EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
99.3
This
Agreement is made as of May 21, 2008 between Constellation Brands, Inc., a
Delaware corporation (“Constellation”), and Xxxx Xxxxxxxxx
(“Executive”).
Executive
has contributed substantially to the growth and success of
Constellation. Accordingly, Constellation desires to retain
Executive’s services as set forth in the Agreement and to provide the necessary
consideration to assure such services.
Constellation
and Executive therefore agree as follows:
1. Employment. Constellation
hereby employs Executive as its Chief Executive Officer, Constellation Wines
North America or in such other senior executive position with Constellation or
its affiliates as Constellation and Executive shall mutually agree
upon. Executive hereby accepts the employment specified herein,
agrees to perform, in good faith, the duties, consistent with his position, to
abide by the terms and conditions described in this Agreement and to devote his
full working time and best efforts to Constellation and its
affiliates. These obligations shall not restrict Executive from
engaging in customary activities as a director or trustee of other business or
not-for-profit organizations so long as such activities, in the reasonable
opinion of Constellation or its Board of Directors, do not materially interfere
with the performance of Executive’s responsibilities under this Agreement or
create a real or apparent conflict of interests.
2. Term of
Employment. The term of employment under this Agreement shall
commence on the date set forth above and shall expire on February 28, 2011,
provided that on February 28, 2011, and on each subsequent anniversary thereof,
the term shall automatically be extended by the parties for an additional
one-year period, until Constellation gives Executive notice, not less than 180
days prior to February 28, 2011, or an anniversary thereof, of a decision not to
extend the Agreement for an additional one-year period.
3. Compensation.
(a) During
the term of Executive’s employment, Constellation shall pay him a base salary at
the rate of $669,500 per annum or such greater amount as the Human Resources
Committee of the Board shall determine (“Base Salary”). Such Base
Salary shall be payable in accordance with Constellation’s standard payroll
practices for senior executives. Constellation may pay Executive a
bonus in such amount and at such time or times as the Human Resources Committee
of the Board shall determine.
(b) For
so long as Constellation continues to require you to operate out of two primary
business locations (i.e., California and New York State), Constellation will
provide during your period of employment, in addition to your Base Salary,
either (i) in the case you own homes in both locations, a $3,000 monthly
allowance to assist in defraying the costs of maintaining two households and the
use of a second leased vehicle or (ii) if you own a home in only one location,
reasonable housing, rental of associated
furnishings,
coverage of utilities and maintenance, and use of a second leased vehicle at the
other location as well as reimbursement of reasonable travel for your
spouse. For this period of time, Constellation will also provide you
with reasonable personal income tax preparation services by a provider to be
selected by Constellation. Executive, however, will be responsible
for all personal income taxes associated with any of the above-described monthly
allowance payments, in-kind benefits and reimbursements.
4. Reimbursement for
Expenses/Benefits. Executive shall be expected to incur
various reasonable business expenses customarily incurred by persons holding
like positions, including but not limited to traveling, entertainment and
similar expenses incurred for the benefit of
Constellation. Constellation shall reimburse Executive for such
expenses from time to time, at Executive’s request, and Executive shall account
to Constellation for such expenses. Executive shall participate in
such benefit plans that are generally made available to all executives of
Constellation.
5. Definitions.
“Board”
or “Board of Directors” means the Board of Directors of Constellation Brands,
Inc.
“COBRA”
means the continuation of health care rules of Part 6 of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Disability”
means an illness or other condition which has incapacitated Executive or can
reasonably be expected to incapacitate Executive from performing his duties for
a period of at least six months as determined in good faith by the
Board.
“For
Cause Termination” means Constellation terminates Executive for (1) any
intentional, non-incidental misappropriation of funds or property of
Constellation by Executive; (2) unreasonable (and persistent) neglect or refusal
by Executive to perform his duties as provided in Section 1 hereof and which he
does not remedy within thirty days after receipt of written notice from
Constellation; (3) the material breach by Executive of any provision of Sections
8 or 10 which he does not remedy within thirty days after receipt of written
notice from Constellation; or (4) conviction of Executive of a
felony.
