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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into effective the
1st day of August 2000, between Redhook Ale Brewery, Incorporated ("Employer")
and Xxxxx X. Xxxxxxxx ("Employee").
1. Explanatory Statement
a. Employer is engaged in the business of brewing, packaging,
marketing, and distributing alcoholic malt beverages and other beverages.
b. Employee has specialized expertise in the business of
brewing, packaging, marketing, and distributing alcoholic malt beverages, and
other beverages and is the Vice President - Brewing of Employer.
c. Employee accepts continued employment with Employer and
agrees to render the services for Employer on the terms and conditions set forth
in this Agreement.
2. Term of Employment. The term of this Agreement commences on August
1, 2000 and, subject to the further provisions of this Agreement, ends on July,
2005.
3. Employment. Employer employs Employee as Vice President - Brewing
and Employee agrees to render services for and on behalf of Employer under the
direction and supervision of the Chief Executive Officer ("CEO"). Employee shall
provide these services professionally and competently and shall devote
substantially all of Employee's business time to his services hereunder.
4. Compensation.
a. Employer will pay Employee as compensation for services
rendered under this Agreement as follows:
(i) a minimum base salary of One Hundred Thirty Five Thousand
Dollars ($135,000) per year in accordance with Employer's normal payroll
policies; and
(ii) bonuses to be determined and paid as set forth on
Schedule A attached hereto.
b. Employee's base salary and incentive compensation shall be
reviewed annually by the Compensation Committee. The Company intends to increase
Employee's base salary and target bonus annually, (and will not unreasonably
withhold increases) if the Company is meeting or exceeding targeted performance,
and Employee is meeting or exceeding agreed upon objectives. Employee agrees and
acknowledges that, in determining whether to increase base salary or incentive
compensation, the Compensation Committee is required to take into account the
financial condition of the Company, and its short and long term prospects.
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5. Vacations and Fringe Benefits.
a. Employer shall provide Employee four (4) weeks vacation,
retirement and other fringe benefits provided other similarly situated executive
employees of Employer.
b. Employer may furnish Employee an automobile, which may be
used by Employee for personal and business use and shall pay the ordinary and
reasonable expenses associated with operation of the automobile; however,
Employee shall account to Employer for the personal use of the automobile which
in turn shall be reported by Employer as income to Employee in accordance with
the regulations of the Internal Revenue Service. If at any time the rules
regarding personal use of business automobiles are changed by the Internal
Revenue Service, this Agreement shall be modified to assure compliance in a
manner that is as favorable to Employee as permitted by such rules. If Employer
does not provide an automobile for Employee, Employee will receive a reasonable
monthly car allowance in an amount to be determined by the Compensation
Committee.
6. Termination of Employment.
a. Employer may at its option terminate the employment of
Employee with no further obligation to compensate Employee through written
notice to Employee for any of the following reasons:
(1) Employee materially breaches any of the
provisions of this Agreement and fails to cure the breach within thirty
(30) days after receiving specific written notice of the breach; or
(2) Employee has engaged in conduct which in the
event he were to remain employed by Employer would substantially and
adversely impair the interests of Employer; or
(3) Employee repeatedly refuses to obey lawful
directions of Employer's Chief Executive Officer or Board of Directors.
b. Employer may at its option terminate the employment of
Employee through written notice to Employee for any other reason; however, in
the event of such termination:
(1) Employer shall pay employee all bonuses
calculated in accordance with the respective formula set-forth on
Schedule A, pro-rated up to and including the effective date of
termination;
(2) Employer shall continue to pay Employee for a
minimum of one (1) additional year the salary and benefits then in
effect on the date that notice of termination is received (such
compensation to be paid in accordance with standard payroll policies,
or in a lump sum within 30 days of termination, at Employees option),
provided, that if Employee has not obtained employment
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within such one (1) year period, Employee shall be entitled to the
health benefits provided other similarly situated executive employees
of Employer for an additional three (3) months, and at the conclusion
of the three month period, Employee shall be entitled to the COBRA
benefits provided other similarly situated executive employees for an
additional six (6) months;
(3) All outstanding unvested options/shares granted
to the Employee that are scheduled to vest within one (1) year from the
date that notice of termination is received under this Section 6.b.,
will continue to vest according to that schedule and all other unvested
options/shares will be canceled;
(4) If Employee violates Sections 7 or 8 of this
Agreement, Employer's obligation to continue to pay Employee's
compensation, as described in this Section 6.b., shall immediately
terminate, and the Employer will have no further obligation to Employee
pursuant to this Agreement, provided that the cessation of the
Employee's compensation under this Section 6.b.(4) shall not limit
Employer's rights to pursue other remedies at law or in equity.
