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EXHIBIT 10.2
SOUTH CHINA BREWING COMPANY LIMITED
BREWMASTER EMPLOYMENT AGREEMENT
SOUTH CHINA BREWING COMPANY LIMITED (the Company), and XXXX X'XXXX (the
Brewmaster) desire to set forth the terms upon which the Brewmaster will be
employed by the Company during the term of this Agreement, and therefore agree
as follows:
1. Working Relationship
1.1 Term. Unless terminated sooner pursuant to paragraph 4 below,
the term of this Agreement is two (2) years with effect from March 20, 1997
(the Commencement Date). This term may be extended once or more for such
length of time as agreed in a written instrument signed by the parties.
1.2 Location. The Brewmaster shall perform his employment at the
brewing facilities of the Company located Aberdeen, Hong Kong (the Brewery).
1.3 Supervisor. The Brewmaster shall report to and his activities
shall be supervised by the General Manager of the Brewery.
1.4 Duties. The Brewmaster shall use his best efforts, skill and
abilities to faithfully and effectively perform his duties as a master xxxxxx
for the Company. The Brewmaster shall perform such functions as may be
commensurate with his position and such other duties as may from time to time
reasonably be delegated to him by the Company. It is intended that for the
most part the Brewmaster shall perform his duties hereunder during normal
business hours. However, it is agreed by the Brewmaster that he may be
required from time to time to perform his duties hereunder at times other than
normal business hours, and that the Brewmaster shall not be entitled to
additional compensation for work performed during other than normal business
hours.
1.5 Full Time. The Brewmaster shall devote full and exclusive
business time and energies to the performance of his duties under this
Agreement, except that he shall be free to devote reasonable time and attention
to public and charitable affairs and to his personal affairs, consistent with
his duties hereunder, but only if the handling of such charitable and personal
affairs do not interfere with the normal day-to-day operations of the Company.
2. Compensation.
As full compensation to the Brewmaster for performance of his services
hereunder, the Company agrees to pay Brewmaster, and Brewmaster agrees to
accept, the following:
2.1 Salary. The Company will pay the Brewmaster a salary of three
hundred twelve thousand Hong Kong Dollars (HK$312,000.00) per annum by monthly
installments in arrears from the Commencement Date, less any amounts required
to be withheld under any applicable federal, state or local income tax laws or
by any other withholding
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requirements, and any other amounts which by agreement may be withheld for
fringe benefits. This salary shall be subject to review 12 months from the
Commencement Date.
2.2 Bonus. Provided this Agreement has not been terminated, the
Company shall pay the Brewmaster a bonus, equal to one (1) month's salary at
the end of 12 months from the Commencement Date. Subsequent bonuses will be at
the sole discretion of the Company but will not be less than one month's
salary.
2.3 Stock Option Plan. The Brewmaster shall be eligible to
participate in the 1996 Stock Option Plan of American Craft Brewing
International Limited on the basis described therein.
3. Benefits.
3.1 Medical Benefits; Life and Disability Insurance Plans. The
Company will pay premiums for the Brewmaster's participation in the life,
health and disability insurance plans of the Company, provided that the
Brewmaster is accepted for coverage which is at the sole discretion of the
insurer. If available, the premiums for coverage of the Brewmaster's
dependents shall be paid by the Brewmaster.
3.2 Business Expenses. The Company will reimburse the Brewmaster
for preapproved expenses actually incurred in connection with the performance
of the duties hereunder, against receipts or other appropriate written evidence
of such expenditures, all in accordance with the policies of the Company as
adopted from time to time.
3.3 Leave. The Brewmaster is entitled to two weeks leave during
the first year and three weeks in the second year of the term of this
Agreement, which shall be taken as determined by the Company, as well as
holidays in accordance with applicable policies from time to time adopted by
the Company. Time at which leave is taken is dependent on seniority, family
circumstances and the exigencies of the Company's business but subject thereto,
leave shall be scheduled insofar as is practicable so as to meet the
Brewmaster's convenience. Leave cannot be accumulated and any unused leave at
the end of the term of this Agreement, or upon termination of this Agreement
for any reason, shall not be compensated.
3.4 Home Leave. During each year of the term of this Agreement,
the Company will pay for one (1) round trip economy fare air ticket to be used
by the Brewmaster for travel to the United States, or the equivalent if the
Brewmaster wishes to take his leave elsewhere.
4. Termination
4.1 By The Brewmaster. The Brewmaster may terminate this
Agreement by giving the Company not less than three (3) months written notice
or payment of three months' salary in lieu of notice.
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4.2 By the Company Without Cause. The Company may terminate this
Agreement without cause at anytime by giving to the Brewmaster three (3)
months' written notice or by paying him three (3) months' salary in lieu of
notice.
