Exhibit 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of March 19,1997 is between
INDEPENDENCE BREWING COMPANY, a Pennsylvania corporation (the "Company"), and
XXXXX XXXXXXXX (the "Executive") effective as of the date of closing of the
initial public offering of the Company's common stock (the "Effective Date"). In
consideration of the mutual covenants and representations herein contained and
the mutual benefits derived herefrom, the parties, intending to be legally
bound, covenant and agree as follows:
1. Purpose. The Company is engaged in the business of manufacturing and
producing, for sale at wholesale and at retail, craft brewed ales, lagers and
seasonal beers as well as other beverages for consumption, including, but not
limited to, soft drinks (collectively, the "Business"). The Company wishes to
employ the Executive, and the Executive has agreed to be employed by the
Company, on the terms and conditions herein provided.
2. Full-Time Employment of Executive - Duties and Status.
(a) The Company hereby engages the Executive as a full-time executive to
hold the office of Chief Operating Officer for the period specified in Section
5(a) hereof (the "Employment Period"), and the Executive accepts such
employment, on the terms and conditions set forth in this Agreement. Throughout
the Employment Period, the Executive shall faithfully exercise such authority
and perform such executive duties as are set forth on Exhibit A attached hereto,
under the day-to-day supervision and general management of the President and
Chief Executive Officer of the Company.
(b) Throughout the Employment Period, the Executive shall have, inter
alia, primary responsibility for the oversight of the day-to-day operations and
administration of the Business, relating to those functions involved in the
operation of the Company's brewery facility, and shall (i) devote his full time
and efforts to the business of the Company and will not engage in consulting
work or any trade or business for his own account or for or on behalf of any
other person, firm or corporation, and (ii) accept such additional office or
offices to which he may be appointed by the Board, provided that the performance
of the duties of such office or offices shall generally be consistent with the
scope of the duties of a chief operating officer of a company similar to the
Company.
(c) Throughout the Employment Period, the Executive shall be entitled to
vacation, leave of absence, and leave for illness or temporary disability in
accordance with the policies of the Company in effect from time to time for its
executive officers. Vacation leave and leave of absence, if taken by the
Executive, shall be taken at such times as are reasonably acceptable to the
Board. Any leave on account of illness or temporary disability which is short of
Total Disability (as defined in Section 5(d)(ii) hereof) shall not constitute a
breach by the Executive of his agreements hereunder even though leave on account
of a Total
Disability may be deemed to result in a termination of the Employment Period
under the applicable provisions of this Agreement.
3. Compensation and General Benefits. As full compensation for his services
to the Company, the Executive shall, during the Employment Period, be
compensated as follows:
(a) The Company shall pay to the Executive a salary (the "Salary") based
upon a per annum rate of Seventy-Five Thousand Dollars ($75,000). The Salary
shall be payable in periodic equal installments not less frequently than
monthly, less such sums as may be required to be deducted or withheld under
applicable provisions of federal, state and local law, plus increases in the
Salary, if any, as may be approved from time to time by the Board. The Salary
shall be subject to normal periodic review by the Board at least annually for
increases based on the salary policies of the Company and the Executive's
contributions to the enterprise. The Company shall pay such annual bonus to the
Executive based upon such performance and other standards as the Board shall
from time to time determine. The Company shall reimburse the Executive for his
reasonable moving and relocation expenses in assuming his duties, provided
satisfactory written evidence of payment is submitted to the Company within
ninety (90) days following the Effective Date.
(b) Throughout the Employment Period, the Executive shall be entitled to
(i) family medical and dental insurance coverage; and (ii) to participate in
such pension, profit sharing, stock incentive, bonus or incentive compensation,
stock option, stock purchase, incentive, group and individual disability, group
and individual life, survivor income, sickness, accident and health benefits and
other plans of the Company or additional benefit programs, plans or arrangements
of the Company which may be established by the Company for its executive
officers, as and to the extent any such benefit programs, plans and arrangements
as set forth in (ii) above are or may from time to time be in effect, as
determined by the Company and pursuant to the terms hereof and as and to the
extent that the Company is eligible to participate in such plans under the terms
of such plans. In addition, the Company shall grant to the Executive options to
purchase 75,000 shares of Common Stock of the Company pursuant to the Incentive
Stock Option Plan of the Company (the "Plan") and subject to Paragraph 5(b),
such options shall vest in three (3) equal installments on each one year
anniversary date of this Agreement for three consecutive years, such grant to be
subject to the terms and conditions of the Plan and a Grant Agreement to be
executed by the Executive at the time of such grant.
