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EXHIBIT 10.6
CONSULTING AGREEMENT
This Agreement is effective as of the 1st day of January, 1997, unless
herein, and is entered into by and between AMERICAN CRAFT BREWING INTERNATIONAL
LIMITED (the Company), a Bermuda corporation, having its principal address at
Xxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxx 00000; the SOUTH CHINA
BREWING COMPANY LIMITED (South China), a Hong Kong company and a wholly owned
subsidiary of the Company; XXXXX X. XXXXXX (Xxxxxx or the Consultant), an
individual whose principal address is written beneath his signature below; and
LUNAR HOLDINGS, LIMITED (Lunar), a Hong Kong company wholly owned and operated
by Xxxxxx.
The Company, South China, Lunar and the Consultant together wish to
terminate any and all prior agreements respecting the working relationship
and/or employments among and by them, including but not limited to (1) the
Management Agreement, dated April 1, 1995 by and between Lunar and South China,
and (2) the Agreement, dated as of August 31, 1996, among the Company, South
China, Xxxxxx and Lunar; and now wish to set forth herein the terms of the
relationship between the Consultant and the Company.
Therefore, the parties agree as follows:
1. PRIOR AGREEMENTS
1.1 TERMINATION. All prior agreements by and among the parties
respecting the working relationship and/or employments among and by them,
including but not limited to the agreements described above, are terminated
with effect as of the close of business on December 31, 1996, unless otherwise
provided herein.
1.2 SUPERSEDING AGREEMENT. This Agreement supersedes any and all
of the prior agreements and/or employments among the parties, including but not
limited to those
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described above, and constitutes the entire agreement and working relationship
by and among the parties.
2. WORKING RELATIONSHIP
2.1 RETENTION OF CONSULTANT. The Company retains the services of
the Consultant, and the Consultant shall provide services to the Company for
the compensation and under the terms and conditions herein provided.
2.2 TERMS. The term of this Agreement shall commence on the 1st
day of January, 1997, and shall continue through and end on October 31, 1997 or
until terminated by the Company or the Consultant as herein provided.
2.3 DUTIES. The Consultant shall furnish consultation and advice
to the Company as requested by the Company, subject to the following
conditions:
(a) The Consultant shall receive assignments from, report
to, and be supervised by Xxxxx X. Xxx, his delegate
or successor.
(b) The Consultant is required to devote part and
reasonable time and attention to the Company and shall
exercise his best efforts to timely perform
assignments.
(c) The Consultant shall perform assignments, to the
extent practicable, at the place, time and in the
manner requested by the Company.
(d) The Consultant understands that he is not an employee
of the Company, that the Company is not required to
provide him with worker's compensation or other
similar insurance coverages, and that he is
responsible for paying and/or withholding any and all
taxes applicable to the compensation received from the
Company, including but not limited to income, social
security, unemployment and disability taxes.
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2.4 INDEPENDENT CONTRACTOR STATUS. In performing this Agreement,
the Consultant shall be acting as an independent contractor of the Company.
Accordingly, the Consultant shall have no authority to act for or on behalf of
the Company or to bind the Company without its express written consent and
shall not be considered as having employee status for the purpose of any
employee benefit plan applicable to the Company's employees generally.
3. COMPENSATION
3.1 BASE COMPENSATION. As compensation for his services
hereunder, the Company shall pay the Consultant during the term of this
Agreement US$4,500.00 per calendar month in arrears. If this Agreement is
terminated for any reason before the last day of a calendar month the Company
shall pay the Consultant on the last business day of such month an amount equal
to the amount specified in the preceding sentence reduced by multiplying such
amount by a quotient, the numerator of which is the number of days during such
month prior to the termination of this Agreement and the denominator of which
is the number of days in such month.
All compensation shall be paid by telegraphic transfer through South
China Brewing Company Limited's accounts on the 25th of each month or nearest
previous business day.
3.2 BONUS. The Company shall pay a bonus of 3% of net profit
before income tax of South China Brewing Company Limited for the period January
1, 1997 through October 31, 1997.
