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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
FORM
10-K/A
 
 
 
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended July 31, 2022
OR
 
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from
                
to
                
Commission file number
001-40240
 
 
The Duckhorn Portfolio, Inc.
(Exact name of registrant as specified in its charter)
 
 
 
Delaware
 
81-3866305
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)
1201 Dowdell Lane Saint Helena, CA 94574
(Address, including zip code, of Principal Executive Offices)
(707)
302-2658
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
 
Title of class
 
Trading
symbol
 
Name of exchange
on which registered
Common Stock, par value $0.01 per share   NAPA   New York Stock Exchange
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes  ☒    No  ☐
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes  ☐    No  ☒
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports); and (2) has been subject to such filing requirements for the past 90 days.    Yes  ☒    No  ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation
S-T
(§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes  ☒    No  ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule
12b-2
of the Exchange Act:
 
Large accelerated filer      Accelerated filer  
       
Non-accelerated filer      Smaller reporting company  
       
         Emerging growth company  
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.  ☒
Indicate by check mark whether the registrant is a shell company (as defined in Rule
12b-2
of the Act).    Yes  ☐    No  ☒
The aggregate market value of the voting and
non-voting
common stock held by
non-affiliates
of the registrant, based on the last sale price on New York Stock Exchange on January 31, 2022 (the last business day of the registrant’s most recently completed second fiscal quarter) was approximately $734,185,000.
The registrant had outstanding 115,184,161 shares of common stock, $0.01 par value per share, as of September 21, 2022.
 
 
 

DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Definitive Proxy Statement for the registrant’s Fiscal 2023 Annual Meeting of Stockholders to be held on January 20, 2023 are incorporated by reference into Part III, Items
10-14
of this Annual Report on Form
10-K.
Our independent registered public accounting firm is PricewaterhouseCoopers LLP, San Francisco, CA, Auditor ID: 238
EXPLANATORY NOTE
The Duckhorn Portfolio, Inc. (hereinafter referred to as “us,” “we,” or the “Company”) is filing this Amendment No. 1 on Form
10-K/A
(the “First Amendment”) to its Annual Report on Form
10-K
for the fiscal year ended July 31, 2022, which was filed with the Securities and Exchange Commission (“SEC”) on September 28, 2022 (the “Original Report”) solely to amend and restate the Exhibit Index included in Item 15 by adding Exhibits 10.28 and 10.29, which were omitted from the Original Report. Except as described above, no other information in the Original Report has been updated and this First Amendment continues to speak as of the date of the Original Report. Other events occurring after the filing of the Original Report or other disclosure necessary to reflect subsequent events will be addressed in other reports filed with or furnished to the SEC subsequent to the date of the filing of the Original Report.
Item 15. Exhibits and financial statement schedules
(a) The following documents are filed as part of this Annual Report on Form
10-K:
(1) Financial Statements
 
   
Report of Independent Registered Public Accounting Firm
 
   
Consolidated Statements of Financial Position as of July 31, 2022 and 2021
 
   
Consolidated Statements of Operations for the Years Ended July 31, 2022, 2021 and 2020
 
   
Consolidated Statements of Changes in Equity for the Years Ended July 31, 2022, 2021 and 2020
 
   
Consolidated Statements of Cash Flows for the Years Ended July 31, 2022, 2021 and 2020
 
   
Notes to Consolidated Financial Statements
(2) Financial Statements Schedules:
Separate financial schedules have been omitted because such information is inapplicable or is included in the financial statements or notes described above.
(b) Exhibit Listing
The following exhibits are filed as part of this report or filed previously and incorporated by reference to the filing indicated.
 
Exhibit
no.
  
Exhibit description
  
Incorporated by reference
 
         
Form
    
Date
  
Number
    
File no.
 
    3.1    Amended and Restated Certificate of Incorporation of The Duckhorn Portfolio, Inc.     
8-K
     March 2, 2021      3.1       
001-40240
 

    3.2    Amended and Restated Bylaws of the Duckhorn Portfolio, Inc.     
8-K
     March 2, 2021      3.2       
001-40240
 
    4.1    Form of Common Stock Certificate     
S-1/A
     March 2, 2021      4.1       
333-253412
 
    4.2    Description of Capital Stock     
10-K
     October 4, 2021      4.2       
001-40240
 
  10.1    Registration Rights Agreement, dated as of March 17, 2021, by and among the Company and each of the other persons from time to time party thereto.     
8-K
     March 2, 2021      10.1       
001-40240
 