(c) The Company shall reimburse the Executive on a monthly basis for all
reasonable and customary business expenses incurred by him in the performance of
his duties hereunder, provided that the Executive shall submit vouchers and
other supporting data to substantiate the amount of said expenses in accordance
with Company policy from time to time in effect.
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4. Non-Competition; Confidential Information; Public Statements.
(a) Non-Competition. The Executive and the Company recognize that due to
the Executive's engagement hereunder and the relationship of the Executive to
the Company, the Executive will have access to and will acquire, and may assist
in developing, confidential and proprietary information relating to the assets,
business and operations of the Company and its affiliates, including, without
limiting the generality of the foregoing, brew recipes and formulations, and
other information with respect to, among other things, the Company's present and
prospective techniques, systems, customers, accounts, sales and marketing
methods. The Executive acknowledges that such information has been and will
continue to be of central importance to the business of the Company and that
disclosure of it to, or its use by, others could cause substantial loss to the
Company. The Executive and the Company also recognize that an important part of
the Executive's duties may be to develop goodwill for the Company through his
personal contact with customers, agents and others having business relationships
with the Company, and that there is a danger that this goodwill, a proprietary
asset of the Company, may follow the Executive if and when his relationship with
the Company is terminated. The Executive accordingly agrees that, at all times
during the Employment Period and for two (2) years after termination of his
employment, the Executive shall not, in any capacity whatsoever, whether
directly or indirectly, on its own behalf, or on behalf of any other person,
firm, partnership, corporation, limited liability company, association or other
entity (collectively, "Person"):
(i) own, manage, invest, participate, engage or become employed in
any activity which comprises or is similar to the Business, including, but not
limited to, any business which constitutes a "microbrewery" as such term is
generally defined within the alcoholic beverage industry, anywhere in the States
of Pennsylvania, New Jersey, Delaware and such other States in which the Company
is "conducting business," as defined below, as of the date of such termination.
For purposes hereof, "conducting business" in a State shall mean that the
Company is engaged in the bona fide sales and marketing of its products in such
State for a period of six (6) months prior to the termination of Executive's
employment;
(ii) suggest to, induce or persuade any vendor or customer of the
Company to discontinue doing business, with, or to change the terms or
conditions of such relationship with the Company or otherwise disparage, disrupt
or disturb the relationship of the Company with such vendor or customer;
(iii) suggest to, induce or persuade any vendor or customer of the
Company to do business with any other Person which conducts a business
competitive with the Business;
(iv) suggest to, induce, solicit or persuade any employee or
consultant of the Company to leave the employ or engagement of the Company,
whether or not such inducement involves the Executive directly or indirectly
hiring or engaging or
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attempting to hire or engage such employee or consultant of the Company at the
time of such solicitation, whether on its own behalf or on behalf of any other
Person, whether or not the Executive has a direct or indirect remunerative or
other interest, as a proprietor, partner, coventurer, creditor, stockholder,
director, officer, employee, agent, representative or otherwise in such Person;
(v) participate in planning for and will not accept any employment
in or associate with any Person which then employs more than two former
employees of the Company who left the Company within the twelve months next
preceding his termination of employment with the Company; and
(vi) without limiting the term of his general obligation to honor
the Confidential Information (as defined below) so long as it remains
protectable, the Executive specifically agrees that he will not plan for, accept
employment from any Person, nor directly or indirectly engage in, any business
wherein the loyal and diligent performance of the duties and responsibilities of
such new employment or business will inherently call upon him to use, to
disclose or to base judgments upon Confidential Information of the Company or to
utilize the goodwill of the Company in making sales for a competitor of the
Company. The foregoing restrictive period is based upon the Executive's and the
Company's good faith belief that:
(A) the Company's investment of time and money in the
Executive, and the nature of the Company's business (which is maintained and
increased through the personal contact of employees such as the Executive with
customers and vendors and potential customers and vendors of the Company) has
rendered and will continue to render the Executive a unique asset to the
Company;
(B) the Company would be placed at a competitive disadvantage
for such period, due to the Executive's knowledge of Confidential Information
and other matters arising out of his employment with the Company; and
(C) the time required to rebuild the contacts and patronage
that the Executive will develop for the Company and to provide the necessary
training, exposure and education to his replacement would, for such a period,
place the Company at a competitive disadvantage.
