EXHIBIT 10.36
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MEMORANDUM OF AGREEMENT
(SERVICE CONTRACT)
BETWEEN
BRL HARDY LIMITED
ACN 008 273 907
AND
XXXXXXX XXXXX XXXXXX
MEMORANDUM OF AGREEMENT
(SERVICE CONTRACT)
AGREEMENT made the 11th day of June 1996
BETWEEN BRL HARDY LIMITED of Reynell Road, Reynella, South Australia ("BRL
Hardy")
AND XXXXXXX XXXXX XXXXXX of 00 Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxx
Xxxxxxxxx ("the Executive")
1. APPOINTMENT AND TERM
1.1 Until the termination of this Agreement:-
(a) BRL Hardy will employ the Executive as its Managing Director,
and
(b) the Executive will serve BRL Hardy in that position.
1.2 This Agreement is made as of 1 April 1996 and will continue for an
initial term of 3 years from that date (subject to the rights of
either party to terminate it earlier under this Agreement), and will
continue from 1 April 1999 until terminated in accordance with this
Agreement.
1.3 This Agreement replaces the Executive's existing contract of service
dated 27 March 1992.
2. RESPONSIBILITIES
2.1 The Executive will diligently and faithfully serve BRL Hardy as its
Managing Director and will properly exercise all the executive
powers ordinarily incidental to that position and any other powers
which are conferred upon him by BRL Hardy from time to time.
2.2 The Executive will report to the Board of BRL Hardy ("the Board") in
respect of all matters connected with his appointment under this
Agreement.
2.3 The duties and obligations which the Executive has to BRL Hardy under
this Agreement or at law and any other duties which may reasonably
be required of him at any time by BRL Hardy will be performed by
him at BRL Hardy's head office at Reynella and at such other places
as may be required for their proper performance, and BRL Hardy will
provide the Executive with such facilities and assistance as he may
reasonably require for their proper performance.
2.4 The Executive will use his best endeavours to promote the interests
and welfare of the business of BRL Hardy and will conform with all
proper and reasonable instructions that may be given to him from time
to time by the Board.
2.5 Unless absent on leave or through illness or injury, the Executive
will devote the whole of his time and attention during normal working
hours, and at such other times as may be reasonably necessary, to the
performance of his duties.
2.6 For as long as this agreement continues, the Executive will not,
without the prior consent of BRL Hardy:
(a) enter into the service of or be employed in any other capacity
or for any other purpose whatever by any person, firm or
corporation other than BRL Hardy or another company in the BRL
Hardy Group of companies; nor
(b) be engaged or concerned in the direction, management or control
of any business other than the business of BRL Hardy and the
BRL Hardy group of companies.
3. CONFIDENTIALITY
3.1 Except in the course of his duties, the Executive must not at any
time disclose to any person any information relating to BRL Hardy or
the Group or to its customers or employees or any trade secrets of
which he may become possessed during the term of this agreement.
3.2 These obligations will continue to apply, notwithstanding the
termination of the Executive's employment and without limit in time,
but will cease to apply to any information which may come into the
public domain.
4. REMUNERATION
4.1 The Executive is entitled to annual remuneration on the basis of the
salary package described in the table below.
Component $
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Base Salary $300,000
Superannuation Contributions
@ 20% of base salary see clause 5
Motor Vehicle see clause 6
Additional benefits see clause 7
4.2 The Executive's base salary will be paid by equal fortnightly
instalments or in such other manner as may be mutually agreed.
4.3 On 1 April each year, commencing on 1 April 1997, the Executive's
base salary will be reviewed by the Board, with a view to adjusting
the salary upwards in accordance with salary standards in the wine
industry. The Executive's base salary will not be reduced during the
term of this Agreement.
5. SUPERANNUATION
5.1 BRL Hardy undertakes to contribute for and on behalf of the
Executive to the BRL Hardy Superannuation Fund or to any other fund
from time to time kept by BRL Hardy for the benefit of its employees
for so long as the Executive remains in the employment of BRL Hardy.
5.2 The contributions to be made by BRL Hardy must be maintained at
least at the levels presently applying to the Executive.
6. MOTOR VEHICLE
6.1 BRL Hardy will provide the Executive with a fully maintained motor
vehicle for use during the course of his employment in accordance
with BRL Hardy's Motor Vehicle Policy.
6.2 BRL Hardy will pay only those costs incurred in running and
maintaining the motor vehicle which are consistent with that policy.
7. ADDITIONAL BENEFITS
In addition to the foregoing salary and benefits, BRL Hardy will continue
provide a wine allowance and additional benefits to the Executive which
are to be maintained at least at current levels.
8. EXPENSES
BRL Hardy will pay to or for the Executive:
8.1 all telephone expenses (both business and private), and all
reasonable out of pocket expenses incurred by him in connection with
the business of BRL Hardy, including expenses of entertaining and
travelling.
8.2 all relocation expenses for the Executive and the Executive's family
and any other associated cost and expenses where it is necessary for
the Executive to change his place of residence in order to carry out
his duties.
9. ANNUAL LEAVE
9.1 The Executive will be entitled to four weeks' leave in each year to
be taken at a time or times approved by the Chairman of the Board.
