1
EXHIBIT 10.8
CELTIC BREW LLC
BREWMASTER EMPLOYMENT AGREEMENT
CELTIC BREW LLC (the Company), and Xxxxxxx Xxxxxx Xxxxxxx (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 one (1) year with effect from March 24,
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 at Xxxxxxx, Xx. Xxxxx, Xxxxxxx
(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 in Irish
Pounds the equivalent of a salary of Forty thousand United States Dollars
(US$40,000.00) per annum
2
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 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 the 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.
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.
2.4 Tax Equalization. The Company agrees to assume and
pay the Brewmaster's actual foreign and United States income tax liabilities in
excess of the Brewmaster's hypothetical tax liability. For purposes of this
paragraph, "hypothetical tax liability" means the amount agreed to by the
Company by which the Brewmaster's actual foreign and United States tax
liabilities exceed the Brewmaster's tax liability on the salary set forth in
paragraph 2.1 above had the Brewmaster received that salary while residing in
the United States.
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 pre-approved 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
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.
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.
4
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 this 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, 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.
5
6.2 Severability and Reform. If any portion of Section
6.1 shall for any reason be held invalid, illegal or unenforceable in any
resect, 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.
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 Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
Celtic Brew LLC Celtic Brew LLC
Enfield Industrial Estate Enfield Industrial Estate
Enfield, Co. Meath Xxxxxxx, Xx. Xxxxx
Xxxxxxx Ireland
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.
6
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.
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, 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.
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.
7
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
Celtic Brew LLC Xxxxxxx Xxxxxx Xxxxxxx
By: /s/ Xxxxx X. Xxx /s/ Xxxxxxx Xxxxxx Xxxxxxx
----------------------- ----------------------------------
Name Name
Date: March 4, 1997 Date: 3/7/97
