CERVECERIA RIO BRAVO
GENERAL MANAGER/BREWMASTER EMPLOYMENT AGREEMENT
Cerveceria Rio Bravo (the Company), and Xxxxx X. Xxxxxxxxx (the General
Manager/Brewmaster) desire to set forth the terms upon which the General
Manager/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 August 18, 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/Brewmaster shall perform his employment
at the brewing facilities of the Company located at Tecate, Baja California,
Mexico (the Brewery).
1.3. Supervisor. The General Manager/Brewmaster shall report to and his
activities shall be supervised by Chief Operating Officer of AmBrew
International.
1.4. Duties. The General Manager/Brewmaster 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/
Brewmaster 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/Brewmaster 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. The General Manager/Brewmaster shall use his best efforts, skill and
abilities to faithfully and effectively perform his duties as a master xxxxxx
for the Company. The General Manager/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 General Manager/Brewmaster shall perform his duties hereunder
during normal business hours. However, it is agreed by the General
Manager/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 General
Manager/Brewmaster shall not be entitled to additional compensation for work
performed during other than normal business hours. Included among the duties of
the General Manager/Brewmaster is the training of local Mexican nationals to
learn and function effectively and efficiently for positions as General Manager
and Brewmaster. This may entail one individual for both positions or separate
individuals.
1.5. Full Time. The General Manager/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 General Manager/Brewmaster for performance of
his services hereunder, the Company agrees to pay General Manager/Brewmaster,
and General Manager/Brewmaster agrees to accept, the following:
2.1 Salary. The Company will pay the General Manager/Brewmaster a salary
of Forty five thousand U.S. Dollars (US$45,000.00) 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 requirements, and any other
amounts which by agreement may be withheld for fringe benefits. This salary
shall be subject to review 6 months from the Commencement Date.
Stock Option Plan. The General Manager/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 Business Expenses. The Company will reimburse the General Manager/
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.
3.2. Leave. The General Manager/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 General
Manager/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.
4. Termination
4.1 By The General Manager/Brewmaster. The General Manager/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 General Manager/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
General Manager/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.
Because of Death or Ill Health. This Agreement shall terminate immediately upon
the death or disability of the General Manager/Brewmaster. "Ill health" shall
mean the inability of the General Manager/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.
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/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 General Manager/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 General Manager/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 General Manager/Brewmaster
agrees that during the term of this Agreement (as it may be extended) and
thereafter for a period of two years, the General Manager/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 General Manager/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 General Manager/
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 General Manager/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 General Manager/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 General Manager/
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.
7. Intellectual Property. All ideas, innovations, inventions, processes,
and other developments or improvements conceived or reduced to practice by the
General Manager/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 General Manager/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:
Company: The General Manager/Brewmaster
Xxxxx X. Xxxxxxxxx
Cerveceria Rio Bravo. 0000 Xxxxxxxx Xxx.
Boulevard Morelos #750 Xx Xxxx, Xxxxxxxxxx 00000
Tecate Baja California Tel: 000 000 0000
Mexico 21430
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/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 General Manager/
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.
Company General Manager/Brewmaster
Cerveceria Rio Xxxxx Xxxxx X. Xxxxxxxxx
By: ________________________________ ____________________________
Name Name
Date: 7-18-97 Date: 7-18-97
