Exhibit
10.31


 


TODHUNTER
INTERNATIONAL, INC.


222 Lakeview
Avenue, Suite 1500


West Palm
Beach, FL 33401


 


SALARY
CONTINUATION PLAN AGREEMENT


 


THIS SALARY
CONTINUATION PLAN AGREEMENT (this “Agreement” or the “Plan”) is entered into this 20th
day of February 2004, between Todhunter International,
Inc., a Delaware corporation (hereinafter referred to as the “Corporation”),
and Jay
S. Maltby (the “Executive”).


 


WITNESSETH:


 


WHEREAS, the Executive is employed by the
Corporation; and


 


WHEREAS, the Corporation recognizes the valuable
services performed by the Executive and wishes to encourage his continued
employment; and


 


WHEREAS, the Executive wishes to be assured that
(i) he will be entitled to a certain amount of additional compensation for some
definite period of time from and after his retirement from active service with
the Corporation or other termination of his employment; (ii) he will be
entitled to a disability benefit in the event of his disability; and (iii) his
estate will be entitled to a death benefit after the Executive’s death if such
death occurs during the Executive’s employment with the Corporation; and


 


WHEREAS, the parties hereto wish to provide the
terms and conditions upon which the Corporation shall pay such retirement
benefit, disability benefit or death benefit; and


 


WHEREAS, the parties hereto intend that this
Agreement be considered an un-funded arrangement, maintained primarily to
provide deferred compensation benefits for the Executive, a member of a select
group of management or highly compensated Executives of the Corporation, for
purposes of the Employee Retirement Security Act of 1974, as amended (“ERISA”);


 


NOW THEREFORE, in consideration of the premises and of
the mutual promises herein contained, the parties hereto agree as follows:


 


1.                                      Retirement Benefit.


 


A.                                   From and after termination of the
Executive’s employment, after the attainment of age 65, other than by reason of
his death, the Corporation shall thereafter pay the Executive the sum of $195,000.00
per annum for a period of fifteen (15) years, payable in equal monthly
installments, commencing with the first day of the month following such
termination. Retirement prior to age 65 with the consent of the Corporation
shall result in a retirement benefit based on a fraction, the denominator of
which is anticipated years of service to age 65 from June 9, 1998 and
the numerator of which is actual years of service from such date.  The fraction so derived shall be applied to
the above stated retirement benefit resulting in the reduced early retirement
benefit.


 

















 


B.                                     In the event of the Executive’s death after
termination of his employment, but prior to the expiration of said fifteen (15)
year period, the Corporation shall continue to make said payments during the
remainder of said fifteen (15) year period to the Executive’s estate.


 


2.                                      Death Benefit. 
The Executive and the Corporation have entered into an Endorsement
Split-Dollar Agreement dated February 20, 2004 that provides
for the payment of certain death benefits to the Executive’s estate if the
Executive dies while such Endorsement Split-Dollar Agreement is in force.  It is the intent of the Corporation and the
Executive that: (A) in all events the Endorsement Split-Dollar Agreement will
be cancelled and no death benefit will be paid to the Executive’s estate once
the executive becomes entitled to receive the retirement benefit payments set
forth in Paragraph 1.A; and (B) the Executive will be entitled to receive the
death benefits set forth in Endorsement Split-Dollar Agreement only if he dies
while such agreement is in force, that is during the Executive’s employment
with the Corporation or after a Change in Control provided the Executive has
not become entitled to receive the retirement benefit payments set forth in
Paragraph 1.A.


 


3.                                      Disability Benefit.  In
the event that the Executive becomes “permanently and totally disabled,” within
the meaning of § 22 (e)(3) of the Internal Revenue Code of 1986, as
amended (the “Code”), as determined by the Corporation, while in the employ of
the Corporation, the Corporation shall pay the Executive a disability benefit
in substantially equal installments over a period of sixty (60) months. The
amount of such monthly disability benefit shall be equal to 1/60 of the annual
retirement benefit which would be payable to the Executive under Paragraph 1 of
this Agreement, multiplied by the number of complete consecutive twelve month
periods beginning on June 9, 1998, provided however
that such disability income benefit is not to exceed 100% of the retirement
benefit stated in Paragraph 1 above. Such monthly payments shall commence
within thirty (30) days following the Corporation’s determination of
disability. In the event of the death of the Executive after monthly payments
under this paragraph have commenced, but before expiration of the sixty (60)
month period, the unpaid balance of payments shall continue to be paid by the
Corporation to the Executive’s estate.


 


4.                                      Acceleration of Benefit
Payments.  Notwithstanding the provisions set forth in
Paragraphs 1 or 3 of this Agreement, the Corporation may elect to accelerate
the payment of any amounts listed in such Paragraphs and make payment in a lump
sum equal to the net present value of such payments discounted at an interest
rate equal to the thirty (30) year U.S. Treasury Bill rate at the time of such
proposed payment, without the consent of the Executive or the Executive’s
estate, in full satisfaction of the Corporation’s obligations under Paragraph 1
or 3 of this Agreement, as the case may be.


