INDIVIDUAL RETIREMENT AGREEMENT
THIS INDIVIDUAL RETIREMENT AGREEMENT (this "Agreement"), dated as of
May 1, 1997 (the "Effective Date"), is made and entered into by and
between XXXXXX VINEYARDS AND MANAGEMENT CO., a California corporation (the
"Company"), and XXXXXX X. XXXXX ("Employee").
RECITALS
A. The Company and Employee entered into an oral agreement in 1982
with respect to the provision of certain retirement benefits to be paid by the
Company to Employee, and desire to memorialize such oral agreement in writing in
this Agreement.
B. The Company currently employs Employee as its Vice President and
Controller, and Employee willingly serves the Company in such capacities.
C. In appreciation of Employee's 25 years of continuous service to
the Company, pursuant to that certain oral agreement referred to in Paragraph A
above and in partial consideration for Employee's continued service to the
Company until the earlier to occur of his death or retirement, the Company
desires to provide Employee with certain retirement payments, as described
herein, to be paid to Employee notwithstanding his retirement from the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
parties agree as follows:
1. TERM. The Company's obligations under this Agreement shall
commence on the retirement of Employee and shall terminate on the earlier to
occur of (i) the death of Employee or (ii) the existence of an incurable and
irreversible medical condition in Employee (A) which has been diagnosed by a
physician, (B) which will result in Employee's death within a relatively short
time without the administration of life-sustaining treatment or which has
produced an irreversible coma or persistent vegetative state and (C) which
leaves Employee unable to make decisions regarding his medical treatment (the
"Termination Date") (the "Term").
2. INDIVIDUAL RETIREMENT PAYMENTS. During the Term, the Company
shall pay Employee annual individual retirement payments in the amount of One
Hundred Thousand Dollars ($100,000) (the "Individual Retirement Payments") in
equal monthly installments on the first payroll day of each month in accordance
with the Company's payroll practices in effect from time to time; PROVIDED,
HOWEVER, that if Employee's employment with the Company is terminated and such
termination is the result of a permanent total disability and Employee is
entitled to any disability insurance payments as a result thereof,
the Company's obligation to make the Individual Retirement Payments shall be
reduced by the amount of any such disability insurance payments. The Company
may, in its sole discretion, purchase an annuity (from an insurance company or
other issuer of recognized financial standing) for the benefit of Employee
(which pays $100,000 to Employee in equal monthly installments on substantially
the same terms as set forth herein) in full payment and discharge of its
obligation to make the Individual Retirement Payments.
3. MISCELLANEOUS.
(a) BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, executors, representatives, estates, successors and assigns, including
any successor or assign to all or substantially all of the business and/or
assets of the Company, whether direct or indirect, by purchase, merger,
consolidation, acquisition of stock or otherwise and Employee shall not assign
all or any portion of Employee's rights or obligations under this Agreement
without the prior written consent of the Company.
(b) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter hereof,
and supersedes all prior agreements and understandings, oral or written, between
them as to such subject matter.
(c) NOTICES. Any notice, request, instruction or other document
required by this Agreement shall be given in writing and shall be deemed
effectively given if mailed with the United States Postal Service by prepaid,
first class, certified mail, return receipt requested, at the time of receipt by
the intended recipient at his or its address indicated below his or its
signature or at such other address as such party may designate by ten (10) days
advance written notice to the other party hereto.
(d) GOVERNING LAW; ENFORCEMENT. This Agreement is governed by
the internal laws of the State of California. The prevailing party in any
action to enforce this Agreement shall be entitled to attorneys' fees and costs.
(e) AMENDMENTS; WAIVERS. This Agreement represents the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all previous written or oral understandings. This Agreement may only
be amended with the written consent of the parties hereto, or the successors or
assigns of the foregoing, and no oral waiver or amendment shall be effective
under any circumstances.
(f) HEADINGS. The headings contained in this Agreement are
inserted for convenience or reference only, and do not constitute a part of this
Agreement.
(g) NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to confer any rights or remedies on any person not a party to this
Agreement.
2.
(h) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
(i) INVALIDITY; SEVERABILITY. In the event that any provision
of this Agreement shall be deemed contrary to law or invalid or unenforceable in
any respect by a court of competent jurisdiction, the remaining provisions shall
remain in full force and effect to the extent that such provisions reasonably
can still be given effect in accordance with the intentions of the parties, and
the invalid and unenforceable provisions shall be deemed, without further action
on the part of the parties, modified, amended and limited solely to the extent
necessary to render the same valid and enforceable.
3.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPANY:
XXXXXX VINEYARDS AND MANAGEMENT CO.,
a California corporation
By:/s/Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
Address: 00000 Xxxxxxxxxx Xxxxxxxxx, Xxx. 000
Xxxxxx xxx Xxx, XX 00000
EMPLOYEE:
/s/Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Address: 00000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
4.