  10.2    Stockholders Agreement, dated as of March 17, 2021, by and among the Company and each of the other persons from time to time party thereto.     
8-K
     March 2, 2021      10.2       
001-40240
 
  10.3    The Duckhorn Portfolio, Inc. 2021 Equity Incentive Plan.     
8-K
     March 2, 2021      10.3       
001-40240
 
  10.4    The Duckhorn Portfolio, Inc. 2021 Employee Stock Purchase Plan.     
8-K
     March 2, 2021      10.4       
001-40240
 
  10.5    Form of Director Indemnification Agreement     
S-1/A
     March 3, 2021      10.3       
333-253412
 
  10.6    Form of Non-Statutory Stock Option Agreement under the 2021 Equity Incentive Plan     
S-1/A
     March 10, 2021      10.5       
333-253412
 
  10.7    Form of Restricted Stock Unit Agreement under the 2021 Equity Incentive Plan     
S-1/A
     March 10, 2021      10.6       
333-253412
 
  10.8    First Lien Loan and Security Agreement, dated as of October 14, 2016, among Mallard Intermediate, Inc., Mallard Buyer Corp., Vineyard Acquisition Sub LLC, Heritage Wine, LLC, Bank of the West, ING Capital LLC, American AgCredit, PCA, AgStar Financial Services, PCA/FLCA, City Union National Bank, and MUFG Union Bank, N.A., and the lenders that are parties hereto     
S-1/A
     February 23,
2021
     10.7       
333-253412
 
  10.9    Amendment Number One to First Lien Loan and Security Agreement, dated July 28, 2017, entered into by and among Mallard Intermediate, Inc., Mallard Buyer Corp., each other Subsidiary of Mallard Intermediate, Inc., the financial institutions party to the Agreement from time to time as lenders and Bank of the West.     
S-1/A
     February 23,
2021
     10.8       
333-253412
 
  10.10    Amendment Number Two to First Lien Loan and Security Agreement, dated as of April 19, 2018, entered into by and among Mallard Intermediate, Inc., Mallard Buyer Corp., each other Subsidiary of Mallard Intermediate, Inc., the Lenders party hereto and Bank of the West     
S-1/A
     February 23,
2021
     10.9       
333-253412
 
  10.11    Amendment Number Three to First Lien Loan and Security Agreement, dated as of August 1, 2018, entered into by and among Mallard Intermediate, Inc., Mallard Buyer Corp., each other Subsidiary of Mallard Intermediate, Inc., the Lenders party hereto and Bank of the West     
S-1/A
     February 23,
2021
     10.10       
333-253412
 

  10.12    Amendment Number Four to First Lien Loan and Security Agreement, dated as of October 30, 2018, entered into by and among Mallard intermediate, Inc., Mallard Buyer Corp., each other Subsidiary of Mallard Intermediate, Inc., the Lenders party hereto and Bank of the West     
S-1/A
     February 23,
2021
     10.11       
333-253412
 
  10.13    Amendment Number Five to First Lien Loan and Security Agreement, dated as of June 7, 2019, entered into by and among Mallard Intermediate, Inc., Mallard Buyer Corp., each other Subsidiary of Mallard Intermediate, Inc., the Lenders party hereto and Bank of the West     
S-1/A
     February 23,
2021
     10.12       
333-253412
 
  10.14    Amendment Number Six to First Lien Loan and Security Agreement, dated as of August 17, 2020, entered into by and among Mallard Intermediate, Inc., Mallard Buyer Corp., each other Subsidiary of Mallard Intermediate, Inc. the Lenders party hereto and Bank of the West     
S-1/A
     February 23,
2021
     10.13       
333-253412
 
  10.15    Amendment Number Seven to First Lien Loan and Security Agreement, dated as of February 22, 2021, entered into by and among Mallard Intermediate, Inc., Selway Wine Company, Mallard Buyer Corp., each other Subsidiary of Mallard Intermediate, Inc. the Lenders party hereto and Bank of the West     
S-1/A
     February 23,
2021
     10.14       
333-253412
 
  10.16    Amended and Restated Employment Agreement between The Duckhorn Portfolio, Inc., Duckhorn Wine Company and Alex Ryan     
S-1/A
     March 10, 2021      10.15       
333-253412
 
  10.17    Amended and Restated Employment Agreement between The Duckhorn Portfolio, Inc., Duckhorn Wine Company and Lori Beaudoin     
S-1/A
     March 10, 2021      10.16       
333-253412
 
