SEPARATION AND SEVERANCE AGREEMENT
This
Separation and Severance Agreement (the "Agreement") is effective August 27,
2009 by and between Mendocino Brewing Company, Inc. a California corporation
(the "Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Executive").
Recitals
A. The
Company and Executive are parties to that certain Executive Employment
Agreement, effective January 1, 2007 (the "Employment Agreement") which contains
certain provisions relating to the termination of Executive's employment with
the Company.
B. The
Company and Executive wish to supplement the Employment Agreement with
additional terms and conditions and to clarify certain existing provisions in
the Employment Agreement relating to the termination of Executive's employment
with the Company.
C. NOW,
THEREFORE, in consideration of the mutual agreements, covenants and other
promises set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and accepted, the
parties agree as follows.
1. Termination of Employment by
Employee With Good Reason.
A. Executive
may terminate his employment prior to the end of the employment term with the
Company for Good Reason (as defined below) by providing the Board of Directors
of the Company (the "Board"), within ninety (90) days of the occurrence of an
event described in Section 1(B) below,
with a written notice that specifies such event and any relevant facts and
circumstances that allegedly justifies termination of employment by
Executive. The Company shall have an opportunity to cure the event
specified in such notice within thirty (30) days following delivery of such
notice. If the Company fails to cure those circumstances in all material
respects by the expiration of the thirty (30) day notice period, the Executive's
employment with the Company shall cease. The Executive's Termination
Date shall be the earlier of the day that the Executive ceases to provide
services to the Company or the day that the facts and circumstances indicated
that the Executive has permanently reduced the level of services he provides to
the Company to twenty percent (20%) or less than the average level of bona fide
services performed for the Company over the immediately preceding thirty-six
(36) month period (unless otherwise specified in the Internal Revenue Code of
1986, as amended, (the "Code"), level of services will be based on hours
worked). Notwithstanding the foregoing, during the time period that
Executive is on any bona fide leave of absence, the employment relationship is
deemed to be continuing intact. In case of (i) termination by
Executive for Good Reason as set forth in this Section 1(A) or (ii)
Executive's termination from the Company at the end of the term of the
Employment Agreement (which term currently runs until December 31, 2010),
Executive shall be entitled to the severance payment and benefits set forth in
Section 7
herein contingent upon return of all Company property in Executive's possession
and execution of a release in the form attached hereto as Annex A (the
"Release") within ninety (90) days of the Executive's Termination
Date.
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B. For
purposes of this Agreement, the term "Good Reason" shall mean the occurrence of
any of the following events without the written consent of Executive: (i) a
material reduction in Executive's base salary; (ii) relocation of Executive by
the Company outside the fifty (50) mile radius surrounding Executive's then
present location; and (iii) a material diminution in Executive's duties,
authority or responsibilities.
2. Resignation by Employee
Without Good Reason.
A. Executive
may voluntarily terminate his employment with the Company without Good Reason at
any time with one (1) year prior notice. If Executive provides such
notice, the Company, at the sole discretion of the Board, may accelerate the
termination of Executive's employment to any date after receipt of such notice
from Executive and prior to the date of termination specified in the notice from
Executive. Any acceleration of the termination of Executive's
employment shall be effective on written notice being delivered to Executive by
the Company. On any such acceleration by the Company, Executive shall
not be entitled to any payment in lieu of notice. If Executive's
employment is terminated pursuant to this Section 2(A),
Executive shall receive payment for all accrued salary, vacation time, and
benefits owed Executive through the Termination Date. For purposes of
this Section
2(A), the Termination Date shall be the earlier of the day that the
Executive ceases to provide services to the Company or the day that the facts
and circumstances indicated that the Executive has permanently reduced the level
of services he provides to the Company to twenty percent (20%) or less than the
average level of bona fide services performed for the Company over the
immediately preceding thirty-six (36) month period (unless otherwise specified
in the Code, level of services will be based on hours worked).
