CONFIDENTIAL AGREEMENT AND GENERAL RELEASE
Exhibit
10.27
This
Confidential
Agreement and General Release (“Agreement”) is between ANHEUSER-XXXXX
COMPANIES, INC.,
a Delaware
corporation with its principal offices at Xxx Xxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx,
00000, its affiliates, subsidiaries, successors and assigns (collectively
“Anheuser-Xxxxx”), and XXXXXX
X.
XXXXXXXXX
of 00 Xxxx Xxxxx,
Xx. Xxxxx, Xxxxxxxx 00000 (“Xxxxxxxxx”).
IN
CONSIDERATION of
the mutual promises exchanged below, Anheuser-Xxxxx and Xxxxxxxxx agree as
follows:
1.
Retirement:
A. Anheuser-Xxxxx
and
Xxxxxxxxx have agreed that Xxxxxxxxx will retire from Anheuser-Xxxxx effective
November 30, 2006.
B.
Until
his
retirement, Xxxxxxxxx will remain in his current position as Chairman of the
Board, CEO and President - Anhueser-Busch Packaging Group, Inc. to assist in
the
orderly transfer of his duties and responsibilities.
C. Unless
otherwise
agreed to by the parties, Xxxxxxxxx agrees to return all Anheuser-Xxxxx property
(including, but not limited to, company documents and records, computers, cell
phones and pagers, security badge and credit cards) upon his November 30, 2006
retirement.
X. Xxxxxxxxx
will be
eligible to receive a 2006 bonus from Anheuser-Xxxxx, which shall be paid to
him
not later than March 15, 2007.
X. Xxxxxxxxx
will not
receive further Long Term Incentives (in the form of stock options or restricted
stock). Xxxxxxxxx’x rights in existing stock option grants are governed by the
terms and conditions of his stock option agreements and applicable law, and
will
not be affected by the terms of this Agreement.
1
2. Special
Retirement Benefits:
A. Anheuser-Xxxxx
agrees that on or before March 15, 2007 it will transfer to Xxxxxxxxx all
rights, title and interest in the 2005 Cadillac Seville STS (VIN:
0X0XX00X000000000) that is currently assigned to him as a company car. The
parties agree that such transfer shall be “As is - where is” and with no
warranty express or implied by Anheuser-Xxxxx.
B. Anheuser-Xxxxx
agrees that it will provide Xxxxxxxxx and his eligible dependents with insured
dental and vision benefits through May 31, 2010 that are materially similar
to
the dental and vision benefits that are provided from time to time to its
salaried employees. In the event that Xxxxxxxxx dies before May 31, 2010,
Anheuser-Xxxxx agrees to continue such benefits for his spouse until May 31,
2010.
C. Anheuser-Xxxxx
agrees that it will continue to pay the insurance premium on the supplemental
executive life insurance policy (“policy”) with an insured face value of
$1,400,000 through Metropolitan Life, or its successor (“Insurer”), that it
currently provides to Xxxxxxxxx, as follows: Anheuser-Xxxxx will continue to
make monthly premium payments of $1,061.20 through February 2007; on or before
March 15, 2007 it will pay to Insurer the sum of $13,524, as an annual insurance
premium for the period of March 2007 through February 2008; on or before March
15, 2008 it will pay to Insurer the sum of $14,263, as an annual insurance
premium for the period of March 2008 through February 2009; on or before March
15, 2009 it will pay to Insurer the sum of $14,928, as an annual insurance
premium for the period of March 2009 through February 2010; and on or before
March 15, 2010 it will pay to Insurer the sum of $3,855.50 to cover premium
payments through May 31, 2010. Thereafter, the policy will continue in effect
according to the terms of the policy, but all further premium payments shall
be
the responsibility of Xxxxxxxxx.
3.
Normal
Retirement Benefits:
A. Upon
his November
30, 2006 retirement Xxxxxxxxx will be entitled to retiree medical benefits
under
the terms of the applicable retiree medical benefits plan then in effect.
Xxxxxxxxx shall also be entitled to elect distribution of benefits from the
Anheuser-Xxxxx Salaried Employees’ Pension Plan (“SEPP”), and the Anheuser-Xxxxx
Deferred
2
Income
Stock
Purchase and Savings Plan (“401(k)”), according to the terms of such plans.
