Exhibit (e)(4)
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is dated as of September __,
2000, by and between _________________ ("you", "You" or "Employee") and_______
Xxxxxxxx Wine Estates Company ("BWE"), a wholly owned subsidiary of Fosters
Brewing Group Limited ("FBG") or one of its affiliates.
1. Term of Agreement
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This Agreement shall commence on ___________ and shall continue for a
period of three years, subject to earlier termination in accordance with the
provisions of section 3. If this Agreement has not been subject to early
termination in accordance with the provisions of section 3, beginning on the
one-year anniversary of the commencement of this Agreement and each year
thereafter unless BWE notifies you in writing or you notify BWE in writing that
it does not wish to further extend the term the term shall be automatically
extended for an additional 12 month term.
2. Duties
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(a) Position
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You will be employed by BWE as the _______________, and as such,
subject to subsection 2(c) below, will devote all of your normal business time
and attention to the affairs of BWE and the promotion of its interests.
(b) Report
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You will report directly to: (title)___________________.
(c) Obligations to BWE
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You agree to the best of your ability and experience that you
will at all times loyally and conscientiously perform all of the duties and
obligations required of and from you pursuant to the express and implicit terms
hereof, and to the reasonable satisfaction of BWE. During the term of your
employment relationship with BWE, you further agrees that you will devote all of
your business time and attention to the business of BWE. BWE will be entitled to
all of the benefits and profits arising from or incident to all such work
services and advice. You will not render commercial or professional services of
any nature to any person or organization, whether or not for compensation,
without the prior written consent of BWE's CEO, or in the case of BWE's CEO, to
the CEO's immediate supervisor at FBG, unless such activity has been previously
disclosed to BWE's CEO or General Counsel, and you will not directly or
indirectly engage or participate in any business that is competitive in any
manner with the business of BWE. You will comply with and be bound by BWE's
operating policies, procedures and
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practices from time to time in effect during the term of your employment.
3. Termination
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Provided you execute BWE's standard release agreement, agree to a non-
competition agreement prepared by BWE and agree to provide post-employment
consultation services to BWE, the greater of the following will apply:
a. Continuation of Salary In the event BWE terminates your employment
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for reasons other than for Good Cause, as defined below, or you resign for Good
Reason, as defined below, during the initial three (3) term of this Agreement
(i) You shall be eligible to exercise any long term incentive grants granted but
not exercised which shall be deemed vested as of the date of your termination of
employment. (ii) BWE shall pay you all base salary and 100% of target bonus
under paragraph 4(a) and/or 4(b) due to you through the conclusion of the term
of this Agreement, payable consistent with BWE's then current payroll practices;
or
x. Xxxxxxxxx In the event BWE terminates your employment for reasons
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other than for Good Cause, or you resign for Good Reason, (i) You shall be
eligible to exercise any long term incentive grants granted but not exercised
which shall be deemed vested as of the date of your termination of employment;
and (ii) BWE shall pay you, within sixty (60) days of such termination, a lump
sum severance payment equal to ____(__) year's base salary and 100% of target
bonus under paragraph 4(a) and/or 4(b) at the rate in effect at the date of
termination.
For purposes of this agreement, "Good Cause" shall mean (i) gross
misconduct by you, including but not limited to a material violation of BWE's
policies or any breach of BWE's Confidentiality Agreement, as may be amended
from time to time, or (ii) gross negligence by you.
"Good Reason" means: (A) the assignment to you of any duties
inconsistent in any respect with your position (including status, titles and
reporting requirements), authority, duties or responsibilities, or any other
action by BWE that results in a diminution in such position, authority, duties
or responsibilities; (B) a reduction in your compensation or benefits as
outlined in this Agreement; (C) BWE requires that you be based at any office or
location other than in the greater San Francisco Bay Area, including Napa and
Sonoma and; (D) any failure by BWE to comply with and satisfy the Assignment and
Transfer section below. For purposes of this agreement, any good faith
determination of "Good Reason" will be made by the parties. If the parties
cannot agree, the determination shall be made by binding arbitration utilizing a
single arbitrator provided by JAMS Endispute and under their rules and
procedures.
4. Compensation
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For the duties and services to be performed by you hereunder, BWE
shall pay you, and you agree to accept, the base salary, short term incentives,
long term
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incentives, and other benefits described below in this Section 4.
(a) Base Salary
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You shall receive a base salary of $_________________ per month,
which is equivalent to $ _________________ on an annualized basis. Your monthly
salary will be payable in two equal payments per month pursuant to the BWE's
normal payroll practices. Your salary shall be reviewed on at least an annual
basis consistent with BWE policy.
(b) Short Term Incentive Plan
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You will participate in the BWE's short-term incentive or bonus plan,
currently known as the APEX plan, subject to BWE's achievement of Operating
Profit goals and your achievement of personal goals as agreed at the beginning
of the financial year. Your current bonus target is ______. The range of payout
is between 0-150% of target.
The bonus is payable, if earned, generally, during September of each year.
(c) Long Term Incentive Plan
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It is the intent of FBG to implement a long term Incentive plan in FY 2001
that provides for a competitive total compensation package, comparable to BWE's
existing plans and for similar publicly traded companies in the U.S.