“Good
Reason Termination” means Executive terminates his employment under this
Agreement for “good reason” upon 30 days’ notice to Constellation given within
90 days following the occurrence of any of the following events without his
consent, each of which shall constitute a “good reason” for such termination;
provided that the following events shall not constitute “good reason” if the
event is remedied by Constellation within 30 days after receipt of notice given
by Executive to Constellation specifying the event:
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(a) Constellation
acts to reduce Executive’s employment band or materially reduce Executive’s
duties and responsibilities;
(b) Constellation
reduces the amount of Executive’s Base Salary;
(c) Constellation
acts to change the principal geographic locations of the performance of
Executive’s duties to include a principal place of business that is more than 30
miles from either of Executive’s current principal places of business in
Canandaigua, New York and San Francisco, California; or
(d) Constellation
materially breaches this Agreement.
“Retirement”
means Executive terminates employment with Constellation and its affiliates for
any reason other than a “For Cause Termination” after attaining age 60 and
completing ten (10) years of service with Constellation or its
affiliates.
“Section
409A” means Section 409A of the Internal Revenue Code of 1986, as amended, and
the Treasury Department regulations and other authoritative guidance issued
thereunder.
“Termination
Date” means the date that the Executive ceases active employment with
Constellation and its affiliates.
6. Consequence of Termination
or Expiration of Agreement. If (i) Executive voluntarily
ceases employment with Constellation and its affiliates, quits or terminates
this Agreement for any reason other than Retirement or a Good Reason
Termination, or (ii) Constellation terminates the employment of Executive in a
For Cause Termination, then Executive’s rights and Constellation’s obligations
hereunder shall forthwith terminate except that Executive shall be paid, as soon
as administratively practicable after the Termination Date, all earned but
unpaid base salary, accrued paid time off and accrued but unreimbursed expenses
required to be reimbursed under this Agreement.
If
Executive’s employment with Constellation and its affiliates terminates after
this Agreement expires or if, during the term of this Agreement, Executive’s
employment with Constellation and its affiliates is terminated (i) due to
Executive’s death; (ii) due to Executive’s Disability; (iii) by Executive for a
Good Reason Termination; (iv) due to Executive’s Retirement; or (v) by
Constellation for any reason other than a For Cause Termination, then Executive
shall be entitled to the following (which shall be in full and complete
satisfaction of all of Constellation’s obligations under this
Agreement):
(a) Constellation
shall pay to Executive all earned but unpaid Base Salary, accrued paid time off and accrued but
unreimbursed expenses required to be reimbursed under this Agreement;
and
(b) Constellation
shall pay to Executive a cash amount equal to two (2) times his Base Salary as in
effect on the Termination Date plus two (2) times his Previous
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Bonus (as
defined below). For purposes of this Agreement, “Previous Bonus”
shall equal the average annual cash bonus paid to Executive over the three most
recently completed fiscal years, whether under Constellation’s Annual Management
Incentive Plan or otherwise; and
(c) Commencing
on the first business day of the month following the month in which the
Termination Date occurs and for the 23 months following such date, Constellation
shall pay Executive an amount equal to the monthly cost of Executive’s medical
and dental coverage as of the Termination Date taking into account both
Constellation’s and Executive’s cost for such coverage; and
(d) Commencing
on the first business day of the month following the month in which the
Termination Date occurs and for the 23 months following such date, Constellation
shall provide Executive with monthly cash payments equal to the monthly value of
the benefit Executive was receiving as of the Termination Date pursuant to the
automobile allowance program as then in effect; and
(e)
For the two (2) year period after the Termination Date, Constellation shall
permit Executive to take advantage of Constellation’s annual product allowance
program as in effect on the Termination Date; and
(f)
For the eighteen (18) month period after the Termination Date, Constellation
shall provide Executive with reasonable outplacement services; and
(g) Constellation
shall provide Executive with the opportunity to purchase continued health care
coverage under Constellation’s plans as required by COBRA; and
(h) Executive
shall not be required to mitigate damages or the amount of any payment provided
for under this Agreement by seeking other employment or otherwise, nor will any
payments hereunder be subject to offset in respect of compensation earned as a
result of Executive’s employment with another employer subsequent to the
Executive’s termination with Constellation and its affiliates.
