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EXHIBIT 10-11
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MANAGEMENT SEPARATION AGREEMENT
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This MANAGEMENT SEPARATION AGREEMENT (this "AGREEMENT") is made as of
the 15th day of December, 2000 by and among between GENESEE CORPORATION, a New
York corporation ("GENESEE"), THE GENESEE BREWING COMPANY, INC., a New York
corporation (the "BREWERY" and, together with Genesee, the "COMPANY"), and
XXXXXX X. XXXXXXX, XX. (the "EMPLOYEE").
W I T N E S S E T H :
WHEREAS, Employee has been employed by the Company pursuant to an
Employment Agreement, effective as of June 18, 1999 (the "EMPLOYMENT
AGREEMENT"); and
WHEREAS, Employee and the Company wish to terminate such employment on
the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements set forth herein, the parties agree as follows:
1. DEFINED TERMS. All capitalized terms not otherwise defined herein
shall have the same respective meanings as in the Employment Agreement.
2. RESIGNATIONS; PAYMENTS.
(a) Effective as of the date hereof (the "EFFECTIVE DATE")
Employee resigns as an executive employee of the Company and from any and all
other positions, titles, duties, authorities and responsibilities arising out
of, or relating to, his individual employment with the Company, except as may be
set forth in a certain Management Agreement of even date herewith between the
Brewery and Monroe Brewing Co., LLC a/k/a High Falls Brewing Company, LLC (the
"Management Agreement").
(b) On the Effective Date, the Company shall pay to Employee,
in a lump sum, two hundred twenty-five thousand dollars ($225,000).
(c) Within ten (10) business days following Genesee's sale of
substantially all of the assets of Ontario Foods, Inc. or of a majority of the
outstanding stock of Ontario Foods, Inc. ("ONTARIO FOODS SALE"), the Company
shall pay to Employee, in a lump sum, an additional two hundred twenty-five
thousand dollars ($225,000), provided that from the Effective Date until the
consummation of the Ontario Foods Sale, upon the request of Genesee, the
Employee provides such reasonable assistance to Genesee as it may
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request to consummate the Ontario Foods Sale. "Reasonable assistance" shall mean
the following:
(i) Acting as an adviser with respect to and
assisting in negotiations with prospective purchasers of Ontario Foods;
(ii) Analyzing purchase offers for Ontario Foods;
(iii) Assisting in the preparation of materials
promoting the sale of Ontario Foods; (iv) Advising and consulting with
investment bankers and other professional advisors with respect to any proposed
terms of sale for Ontario Foods; and
(v) Provide executive oversight of Ontario Foods'
operations.
Except as otherwise agreed, these services shall be
performed in Monroe and Ontario Counties, New York, shall be at the reasonable
convenience and availability of Employee, shall generally not average more than
eight (8) hours per week during Employee's normal working hours nor more than
four hundred (400) hours per year in the aggregate, and shall not be required of
Employee beyond April 30, 2002. If Ontario Foods' business (assets or stock)
have not been sold by April 30, 2002, then the final $225,000 payment shall be
reduced to $175,000 and shall be due and payable on or before May 10, 2002.
(d) After the expiration of a certain Management Agreement of
even date between itself and High Falls Brewing Company, LLC or any renewal
thereof, the Company shall pay the additional amount of $7,500 per month to High
Falls Brewing Company, LLC for Employee's services if requested by the Company.
(e) The Company agrees to pay to the Employee on the Effective
Date all sums due to Employee under Sections 5(d) of the Employment Agreement
(including his prorated profit sharing bonus for the Company's fiscal year
2001), an itemized list of which is attached to this Agreement as EXHIBIT A. The
payments due under this Section 2 shall be subject to deductions for any
federal, state and local income and payroll taxes which the Company deems to be
required under applicable law.
(f) In consideration of the payments made, or to be made by
the Company hereunder and the amendment and modification to the Employee's Stock
Option Agreement set forth in Section 3 of this Agreement, the Employee waives
any and all claims for any other compensation under the Employment Agreement and
agrees that he shall have no further rights thereunder or to any other
compensation of any kind from the Company.
(g) Each of the Company and the Employee agrees that the other
has performed in full its/his obligations under the Employment Agreement.
(h) The Employee waives any claims under the Workers
Adjustment and Retaining Act of 1988 as amended.
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3. OPTIONS. Pursuant to Section 5(c) of the Employment Agreement,
Genesee granted to the Employee options to purchase 62,222 shares of Class B
common stock of Genesee (the "OPTIONS") which vested, or were to vest, upon the
occurrence of certain events. Genesee and the Employee entered into a Stock
Option Agreement dated June 18, 1999 (the "OPTION AGREEMENT") to evidence the
Options. Notwithstanding anything in the Employment Agreement or the Option
Agreement to the contrary: (a) all of the Options shall become fully vested as
of the Effective Date; and (b) the exercise period for all of the Options shall
continue after the Effective Date through and including the first anniversary of
the Effective Date. At 5:00 p.m. on the first anniversary of the Effective Date,
all previously unexercised Options held by the Employee shall automatically
expire and be of no further force or effect. The foregoing shall be an amendment
and modification to the Option Agreement.