  10.18    Amended and Restated Employment Agreement between The Duckhorn Portfolio, Inc., Duckhorn Wine Company and Pete Przybylinski     
10-K
     October 4, 2021      10.18       
001-40240
 
  10.19    Amended and Restated Mallard Holdco, LLC 2016 Equity Incentive Plan     
S-1/A
     February 23,
2021
     10.18       
333-253412
 
  10.20    Form of Class M Common Unit Award Agreement under the Amended and Restated Mallard Holdco, LLC 2016 Equity Incentive Plan     
S-1/A
     February 23,
2021
     10.19       
333-253412
 
  10.21    The Duckhorn Portfolio, Inc. 2021 Cash Incentive Plan     
S-1/A
     February 23,
2021
     10.22       
333-253412
 
  10.22    Non-employee Director Letter Agreement, dated as of February 10, 2017, with Dan Duckhorn     
S-1/A
     February 23,
2021
     10.23       
333-253412
 
  10.23    Form of Deferred Compensation Plan     
S-1/A
     February 23,
2021
     10.24       
333-253412
 
  10.24    Grape Purchase Agreement, dated as of May 11, 2016, between Duckhorn Wine Company and Alex Ryan     
S-1/A
     February 23,
2021
     10.25       
333-253412
 

  10.25    Amendment to Grape Purchase Agreement, entered into as of August 7, 2017, between Duckhorn Wine Company and Alex Ryan     
S-1/A
      
February 23,
2021
 
 
     10.26       
333-253412
 
  10.26    Amended and Restated 2021 Employee Stock Purchase Plan     
10-Q
       June 2, 2022        10.1       
001-40240
 
  10.27    Amendment Number Eight to First Lien Loan and Security Agreement, dated as of February 22, 2021, entered into by and among Mallard Intermediate, Inc., Selway Wine Company, Mallard Buyer Corp., each other Subsidiary of Mallard Intermediate, Inc. the Lenders party hereto and Bank of the West     
10-K
      
September 28,
2022
 
 
     10.27       
001-40240
 
  10.28    Amended and Restated Employment Agreement between The Duckhorn Portfolio, Inc., Duckhorn Wine Company and Zach Rasmuson     
S-1/A
       March 10, 2021        10.17       
333-253412
 
  10.29*    Employment Agreement between The Duckhorn Portfolio, Inc., Duckhorn Wine Company and Gayle Bartscherer            
  21.1    Subsidiaries of Registrant     
10-K
      
September 28,
2022
 
 
     21.1       
001-40240
 
  23.1    Consent of Independent Registered Public Accounting Firm     
10-K
      
September 28,
2022
 
 
     23.1       
001-40240
 
  31.1*    Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.            
  31.2*    Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002            
  32.1*    Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes -Oxley Act of 2002.            
101.INS*    XBRL Instance Document—the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.            
101.SCH*    XBRL Taxonomy Extension Schema Document.            
101.CAL*    XBRL Taxonomy Extension Calculation Linkbase Document.            
101.DEF*    XBRL Taxonomy Extension Definition Linkbase Document.            
101.LAB*    XBRL Taxonomy Extension Label Linkbase Document.            
101.PRE*    XBRL Taxonomy Extension Presentation Linkbase Document.            
104*    Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)            
 
*
Filed herewith

SIGNATURES
Pursuant to the requirements of the Section 13 or 15(d) Securities Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Saint Helena, State of California, on December 30, 2022.
 
The Duckhorn Portfolio, Inc.
By:   /s/ Alex Ryan
  Alex Ryan
  President, Chief Executive Officer and Chairman

Exhibit 10.29

EXECUTION COPY

EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of March 8, 2022 by and among Duckhorn Wine Company (the “Company”), The Duckhorn Portfolio, Inc. (“Parent,” together with the Company, the “Companies”) and Gayle Bartscherer (the “Executive”), and is effective as of the day the Executive actually commences employment with the Companies (the “Effective Date”), which is expected to be on April 4, 2022.

1. Position and Duties.

(a) Effective as of the Effective Date, the Executive will be employed as Executive Vice President, Chief Marketing and DTC Officer of each of the Companies, on a full-time basis, reporting to the Chief Executive Officer of each of the Companies. In addition, the Executive may be asked from time to time to serve as a director or officer of one or more of Affiliates of the Companies, without further compensation.

(b) The Executive agrees to perform the duties of the Executive’s position and such other duties consistent with the Executive’s position as may reasonably be assigned to the Executive from time to time. The Executive also agrees that, while employed by the Companies, the Executive will devote the Executive’s full business time and the Executive’s best efforts, business judgment, skill and knowledge exclusively to the advancement of the business interests of the Companies and their Affiliates and to the discharge of the Executive’s duties and responsibilities for them.