(b) Confidential Information.
(i) At all times during the Employment Period and at all times
following termination thereof, the Executive shall keep confidential and not
disclose, directly or indirectly, and shall not use for the benefit of himself
or any other Person in connection with and furtherance of the Business and the
affairs of the Company, any Confidential Information relating to any aspect of
the business of the Company which is now known or which may become known to him.
For purposes of this Agreement, "Confidential Information" includes any trade
secrets or confidential or proprietary information whether
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in written, oral or other form which is unique, confidential or proprietary to
the Company, its affiliates, customers or other persons who disclose such
information to the Company in confidence, including, but not limited to, all
brew recipes and formulations.
(ii) The Company's failure to xxxx any Confidential Information as
confidential, proprietary or otherwise shall not affect its status as
Confidential Information hereunder.
(iii) The Executive acknowledges that all Confidential Information is
the property of the Company, its affiliates, customers or other persons who
disclose such information to the Company in confidence, and upon expiration of
the Employment Period or earlier termination of this Agreement or earlier at the
request of the Company, the Executive shall deliver to the Company all records,
notes, reference items, sketches, drawings, memoranda, records, and other
documents or materials, and all copies thereof (including but not limited to
such items stored by computer memory or other media) which relate to or in any
way incorporate the Confidential Information which are in the Executive's
possession or under his control.
(v) The Executive agrees that should third parties request to
submit Confidential Information to them pursuant to subpoena, summons, search
warrant or governmental order, the Executive will notify the Company immediately
upon receipt of such request, and thereafter deliver written notice of the
request to the Company no later than one business day after receipt. If the
Company objects to the release of the Confidential Information, the Executive
will permit counsel chosen by the Company to represent the Executive in order to
resist release of the Confidential Information. The Company will pay the
Executive for any expenses incurred by him in connection with resisting the
release of the Confidential Information.
(c) Ownership of Developed Information.
(i) The Executive covenants and agrees that all right, title and
interest in any Developed Information, as defined below, shall be and remain the
exclusive property of the Company. The Executive agrees to make prompt and
complete disclosure from time to time to the Company of all Developed
Information. The Executive agrees to immediately disclose to the Company all
Developed Information, and to assign to the Company any right, title and
interest which he may have in the Developed Information. The Executive agrees to
execute any instruments and to do all things reasonably requested by the
Company, both during and after the Employment Period, to vest the Company with
all ownership rights in the Developed Information. If any Developed Information
can be protected by copyrights (i) as to that Developed information which falls
within the definition of "work made for hire," as defined in 17 U.S.C. Section
101, the copyright to such Developed Information shall be owned solely,
completely and exclusively by the Company, and (ii) as to that Developed
Information which does not constitute "work made for hire," the copyright to
such Developed Information shall be deemed to be irrevocably assigned and
transferred completely and exclusively by the Executive.
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(ii) For purposes of this Agreement, "Developed Information" shall
mean all trade secrets, confidential or other proprietary information conceived,
developed, designed, devised or otherwise created, modified or improved by the
Executive or with respect to which he receives or receives access to, in whole
or in part, in connection with the performance of his services for the Company,
its customers or other persons who disclose such information to the Company in
confidence hereunder during the Employment Period or resulting from the
Executive's use of or access to the Company's facilities or resources, including
its Confidential Information. The "Developed Information" shall also include,
without limitation, the following materials and information, whether or not
reduced to writing, whether now or hereafter existing, whether or not patentable
or protectable by copyright:
(A) Marketing techniques and arrangements, purchasing
information, pricing policies, quoting procedures, information processes,
financial information, customer and prospect names and requirements, employee,
customer, supplier and distributor data and other materials or information
relating to the Business and/or the manner in which the Company does business;
(B) Discoveries, concepts, and ideas, including without
limitation, processes, formulas, techniques, know how, designs, drawings, and
specifications relating to the Business and/or the manner in which the Company
does business;
(C) Formulations for any products of the Company, including, but
not limited to, chemical compounds, recipes, and similar information;
(D) Any other materials or information related to the business
or activities of the Company which are not generally known to others engaged in
similar businesses or activities; and
(E) All ideas which are derived from or related to the
Executive's access to or knowledge of any of the materials or information
described in this Section 3(b)(ii).
