This Agreement is made as of
April 7, 2009 ( the “Agreement”), by and among ALEXANDER L. BERK
(“Executive”), an individual residing in Glencoe, Illinois, CONSTELLATION BRANDS, INC.
(“Constellation”), a Delaware corporation with its headquarters located at 207
High Point Drive, Building 100, Victor, New York 14564, and CONSTELLATION SERVICES LLC
(“Services”), a Delaware limited liability company having an office at 1
South Dearborn, Suite 1700, Chicago, Illinois 60603.
WHEREAS, Executive has been
employed as President and Chief Executive Officer of Services, successor by
merger to Barton Incorporated (“Barton”) and each of Services and Barton being
or having been a wholly-owned subsidiary of Constellation, pursuant to the terms
of an Executive Employment Agreement dated May 21, 2008 among Executive,
Constellation and Barton (the “Executive Agreement”);
WHEREAS, Constellation has
recently completed the sale of certain entities and assets owned by Barton and
its affiliates (the “Barton Sale”);
WHEREAS, Executive and
Constellation have mutually agreed that Executive shall continue to work as a
full-time employee of Services up until May 31, 2009, whereupon Executive shall
terminate employment as an employee with Services and its
affiliates;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein,
Constellation and Executive agree as follows:
1. Transaction
Bonus. In connection with the services Executive provided
regarding the Barton Sale, Constellation or Services shall pay Executive a lump
sum amount equal to $260,584.00 on or about April 15, 2009 or as soon as
administratively practicable thereafter (the “Transaction Bonus”) assuming a
successful close of the transaction. The Transaction Bonus shall be
included in the calculation of Executive’s “Previous Bonus”, as such term is
defined under the Executive Agreement, for purposes calculating Executive’s
post-termination rights under the Executive Agreement.
2. LTSIP
Enhancements. In connection with and subject to Executive’s
termination of employment as an employee on May 31, 2009, Executive shall fully
vest in all of his unvested Constellation options and all of Executive’s vested
options may be exercised until the earlier of: (i) February 28, 2011; or (ii)
the expiration date of the option.
3. Executive
Agreement. In connection with and subject to Executive’s
termination of employment on May 31, 2009, Executive shall be entitled to the
post-termination benefits as are set forth in the Executive Agreement; provided
that such benefits shall be subject to the terms and conditions of the Executive
Agreement except only as expressly set forth herein. For the purposes
of calculating Executive’s post-termination rights under the Executive
Agreement, the calculation of post-
termination
rights pursuant to Section 6(d) of the Executive Agreement shall be based upon
the automobile allowance program in effect for executives of Constellation on
May 31, 2009.
4. Assignment. This
agreement may not be assigned or transferred by Executive. This
Agreement may be assigned or transferred by Constellation and
Services.
5. 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.
6. 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.
7. Consent to
Jurisdiction. Executive 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.
8. 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 Agreement as of the date set forth
above.
|
ALEXANDER
L. BERK
|
|
CONSTELLATION
BRANDS, INC.
|
|
|
|
|
|
/s/ Alexander L. Berk
|
|
By:
|
/s/ Robert Sands
|
|
|
|
|
Robert
Sands
|
|
|
|
|
President
and Chief Executive Officer
|
|
CONSTELLATION
SERVICES LLC
|
|
|
|
By:
|
/s/ Robert Sands
|
|
|
Robert
Sands
|
|
|
Vice
President
|