EXHIBIT 10.24
AMENDED AND RESTATED
BUY-SELL AGREEMENT
THIS AMENDED AND RESTATED BUY-SELL AGREEMENT (this "AGREEMENT") is made and
entered into as of December 31, 1997, by and among XXXXXX VINEYARDS INC., a
Delaware corporation (the "CORPORATION"), XXXXXX X. XXXXXX, AS TRUSTEE OF THE
XXXXXX X. XXXXXX REVOCABLE TRUST, DATED OCTOBER 8, 1992 ("AGS"), XXXXX X. XXXXXX
("SDS"), XXXXX X. XXXXXX ("HMS"), XXXX X. XXXXXXXX ("KJG"), XXXXX X. LIBERTY
("EKL"), XXXXX X. XXXXXX ("TPS"), the additional stockholders of the
Corporation, if any, identified on Exhibit A attached hereto and by this
reference incorporated herein (the "ADDITIONAL STOCKHOLDERS" and, together with
SDS, HMS, KJG, EKL and TPS the "MINORITY STOCKHOLDERS") and EMANTY LIMITED
LIABILITY COMPANY, a California limited liability company ("EMANTY"). The
Minority Stockholders and AGS are collectively referred to herein as the
"STOCKHOLDERS."
RECITALS
WHEREAS, the Stockholders are the holders of all of the outstanding shares
(the "SHARES") of Class B Common Stock of the Corporation;
WHEREAS, the Corporation and the Stockholders have determined that it is in
the best interests of the Corporation and the Stockholders that the
transferability of the Shares of the Minority Stockholders be restricted as
provided herein;
WHEREAS, the Corporation and the Stockholders (or the predecessors in
interest of certain of the Stockholders) entered into that certain Buy-Sell
Agreement, dated as of July 29, 1997 (the "ORIGINAL AGREEMENT");
WHEREAS, as a result of certain transfers of the Shares permitted by the
Original Agreement, the parties hereto (the "PARTIES") have determined that it
is necessary to make certain amendments to the Original Agreement and that in
connection therewith it is desirable to restate the Original Agreement as so
amended; and
WHEREAS, the Parties have each independently concluded that the method of
valuation of the Shares provided in this Agreement is fair and equitable.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
agreements and covenants contained herein, the Parties agree as follows:
1. RESTRICTIONS ON TRANSFER. Except as expressly permitted or required
by this Agreement, no Minority Stockholder shall, voluntarily or involuntarily
(including, without limitation, by operation of law) transfer, sell, exchange,
give away, pledge, hypothecate or
otherwise dispose of ("TRANSFER") all or any portion of the Shares or any
rights therein. Any Transfer or attempted Transfer in violation of the
preceding sentence shall be null and void and of no effect whatever. Each
Party hereby acknowledges the reasonableness of the restrictions on Transfer
imposed by this Agreement in view of the relationship of the Parties.
Accordingly, the restrictions on Transfer contained herein shall be
specifically enforceable. Each Party hereby further agrees to hold each other
Party (and each other Party's successors and assigns) wholly and completely
harmless from any cost, liability or damage (including, without limitation,
liabilities for income taxes and costs of enforcing this indemnity) incurred
by any of such indemnified persons as a result of a Transfer or an attempted
Transfer in violation of this Agreement.
2. INSPECTION OF AGREEMENT. A copy of this Agreement duly executed by
each of the Parties shall be delivered to the Corporation, maintained by the
Corporation at its principal executive office, and made available for inspection
to any person requesting to see it.
3. PERMITTED TRANSFERS.
(a) GENERAL. Subject to the conditions and restrictions set forth in
this Section 3, each Minority Stockholder shall have the right to Transfer all
or any portion of such Minority Stockholder's Shares by means of a Permitted
Transfer.
(b) DEFINITION OF PERMITTED TRANSFER AND PERMITTED TRANSFEREES.
(i) A "PERMITTED TRANSFER" is any Transfer by any Minority
Stockholder of all or any portion of the Shares to a Permitted Transferee,
provided that such Transfer otherwise complies with the conditions and
restrictions of this Section 3.
(ii) A "PERMITTED TRANSFEREE" is any of the following persons: (1)
the Corporation, (2) any of AGS, SDS, HMS, KJG, EKL or TPS, (3) a current
spouse, former spouse or direct lineal descendant of any individual named
in clause (2) above, including, without limitation, adopted persons (if
adopted during minority) and persons born out of wedlock, and excluding
xxxxxx children and stepchildren, (4) a trust under which all of the
beneficiaries are persons described in clauses (2) or (3) above, or (5) a
corporation, partnership or limited liability company all of the equity
interests of which are owned by the persons or entities specified in
clauses (1), (2), (3) and (4) above or corporations, partnerships or
limited liability companies described in this clause (5).
(c) CONDITION TO PERMITTED TRANSFERS. Each Permitted Transfer must
be preceded by a written notice given by the transferring Minority Stockholder
to the Corporation, and to each of AGS, SDS and HMS to the extent he or she is
not the transferring Minority Stockholder, at least ten (10) business days prior
to such Permitted Transfer. Each person or entity (other than the Corporation
and AGS) to whom or which Shares (or any right, title or interest therein) are
Transferred by means of a Permitted Transfer must, as a condition precedent to
the validity of such Transfer, acknowledge in writing to the Corporation that
such person or entity is bound by the provisions of this Agreement and the
transferred Shares (or
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any right, title or interest therein) are subject to the covenants and
restrictions set forth in this Agreement to the same extent such Shares would be
so subject if retained by the transferring Minority Stockholder.