7. Timing of
Payments
All
payments under Section 6(a) shall be due and payable, as soon as
administratively practicable after the Termination Date. All payments
under Section 6(b) shall be due and payable in a single lump sum amount within
forty-five (45) days after the Termination Date. Payments or benefits
set forth in Sections 6(c)-(f) shall be paid or provided at such times set forth
therein. Notwithstanding the foregoing, no amounts or benefits under
Sections 6(b)-(f) are payable to Executive hereunder unless Executive signs
and executes a release substantially in the form attached hereto as Exhibit A
and such release becomes effective and nonrevocable within forty-five (45) days
after the Termination Date. The following rules shall apply to
reimbursements under Constellation’s annual product allowance program: (i) the
amount of reimbursement for eligible product purchases during a calendar year
may not affect the reimbursements in any other calendar year; (ii) the reimbursement of an
eligible product
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purchase
will be made on or before the last day of the calendar year following the
calendar year in which the expense was incurred; and (iii) the right to reimbursement
is not subject to liquidation or exchange for another benefit.
Notwithstanding
any provision in this Agreement to the contrary, in the event that Executive is
a “specified employee” (within the meaning of Section 409A) on the
Termination Date, the payments under Sections 6(b), 6(c), 6(d) and 9 that
would have otherwise been paid within the six month period after the Termination
Date shall instead be paid on the first business day of the seventh month
following the Termination Date, and the benefit under Section 6(e) shall instead
commence on the first business day of the seventh month following the
Termination Date and shall continue for the specified period of time set forth
in such section after that commencement date. The timing of all
payments and benefits under this Agreement shall be made consistent with the
requirements of Section 409A to the extent a payment or benefit is subject
to such requirements.
8. Restrictive
Covenant.
(a) Executive
agrees that (i) during the period of his employment hereunder and (ii) provided
that Executive is entitled to the payment under Section 6(b) or is terminated
due to a For Cause Termination, for a period of two (2) years after he ceases
employment, he will not, without the written consent of Constellation, seek or
obtain a position with a Competitor (as defined below) in which Executive will
use or is likely to use any confidential information or trade secrets of
Constellation or any affiliate of Constellation, or in which Executive has
duties for such Competitor that involve Competitive Services (as defined below)
and that are the same or similar to those services actually performed by
Executive for Constellation or any affiliate of Constellation. The
parties agree that Executive may continue service on any boards of directors on
which he is serving while employed by Constellation or its
affiliates. If Executive’s employment is terminated by Executive for
a Good Reason Termination or by Constellation for any reason other than a For
Cause Termination, then Constellation will not unreasonably withhold such
consent provided Constellation receives information and assurances, satisfactory
to Constellation, regarding Executive’s new position.
(b) Executive
understands and agrees that the relationship between Constellation and its
affiliates and each of their respective employees constitutes a valuable asset
of Constellation and its affiliates and may not be converted to Executive’s own
use. Accordingly, Executive hereby agrees that (i) during the period
of his employment hereunder and (ii) for a period of twelve months (12) months
after he ceases employment, Executive shall not directly or indirectly, on his
own behalf or on behalf of another person, solicit or induce any employee to
terminate his or her employment relationship with Constellation or any affiliate
of Constellation or to enter into employment with another person. The
foregoing shall not apply to employees who respond to solicitations of
employment directed to the general public or who seek employment at their own
initiative.
