Employment Agreement - Redhook Ale Brewery Inc. and Bradley A. Berg
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into effective the
first day of January, 2000, between Employer, Redhook Ale Brewery, Incorporated
("Employer") and Bradley A. Berg ("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 current Executive Vice President and Chief Financial
Officer 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 January
1, 2000 and, subject to the further provisions of this Agreement, ends on
December 31, 2000.
3. Employment. Employer employs Employee as Executive Vice President and
Chief Financial Officer and Employee agrees to render services for and on behalf
of Employer under the direction and supervision of the Chief Executive Officer.
The Chairman of the Board of Directors or the Board of Directors may assign
other executive duties to Employee. Employee shall provide these services
professionally and competently and shall devote substantially all of Employee's
business time to his services hereunder.
4. Compensation. Employer will pay Employee as compensation for services
rendered under this Agreement as follows:
a. a minimum base salary equal to the salary in effect at the
commencement of this Agreement, in accordance with Employer's normal payroll
policies;
b. a performance bonus in an amount to be determined by the
Compensation Committee of the Board of Directors, conditioned on Employer's
reaching or exceeding year-end performance goals as those goals are specified in
Employer's annual business plan, in addition to consideration of other
achievements during the year.
c. the same vacation, retirement, and other fringe benefits
provided other executive employees of Employer.
<PAGE> 2
d. 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 monthly car allowance in an amount to be determined by the
Compensation Committee.
e. The Board of Directors in its sole discretion may review
Employee's compensation for upward adjustment.
5. 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 is unable for any reason other than death or
disability to perform the material duties of the position for longer
than one hundred and eighty (180) consecutive days; or
(3) 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
(4) 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 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;
(2) 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 5.b., will
continue to vest according to that schedule and all other unvested
options/shares will be canceled;
2
<PAGE> 3
(3) If Employee violates Sections 6 or 7 of this Agreement,
Employer's obligation to continue to pay Employee's compensation, as
described in this Section 5.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 5.b.(3) 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 for
longer than 180 days;
(3) Employer liquidates or otherwise ceases business operations;
(4) Employer requires relocation of Employee's place of work
outside of King County, Washington
d. In the event that Employee elects to terminate his employment
under Section 5.c.(1) or Section 5.c.(4):
(1) 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;
(2) 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 5.d., will
continue to vest according to that schedule and all other unvested
options/shares will be canceled;
(3) If Employee violates Sections 6 or 7 of this Agreement,
Employer's obligation to continue to pay Employee's compensation, as
described in this Section 5.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 5.d.(3) 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
3
<PAGE> 4
f. Employee shall continue to be subject to the restrictions in
Sections 6 and 7 of this Agreement following termination of employment for any
reason.
6. 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 this
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 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 officers, directors or business
partners; or (2) quality of the Employer's products or services.
7. 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:
4
<PAGE> 5
(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, stockholder, 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.
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 6 or 7 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 5 shall in no way limit the damages available to the
Employer upon violation by Employee of Sections 6 or 7 of this Agreement.
8. 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, other than the annual performance bonus, 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 5.b., Section 5.c.(1) or Section 5.c.(4),
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 5 shall cease.
In addition, the options/shares granted to the Employee that are scheduled to
vest during the twelve (12) month period under Section 5.b.(2) and Section
5.d.(2) shall vest immediately and be exercisable for a period of six (6) months
from the date of Employee's death. Employee shall continue to be subject to the
restrictions in Sections 6 and 7 of this Agreement following termination of
employment due to disability.
5
<PAGE> 6
9. 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
3400 Phinney Avenue North
Seattle, Washington 98103
and if to Employee to:
Bradley A. Berg
23306 SE 16th Pl.
Issaquah, Washington 98029
or at any other address as either party notifies the other of in writing.
10. 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. Venue for an action to
enforce this Agreement shall be in Superior Court for King County, Washington.
d. In any dispute arising out of this Agreement, the prevailing
party shall be entitled to recover its reasonable attorneys' fees and costs.
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.
6
<PAGE> 7
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement.
"EMPLOYER"
Redhook Ale Brewery, Incorporated
By PAUL S. SHIPMAN /S/ Date: December 20, 1999
---------------------------------------
Its President & Chief Executive Officer
"EMPLOYEE"
By BRADLEY A. BERG /S/ Date: December 20, 1999
---------------------------------------
Bradley A. Berg
7