4. RIGHT OF FIRST REFUSAL. Each Minority Stockholder shall have the
right, from time to time, to Transfer or to convert into Class A Common Stock of
the Corporation in accordance with the Certificate of Incorporation of the
Corporation ("CONVERT"), all or any portion of such Minority Stockholder's
Shares, subject to the following rights of the other Parties (the "RIGHT OF
FIRST REFUSAL"), pursuant to the following steps:
(a) SALE OR CONVERSION NOTICE. Such Minority Stockholder (the
"SELLING OR CONVERTING STOCKHOLDER") shall give written notice (the "SALE OR
CONVERSION NOTICE") to the Corporation, AGS, SDS and HMS of his, her or its
intention to Transfer or Convert Shares. The Sale or Conversion Notice shall
(i) identify the proposed transferee, if applicable, (ii) specify the portion of
the Shares to be transferred or converted, (iii) if applicable, specify the
price and the terms of payment (the "SALE TERMS"), and (iv) if applicable,
specify the Purchase Price and Payment Terms described in Section 7 below.
(b) OPTION TO THE CORPORATION. The Corporation shall have the first
option to purchase all or any part of the Shares referred to in the Sale or
Conversion Notice at the lesser of (i) the Sale Terms, if applicable, and (ii)
the Purchase Price and upon the Payment Terms. Within five (5) business days
after delivery of the Sale or Conversion Notice to the Corporation, the
Corporation shall give written notice to AGS, SDS and HMS regarding the portion
or all of the Shares to be purchased by the Corporation.
(c) OPTION TO AGS. If the Corporation does not elect to purchase all
of the Shares referred to in the Sale or Conversion Notice, AGS shall have the
option to purchase all of the Shares referred to in the Sale or Conversion
Notice (other than the Shares to be purchased by the Corporation) at the lesser
of (i) the Sale Terms, if applicable, and (ii) the Purchase Price and upon the
Payment Terms. Within ten (10) business days after delivery of the Sale or
Conversion Notice to AGS, AGS shall give written notice to the Corporation, SDS
and HMS regarding the portion or all of the Shares to be purchased by AGS.
(d) OPTION TO SDS AND HMS. If the Corporation and/or AGS do not
elect to purchase all of the Shares referred to in the Sale or Conversion
Notice, (i) SDS and HMS (if neither SDS nor HMS is the Selling or Converting
Stockholder), jointly and (to the extent that each elects to exercise such
option) PRO RATA in proportion to the number of Shares held by each, (ii) SDS
(if HMS is the Selling or Converting Stockholder) or (iii) HMS (if SDS is the
Selling or Converting Stockholder), shall have the option to purchase all of the
Shares referred to in the Sale or Conversion Notice (other than the Shares to be
purchased by the Corporation and/or AGS) at the lesser of (A) the Sale Terms, if
applicable, and (B) the Purchase Price and upon the Payment Terms. Within
fifteen (15) business days after delivery of the Sale of Conversion Notice to
SDS and HMS, SDS and/or HMS, as applicable, shall give written notice the
Corporation, AGS and SDS or HMS, as applicable, regarding the portion or all of
the Shares to be purchased by SDS and/or HMS.
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(e) EXERCISE OF OPTION RIGHTS. If the Corporation, AGS, SDS and/or
HMS elect to purchase all of the Shares set forth in the Sale or Conversion
Notice, the Corporation, AGS, SDS and/or HMS, as applicable, shall purchase all
such Shares at the lesser of (i) the Sale Terms, if applicable, and (ii) the
Purchase Price and upon the Payment Terms.
(f) SALE TO PROPOSED TRANSFEREE. If the Corporation, AGS, SDS and/or
HMS do not elect to purchase all of the Shares set forth in the Sale or
Conversion Notice, such Shares, but not less than all of such Shares referred to
in the Sale or Conversion Notice, (i) in the case of a proposed Transfer may be
transferred at any time prior to the thirtieth (30th) business day after the
date of the Sale or Conversion Notice to the transferee identified in the Sale
Notice on the Sale Terms and (ii) in the case of a proposed conversion may be
converted into shares of Class A Common Stock of the Corporation in accordance
with the Certificate of Incorporation of the Corporation at any time prior to
the thirtieth (30th) business day after the date of the Sale or Conversion
Notice. No Transfer or conversion of the Shares shall be made after the end of
such thirty (30) business day period, nor shall any change in the terms and
conditions of Transfer or conversion be permitted, without the Selling or
Converting Stockholder first giving to the Corporation, AGS, SDS and HMS a new
Sale or Conversion Notice in compliance with the requirements of this Section.
(g) CONVERSION ON DIVORCE OR LEGAL SEPARATION. Notwithstanding the
foregoing provisions of this Section 4, if any Minority Stockholder who is an
individual should divorce or became legally separated (a "SEPARATING PARTY"),
the spouse of such Party (the "SPOUSE") shall, if such Spouse already is a
Party, or if such Spouse is not already a Party then, such Separating Party
shall cause the Spouse to, promptly give a Sale or Conversion Notice to the
Corporation, AGS, SDS and HMS indicating that all of the Shares owned by the
Spouse are proposed to be converted into Class A Common Stock of the Corporation
and thereby providing the Corporation, AGS, SDS and HMS with the options to
purchase such Shares in the manner specified herein. If the Corporation, AGS,
SDS and HMS do not elect to purchase all of the Shares set forth in the Spouse's
Sale or Conversion Notice, the Spouse shall, if such Spouse already is a Party,
or if such Spouse is not already a Party, then the Separating Party shall cause
the Spouse to, promptly convert all of the Shares owned by the Spouse into Class
A Common Stock of the Corporation in accordance with the Certificate of
Incorporation of the Corporation. The provisions of this Section 4(g) shall not
apply to any of Xxxxxx X. Xxxxxx, SDS, HMS, KJG, EKL and TPS to the extent that
any of them is at any time within the above definition of the term "Spouse."
