EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") made as of
this 24th day of October, 1997, between Mendocino Brewing Company, Inc., a
California corporation, having its principal place of business at 13351 South
Highway 101, Hopland, California ("Company"), and Norman Franks ("Executive").
W I T N E S S E T H:
WHEREAS, Executive possesses a detailed knowledge of the
business and affairs of Company, its policies, methods, personnel and customers;
and
WHEREAS, Company recognizes Executive's importance to the
growth and success of Company and desires to assure Executive's continued
contribution and to compensate him in a manner which it has determined will
reinforce and encourage his continued attention and dedication; and
WHEREAS, Executive is desirous of committing himself to serve
Company on the terms herein provided;
NOW, THEREFORE, in consideration of the foregoing, and of the
respective covenants and agreements of the parties herein contained, the parties
hereto hereby agree as follows:
1. Employment.
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(a) Company hereby employs Executive for the period commencing
on the date of this Agreement and ending fourteen (14) months from the date of
this Agreement, unless such employment is sooner terminated as provided in this
Agreement. In the event Executive continues in the full-time employment of
Company after the end of such term, such continued employment shall be on a
month-to-month basis terminable at any time, with or without cause, by Executive
or Company upon 30 days' notice.
(b) Executive hereby accepts employment under this Agreement
and agrees to devote all his best efforts and his full time and attention
exclusively to the business and affairs of Company. During the term of this
Agreement, Executive shall report to, and shall perform such duties and
responsibilities as may be assigned to him by, the Chief Executive Officer or
such other person as the Chief Executive Officer or Chairman may designate.
Company shall retain full direction and control of the manner, means and methods
by which Executive performs the services for which he is employed hereunder and
of the place or places at which such services shall be rendered. Notwithstanding
the foregoing, Executive's principal office shall be in the Hopland/Ukiah,
California area.
(c) Executive shall observe and comply with Company's rules
and regulations as provided in any employee policy manual of the Company.
(d) Executive acknowledges that this Agreement supersedes any
previous employment agreements he may have had with the Company and such
previous employment agreements are deemed terminated as of the date of this
Agreement.
2. Compensation.
(e) Base Salary. Executive shall be paid, for his employment
hereunder, a base salary at the annual rate of Seventy-Nine Thousand and Eight
Dollars ($79,008) during the term of this Agreement, payable in accordance with
the Company's standard payroll practices as in effect from time to time,
prorated in any partial year of employment. Executive shall be eligible for a
salary increase after the first year of the term of this Agreement, such
increase, if any, to be determined by the Company in its sole discretion.
(f) No Obligation to Use Services. Even though the Company is
obligated to pay Executive the compensation specified in Section 2(a), the
Company shall not be obligated to use the Executive's services during the term
of this Agreement, and shall not be liable to the Executive in any way for
failure to do so in whole or in part.
(g) Reimbursements. Executive shall be entitled to
reimbursement for reasonable travel and other business expenses incurred in the
performance of his duties under this Agreement in accordance with the general
policy of Company, as it may change from time to time, provided that Executive
provides an itemized account together with supporting receipts for such
expenditures in accordance with the requirements set forth in the Internal
Revenue Code of 1986, as amended, and related regulations, subject to the right
of Company at any time to place reasonable limitations on such expenses
thereafter to be incurred or reimbursed.
(h) Withholding. Company shall be entitled to withhold from
any compensation paid or payable hereunder such amounts on account of payroll
taxes, income taxes and other similar matters as are required to be withheld by
applicable law.
(i) Insurance. Company may, at its discretion, secure at its
own expense a "key-man" life insurance policy upon the life of Executive,
payable to Company in the event of Executive's death. Executive agrees that any
such insurance policy shall be for Company's benefit only, and acknowledges that
no person claiming by or through Executive shall have any right to the proceeds
of such insurance policy. Executive agrees to execute all documents and take all
acts reasonably requested by Company to secure and enjoy the benefits of such
insurance policy. The Company shall not terminate any policy of life,
disability, health or other insurance on Executive (other than group insurance)
without first offering to transfer such policy to Executive; provided, however,
that the Company shall have no further obligations under such policy.