9.2 Annual leave not taken will accrue for the benefit of the Executive,
but accrued leave is not to exceed 20 weeks without the approval of
the Board.
10. DISMISSAL
10.1 If the Executive:-
(a) is guilty of any gross misconduct in relation to the business
or affairs of BRL Hardy; or
(b) wilfully or unreasonably refuses or fails to perform his major
duties; or
(c) neglects to perform his major duties,
then, after due warning by the Board and consultation with the
Chairman, BRL Hardy may dismiss the Executive without notice or
payment in lieu of notice.
10.2 If dismissed under sub-clause 10.1 above, the Executive is not
entitled to the termination payment referred to in sub-clause 11.3.
The question whether there should be any termination payment made,
and if so what amount, will be decided by the Board, but if the
dismissal is under sub-clause 10.1(c), the minimum termination
payment will be equivalent to two thirds of the total payment to
which the Executive would have been entitled if his employment had
been terminated under clause 11.
10.3 The Executive's employment may not be terminated under this clause 10
without the prior approval of the Board.
10.4 Nothing in this clause 10 restricts or limits the remedies to which
the Executive may have recourse at law for breach of contract or
otherwise.
11. TERMINATION BY BRL HARDY
11.1 BRL Hardy may terminate this Agreement at any time by giving notice
in writing to the Executive.
11.2 The period of notice given must be at least 3 months.
11.3 Upon a notice of termination taking effect, BRL Hardy must pay to the
executive a termination payment (in addition to any remuneration
payable during the period of notice) equivalent to twice the
Executive's total annual remuneration entitlement at the date the
notice was given.
11.4 The Executive's total remuneration entitlement includes the salary
package described in sub-clause 4.1 and all other benefits provided
under this Agreement.
11.5 In lieu of the period mentioned in sub-clause 11.2 above, BRL Hardy
may elect to give a shorter period of notice, but must pay to the
Executive an amount equal to the Executive's total remuneration
entitlement for the balance of the 3 month period in lieu of notice,
in addition to any entitlement under sub-clause 11.3.
11.6 This clause 11 does not apply if the Executive is dismissed under
sub-clause 10.1 of this Agreement, or if the Executive terminates
this Agreement by giving notice under sub-clause 12.1.
12. TERMINATION BY THE EXECUTIVE
12.1 The Executive may terminate this Agreement by giving notice in
writing to BRL Hardy.
12.2 The minimum period of notice required to be given by the Executive is
3 months or such shorter period as may be agreed.
12.3 The Executive is also entitled to terminate this agreement without
notice if BRL Hardy fails to observe any of the provisions of this
Agreement, and fails to remedy such failure within a reasonable
period of time after the Executive has requested the failure to be
remedied. Termination under this sub-clause does not affect any
rights which the Executive has to compensation for breach of
contract.
13. REDUNDANCY
13.1 If the Executive's employment as Managing Director ceases because his
position has become redundant as a result of:
(a) a restructuring of the organisation of BRL Hardy or the BRL
Hardy Group of companies; or
(b) any merger or amalgamation of BRL Hardy or its principal
business with another company or business; or
(c) any total or partial take-over of BRL Hardy (including a total
or partial take-over of the issued capital of BRL Hardy; or
(d) the sale or disposal of the whole or part of the undertaking of
BRL Hardy; or
(e) any other cause,
the Executive will promptly be given notice of redundancy by BRL
Hardy in writing. Such notice is to be taken for the purposes of
this Agreement, to be a notice of termination given under sub-clause
11.1 and the other provisions of Clause 11 will then apply.
13.2 If in the circumstances described in sub-clause 13.1:
(a) no such notice is given within 7 days of the Executive's
position becoming redundant; or
(b) the Executive ceases to be required to carry out the duties
and obligations ordinarily incidental to the position of
Managing Director; or
(c) the Executive is required to change his usual place of residence
in order to properly perform his duties,
the Executive may within three months of the occurrence of any of
these events give notice of resignation.
13.3 A notice of resignation given under sub-clause 13.2 has the same
effect as if BRL Hardy had given notice of termination to the
Executive under sub-clause 11.1 and the other provisions of Clause 11
will then apply. For the purposes of this sub-clause such notice of
resignation will have been properly given to BRL Hardy if delivered
in writing to the registered office of BRL Hardy.
13.4 All payments made to the Executive under clause 11 as a consequence
of the receipt by the Executive of a notice of redundancy under
sub-clause 13.1 or of the giving by the Executive of a notice of
resignation under sub-clause 13.2 (other than for accrued leave
entitlements) are to be considered payments in respect of redundancy.
14. COSTS
The costs of preparation, executing and stamping this Agreement will be
paid by BRL Hardy.
EXECUTED AS AN AGREEMENT by BRL Hardy and the Executive on the date appearing at
the beginning of this Agreement.
Signed for and on behalf of )
BRL HARDY LIMITED )
by XXX XXXX PENDRIGHAM ) /s/ Xxx Xxxx Pendrigham
CHAIRMAN ) ----------------------------
in the presence of: )
Signed by )
XXXXXXX XXXXX XXXXXX ) /s/ Xxxxxxx Xxxxx Xxxxxx
in the presence of: ) ----------------------------
XXXXXXX XXX