5. LIMITED SALES TO THIRD PARTIES. Notwithstanding the provisions of
Section 4, a Minority Stockholder shall have the right to Transfer all or part
of such Minority Stockholder's Shares, without compliance with the Right of
First Refusal, as follows:
(a) SALES BY SDS, HMS, KJG, EKL AND TPS. Each of SDS, HMS, KJG, EKL
and TPS shall be entitled to Transfer to persons other than Permitted
Transferees: (i) on or prior to December 31, 1998, an aggregate of 50,000
Shares (the "INITIAL AMOUNT") and (ii) during 1999 and each calendar year
thereafter, 40,600 Shares (the "ANNUAL AMOUNT"); provided, however, in the event
that such Minority Stockholder Transfers less than the Initial
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Amount on or prior to December 31, 1998 and/or less than the Annual Amount in
1999 or any calendar year thereafter, then such Minority Stockholder shall be
entitled, in 1999 or any subsequent calendar year, to Transfer Shares in an
amount up to the Annual Amount for such calendar year PLUS any then unused
Initial Amount PLUS any then unused Annual Amounts from prior calendar years.
(b) EFFECT OF TRANSFERS. All transferees of Shares pursuant to this
Section 5 shall take such Shares free and clear of the covenants and
restrictions set forth in this Agreement. Any legend with respect to this
Agreement set forth on any certificate evidencing Shares transferred pursuant to
this Section 5 shall be removed upon the consummation of such Transfer.
6. OPTION TO PURCHASE UPON CERTAIN EVENTS.
(a) SALE EVENTS. Upon the occurrence of any of the following
events (each a "SALE EVENT"), the Corporation, AGS, SDS and/or HMS shall have
the option to purchase all of the Shares of a Minority Stockholder (the
"AFFECTED STOCKHOLDER"), at the Purchase Price and upon the Payment Terms,
pursuant to the provisions of this Section 6:
(i) the death of the Affected Stockholder;
(ii) the entry of a judgment awarding all or any part of the Shares
of the Affected Stockholder to any person who is not a Party;
(iii) the filing or recording of any levy or attachment against the
Shares of the Affected Stockholder;
(iv) the occurrence, with respect to the Affected Stockholder, of
any of the following: (A) filing a voluntary petition in bankruptcy or for
reorganization or for the adoption of an arrangement under the Federal
Bankruptcy Code (as now or in the future amended) or an admission seeking
the relief therein provided; (B) making a general assignment for the
benefit of creditors; (C) consenting to the appointment of a receiver for
all or a substantial part of the Affected Stockholder's property; (D) in
the case of the filing of an involuntary petition in bankruptcy, an entry
of an order for relief; (E) the entry of a court order appointing a
receiver or trustee for all or a substantial part of the Affected
Stockholder's property without his consent; or (F) the assumption of
custody or sequestration by a court of competent jurisdiction of all or
substantially all of the Affected Stockholder's property; or
(v) in the event that KJG is the Affected Stockholder, the
termination of employment of such Affected Stockholder with the
Corporation, voluntarily or involuntarily, with or without cause.
(b) OPTION TO THE CORPORATION. Upon the occurrence of a Sale
Event, the Corporation shall have the first option to purchase all of the Shares
of the Affected Stockholder. Within five (5) business days after the Sale
Event, the Corporation shall give
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written notice to AGS, SDS and HMS regarding the portion or all of the Shares to
be purchased by the Corporation.
(c) OPTION TO AGS. If the Corporation does not elect to purchase
all of the Shares of the Affected Stockholder, AGS shall have the option to
purchase all of such Shares (other than the portion of the Shares to be
purchased by the Corporation). Within ten (10) business days after the Sale
Event, AGS shall give written notice to the Corporation, SDS and HMS regarding
the portion or all of the Shares to be purchased by AGS.
(d) OPTION TO SDS AND HMS. If the Corporation and/or AGS do not
elect to purchase all of the Shares of the Affected Stockholder, (i) SDS and HMS
(if neither SDS nor HMS is the Affected Stockholder), jointly and (to the extent
that each elects to exercise such option) PRO RATA in proportion to the number
of Shares held by each, (ii) SDS (if HMS is the Affected Stockholder) or (iii)
HMS (if SDS is the Affected Stockholder), shall have the option to purchase all
of such Shares (other than the portion of the Shares to be purchased by the
Corporation and/or AGS). Within fifteen (15) business days after the Sale
Event, SDS and/or HMS, as applicable, shall give written notice to the
Corporation, AGS and SDS or HMS, as applicable, regarding the portion or all of
the Shares to be purchased by SDS and/or HMS.
(e) EXERCISE OF OPTION. If the Corporation, AGS, SDS and/or HMS
elect to purchase all of the Shares of the Affected Stockholder pursuant to this
Section 6, the Corporation, AGS, SDS and/or HMS, as applicable, shall purchase
all of such Shares at the Purchase Price and upon the Payment Terms.
(f) EFFECT OF FAILURE TO EXERCISE OPTION. If the Corporation, AGS,
SDS and/or HMS do not elect to purchase all of the Shares of the Affected
Stockholder following a Sale Event, no portion of the Shares shall be
transferred pursuant to this Section 6 on account of such Sale Event.