 


5.                                      Forfeiture of Rights and Benefits.  All rights and benefits under this Agreement
shall be forfeited if the Executive violates the prohibitions set forth in the
employment agreement between the Executive and the Corporation in effect as of
the date of this Agreement relating to the disclosure of confidential
information or the restriction of competition with the Corporation.  In the event there is no employment
agreement between the Executive and the Corporation on the date of this
Agreement, all rights and benefits under this Agreement shall be forfeited if
the Executive engages in any of the following proscribed activities during the
two (2) year period beginning upon the occurrence of any event described in
Paragraph 1 or 3 (the “Date of Termination”). 
Executive will not, directly or indirectly: (i) engage in any trade or
business in the liquor


 


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industry, relating to the manufacturing or national marketing of any
brand of distilled spirits, anywhere in the United States or such other country
or countries in which the Corporation or any of its Subsidiaries (as defined
below) actively engages in its trade or business as of the Date of Termination
(“Territory”);  (ii) become associated as a manager, supervisor,
employee, consultant, advisor, control shareholder (either individually or as
part of an affiliated group), or otherwise of any person, corporation or entity
engaging in any capacity in such segment of the liquor industry anywhere in the
Territory;  (iii) call upon any client
or clients of the Corporation or any of its Subsidiaries for the purpose of
selling or soliciting for any person, corporation or entity, other than any of
the Corporation or its Subsidiaries, sales of any products, processes, or services
in any capacity in such segment of the liquor industry within the
Territory;  (iv) divert, solicit or take
away any such client or clients of the Corporation or any of its Subsidiaries
for the purpose of selling any products or services in any capacity in such
segment of the liquor industry; and service any contracts or accounts relating
to any products or services in any capacity in such segment of the liquor
industry for any person, corporation or entity other than the Corporation or
any of its Subsidiaries; or  (v) induce,
influence, combine or conspire with, or attempt to induce, influence, combine
or conspire with, any of the officers or employees of the Corporation or any of
its Subsidiaries to terminate his or her employment with or to compete against
the Corporation or any of its Subsidiaries in any capacity in such segment of
the liquor industry.  The Executive
shall not at any time disclose any confidential or trade secret of the
Corporation or any of its Subsidiaries or any client of the Corporation or any
of its Subsidiaries, or utilize such confidential information or trade secret
for the Executive’s own benefit, or for the benefit of third parties.  The term “confidential information or trade
secret of the Corporation or any client of the Corporation” does not include
any information which becomes generally available to the public other than by
breach of this provision.  The Executive
may disclose confidential information where such disclosure is required by
applicable law or court process (but only after giving the Corporation written
notice so that the Corporation may attempt to obtain a protective order).  For purposes of this paragraph, the term
“Subsidiaries” shall mean and include any entities in which the Corporation
owns, directly or indirectly, ten percent (10%) or more of the outstanding
equity interests as of the Date of Termination.


 


6.                                      No Trust Created. 
Nothing contained in this Agreement, and no action taken pursuant to its
provisions by either party hereto, shall create, nor be construed to create, a
trust of any kind or a fiduciary relationship between the Corporation and the
Executive or any other person.


 


7.                                      Unsecured General Creditor
Status of the Executive.


 


A.                                   The payments to the Executive or his estate
shall be made from assets which shall continue, for all purposes, to be a part
of the general, unrestricted assets of the Corporation.  No person shall have nor acquire any
interest in any such assets by virtue of the provisions of this Agreement.  The Corporation’s obligation hereunder shall
be an unfunded and unsecured promise to pay money in the future.  To the extent that the Executive or any
person acquires a right to receive payments from the Corporation under the
provisions hereof, such right shall be no greater than the right of any
unsecured general creditor of the Corporation. 
No such person shall have nor require any legal or equitable right,
interest or claim in or to any property or assets of the Corporation.


 


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B.                                     In the event that, in its discretion, the
Corporation purchases an insurance policy or policies insuring the life of the
Executive (or any other property) to allow the Corporation to recover the cost
of providing the benefits, in whole or in part, hereunder, neither the
Executive, his personal representative, legal representative, successors and
permitted assigns, nor any other person have nor acquire any rights whatsoever
therein or in the proceeds therefrom, except as set forth in the Endorsement
Split-Dollar Agreement between the Corporation and the Executive dated February 20,
2004.  The Corporation
shall be the sole owner and beneficiary of any such policy or policies and, as
such, shall possess and, may exercise all incidents of ownership therein.  No such policy, policies, or other property
shall be held in trust either for the Executive or any other person or as
collateral security for any obligation of the Corporation hereunder.