(j) Vacation. Executive shall be entitled to a number of paid
vacation days in each calendar year in accordance with Company policy as in
effect from time to time. Such paid
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time off shall be taken at times which do not interfere with the normal
operation of Company's business.
(k) Benefit Plans. Subject to any limitations imposed by
applicable law, Executive shall be eligible to participate in all Company
employee benefit programs, including without limitation, medical and dental
coverage, life insurance, profit sharing, retirement, pension and tax-qualified
plans, in substantially the same manner and to substantially the same extent as
other Company employees. Nothing in this agreement shall preclude Company or any
affiliate of Company from terminating or amending any employee benefit plan or
program at any time or from time to time.
(l) Bonuses. Executive shall be entitled to periodic bonuses
in amounts and on such terms as the Company may from time to time determine in
its sole discretion.
(m) Registration Rights. Executive shall be entitled to
registration rights in accordance with the terms of the Registration Rights
Agreement dated as of the date hereof regardless of any termination of
Executive's employment. Executive hereby waives any registration rights the
Company may previously have granted to him.
(n) Benefits Retained by Company. All rights, assets,
opportunities, and other benefits accruing as a result of Executive's
performance hereunder shall be deemed the property of Company, including without
limitation, accounts, leads, reciprocal actions promised by third parties, and
gratuities from vendors, prospective vendors, business associates, and
prospective business associates.
3. Executive's Business Activities.
(o) Executive shall devote his entire professional time,
attention and energy exclusively to the performance of his duties and
responsibilities for Company and its affiliates. Executive shall not, directly
or indirectly, (i) substantially be engaged in or concerned with any other
commercial duties or pursuits, (ii) render services to any third party for
compensation or other benefit, or (iii) engage in any other business activity;
provided, however, that nothing in this Agreement restricts Executive from
continuing his existing involvement with trade and community organizations,
becoming involved with similar trade and community organizations, or assuming
greater leadership responsibilities within such organizations so long as such
activities do not materially interfere with the performance of Executive's
duties hereunder.
(p) Executive agrees that during the term of his employment
under this Agreement, he will engage in no business or other activities,
directly or indirectly, which are or may be competitive with or which might
place him in a competing position to that of Company without obtaining the prior
written consent of Company. Nothing in this Agreement restricts Executive from
engaging in reasonable consumer education (such as teaching the art of brewing)
and trade association or professional activities, provided such activities do
not materially interfere with the performance of Executive's duties hereunder.
The Company shall be entitled to any honoraria, stipend or other income
Executive may receive from such activities provided that the Company pays all of
Executive's reasonable expenses in connection with such activities.
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4. Termination of Employment by Company.
(q) For Cause. Notwithstanding anything herein to the
contrary, Company may terminate this Agreement and Executive's employment
hereunder at any time, with or without notice, for cause. Termination of this
Agreement and Executive's employment hereunder shall be deemed to be "for cause"
in the event that Executive (i) violates any provision of this Agreement, (ii)
demonstrates bad faith with intent to harm or indifference toward potential harm
to the Company, willful misconduct or negligence in the performance of his
obligations hereunder, (iii) violates any laws or regulations, including,
without limitation, any rules or regulations of the Bureau of Alcohol, Tobacco
and Firearms or any state or local beverage control authority or agency other
than immaterial violations which are not likely to adversely affect the Company,
(iv) engages in actions constituting misconduct, dishonesty or neglect in the
performance of his duties and responsibilities, a refusal to follow directions
from the Board or the Chairman, or a dereliction of his duties or
responsibilities hereunder, or (v) engages in conduct that, when viewed
objectively, is likely to materially adversely affect Company's reputation,
including, without limitation, dishonesty, illegal use of drugs or abuse of
drugs or alcohol. Upon said termination, Company shall be under no obligation to
Executive, except to pay his accrued and unpaid base salary and benefits through
the date of termination and vacation pay to the date of said termination.
