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
had 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 Services by
prepaid, first class, certified mail, return receipt requested, at the time
of receipt by the intended recipient at his of 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 the Agreement are inserted
for convenience or references 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.
(j) MEDIATION; ARBITRATION. Any dispute which may arise between the
parties hereto as to the construction, interpretation or effect of this
Agreement which is not resolved by mutual agreement between the parties,
shall first be submitted to nonbinding mediation on terms and conditions to
be mutually agreed upon by the parties. In the event that a dispute is not
resolved by nonbinding mediation, the disputing party may give the other
party notice of such party's intention to cause the same to be submitted to
arbitration. After fifteen (15) days have elapsed from the giving of such
notice, but not before such time, the party who gave such notice may cause
any such dispute which then remains unresolved to be submitted to arbitration
by submitting the same to the Los Angeles, California office of the American
Arbitration Association (the "AAA") (or any successor thereto, but if no
organization is then performing a function reasonably similar to the AAA,
then to a court of competent jurisdiction in accordance with the rules of
such court) with a request for arbitration to be conducted in accordance with
the rules thereof by one (1) arbitrator to be jointly selected by the parties.
The prevailing party's expenses, including without limitation attorneys'
fees, in connection with such arbitration shall be borne by the losing party,
PROVIDED, HOWEVER, that if liability is allocated by the arbitrator between
the parties, the expenses of such arbitration, including without limitation
the parties' attorneys' fees, shall be borne by the parties in proportion to
their respective percentages or proportions of liability assessed by the
arbitrator. The decision of the arbitrator as to all matters properly
submitted to such arbitrator and as to the apportionment of expenses of
arbitration shall be conclusive and binding upon the parties and judgment
upon any award may be entered in any court of competent jurisdiction.
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
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Xxxxxx X. Xxxxx
Address: 00000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
4.
