EXHIBIT 4.13
EXECUTIVE EMPLOYMENT AGREEMENT
This executive employment agreement ("Agreement") is made and entered into
between Diageo North America, Inc. (the "Company") and NAME ("Executive"),
and sets forth the terms and conditions of Executive's employment with the
Company.
1. COMPENSATION
1.1. SALARY
Executive's annual base salary shall be SALARY per annum, subject to
periodic increases in accordance with the Company's Total Rewards
Compensation Plan, but not subject to any decreases below the base salary
during the term of this Agreement.
1.2. INCENTIVE PLAN
Executive shall continue to be eligible for an annual incentive
("Incentive") in accordance with terms and conditions of the Company's
Economic Profit Incentive Plan (the "Incentive Plan"). Executive's declared
bonus under the Incentive Plan is xx% of base salary.
1.3. DIAGEO SENIOR EXECUTIVE SHARE OPTION PLAN
Executive shall participate in the Senior Executive Share Option Plan in
accordance with the provisions of that plan.
1.4. TSR PLAN
Executive shall participate in the TSR Plan in accordance with the
provisions of that plan.
2. BENEFITS
Executive shall participate in the benefit plans of the Company described
in Exhibit 1 hereto. Such benefits shall be subject to and governed by the
terms of the applicable benefits plan.
3. TERMINATION OF AGREEMENT AND EMPLOYMENT RELATIONSHIP
This Agreement and Executive's employment relationship with the Company may
be terminated under the following circumstances:
3.1 DEATH
In the event of the death of Executive, this Agreement and the employment
relationship shall automatically terminate. In such event, the Company's
sole obligation shall be to pay the legal representative of Executive's
estate any unpaid portion of the Executive's annual Salary through the date
of death at the rate in effect at the time of death, and all other amounts
owed, if any, under any compensation plan of the Company to which Executive
is entitled as of the date of the Executive's death. Said payments shall be
made within fifteen (15) days of the death of Executive. In addition, the
legal representative of Executive's estate shall be paid a prorated
Incentive to the extent Executive is eligible at the time of death.
3.2 DISABILITY
If Executive is absent from or unable to perform the Executive's job duties
for six (6) months during any twelve (12) month period because Executive is
physically or mentally incapacitated so as to render Executive incapable of
performing the Executive's usual and customary duties under this Agreement
with reasonable accommodation, the Company may terminate this Agreement and
the employment relationship. In such event, the Company's sole obligation
shall be to pay Executive any unpaid portion of the Executive's annual
Salary through the date of termination at the rate in effect at the time
the disability commenced (and as set forth in the applicable Disability
Plan), and all other unpaid amounts, if any, under any compensation plan of
the Company to which Executive is entitled as of the date the disability
commenced. Said payments shall be made at the time such payments would
normally have been made. In addition, Executive shall be paid a prorated
Incentive to the extent Executive is eligible at the time the disability
commenced.
3.3 TERMINATION FOR CAUSE BY THE COMPANY
The Company may terminate this Agreement and the employment relationship
without notice at any time for Cause. "Cause" shall include (i) gross
insubordination, (ii) falsification of any work, personnel or company
records, (iii) unauthorized taking of company funds, property or
unauthorized charges against the Company's accounts, (iv) refusal to
perform Executive's duties, (v) gross negligence in the performance of
Executive's duties, (vi) serious misconduct of any kind, (vii) breach of
the Diageo NA, Inc. Code of Conduct, (viii) conviction of the Executive of,
or the entering of a plea of guilty or no contest by the Executive to, a
felony involving moral turpitude or (ix) any other misconduct by Executive
which impacts the Executive's ability to effectively perform Executive's
duties.
3.4 TERMINATION WITHOUT CAUSE BY EITHER PARTY
The Company or the Executive may terminate this Agreement and Executive's
employment without Cause at any time on thirty (30) day's advance written
notice to the other party.
3.5 TERMINATION FOR GOOD REASON BY EXECUTIVE
Executive may terminate this Agreement and the employment relationship for
Good Reason. "Good Reason" shall mean: (i) elimination of the Executive's
position without being offered a comparable alternative position (a
comparable position is an alternative executive level position within xx%
of target cash compensation); and (ii) a reduction in Executive's Base
Salary.
3.6 NOTICE OF TERMINATION
Any termination of this Agreement and the employment relationship by either
party hereto shall be communicated by the other in writing in accordance
with the provisions of Paragraph 14, below.
3.7 DATE OF TERMINATION
"Date of Termination" shall mean: (i) if Executive's employment is
terminated because of death, the date of Executive's death; (ii) if
Executive's employment is terminated for disability, the date Notice of
Termination is given; (iii) if Executive's employment is terminated for
Cause pursuant to Paragraph 3.3, above, the date Notice of Termination is
given; and (iv) if Executive's employment is terminated pursuant to either
Paragraph 3.4 or 3.5, above, the date specified in the Notice of
Termination (which, in either case, shall not be less than thirty (30) days
from the date such Notice of Termination is given).
