EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
99.4
This
Agreement is made as of May 21, 2008 between Xxxxxx Incorporated, a Delaware
corporation (“Xxxxxx”), Constellation Brands, Inc., a Delaware Corporation
(“Constellation”), and Xxxxxxxxx X. Xxxx (“Executive”).
Executive
has contributed substantially to the growth and success of Xxxxxx, which is a
wholly-owned subsidiary of Constellation. Accordingly, Xxxxxx and
Constellation desire to retain Executive’s services as set forth in the
Agreement and to provide the necessary consideration to assure such
services.
Xxxxxx
and Executive therefore agree as follows:
1. Employment. Xxxxxx
hereby employs Executive as its President and Chief Executive Officer or in such
other senior executive position as Xxxxxx or 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 Xxxxxx and its
affiliates. (As used in this Agreement, the phrases “Xxxxxx and its
affiliates” and “Xxxxxx or any affiliate of Xxxxxx” shall include 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 Xxxxxx 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. During
the term of Executive’s employment, Xxxxxx shall pay him a base salary at the
rate of $651,460 per annum or such greater amount as the Human Resources
Committee of the Board of Constellation shall determine (“Base
Salary”). Such Base Salary shall be payable in accordance with
Xxxxxx’x standard payroll practices for senior executives. Xxxxxx may
pay Executive a bonus in such amount and at such time or times as the Human
Resources Committee of the Board of Constellation shall
determine. (Executive and Xxxxxx acknowledge that, for so long as
Executive serves as an “executive officer” of the Company, the Human Resources
Committee of the Board of Constellation is responsible for annually reviewing
and, as appropriate, approving or recommending that the Board of Constellation
approve each element of Executive’s compensation, including salary, bonus,
benefits and perquisites.)
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 Xxxxxx or
Constellation. Xxxxxx shall reimburse Executive for such expenses
from time to time, at Executive’s request, and Executive shall account to Xxxxxx
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 Xxxxxx Incorporated or
Constellation Brands, Inc. as the context dictates.
“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 of
Constellation.
“For
Cause Termination” means Xxxxxx terminates Executive for (1) any intentional,
non-incidental misappropriation of funds or property of Xxxxxx or 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 Xxxxxx or
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 Xxxxxx or 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 Xxxxxx and 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 Xxxxxx or Constellation within 30 days after
receipt of notice given by Executive to Xxxxxx and Constellation specifying the
event:
(a) Xxxxxx
or Constellation acts to reduce Executive’s employment band or acts to
materially reduce Executive’s duties and responsibilities;
(b) Constellation
reduces the amount of Executive’s Base Salary;
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(c) Xxxxxx
or Constellation acts to change the principal geographic location of the
performance of Executive’s duties to more than 30 miles from Executive’s current
principal place of business in Chicago, Illinois; or
(d) Xxxxxx
or Constellation materially breaches this Agreement.
“Retirement”
means Executive terminates employment with Xxxxxx and its affiliates for any
reason other than a “For Cause Termination” after attaining age 60 and
completing ten (10) years of service with Xxxxxx 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 Xxxxxx and
its affiliates.
6. Consequence of Termination
or Expiration of Agreement. If (i) Executive voluntarily
ceases employment with Xxxxxx and its affiliates, quits or terminates this
Agreement for any reason other than Retirement or a Good Reason Termination, or
(ii) Xxxxxx terminates the employment of Executive in a For Cause Termination,
then Executive’s rights and Xxxxxx’x 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 Xxxxxx and its affiliates terminates after this
Agreement expires or if, during the term of this Agreement, Executive’s
employment with Xxxxxx 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 Xxxxxx or
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 Xxxxxx’x and Constellation’s obligations under this
Agreement):
(a) Xxxxxx
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) Xxxxxx
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 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
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(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, Xxxxxx 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 Xxxxxx’x 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, Xxxxxx 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, Xxxxxx shall permit
Executive to take advantage of Xxxxxx’x annual product allowance program as in
effect on the Termination Date; and
(f) For
the eighteen (18) month period after the Termination Date, Xxxxxx 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 Xxxxxx 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 Xxxxxx’x 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 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.