Xxxxxxxxx understands that processing of benefits from the SEPP or the 401(k)
will not begin until he notifies the SEPP or 401(k) Plan Administrator in
writing that he wants to receive benefits from that plan. Any benefit to which
Xxxxxxxxx is entitled under the Anheuser-Xxxxx Companies, Inc. Supplemental
Executive Retirement Plan (“SERP”) or the Anheuser-Xxxxx 401(k) Restoration Plan
will be distributed to Xxxxxxxxx according to the terms of the applicable plan
and pursuant to Xxxxxxxxx’x existing election.
4. Consulting
Arrangement
A. Upon
Xxxxxxxxx’x
November 30, 2006 retirement, Anheuser-Xxxxx agrees to retain Xxxxxxxxx as
a
Consultant for a three-year period commencing June 1, 2007 and ending May 31,
2010. During the period he serves as a Consultant, Xxxxxxxxx agrees to make
himself available to consult with Anheuser-Xxxxx up to 20 hours per calendar
month on matters related to the company’s production of glass bottles, labels,
crown liners, aluminum cans and lids, and to attend such planning and strategy
meetings as requested by Anheuser-Busch’s President & Chief Executive
Officer or his designee. The parties agree that in no event shall Xxxxxxxxx
be
required to provide services to Anheuser-Xxxxx at an annual rate that is 50%
or
more of the services Xxxxxxxxx rendered to Anheuser-Xxxxx on average during
the
final three calendar years of his employment with Anheuser-Xxxxx.
B. For
his services as
a Consultant, Anheuser-Xxxxx agrees to pay Xxxxxxxxx a consulting fee of
$40,833.33.00 per month, less applicable withholding. Payment of all consulting
fees shall be made on a semi-monthly basis, with the first consulting fee
payment being due on June 15, 2007 and the last consulting fee payment being
due
on May 31, 2010.
X. Xxxxxxxxx’x
participation as an employee in the Anheuser-Xxxxx employee benefit plans for
salaried employees (except for retiree medical benefits) will cease as of
November 30, 2006. Consulting fee payments made to Xxxxxxxxx shall not be
treated as wages under the SEPP, the 401(k), the SERP, the Anheuser-Xxxxx 401(k)
Restoration Plan, or the Anheuser-Xxxxx Executive Deferred Compensation Plan.
3
D. During
the
consulting period, Anheuser-Xxxxx will provide Xxxxxxxxx with such equipment
(e.g. laptop computer, cell phone, Blackberry pager, etc.) as the parties agree
is necessary for Xxxxxxxxx to effectively perform his consulting services.
Xxxxxxxxx shall work from his personal residence or office and shall not be
provided with an office during the consulting period. In the event Xxxxxxxxx
is
requested to travel in performing services for Anheuser-Xxxxx, he will be
entitled to reimbursement for all ordinary, necessary and reasonable travel
expenses pursuant to company travel expense guidelines. In order to be entitled
to such reimbursement Xxxxxxxxx must submit an itemized expense report within
15
days after completion of each travel assignment as the basis for reimbursement
by Anheuser-Xxxxx.
E.
During
the
consulting period, Xxxxxxxxx may be employed by, or provide services to, other
companies, subject to the restrictive covenants set out in paragraph 8 of this
Agreement.
F. During
the
consulting period, Xxxxxxxxx will be entitled to use the facilities at
Anheuser-Busch’s Kingsmill Resort subject to the following order of
priority:
| 1. |
Corporate
business purposes
|
| 2. |
Current
Strategy Committee members
|
| 3. |
Current
other
officers
|
| 4. |
Retired
Strategy Committee members
|
| 5. |
Non-officer
employees who report directly to a member of the Strategy Committee.
|
All
cash charges
and W-2 income inclusions will apply to such stays at the corporate rates
applicable to the time(s) of such usage.
G. Anheuser-Xxxxx
and
Xxxxxxxxx agree that the terms and conditions of the Indemnification Agreement
between Anheuser-Xxxxx Companies, Inc. and Xxxxxxxxx effective December 6,
2000
shall continue to apply, but only as to events or occurrences that took place
on
or before his November 30, 2006 retirement. In the event that Xxxxxxxxx is
named
a defendant in any civil suit as a result of his performing consulting services
pursuant to this Agreement after his November 30, 2006 retirement,
Anheuser-Xxxxx agrees to indemnify Xxxxxxxxx against expenses (including
attorney fees), judgments, fines or amounts paid in settlement resulting from
such suits, except
4
to
the extent that such amounts are incurred as a result of Xxxxxxxxx’x xxxxx
negligence or willful misconduct.