B. In
case of a resignation without Good Reason by Executive, the Company shall have
no further obligation to pay compensation of any kind (except for accrued
salary, vacation time and benefits as set forth above) or severance payment of
any kind or to make any payment in lieu of notice. All benefits
provided by the Company to Executive shall cease on the Termination
Date. For the avoidance of doubt, Executive's termination from the
Company at the end of the term of the Employment Agreement (currently December
31, 2010) shall not be deemed a resignation without Good Reason and Executive
shall be entitled to the severance payment and benefits as set forth in Section
7.
3. Termination on
Death.
A. If
Executive dies before the term of the Employment Agreement expires, the Company
shall pay Executive's estate the accrued portion of Executive's salary and
vacation time and benefits that Executive is entitled to receive through the
Termination Date. For purposes of this Section 3(A), the
Termination Date shall be the date of Executive's death.
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B. In
addition to the payments set forth in Section 3(A) above,
the Company shall pay Executive's estate an amount equal to the product of (i)
2.5 times Executive's average monthly base salary over the preceding twelve (12)
month period multiplied by (ii) each year of service provided by Executive to
the Company prior to Executive's date of death; provided,
however,
that in no event may the aggregate payment under this Section 3(B) exceed
30 months of Executive's average monthly base salary over the preceding twelve
(12) month period. For purposes of calculating the number of years of
Executive's service in this Section 3(B), a
partial year of service shall be counted but shall be pro rated based on the
actual number of months worked during such partial year of
service. Notwithstanding the foregoing, no payment under this
Section 3(B)
shall be paid unless all Company property in Executive's possession at his death
is returned and the Release is executed by an authorized signatory for the
Executive's estate within ninety (90) days of the Executive's date of
death. All payments shall be made less standard withholdings for
taxes and social security, medicare and state disability tax purposes and shall
be payable over a twenty (20) month term in pro rata payments commencing on the
first day of the calendar month following the expiration of the ninety (90) days
period provided for returning Company property and executing the
Release.
C. If
Executive predeceases his spouse, the Company shall also pay Executive's
spouse's COBRA premiums until the earlier to occur of (i) such time as
Executive's spouse obtains replacement health insurance or (ii) eighteen (18)
months following Executive's death.
4. Termination Due to
Disability.
A. The
Company may terminate Executive's employment in case of Executive's Disability
(as defined below). If Executive's employment is terminated under
this Section
4(A), the Company shall pay Executive all amounts due as accrued salary,
vacation time and benefits under the Employment Agreement through the
Termination Date. For purposes of this Section 4(A),
the Termination Date shall be the date specified by the Board immediately
following a determination by a qualified physician of Executive's
Disability.
B. In
addition to the payments set forth in Section 4(A) above,
the Company shall pay Executive an amount equal to the product of (i) 2.5 times
Executive's average monthly base salary over the preceding twelve (12) month
period multiplied by (ii) each year of service provided by Executive
to the Company prior to Executive's date of Disability; provided,
however,
that in no event may the aggregate payment under this Section 4(B) exceed
30 months of Executive's average monthly base salary over the preceding twelve
(12) month period. For purposes of calculating the number of years of
Executive's service in this Section 4(B), a
partial year of service shall be counted but shall be pro rated based on the
actual number of months worked during such partial year of
service. Notwithstanding the foregoing, no payment under this Section 4(B) shall be
paid unless all Company property in Executive's possession is returned and the
Release is executed by the Executive or his authorized representative within
ninety (90) days of the date that the Board, in its sole discretion, determines
that Executive is Disabled. All payments shall be made less standard
withholdings for taxes and social security, medicare and state disability tax
purposes and shall be payable over a twenty (20) month term in pro rata payments
commencing on the first day of the calendar month following the expiration of
the ninety (90) days period provided for returning Company property and
executing the Release.
C. In
addition, the Company shall pay COBRA premiums for Executive and Executive's
spouse until the earlier of (i) the effective date on which Executive obtains
comparable health insurance from a subsequent employer or (ii) eighteen (18)
months following the Executive's Termination Date. However, if
Executive fails to both (i) return all Company property in his possession and
(ii) execute the Release within the 90 day period, the Company's obligation to
pay COBRA premiums shall cease and Executive shall reimburse the Company for all
COBRA premiums previously paid by it on Executive's behalf.
