EXHIBIT 10.35
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BRL HARDY LIMITED
Company
STEPHEN BRIAN MILLER
Executive
NON-COMPETITION AGREEMENT
LAWYERS
Levels 23-35 No. 1 O'Connell Street Sydney NSW 2000 Australia
PO Box H3 Australia Square Sydney NSW 1215
www.claytonutz.com
Tel + 61 2 9353 4000 Fax + 61 2 8220 6700
SYDNEY - MELBOURNE - BRISBANE - PERTH - CANBERRA - DARWIN
Liability limited by the Solicitors' Limitation of Liability Scheme approved
under the Professional Standards Act 1994 (NSW)
NON-COMPETITION AGREEMENT MADE AT ON
PARTIES BRL HARDY LIMITED of (INSERT ADDRESS) ("COMPANY")
STEPHEN BRIAN MILLER of 14 Cygnet Street, Novar Gardens in the
State of South Australia 5040 ("EXECUTIVE")
RECITALS
A. The Executive is employed by the Company as its CEO of the Company and
subsequently is to be employed as the Managing Director of Constellation
Wine.
B. The Executive's current terms and conditions of employment are contained
in the Memorandum of Agreement (Service Contract) entered into by the
Company and the Executive on 11 June 1996 ("SERVICE CONTRACT").
C. The parties have agreed to enter into a non-competition agreement on the
terms set out in this Agreement ("THE AGREEMENT"). The terms of the
Agreement operate in conjunction with the terms of the Service Contract.
THE PARTIES AGREE
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1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"COMPANY" means BRL Hardy Limited and its Related Bodies Corporate and
Related Entities, as those terms are defined in section 9 of the
Corporations Act 2001, including without limitation Constellation Brands,
Inc. and any other vehicle through which the Company undertakes its
business including, without limitation, an incorporated or unincorporated
joint venture.
"RESTRAINT AREA" means Australia, New Zealand, Europe, North America
(including the United States of America and Canada) and any other material
geographical area in which Constellation undertakes its business.
"RESTRAINT PERIOD" means 12 months from the date of Termination.
"TERMINATION" means the cessation of the employment of the Executive under
the Service Contract, except where cessation occurs by reason of
termination under clause 13 of the Service Contract.
1.2 INTERPRETATION
In this Agreement:
(a) clause headings are for convenience only and do not affect
interpretation; and
unless the context otherwise requires:
(b) references to a clause are references to a clause of this Agreement;
(c) references to this Agreement or to any specified provision of this
Agreement or to any other agreement or document will be construed as
references to this Agreement or the specified provision of this
Agreement or that other agreement or document as amended or
substituted with the agreement of the relevant parties and in force at
any relevant time;
(d) references to any statute, ordinance or other law include all
regulations and other enactments thereunder and all consolidations,
amendments, re-enactments or replacements thereof; and
(e) words importing the singular include the plural and vice versa, words
importing a gender include other genders and references to a person
will be construed as including an individual, the estate of an
individual, firm, body corporate, association (whether incorporated or
not), government and governmental, semi-governmental and local
authority or agency.
2. NON-COMPETITION
2.1 GRANT OF OPTIONS
Subject to the Effective Date occurring as defined in the Implementation
Deed between the Company and Constellation Brands, Inc. dated , the Company
will grant to the Executive 100,000 non-qualified options in Constellation
Brands, Inc, which will vest at 25% per year from the date of the grant,
and which will expire on the day 10 years after the date of the grant. The
grant price will be the listed price on the date the grant is approved by
the Board of Directors. It is intended that approval of the grant will
occur on or about the date of closing.
In consideration of the grant of options, the Executive agrees to enter
into this Agreement and to observe the obligations contained in it.
2.2 POST EMPLOYMENT
The Executive represents and warrants that he will not, without the written
consent of the Company, during the Restraint Period:
(a) anywhere within the Restraint Area, directly or indirectly in any
capacity (whether as principal, agent, partner, employee, shareholder,
unit holder, joint venturer, director, trustee, beneficiary, manager,
consultant or adviser) carry on, advise, provide services to or be
engaged, concerned or interested in or associated with any business or
activity that is competitive with the Company;
(b) canvass, solicit or endeavour to entice away from the Company any
person who or which at the date of Termination was or is a client,
customer of or supplier to the Company or was or is in the habit of
dealing with the Company; (c) solicit, interfere with or endeavour to
entice away any employee of the Company; or
(d) counsel, procure or otherwise assist any person to do any of the acts
referred to in clauses 2.2(b) and (c).
Clause 2.2(a) does not prohibit the holding (whether directly or through
nominees) of shares listed on a recognised stock exchange so long as the
Executive does not hold more than 5% of the issued capital of any company.
2.3 SCOPE OF RESTRAINT AND SEVERABILITY
(a) In the event a Court or Tribunal of competent jurisdiction is of the
view that the restraint referred to in this clause is unenforceable but
would be enforceable if a lesser Restraint Period or smaller Restraint Area
was substituted, the parties agree that such lesser restraint shall apply
to ensure as far as possible the enforceability of the restraint contained
in this Agreement;
(b) Notwithstanding clause 2.3(a), if any part or any provision or part of
a provision of clause 2.2 is held or found to be void, invalid or otherwise
unenforceable, it will be deemed to be severed to the extent that it is
void or to the extent of voidability, invalidity or unenforceability, but
the remainder of that clause will remain in full force and effect.
2.4 REASONABLENESS
The Executive acknowledges that:
(a) the restrictions in clause 2.2 are reasonable in all the circumstances
and necessary to protect the goodwill of the Company; and
(b) the remedy of damages may be inadequate to protect the interests of the
Company and the Company is entitled to seek and obtain injunctive
relief, or any other available relief, for a breach of this Agreement
by the Executive.
2.5 GOVERNING LAW
This Agreement is governed by and will be construed according to the laws of
South Australia.
2.6 JURISDICTION
Each Party irrevocably submits to the exclusive jurisdiction of the courts
of South Australia, and the courts competent to determine appeals from
those courts, with respect to any proceedings which may be brought at any
time relating in any way to this Agreement. Notwithstanding the foregoing,
the Company may bring an action in any Court of competent jurisdiction
anywhere in the world to register and enforce any judgement arising from
the said proceedings.
SIGNED as an agreement.
Signed on behalf of BRL HARDY LIMITED by its
authorised officer in the presence of:
/a/ Carrie Boscarino /s/ Keith Wilson
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Signature of Witness Signature of Authorised Officer
/s/ Carrie Boscarino /s/ Keith Wilson
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Name of Witness in full Name of Authorised Officer in full
Signed by STEPHEN BRIAN MILLAR in the presence
of:
/s/ Stephen B. Millar
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Signature
8 April 2003
/s/ [unreadable]
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Signature of Witness
/s/ Benjamin Matthew Dollard
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Name of Witness in full