7. PURCHASE PRICE AND PAYMENT TERMS.
(a) PURCHASE PRICE. "PURCHASE PRICE" means:
(i) if the Selling or Converting Stockholder or the Affected
Stockholder is a Minority Stockholder other than KJG under the
circumstances described in clause (ii) below, a price per Share equal to
the weighted average trading price of a share of the Class A Common Stock
of the Corporation over the twenty (20) trading days on which such shares
were actually traded immediately preceding the date of the Sale Notice or
the Sale Event, as applicable (the "AVERAGE TRADING PRICE"); or
(ii) if KJG is the Affected Stockholder and the Sale Event is the
termination of KJG's employment with the Corporation, (A) if such
termination is a "Voluntary Termination" as such term is defined in
Section 7(a)(iv) of the Employment Agreement between the Corporation and
KJG (the "EMPLOYMENT AGREEMENT") which occurs prior to July 29, 2004, or is
for "Cause" as such term is defined in Section 7(a)(v) of the
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Employment Agreement regardless of when such termination for Cause occurs,
a price per Share equal to the price per Share paid by KJG for such Shares
and (B) if such termination occurs for a reason or under circumstances
other than as described in subparagraph (A) above, a price per share equal
to the Average Trading Price.
(b) PAYMENT TERMS. The payment of the Purchase Price shall be made
on the following terms (the "PAYMENT TERMS"): (i) if the Purchase Price for the
Shares is $100,000 or less, the Purchase Price shall be paid in one lump sum
within seven (7) business days after the Sale Event or the Sale or Conversion
Notice, as applicable; and (ii) if the Purchase Price for the Shares is more
than $100,000, the Purchase Price shall be paid, at the option of the
Corporation, AGS, SDS and/or HMS, as applicable (x) in one lump sum within three
(3) months after the Sale Event or the Sale or Conversion Notice, as applicable;
or (y) by payment of not less than fifty percent (50%) of the Purchase Price
(the "DOWN PAYMENT") within three (3) months after the Sale Event or the Sale or
Conversion Notice, as applicable, and delivery of a promissory note evidencing
the balance of the Purchase Price, such promissory note to bear interest at the
prime rate of Bank of America, NT & SA, in effect on the date of the Down
Payment, to be payable in full one (1) year after the date of the Down Payment
and to be secured by the Shares being purchased.
8. RESTRICTIVE LEGENDS. The stock certificates for the Shares shall be
endorsed with the following restrictive legends:
(1) "The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares may not
be sold or offered for sale in the absence of (a) an effective
registration statement for the shares under such Act, (b) a 'no
action' letter of the Securities and Exchange Commission with
respect to such sale or offer or (c) satisfactory assurances to
the Corporation that registration under such Act is not required
with respect to such sale or offer."
(2) "The shares represented by this certificate are subject to
certain rights to purchase and rights of first refusal granted to
the Corporation and certain stockholders of the Corporation and
accordingly may not be sold, assigned, transferred, encumbered,
or in any manner disposed of except in conformity with the terms
of a certain agreement between the Corporation, the registered
holder of the shares (or the predecessor in interest to the
shares) and certain other persons. A copy of such agreement is
maintained at the Corporation's principal corporate offices."
9. TERMINATION OF AGREEMENT. This Agreement shall terminate upon the
occurrence of any one of the following events:
(a) The written agreement of the Parties to that effect; or
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(b) The dissolution of the Corporation.
10. ALTERATIONS OR AMENDMENTS. This Agreement may be altered or amended
in whole or in part at any time, by filing with this Agreement a written
instrument setting forth the changes signed by each of the Parties.
11. NOTICES. Any and all notices or other communications required or
permitted by this Agreement or by law to be served on, given to, or delivered to
any Party by any other Party shall be in writing and shall be deemed duly
served, given, or delivered when personally delivered to the Party or to an
officer of the Party, or in lieu of such personal delivery, on the third day
after deposit in the United States Mail, registered or certified, return receipt
requested, addressed to a Party at the address set forth below such Party's name
on the signature pages hereof, or such other address as shall have been provided
to the Parties in accordance with the provisions of this Section.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Parties and, except as restricted above with regard
to Transfers, each of their heirs, executors, administrators, successors and
assigns.
13. SEVERABILITY. Should any provisions or portion of this Agreement be
held unenforceable and invalid for any reason, the remaining provisions and
portions of this Agreement shall continue in full force and effect.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH,
AND GOVERNED BY, THE LAWS OF THE STATE OF CALIFORNIA.
15. ENFORCEMENT. In the event of any breach of any covenant in, or any
other default under, this Agreement, any Party may proceed to protect and
enforce his, her or its rights by suit in equity or action at law, whether for
the specific performance of any term contained in this Agreement or for an
injunction against the breach of any such term or in aid of the exercise of any
power granted in this Agreement, or to enforce any other legal or equitable
right of such Party, or to take any one or more of such actions. In the event a
Party brings such an action against another Party, the prevailing party in such
dispute shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation such reasonable fees and
expenses of attorneys and accountants. None of the rights, powers or remedies
conferred upon any Party shall be mutually exclusive, and each such right, power
or remedy shall be cumulative and in addition to every other right, power or
remedy, whether conferred hereby or now or hereafter available at law, in
equity, by statute or otherwise. Except as expressly provided in this
Agreement, no course of dealing between or among the Parties and no delay in
exercising any such right, power or remedy conferred hereby or now or hereafter
existing at law, in equity, by statute or otherwise, shall operate as a waiver
of, or otherwise prejudice, any such right, power or remedy.
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16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties hereto respecting the transferability of the Shares and correctly
sets forth the rights, duties, and obligations of each to the other in relation
thereto as of its date. Any prior agreements, promises, negotiations, or
representations concerning its subject matter not expressly set forth or
referenced in this Agreement are of no force or effect.