(c) The Executive agrees that, while employed by the Companies, the Executive will comply with all of their policies, practices and procedures and all codes of ethics or business conduct applicable to the Executive’s position, as in effect from time to time, in each case that have been made available to the Executive or are otherwise known or reasonably should be known by the Executive.

2. Compensation and Benefits. During the Executive’s employment hereunder, as compensation for all services performed by the Executive for the Companies and their Affiliates, the Companies will provide the Executive the following compensation and benefits:

(a) Base Salary. The Companies will pay the Executive a base salary at the rate of $375,000 per year, beginning with the first payroll period following the Effective Date, payable in accordance with the regular payroll practices of the Companies and subject to increase from time to time by the Board of Directors of Parent (the “Board”) or the Compensation Committee of the Board (the “Compensation Committee”) in its respective discretion (as increased, from time to time, the “Base Salary”).

(b) Bonus Compensation. For each fiscal year completed during the Executive’s employment under this Agreement, the Executive will be eligible to earn an annual bonus (each, an “Annual Bonus”). The Executive’s target bonus will be 50% of the Base Salary (the “Target Bonus”), with the actual amount of any Annual Bonus to be determined by the Board or the Compensation Committee based on the achievement of performance goals


established by the Board or the Compensation Committee and pursuant to the terms and conditions of the bonus plan then in effect for senior employees of the Companies. For the fiscal year in which the Effective Date occurs, any Annual Bonus shall be calculated on a prorated basis, based on the number of days the Executive was employed during such fiscal year. Except as expressly provided in Section 5(b) of this Agreement, in order to receive any Annual Bonus hereunder, the Executive must be employed through the date that such Annual Bonus is paid.

(c) Participation in Employee Benefit Plans. The Executive will be entitled to participate in all employee benefit plans from time to time in effect for employees of the Companies generally, except to the extent such plans are duplicative of benefits otherwise provided to the Executive under this Agreement (e.g., a severance pay plan). The Executive’s participation will be subject to the terms of the applicable plan documents and generally applicable policies, as the same may be in effect from time to time, and any other restrictions or limitations imposed by law. Without limiting the generality of the foregoing, such benefits available to the Executive as of the Effective Date will be the same or substantially similar to those benefits available to the Executive immediately prior to the Effective Date.

(d) Vacations. The Executive will be entitled to earn thirty (30) days of vacation per year, in addition to holidays observed by the Companies. Vacation may be taken at such times and intervals as the Executive shall determine, subject to the business needs of the Companies. Vacation shall otherwise be subject to the policies of the Companies, as in effect from time to time.

(e) Business Expenses. The Companies will pay or reimburse the Executive for all reasonable business expenses incurred or paid by the Executive in the performance of the Executive’s duties and responsibilities for the Companies, subject to any maximum annual limit and other restrictions on such expenses set by the Companies and to such reasonable substantiation and documentation as may be specified by the Companies from time to time. The Executive’s right to any payment or reimbursement from the Companies shall be subject to the following additional rules: (i) the amount of expenses eligible for payment or reimbursement during any calendar year shall not affect the expenses eligible for payment or reimbursement in any other calendar year, (ii) payment or reimbursement shall be made not later than December 31 of the calendar year following the calendar year in which the expense or payment was incurred and (iii) the right to payment or reimbursement shall not be subject to liquidation or exchange for any other benefit.

(f) Equity Awards. Subject to approval by the Compensation Committee, as soon as reasonably practicable following the Effective Date, the Executive will be granted restricted stock units and an option to purchase shares of the Parent’s common stock, pursuant to the terms and conditions of the Parent’s 2021 Equity Incentive Plan (the “Plan”) and award agreements to be entered into between the Executive and the Parent thereunder. Subject to approval by the Compensation Committee, it is expected that (i) the number of restricted stock units to be granted to the Executive will be calculated by dividing $309,041 by the closing price of the Company’s common stock as listed on the New York Stock Exchange on the Effective Date and (ii) the number of shares of Parent’s common stock to be subject to the option granted to the Executive shall be equal to the product of three and the number of restricted stock units to

 

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be granted to the Executive pursuant to subclause (i). In the event of any conflict between the terms of this Agreement and the terms of the Plan or the applicable award agreement, the Plan or the award agreement, as applicable, shall control.