 


8.                                      No Contract of Employment. 
Nothing contained herein shall be construed to be a contract of
employment for any term of years, nor as conferring upon the Executive the
right to continue to be employed by the Corporation, in any capacity.


 


9.                                      Termination of Agreement. 
This Agreement shall be cancelled and shall terminate upon the
termination of the Executive’s employment with the Corporation for any reason
other than the reasons described in paragraphs 1, 2, or 3 of this Agreement.


 


10.                               Termination of Agreement in
Connection with a Change in Control.


 


A.                                   Notwithstanding anything in this Agreement
to the contrary, unless the Executive is terminated “for cause,” as defined in
Paragraph 10.C. of this Agreement, the Corporation may not terminate this
Agreement without the consent of the Executive during the period beginning nine
(9) months before a Change in Control (as defined below).


 


B.                                     For the purpose of this Agreement, a “Change
of Control” shall mean any of the following events:


 


(i)                                     The acquisition by
any person, entity or “group” required to file a Schedule 13D or Schedule 14D-1
promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (excluding, for this purpose, any of the following that
acquires beneficial ownership of voting securities of the Corporation,
including shares acquired pursuant to the exercise of options or warrants, or
conversion of preferred stock outstanding as of the date hereof: (a) CL
Financial, Ltd., Angostura Ltd., or any of their affiliates; (b) the
Corporation, its affiliates or subsidiaries; (d) V&S Vin & Spirit AB, its
affiliates or subsidiaries, solely in connection with a transaction with the
Corporation, its affiliates or subsidiaries approved by the Board of Directors;
or (d) any employee benefit plan of the Corporation, or its affiliates or
subsidiaries), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of over 40% (in one or more transactions,
in the aggregate) of either the then outstanding shares of common stock or the
combined voting power of the Corporation’s then outstanding voting securities
entitled to vote generally in the election of directors; or


 


(ii)                                  An election or
appointment to the Board of Directors by virtue of which the individuals who
immediately prior thereto constituted the Board of Directors (the “Incumbent
Board”) no longer constitute at least a majority of the Board of Directors
(other than an election or appointment of a director or directors precipitated
by CL Financial, Ltd., Angostura Ltd., V&S Vin & Spirit AB, or any of
their affiliates, or by the


 


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Board of Directors if at that time at least a
majority are individuals who are directors on the date hereof), provided that
any person who becomes a director subsequent to the date hereof whose election,
or nomination for election by the Corporation’s stockholders, was approved by a
vote of at least a majority of the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
Directors of Employer, as such terms are used in Rule 14a-1 promulgated under
the Exchange Act) shall be, for purposes of this Agreement, considered as
though such person were a member of the Incumbent Board; or


 


(iii)                               Approval by the
stockholders of the Corporation of: (a) a reorganization, merger or
consolidation by reason of which persons who were the stockholders of the
Corporation immediately prior to such reorganization, merger or consolidation
do not, immediately thereafter, own more than fifty percent (50%) of the
combined voting power entitled to vote generally in the election of directors
of the reorganized, merged or consolidated company’s then outstanding voting
securities; or (b) a liquidation or dissolution of the Corporation or the sale
of all or substantially all of the assets of the Corporation, whether such
assets are held directly or indirectly (excluding the currently proposed joint
ventures with affiliates of CL Financial, Ltd. and/or V&S Vin & Spirit
AB, if such transactions constitute a sale of substantially all of the assets
of Employer).


 


C.                                     The definition of “for cause” termination
shall be the same as set forth in the employment agreement between the
Executive and the Corporation in effect as of the date of this Agreement.  In the event there is no employment
agreement between the Executive and the Corporation on the date of this
Agreement, “cause” for termination shall mean that (a) the Executive is convicted of a
felony which, in the sole determination of the Board of Directors, would have a
material adverse effect on Executive’s ability to perform his duties hereunder
or on the business or reputation of the Corporation; (b) the Executive has
exhibited gross misconduct resulting in material harm to the Corporation, its
business or reputation; (c) the Executive has willfully misappropriated the
Corporation’s assets or has otherwise willfully defrauded the Corporation,
including without limitation by fraud, theft, embezzlement, or breach of a
fiduciary duty involving personal profit.  For purposes of this paragraph, no act or failure to act on the
Executive’s part shall be considered “willful” unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Corporation.


 


11.                               Named Fiduciary. 
The Corporation is hereby designated the “Named Fiduciary” as such term
is defined in ERISA.  As Named
Fiduciary, the Corporation shall be responsible for the management and
administration of the terms of this Agreement. The Corporation’s Board of
Directors may delegate to others the management and operating responsibilities
of the plan including the employment of advisors and may exercise any other powers
necessary for the discharge of its duties to the extent not in conflict with
the provisions of ERISA.


 


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12.                               Claims Procedure.


