any payments and/or benefits provided hereunder are not considered compliant with Section 409A,
the parties agree that the Company shall take all actions necessary to make such payments and/or benefits become compliant.


 




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IN
WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.


 


	 	LONG
    ISLAND ICED TEA CORP.
	 	 	 
	 	By:	                   
	 	Name:
	 	Title:
	 	 	 
	 	 
	 	PHILLIP
    THOMAS