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D. For
purposes of this Agreement "Disability" means that Executive is (i) unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or last for a continuous period of at least twelve (12) months; or (ii)
receiving income replacement benefits for a period of not less than three months
under a Company health or accident plan because of any medically determinable
physical or mental impairment that can be expected to result in death or last
for a continuous period of at least twelve (12) months.
5. Involuntary
Termination
A. The
Company may terminate Executive's employment without Cause (as defined in Section 6(B), with
365 days prior written notice; provided,
however,
that the Company reserves the right to terminate Executive's employment
immediately and provide Executive with a lump sum payment equal to twelve (12)
months of Executive's base salary at the rate in place on the Termination Date
(the "Notice Payment") within ninety (90) days of the Termination Date provided
all Company property in Executive's possession is returned and the Release is
executed by the Executive within this ninety (90) day period. Notwithstanding
the foregoing, the Company shall have the authority to delay the payment of the
Notice Payment to the extent it reasonably deems necessary to comply with
Section 409A(a)(2)(B)(i) of the Code (relating to payments made to certain "key
employees" of publicly-traded companies); in such event, any such amount or
benefit to which Employee would otherwise be entitled during the six (6) month
period following his Termination Date will be provided or paid on the first
business day following the expiration of such six (6) month period, or if
earlier, the date of death. If Executive's employment is terminated
pursuant to this Section 5(A),
Executive shall receive all accrued salary, vacation time and benefits under the
Employment Agreement through the Termination Date. For purposes of
this Section
5(A), the Termination Date shall be the date determined by the Board as
set forth in the notice delivered to Executive.
B. In
the case of a termination of Executive's employment without Cause as set forth
in Section 5A,
the Company shall also pay to Executive the severance payment and pay COBRA
premiums in accordance with Section 7 of this
Agreement. However, if Executive fails to both (i) return all Company
property in his possession and (ii) execute the Release within the 90 day
period, the Company's obligation to pay COBRA premiums shall cease and Executive
shall reimburse the Company for all COBRA premiums previously paid by it on
Executive's behalf.
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6. Termination for
Cause.
A. The
Company may terminate Executive's employment upon the recommendation of the
Board (excluding the vote of Executive on such matter) at any time for Cause (as
defined in Section
6(B) immediately on written notice to the Executive of the circumstances
leading to termination for Cause. If Executive's employment is
terminated under this Section 6(A), the
Company shall pay Executive all accrued salary, vacation time and benefits under
the Employment Agreement through the Termination Date. For purposes
of this Section 6(A), the Termination Date shall be the date on which the
termination notice is given by the Board to Executive. If the Board
terminates Executive without at least 12 months' prior notice, the Company shall
pay to Executive the Notice Payment within ninety (90) days of the Termination
Date provided all Company property in Executive's possession is returned and the
Release is executed by the Executive within the ninety (90) day period.
Notwithstanding the foregoing, the Company shall have the authority to delay the
payment of the Notice Payment to the extent it reasonably deems necessary to
comply with Section 409A(a)(2)(B)(i) of the Code (relating to payments made to
certain "key employees" of publicly-traded companies); in such event, any such
amount or benefit to which Employee would otherwise be entitled during the six
(6) month period following his Termination Date will be provided or paid on the
first business day that is six (6) months after the Termination Date,
or if earlier, the date of death. Except for the accrued
salary, vacation time and benefits and the Notice Payment, the Company shall
have no further obligation to pay any compensation of any kind, any severance
payment of any kind and/or any additional notice payment of any
kind.