(r) Without Cause. Company may terminate this Agreement and
Executive's employment hereunder at any time, with or without notice, without
cause. Upon any such termination without cause, Executive shall be paid the
remaining amount owed under this Agreement in one lump sum at an 8% discount.
(s) Alternative Termination Benefit. If the Company terminates
Executive's employment at any time after eight (8) months from the date of this
Agreement without following the Grievance Process (as defined below) or, if the
Executive has taken the Specific Actions (as defined below) but still has been
terminated and not for cause (as defined in Section 4(a) above), then Company
shall pay Executive a severance benefit equal to up to six (6) months of
Executive's base salary. The amount of such payment shall be reduced by any
payments for services Executive receives from other employers during such
six-month period. In addition, no such benefit will be payable for any months
with respect to which Executive is paid pursuant to Section 4(b) above. For
example, if Executive's employment was terminated without following the
Grievance Process and without cause ten (10) months after the date of this
Agreement, Executive would receive a lump sum payment pursuant to Section 4(b)
for the four months remaining under the term of this Agreement and after the
term of this Agreement has expired, Executive would be entitled to two (2)
months of base salary as provided in this subsection (c). For purposes of this
subsection (c), the "Grievance Process" shall mean the Company (i) advises
Executive in writing of the nature of the Company's dissatisfaction with
Executive's performance and the consequences thereof, (ii) meets with the
Executive to discuss such matters, (iii) prepares a written summary of the
meeting with specific actions Executive is to take to remedy the Company's
dissatisfaction (the "Specific Actions"), and (iv) terminates Executive's
employment or takes other disciplinary action if Executive fails to take the
Specific Actions within the time specified and to the Company's satisfaction.
Nothing in this subsection (c) relating to the Grievance Process or the Specific
Actions shall in any way limit the ability of the
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Company to terminate Executive's employment hereunder, with or without notice,
without cause as set forth in Section 4(b) above.
5. Termination of Employment by Executive. After three months from the
date hereof, Executive may terminate this Agreement and Executive's employment
hereunder, with or without notice. Upon any such termination, Executive shall be
paid the remaining amount owed under this Agreement in one lump sum at an 8%
discount.
6. Beer Allowance. Upon Executive's termination other than for cause,
Executive will be entitled to a post-termination beer allowance of one case per
week for five years from the date of termination.
7. Disability. In the event Executive shall become unable to perform
his duties in substantially the manner, and to the extent required hereunder,
due to physical or mental illness or disability, from any cause, and such
failure to perform said duties shall continue for the period of time required
for Executive to be entitled to benefits for total disability available under
any long term disability plan that the Company provides to its employees and all
applicable federal and state disability benefit programs, then Company may give
Executive notice of termination of this Agreement. The termination of this
Agreement will become effective upon receipt by Executive of the notice of
termination. Executive's salary payable hereunder shall be paid up through the
date on which the termination of this Agreement pursuant to this Section 7
becomes effective.
8. Death of Executive. In the event of the death of Executive during
the period of his employment hereunder, Executive's salary payable hereunder
shall be paid up through the end of the month in which the date of death occurs,
and thereafter Company's obligations hereunder shall cease and this Agreement
shall terminate.
9. Assignment and Transfer.
(t) Executive's rights and obligations under this Agreement
shall not be transferable by assignment or otherwise, and any purported
assignment, transfer, or delegation thereof shall be void.
(u) This Agreement shall inure to the benefit of, and be
enforceable by, any purchaser of substantially all of Company's assets, any
corporate successor to Company or any assignee thereof.