17. DISSOLUTION OF EMANTY. Emanty, one of the Minority Stockholders under
the Original Agreement has dissolved and is in liquidation. As a liquidating
distribution, which is a Permitted Transfer under the Original Agreement, Emanty
has distributed the Shares owned by it to its members, Xxxxxx X. Xxxxxx, EKL and
TPS. Xxxxxx X. Xxxxxx has in turn contributed the Shares distributable to him
by Emanty to AGS. Each of EKL and TPS hereby acknowledges that she or he is
bound by the provisions of this Agreement and the Shares so transferred by
Emanty (or any right, title or interest therein) are subject to the covenants
and restrictions set forth in this Agreement to the same extent such Shares
would be so subject if retained by Emanty. Each of AGS, SDS and HMS hereby
waives the condition for advance written notice of the liquidating distributions
by Emanty provided for in Section 3(c) of the Original Agreement. Emanty is
hereby released by all Parties from any and all further liability, obligation or
responsibility under this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first above set forth.
XXXXXX VINEYARDS INC., A DELAWARE
CORPORATION
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
Address: 00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
/s/ Xxxxxx X. Xxxxxx
------------------------------------
XXXXXX X. XXXXXX, AS TRUSTEE
OF THE XXXXXX X. XXXXXX
REVOCABLE TRUST,
DATED OCTOBER 8, 1992
Address: 00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
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/s/ Xxxxx X. Xxxxxx
------------------------------------
XXXXX X. XXXXXX
Address: 00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
/s/ Xxxxx X. Xxxxxx
------------------------------------
XXXXX X. XXXXXX
Address: 00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
EMANTY LIMITED LIABILITY COMPANY,
A CALIFORNIA LIMITED LIABILITY COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
Address: 00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx
00000
/s/ Xxxx X. Xxxxxxxx
------------------------------------
XXXX X. XXXXXXXX
Address: 00 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxx X. Liberty
------------------------------------
XXXXX X. LIBERTY
Address: 0000 Xxx Xxxxxx, #000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
-------------------------------------
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/s/ Xxxxx X. Xxxxxx
------------------------------------
XXXXX X. XXXXXX
Address: 000 Xxxxxx, #0
Xxxxxx Xxx, Xxxxxxxxxx 00000
AGREED AND ACKNOWLEDGED:
/s/ Xxxxxxx Xxxxxxx Xxxxxx
------------------------------
XXXXXXX XXXXXXX XXXXXX,
AS TRUSTEE UNDER DECLARATION
OF TRUST, DATED MARCH 12, 1997
/s/ Xxxxx X. Xxxxxx
------------------------------
XXXXX X. XXXXXX
/s/ Xxxxxx X. Liberty
------------------------------
XXXXXX X. LIBERTY
/s/ Xxxxx X. Xxxxxxx
------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxx
------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
------------------------------
XXXXX X. XXXXXX, AS TRUSTEE
OF THE SIENA X. XXXXXXX
TRUST, DATED APRIL 4, 1993
/s/ Xxxxx X. Xxxxxx
------------------------------
XXXXX X. XXXXXX, AS TRUSTEE
OF THE SIENA X. XXXXXXX
TRUST, DATED APRIL 4, 1993
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/s/ Xxxxx X. Xxxxxx
------------------------------
XXXXX X. XXXXXX, AS TRUSTEE
OF THE XXXXXX X. XXXXXXX
TRUST, DATED MAY 16, 1995
/s/ Xxxxx X. Xxxxxx
------------------------------
XXXXX X. XXXXXX, AS TRUSTEE
OF THE XXXXXX X. XXXXXXX
TRUST, DATED MAY 16, 1995
/s/ Xxxxx Xxxxxxx
------------------------------
XXXXX XXXXXXX
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EXHIBIT A
ADDITIONAL STOCKHOLDERS
Xxxxxxx Xxxxxxx Xxxxxx, as Trustee under Declaration of Trust, dated March 12,
1997.
Xxxxx X. Xxxxxx
Xxxxxx X. Liberty
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, Trustees of the Siena X. Xxxxxxx Trust,
dated April 4, 1993.
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, Trustees of the Xxxxxx X. Xxxxxxx Trust,
dated May 16, 1995.
Xxxxx Xxxxxxx
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BUY-SELL AGREEMENT SPOUSAL CONSENT
I acknowledge that I have read and clearly understand the foregoing Amended
and Restated Buy-Sell Agreement (the "BUY-SELL AGREEMENT") by and among Xxxxxx
Vineyards Inc., a Delaware corporation ("SVI-Del"), Xxxxxx X. Xxxxxx, as Trustee
of the Xxxxxx X. Xxxxxx Revocable Trust, dated October 8, 1992, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Emanty Limited Liability Company, a California limited
liability company, Xxxx X. Xxxxxxxx, Xxxxx X. Liberty, Xxxxx X. Xxxxxx and the
Additional Stockholders named therein, pursuant to which Buy-Sell Agreement,
among other things, certain restrictions on the transferability of shares of
Class B Common Stock of SVI-Del owned or held beneficially or of record by my
spouse (the "SHARES").
I hereby consent to the restrictions on transferability contemplated by the
Buy-Sell Agreement, approve the provisions of the Buy-Sell Agreement and agree
that my community property interest, if any, in the Shares is subject to the
provisions of the Buy-Sell Agreement and that I shall take no action to hinder
operation of the Buy-Sell Agreement on my community property interest, if any,
in the Shares. I further acknowledge, understand and agree to comply fully with
the provisions of the Buy-Sell Agreement, and further direct the executors of my
will or the administrator of my estate or my other representatives to take all
actions necessary or appropriate to give effect to the provisions of the
Buy-Sell Agreement. I hereby consent and agree to execute and deliver such
instruments and documents and to do such other acts as may be necessary or
appropriate to carry out the provisions of this Consent and the Buy-Sell
Agreement.