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(c) For
the purposes of this Section 8, “Competitive Services” means the provision of
goods or services that are competitive with any goods or services offered by
Constellation or any affiliate of Constellation including, but not limited to
manufacturing, importing, exporting, distributing or selling wine, beer, liquor
or other alcoholic beverages in the United States, Canada, United Kingdom, New
Zealand, and Australia. The parties acknowledge that Constellation or
its affiliates may from time to time during the term of this Agreement change or
increase the line of goods or services it provides and its geographic markets,
and Executive agrees that this Agreement shall be deemed to be amended from time
to time to include such different or additional goods, services, and geographic
markets to the definition of “Competitive Services” for purposes of this Section
8. “Competitor” means any individual or any entity or enterprise
engaged, wholly or in part, in Competitive Services.
(d) Executive
agrees that, due to his position of trust and confidence, the restrictions
contained in this Section 8 are reasonable, and the benefits conferred on him in
this Agreement, including his compensation, are adequate consideration, and,
since the nature of Constellation’s and its affiliates’ collective business is
international in scope, the geographic restriction herein is
reasonable.
(e) Executive
acknowledges that a breach of this Section 8 will cause irreparable injury and
damage, which cannot be reasonably or adequately compensated by money damages.
Accordingly, he acknowledges that the remedies of injunction and specific
performance shall be available in the event of such a breach, and Constellation
shall be entitled to money damages, costs and attorneys’ fees, and other legal
or equitable remedies, including an injunction pending trial, without the
posting of bond or other security. Any period of restriction set forth in this
Section 8 shall be extended for a period of time equal to the duration of any
breach or violation thereof.
(f) In
the event of Executive’s breach of this Section 8, in addition to the injunctive
relief described above, Constellation’s remedy shall include (i) the right to
require Executive to account for and pay over to Constellation all compensation,
profits, monies, accruals, increments or other benefits derived or received by
Executive as the result of any transactions constituting a breach of the
restrictive covenants in this Section 8, and (ii) in the case of a breach
during the term of Executive’s employment hereunder, the termination of all
compensation otherwise payable to Executive under Sections 3 and 4 with respect
to the period of time after such breach, or (iii) in the case of a breach during
the period described in Section 8(a)(ii) or 8(b)(ii) above, the forfeiture to
Constellation of any payment made under Sections 6(b) herein.
(g) In
the event that any provision of this Section 8 is held to be in any respect an
unreasonable restriction, then the court so holding may modify the terms
thereof, including the period of time during which it operates or the geographic
area to which it applies, or effect any other change to the extent necessary to
render this Section 8 enforceable, it being acknowledged by the parties that the
representations and covenants set forth herein are of the essence of this
Agreement.
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9. Certain Additional Payments
by Constellation.
(a) Anything
in this Agreement to the contrary notwithstanding and except as set forth below,
in the event it shall be determined that any payment or distribution by
Constellation to or for the benefit of Executive, whether paid or payable
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 9 (a “Payment”)
would be subject to the excise tax imposed by Section 4999 of the Code or
similar section (provided that Section 409A shall not be treated as a similar
section), or any interest or penalties are incurred by Executive with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the “Excise Tax”), then Executive
shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an
amount such that after payment by Executive of all taxes (including any interest
or penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and any Excise Tax imposed upon the Gross-Up Payment, Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. It is the intention of the parties that Constellation
provide Executive with a full tax gross-up under the provisions of this Section
9(a) so that on a net after-tax basis, the result to Executive shall be the same
as if the Excise Tax had not been imposed on a Payment.