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4. COMPENSATION UPON TERMINATION
(a) If this Agreement and the employment relationship are terminated by
death or disability of Executive, the Company shall make the payments
specified in Paragraphs 3.1 and 3.2, above.
(b) If this Agreement and the employment relationship are terminated by
the Company for Cause or by the Executive for other than Good Reason,
the Company shall pay Executive the unpaid portion of his annual
Salary through the Date of Termination at the rate in effect at the
time Notice of Termination is given, and all other unpaid amounts
under any compensation plan of the Company to which the Executive is
entitled as of the time of termination and such payments shall be made
at the time they normally would have been made to Executive. The
Company shall have no further financial or other obligations to the
Executive under this Agreement or otherwise.
(c) If this Agreement and the employment relationship are terminated by
the Company without Cause or by Executive for Good Reason, then:
(i) the Company shall pay Executive the unpaid portion of his annual
Salary through the Date of Termination at the rate in effect at
the time Notice of Termination is given; and
(ii) in lieu of any further Salary and Incentive payments to and in
exchange for a release approved by the Company , the Company
shall pay a sum equal to twenty four (24) months of Salary
(including the Notice of Termination period) at the rate in
effect at the time Notice of Termination is given, such amount
to be paid, at Executive's sole election, in equal monthly
installments or a lump sum. Regardless of the option selected,
Executive will be entitled to Incentive and Bonus Bank according
to the plan provisions in effect at the time of the Notice of
Termination; and
(iii) if the Executive elects installment payments, Executive shall
continue to participate in Diageo's medical, dental and vision
plans for a period of twenty four (24) months from the Date of
Termination or until such time as Executive becomes eligible for
coverage under another plan, whichever occurs first. The
Executive's participation will cease in all of the Company's
other employee benefit plans.
(d) Executive shall not be required to mitigate the amount of any payment
or benefit provided for in this Paragraph 4 by seeking other
employment or otherwise Except as provided in Paragraph 4(c)(iii),
above, the amount of any such payments or benefits shall not be
reduced by any compensation earned by Executive as the result of his
employment with a subsequent employer or by retirement benefits,
unless such employment is in violation of Section 6 of this Agreement.
5. DISCLOSURE AND ASSIGNMENT OF TRADE SECRETS AND CONFIDENTIAL INFORMATION
Executive agrees that with respect to any and all Trade Secrets,
Confidential Information and other works made or conceived by the Executive
while employed by the Company (or within one year of the termination of the
Executive's employment if based on or related to Trade Secrets or
Confidential Information), whether solely or jointly with any other person
or organization, during or after regular hours of employment:
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5.1 The Executive will disclose promptly to the Company all such Trade
Secrets, Confidential Information and other works.
5.2 The Executive will execute and promptly deliver to the Company (at the
Company's expense) such written instruments and do such other acts as
may be required to patent, copyright or otherwise protect such Trade
Secrets, Confidential Information and other works, and any
documentation or other materials pertaining thereto, and to vest the
entire right and title thereof in the Company. All such Trade Secrets,
Confidential Information and other works, together with any
documentation or other materials pertaining thereto, shall be
considered work made for hire and prepared by the Executive within the
scope of the Executive's employment by the Company.
5.3 The Company shall have the perpetual and unlimited right, without
cost, to use in its business and to sublicense and assign, in whole or
in part, any of such Trade Secrets, Confidential Information or other
works, and to make, use and sell any and all products, processes,
research and services derived from any of such Trade Secrets,
Confidential Information or other works. This includes, but is not
limited to, using, making and selling products, processes and/or
services derived from such Trade Secrets, Confidential Information or
other works.
6. CONFIDENTIALITY
In consideration of employment by the Company, Executive agrees that during
the term of Executive's employment with the Company, and at any time after
that employment terminates, Executive will not, without the Company's prior
written consent, disclose to any person or entity or use for any purpose
any trade secret or confidential or proprietary information of the Company
unless required to do so by the discharge of the Executive's duties to the
Company. Upon termination of employment with the Company for any reason,
Executive shall promptly return to the Company all documents containing any
trade secret or confidential or proprietary information of the Company.
7. NON-SOLICITATION AND NON-COMPETE
Executive agrees that while employed with the Company, and for a period of
twelve (12) months following the Date of Termination with the Company, he
shall not, except on behalf of the Company:
o solicit the business services of any employee of the Company or its
affiliates or induce in any manner any employee of the Company or its
affiliates to terminate his employment or association with the
Company.
o participate in any manner in the negotiation of distribution
agreements for wine or spirits with any distributors or brokers about
which the Executive has learned or developed confidential information
regarding the Company's contracts, policies or negotiation strategies
or plans
o perform executive, sales, marketing, supervisory or consulting
services for Allied-Domecq, Bacardi, Xxxxx-Xxxxxx, and/or
Anhueser-Xxxxx, or any entity resulting from a merger with or
combination of the foregoing entities.