B. For
purposes of this Agreement, "Cause" means the occurrence or existence of any of
the following with respect to Executive, as determined by a majority of the
Board (excluding Executive): (i) a material breach by Executive of the terms of
the Employment Agreement or of his duty not to engage in any transaction that
represents, directly or indirectly, self-dealing with the Company or any of its
affiliates (which for purposes of this Agreement, means any individual,
corporation, partnership, association, limited liability company, trust, estate
or other entity or organization directly or indirectly controlling, controlled
by, or under direct or indirect common control with the Company) that has not
been approved by a majority of disinterested directors of the Board, if such
material breach remains uncured after thirty (30) days following the date the
Company provides written notice to Executive of such material breach; (ii) the
repeated material breach by Executive of any duty referred to in clause (i)
above on which at least one prior written notice was provided to Executive under
clause (i); (iii) any act of dishonesty, misappropriation, embezzlement,
intentional fraud or similar conduct by Executive involving the Company or its
affiliates; or (iv) the conviction or the plea of nolo contendere or the
equivalent in respect of a felony involving moral turpitude.
7. Severance Payment and COBRA
premiums.
A. In
case of termination of Executive's employment with the Company (i) by Executive
with Good Reason, (ii) by the Company without Cause (except in the case of death
or Disability) or (iii) upon completion of the term of the Employment Agreement
and contingent upon Executive executing the Release and returning all Company
property in his possession within ninety (90) days of the Termination Date,
Executive shall be entitled to receive a severance payment (the "Severance
Payment"). The Severance Payment shall be equal to the product of (x)
2.5 times Executive's average monthly base salary over the preceding twelve (12)
month period, multiplied by (y) the number of years of service provided by
Executive to the Company immediately prior to the Termination Date; provided,
however,
that in no event may the aggregate Severance Payment exceed 30 months of
Executive's average monthly base salary over the preceding twelve (12) month
period. For purposes of calculating the number of years of service in
this Section
7(A), a partial year of service shall be counted but shall be pro rated
based on the actual number of months worked during such partial year of
service.
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B. The
Severance Payment shall be made less standard withholdings for taxes and social
security, medicare and state disability tax purposes payable over a twenty (20)
month term in pro rata payments commencing on the first day of the calendar
month following the expiration of the ninety (90) days period provided for
returning Company property and executing the Release. Notwithstanding
the foregoing, the Company shall have the authority to delay the payment of the
Severance Payment or any other amounts or benefits under this Agreement to the
extent it reasonably deems necessary to comply with Section 409A(a)(2)(B)(i) of
the Code (relating to payments made to certain "key employees" of
publicly-traded companies); in such event, any such amount or benefit to which
Employee would otherwise be entitled during the six (6) month period following
his Termination Date will be provided or paid on the first business day
following the expiration of such six (6) month period, or if earlier, the date
of death.
C. In
addition, the Company shall pay the COBRA premiums for Executive and Executive's
spouse until the earlier of (i) the effective date on which Executive obtains
comparable health insurance from a subsequent employer or (ii) eighteen (18)
months following the Executive's Termination Date. However, if
Executive fails to both (i) return all Company property in his possession and
(ii) execute the Release within the 90 day period, the Company's obligation to
pay COBRA premiums shall cease and Executive shall reimburse the Company for all
COBRA premiums previously paid by it on Executive's behalf.
D. The
Severance Payment and the other payment obligations specifically set forth in
this Agreement (i.e. payments upon death or Disability, accrued salary,
vacation, and benefits and Notice Payment (only in case of Involuntary
Termination by the Company as set forth in Section 5(A) and
termination by the Company without notice as set forth in Section 6(A) herein)
and reimbursement of COBRA premiums for Executive and Executive's spouse as set
forth herein)) constitute the only obligations of the Company following
Executive's termination.
8. Form of
Release. The
form of Release attached hereto as Annex A may be
amended by the Company from time to time, without the consent of Executive, to
take into account changes in any applicable law governing the Company and or the
terms of the Release. The Company agrees to provide Executive with
prompt notice of applicable changes.
9. Duty of Cooperation
Following Termination. Executive
agrees to cooperate with the Company following termination of Executive's
employment (for any reason) by being reasonably available to testify at the
request of the Company or any affiliate in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, and to assist the
Company or any affiliate in any such action, suit or proceeding, by providing
information and meeting and consulting with the Board or their representatives
or counsel, or representatives or counsel to the Company or any affiliate, as
reasonably requested. The Company shall reimburse Executive for all
expenses actually incurred in connection with his provision of testimony or
assistance (including reasonable attorneys' fees incurred in connection
therewith and statutory witness fees) on submission of appropriate documentation
to the Company.