4. CONFIRMATION AND ACKNOWLEDGEMENT OF CERTAIN EMPLOYMENT AGREEMENT
PROVISIONS.
(a) The Company agrees and confirms that:
(i) the Employee's participation in Monroe Brewing
Company, LLC ("MONROE") is with the Company's consent and is not a violation of
Section 8(a) of the Employment Agreement;
(ii) disclosures concerning the Brewery made by the
Employee to Monroe were with the Company's consent and are not in violation of
Section 8(b) of the Employment Agreement; and
(iii) any solicitation of employees of the Brewery
made by the Employee were with the consent of the Company and are not in
violation of Section 8(c)of the Employment Agreement.
(b) The Employee acknowledges and agrees that, except as
specified in subsection 4(a) above, all provisions of Section 7 of the
Employment Agreement are and shall remain in full force and effect.
5. RELEASE.
(a) For purposes of this Agreement, (i) the "COMPANY" includes
all of the current and former subsidiaries, parents and affiliates of Genesee
and the Brewery and all of their respective current and former officers,
directors, employees, agents and attorneys, and (ii) "EMPLOYEE " includes
Employee and all of his heirs, executors, administrators, successors and
assigns.
(b) For and in consideration of the sum of TEN DOLLARS
($10.00) and the agreements of the Company contained in this Agreement, and
other good and valuable consideration received from the Company hereunder, the
receipt and sufficiency of which is acknowledged, Employee hereby releases and
discharges the Company from all actions,
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causes of action, obligations, liabilities, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims and demands whatsoever, in law or equity
(collectively, "CLAIMS"), which Employee ever had, now has or hereafter can,
shall or may have against Company for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the date of this
Agreement (the "RELEASE"), including any matter, cause or thing arising out of
his employment by the Company pursuant to the Employment Agreement or otherwise
or the termination of such employment, whether or not Employee now knows of such
Claims; provided however, that the foregoing Release shall not apply to any
Claims arising out of or based on this Agreement or any Claims for
indemnification under the Company's Certificate of Incorporation, as amended, or
By-Laws or under any Indemnification Agreement between Company and Employee or
under any so-called Directors and Officers Liability Policy. The Release
contemplated in this Section 4(b) covers any Equal Employment Opportunity claims
Employee ever had, now has or hereafter can, shall or may have, including, but
not limited to, any federal, state, local or administrative claims arising under
the following:
1. Civil Rights Acts of 1866, 1870 and 1871;
2. Equal Pay Act of 1963;
3. Title VII of the Civil Rights Act of 1964, as
amended;
4. The Civil Rights Act of 1968;
5. Rehabilitation Act of 1973;
6. Vietnam-Era Veterans' Readjustment Assistance Act
of 1974;
7. Veteran's Reemployment Rights Act;
8. Immigration Reform and Control Act;
9. Americans with Disabilities Act of 1990;
10. Civil Rights Act of 199 1;
11. Employee Retirement Income Security Act of 1974;
12. The Family and Medical Leave Act of 1993;
13. The New York State Human Rights Law;
14. New York Civil Rights Law, Section 47 et 5gq.
regarding rights of persons with disabilities;
15. New York Civil Rights Law, Article 4-C, Section
48 et seg. regarding persons with certain genetic disorders;
16. New York Labor Law Section 201-d regarding
outside activities;
17. New York Civil Rights Law, Article 4, Section
40-c to 45; and
18. any applicable federal, state, or local
anti-discrimination or equal employment opportunity statutes or
regulations.
(c) Without limiting the foregoing, it is understood and
agreed that: (i) the Release is not limited by any territorial limitation of any
kind and applies in all jurisdictions whatsoever; (ii) the full terms and
conditions of the Release and the actual amount paid by Company in connection
with this Agreement are not to be disclosed to anyone except Company's or
Employee's respective attorneys, and are to be kept and xxxx
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remain confidential by Company and Employee except as otherwise required by law
or by a court of competent jurisdiction; (iii) the Release may not be changed
orally; and (iv) the Release extends to all Claims, whether presently known or
unknown, whether presently existing or non-existing, except as otherwise
provided herein.
(d) Employee's execution of the Release shall not release,
discharge or otherwise affect the payment or performance obligations of Company
set forth in this Agreement. Employee shall not commence, maintain or
participate in any action or proceeding against Company regarding any act or
omission that precedes his execution of the Release, either on his own behalf or
on behalf of any other person or class.
(e) The Release is not made in connection with an exit
incentive or other employee termination program offered to a group or class of
employees. Employee is not entitled to any future employment with Company.
Employee acknowledges that he has been advised that he has as much time as he
needs to review the Release and has been advised to consult with an attorney
before signing this Agreement.
