EXHIBIT 10.44
EMPLOYMENT AGREEMENT
This agreement is entered into this 9th day of November, to be effective as
of the 1st day of July, 2006 between Xxxxx Xxxxxx ("Executive") and Pyramid
Breweries Inc., a Washington corporation (the "Company").
1. Employment. The Company agrees to employ Executive, and Executive
accepts employment, on the terms and conditions in this agreement.
2. Duties. Executive shall be employed in the capacity of President and
Chief Executive Officer of the Company. Executive shall perform the duties
customarily performed by a president and chief executive officer, including
having the primary responsibility for the strategic direction, operational
planning, and execution of all aspects of the Company's business. In addition,
Executive shall have such other executive and managerial powers and duties with
respect to the Company and its subsidiaries as may reasonably be assigned to him
by the Company's Board of Directors, consistent with his duties and
responsibilities as President and Chief Executive Officer. Executive shall
report directly to the Company's Board of Directors. Furthermore, he will be a
Director himself and be expected to perform the normal duties of a member of a
public company's board of directors. Executive shall perform his duties at the
Company's Seattle headquarters or other mutually agreed locations while on
business travel status. During the term of this agreement, Executive shall be
based in Seattle and Berkeley.
3. Intensity of Effort; Other Business. Executive shall devote his entire
working time, attention, and efforts to the Company's business and affairs,
shall faithfully and diligently serve the Company's interests and shall not
engage in any business or employment activity that is not on the Company's
behalf (whether or not pursued for gain or profit) except for (a) activities
approved in writing in advance by the Board and (b) passive investments that do
not involve Executive providing any advice or services to the businesses in
which the investments are made and (c) subject to approval by the Board, which
shall not unreasonably be withheld, service as a member of the board of
directors of one or more corporations not in competition with the Company or as
a member of the board of directors of any nonprofit corporation
4. Term. The term of this agreement is of indefinite duration. As stated in
paragraph 10 below, and subject to paragraph 12 below (Termination Payments),
this agreement and Executive's employment relationship may be terminated at any
time, with or without Cause (as defined below).
5. Compensation. Executive's compensation will be as follows:
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(a) Salary. The Company shall pay Executive a base salary in the gross
amount of $220,000 per annum (in addition to stock grants as provided below).
The base salary will be payable bi-weekly in arrears, by direct bank transfer
("Annual Base Pay"). Payday is the Friday following each two-week period.
Executive's performance and Annual Base Pay will be reviewed on or about January
1, 2007, and on or about January 1 each year thereafter. Executive's Annual Base
Pay is subject to change as determined in the sole discretion of the Board of
Directors Compensation Committee ("Compensation Committee").
(b) Employee Stock Purchase Plan. Executive shall be eligible for
participation in the Employee Stock Purchase Plan on the first day of
employment.
(c) Stock Awards. Subject to approval by the Company's Compensation
Committee, the Executive will be entitled to the following equity compensation
awards, all of which will be granted under the Company's 2004 Equity Incentive
Plan (the "Plan"):
(i) Base Award. Executive will be granted a stock award for
50,000 shares on January 1, 2007 pursuant to the terms and conditions of an
award agreement in substantially the form attached as Exhibit A to this
Agreement (the "Base Award Agreement"), and such award will be subject to the
Base Award Agreement, the Plan and this agreement. . Each annual Base Award will
be accompanied by a one-time payroll gross-up, payable to the Executive, equal
to the personal income taxes resulting from and due at the time of vesting of
the earned Performance Award, based on Pyramid's stock price and tax regulations
in force at the time of vesting. As more particularly set forth in the Base
Award Agreement, (A) these shares will be subject to forfeiture in the event
Executive's employment with the Company terminates under certain circumstances,
(B) such forfeiture restrictions will lapse (i.e., the shares will vest) in 20%
installments (each, an "Annual Installment") beginning on January 1, 2008 and on
the next four anniversaries of that date; and (C) if Executive's employment is
terminated by the Company without Cause or by Executive for Good Reason, or as a
result of Executive's death or Disability (all as defined below), the forfeiture
restrictions will lapse with respect to a prorated portion of the Annual
Installment for the year in which such termination occurs based on the date