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10. Dispute Resolution and
Binding Arbitration. Executive
and the Company agree that any dispute that arises out of or relates to this
Agreement or the Release, shall be submitted to binding arbitration pursuant to
the Federal Arbitration Act. Nothing in this section shall prevent
Executive from filing or maintaining a charge with the United States Equal
Employment Opportunity Commission or the National Labor Relations
Board. The arbitration shall take place in San Francisco, California
and both Executive and the Company agree to submit to the jurisdiction of the
arbitrator selected in accordance with American Arbitration Association rules
and procedures. The parties each expressly waive the right to a jury
trial, and agree that the arbitrator's award shall be final and binding on the
parties, provided that any award shall be reviewable by a court of law to the
fullest extent allowed by law, including for any error of law by the
arbitrator. The arbitrator shall have the discretion to award
monetary and other damages, or to award no damages, and to fashion any other
relief the arbitrator deems appropriate, but only to the extent consistent with
law. The parties shall be responsible for their own attorneys'
fees.
11. Entire
Agreement. This
Agreement contains the entire agreement between the parties and supersedes all
prior or contemporaneous oral and written agreements, understandings,
commitments, and practices of the parties (excluding the terms of
the Employment Agreement not specifically superseded
herein). In case of conflict between the terms of this Agreement and
the Employment Agreement, this Agreement shall control.
12. Successors and
Assigns. This
Agreement is intended to bind and inure to the benefit of and be enforceable by
the Company and Executive, and their respective successors and
assigns. In the event of a change of control transaction in which the
Company is not the surviving entity or upon the sale of all or substantially all
of the Company's assets, the Company may assign this Agreement and all rights
and obligations under it to any business entity that succeeds to all or
substantially all of the Company's business. Executive may not assign
his rights or duties under this Agreement without the prior written consent of
Company (as evidenced by a duly authorized resolution of the Board, excluding
Executive).
13. Amendments. No
amendments or other modifications to this Agreement may be made except by a
writing signed by the parties (and as to the signature of the Company as
approved by a duly authorized resolution of the Board (excluding
Executive).
14. Severability. If
any provision of this Agreement is held invalid or unenforceable, the remainder
of this Agreement shall nevertheless remain in full force and
effect. If any provision is held invalid or unenforceable with
respect to particular circumstances, it shall nevertheless remain in full force
and effect in all other circumstances.
15. Notices. Any
notice required under this Agreement shall be given in writing, either by
personal delivery (including by facsimile or electronic mail) or by registered
or certified mail. Any notice to the Company shall be addressed to
the Board. A notice shall be deemed to have been duly given (a) on
the date of delivery, if delivered personally on the party to whom notice is to
be given, or (b) on the third business day after mailing, if mailed to the party
to whom the notice is to be given in the manner provided in this
section.
16. Facsimile and
Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement may also be executed and delivered by
facsimile signature.
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17. Governing
Law. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of California, without regard to its principles of conflicts
of laws.
18. Consent to
Representation. THE
PARTIES ACKNOWLEDGE THAT ▇▇▇▇▇▇▇▇, PATCH, ▇▇▇▇▇ & BASS LLP ("CPDB")
REPRESENTS THE COMPANY FOR PURPOSES OF THIS AGREEMENT AND DOES NOT REPRESENT
EXECUTIVE. EXECUTIVE ACKNOWLEDGES THAT HE HAS BEEN ADVISED TO SEEK
INDEPENDENT COUNSEL REGARDING THE NEGOTIATION AND EXECUTION OF THIS
AGREEMENT. THE PARTIES AGREE THAT IN THE EVENT OF ANY CONFLICT OF
INTEREST ARISING OUT OF THIS AGREEMENT, CPDB REPRESENTS THE INTERESTS OF THE
COMPANY AND NOT THE EXECUTIVE.