I have been given full access and disclosure of all facts surrounding the
Buy-Sell Agreement and SVI-Del, have had full and ample opportunity to receive
independent advice with respect to my entering into this Consent, am freely and
voluntarily entering into this Consent, and acknowledge that to the extent
required I have received notice under California Family Code Section 1100.
SPOUSE:
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: XXXXXX X. XXXXXX
DATED: December 31, 1997
-14-
BUY-SELL AGREEMENT SPOUSAL CONSENT
I acknowledge that I have read and clearly understand the foregoing Amended
and Restated Buy-Sell Agreement (the "BUY-SELL AGREEMENT") by and among Xxxxxx
Vineyards Inc., a Delaware corporation ("SVI-Del"), Xxxxxx X. Xxxxxx, as Trustee
of the Xxxxxx X. Xxxxxx Revocable Trust, dated October 8, 1992, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Emanty Limited Liability Company, a California limited
liability company, Xxxx X. Xxxxxxxx, Xxxxx X. Liberty, Xxxxx X. Xxxxxx and the
Additional Stockholders named therein, pursuant to which Buy-Sell Agreement,
among other things, certain restrictions on the transferability of shares of
Class B Common Stock of SVI-Del owned or held beneficially or of record by my
spouse (the "SHARES").
I hereby consent to the restrictions on transferability contemplated by the
Buy-Sell Agreement, approve the provisions of the Buy-Sell Agreement and agree
that my community property interest, if any, in the Shares is subject to the
provisions of the Buy-Sell Agreement and that I shall take no action to hinder
operation of the Buy-Sell Agreement on my community property interest, if any,
in the Shares. I further acknowledge, understand and agree to comply fully with
the provisions of the Buy-Sell Agreement, and further direct the executors of my
will or the administrator of my estate or my other representatives to take all
actions necessary or appropriate to give effect to the provisions of the
Buy-Sell Agreement. I hereby consent and agree to execute and deliver such
instruments and documents and to do such other acts as may be necessary or
appropriate to carry out the provisions of this Consent and the Buy-Sell
Agreement.
I have been given full access and disclosure of all facts surrounding the
Buy-Sell Agreement and SVI-Del, have had full and ample opportunity to receive
independent advice with respect to my entering into this Consent, am freely and
voluntarily entering into this Consent, and acknowledge that to the extent
required I have received notice under California Family Code Section 1100.
SPOUSE:
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: XXXXX X. XXXXXX
DATED: December 31, 1997
-15-
BUY-SELL AGREEMENT SPOUSAL CONSENT
I acknowledge that I have read and clearly understand the foregoing Amended
and Restated Buy-Sell Agreement (the "BUY-SELL AGREEMENT") by and among Xxxxxx
Vineyards Inc., a Delaware corporation ("SVI-Del"), Xxxxxx X. Xxxxxx, as Trustee
of the Xxxxxx X. Xxxxxx Revocable Trust, dated October 8, 1992, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Emanty Limited Liability Company, a California limited
liability company, Xxxx X. Xxxxxxxx, Xxxxx X. Liberty, Xxxxx X. Xxxxxx and the
Additional Stockholders named therein, pursuant to which Buy-Sell Agreement,
among other things, certain restrictions on the transferability of shares of
Class B Common Stock of SVI-Del owned or held beneficially or of record by my
spouse (the "SHARES").
I hereby consent to the restrictions on transferability contemplated by the
Buy-Sell Agreement, approve the provisions of the Buy-Sell Agreement and agree
that my community property interest, if any, in the Shares is subject to the
provisions of the Buy-Sell Agreement and that I shall take no action to hinder
operation of the Buy-Sell Agreement on my community property interest, if any,
in the Shares. I further acknowledge, understand and agree to comply fully with
the provisions of the Buy-Sell Agreement, and further direct the executors of my
will or the administrator of my estate or my other representatives to take all
actions necessary or appropriate to give effect to the provisions of the
Buy-Sell Agreement. I hereby consent and agree to execute and deliver such
instruments and documents and to do such other acts as may be necessary or
appropriate to carry out the provisions of this Consent and the Buy-Sell
Agreement.
I have been given full access and disclosure of all facts surrounding the
Buy-Sell Agreement and SVI-Del, have had full and ample opportunity to receive
independent advice with respect to my entering into this Consent, am freely and
voluntarily entering into this Consent, and acknowledge that to the extent
required I have received notice under California Family Code Section 1100.
SPOUSE:
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: XXXXX X. XXXXXX
DATED: December 31, 1997
-16-
BUY-SELL AGREEMENT SPOUSAL CONSENT
I acknowledge that I have read and clearly understand the foregoing Amended
and Restated Buy-Sell Agreement (the "BUY-SELL AGREEMENT") by and among Xxxxxx
Vineyards Inc., a Delaware corporation ("SVI-Del"), Xxxxxx X. Xxxxxx, as Trustee
of the Xxxxxx X. Xxxxxx Revocable Trust, dated October 8, 1992, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Emanty Limited Liability Company, a California limited
liability company, Xxxx X. Xxxxxxxx, Xxxxx X. Liberty, Xxxxx X. Xxxxxx and the
Additional Stockholders named therein, pursuant to which Buy-Sell Agreement,
among other things, certain restrictions on the transferability of shares of
Class B Common Stock of SVI-Del owned or held beneficially or of record by my
spouse (the "SHARES").