Executive's employment is terminated;
(ii) Annual Performance Awards. Executive will be entitled to
receive the following equity compensation awards (each, a "Performance Award")
based on the Company's achievement of certain performance goals as follows:
(A) upon the filing of the Company's Annual Report on Form
10-K ("10-K") for the year ended December 31, 2006 (or, if the Company is no
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longer subject to the reporting requirements under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, upon the completion of the audit of
the Company's financial statements for 2006), 7,000 shares if the Company
achieves an increase in return on average net equity for the six months ending
December 31, 2006 adjusted for extraordinary one-time expenses consistent with
the administration of the annual Officer Incentive Compensation Plan bonus in
subsection (5d) below, of at least 100 basis points as compared to return on
average net equity for the six months ending December 31, 2005;
(B) upon the filing of the Company's 10-K for the year ended
December 31, 2007 (or, if the Company is no longer subject to the reporting
requirements under Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, upon the completion of the audit of the Company's financial
statements for 2007), 14,000 shares if the Company achieves an increase in
return on average net equity for the year ending December 31, 2007 adjusted for
extraordinary one-time expenses consistent with the administration of the annual
Officer Incentive Compensation Plan bonus in subsection (5d) below, of at least
200 basis points as compared to return on average net equity for the year ending
December 31, 2006;
(C) upon the filing of the Company's 10-K for the year ended
December 31, 2008 (or, if the Company is no longer subject to the reporting
requirements under Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, upon the completion of the audit of the Company's financial
statements for 2008), 14,000 shares if the Company achieves an increase in
return on average net equity for the year ending December 31, 2008, adjusted
for extraordinary one-time expenses consistent with the administration of the
annual Officer Incentive Compensation Plan bonus in subsection (5d) below of at
least 200 basis points as compared to return on average net equity for the year
ending December 31, 2007;
(D) upon the filing of the Company's 10-K for the year ended
December 31, 2009 (or, if the Company is no longer subject to the reporting
requirements under Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, upon the completion of the audit of the Company's financial
statements for 2009), 14,000 shares if the Company achieves an increase in
return on average net equity for the year ending December 31, 2009 adjusted for
extraordinary one-time expenses consistent with the administration of the annual
Officer Incentive Compensation Plan bonus in subsection (5d) below, of at least
200 basis points as compared to return on average net equity for the year ending
December 31, 2008;
(E) upon the filing of the Company's 10-K for the year ended
December 31, 2010 (or, if the Company is no longer subject to the reporting
requirements under Section 13 or 15(d) of the Securities Exchange Act of 1934,
as
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amended, upon the completion of the audit of the Company's financial statements
for 2010), 14,000 shares if the Company achieves an increase in return on
average net equity for the year ending December 31, 2010 adjusted for
extraordinary one-time expenses consistent with the administration of the annual
Officer Incentive Compensation Plan bonus in subsection (5d) below, of at least
200 basis points as compared to return on average net equity for the year ending
December 31, 2009; and
(F) upon the filing of the Company's Quarterly Report on
Form 10-Q ("10-Q") for the quarter ended June 30, 2011 (or, if the Company is no
longer subject to the reporting requirements under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, upon the completion of the
Company's financial statements for such quarter), 7,000 shares if the Company
achieves an increase in return on average net equity for the six months ending
June 30, 2011 adjusted for extraordinary one-time expenses consistent with the
administration of the annual Officer Incentive Compensation Plan bonus in
subsection (5d) below, of at least 200 basis points as compared to return on
average net equity for the six months ended June 30, 2010.
With respect to each Performance Award, the date on which the 10-K or 10-Q, as
applicable, is filed (or, if the Company is no longer subject to the reporting
requirements under Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended, the date on which the audit of the financial statements for the
related period is completed or, in the case of Section 5(c)(ii)(F), the
unaudited financial statements are completed) shall be referred to herein as the
"Performance Award Date".