c. Employee may at his option terminate his employment with
Employer under this Agreement through written notice to Employer for the
following reasons:
(1) Employer materially breaches any of the
provisions of this Agreement and fails to cure the breach within thirty
(30) days after receiving specific written notice of the breach and
action required to cure the breach;
(2) Employer is declared bankrupt or a receiver is
appointed;
(3) Employer liquidates or otherwise ceases business
operations.
d. In the event that Employee elects to terminate his
employment under Section 6.c.(1)
(1) Employer shall pay Employee all bonuses
calculated in accordance with the respective formula set-forth on
Schedule A, pro-rated up to and including the effective date of
termination
(2) Employer shall continue to pay Employee for one
(1) additional year the compensation, other than the annual performance
bonus, then in effect on the date that notice of termination is
received;
(3) All outstanding unvested options/shares granted
to the Employee that are scheduled to vest within one (1) year from the
date that notice of termination is received under this Section 6.d.,
will continue to vest according to that schedule and all other unvested
options/shares will be canceled;
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(4) If Employee materially violates Sections 7 or 8
of this Agreement, Employer's obligation to continue to pay Employee's
compensation, as described in this Section 6.d., shall immediately
terminate, and the Employer will have no further obligation to Employee
pursuant to this Agreement, provided that the cessation of Employee's
compensation under this Section 6.d.(4) shall not limit Employer's
rights to pursue other remedies at law or in equity.
e. Employee's termination of employment for any other reason
shall constitute a material breach of this Agreement, and shall terminate
Employer's obligations under this Agreement, without limiting Employer's rights
to pursue other remedies at law or in equity; and
f. Employee shall continue to be subject to the restrictions
in Sections 7 and 8 of this Agreement following termination of employment for
any reason.
7. Confidential Information and Goodwill.
a. Employee will acquire knowledge of Employer's confidential
information. Confidential information is information which is of a unique nature
relating to the Employer's business operations, internal structure, financial
affairs, programs, recipes, formulations, brewing methods, systems, procedures,
manuals, confidential reports, lists of customers and prospective customers,
sales and marketing methods, as well as the amount, nature and type of product,
equipment and methods used and preferred by Employer's customers and the prices
paid by Employer's customers or any other information which is confidential or
proprietary or otherwise not available to the general public. Disclosure of
material confidential information could cause substantial loss to the Employer.
Employee agrees that Employee will not for any purpose disclose any confidential
information obtained by Employee during employment with the Employer to any
person or entity.
b. Employee may have access to records of the Employer.
Records are all contracts, agreements, financial books, instruments and
documents, client lists, memoranda, data, reports, recipes, formulations,
brewing records, tapes, rolodexes, telephone and address books, letters,
research, card decks, listings, programming, and any other instruments, records
or documents relating or pertaining to manufacturing or customer sales by
Employer or Employee, the services rendered by Employee, or the business of the
Employer. Records will remain in Employer's property. When Employee's employment
terminates, Employee will return to Employer all records and will neither make
nor retain any copies of any records after termination of employment.
c. During the term of this Agreement and thereafter, Employee
shall diligently, legally and freely perform his duties as set forth in this
Agreement and shall take no action that would materially damage the goodwill of
the Employer. During the term of this Agreement and thereafter, Employee agrees
that he will not make any oral or written statement to any third party that is
intended to, or does, call into question the (1) conduct, business practices or
business judgment of the Employer or any of its
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officers, directors or business partners; or (2) quality of the Employer's
products or services.