I hereby consent to the restrictions on transferability contemplated by the
Buy-Sell Agreement, approve the provisions of the Buy-Sell Agreement and agree
that my community property interest, if any, in the Shares is subject to the
provisions of the Buy-Sell Agreement and that I shall take no action to hinder
operation of the Buy-Sell Agreement on my community property interest, if any,
in the Shares. I further acknowledge, understand and agree to comply fully with
the provisions of the Buy-Sell Agreement, and further direct the executors of my
will or the administrator of my estate or my other representatives to take all
actions necessary or appropriate to give effect to the provisions of the
Buy-Sell Agreement. I hereby consent and agree to execute and deliver such
instruments and documents and to do such other acts as may be necessary or
appropriate to carry out the provisions of this Consent and the Buy-Sell
Agreement.
I have been given full access and disclosure of all facts surrounding the
Buy-Sell Agreement and SVI-Del, have had full and ample opportunity to receive
independent advice with respect to my entering into this Consent, am freely and
voluntarily entering into this Consent, and acknowledge that to the extent
required I have received notice under California Family Code Section 1100.
SPOUSE:
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: XXXXX X. XXXXXX
DATED: December 31, 1997
-17-
BUY-SELL AGREEMENT SPOUSAL CONSENT
I acknowledge that I have read and clearly understand the foregoing Amended
and Restated Buy-Sell Agreement (the "BUY-SELL AGREEMENT") by and among Xxxxxx
Vineyards Inc., a Delaware corporation ("SVI-Del"), Xxxxxx X. Xxxxxx, as Trustee
of the Xxxxxx X. Xxxxxx Revocable Trust, dated October 8, 1992, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Emanty Limited Liability Company, a California limited
liability company, Xxxx X. Xxxxxxxx, Xxxxx X. Liberty, Xxxxx X. Xxxxxx and the
Additional Stockholders named therein, pursuant to which Buy-Sell Agreement,
among other things, certain restrictions on the transferability of shares of
Class B Common Stock of SVI-Del owned or held beneficially or of record by my
spouse (the "SHARES").
I hereby consent to the restrictions on transferability contemplated by the
Buy-Sell Agreement, approve the provisions of the Buy-Sell Agreement and agree
that my community property interest, if any, in the Shares is subject to the
provisions of the Buy-Sell Agreement and that I shall take no action to hinder
operation of the Buy-Sell Agreement on my community property interest, if any,
in the Shares. I further acknowledge, understand and agree to comply fully with
the provisions of the Buy-Sell Agreement, and further direct the executors of my
will or the administrator of my estate or my other representatives to take all
actions necessary or appropriate to give effect to the provisions of the
Buy-Sell Agreement. I hereby consent and agree to execute and deliver such
instruments and documents and to do such other acts as may be necessary or
appropriate to carry out the provisions of this Consent and the Buy-Sell
Agreement.
I have been given full access and disclosure of all facts surrounding the
Buy-Sell Agreement and SVI-Del, have had full and ample opportunity to receive
independent advice with respect to my entering into this Consent, am freely and
voluntarily entering into this Consent, and acknowledge that to the extent
required I have received notice under California Family Code Section 1100.
SPOUSE:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: XXXXX X. XXXXXXX
DATED: December 31, 1997
-18-
BUY-SELL AGREEMENT SPOUSAL CONSENT
I acknowledge that I have read and clearly understand the foregoing Amended
and Restated Buy-Sell Agreement (the "BUY-SELL AGREEMENT") by and among Xxxxxx
Vineyards Inc., a Delaware corporation ("SVI-Del"), Xxxxxx X. Xxxxxx, as Trustee
of the Xxxxxx X. Xxxxxx Revocable Trust, dated October 8, 1992, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Emanty Limited Liability Company, a California limited
liability company, Xxxx X. Xxxxxxxx, Xxxxx X. Liberty, Xxxxx X. Xxxxxx and the
Additional Stockholders named therein, pursuant to which Buy-Sell Agreement,
among other things, certain restrictions on the transferability of shares of
Class B Common Stock of SVI-Del owned or held beneficially or of record by my
spouse (the "SHARES").
I hereby consent to the restrictions on transferability contemplated by the
Buy-Sell Agreement, approve the provisions of the Buy-Sell Agreement and agree
that my community property interest, if any, in the Shares is subject to the
provisions of the Buy-Sell Agreement and that I shall take no action to hinder
operation of the Buy-Sell Agreement on my community property interest, if any,
in the Shares. I further acknowledge, understand and agree to comply fully with
the provisions of the Buy-Sell Agreement, and further direct the executors of my
will or the administrator of my estate or my other representatives to take all
actions necessary or appropriate to give effect to the provisions of the
Buy-Sell Agreement. I hereby consent and agree to execute and deliver such
instruments and documents and to do such other acts as may be necessary or
appropriate to carry out the provisions of this Consent and the Buy-Sell
Agreement.
I have been given full access and disclosure of all facts surrounding the
Buy-Sell Agreement and SVI-Del, have had full and ample opportunity to receive
independent advice with respect to my entering into this Consent, am freely and
voluntarily entering into this Consent, and acknowledge that to the extent
required I have received notice under California Family Code Section 1100.
SPOUSE:
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: XXXX X. XXXXXXXX
DATED: December 31, 1997
-19-
BUY-SELL AGREEMENT SPOUSAL CONSENT
I acknowledge that I have read and clearly understand the foregoing Amended
and Restated Buy-Sell Agreement (the "BUY-SELL AGREEMENT") by and among Xxxxxx
Vineyards Inc., a Delaware corporation ("SVI-Del"), Xxxxxx X. Xxxxxx, as Trustee
of the Xxxxxx X. Xxxxxx Revocable Trust, dated October 8, 1992, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Emanty Limited Liability Company, a California limited
liability company, Xxxx X. Xxxxxxxx, Xxxxx X. Liberty, Xxxxx X. Xxxxxx and the
Additional Stockholders named therein, pursuant to which Buy-Sell Agreement,
among other things, certain restrictions on the transferability of shares of
Class B Common Stock of SVI-Del owned or held beneficially or of record by my
spouse (the "SHARES").