Each Performance Award will be in the form of a stock award,
provided that Executive can elect instead to receive a Performance Award in the
form of stock units by delivering to the Company written notice to that effect
no later than the 10th business day prior to the Performance Award Date for that
award. . Each annual Performance Award, if earned, will be accompanied by a
one-time payroll gross-up, payable to the Executive, equal to the personal
income taxes resulting from and due at the time of vesting of the earned
Performance Award, based on Pyramid's stock price and tax regulations in force
at the time of vesting. Each Performance Award will be evidenced by an award
agreement in substantially the form attached hereto as Exhibit B (the
"Performance Award Agreement"), and will be subject to the terms and conditions
set forth in the Performance Award Agreement, the Plan and this agreement. For
purposes of this agreement, the "Vesting Commencement Date" for the Performance
Awards contemplated in Section 5(c)(ii)(A) - (F) above shall be January 1, 2007,
January 1, 2008, January 1, 2009, January 1, 2010, January 1, 2011 and July 1,
2011, respectively. As more particularly set forth in the Performance Award
Agreement or the Plan, (A) each Performance Award will be subject to a
forfeiture restriction that will lapse on the first anniversary of its Vesting
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Commencement Date, (B) the forfeiture restriction will lapse on an accelerated
basis under certain circumstances in the event of a Company Transaction or
Change in Control (both as defined in the Plan), (C) the forfeiture restriction
will lapse on a pro rata basis (based on the date Executive's employment
terminates) in the event of a termination of Executive's employment by the
Company without Cause (as defined below), by Executive for Good Reason (as
defined below) or as a result of Executive's death or Disability. In addition,
notwithstanding any contrary provisions of the Plan or any successor incentive
plan, no stock award or stock units that have vested under this agreement shall
be subject to forfeiture thereafter. If, during the period between the Vesting
Commencement Date applicable to a Performance Award and the Performance Award
Date applicable to such Performance Award, Executive's employment is terminated
by the Company without Cause or by Executive for Good Reason or Executive's
employment terminates as a result of his death or Disability a Company
Transaction or Change in Control, Executive will be entitled to receive a pro
rata portion (based on the date Executive's employment terminates) of such
Performance Award as of the applicable Performance Award Date notwithstanding
that Executive is no longer employed by the Company, and such pro rata portion
of such Performance Award will not be subject to any forfeiture restrictions.
(d) Incentive Compensation Bonuses. Executive shall be eligible for an
annual bonus opportunity based on the performance of the Company, in accordance
with the Officer Incentive Compensation Plan then in effect. The current
Alternative Incentive Compensation Plan hurdle rate will be reset to $2.49 per
share.
(e) Car Allowance. Executive shall receive a car allowance of $575 per
month in addition to reimbursement for gasoline purchased by Executive for
business use.
6. Benefit Plans. Executive (and qualifying immediate family members where
applicable) shall be eligible to participate in the Company's Employee Benefit
Package offered generally to employees, which is subject to change and currently
includes health insurance through Regence Blue Shield, Flexible Spending
Accounts, life and AD&D insurance, sixty percent (60%) Company-payment of vision
and dental, health insurance continuation, sick leave, paid vacation, holidays,
and 401(k). The exact terms and conditions of the Company's benefits, including
eligibility, are governed by the benefit plans, not this agreement or any
summary provided to Executive. However, the eligibility period for the Regence
Blue Shield, life insurance and AD&D insurance, Flexible Spending, and the
company sponsored vision and dental reimbursement program will be waived per
this agreement.
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7. Vacation and Sick Leave. Executive shall earn 40 hours of paid vacation
each quarter of service, which can be used as earned. Executive can accumulate a
maximum of 160 hours of unused vacation. He shall also earn 40 hours of paid
sick leave per year of service, and can accumulate a maximum of 160 hours. Upon
termination of employment for any reason, Executive shall be paid for earned but
unused vacation. Unused sick leave is not paid upon termination of employment,
regardless of the reason.
8. Business Expenses. Executive is authorized to incur reasonable travel
and entertainment expenses to promote the Company's business. The Company shall
reimburse Executive for those expenses. Executive shall provide to Company the
itemized expense account information that the Company reasonably requests. This
will also include reasonable commuting expenses for commuting between California
and Washington.
9. Indemnification. The Company shall indemnify and hold Executive
harmless, in accordance with the bylaws of the Company and any applicable
directors and officers (D&O) insurance policy, to the full extent permitted by
applicable law, with respect to claims made or threatened by reason of his
service as a director, officer, employee or agent of the corporation.