H. In
the event that
Xxxxxxxxx dies prior to May 31, 2010, Anheuser-Xxxxx agrees to pay all remaining
monthly consulting fee payments to Xxxxxxxxx’x spouse unless otherwise directed
in writing by Xxxxxxxxx.
4.
No
Reemployment
Xxxxxxxxx
agrees
that upon execution of this Agreement he is not eligible for further transfer
or
promotion with Anheuser-Xxxxx, and after his November 30, 2006 retirement,
he
will not reapply for employment with Anheuser-Xxxxx. Xxxxxxxxx expressly
releases and waives any and all rights or claims to any continued employment
or
reemployment with Anheuser-Xxxxx after November 30, 2006.
5.
No
Admission of Liability
Xxxxxxxxx
acknowledges and agrees that he would not receive all the payments and benefits
specified in this Agreement except for his execution of this Agreement and
his
fulfillment of its terms. Neither the making of this Agreement, nor anything
contained in it, shall in any way be construed or considered to be an admission
by Anheuser-Xxxxx of noncompliance with any law or of any other
wrongdoing.
6.
Release
of
Liability
A. Except
for the
obligations of Anheuser-Xxxxx as stated in this Agreement, Xxxxxxxxx, of his
own
free will, voluntarily releases and forever discharges Anheuser-Xxxxx and their
respective directors, officers, employees and other authorized representatives
(collectively the “Releasees”) from all actions, causes of action, claims,
debts, charges, complaints, contracts and promises of any kind, whether known
or
unknown, which Xxxxxxxxx, his heirs, executors, administrators, successors
and
assigns (referred to collectively throughout this Agreement as “Xxxxxxxxx”) may
have from all time in the past to the effective date of this Agreement,
including, but not limited to, all matters or claims relating to or arising
out
of Xxxxxxxxx’x employment by Anheuser-
5
Busch
and the
cessation of his employment and including, but not limited to, any violation
of:
| (1) |
Title
VII of the Civil Rights Act,
as
amended;
|
| (2) |
Sections
1981
through 1988 of Title 42 of the United States
Code;
|
| (3) |
the
Employee
Retirement Income Security Act,
as
amended;
|
| (4) |
the
Family
and Medical Leave Act;
|
| (5) |
the
Age
Discrimination in Employment Act,
as
amended;
|
| (6) |
the
Americans
with Disabilities Act;
|
| (7) |
the
Missouri
Human Rights Act;
|
| (8) |
the
Xxxxxxxx-Xxxxx
Act of 2002;
|
| (9) |
any
other
alleged violation of any local, state or federal law, regulation
or
ordinance and/or public policy, contract, tort or common law having
any
bearing on the terms and conditions and/or cessation of his employment
with Anheuser-Xxxxx.
|
Except
as otherwise
provided in this Agreement, this release shall not apply to any claim for
benefits which may be due to Xxxxxxxxx under any Anheuser-Xxxxx employee benefit
plan in which Xxxxxxxxx is or was a participant.
X. Xxxxxxxxx
warrants
that he has not caused or permitted to be filed on his behalf any charge,
complaint, or action before any federal, state or local administrative agency
or
court against Anheuser-Xxxxx and/or any of the Releasees. If any such claim
is
asserted in the future, Xxxxxxxxx agrees that this Agreement will act as a
complete bar to his re-employment or to his recovery of any amount from
Anheuser-Xxxxx and/or any of the Releasees resulting, directly or indirectly,
from any lawsuit, remedy, charge or complaint whether brought privately by
him
or by anyone else, including any federal, state or local agency, whether or
not
on his behalf or at his request.
7.
Confidentiality
X. Xxxxxxxxx
agrees to
keep in strict secrecy and confidence any and all unique, confidential and/or
proprietary information and material belonging or relating to Anheuser-Xxxxx
that is not a matter of common knowledge or otherwise generally
6
available
to the
public including, but not limited to, business, financial, trade, technical
or
technological information. Xxxxxxxxx acknowledges and agrees that he remains
subject to the “Employee Agreement as to Intellectual Property and
Confidentiality,” which he has previously signed and is incorporated into this
Agreement by this reference.
X. Xxxxxxxxx
agrees
that he will make no public statements and take no public action that disparages
or is detrimental to Anheuser-Xxxxx and/or any of the Releasees, or would
otherwise cause or contribute to Anheuser-Xxxxx and/or any of the Releasees
being held in disrepute by the general public, customers or
employees.