[signature
pages to follow]
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IN
WITNESS WHEREOF, the parties hereto have executed this Separation and Severance
Agreement as of the day and year first written above.
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MENDOCINO
BREWING COMPANY
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Authorized
Signatory
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EXECUTIVE
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇
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9
Annex A
Form
of Release
10
GENERAL RELEASE OF ALL
CLAIMS
This
General Release of All Claims (the "Release") is executed by ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Releasor") in favor of Mendocino Brewing Company, Inc., a California
corporation (the "Company"). Capitalized terms used but not defined
herein are as defined in the Severance Agreement (as defined
below).
FACTUAL
BACKGROUND
A. Releasor
and the Company are parties to that certain Separation and Severance Agreement
dated August 27, 2009 (the "Severance Agreement") pursuant to which Releasor
agreed to enter into this Release in consideration of the Company making the
Severance Payment and other valid consideration set forth in the Severance
Agreement.
B. Releasor's
employment with the Company terminated on __________ __, 20__.
C. Releasor
has been advised to consult with his independent counsel prior to signing this
Agreement.
RELEASE
1. Releasor
understands and acknowledges that he would not receive the Severance Payment and
the other benefits specified in the Severance Agreement, except for his
execution of this Release and the fulfillment of the promises contained
herein. The consideration for signing this Release consists of an
amount in excess of that to which Releasor is entitled under the Company's
policies, practices or contracts for services rendered during his
employment.
2. Releasor
represents that he has returned all Company property in his
possession.
3. Releasor
agrees that the terms and conditions of this Release shall remain confidential,
and that he will not disclose to any third party, other than Releasor's legal
counsel, accountants, or his immediate family members, the terms and conditions
of this Release or the amount of any payments made to Releasor or on his behalf
as a result of this Release, except as may be required by law.
4. Nothing
contained in this Release, or the fact of its submission to Releasor, shall be
admissible as evidence in any judicial, administrative, or other legal
proceeding, or be construed as an admission of any liability or wrongdoing on
the part of the Company or any violation of federal or state statutory or common
law or regulation.
5. Releasor
will not disclose or deliver to any other party or use for his own benefit any
trade secrets or confidential or proprietary information gained through
employment with the Company. This includes, but is not limited to
non-public financial information, business plans, customer lists, supplier lists
and data developed by the Company or any subsidiary or division
thereof. Releasor agrees that any breach of this paragraph would
cause the Company substantial and irreparable damages that may not be
quantifiable and therefore, in the event of any such breach, in addition to
other remedies that may be available, the Company shall have the right to seek
specific performance and other injunctive and equitable
relief. Moreover, Releasor agrees to assume the cost of all
attorneys' fees incurred by the Company as a result of the Company’s enforcement
of this Section 5.
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6. In
consideration for the payments you will receive from the Company pursuant to the
Severance Agreement, you, for and on behalf of yourself, your heirs,
beneficiaries, executors, administrators, attorneys, successors, and assigns,
knowingly and voluntarily, hereby waive, remit, release and forever discharge
the Company and its current and former parent corporations, affiliates,
subsidiaries, divisions, predecessors, successors and assigns, and their current
and former officers, directors, stockholders, employees, agents, attorneys,
lenders, investors, servants, insurers and agents thereof, both individually and
in their business capacities, and their employee benefit plans and programs and
their administrators and fiduciaries (collectively referred to herein as the
“Released Parties”) of and from any and all manner of action, claims, liens,
demands, liabilities, potential or actual causes of action,
charges, complaints, suits (judicial, administrative, or otherwise), damages,
debts, demands, obligations of any other nature, past or present, known or
unknown, whether in law or in equity, whether founded upon contract (expressed
or implied), tort (including, but not limited to, defamation), statute or
regulation (State, Federal or local), common law and/or other theory or basis,