3.3 PARTICIPATING IN BENEFIT AND INSURANCE PLANS. During the term
of this Agreement, the Company shall pay an allowance of US$500.00 per calendar
month, in the
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aggregate, for participation by the Consultant in the life, health and
disability insurance plans of the Company.
4. EXPENSES
4.1 CAR ALLOWANCE. During the term of this Agreement, the Company
shall pay the Consultant an allowance of US$500.00 per month, in the aggregate,
for the automobile used by the Consultant in performing his duties hereunder.
The consultant shall be responsible for taxes, fees, maintenance, and insurance
of such automobile.
4.2 REIMBURSEMENT OF PRE-APPROVED EXPENSES. The Company shall
reimburse the Consultant for pre-approved travel, lodging, entertainment, and
other expenses actually incurred by him in connection with the performance of
his duties hereunder, against vouchers and receipts or other appropriate
written evidence of such expenditures, all in accordance with the applicable
policies of the Company. The Consultant shall be reimbursed for coach class
airfare on domestic flights and business class airfare on international
flights.
5. TERMINATION OF AGREEMENT
5.1 EVENTS OF TERMINATION. This Agreement, and all of the
obligations hereunder except the post- termination obligations below, shall
immediately terminate upon the earliest to occur of the following:
(a) immediately upon written notice of termination to the
Company by the Consultant;
(b) immediately upon written notice of termination for
cause to the Consultant by the Company; "cause" shall
mean (i) fraud or any other intentional wrongful act,
any violation of law (excluding minor traffic
violations), conviction thereof or plea of guilty or
nolo contendere
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thereto, moral turpitude or other willful misconduct
by the Consultant or (ii) the Consultant's failure or
refusal to perform, carry out or comply with the
Consultant's duties or obligations hereunder in any
material respect;
(c) immediately upon written notice of termination without
cause to the Consultant by the Company; if termination
is without cause to the Consultant by the Company
salary and benefits are guaranteed through the term of
this agreement; /S/ AND SECTION 6.1 IS DELETED.
(d) upon the death or permanent disability of Consultant;
"permanent disability" shall mean the inability of the
Consultant to perform his duties hereunder by reason
of physical or mental disability during any continuous
period of two months or for periods aggregating two
months during the term of this agreement.
5.2 COOPERATION WITH THE COMPANY AFTER TERMINATION. Following any
notice of termination of this Agreement, the Consultant shall fully cooperate
with the Company in all matters relating to the winding up of his pending work
on behalf of the Company and the orderly transfer of any such pending work to
others as may be designated by the Company.
5.3 CONFIDENTIALITY, RETURN OF PROPERTY. The Consultant
acknowledges that during the term of this Agreement he will receive
confidential information from the Company and subsidiaries of the Company and
the respective clients thereof (each a Relevant Entity), and accordingly the
Consultant agrees that during the term of this Agreement and thereafter for a
period of two years, the Consultant 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
(except for the direct benefit of the
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Company) any confidential information that he may learn or has learned by
reason of his association with any Relevant Entity.
Upon termination of this Agreement, the Consultant shall promptly
return to the Company any and all properties, records, papers of any Relevant
Entity, that may have been in his possession at the time of termination,
whether prepared by the Consultant or others, including, but not limited to,
confidential information and keys.
For purposes of this Agreement, "confidential information" includes all
data, analyses, reports, interpretations, forecasts, documents and information
concerning a Relevant Entity and its affairs, including, without limitation,
with respect to clients, products, policies, procedures, methodologies, trade
secrets and 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 Consultant 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
Consultant; for the 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.
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6. NON-COMPETITION
6.1 NON-COMPETITION. The Consultant agrees that during the term
of this Agreement and for a period of one year thereafter, he and his
affiliates shall not in Asia for those locations that AmBrew and/or its
subsidiaries are operating and/or have a letter of intent to form an operating
venture and/or have an agreement for a microbrewery (a) engage in any activity
competitive with the business of the Company, its parent or affiliates, for or
on behalf of himself or any other person or entity engaged in a line of
business which competes with the Company, its parent or affiliates; (b) solicit
or attempt to solicit the business of any clients or customers of the Company,
its parent 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 affiliates;
(c) otherwise divert or attempt to divert from the Company, its parent 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 affiliates; or (e) interfere with any business relationship of the
Company, its parent 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
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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.