6. ASSISTANCE IN LITIGATION. At all times hereafter, upon reasonable
notice, Employee, at the Company's expense, shall furnish such information and
proper assistance to the company as it may reasonably request in connection with
any administrative, court or other legal proceeding in which the Company is, or
may become a party (other than any litigation between Employee and the Company)
7. CONSENT TO JURISDICTION; SERVICE OF PROCESS. Each party irrevocably
submits to the jurisdiction and venue of the federal and state courts sitting in
Monroe County, New York, for the enforcement of the Agreement, and waives any
objection it may have with respect to the jurisdiction of such courts or the
inconvenience of such forums or venues. Service may be made by registered or
certified mail or by personal delivery, in any case return receipt requested.
Nothing herein shall be deemed to affect any right to serve any such demand,
notice or process in any other manner permitted under applicable law.
8. ENTIRE AGREEMENT; AMENDMENTS; NO WAIVERS. This Agreement sets forth
the entire understanding of the parties with respect to its subject matter and
merges and supersedes all prior and contemporaneous understandings of the
parties with respect to its subject matter. No provision of this Agreement may
be waived or modified, in whole or in part, except by a writing signed by each
of the parties. Failure of any party to enforce any provision of this Agreement
shall not be construed as a waiver of its rights under such or any other
provision. No waiver of any provision of this Agreement in any instance shall be
deemed to be a waiver of the same or any other provision in any other instance.
9. COMMUNICATIONS. All notices, consents and other communications given
under this Agreement shall be in writing and shall be deemed to have been duly
given (a) when delivered by hand or by Federal Express or a similar overnight
courier to, (b) five (5) days after being deposited in any United States post
office enclosed in a postage prepaid registered or certified mail envelope
addressed to, or (c) when successfully transmitted by
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facsimile (with a confirming copy of such communication to be sent as provided
in (a) or (b) above) to, the party for whom intended, at the address or
facsimile number for such party set forth below, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein; provided, however, that any notice of change of address or
facsimile number shall be effective only upon receipt.
If to Company:
Genesee Corporation
The Genesee Brewing Company, Inc.
000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Xx., Esq.
Telecopier No.: (000) 000-0000
If to Employee:
To the address set opposite his signature below
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on,
enforceable against and inure to the benefit of, the parties and their
respective successors and permitted assigns, and nothing herein is intended to
confer any right, remedy or benefit upon any other person. No party may assign
its rights or delegate its obligations under this Agreement without the express
written consent of the other parties; provided, however, that on the transfer of
all or substantially all of the assets and business of the Company to a
liquidating trust or similar entity for the benefit of its shareholders, the
managers of said trust or entity shall be fully authorized to enforce this
Agreement in the same manner and to the same extent as though such managers were
the Company, without the need for any consent from Employee.
11. GOVERNING LAW. This Agreement shall in all respects be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and fully to be performed in such state, without giving effect
to conflicts of law principles.
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12. SEVERABILITY AND SAVINGS CLAUSE. If any provision of this Agreement
is held to be invalid or unenforceable by any court or tribunal of competent
jurisdiction, the remainder of this Agreement shall not be affected thereby, and
such provision shall be carried out as nearly as possible according to its
original terms and intent to eliminate such invalidity or unenforceability. In
this regard, the parties agree that the provisions of Section 4 (incorporating
by reference Section 7 of the Employment Agreement) including, without
limitation, the scope of the territorial and time restrictions, are reasonable
and necessary to protect and preserve Company's legitimate interests. If such
provisions of Section 4 are held by a court of competent jurisdiction to be in
any respect unreasonable, then such court may reduce the territory or time to
which it pertains or otherwise modify such provisions to the extent necessary to
render such provisions reasonable and enforceable.
13. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. CONSTRUCTION. Headings used in this Agreement are for convenience
only and shall not be used in the interpretation of this Agreement. References
to Sections are to the sections of this Agreement. As used herein, the singular
includes the plural and the masculine, feminine and neuter gender each includes
the others where the context so indicates.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first set forth above.
COMPANY: GENESEE CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President and Counsel
THE GENESEE BREWING COMPANY, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Counsel
/s/ Xxxxxx X. Xxxxxxx, Xx.
EMPLOYEE: -----------------------------------
Name: S. Xxxxxx Xxxxxxx, Jr.
Address:
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XXXXX XX XXX XXXX)
XXXXXX XX XXXXXX) ss.:
On the 15th day of December in the year 2000 before me, the
undersigned, a Notary Public in and for said State, personally appeared XXXX X.
XXXXXX personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
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Notary Public
STATE OF NEW YORK)
COUNTY OF MONROE) ss.:
On the 15th day of December in the year 2000 before me, the
undersigned, a Notary Public in and for said State, personally appeared S.
XXXXXX XXXXXXX, JR. personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
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Notary Public
LIST OF EXHIBITS
Exhibit A - Itemized List of Amounts Due Employee under Section 5(d) of the
Employment Agreement