4.3 By the Company With Cause. The Company may at anytime
terminate this Agreement for cause on immediate written notice and without
payment or compensation whatsoever.
For the purposes of this paragraph and of this Agreement, "cause" shall
mean: (1) fraud, dishonesty or any other intentional wrongful act, whether or
not in connection with employment under this Agreement; (2) any violation of
law (excluding minor traffic violations) conviction thereof or plea of guilty
or nolo contendere thereto, moral turpitude or other willful misconduct by the
Brewmaster; (3) accepting or undertaking any outside employment without prior
written permission of the Company; (4) incompetence or negligence in the
performance of any duties or obligations hereunder; or (5) the failure or
refusal to perform, carry out or comply with any duties or obligations
hereunder.
4.4 Because of Death or Ill Health. This Agreement shall
terminate immediately upon the death or disability of the Brewmaster. "Ill
health" shall mean the inability of the Brewmaster to properly perform his
duties hereunder for a period of ninety (90) or more days by reason of a health
condition not self-induced as certified by a medical practitioner chosen by the
Company.
4.5 No Further Payments by Company. Except for the payment in
lieu of notice provided in paragraph 4.2, upon termination of this Agreement
for any reason the Brewmaster shall not be entitled to any further payments or
compensation from the Company except unpaid salary prorated to the date of
termination.
4.6 Cooperation with the Company after Termination. Following
termination of this Agreement for any reason, the Brewmaster shall fully
cooperate with the Company in all matters relating to the winding up of his
pending work and the orderly transfer of pending work to others as may be
designated by the Company.
5. Confidentiality and Non-Disclosure. The Brewmaster acknowledges that
during the term of this Agreement he will receive confidential, proprietary
information and trade secrets from the Company, and from parents and affiliates
of the Company and from the respective clients thereof (each a Relevant
Entity). Accordingly, the Brewmaster agrees that during the term of this
Agreement (as it may be extended) and thereafter for a period of two years, the
Brewmaster and his affiliates shall not, except in the performance of his
obligations to the Company hereunder or as may otherwise be approved in advance
by the Company, directly or indirectly disclose or use any Trade Secret that he
may learn or has learned by reason of his association with any Relevant Entity.
Upon termination of this Agreement, the Brewmaster shall promptly return to the
Company any and all property, records or papers of any Relevant Entity that may
be or have been in his possession, whether prepared by him or others,
including, but not limited to, trade secrets and keys. For purposes of this
Agreement, "trade secrets" includes all data, analyses, reports,
interpretations, forecasts, documents and information concerning a Relevant
Entity and its affairs, including, without limitation, with respect to clients,
customers, products, policies,
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procedures, methodologies, any other intellectual property, systems, personnel,
confidential reports, technical information, financial information, business
transactions, business plans, prospects or opportunities, (i) that the Company
reasonably believes are confidential or (ii) the disclosure of which could be
injurious to a Relevant Entity or beneficial to competitors of a Relevant
Entity, but shall exclude any information that the Brewmaster is required to
disclose under any applicable laws, regulations or directives of any government
agency, tribunal or authority having jurisdiction in the matter or under
subpoena or other process of law. For purposes of this Agreement, "affiliate"
means any entity that, directly or indirectly, is controlled by, or under
common control with the Brewmaster; for purposes of this definition, the terms
"controlled by" and "under common control with" means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such person, whether through the ownership of voting stock, by
contract or otherwise. For purposes of this Agreement, parent of the Company
is defined herein as American Craft Brewing International Limited.
6. Non-Competition.
6.1 The Brewmaster agrees that during the term of this Agreement
(as it may be extended) and for a period of two years thereafter he shall not
within fifty miles of any location which the Company, its parent or any of its
subsidiaries or affiliates is operating and/or has a letter of intent to form
an operating venture and/or has an agreement for a microbrewery (a) engage in
any activity competitive with the business of the Company, its parent or
subsidiaries or affiliates, for or on behalf of the Brewmaster or any other
person or entity engaged in a line of business which competes with the Company,
its parent or subsidiaries or affiliates; (b) solicit or attempt to solicit the
business of any clients or customers of the Company, its parent or subsidiaries
or affiliates, for products that are the same or similar to those offered, sold
or produced at any time by the Company, its parent or subsidiaries or
affiliates; (c) otherwise divert or attempt to divert from the Company, its
parent or subsidiaries or affiliates, any business whatsoever; (d) hire or
attempt to hire for any business endeavor any employee or prior employee of any
of the Company, its parent or subsidiaries or affiliates; or (e) interfere with
any business relationship of the Company, its parent or subsidiaries or
affiliates, with any other person or entity.
6.2 Severability and Reform. If any portion of Section 6.1 shall
for any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of Section 6.1, but Section 6.1 shall be construed as if such
invalid, illegal or unenforceable provision had never been contained therein.