10. Obligations Surviving Expiration or Termination. Executive's
obligations under Section 12, Section 13, Section 14 and Section 15(k) of this
Agreement shall survive expiration or termination of this Agreement and
termination of employment hereunder for any reason to the extent therein
provided. All such obligations shall be binding upon Executive's heirs and
personal representatives and shall inure to the benefit of Company's successors
and assigns.
11. No Inconsistent Obligations. Executive represents and warrants that
there exist no obligations, legal or otherwise, inconsistent with the terms of
this Agreement or with his
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undertaking employment with Company. Executive will not disclose to Company, or
use, or induce Company to use, any proprietary information or trade secrets of
others.
12. Obligations of or to Other Entities. Executive represents and
warrants that there exist no obligations or liabilities of or claims against,
and that Executive has no obligation of any kind to, any corporation,
partnership or other business entity, of which Executive is or was a principal
shareholder, partner or principal owner, other than those that have been
disclosed in writing to Company.
13. Non-Solicitation. For a period of one year from and after the
termination of his employment hereunder for any reason, Executive shall not,
without the prior written consent of Company, directly or indirectly employ,
solicit for employment, or advise or recommend to any other person that such
other person employ or solicit for employment, any full-time employee of the
Company or any of its affiliates during the period of such employment. Neither
shall Executive, during the same period, induce or attempt to induce any
officer, consultant, full-time or part-time employee, agent or independent
contractor to leave the employ of the Company or any of its affiliates or to
cease to provide the services then provided to Company or any of its affiliates.
Additionally, Executive shall not employ any full-time employee of the Company
or any of its affiliates until at least three months after such employee's
voluntary, or involuntary but without cause, termination from Company or any of
its affiliates.
14. Existence of Confidential Information. The Company owns and has
developed and compiled, and will develop and compile, certain proprietary
techniques and confidential information which have great value to its business
(referred to in this Agreement collectively as "Confidential Information").
Confidential Information includes not only information disclosed by the Company
to Executive, but also information developed or learned by Executive as a direct
result of his engagement by the Company under this Agreement. Confidential
Information is to be broadly defined, and includes all information which is in
fact confidential that has or could have commercial value or other utility in
the business in which the Company is engaged or contemplates engaging, and all
information of which the unauthorized disclosure could be detrimental to the
interests of the Company, whether or not such information is identified as
Confidential Information by the Company. By example and without limitation,
Confidential Information includes any and all confidential information
concerning trade secrets, techniques, processes, formulas, marketing plans,
business plans, strategies, forecasts, unpublished financial information,
budgets, projections, customer and supplier identities, characteristics, and
agreements. Executive shall keep the Company's Confidential Information
confidential.
15. Miscellaneous.
(v) Attorneys' Fees. Should either party hereto, or any heir,
personal representative, successor or assign of either party hereto, resort to
litigation or arbitration to enforce this Agreement, the party or parties
prevailing in such litigation shall be entitled, in addition to such other
relief as may be granted, to recover its or their reasonable attorneys fees and
costs in such litigation from the party or parties against whom enforcement was
sought.
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(w) Governing Law. This Agreement shall be governed by and
construed according to the laws of the State of California without regard to the
principles thereof regarding conflict of laws.
(x) Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto and supersedes any prior
or contemporaneous written or oral agreements between them respecting the
subject matter hereof.
(y) Amendment. This Agreement may be amended only by a writing
signed by Executive and by Company's Chairman.
(z) Severability. If any term, provision, covenant, or
condition of this Agreement, or the application thereof to any person, place or
circumstance, shall be held to be invalid, unenforceable, or void, the remainder
of this Agreement and such term, provision, covenant, or condition as applied to
other persons, places and circumstances shall remain in full force and effect.
(aa) Construction. The headings and captions of this Agreement
are provided for convenience only and are intended to have no effect in
construing or interpreting this Agreement. The language in all parts of this
Agreement shall be in all cases construed according to its fair meaning and not
strictly for or against Company or Executive.