(b) All
determinations required to be made under this Section 9 (including whether and
when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination) shall be made by
the nationally recognized accounting firm serving as Constellation’s independent
accounting firm (the “Accounting Firm”). The Accounting Firm shall
provide detailed supporting calculations to both Constellation and Executive
within 20 business days of Constellation’s receipt of notice from Executive that
there has been a Payment or at such earlier time as is requested by
Constellation. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the change
in control, Executive may appoint another nationally recognized accounting firm
to make the determinations required hereunder (which accounting firm shall then
be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by Constellation. Any
Gross-Up Payment, as determined pursuant to Section 9(a), shall be paid by
Constellation to Executive within 10 days of the receipt of the Accounting
Firm’s determination. Any determination by the Accounting Firm shall
be binding upon Constellation and Executive. The above provisions of
this paragraph (b) notwithstanding, payments due to Executive under this Section
9 shall be made no later than the end of the calendar year following the
calendar year in which Executive remits such excise tax or such earlier date as
may be required to comply with Section 409A.
(c) As
a result of the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments that will not have been made by Constellation
should have been made (the “Underpayment”) or that Gross-Up Payments will have
been made
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that
should not have been made (“Overpayments”), consistent with the calculations
required to be made hereunder. In the event Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by Constellation to or for the benefit of Executive. If
the Accounting Firm shall determine that an Overpayment has been made, Executive
shall promptly repay the amount of the Overpayment to
Constellation.
10. Trade Secrets and
Confidential Information. Executive agrees that unless duly
authorized in writing by Constellation, he will neither during his employment by
Constellation or its affiliates nor at any time thereafter divulge or use in
connection with any business activity other than that of Constellation or its
affiliates any trade secrets or confidential information first acquired by him
during and by virtue of his employment with Constellation or its
affiliates.
11. Indemnification. Constellation
and its successors and/or assigns will indemnify, hold harmless, and defend
Executive to the fullest extent permitted by the law of the State of Delaware
and the Certificate of Incorporation and By-Laws of Constellation as in effect
on the date of this Agreement with respect to any claims that may be brought
against Executive arising out of any action taken or not taken by Executive in
his capacity as an employee, officer or director of Constellation. In
addition, Constellation will advance to Executive reasonable legal fees and
expenses, as such fees and expenses are incurred by Executive, to the fullest
extent permitted by law, subject only to any requirements as are imposed by
law. Executive shall not unreasonably withhold his consent to the
settlement of any claim for monetary damages for which Executive is entitled to
full indemnification hereunder. Executive shall be covered, in
respect of his activities as an officer or director of Constellation, by any
Directors and Officers liability policy or other similar policies maintained or
obtained by Constellation or any of its successors and/or assigns to the fullest
extent permitted by such policies. Notwithstanding anything to the
contrary contained in this Agreement, Executive’s rights under this Section 11
shall survive the Termination Date and the expiration or termination of this
Agreement and shall continue without limit for so long as Executive may be
subject to any claims covered by this Section 11. No amendment to the
Certificate of Incorporation or By-Laws of Constellation after the date of this
Agreement will affect or impair Executive’s rights under this Section 11 even
with respect to any action taken or not taken by Executive after the effective
date of any such amendment.
12. Notice. Any
and all notices referred to herein shall be sufficient if furnished in writing
and sent by registered mail to the parties.
13. Transferability. The
rights, benefits and obligations of Constellation under this Agreement shall be
transferable, and all covenants and agreements hereunder shall inure to the
benefit of and be enforceable by or against, its successors and
assigns. Whenever the term “Constellation” is used in this Agreement,
such term shall mean and include Constellation Brands, Inc. and its successors
and assigns. The rights and benefits of Executive under this
Agreement shall not be transferable other than rights to property or
compensation that may pass on his death to his estate or beneficiaries through
his will or the laws of descent and distribution and the terms of any
Constellation compensation or benefit plan.
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14. Severability. If
any provision of this Agreement or the application thereof is held invalid or
unenforceable, the invalidity or unenforceability thereof shall not affect any
other provisions of this Agreement which can be given effect without the invalid
or unenforceable provision, and to this end the provisions of this Agreement are
to be severable.