(d) Acknowledgment. The Executive acknowledges that he has carefully read
and reviewed the restrictions set forth in Sections 4(a), (b) and (c) hereof,
and having done so he agrees that those restrictions, including but not limited
to the time period and geographical areas of restriction, are fair and
reasonable and are reasonably required for the protection of the legitimate
business interests of the Company.
(e) Invalidity, Etc. If any covenant, provision, or agreement contained
in any part of Section 4(a), (b) or (c) hereof is found by a court having
jurisdiction to be unreasonable in duration, geographic scope or character of
restrictions, the covenant, provision or agreement shall not be rendered
unenforceable thereby, but rather the duration, geographical scope or character
of restrictions of such covenant, provision or agreement shall
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be deemed reduced or modified with retroactive effect to render such covenant or
agreement reasonable and such covenant or agreement shall be enforced as
modified. If the court having jurisdiction will not review the covenant,
provision or agreement, the parties shall mutually agree to a revision having an
effect as close as permitted by law to the provision declared unenforceable. The
Executive agrees that if a court having jurisdiction determines, despite the
express intent of the Executive, that any portion of the restrictive covenants
contained in Section 4(a), (b) or (c) hereof are not enforceable, the remaining
provisions shall be valid and enforceable.
(f) Equitable Relief. The Executive recognizes and acknowledges that if
he breaches the provisions of Section 4(a), (b) or (c) hereof, damages to the
Company may be difficult if not impossible to ascertain, and because of the
immediate and irreparable damage and loss that may be caused to the Company for
which it would have no adequate remedy, it is therefore agreed that the Company,
in addition to and without limiting any other remedy or right it may have, shall
be entitled to have an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, and the Executive hereby
waives any and all defenses he may have on the grounds of lack of jurisdiction
or competence of a court to grant such an injunction or other equitable relief.
The existence of this right shall not preclude the applicability or exercise of
any other rights and remedies at law or in equity which the Company may have.
(g) Accounting for Profits. The Executive covenants and agrees that if
he violates any covenants or agreements under this Agreement, the Company shall
be entitled to an accounting and repayment of all profits, compensations,
royalties, commissions, remuneration or benefits which directly or indirectly
shall have been realized or may be realized relating to, growing out of or in
connection with any such violations; such remedy shall be in addition to and not
in limitation of any injunctive relief or other rights or remedies to which the
Company is or may be entitled at law or in equity or otherwise under this
Agreement.
(h) Public Statements. The Executive and the Company recognize that, due
to the relationship of the Executive and the Company and such relationship's
susceptibility to public comment which may be injurious to the Executive or the
Company, or both, it is necessary for the protection of both parties that
neither party make any disparaging public statements with respect to each other
concerning the terms of this Agreement and the arrangements made pursuant
hereto. The Executive and the Company accordingly agree that neither the
Executive nor the Company will make any disparaging public statements with
respect to each other or concerning the terms of this Agreement and the
arrangements made pursuant hereto at any time following the termination of this
Agreement without the prior written approval of the other party.
5. Employment Period.
(a) Duration. The Employment Period shall commence on the Effective Date
of this Agreement and shall continue until the earlier of (i) the close of
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business on the day immediately preceding the three (3) year anniversary of this
Agreement unless 90 days prior to the first or second anniversary of the date
hereof, the Company or the Executive notifies the other party hereto that this
Agreement shall terminate on the next anniversary of the date hereof (the
"Expiration Date"), or (ii) termination of this Agreement by the Company with
"cause" (as defined in Section 5(d)(i) hereof), or (iii) termination of this
Agreement by the Company for any reason other than cause, or (iv) the death or
Total Disability of the Executive.
(b) Payments Upon Termination.