8. Restrictive Covenants.
a. Employee will perform services which have a unique value to
Employer which if used in competition with Employer could cause serious and
irreparable harm to Employer. Employee will develop goodwill for Employer
through personal contact with customers and others who have business
relationships with Employer. This goodwill, which is a proprietary asset of
Employer, may follow Employee after the employment with Employer terminates.
Employee agrees that for a period of one (1) year following the termination of
this Agreement, Employee will not, unless given prior written consent by
Employer:
(1) solicit for employment or employ any other person
or entity any person who is employed by Employer during the same time
as Employee. Employee will not persuade or attempt to persuade any
customer, supplier, distributor, retailer, person or entity which is a
customer or supplier to Employer during the time of Employee's
employment with Employer, to discontinue business with Employer and its
affiliates or modify the terms of business between itself and Employer
or its affiliates.
(2) engage or act, either as a consultant,
independent contractor, proprietor, partner, employee, officer, or in
any other capacity, in any business which brews, packages, markets or
distributes alcoholic malt beverages in any state of the continental
United States or in any foreign country where Employer brewed,
packaged, marketed or distributed alcoholic malt beverages during the
term of this Agreement, provided however that this Subsection 8(a)(2)
shall not apply to Employee if Employee's employment is terminated
pursuant to 6(a), 6(c) or 6(e), above.
b. If any provision or portion of this section of the
Agreement is held unreasonable, unlawful, or unenforceable by a court of
competent jurisdiction, the provision will be deemed to be modified to the
extent necessary for the provision to be legally enforceable to the fullest
extent permitted by applicable law. Any court of competent jurisdiction may
enforce any provision of this section or modify any provision in order that the
provision will be enforced by the court to the fullest extent permitted by
applicable law.
c. Violation by Employee of the provisions of Sections 7 or 8
of this Agreement could cause irreparable injury to Employer and there is no
adequate remedy at law for violation of those provisions. Employer has, in
addition to other legal or equitable remedies, the right to enjoin Employee in a
court of equity from violating those provisions. The cessation of Employee's
compensation under Section 6 shall in no way limit the damages available to the
Employer upon violation by Employee of Sections 7 or 8 of this Agreement.
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9. Employee's Death or Disability. In the event that Employee dies or
becomes disabled during the period that Employee is employed by Employer under
this Agreement, Employer shall pay for a period of six (6) months the
compensation including all bonuses calculated in accordance with the respective
formula set-forth on Schedule A and pro-rated up to and then in effect on the
date of Employee's death, or date that notice of Employee's disability is
received, to Employee or to Employee's estate or legal guardian. In the event
that Employee dies within one year after Employee's employment has been
terminated pursuant to Section 6.b. or Section 6.c. Employer shall continue to
pay Employee's estate the compensation, other than the annual performance bonus,
then in effect on the date of Employee's death until the first anniversary of
the date Employee's employment terminated, whereupon Employer's obligation to
pay compensation under Section 6 shall cease. In addition, the options/shares
granted to the Employee that are scheduled to vest during the twelve (12) month
period under Section 6.b.(3) and Section 6.d.(3) shall vest immediately and be
exercisable for a period of one year from the date of Employee's death. Employee
shall continue to be subject to the restrictions in Sections 7 and 8 of this
Agreement following termination of employment due to disability.
10. Notices. All notices and other communications required or permitted
to be given by this Agreement must be in writing and must be given and will be
deemed received if and when either hand delivered and a signed receipt is given
or mailed by registered or certified U.S. mail, return receipt requested,
postage prepaid, and if to Employer to:
Secretary of the Board of Directors
Redhook Ale Brewery, Incorporated
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
and if to Employee to:
Xxxxx X. Xxxxxxxx
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or at any other address as either party notifies the other of in writing.