10. Termination. Executive's employment may be terminated as follows, in
which event this agreement and Executive's compensation and benefits shall
terminate except as otherwise provided below:
(a) Without Cause or Good Reason. Either party may terminate
Executive's employment at any time by giving written notice of termination to
the other, without the necessity of Cause, in the case of the Company-initiated
termination, provided that written notice is provided to the Executive at least
14 days before such termination is effective, or Good Reason (as defined below),
in the case of Executive-initiated termination. For purposes of this agreement,
"Good Reason" means a breach by the Company of a material obligation to the
Executive under this agreement, any Stock Agreement, or any other material
agreement with the Executive relating to Executive's employment including but
not limited to any diminution in Executive's title or Annual Base Pay or
material diminution of his duties, as provided in Paragraph 2, above, or
benefits, as provided in Paragraphs 6 above, that is not cured within fourteen
(14) days after written notice of such breach is received by the Company.
(b) By the Company for Cause. The Company may terminate Executive's
employment for Cause (as defined below) by giving written notice of such
termination. Any termination of Executive's employment for Cause must be
approved
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by a majority of the Board other than Executive. Executive must be given notice
of the meeting at which his termination is to be considered concurrently with
notice to the Board, and an opportunity to address the Board. For purposes of
this agreement, "Cause" means dishonesty, fraud, serious or willful misconduct,
unauthorized use or disclosure of confidential information or trade secrets,
intoxication while at work, or conduct prohibited by law (except minor
violations).
(c) Notice of Resignation. Executive shall give two (2) months'
advance written notice of resignation, provided that if Executive resigns for
Good Reason, the notice period shall be 14 days.
(d) Death. Executive's employment shall terminate automatically upon
Executive's death.
(e) Permanent Disability. Termination of the Executive's employment if
Executive becomes permanently disabled shall be deemed "for Cause." For purposes
of this agreement Executive will be considered "permanently disabled"
("Disability") if, for a continuous period of twenty-four (24) weeks or more,
Executive has been unable to perform the essential functions of the job because
one or more mental or physical illnesses and/or disabilities, provided that the
Company may grant Executive unpaid leave or other accommodation if and to the
extent that, in the Company's judgment, doing so is required by law. A
determination of Disability shall be made by a physician satisfactory to both
the Executive and the Company, provided that if the Executive and the Company do
not agree on a physician, the Executive and the Company shall each select a
physician who together shall select a third physician whose determination as to
Disability shall be binding on all parties.
(f) Resignation from Board. In the event that Executive's employment
with the Company terminates for any reason, Executive agrees to immediately
resign from the Board (unless the Board requests that Executive continue to
serve as a member of the Board).
11. Golden Parachute Limitation.
(a) Notwithstanding any other provision of this agreement, if it is
determined that any portion of the termination payments set forth in Section 12
or any other payment or benefit that is required to be paid or provided to or
for the benefit of the Executive under this agreement, or under any other plan,
agreement with other arrangement with the Company, any person whose actions
result in a change described in Section 280G(b)(2)(A)(i) of the Internal Revenue
Code of 1986, as amended (the "Code"), or any person affiliated with the Company
or such person (each a "Payment" and, collectively, "Total Payments"), would
constitute an "excess parachute payment," within the meaning of Section 280G of
the Code that is subject
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to the tax imposed by Section 4999 of the Code or similar or successor provision
(the "Excise Tax") if so paid or provided, then the Total Payments to be made to
or for the benefit of the Executive shall be reduced such that the aggregate
present value of the Total Payments shall be one dollar ($1.00) less than the
maximum amount that the Executive may receive without becoming subject to the
Excise Tax (the "Reduction"); provided that the Reduction shall not apply if the
after-tax value to the Executive of the Total Payments prior to the Reduction is
greater than the after-tax value to the Executive if Total Payments are
determined taking into account the Reduction.
(b) Within forty (40) days following delivery of the notice of
termination or notice by the Company to the Executive of its belief that there
is a Payment that may be treated as an excess parachute payment, the Company, at
its expense, shall obtain the opinion (which need not be unqualified) of tax
counsel ("Tax Counsel") selected by the Company and reasonably acceptable to
Executive, which opinion sets forth (i) the amount of the Executive's base
amount, (ii) the amount and the aggregate present value of Total Payments, (iii)
the aggregate amount of excess parachute payments determined without regard to
the Reduction, (iv) the after-tax value of the Total Payments if the Reduction
did not apply, and (v) the after-tax value of the Total Payments taking into
account the Reduction. For purposes of making its calculations and
determinations under this Section 11(b), Tax Counsel may make reasonable, good
faith assumptions and approximations concerning the application of Sections 280G
and 4999 of the Code. The Company and Executive shall furnish Tax Counsel with
such information and documents as Tax Counsel may reasonably request to assist
Tax Counsel in making calculations and determinations under this Section 11(b).