(i) If the Executive's employment is terminated by the Company at
any time other than the Expiration Date and for any reason other than "cause"
(as defined in Section 5(c)(i) hereof), or due to the "total disability" (as
defined in Section 5(c)(ii) hereof), or death of the Executive, at any time
during the Employment Period, the Company shall pay to, or provide for, as the
case may be, the Executive, at the times otherwise provided in this Agreement as
if the Executive had not been terminated:
(A) his Salary as accrued through the date of termination and
for one (1) year thereafter (the "Severance Period"), which Salary shall be
payable, at the Company's option, as a lump sum or in equal monthly installments
during such period in accordance with existing payroll policies; and
(B) to the extent applicable, the sickness and health insurance
programs to which he would have been entitled under this Agreement if he had
remained in the employ of the Company for the Severance Period;
(C) all stock options granted to the Executive pursuant to
Paragraph 3(b) hereof which otherwise would vest during the Severance Period;
and
(D) such other benefits to which he is entitled under
applicable laws.
In addition, the Company shall, to the extent applicable, pay to, or
provide for, as the case may be, the employee benefits (including, but not
limited to, coverage under any disability, group life, and accident insurance
programs and split-dollar life insurance arrangements or programs) to which he
would have been entitled under this Agreement if he had remained in the employ
of the Company throughout such one (1) year period.
The Executive shall use his best efforts to discharge his legal
obligation to mitigate the amount of payments provided for in this Section 5(b)
by actively seeking employment, and the amount of any payment provided for in
this Section 5(b) shall be reduced by any compensation or remuneration earned as
the result of employment by another employer after the date of termination and
during the Severance Period.
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(ii) If the Executive's employment is terminated on the Termination
Date or (A) by the Company for "cause", or (B) upon the death of the Executive,
or (C) by the Executive for any reason, then the Company shall have no further
liability to the Executive, except for the Salary which has accrued through the
date of termination, which amounts shall be paid by the Company within thirty
(30) days of such termination.
(iii) Notwithstanding any other provision of this Section 5(b), if
the Executive violates any covenant, term or condition of this Agreement, the
Company shall be entitled, in addition to any other remedies it may have
hereunder or at law or in equity, to offset the amount of any payment otherwise
due to the Executive pursuant to this Section 5(b) against any loss or damage
incurred by the Company as a result of the Executive's violation of said
covenant, term or condition.
(c) Definitions. When used in this Agreement, the words "cause" and
"total disability" shall have the respective meanings set forth below:
(i) The term "cause" means: (A) the Executive's failure to perform
his employment duties hereunder after reasonable notice to the Executive by the
Company specifying such failure and providing the Executive with a reasonable
opportunity to cure such failure given the context of the circumstances, (B) the
Executive's breach of the covenants or agreements contained in Sections 4(a),
(b) or (c) hereof, or of any other material agreement or undertaking of the
Executive, (C) the Executive's commission of a felony or any crime involving
moral turpitude, fraud or misrepresentation, whether or not related to the
business or property of the Company, (D) any act of the Executive against the
Company intended to enrich the Executive in derogation of his duties to the
Company, (E) any willful or purposeful act or omission (or any act or omission
taken in bad faith) of the Executive having the effect of injuring the business
or business relationships of the Company, or (F) the Executive's breach of his
duty of loyalty to the Company.
(ii) The term "total disability" ("Total Disability") means total
disability as defined in the Company's group and individual disability plans, if
any. If the Company does not have in existence such plans, then Total Disability
shall mean:
(y) The inability to perform the duties required hereunder for
a continuous period of six (6) months during the Employment Period due to
"mental incompetence" or "physical disability" as hereinafter defined. The
Executive shall be considered to be mentally incompetent and/or physically
disabled: (A) if he is under a legal decree of incompetency (the date of such
decree being deemed the date on which such mental incompetence occurred for
purposes of this Section 5(c)); or (B) because of a "Medical Determination of
Mental and/or Physical Disability." A Medical Determination of Mental and/or
Physical Disability shall mean the written determination by: (1) the physician
regularly attending the Executive, and (2) a physician selected by the Company,
that because of a medically determinable mental and/or physical disability the
Executive is unable to perform each of the material duties of the Executive, and
such mental and/or physical disability is determined or reasonably expected to
last twelve (12) months or longer after the
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date of determination, based on medically available information. If the two
physicians do not agree, they shall jointly choose a third consulting physician
and the written opinion of the majority of these three (3) physicians shall be
conclusive as to such mental and/or physical disability and shall be binding on
the parties. The date of any written opinion which is conclusive as to the
mental and/or physical disability shall be deemed the date on which such mental
and/or physical disability commenced for purposes of this Section 5(c), if the
written opinion concludes that the Executive is mentally and/or physically
disabled. In conjunction with determining mental and/or physical disability for
purposes of this Agreement, the Executive consents to any such examinations
which are relevant to a determination of whether he is mentally and/or
physically disabled, and which is required by any two (2) of the aforesaid
physicians, and to furnish such medical information as may be reasonably
requested, and to waive any applicable physician patient privilege that may
arise because of such examination. All physicians selected hereunder shall be
Board-certified in the specialty most closely related to the nature of the
mental and/or physical disability alleged to exist.