11. Arbitration.
a. In the event of any dispute between the parties arising out
of or related to the enforcement or interpretation this Agreement or concerning
this Agreement, the subject matter hereof or thereof, the making, performance,
breach or termination of this Agreement or the rights and duties of the parties
in relation hereto or thereto, the parties agree that, in lieu of initiating
judicial proceedings, the dispute shall be submitted to and resolved by binding
arbitration before a single arbitrator under the commercial arbitration rules of
the American Arbitration Association ("AAA") then
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existing, selected in accordance with AAA rules, with the exception that, to the
extent available, such arbitrator must have worked in the beverage industry for
a period of at least two (2) years. The place of arbitration shall be agreed to
by the parties or in the absence of such agreement shall be King County,
Washington. The parties agree that judgment upon the award may be entered in any
court where the arbitration takes place or any court having jurisdiction. The
arbitrator may order specific performance or other equitable relief or remedies
to the extent they deem it appropriate, in any situation in which a court could
so order. Each party hereby waives personal service of any process in connection
with any such action or proceeding and agrees that the service thereof may be
made by certified or registered mail directed to such party at the address
designated below, and shall be deemed effective as provided in that paragraph,
hereof or in any other manner permitted by law. The decision of the arbitrator
shall be final and binding upon the parties, their successors and assigns, and
they shall comply with such decision in good faith, and each party hereby
submits itself to the jurisdiction of the courts of the place where the
arbitration is held, but only for the entry of judgment with respect to and to
enforce the decision of the arbitrators hereunder, which judgment may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. This provision shall not preclude the filing of a lawsuit or
other judicial action to enable the recording of a notice of pending action, or
for attachment, receivership, injunction or other provisional remedies. Judgment
on the arbitration award may be entered in any court having jurisdiction over
the subject matter of the controversy.
b. By agreeing to arbitration under this paragraph, both
Employee and Employer understand that they are agreeing to have any dispute
relating to Employee's employment decided by a neutral arbitrator, and as to
those disputes decided by the neutral arbitrator, Employee and Employer FULLY
AND FOREVER WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL OF ANY ACTION OR PROCEEDING
ARISING OUT OF THIS AGREEMENT BY JURY. THIS WAIVER MEANS JUDGMENT MAY BE ENTERED
BY A NEUTRAL ARBITRATOR.
12. Miscellaneous.
a. This Agreement binds and benefits Employer and its
successors and assigns. This Agreement binds and benefits Employee and
Employee's heirs, personal and legal representatives, and guardians. No portion
of this Agreement or interest in it may be assigned by Employee.
b. The terms and provisions of this Agreement may not be
modified except by written instrument duly executed by Employer and Employee.
c. This Agreement will be governed by and enforced and
construed in accordance with the laws of the State of Washington.
d. In any dispute arising out of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
costs.
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e. In the event of a breach of this Agreement, the
non-breaching party may maintain an action for specific performance against the
party who is alleged to have breached any of the terms of the Agreement. This
subsection will not be construed to limit in any manner any other rights or
remedies an aggrieved party may have by virtue of any breach of this Agreement.
f. Each of the parties has the right to waive compliance with
any obligation of this Agreement, but a waiver by any party of any obligation
will not be deemed a waiver of compliance with any other obligation or of its
right to seek redress for any breach of any obligation on any subsequent
occasion, nor will any waiver be deemed effective unless in writing and signed
by the party so waiving.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first set forth above.
"EMPLOYER"
Redhook Ale Brewery, Incorporated
By /s/ Xxxx X. Xxxxxxx Date: August 1, 2000
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Its President and Chief Executive Officer
"EMPLOYEE"
By /s/ Xxxxx X. Xxxxxxxx Date: August 1, 2000
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Xxxxx X. Xxxxxxxx
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SCHEDULE A
BONUS
The total bonus target is $45,000.00. Of that, $22,500.00 is based upon
the breweries performance formula (weighted by barrels), and $22,500.00 is the
sum of the discretionary components set forth below. The discretionary portion
is to be paid quarterly as determined by the CEO.
[factors that determine discretionary payments]
The quarterly payments shall be paid on the first payroll of the
subsequent quarter, which generally lies on the 20th.
The non-discretionary components are based on the target performance;
if the performance exceeds target, the non-discretionary amounts will exceed the
target amounts.
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