(c) For purposes of determining the after-tax value of Total Payments,
(i) there shall be taken into account any Excise Tax, (ii) Executive shall be
deemed to pay all applicable federal income taxes at the highest rate of federal
income taxation applicable to individuals that is in effect for the calendar
year in which the Total Payments are to be made and the highest rate or rates of
all applicable state and local income taxes in the state and locality of the
Executive's domicile for state and local income tax purposes for the taxable
year in which the Total Payments will be made, provided that the state and local
income tax rate shall be determined assuming that such taxes are fully
deductible for federal income tax purposes, and (iii) the Executive shall be
deemed to pay applicable federal employment taxes at the applicable rate under
Section 3101(b) of the Code. The opinion of Tax Counsel shall be dated as of the
date of the Executive's termination and addressed to the Company and the
Executive and shall be binding upon the Company and the Executive. If such
opinion determines that there would be an excess parachute payment under Section
280G of the Code and that the after-tax value of the Total Payments taking into
account the Reduction is greater than the after-tax value of the Total Payments
if the
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Reduction did not apply, then the payments hereunder or any other payment or
benefit determined by such counsel to be includible in Total Payments shall be
reduced or eliminated as the Company shall reasonably determine.
12. Termination Payments.
(a) Termination without Cause or Good Reason.
(i) If the Company terminates Executive's employment when neither
Cause nor Disability exists, or if, having given 14 days advance written notice
of resignation, Executive terminates his employment for Good Reason, the Company
shall pay Executive, as liquidated damages and in lieu of all other remedies to
which Executive might be entitled arising out of the termination, termination
payments equal to six month's Annual Base Pay, plus any incentive compensation
bonuses under Section 5(c) for which Executive is eligible under the terms of
the applicable plan at that time, and the Company shall also continue to
provide, at the Company's cost, the Company's medical benefits to employee and
qualifying family members for six months. Such liquidated damages shall be paid
only if Executive executes a full and final general release of all claims
against the Company (including the Company's officers, directors, agents,
employees and assigns) arising out of Executive's employment relationship with
the Company or its termination, and Executive shall have no duty to mitigate his
losses in order to receive such liquidated damages. Termination resulting from
expiration of this agreement or, in connection with a sale or merger or Company
Transaction, resulting from failure of the Company to assign this agreement to a
successor that accepts the Company's duties hereunder, shall be a termination
without Cause for purposes of these termination payment provisions.
(ii) In addition, if the Company terminates Executive's
employment when neither Cause nor Disability exists, but the Company gives
Executive less than the fourteen (14) days' advance written notice, termination
payments equal to the additional Annual Base Pay Executive would have received
if the Company had given Executive fourteen (14) days' advance written notice of
termination.
(iii) Termination payments shall be paid out at Executive's
normal payroll rate on regular payroll days subject to normal payroll
deductions, commencing first with the termination payments called for by subpart
(ii), if any, followed by the termination payments called for by subpart (i).
Any reimbursable expenses incurred prior to termination will be paid immediately
upon termination.
(b) All Other Terminations. In all other cases of termination
(including termination of Executive's employment by the Company for Cause or
Executive's resignation of employment without Good Reason), except as provided
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above with respect to death and Disability under the appropriate paragraphs,
Executive's compensation and benefits shall terminate on the date the employment
ends and Executive shall not be entitled to any termination payments or damages.
