CONSULTANT AGREEMENT
Exhibit
99.5
This Consultant Agreement is made as of
April 7, 2009 (“Agreement”), by and between XXXXXXXXX X. XXXX
(“Consultant”), an individual residing in Glencoe, Illinois, and CONSTELLATION BRANDS, INC.
(“Constellation”), a Delaware corporation with its headquarters located at 000
Xxxx Xxxxx Xxxxx, Xxxxxxxx 000, Xxxxxx, Xxx Xxxx 00000.
WHEREAS, Consultant has been
employed as President and Chief Executive Officer of Constellation Services LLC
(“Services”), successor by merger to Xxxxxx Incorporated (“Xxxxxx”) and each of
Services and Xxxxxx being or having been a wholly-owned subsidiary of
Constellation, pursuant to the terms of an Executive Employment Agreement dated
May 21, 2008 among Consultant, Constellation and Xxxxxx (“Executive
Agreement”);
WHEREAS, Constellation has
recently completed the sale of certain entities and assets owned by Xxxxxx and
its affiliates;
WHEREAS, Consultant and
Constellation have mutually agreed that Consultant’s employment pursuant to the
Executive Agreement shall terminate on May 31, 2009;
WHEREAS, Constellation wishes
to retain Consultant to provide certain, limited services following the
termination of Consultant’s employment under the Executive Agreement, Consultant
is willing to provide such services, and both parties desire to set forth the
terms of such relationship in this Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein,
Constellation and Consultant agree as follows:
1. Relationship of
Parties. At all times during and under this Agreement,
Consultant shall be an independent contractor and shall not be deemed to be an
employee of Constellation. Nothing in this Agreement is intended, nor
shall be construed, to create an employer-employee or agency relationship
between the parties. Consultant acknowledges and agrees that he shall
have no right to participate in or receive any benefits under any compensation,
retirement, welfare or other benefit plans or programs of Constellation as a
result of or in connection with the services he is providing under this
Agreement.
2. Term. This
Agreement shall commence on the first business day following the termination of
Consultant’s employment under the Executive Agreement (“Effective Date”) and
shall continue in effect for one year, unless terminated early as provided in
paragraph 7.
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3. Consultant’s
Services. During the term of this Agreement, Consultant
shall:
continue
to serve as a Board member of Crown Imports LLC (“Crown”) and attend all Board
meetings of Crown;
assist
with the transition of his role as a Crown board member to an individual
identified by Constellation;
act as a
liaison between Constellation, and Crown and Grupo Modelo, S.A.B. de CV, as
requested by Constellation;
attend as
a representative of Constellation trade association meetings identified by
Constellation; and
attend
monthly Constellation Executive Management Committee meetings as
requested.
The
parties do not expect that the foregoing services shall entail more than eight
hours per week on average.
4. Compensation. As
compensation for Consultant’s services under this Agreement, Constellation shall
pay Consultant $20,833.33 per month. Payment to Consultant for the
first six months of services (or such lesser period if the Agreement is
terminated before six months after the Effective Date) shall be made on, or as
soon as administratively practicable after, the first business day of the
seventh month following the Effective Date. Payment to Consultant for
the remaining term of the Agreement shall be made monthly, in arrears, in the
amount of $20,833.33 on, or as soon as administratively practicable after, the
first business day of the following month. Constellation shall also
reimburse Consultant for reasonable, documented expenses incurred by Consultant
as a consequence of performing Consultant’s services.
5. Other
Services. Consultant is entitled to enter into agreements to
provide services to other entities provided, however, that such activities do
not conflict with Consultant’s responsibilities and obligations under this
Agreement or the Executive Agreement, and provided further that Consultant seeks
and obtains advance, written consent from Constellation before providing
services to a competitor of Constellation.
6. Taxes. Constellation
shall not withhold or deduct from Consultant’s compensation any amounts for
income tax, or social security or Medicare. It is Consultant’s sole
responsibility as an independent contractor to report and pay all applicable
taxes on compensation paid to Consultant by Constellation under this
Agreement. Consultant agrees to indemnify Constellation and to hold
it harmless from
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and
against any liability, including interest and penalties, sought by any taxing
authority, based on compensation paid to Consultant under this
Agreement.
7. Termination. This
Agreement shall terminate immediately upon the occurrence of any of the
following events:
the death
of Consultant;
the
mutual agreement of Consultant and Constellation;
at the
election of Constellation, if Consultant is unable to perform services
hereunder;
at the
election of Constellation, in its sole discretion and for any reason, to
terminate this Agreement;
at the
election of Constellation, if Consultant breaches this Agreement or the
Executive Agreement;
at the
election of Constellation, if Consultant engages in conduct which would justify
a “for cause termination,” as defined in the Executive Agreement;
and
at the
election of Consultant, if Constellation breaches this Agreement or the
Executive Agreement.
Upon termination of this Agreement,
Constellation shall have no further obligations to Consultant under this
Agreement, except to pay Consultant for services performed and reimbursable
expenses incurred hereunder through the date of termination.
8. Trade Secrets; Confidential
Information; Xxxxxxx Xxxxxxx. Consultant agrees that unless
duly authorized in writing by Constellation, he will neither during the term of
this Agreement nor at any time thereafter divulge or use other than in
furtherance of his services under this Agreement any trade secrets or
confidential information first acquired by him during and by virtue of his
services under this Agreement or his prior employment with Xxxxxx, Services or
their affiliates.
Consultant
hereby acknowledges that he is aware that the United States securities laws
prohibit any person who has material, non-public information about a company
from purchasing or selling securities of such a company on the basis of such
information or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities on the basis of such
information.
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9. Non-impairment. Nothing
in this Agreement is intended, or should be construed, to impair or alter in any
respect the terms of the Executive Agreement.
10. Assignment. This
agreement may not be assigned or transferred by Consultant. This
Agreement may be assigned or transferred by Constellation.
11. Amendment,
Waiver. No amendment or modification of this Agreement shall
be valid unless evidenced in a writing executed by the parties
hereto. No waiver by any party of a breach of this Agreement shall be
binding except if in a writing signed by the party to be bound by the
waiver.
12. Governing Law. This
Agreement shall be governed by and construed under the laws of the State of New
York without regard to principles of conflicts of law.
13. Consent to
Jurisdiction. Consultant agrees that he is subject to the
jurisdiction of the courts of the State of New York, and that any claim brought
by either party alleging breach of this Agreement shall be brought in a state or
federal court located in Monroe County, New York or Ontario County, New
York.
14. Counterparts. This
Agreement may be executed in counterparts, each of which, when so executed,
shall be deemed an original, and such counterparts together shall constitute one
and the same document. A faxed, executed counterpart shall be deemed
an original.
IN WITNESS WHEREOF, the
parties have executed this Consultant Agreement as of the date set forth
above.
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XXXXXXXXX
X. XXXX
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/s/ Xxxxxxxxx X. Xxxx
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By:
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/s/ Xxxxxx Xxxxx
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Xxxxxx
Xxxxx,
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President
and Chief Executive
Officer
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