 


A.                                   If the Executive or his beneficiary believes
that he is being denied a benefit to which he is entitled under this Agreement
(hereinafter referred to as a “Claimant”), such Claimant may file a written
request for such benefit with the Corporation setting forth his claim.  The request must be addressed to the
President of the Corporation at its then principal place of business.


 


B.                                     The Corporation shall reply to the
Claimant’s claim within ninety (90) days of receiving the claim.  If the claim is denied in whole or in part,
the Corporation shall adopt a written opinion, using language calculated to be
understood by the Claimant, setting forth:


 


(i)                                     The specific reason or reasons for such
denial;


 


(ii)                                  The specific reference to pertinent
provisions of this Agreement on which such denial is based;


 


(iii)                               A description of any additional material or
information necessary for the Claimant to perfect his claim and an explanation
why such material or such information is necessary;


 


(iv)                              Appropriate information as to the steps to
be taken if the Claimant wishes to submit the claim for review; and


 


(v)                                 The time limits for requesting a review
under subparagraph C. and for review under subparagraph D. hereof.


 


C.                                     Within sixty (60) days after the receipt by
the Claimant of the written opinion described above, the Claimant may request
in writing that the Secretary of the Corporation review the determination of
the Corporation. Such request must be addressed to the Secretary of the
Corporation, at the Corporation’s then principal place of business. The
Claimant or his duly authorized representative may, but need not, review the
pertinent documents and submit issues and comments in writing for consideration
by the Corporation. If the Claimant does not request a review of the
Corporation’s determination by the Secretary of the Corporation within such
sixty (60) day period, he shall be barred and estopped from challenging the
Corporation’s determination.


 


D.                                    Within sixty (60) days after the Secretary’s
receipt of a request for review, he will review the Corporation’s
determination. After considering all materials presented by the Claimant, the
Secretary will render a written opinion, written in a manner calculated to be
understood by the Claimant, setting forth the specific reasons for the decision
and containing specific references to the pertinent provisions of this
Agreement on which the decision is based. If special circumstances require that
the sixty (60) day time period be extended, the Secretary will so notify the
Claimant and will render the decision as soon as possible, but no later than one
hundred twenty (120) days after receipt of the request for review.


 


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13.                               Non-Assignability of
Benefits.  The Executive may not transfer, assign,
anticipate, hypothecate or otherwise encumber any part or all of the amounts
payable hereunder, which are expressly declared to be unassignable and
non-transferable. Any such attempted assignment or transfer shall be void and
shall terminate this Agreement; the Corporation shall thereupon have no further
liability hereunder. No amount payable hereunder shall, prior to actual payment
thereof, be subject to seizure by any creditor of the Executive for the payment
of any debt, judgment or other obligation, by a proceeding at law or in equity.


 


14.                               Amendment. 
This Agreement may be amended at any time and from time to time, by a
written instrument signed by the Corporation and the Executive.


 


15.                               Binding Effect. 
All of the terms and provisions of this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the parties and their respective
administrators, personal representatives, legal representatives, heirs,
successors and permitted assigns, whether so expressed or not.


 


16.                               Notices. 
Any notice, consent or demand required or permitted to be given under
the provisions of this Agreement shall be in writing, and shall be signed by
the party giving or making the same.  If
such notice, consent or demand is mailed to a party hereto, it shall be sent by
United States certified mail, postage prepaid, addressed to such party’s last
known address as shown on the records of the Corporation. The date of such
mailing shall be deemed the date of notice, consent or demand.


 


17.                               Governing Law. 
This Agreement and all transactions contemplated by this Agreement shall
be governed by, and construed and enforced in accordance with, the internal
laws of the State of Florida without regard to principles of conflicts of laws.


 


18.                               Jurisdiction and Venue. 
The parties acknowledge that a substantial portion of the negotiations,
anticipated performance and execution of this Agreement occurred or shall occur
in Palm Beach County, Florida.  Any
civil action or legal proceeding arising out of or relating to this Agreement
shall be brought in the courts of record of the State of Florida in Palm Beach
County or the United States District Court, Southern District of Florida.  Each party consents to the jurisdiction of
such Florida court in any such civil action or legal proceeding and waives any
objection to the laying of venue of any such civil action or legal proceeding
in such Florida court.  Service of any
court paper may be effected on such party by mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws,
rules of procedure or local rules.


 


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N WITNESS WHEREOF, the parties hereto have set their hands on
the day and year first hereinabove written.


 


	
  TODHUNTER INTERNATIONAL, INC.

  
	
   

  
	
  By:

  	
  /s/
  Ezra Shashoua

  	
  ,
  Executive Vice President & CFO

  
	
   

  
	
  EXECUTIVE:

  
	
   

  
	
  By:

  	
  /s/
  Jay S. Maltby

  	
  ,
  Chairman, CEO and President

  
				



 


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