13. Confidentiality/Unfair Competition. Executive agrees that the Company
has many substantial, legitimate business interests that can be protected only
by Executive agreeing not to compete with the Company unfairly. These interests
include, without limitation, the Company's contacts and relationships with its
supply sources, the Company's reputation and goodwill in the industry, and the
Company's rights in its confidential information. Executive agrees that
information not generally known to the public to which Executive has been or
will be exposed as a result of Executive's employment by the Company is
confidential information that belongs to the Company. This includes information
developed by Executive, alone or with others, or entrusted to the Company by its
supply sources, customers or others. The Company's confidential information
includes, without limitation, information relating to the Company's trade
secrets, know-how, procedures, pricing, products, services, purchasing,
accounting, marketing, sales, supply sources, employees, and customers and
active prospects and their related needs. Executive will hold the Company's
confidential information in strict confidence and will not disclose or use it
except as authorized by the Company and for the Company's benefit. Executive
will not, apart from good faith competition, interfere with the Company's
relationships with its clients, employees, vendors, bankers or others. During
his employment with the Company, Executive will not directly or indirectly, in
any capacity (such as a business principal, consultant, contractor or employee),
engage or participate in any business that is in competition in any manner
whatsoever with the business of the Company, nor for three (3) months following
his termination for any reason, take a position in any capacity with a domestic
xxxxxx producing less than two million barrels a year.
14. Possession of Materials. Executive agrees that upon conclusion of
employment or request by the Company, Executive shall turn over to the Company
all documents, files, office supplies and any other material or work product in
Executive's possession or control that were created pursuant to or derived from
Executive's services for the Company.
15. Nonraiding of Employees. Executive recognizes that the Company's
workforce is a vital part of its business. Therefore, Executive agrees that for
twelve (12) months after Executive's employment with the Company ends,
regardless of the reason it ends, Executive will not solicit, directly or
indirectly, any employee to leave his or her employment with the Company. For
purposes of this agreement, the phrase "shall not solicit, directly or
indirectly," includes, without limitation, that Executive (a) shall not identify
any of the Company employees to any third party as potential
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candidates for employment, such as by disclosing the names, backgrounds and
qualifications of any the Company employees; (b) shall not personally or through
any other person approach, recruit or otherwise solicit employees of the Company
to work for any other employer; and (c) shall not participate in any
pre-employment interviews with any person who was employed by the Company while
Executive was employed or retained by the Company.
16. Dispute Resolution. The Company and Executive agree to resolve all
disputes arising out of their employment relationship by the following alternate
dispute resolution process: (a) the Company and Executive agree to seek a fair
and prompt negotiated resolution; but if this is not successful, (b) all
disputes shall be resolved by binding arbitration; provided that during this
process, (c) at the request of either party, not made later than seventy-five
(75) days after the initial arbitration demand, the parties agree to attempt to
resolve any dispute by non-binding third-party intervention including either
mediation or evaluation or both (but without delaying the arbitration hearing
date). By entering into this contract, both parties give up their right to have
the dispute decided in court by a judge or jury. The provisions of the
Washington arbitration statute, Chapter 7.04 RCW, are incorporated herein to the
extent not inconsistent with the other terms of this agreement.
(a) Binding Arbitration. Any controversy or claim arising out of or
connected with Executive's employment at the Company, including but not limited
to claims for compensation or severance and claims of wrongful termination, age,
sex, racial or other discrimination, or civil rights violations shall be
determined by arbitration commenced in accordance with RCW 7.04.060 by a single
arbitrator (as opposed to a majority of three arbitrators). The location of the
arbitration shall be Seattle, Washington, or such other city to which the
parties may agree. If the Company and Executive cannot agree on the arbitrator,
then the arbitrator shall be selected by the administrator of the American
Arbitration Association (AAA) office nearest the city where the arbitration is
to be conducted. The arbitrator shall be an attorney with at least 15 years'
experience in commercial law or judicial arbitration experience. All statutes of
limitations, which would otherwise be applicable, shall apply to any arbitration
proceeding hereunder. Any issue about whether a controversy or claim is covered
by this agreement shall be determined by the arbitrator.
(b) Procedures. The arbitration shall be conducted in accordance with
this agreement using as appropriate the AAA Employment Dispute Resolution Rules
in effect on the date hereof. There shall be no discovery or dispositive motion
practice (such as motions for summary judgment or to dismiss or the like) except
that the arbitrator shall authorize such discovery as may be shown to be
necessary to ensure a fair hearing. The arbitrator shall not be bound by the
rules of evidence or of
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civil procedure, but rather may consider such writings and oral presentations as
reasonable business people would use in the conduct of their day-to-day affairs,
and may require both parties to submit some or all of their respective cases by
written declaration or such other manner of presentation as the arbitrator may
determine to be appropriate.