I hereby consent to the restrictions on transferability contemplated by the
Buy-Sell Agreement, approve the provisions of the Buy-Sell Agreement and agree
that my community property interest, if any, in the Shares is subject to the
provisions of the Buy-Sell Agreement and that I shall take no action to hinder
operation of the Buy-Sell Agreement on my community property interest, if any,
in the Shares. I further acknowledge, understand and agree to comply fully with
the provisions of the Buy-Sell Agreement, and further direct the executors of my
will or the administrator of my estate or my other representatives to take all
actions necessary or appropriate to give effect to the provisions of the
Buy-Sell Agreement. I hereby consent and agree to execute and deliver such
instruments and documents and to do such other acts as may be necessary or
appropriate to carry out the provisions of this Consent and the Buy-Sell
Agreement.
I have been given full access and disclosure of all facts surrounding the
Buy-Sell Agreement and SVI-Del, have had full and ample opportunity to receive
independent advice with respect to my entering into this Consent, am freely and
voluntarily entering into this Consent, and acknowledge that to the extent
required I have received notice under California Family Code Section 1100.
SPOUSE:
/s/ Xxxxx Xxxxxxx
-----------------------------------
Name: XXXXX XXXXXXX
DATED: December 31, 1997
-20-
BUY-SELL AGREEMENT SPOUSAL CONSENT
I acknowledge that I have read and clearly understand the foregoing Amended
and Restated Buy-Sell Agreement (the "BUY-SELL AGREEMENT") by and among Xxxxxx
Vineyards Inc., a Delaware corporation ("SVI-Del"), Xxxxxx X. Xxxxxx, as Trustee
of the Xxxxxx X. Xxxxxx Revocable Trust, dated October 8, 1992, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Emanty Limited Liability Company, a California limited
liability company, Xxxx X. Xxxxxxxx, Xxxxx X. Liberty, Xxxxx X. Xxxxxx and the
Additional Stockholders named therein, pursuant to which Buy-Sell Agreement,
among other things, certain restrictions on the transferability of shares of
Class B Common Stock of SVI-Del owned or held beneficially or of record by my
spouse (the "SHARES").
I hereby consent to the restrictions on transferability contemplated by the
Buy-Sell Agreement, approve the provisions of the Buy-Sell Agreement and agree
that my community property interest, if any, in the Shares is subject to the
provisions of the Buy-Sell Agreement and that I shall take no action to hinder
operation of the Buy-Sell Agreement on my community property interest, if any,
in the Shares. I further acknowledge, understand and agree to comply fully with
the provisions of the Buy-Sell Agreement, and further direct the executors of my
will or the administrator of my estate or my other representatives to take all
actions necessary or appropriate to give effect to the provisions of the
Buy-Sell Agreement. I hereby consent and agree to execute and deliver such
instruments and documents and to do such other acts as may be necessary or
appropriate to carry out the provisions of this Consent and the Buy-Sell
Agreement.
I have been given full access and disclosure of all facts surrounding the
Buy-Sell Agreement and SVI-Del, have had full and ample opportunity to receive
independent advice with respect to my entering into this Consent, am freely and
voluntarily entering into this Consent, and acknowledge that to the extent
required I have received notice under California Family Code Section 1100.
SPOUSE:
/s/ Xxxxx X. Liberty
-----------------------------------
Name: XXXXX X. LIBERTY
DATED: December 31, 1997
-21-
BUY-SELL AGREEMENT SPOUSAL CONSENT
I acknowledge that I have read and clearly understand the foregoing Amended
and Restated Buy-Sell Agreement (the "BUY-SELL AGREEMENT") by and among Xxxxxx
Vineyards Inc., a Delaware corporation ("SVI-Del"), Xxxxxx X. Xxxxxx, as Trustee
of the Xxxxxx X. Xxxxxx Revocable Trust, dated October 8, 1992, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Emanty Limited Liability Company, a California limited
liability company, Xxxx X. Xxxxxxxx, Xxxxx X. Liberty, Xxxxx X. Xxxxxx and the
Additional Stockholders named therein, pursuant to which Buy-Sell Agreement,
among other things, certain restrictions on the transferability of shares of
Class B Common Stock of SVI-Del owned or held beneficially or of record by my
spouse (the "SHARES").
I hereby consent to the restrictions on transferability contemplated by the
Buy-Sell Agreement, approve the provisions of the Buy-Sell Agreement and agree
that my community property interest, if any, in the Shares is subject to the
provisions of the Buy-Sell Agreement and that I shall take no action to hinder
operation of the Buy-Sell Agreement on my community property interest, if any,
in the Shares. I further acknowledge, understand and agree to comply fully with
the provisions of the Buy-Sell Agreement, and further direct the executors of my
will or the administrator of my estate or my other representatives to take all
actions necessary or appropriate to give effect to the provisions of the
Buy-Sell Agreement. I hereby consent and agree to execute and deliver such
instruments and documents and to do such other acts as may be necessary or
appropriate to carry out the provisions of this Consent and the Buy-Sell
Agreement.
I have been given full access and disclosure of all facts surrounding the
Buy-Sell Agreement and SVI-Del, have had full and ample opportunity to receive
independent advice with respect to my entering into this Consent, am freely and
voluntarily entering into this Consent, and acknowledge that to the extent
required I have received notice under California Family Code Section 1100.
SPOUSE:
/s/ Xxxxxx X. Liberty
-----------------------------------
Name: XXXXXX X. LIBERTY
DATED: December 31, 1997
-22-
