EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of August 12, 1996, is between
INDEPENDENCE BREWING COMPANY, a Pennsylvania corporation (the "Company"), and
XXXXXX X. XXXXXX, XX. (the "Executive"). 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 currently
employs the Executive, and wishes to continue to employ the Executive, and the
Executive has agreed to continue 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 offices of President and Chief Executive Officer for the period (the
"Employment Period") specified in Section 5(a) hereof, 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 commensurate with the
authority and duties of such officers of the Company and such other reasonable
duties as may otherwise be assigned to him from time to time by the Board of
Directors of the Company (the "Board").
(b) Throughout the Employment Period, the Executive 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 which competes, conflicts or interferes
with the performance of his duties hereunder in any way, and (ii) accept such
additional office or offices to which he may be appointed by the Company,
provided that the performance of the duties of such office or offices shall
generally be consistent with the scope of the duties provided for in Section
2(a) hereof. The Executive acknowledges and agrees that the scope of the
Business and contemplated business of the Company includes, but is not limited
to, marketing of the Company's products through brew pubs, and the operation
and/or ownership of brew pubs,
that any and all such opportunities are owned by the Company and that the
Executive's duties shall include maximizing such opportunities for the benefit
of 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
Company. 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 Fifty Thousand Dollars ($50,000); provided that
upon the closing of a public offering of the shares of Common Stock of the
Company pursuant to a registration statement filed with the Securities and
Exchange Commission (other than a registration statement on Form S-4 or Form
S-8) (a "Public Offering"), the Salary shall thereupon be increased to the
amount of One Hundred Thousand Dollars ($100,000) per annum. 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; provided that annual
increases for each of the first two years after a Public Offering shall be of an
amount of not less than ten percent (10%) of the prior year's Salary. 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.
(b) Throughout the Employment Period, the Executive shall be entitled
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, dental, medical 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 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 that
number of shares of Common Stock of the Company pursuant to an Incentive Stock
Option Plan of the Company (the "Plan") equal to two and one-half percent (2.5%)
of the issued and outstanding shares of Common Stock of the Company as of the
date hereof (but not including shares of Common Stock issuable pursuant to any
warrants of the Company outstanding as of the date hereof or issuable pursuant
to that certain Letter of Intent between the Company and Winfield Capital Corp.
dated April 1, 1996), 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.
(d) If the Company purchases and maintains at any time during the term
of this Agreement one or more life insurance policies on the life of the
Executive, in addition to any policies purchased pursuant to Section 3(b)
hereof, in whatever amount or amounts which the Company deems desirable, the
Company shall be the beneficiary of said policy or policies and the Executive
shall cooperate with the Company and submit to such reasonable medical
examinations as are necessary to enable the Company to purchase and maintain in
full force and effect such additional insurance policy or policies.
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 of the date of such termination;
(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 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 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.
(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 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 date of this
Agreement and shall continue until the earlier of (i) the close of business on
the day immediately preceding the three (3) year anniversary of this Agreement
(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
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 two (2) years 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; and
(C) 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 six (6) month 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.
(ii) If the Executive's employment is terminated (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 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, 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.
13. Conveyance of Interest in Brew Pub. The Executive currently holds
approximately Twelve and One-Half Percent (12.5%) of the common stock, and the
right to purchase an additional Twenty Percent (20%) of the common stock
(collectively the "Brew Pub Stock") in a Florida brew pub known as the
"Independence Brew Pub (the "Pub"). Contemporaneous with the execution of this
Agreement, the Executive shall transfer, assign and convey all of his right,
title and interest in and to the Brew Pub Stock, shall execute such documents
and instruments as the Company shall request to fully reflect the transfer of
the Brew Pub Stock, and shall take all action necessary to cause the Pub to
record such transfer on its books and records and to recognize and acknowledge
the Company as a stockholder of the Pub. In full consideration for the transfer
of the Brew Pub Stock, the Company shall, upon the Pub recording the transfer of
the Brew Pub Stock on its books and records, reimburse the Executive for his
actual cash capital contributions made to the Pub in consideration for the Brew
Pub Stock and actual out-of-pocket expenses incurred by the Executive with
respect to his investigation of the Pub, provided that the Executive shall have
presented to the Company appropriate documentation (to the reasonable
satisfaction of the Company) with respect to such actual cash contributions, it
being understood by the parties that the amount of such contributions
approximates Ten Thousand Dollars ($10,000) in the aggregate.
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 X. Xxxxxx (SEAL)
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Xxxxxx X. Xxxxxx, Xx., President
/s/ Xxxxxx X. Xxxxxx. Jr.
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Xxxxxx X. Xxxxxx, Xx.