15. Amendment;
Waiver. This Agreement contains the entire agreement of the
parties with respect to the employment of Executive by Constellation and upon
execution of this Agreement supersedes any previous agreement. No
amendment or modification of this Agreement shall be valid unless evidenced by a
written instrument executed by the parties hereto. No waiver by
either party of any breach by the other party of any provision or conditions of
this Agreement shall be deemed a waiver of any similar or dissimilar provision
or condition at the same or any prior or subsequent time.
16. Tax
Withholding. Constellation may withhold from any payments due
to Executive hereunder such amounts as Constellation may determine are required
to be withheld under applicable federal, state and local tax laws. To
the extent that there are no cash payments to withhold upon, Executive shall
promptly remit to Constellation cash payments that are sufficient to cover all
applicable withholdings.
17. Section
409A. The parties intend this Agreement to be governed by and
subject to the requirements of Section 409A, and this Agreement shall be
interpreted and administered in accordance with the intent that Executive not be
subject to tax under Section 409A (to the extent such rules are applicable to
payments or benefits under this Agreement). If any provision of the
Agreement would otherwise conflict with or frustrate this intent, that provision
will be interpreted and deemed amended so as to avoid the
conflict. Constellation shall not be responsible for any tax,
penalty, interest or similar assessment imposed on Executive as a consequence of
Section 409A.
18. Governing
Law. This Agreement shall be governed by and construed under
and in accordance with the laws of the State of New York without regard to
principles of conflicts of laws.
[signature
page follows]
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IN
WITNESS WHEREOF, the parties have executed this Executive Employment Agreement
as of the date first set forth above.
|
By:
|
/s/
Xxxxxx Xxxxx
|
|
Name:
|
Xxxxxx
Xxxxx
|
|
Title:
|
President
and Chief Executive
Officer
|
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
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Exhibit
A
FULL AND FINAL RELEASE OF
CLAIMS
1. In
consideration of the payments provided for in Sections 6(b)-(f) of the
Executive Employment Agreement (hereinafter referred to as the “Employment
Agreement”) between CONSTELLATION BRANDS, INC. and
XXXX XXXXXXXXX
(hereinafter referred to as “Executive”), which is attached hereto and
forms a part of this Full and Final Release of Claims, on behalf of himself, his
heirs, administrators and assigns, Executive hereby releases and forever
discharges Constellation Brands, Inc., its subsidiaries and affiliates and each
of its and their respective officers, directors, employees, servants and agents,
and their successors and assigns, (hereinafter collectively referred to as
“Constellation Released Parties”) jointly and severally from any and all
actions, causes of action, contracts and covenants, whether express or implied,
claims and demands for damages, indemnity, costs, attorneys’ fees, interest,
loss or injury of every nature and kind whatsoever arising under any federal,
state, or local law, or the common law, which Executive may heretofore have had,
may now have or may hereinafter have in any way relating to any matter,
including but not limited to, any matter related to Executive’s employment by
Constellation Released Parties and the termination of that employment; provided,
however, nothing in this Full and Final Release of Claims shall release (i)
Executive’s right to receive the payments or benefits provided for in
Sections 6(b)-(f) and Section 9 of the Employment Agreement, (ii)
Executive’s vested benefits under Constellation Brands, Inc.’s pension plans or
rights under any existing stock options held by Executive, or (iii) any right to
indemnification or advancement of expenses pursuant to Section 11 of the
Employment Agreement or the Certificate of Incorporation or By-laws of
Constellation Brands, Inc. (the items in the foregoing clauses (i) through (iii)
are hereinafter referred to as the “Preserved Rights”).