X. Xxxxxxxxx
acknowledges that Anheuser-Xxxxx Companies, Inc. is a publicly traded company,
and as such may be required to publicly disclose the terms of this Agreement,
or
to publicly file a copy of this Agreement, as required by law.
8.
Restrictive
Covenants
A. Unless
otherwise
agreed to in writing by Anheuser-Xxxxx and upon such terms and conditions as
Anheuser-Xxxxx may impose, from the date of this Agreement until May 31, 2010,
Xxxxxxxxx shall not, anywhere in the world, engage, directly or indirectly,
in
any activity or business that manufactures, distributes or sells alcohol
beverages and/or no-alcohol malt beverages or that otherwise competes with
any
current business activity of Anheuser-Xxxxx Companies, Inc. and/or any of its
affiliates or subsidiaries, either alone, as a member of a partnership or
association, as an officer, director, employee, consultant or representative
of
or to any corporation, industry trade association, or other business entity,
or
as an investor in, or beneficial owner of 1% or more of any security of any
class of any corporation or 1% or more of any equity interest of any
unincorporated enterprise.
X. Xxxxxxxxx
agrees
that if he violates any provision of this paragraph 8, or if an arbitrator
or
court of competent jurisdiction rules that the non-compete provisions of this
paragraph 8 are not enforceable (either circumstance will be referred to in
this
paragraph as an “Event”), this Agreement will immediately terminate effective on
the date of the Event, and Xxxxxxxxx shall forfeit all remaining consulting
payments due under paragraph 4 In the event that Anheuser-Xxxxx believes that
Xxxxxxxxx is in violation of any provision of this paragraph 8, Anheuser-Xxxxx
shall give Xxxxxxxxx
7
written
notice of
such violation and Xxxxxxxxx shall be provided with a reasonable opportunity
to
cure such violation, discontinue such conduct, or present documented evidence
establishing that the activity or employment does not constitute a violation
of
this Agreement, prior to Anheuser-Xxxxx availing itself of its remedies under
this paragraph 8. Anheuser-Xxxxx will have the right at any time to request
that
Xxxxxxxxx certify that he is in compliance with this paragraph 8, and
Xxxxxxxxx’x failure to certify such compliance as requested will be deemed to
be: an Event as defined in this paragraph 8; a material violation of this
paragraph 8; and a material breach of this Agreement.
9.
Enforceability
and Choice of Law
A. Except
as otherwise
provided in paragraph 8, above, should Xxxxxxxxx challenge any provision of
this
Agreement and such provision be declared illegal or unenforceable by any
arbitrator or court of competent jurisdiction and is not modified to be
enforceable, such provision will immediately become void, leaving the remainder
of this Agreement in effect. However, if any portion of the general release
(paragraph 6) is ruled to be unenforceable as a result of such challenge,
Xxxxxxxxx agrees that Anheuser-Xxxxx and/or any of the Releasees will be
entitled to a set-off against any subsequent judgment or award made to Xxxxxxxxx
in the amount of all compensation paid to him by Anheuser-Xxxxx under this
Agreement.
B. The
parties have
read and fully considered this Agreement and mutually desire to enter into
this
Agreement. The terms of this Agreement are the product of mutual negotiation
and
compromise between Xxxxxxxxx and Anheuser-Xxxxx. Having elected to execute
this
Agreement, to fulfill the promises and receive the sums set forth herein,
Xxxxxxxxx freely and knowingly, and after due consideration, enters into this
Agreement intending to waive, settle, and release all claims he has against
Anheuser-Xxxxx and/or any of the Releasees as of the effective date of this
Agreement.
C. This
Agreement
shall be governed by and construed according to the law of the State of
Missouri. This Agreement constitutes the entire understanding between Xxxxxxxxx
and Anheuser-Xxxxx with respect to its subject matter. Except as otherwise
provided in this Agreement, it supersedes all previous or
contemporaneous
8
negotiations,
commitments, agreements, statements, representations, or promises, oral or
written between the parties. This Agreement may not be modified except in a
writing signed by both parties.
D. It
is the parties’
intent and expectation that the insured dental and vision benefits, life
insurance premiums, transfer of car title, and financial planning assistance
(“Exempt Benefits”) provided to Xxxxxxxxx under the terms of this Agreement
are exempt from the application of Internal Revenue Code Section 409A and all
regulations and other guidance issued thereunder. In the event that new
regulations, interpretations or other legal guidance change that
assessment, the parties intend that appropriate adjustments will be made to
cause the Exempt Benefits to be exempt or, if that is not possible, to
cause the Exempt Benefits to comply with Section 409A. It is also the
parties intent and expectation that all forms of compensation provided by this
Agreement that are subject to the application of Section 409A ("Nonexempt
Benefits") will fully comply with Section 409A, and in the event that new
regulations, interpretations or other legal guidance change that assessment,
the
parties intend that appropriate adjustments will be made to cause the Nonexempt
Benefits to comply with Section 409A.