7. MISCELLANEOUS
7.1 NOTICES. Any notice or communication required or permitted to
be given under this Agreement shall be (a) in writing, (b) delivered by hand,
Federal Express, facsimile transmission or by registered or certified mail,
postage prepaid, if to the Company, to the attention of Xxxxx X. Xxx at the
address set forth above, or if to the Consultant at his address set forth
below, or at such other addresses as the respective parties may designate by
such notice and (c) deemed to have been given on the date delivered by hand or
sent by facsimile, two business days after deposit with Federal Express and
upon receipt after being deposited with a governmental postal service.
7.2 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement, and
its application or interpretation, shall be governed by the laws of Louisiana
applicable to agreements made and to be performed entirely therein. The
Consultant irrevocably submits to the jurisdiction over his person by the
courts of Louisiana.
7.3 AMENDMENTS. This Agreement may be amended only pursuant to an
instrument in writing signed by each of the parties hereto.
7.4 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.
7.5 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
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contained in this Agreement shall not constitute a waiver thereof or 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.
7.6 SEVERABILITY. If any provision, or portion thereof, of this
Agreement, or its application to any person or entity or circumstance, shall be
invalid, illegal or unenforceable to any extent, the remainder of this
Agreement, such provision and their application shall not be affected thereby,
but shall be interpreted without such unenforceable provision or portion
thereof so as to give effect, insofar as is possible, to the original intent of
the parties, and shall otherwise be enforceable to the fullest extent permitted
by law.
7.7 SUCCESSORS AND ASSIGNS. All of the covenants, terms,
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.
7.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
7.9 NO THIRD-PARTY BENEFICIARIES. The covenants, obligations and
rights set forth in this Agreement are not intended to benefit any third person
or entity.
7.10 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.
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7.11 ATTORNEY'S FEES. In the event that either the Company or
Consultant 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.
7.12 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.
THUS DONE AND SIGNED in the Parish of Jefferson, State of Louisiana on
this 14th day of February, 1997, in the presence of the undersigned competent
witnesses and me, Notary Public, after due reading of the whole.
WITNESSES: AMERICAN CRAFT BREWING
INTERNATIONAL LIMITED
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Executive Vice-President
/s/ Xxxxxxxxx X. Xxxxx Date: /s/ 2/14/97
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/s/ Xxxxx X. Xxxxxxx
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NOTARY PUBLIC
Commissioned for Life
THUS DONE AND SIGNED in the Parish of Jefferson, State of Louisiana on
this 14th day of February, 1997, in the presence of the undersigned competent
witnesses and me, Notary Public, after due reading of the whole.
WITNESSES: SOUTH CHINA BREWING COMPANY LIMITED
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: /s/ Director
---------------------------------
/s/ Xxxxxxxxx X. Xxxxx Date: /s/ 2/14/97
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/s/ Xxxxx X. Xxxxxxx
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NOTARY PUBLIC
Commissioned for Life
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THUS DONE AND SIGNED in the Parish of Jefferson, State of Louisiana on
this 14th day of February, 1997, in the presence of the undersigned competent
witnesses and me, Notary Public, after due reading of the whole.
WITNESSES:
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX, Individually
Address X-0, 0/X Xxxxxxxxx Xxxxxxx
----------------------------
/s/ Xxxxxxxxx X. Xxxxx 00 Xxxxxxxx Xx., Xxx-xxxxxx,
---------------------------------- Xxxx Xxxx
------------------------------------
Date: /s/ 2/14/97
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/s/ Xxxxx X. Xxxxxxx
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NOTARY PUBLIC
Commissioned for Life
THUS DONE AND SIGNED in the Parish of Jefferson, State of Louisiana on
this 14th day of February, 1997, in the presence of the undersigned competent
witnesses and me, Notary Public, after due reading of the whole.
WITNESSES: LUNAR HOLDINGS, LIMITED
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice-President
/s/ Xxxxxxxxx X. Xxxxx Date: 2/14/97
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/s/ Xxxxx X. Xxxxxxx
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NOTARY PUBLIC
Commissioned for Life