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Executive recognizes and agree that the foregoing restrictions are
reasonable and necessary to protect the Company's trade secrets and that
they do not foreclose him from working in the adult beverages industry but
only from working in those portions of the industry which will necessarily
place the Company's trade secrets at the greatest risk of use or
disclosure.
To the extent that any of the provisions in paragraphs 5, 6, or 7 are held
to be overly broad or otherwise unenforceable at the time enforcement is
sought, Executive agrees that the provisions shall be reformed and enforced
to the greatest extent permissible by law. Executive further agrees that if
any provision is held to be enforceable the remaining provisions shall be
enforced as written.
8. CERTAIN RELIEF
The Executive acknowledges that any breach of Paragraphs 5, 6 or 7 of this
Agreement will cause the Company irreparable harm for which there is no
adequate remedy at law, and as a result, the Company shall be entitled to
the issuance of an injunction, restraining order or other equitable relief
without bond by a Court of competent jurisdiction restraining the Executive
from committing or continuing any such violation. Any right to obtain an
injunction, restraining order or other equitable relief hereunder shall not
be deemed a waiver of any right to assert any other remedy the Company may
have at law or in equity. If Executive breaches any of the covenants set
forth in Paragraph 5, 6 or 7 of this Agreement, Executive agrees to pay all
costs (including reasonable attorney's fees) incurred by the Company in
establishing that breach and in otherwise enforcing any of the covenants or
provisions of this Agreement.
9. RESIGNATION OF OFFICES
Upon termination of this Agreement and the employment relationship for any
reason, Executive shall immediately resign from all directorships and
officerships held in the Company and any entity affiliated with the
Company.
10. RETURN OF COMPANY PROPERTY
Upon termination of this Agreement and the employment relationship for any
reason, Executive shall promptly return all Company property in his
possession, including but not limited to, computer hardware/software,
credit cards, and cellular phones.
11. INDEMNIFICATION
The Company shall indemnify Executive in their capacity as an officer or
director of the Company and its subsidiaries or affiliated companies to the
fullest extent permitted under the corporate laws of the State of
Connecticut.
12. ENTIRE AGREEMENT
This Agreement contains all the understandings between the parties hereto
pertaining to the matters referred to herein, and supersedes all
undertakings and agreements, whether oral or in writing, previously entered
into by them with respect thereto.
13. AMENDMENT OR MODIFICATION WAIVER
No provision of this Agreement may be amended, changed, modified or waived
unless such amendment, change, modification or waiver is agreed to in
writing, signed by Executive and by a duly authorized officer of the
Company. No waiver by any party hereto of any breach by another party
hereto of any condition or provision of this Agreement to be performed by
such
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other party shall be deemed a waiver of a similar or dissimilar condition
or provision at the same time, any prior time or any subsequent time.
14. NOTICES
Any notice to be given hereunder shall be in writing and shall be addressed
to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice of hereunder in writing:
Executive: EXECUTIVE
TITLE
ADDRESS 1
ADDRESS 2
Company: Senior Vice President, HR
Diageo NA, Inc.
0 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Any notice delivered personally or by courier under this Paragraph 14 shall
be deemed given on the date delivered, and any notice sent by facsimile or
registered or certified mail, postage prepaid, return receipt requested,
shall be deemed given on the date the facsimile transmission is completed
or the return receipt is signed.
15. SEVERABILITY
If any provision of this Agreement or the application of any such provision
to any party or circumstances shall be determined by any court to be
invalid and unenforceable to any extent, the remainder of this Agreement or
the application of such provision to such person or circumstances other
than those to which it is so determined to be invalid and unenforceable,
shall not be affected thereby, and each provision hereof shall be validated
and shall be enforced to the fullest extent permitted by law.
16. SURVIVORSHIP
The provisions set forth in Paragraphs 3, 4, 5, 6, 7, 8, and 9 hereof shall
remain in full force and effect after the termination of this Agreement
notwithstanding the termination of this Agreement.
17. SUCCESSORS: NON-ASSIGNABILITY OF AGREEMENT
Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party hereto without the express written consent of the
other, except that this Agreement shall be binding upon and inure to the
benefit of any successor to the Company, whether by merger, consolidation,
sale or transfer of assets or otherwise, and any reference herein to the
Company shall be deemed to include any such successor.
18. GOVERNING LAW
This Agreement, and the interpretation thereof, shall be governed by the
laws of the State of Connecticut without regard to its conflict of law
rules and shall be deemed to have been made in the State of Connecticut.