from the beginning of the world to the date of the execution of this Agreement,
including, but not limited to, any claim that you have asserted, now assert or
could have asserted. Listed below are examples of the statutes under
which you will not bring any claim. If the law prohibits a waiver of
claims under any such statute, you hereby acknowledge that you have no valid
claim under those statutes or that all monies paid hereunder shall be a set-off
against any such claim, if a court permits such claim to be
asserted. The claims released or acknowledged not to exist include,
but are not limited to, any violation of:
a. Title
VII of the Civil Rights Act of 1964;
b. The
Civil Rights Act of 1991;
c. Sections
1981 through 1988 of Title 42 of the United States Code;
d. The
Employee Retirement Income Security Act of 1974;
e. The
Immigration Reform and Control Act;
f. The
Americans with Disabilities Act of 1990;
g. The
Age Discrimination in Employment Act of 1967;
h. The
Workers Adjustment and Retraining Notification Act;
i. The
Occupational Safety and Health Act;
j. The
Fair Credit Reporting Act;
k. The
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002;
2
l. New
York State Executive Law (including its Human Rights Law) and the California
Government Code;
m. The
California and New York State Labor Laws;
n. The
California and New York wage and wage-hour laws;
o. Any
other federal, state or local civil, whistleblower, discrimination, wage,
wage-hour, retaliation, employment, human rights or any other local, state or
federal law, regulation or ordinance;
p. Any
amendments to the foregoing laws;
q. Any
benefit, payroll or other plan, policy or program;
r. Any
public policy, contract, third-party beneficiary, tort, or common law
obligation; or
s. Any
claim for or obligation to pay for attorneys’ fees, costs, fees, or other
expenses.
Included
in this Release are any and all claims for future damages allegedly arising from
the alleged continuation of the effect of any past action, omission or
event. Notwithstanding the foregoing, Releasor shall retain the
right, if any, to claim unemployment insurance with respect to the termination
of his employment with the Company. Excepted from this release are
any claims that by law can not be released by an agreement between an employer
and an employee.
7. Waiver of Unknown
Claims. YOU UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE
OF ALL KNOWN AND UNKNOWN CLAIMS. You further acknowledge that you
have been informed of Section 1542 of the California Civil Code, which reads as
follows:
A general
release does not extend to claims which the creditor does not know or suspect to
exist in his or her favor at the time of executing the release, which if known
by him or her must have materially affected his or her settlement with the
debtor.
Notwithstanding
Section 1542, and in order to implement a full discharge and release, Releasor
expressly agrees that he intends this Release to extend to all claims, unknown
and/or unsuspected, and to all unanticipated injuries and/or damages, as well as
to those claims, injuries or damages which are now known to or suspected by him,
that arose before the date he signed this Release. This Release shall
remain in effect as a full and complete release notwithstanding the discovery or
existence of any additional or different facts.
8. Releasor
hereby affirms and acknowledges the following:
a. He
has not filed, caused to be filed, or presently is a party to any claim,
complaint, or action against any of the Released Parties herein in any forum or
form.
3
b. He
has been paid and/or have received all compensation, wages, bonuses,
commissions, and/or benefits to which he may be entitled and that no other
compensation, wages, bonuses, commissions and/or benefits are due to
him. He has been granted any leave to which he was entitled under the
Family and Medical Leave Act or related state or local leave or disability
accommodation laws.
c. He
has no known workplace injury or occupational disease and has been provided with
and/or has not been denied any leave requested under the Family and Medical
Leave Act.
d. He
has not divulged any proprietary or confidential information of the Company and
will continue to maintain the confidentiality of such information in accordance
with the Company’s policies and/or the common law.
e. He
further affirms that he has not been retaliated against for reporting any
allegations of wrongdoing by the Company or its officers, including any
allegations of corporate fraud. The parties acknowledge that that
this Release does not limit either party’s right, where applicable, to file or
participate in an investigative proceeding of any federal, state or local
government agency. To the extent permitted by law, he agrees that if
such an administrative claim is made, he shall not be entitled to recover any
individual monetary relief or other individual remedies.
9. He
agrees not to defame, disparage or demean any of the Released Parties herein in
any manner whatsoever.