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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 Xxxxxx and
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 Xxxxxx or its affiliates, 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
Xxxxxx or its affiliates. The parties agree that Executive may
continue service on any boards of directors on which he is serving while
employed by Xxxxxx or its affiliates. If Executive’s employment is
terminated by Executive for a Good Reason Termination or by Xxxxxx or
Constellation for any reason other than a For Cause Termination, then neither
Xxxxxx nor Constellation will unreasonably withhold such consent provided each
of them receive information and assurances, satisfactory to each of them,
regarding Executive’s new position.
(b) Executive
understands and agrees that the relationship between Xxxxxx and its affiliates
and each of their respective employees constitutes a valuable asset of Xxxxxx
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 Xxxxxx or any affiliate of
Xxxxxx 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.
(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
Xxxxxx or its affiliates 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 Xxxxxx or its affiliates may
from time to time during the term of this Agreement change
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or
increase the line of goods or services they provide and their 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 Xxxxxx’x 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 Xxxxxx 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, Xxxxxx’x and Constellation’s remedy shall include (i)
the right to require Executive to account for and pay over to Xxxxxx or
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 Xxxxxx 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.
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 Xxxxxx
or 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
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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 Xxxxxx shall pay Executive
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 Xxxxxx 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 Xxxxxx and Executive within 20
business days of Xxxxxx’x receipt of notice from Executive that there has been a
Payment or at such earlier time as is requested by Xxxxxx. 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 Xxxxxx. Any Gross-Up Payment, as
determined pursuant to Section 9(a), shall be paid by Xxxxxx to Executive within
10 days of the receipt of the Accounting Firm’s determination. Any
determination by the Accounting Firm shall be binding upon Xxxxxx 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 Xxxxxx should
have been made (the “Underpayment”) or that Gross-Up Payments will have been
made 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 Xxxxxx 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
Xxxxxx.
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10. Trade Secrets and
Confidential Information. Executive agrees that unless duly
authorized in writing by Xxxxxx, he will neither during his employment by Xxxxxx
or its affiliates nor at any time thereafter divulge or use in connection with
any business activity other than that of Xxxxxx or its affiliates any trade
secrets or confidential information first acquired by him during and by virtue
of his employment with Xxxxxx 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 Xxxxxx or
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 Xxxxxx or 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 Xxxxxx or 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 “Xxxxxx” is used in this Agreement, such
term shall mean and include Xxxxxx Incorporated and 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 Xxxxxx or
Constellation compensation or benefit plan.
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.
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15. Amendment;
Waiver. This Agreement contains the entire agreement of the
parties with respect to the employment of Executive by Xxxxxx 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 any party of
any breach by another 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.
Xxxxxx and Constellation may withhold from any payments due to Executive
hereunder such amounts as Xxxxxx or 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 Xxxxxx or Constellation, as appropriate, 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. Neither Xxxxxx nor Constellation shall 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.
|
XXXXXX
INCORPORATED
|
|
|
By:
|
/s/_Robert
Sands
|
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Name:
|
Xxxxxx
Xxxxx
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Title:
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Vice
President
|
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By:
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/s/
Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
|
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Title:
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President
and Chief Executive
Officer
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/s/ Xxxxxxxxx X. Xxxx
Xxxxxxxxx X.
Xxxx
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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 XXXXXX
INCORPORATED, CONSTELLATION BRANDS, INC. and XXXXXXXXX X. XXXX (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 (including without limitation
Xxxxxx Incorporated) 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
A-1
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, 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
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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.
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.
______________________________
Xxxxxxxxx X.
Xxxx
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 Xxxxxx Incorporated, 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
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
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