It is the intention of the parties hereto that if any of the restrictions or
covenants contained in Section 6.1 is held to cover a geographic area or to be
for a length of time that is not permitted by applicable law, or in any way
construed to be too broad or invalid, such provision shall not be construed to
be null, void and of no enforceable effect, but to the extent such provision
would be valid or enforceable under applicable law, a court of competent
jurisdiction shall construe and interpret or reform Section 6.1 to provide for
a covenant having the maximum enforceable geographic area, time period and
other provisions (not greater than those contained herein) as shall be valid
and enforceable under such applicable law.
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7. Intellectual Property. All ideas, innovations, inventions, processes,
and other developments or improvements conceived or reduced to practice by the
Brewmaster, alone or with others, during the term of this employment agreement,
whether or not during working hours, that are within the scope of the
Company's, its parents' or subsidiaries' or affiliates', business operations or
that relate to any of the Company's, its parents' or subsidiaries' or
affiliates' work or projects, shall be the exclusive property of the Company.
The Brewmaster agrees to assist the Company, at its expense, to obtain patents,
trademarks or licenses on any such ideas, inventions, processes, and other
developments, and agrees to execute all documents necessary to obtain such
patent, trademark, and license for the sole use of the Company, its parents or
subsidiaries or affiliates.
8. Notices.
8.1 Addresses. Any notice or communication required or permitted
to be given under this Agreement shall be in writing, and conveyed by hand, air
courier, facsimile, or return receipt registered mail, addressed as follows:
The Company: The Brewmaster
General Manager Xxxx X'Xxxx
South China Brewing Co. South China Brewing Co.
Unit Al, 1/F; Vita Tower Xxxx X0, 0/X; Xxxx Xxxxx
00 Xxxx Xxxx Xxxx Rd. 00 Xxxx Xxxx Xxxx Xx
Xxxxxxxx Xxxxxxxx
Xxxx Xxxx Hong Kong
8.2 Date of Notice. Any notice given in accordance with paragraph
8.1 shall be deemed to have been received on, and is effective as of, the date
it was delivered by hand or sent by facsimile, two business days after the date
it was deposited with an air courier, and the date on the return receipt if by
registered mail.
9. Governing, Law; Consent to Jurisdiction. This Agreement, and any
matter arising under or related to it, shall be governed by and construed in
accordance with the laws of the State of Louisiana, U.S.A., without regard to
its choice or conflict of law provision. The Brewmaster irrevocably submits to
personal jurisdiction in the courts of Louisiana with respect to any matter
arising under or related to this Agreement or his employment by the Company.
10. General Provisions.
10.1 Amendments. This Agreement may be amended only pursuant to an
instrument in writing signed by each of the parties hereto.
10.2 Headings. The headings in this Agreement are for convenience
only and are in no way intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any of its provisions.
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10.3 Waivers; Rights and Remedies Cumulative. The failure of any
party to pursue any remedy for breach, or to insist upon the strict performance
of any covenant or condition contained in this Agreement shall not constitute a
waiver thereof of any right with respect to any subsequent breach. Except as
otherwise expressly set forth herein, rights and remedies under this Agreement
are cumulative, and the pursuit of any one right or remedy by any party shall
not preclude, or constitute a waiver of, the right to pursue any or all other
remedies. All rights and remedies provided under this Agreement are in
addition to any other rights the parties may have by law, in equity or
otherwise.
10.4 Successors and Assigns. All of the covenants, tenons,
provisions and agreements contained in this Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and, in the case of the
Company, its respective successors and assigns.
10.5 No Third-Party Beneficiaries. The covenants, obligations and
rights set forth in this Agreement are not intended to benefit any third person
or entity.
10.6 Entire Agreement. This Agreement embodies the entire
understanding and agreement between the parties and supersedes any and all
prior negotiations, understandings or agreements between the parties concerning
the subject matter hereof with respect hereto.
10.7 Attorney's Fees. In the event that either the Brewmaster or
the Company commences a legal proceeding (including arbitration) to enforce or
interpret any of the terms of this Agreement or to terminate this Agreement,
the prevailing party in such action shall receive from the other party
reasonable attorney's fees as may be fixed by the arbitrator, court or jury.
10.8 Arbitration. Any controversy or claim arising out of or
relating to this Agreement shall be settled by arbitration administered by the
American Arbitration Association in accordance with its applicable rules. Any
judgment upon the award rendered in such arbitration may be entered in any
court of competent jurisdiction.
10.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument. The Agreement may be
assembled into a single document by attaching each page bearing a party's
original signature.
The Company The Brewmaster
South China Brewing Company Limited Xxxx X'Xxxx
By: /s/ Xxxxx Xxxxx /s/ Xxxx X'Xxxx
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Name Name
Date: March 5, 1997 Date: /s/ 3/18/97
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