10. This
Agreement may not be modified, altered, or amended except in writing and signed
by both parties wherein specific reference is made to this
Agreement. This Agreement is the entire agreement between the parties
hereto and fully supersedes any prior agreements or understandings between the
parties. Releasor acknowledges that he has not relied on any
representations, promises, or agreements of any kind made to him in connection
with his decision to executed this Release, except what is set forth
herein. This Release shall be controlled and governed by the laws of
the State of California to create a binding and enforceable general release and
waiver of claims.
11. This
Release may be executed in counterparts, each of which shall be deemed an
original and each of which shall together constitute one and the same
agreement. This Release will not become enforceable until executed by
the Company.
12. Each
party will be responsible for its own legal fees or costs, if any, incurred in
connection with the execution of this Release.
13. At
the time of considering or executing this Release, Releasor was not affected or
impaired by illness, use of alcohol, drugs or other substances or otherwise
impaired. Releasor is competent to execute this Release and knowingly
and voluntarily waives any and all claims he may have against the
Company. Releasor certifies that he is not a party to any bankruptcy,
lien, creditor-debtor or other proceedings which would impair his right or
ability to waive all claims he may have against the Company.
4
RELEASOR
HAS BEEN ADVISED THAT HE HAS TWENTY-ONE (21) CALENDAR DAYS FROM THE DATE OF HIS
RECEIPT OF THIS RELEASE TO CONSIDER THIS RELEASE BEFORE SIGNING
IT. RELEASOR MAY REVOKE THIS RELEASE FOR A PERIOD OF SEVEN (7)
CALENDAR DAYS FOLLOWING THE DAY THE RELEASE IS EXECUTED AND THE RELEASE SHALL
NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE EXPIRATION OF THAT SEVEN (7)
CALENDAR DAY PERIOD (THE "EFFECTIVE DATE").
ANY
REVOCATION WITHIN THIS PERIOD MUST BE SUBMITTED, IN WRITING, TO THE UNDERSIGNED
AND STATE, “I HEREBY REVOKE MY ACCEPTANCE OF THE GENERAL RELEASE.” THE
REVOCATION MUST BE PERSONALLY DELIVERED TO THE COMPANY'S AUTHORIZED SIGNATORY AS
SET FORTH ON THE SIGNATURE PAGE TO THIS RELEASE, OR SUCH AUTHORIZED SIGNATORY'S
SUCCESSOR, OR MAILED TO THE UNDERSIGNED AND POSTMARKED WITHIN SEVEN (7) CALENDAR
DAYS OF EXECUTION OF THIS RELEASE. IF THE LAST DAY OF THE REVOCATION
PERIOD IS A SATURDAY, SUNDAY OR LEGAL HOLIDAY IN CALIFORNIA, THEN THE REVOCATION
PERIOD SHALL NOT EXPIRE UNTIL THE NEXT FOLLOWING DAY WHICH IS NOT A SATURDAY,
SUNDAY OR HOLIDAY.
RELEASOR
HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY OF HIS OWN CHOOSING AND
AT HIS OWN EXPENSE PRIOR TO EXECUTING THIS RELEASE. THE RELEASE,
AMONG OTHER THINGS, WAIVES RIGHTS THAT YOU MAY HAVE UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT (THE “ADEA”).
RELEASOR
AGREES THAT ANY MODIFICATION, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT DOES
NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21) CALENDAR DAY
CONSIDERATION PERIOD.
HAVING
ELECTED TO EXECUTE THIS RELEASE, TO FULFILL THE PROMISES AND TO RECEIVE THE SUMS
AND BENEFITS STATED HEREIN, RELEASOR FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION, ENTERS INTO THIS RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE
ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST THE COMPANY AND THE RELEASED
PARTIES.
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RELEASOR
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By:
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5
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Agreed
to and Accepted:
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Mendocino
Brewing Company, Inc.,
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a
California corporation
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By:
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Name:
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Title:
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6
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STATE
OF CALIFORNIA
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)
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)
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ss
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COUNTY
OF _____________________
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)
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On
____________________, before me, ____________________________, Notary Public,
personally appeared _______________________________, who proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument, and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the
instrument.
I certify
under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS
my hand and official seal.
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(Seal)
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Notary
Public
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Article
I.
7