(c) Hearing; Law; Appeal Limited. The arbitrator's written decision
shall be made not later than fourteen (14) calendar days after the hearing. The
parties agree that they have included these time limits in order to expedite the
proceeding, but they are not jurisdictional, and the arbitrator may for good
cause allow reasonable extensions or delays, which shall not affect the validity
of the award. The written decision shall contain a brief statement of the
claim(s) determined and the award made on each claim. In making the decision and
award the arbitrator(s) shall apply applicable substantive law. Absent fraud,
collusion or willful misconduct by the arbitrator or any other ground provided
by Washington law, the award shall be final and judgment may be entered in any
court having jurisdiction thereof. The arbitrator may award injunctive relief or
any other remedy available from a judge, including the joinder of parties or
consolidation of this arbitration with any other involving common issues of law
or fact or which may promote judicial economy, and may award attorneys' fees and
costs to the prevailing party.
(d) Injunctive Relief. In the case of a breach of any of Executive's
obligations to the Company, the Company may request a court of competent
jurisdiction to issue such temporary or interim relief (including temporary
restraining orders and preliminary injunctions as may be appropriate, either
before arbitration is commenced or pending the outcome of arbitration. No such
request shall be a waiver of the right or obligation to submit any claim or
controversy to arbitration, and any such temporary or interim relief shall
terminate if the Company fails to proceed with an arbitration within 120 days of
the entry of such order Any issues of law or fact, which arise in connection
with such request, shall, at the Company's election, be determined by
arbitration in accordance with subparagraph (a) through (c) above.
17. Venue and Jurisdiction. Venue and jurisdiction of any lawsuit involving
this agreement or Executive's employment shall exist exclusively in state and
federal courts in King County, Washington, unless injunctive relief is sought by
the Company and, in the Company's judgment, that relief might not be effective
unless obtained in some other venue. The provisions of this Section are subject
to and do not supersede the dispute resolution provisions described above.
18. Governing Law. This agreement shall be governed by the internal laws of
the state of Washington without giving effect to provisions thereof related to
choice of laws or conflict of laws.
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19. Saving Provision. If any part of this agreement is held to be
unenforceable, it shall not affect any other part. If any part of this agreement
is held to be unenforceable as written, it shall be enforced to the maximum
extent allowed by applicable law. The confidentiality, possession of materials,
non-competition and nonraiding provisions of this agreement shall survive after
Executive's employment by the Company ends, regardless of the reason it ends,
and shall be enforceable regardless of any claim Executive may have against the
Company.
20. Waiver. No waiver of any provision of this agreement shall be valid
unless in writing, signed by the party against whom the waiver is sought to be
enforced. The waiver of any breach of this agreement or failure to enforce any
provision of this agreement shall not waive any later breach.
21. Assignment; Successors. The Company may assign its rights and delegate
its duties under this agreement. Executive may not assign his or her rights or
delegate his or her duties under this agreement, but all payments and benefits
to which Executive is entitled under this agreement shall be payable on his
death to his personal representatives heirs, successors and assigns.
22. Tax Withholding. The Company shall be entitled to withhold from any
amounts payable under this agreement any tax (including any Excise Tax) that may
be required to be withheld pursuant to any applicable law or regulation, as
determined by the Company or Tax Counsel.
23. Binding Effect. This agreement is binding upon the parties and their
personal representatives, heirs, successors and assigns.
24. Counterparts. This agreement may be executed in any number of
counterparts, each of which shall be an original and all of which, taken
together, shall constitute a single agreement.
25. Complete Agreement. This agreement, together with the Stock Agreement,
is the final and complete expression of the parties' agreement relating to
Executive's employment. Only a writing signed by both parties may amend this
agreement; it may not be amended orally or by course of dealing. The parties are
not entering into this agreement relying on anything not set out in this
agreement. In the event of a conflict between this agreement and the Stock
Agreement or any Equity Incentive Plan, the terms of this agreement shall
govern. This agreement shall control over any contrary policies or procedures of
the Company, whether in effect now or adopted later.
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DATED as of the date first written above.
EXECUTIVE:
/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
COMPANY:
PYRAMID BREWERIES INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman of the Board
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EXHIBIT A
FORM OF STOCK AGREEMENT
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