(bb) Rights Cumulative. The rights and remedies provided by
this Agreement are cumulative, and the exercise of any right or remedy by either
party hereto (or by its successor), whether pursuant to this Agreement, to any
other agreement, or to law, shall not preclude or waive its right to exercise
any or all other rights and remedies.
(cc) Nonwaiver. No failure or neglect of either party hereto
to any instance to exercise any right, power or privilege hereunder or under law
shall constitute a waiver of any other right, power or privilege or of the same
right, power or privilege in any other instance. All waivers by either party
hereto must be contained in a written instrument signed by the party to be
charged and, in the case of Company, by Company's Chairman.
(dd) Remedy for Breach. The parties hereto agree that, in the
event of breach or threatened breach of any covenants of Executive, the damage
or imminent damage to the value and the goodwill of Company's business are not
capable of quantification, and that therefore any remedy at law or in damages
shall be inadequate. Accordingly, the parties hereto agree that Company shall be
entitled to injunctive relief against Executive in the event of any breach or
threatened breach of any of such provisions by Executive, in addition to any
other relief available to Company under this Agreement or under law.
(ee) Notices. Any notice, request, consent or approval
required or permitted to be given under this Agreement or pursuant to law shall
be sufficient if in writing, and if and when delivered personally, by facsimile
or sent by certified or registered mail, with postage prepaid, to Executive's
residence (as noted in Company's records), or to Company's principal executive
office, as the case may be.
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(ff) Assistance in Litigation. Executive shall, during and
after termination of employment, upon reasonable notice, furnish such
information and proper assistance to Company as may reasonably be required by
Company in connection with any litigation in which it or any of its subsidiaries
or affiliates is, or may become, a party.
(gg) Arbitration. Any controversy, claim or dispute arising
out of or relating to this Agreement or to Executive's employment with the
Company, including claims for discrimination, unpaid wages, claims based on
common law or statute, either during the existence of the employment
relationship or afterwards, between the parties hereto, their assignees, their
affiliates, their attorneys, or agents, shall be settled by arbitration.
Arbitration shall be conducted in accordance with the then prevailing labor
arbitration rules of the American Arbitration Association (the "AAA"), with the
following exceptions if in conflict: (a) one neutral arbitrator shall be
selected in accordance with the AAA rules; (b) each party to the arbitration
will pay 50% of the expenses and fees of the arbitrator; and (c) arbitration may
proceed in the absence of any party if written notice (pursuant to the American
Arbitration Association's rules and regulations) of the proceedings has been
given to such party. The location of the arbitration shall be in San Francisco,
California. The parties agree to abide by all decisions and awards rendered in
such proceedings. Such decisions and awards rendered by the arbitrator shall be
final and conclusive and may be entered in any court having jurisdiction thereof
as a basis of judgment and of the issuance of execution for its collection. All
such controversies, claims or disputes shall be settled in this manner in lieu
of any action at law or equity; provided however, that nothing in this
subsection shall be construed as precluding the Company or Executive from
bringing an action for injunctive relief or other equitable relief. The parties
shall keep confidential the existence of the claim, controversy or disputes from
third parties (other than arbitrator), and the determination thereof, unless
otherwise required by law.
(hh) Action by the Company. Whenever this Agreement refers to
a decision or action to be taken by the Company, such action shall be taken on
behalf of the Company by the Board of Directors, or by a duly authorized person.
(ii) Role of Enterprise Law Group. Executive acknowledges that
Enterprise Law Group, Inc., counsel to the Company, has not represented
Executive in connection with any aspect of this Agreement, and has not
undertaken to perform any services on behalf of Executive. Executive has
obtained any desire to legal advice from separate counsel of Executive's own
choosing or has freely chosen not to do so.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
EXECUTIVE
/s/ Norman Franks
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Norman Franks
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MENDOCINO BREWING COMPANY, INC.
By: /s/ H. Michael Laybourn
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Name: H. Michael Laybourn
Title: Chairman and Chief Executive Officer