X. Xxxxxxxxx
acknowledges that he has been advised by Anheuser-Xxxxx that there may be
substantial federal and state income tax consequences for Xxxxxxxxx as a result
of entering into this Agreement, and that he should seek professional tax and
legal advice before doing so. Xxxxxxxxx further acknowledges that he has not
been provided with any advice on the tax effects of this Agreement by
Anheuser-Xxxxx or any of its employees or agents.
10.
Remedies
X. Xxxxxxxxx
agrees
that if Anheuser-Xxxxx breaches any provision of this Agreement, his sole remedy
shall be enforcement of the terms of this Agreement.
B. Anheuser-Xxxxx
and
Xxxxxxxxx agree that all disputes between the parties relating to or arising
out
of: (a) this Agreement; (b) Xxxxxxxxx’x employment with Anheuser-Xxxxx; and/or
(c) the cessation of Xxxxxxxxx’x employment with Anheuser-Xxxxx must be resolved
through the Anheuser-Xxxxx Dispute Resolution Program,
9
which
includes
final and binding arbitration of covered claims. Xxxxxxxxx acknowledges that
he
has previously signed the “Mutual Agreement to Arbitrate Claims” which is
attached to this Agreement as Exhibit A and is incorporated by this
reference.
11.
Notices
Unless
otherwise
provided, all notices, requests, consents and other communications required
or
permitted under this Agreement must be in writing and must be hand delivered
or
mailed, addressed as follows, or to such other address as may be provided by
the
respective parties to this Agreement:
If
to
Anheuser-Xxxxx:
Anheuser-Xxxxx
Companies, Inc.
Xxx
Xxxxx
Xxxxx
Xx.
Xxxxx, XX
00000
Attn.:
President
& Chief Executive Officer
If
to Xx.
Xxxxxxxxx:
Xx.
Xxxxxx X.
Xxxxxxxxx
00
Xxxx
Xxxxx
Xx.
Xxxxx, Xxxxxxxx
00000
12. XXXXXXXXX
STATES THAT HE HAS CAREFULLY READ THIS “CONFIDENTIAL AGREEMENT AND GENERAL
RELEASE,” THAT HE KNOWS AND UNDERSTANDS ITS CONTENTS AND THAT HE IS ENTERING
INTO THIS AGREEMENT AS HIS OWN FREE ACT AND DEED. XXXXXXXXX FURTHER REPRESENTS
AND AGREES THAT:
| · |
HE
HAS BEEN ADVISED BY ANHEUSER-XXXXX TO CONSULT WITH AN ATTORNEY PRIOR
TO
SIGNING THIS AGREEMENT;
|
| · |
HE
FULLY UNDERSTANDS THAT HIS EXECUTION OF THIS AGREEMENT CONSTITUTES
A FULL
AND FINAL RELEASE OF ALL CLAIMS HE MAY HAVE AGAINST ANHEUSER-XXXXX
AS OF
THE EFFECTIVE DATE OF THIS AGREEMENT WITH FINAL AND BINDING
EFFECT;
|
| · |
HE
HAS BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER THIS
AGREEMENT;
|
| · |
FOR
A
PERIOD OF SEVEN DAYS FROM THE DATE HE SIGNS THIS AGREEMENT, XXXXXXXXX
MAY
REVOKE THIS AGREEMENT BY
|
10
|
NOTIFYING
ANHEUSER-XXXXX IN WRITING OF HIS INTENT TO DO SO;
AND
|
| · |
THIS
AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION
PERIOD HAS EXPIRED.
|
THIS
AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE, WHICH MAY BE ENFORCED BY THE
PARTIES.
The
parties to this
Confidential Agreement and General Release now voluntarily and knowingly execute
this Agreement.
ANHEUSER-XXXXX
COMPANIES, INC.
By: /s/
Xxxxxxx Xxxxxx
Date:
11/27/06
President
&
Chief
Executive
Officer
/s/
Xxxxxx X.
Xxxxxxxxx Date:
11/2/06
XXXXXX
X.
XXXXXXXXX
11