5. Additional Benefits
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You will be eligible to participate in the BWE employee benefit plans
of general application, including without limitation, those plans covering
medical, disability and life insurance in accordance with the rules established
for individual participation in any such plan and under applicable law. You
will be eligible for sick leave in accordance with the policies in effect during
the term of this Agreement and will receive such other benefits as BWE generally
provides to its other employees of comparable position and experience.
(a) Automobile Policy
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You have the choice of either:
(i) A BWE leased car consistent with the BWE policy which includes
insurance, maintenance etc.; or
(ii) A monthly gross auto allowance of $XXXX.
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(b) Retirement Savings Plan
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You may continue to participate in the Retirement Savings Plan ("RSP") that
enables employees to save money on a pre-tax basis commonly referred to as a
401-k Plan. Your participation in the 401(k) qualifies you to receive a BWE
Match Contribution that is 50% of the first 6% of earnings placed into the
savings plan. Additionally, BWE, based upon its financial performance, may
make an additional "Basic Contribution" The Basic Contribution is between 3% and
6% of your total compensation and is vested 25% per year or 100% after four
years.
(c) Executive Savings Plan
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As a supplement to the 401(k) plan, you may participate in the Executive
Savings Plan - a funded, non-qualified plan which allows for deferral of up to
20% of your total compensation (base and bonus) - and mirrors the 401(k) plan
for investment selection and results. The plan provides for matching
contributions from BWE equal to the contribution limits to the qualified BWE
RSP. The maximum contribution permitted by law of employee contributions and BWE
match is automatically transferred each year to the RSP.
(d) Executive Deferred Compensation Plan
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You may also participate in the Executive Deferred Compensation Program - a
non-funded, non-qualified deferral plan that provides for deferrals of cash
bonuses.
(e) Wine Allowance
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You are entitled to a wine allowance pursuant to BWE policy.
(f) Vacation
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You will be entitled to _______ days of vacation annually with full
compensation and benefits during vacation periods. You may take vacations at
such time or times as you and BWE mutually agree. Vacation accrues in
accordance with the BWE's personnel policies.
(g) Financial Counseling
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A Company paid financial advisor will be made available to you should you elect
in accordance with BWE policy.
6. Personnel Policies
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You agree to comply with all of BWE's rules, policies and procedures as
created, modified, and amended from time to time. You and BWE agree that the
creation of such policies will not modify the terms of this Agreement, and to
the extent such policies may conflict with the terms of this Agreement, this
Agreement shall be controlling.
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7. Confidentiality Agreement
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You shall sign, or have signed, a Confidentiality Agreement. You hereby
represent and warrant to BWE that you have complied with all obligations under
the Confidentiality Agreement and agree to continue to abide by the terms of the
Confidentiality Agreement and further agree that the provisions of the
Confidentiality Agreement shall survive any termination of this Agreement or of
your employment relationship with BWE.
8. Excise Tax Payments
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In the event that payments under Clause 3 of this Agreement
constitutes "parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") and you become subject to
the excise tax imposed by Section 4999 of the Code, then BWE agrees to pay in
full any such excise tax plus the grossed up amount for the excise tax and
income tax associated with the excise tax payable.
The maximum amount payable under this Clause 8 collectively will be no
more than one million dollars.(1,000,000).That is, employee agreements have been
offered to a number of BWE executives and the company,will make payment to those
executives. as liabilities arise under this clause, up to a collective amount of
one million dollars .Once the company pays one million dollars the company's
liability under this clause ceases.
9. Miscellaneous Provisions
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(a) Amendments and Waivers
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Any term of this Agreement may be amended or waived only with the
written consent of the parties.
(b) Entire Agreement
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This Agreement, including any Exhibits hereto, constitutes the
entire agreement of the parties and supersedes all oral negotiations and prior
writings with respect to the subject matter hereof.
(c) Notices
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Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon receipt, when delivered personally
or by a nationally-recognized delivery service (such as Federal Express or UPS),
or 48 hours after being deposited in the U.S. mail as certified or registered
mail with postage prepaid, if such notice is addressed to the party to be
notified at such party's address as set forth below or as subsequently modified
by written notice.
(d) Choice of Law
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The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of California, without
giving effect to the principles of conflict of laws.
(e) Severability
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If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then such provision
shall be excluded from this Agreement, the balance of the Agreement shall be
interpreted as if such provision were so excluded, and the balance of the
Agreement shall be enforceable in accordance with its terms.
(f) Counterparts
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This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together will constitute one and
the same instrument.
(g) Assignment and Transfer
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This Agreement shall not be terminated by the sale of stock by,
or the merger or consolidation of, BWE or FBG with any corporate or other entity
or by the transfer of all or substantially all of the assets of BWE or FBG to
any other person, corporation, firm or entity. The provisions of this Agreement
shall be binding on and shall inure to the benefit of any successors or assigns
of BWE and FBG. You agree that you can not assign this Agreement nor any of your
rights, duties or obligations under this Agreement.
(h) Advice of Counsel
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EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES THAT, IN EXECUTING THIS
AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF
THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY
REASON OF THE DRAFTING OR PREPARATION HEREOF.
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