a. This
Full and Final Release of Claims covers, without limitation, any claims of
discrimination, unlawful retaliation or harassment, or denial of rights, on the
basis of any protected status, characteristic or activity, including, but not
limited to, sex, disability, handicap, race, color, religion, creed, national
origin, ancestry, citizenship, ethnic characteristics, sexual orientation,
marital status, military status, or age (including, without limitation, any
right or claim arising under the Age Discrimination in Employment Act), need for
a leave of absence, or complaint about discrimination, harassment, or other
matter, arising under any state, federal, or local law (whether statutory or
common law), regulation or ordinance which may be applicable to his employment
by Constellation Released Parties. This Full and Final Release of
Claims also covers, without limitation, any claims of wrongful termination,
breach of express or implied contract, breach of implied covenant of good faith
and fair dealing, violation of public policy, intentional or negligent
infliction of emotional distress, defamation, invasion of privacy, fraud or
negligent misrepresentation, intentional or negligent interference with
contractual relations, and any other common law tort. Except to the
extent that they constitute Preserved Rights, this Full and Final Release of
Claims also covers any claims for severance pay, bonus, life insurance, health
and medical insurance, disability benefits, or any other fringe benefit, and
claims related to any other transaction,
A-1
occurrence,
act, or omission or any loss, damage or injury whatsoever, known or unknown,
resulting from any act or omission by or on the part of Constellation Released
Parties, or any of them, committed or omitted prior to the date of this Full and
Final Release of Claims.
b. Executive
understands and agrees that the giving of the aforementioned consideration is
deemed to be no admission of liability on the part of the Constellation Released
Parties.
c. In
the event that Executive should hereafter make any claim or demand or commence
or threaten to commence any action, claim or proceeding against the
Constellation Released Parties for or by reason of any cause, matter or thing
other than a Preserved Right, this document may be raised as a complete bar to
any such claim, demand or action.
2. By
signing this Full and Final Release of Claims, Executive acknowledges
that:
a. He
has been afforded a reasonable and sufficient period of time to review, and
deliberate thereon, and has been specifically urged by Constellation Released
Parties to consult with legal counsel or a representative of his choice before
signing this Full and Final Release of Claims and that he has had a fair
opportunity to do so; and
b. He
has carefully read and understands the terms of this Full and Final Release of
Claims; and
c. He
has signed this Full and Final Release of Claims freely and voluntarily and
without duress or coercion and with full knowledge of its significance and
consequences, and of the rights and claims relinquished, surrendered, released
and discharged hereunder; and
d. He
acknowledges he is not entitled to the consideration described above in the
absence of signing this Full and Final Release of Claims; and
e. The
consideration which he is receiving in exchange for his release of claims is of
value to him; and
f. The
only consideration for signing this Full and Final Release of Claims are the
terms stated herein, and no other promise, agreement or representation of any
kind has been made to him by any person or entity whatsoever to cause him to
sign this Full and Final Release of Claims; and
g. He
was offered a minimum period of at least twenty-one (21) days after his receipt
of this Full and Final Release of Claims to review and consider it and for
deliberation thereon, and, to the extent he has elected to sign it prior to the
expiration of the twenty-one (21) day period, he does so voluntarily on his own
initiative without any inducement or encouragement on the part of the
Constellation Released Parties to do so.
A-2
h. He
understands that this Full and Final Release of Claims may be revoked in writing
by him at any time during the period of seven (7) calendar days following the
date of his execution of this Full and Final Release of Claims by delivering
such written revocation to _________, at his office located at ______________,
New York _____. If such seven-day revocation period expires without
his exercising his revocation right, the obligations of this Full and Final
Release of Claims will then become fully effective as more fully set forth
herein.
IN WITNESS WHEREOF, Executive
has hereunto executed this Full and Final Release of Claims by affixing his hand
this ____ day of _______________, 20___ in the presence of the witness whose
signature is subscribed below.
______________________________
Xxxx
Xxxxxxxxx
Sworn to
before me this
_____ day
of ____________, 20___.
_____________________________
Notary
Public
IN WITNESS WHEREOF,
_________________ has hereunto executed
this Full and Final Release of Claims on behalf of Constellation Brands, Inc.,
its subsidiaries and affiliates, by affixing [his/her] hand this ____ day of
____________________, 20___ in the presence of the witness whose signature is
subscribed below.
______________________________
[Name]
[Title]
Sworn to
before me this
_____ day
of ____________, 20___.
_____________________________
Notary
Public
A-3