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19. ARBITRATION
The Company and Executive mutually consent to the resolution by arbitration
of all claims or controversies, whether or not arising out of Executive's
employment or its termination, that Executive may have against the Company,
or against its directors, officers, employees or agents, or that the
Company may have against Executive.
Executive and the Company agree that any arbitration shall be in accordance
with the then-current employment arbitration procedures of the American
Arbitration Association before an arbitrator who is licensed to practice
law in Connecticut. The arbitration shall take place in Stamford,
Connecticut.
20. HEADINGS
All descriptive headings of sections and paragraphs in this Agreement are
intended solely for convenience, and no provision of this Agreement is to
be construed by reference to the heading of any section or paragraph.
21. WITHHOLDINGS
All payments to Executive under this Agreement shall be reduced by all
applicable withholdings required by federal, state or local law.
By:___________________________________ Dated:_______________________
EXECUTIVE
Diageo
By:___________________________________ Dated:________________________
NAME
TITLE
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EXHIBIT 1
SUMMARY OF BENEFIT PLANS AND PROGRAMS
RETIREMENT PROGRAMS
o DIAGEO, NA, INC. SAVINGS 401(K) PLAN: You will be eligible to participate
on the first day of the month coincident with or following the day you have
completed one year of service. For more plan details, review the Diageo
North America, Inc. Savings Plan (401(k)) Summary Plan Description on the
HR website -- MyLink.
o DIAGEO, NA, INC. CASH BALANCE PLAN (PENSION): You will be eligible to
participate on the first day of the month coincident with or following the
day you have completed one year of service. This is a company-provided
pension plan and enrollment is automatic. Upon enrollment the company
contributes 10% of your base salary plus designated pensionable bonus(s)
into the plan up to the statutory limit of $160,000 per annum.
Contributions will be credited quarterly with a rate of interest equal to
the 30-Year Treasury rate.
o DIAGEO, NA, INC. BENEFIT SUPPLEMENT PLAN: You will be eligible to
participate in this plan on the first day of the month coincident with or
following the day you have completed one year of service. Contributions
credit on any pensionable earnings over $200,000 are credited in an account
under this non-qualified Plan. The contributions and interest credits are
the same as the qualified Cash Balance Pension Plan. Since this plan is
non-qualified, any amounts accrued are not subject to ERISA legislation
and, as such, are not eligible for direct rollover when distributed.
o DIAGEO, NA, INC. DEFERRED COMPENSATION PLAN: You will be eligible to
participate in this plan if you complete and submit the enrollment
materials within 30 days of your appointment. The plan provides an
opportunity to defer current compensation on a pre-tax basis.
FINANCIAL PLANNING & SUPPORT PROGRAMS
o FINANCIAL COUNSELLING: You are entitled to be reimbursed up to a maximum of
[SUM] per annum for fees charged for services by the Company's financial
services vendor.
o ESTATE PLANNING: You are entitled to a one life-time reimbursement of
estate planning fees, up to a maximum of [SUM].
o TAX PREPARATION: You are entitled to be reimbursed up to a maximum of [SUM]
per calendar year for fees charged for services by the Company's financial
services vendor.
WELFARE BENEFIT PROGRAMS
o MEDICAL, DENTAL, VISION: You are eligible to participate in the medical,
dental and vision plans. In addition, you can also participate in the
Express Pharmacy Service Mail-Order Drug Program.
o LIFE INSURANCE AND AD&D: You are entitled to participate in Core Benefits
and/or Buy-up Benefits.
o DISABILITY INSURANCE:
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-- Short Term Disability: Short Term Disability is provided for first six
months of disability, the first three months at 100% of base pay and
the next three months at 60% of base pay.
-- Long Term: Long Term Disability is provided after six months of
disability. Due to the coverage provisions of the Executive LTD
programs, we recommend an election coverage of 60%.
-- Executive Long Term: You will be covered under the Executive Long Term
Disability Program. The premiums as an active employee will be paid by
the Company. Details will be sent under separate cover from the
Executive LTD Insurance Carrier.
OTHER PROGRAMS
o PERQUISITE ALLOWANCE: You will receive an annual perquisite allowance of
[SUM] (less applicable withholding taxes).
o FLEXIBLE SPENDING ACCOUNTS (FSA): You are eligible to participate in the
FSA Plan and can use Dependent Care Account if your spouse is working full
time or you have a regularly scheduled day care arrangements with a
licensed facility.
o VACATION AND VACATION BUY: You will be entitled to five weeks vacation per
calendar year. Your first year entitlements will be pro-rated from date of
hire. You may elect to buy up to an additional week of vacation per
calendar year.
o BRAND AMBASSADOR PROGRAM: You will be entitled to receive an allowance of
[SUM] per quarter, for the purchase of Company brands upon the completion
of the Quarterly Brand Tutorial program.
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