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EXHIBIT 10.3
SOUTH CHINA BREWING COMPANY LIMITED
GENERAL MANAGER EMPLOYMENT AGREEMENT
SOUTH CHINA BREWING COMPANY LIMITED (the Company), and SCOTT ASHEN (the
General Manager) desire to set forth the terms upon which the General Manager
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,
and subject to the review described in paragraph 2.3 below, the term of this
Agreement is one (1) year with effect from February 1, 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 General Manager shall perform his employment at
the brewing facilities of the Company located at Aberdeen, Hong Kong (the
Brewery).
1.3 Supervisor. The General Manager shall report to and his
activities shall be supervised by the Chief Operating Officer of American Craft
Brewing Company Limited (AmBrew), or his delegate.
1.4 Duties. The General Manager shall use his best efforts, skill
and abilities to faithfully and effectively perform his duties as the manager
and administrator for the Company of the Brewery. The General Manager shall
perform such supervisory, management and administrative 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. The General Manager shall use
his best efforts, skill and ability to expand and promote the business of the
Company, to properly service the Company's business and to protect the
Company's good will, both as now enjoyed and hereafter acquired. It is
intended that for the most part the General Manager shall perform his duties
hereunder during normal business hours. However, it is agreed by the General
Manager that he may be required from time to time to perform his duties
hereunder at times other than normal business hours, and that the General
Manager shall not be entitled to additional compensation for work performed
during other than normal business hours.
1.5 Full Time. The General Manager 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.
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2. Compensation.
As full compensation to the General Manager for performance of his
services hereunder, the Company agrees to pay General Manager, and General
Manager agrees to accept, the following:
2.1 Salary. The Company will pay the General Manager a salary of
Hong Kong Dollars Three hundred twelve thousand (HK$312,000) 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 requirements, and any other amounts which by
agreement may be withheld for fringe benefits.
2.2 Bonus. Provided this Agreement has not been terminated, the
Company shall pay the General Manager a bonus, equal to a minimum of 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 Initial Review. The General Manager's employment under this
Agreement shall be subject to review of the General Manager's job performance
within 90 days from the Commencement Date. On or before 90 days from the
Commencement Date, the Company may terminate this Agreement with or without
cause in its sole discretion.
3. Benefits.
3.1 Medical Benefits; Life and Disability Insurance Plans. The
Company will pay premiums for the General Manager's participation in the life,
health and disability insurance plans of the Company, provided that the General
Manager is accepted for coverage which is at the sole discretion of the
insurer. If available, the premiums for coverage of the General Manager's
dependents shall be paid by the General Manager.
3.2 Business Expenses. The Company will reimburse the General
Manager 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 General Manager is entitled to three weeks leave
during the first 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 General Manager'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.
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4. Termination
4.1 By The General Manager. The General Manager 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 General Manager 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
General Manager; (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 General Manager.
"III health" shall mean the inability of the General Manager 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 General Manager 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 General Manager 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 General Manager 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 General Manager agrees that during the term
of this Agreement (as it may be extended) and thereafter for a period of two
years, the General Manager 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
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termination of this Agreement, the General Manager 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 (h) 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 General Manager 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 General Manager; 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 General Manager agrees that during the term of this
Agreement (as it may be extended) and for a period of one year thereafter he
shall not within fifty miles of any location in Asia 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
General Manager 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
General Manager, 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 General Manager 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 General Manager
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South China Brewing Company Limited Scott Ashen
c/o AmBrew Unit A-1, 1/F, Vita Tower
One Galleria Boulevard, Suite 1714 29 Wong Chuk Hang Road
Metairie, Louisiana 70001 Aberdeen, HONG KONG
U.S.A.
Attention: Jim Ake, Executive Vice-President
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 General Manager 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. AU 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 General Manager
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 General Manager
South China Brewing Company Limited
By: /s/ James L. Ake /s/ Scott Ashen
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Name: Name:
Date: March 6, 1997 Date: /s/ March 18, 1997
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