(z) For purposes of determining whether the Executive is
mentally incompetent or physically disabled for the continuous six (6) month
period specified in this Section 5(c), such disability shall be deemed to
continue from the date of any legal decree of incompetency, or written opinion
which is conclusive as to the mental and/or physical disability, through the
date the legal decree expires or is otherwise revoked or removed, or the date on
which the mental and/or physical disability has ceased, as the case may be, as
set forth in a written opinion prepared by the physicians described in this
Section 5(c) pursuant to the procedures provided herein.
6. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to the Executive at the last address he has filed
in writing with the Company.
7. Binding Agreement; Assignment. This Agreement shall be effective as of
the date hereof and shall be binding upon and inure to the benefit of, the
parties and their respective heirs, successors, assigns, and personal
representatives, as the case may be. The Executive may not assign any rights or
duties under this Agreement. As used herein, the successors of the Company shall
include, but not be limited to, any successor by way of merger, consolidation,
sale of all or substantially all of the assets, or similar reorganization or
change in control.
8. Entire Agreement. This Agreement constitutes the entire understanding of
the Executive and the Company with respect to the subject matter hereof and
supersede any and all prior understandings written or oral. This Agreement may
not be changed, modified or discharged orally, but only by an instrument in
writing signed by the parties.
9. Enforceability. This Agreement has been duly authorized, executed and
delivered and constitutes the valid and binding obligations of the parties
hereto,
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enforceable in accordance with its terms. The undertakings herein shall not be
construed as any limitation upon the remedies Company might, in the absence of
this Agreement, have at law or in equity for any wrongs of the Executive.
10. Governing Law. The validity and construction of this Agreement or any
of its provisions shall be determined under the internal laws of the
Commonwealth of Pennsylvania, without giving effect to its conflicts of laws
provisions, and without regard to its place of execution or its place of
performance. The parties irrevocably consent and agree to the exclusive
jurisdiction of the applicable Federal courts located in Pennsylvania and to
service of process for it and on its behalf by certified mail, for resolution of
all matters involving this Agreement or the transactions contemplated hereby.
Each party waives all rights to a trial by jury in any suit, action or
proceeding hereunder.
11. Severability. Except as provided in Section 4(e) hereof, if any one or
more of the terms or provisions of this Agreement shall for any reason be held
to be invalid, illegal or unenforceable, in whole or in part, or in any respect
or in the event that any one or more of the provisions of this Agreement
operated or would prospectively operate to invalidate this Agreement, then and
in either of those events, such provision or provisions only shall be deemed
null and void and shall not affect any other provision of this Agreement and the
remaining provisions of this Agreement shall remain operative and in full force
and effect and shall in no way be affected, prejudiced or disturbed thereby.
12. Amendments and Waivers. This Agreement may, to the maximum extent
permitted by applicable law, be amended by the parties, which amendment shall be
set forth in an instrument executed by all of the parties. Any term, provision
or condition of this Agreement (other than as prohibited by applicable law) may
be waived in writing at any time by the party which is entitled to the benefits
thereof.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as an instrument under seal on the date first above written.
INDEPENDENCE BREWING COMPANY
By: /s/ Xxxxxx Xxxxxx, Jr. (SEAL)
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/s/ Xxxxx Xxxxxxxx (SEAL)
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Xxxxx Xxxxxxxx
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