3. Confidential Information and Restricted Activities.

(a) Confidential Information. During the course of the Executive’s employment with the Companies, the Executive will learn of Confidential Information, and will develop Confidential Information on behalf of the Companies and their Affiliates. The Executive agrees that the Executive will not use or disclose to any Person (except as required by applicable law or for the proper performance of the Executive’s regular duties and responsibilities for the Companies) any Confidential Information obtained by the Executive incident to the Executive’s employment or any other association with the Companies or any of their Affiliates. The Executive agrees that this restriction will continue to apply after the Executive’s employment terminates, regardless of the reason for such termination. For the avoidance of doubt, (i) nothing contained in this Agreement limits, restricts or in any other way affects the Executive’s communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to such governmental agency or entity and (ii) the Executive will not be held criminally or civilly liable under any federal or state trade secret law for disclosing a trade secret (y) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or (z) in a complaint or other document filed under seal in a lawsuit or other proceeding; provided, however, that notwithstanding this immunity from liability, the Executive may be held liable if the Executive unlawfully accesses trade secrets by unauthorized means.

(b) Protection of Documents. All documents, records and files, in any media of whatever kind and description, relating to the business, present or otherwise, of the Company, Parent or any of their Affiliates, and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be the sole and exclusive property of the Companies. The Executive agrees to safeguard all Documents and to surrender to the Companies, at the time the Executive’s employment terminates or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive’s possession or control. The Executive also agrees to disclose to the Companies, at the time the Executive’s employment terminates or at such earlier time or times as the Board or its designee may specify, all passwords necessary or desirable to obtain access to, or that would assist in obtaining access to, any information which the Executive has password-protected on any computer equipment, network or system of the Company, Parent or any of their Affiliates.

(c) Assignment of Rights to Intellectual Property. The Executive shall promptly and fully disclose all Intellectual Property to the Companies. The Executive hereby assigns and agrees to assign to the Companies (or as otherwise directed by the Companies) the Executive’s full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or confirmation) requested by the Companies to

 

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assign the Intellectual Property to the Companies (or as otherwise directed by the Companies) and to permit the Companies to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive will not charge the Companies or any of their Affiliates for time spent in complying with these obligations. All copyrightable works that the Executive creates during the Executive’s employment shall be considered “work made for hire” and shall, upon creation, be owned exclusively by the Companies.

(d) Restricted Activities. The Executive agrees that the following restrictions on the Executive’s activities during and after the Executive’s employment are necessary to protect the goodwill, Confidential Information, trade secrets and other legitimate interests of the Company, Parent and their Affiliates:

(i) While the Executive is employed by the Companies, the Executive will not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, engage in or compete with, or undertake any planning to engage in or compete with, any business conducted or in active planning to be conducted by the Company, Parent or any of their Affiliates in any geographic area where the Company, Parent or any of their Affiliates conducts or is actively planning to conduct business.

(ii) While the Executive is employed by the Companies, the Executive will not, directly or indirectly, (a) solicit or encourage any customer, vendor, supplier or other business partner of the Company, Parent or any of their Affiliates to terminate or diminish his, her or its relationship with any of them or (b) seek to persuade any such customer, vendor, supplier or other business partner, or any prospective customer, vendor, supplier, or other business partner of the Company, Parent or any of their Affiliates, to conduct with anyone else any business or activity which such business partner or prospective business partner conducts or could conduct with the Company, Parent or any of their Affiliates; provided, however, that these restrictions shall apply only if the Executive has performed work for such Person during the Executive’s employment with the Company, Parent or any of their Affiliates or been introduced to, or otherwise had contact with, such Person as a result of the Executive’s employment or other associations with the Company, Parent or any of their Affiliates or has had access to Confidential Information which would assist in the Executive’s solicitation of such Person.

(iii) While the Executive is employed by the Companies, the Executive will not, directly or indirectly, hire or engage any employee of the Company, Parent or any of their Affiliates.

(iv) While the Executive is employed by the Companies and during the twelve (12)-month period immediately following termination of the Executive’s employment, regardless of the reason therefor (in the aggregate, the “Restricted Period”), the Executive will not, directly or indirectly, (a) solicit for hiring or engagement any employee of the Company, Parent or any of their Affiliates or seek to persuade any such employee to discontinue employment or (b) solicit or encourage any independent contractor providing services to the Company, Parent or any of their Affiliates to terminate or diminish his, her or its relationship with any of them. For the purposes of this Section 3(d)(iv), an “employee” or an “independent contractor” of the Company, Parent or any of their Affiliates is any Person who was such at any time during the six (6)-month period immediately preceding the activity restricted by this Section

 

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3(d)(iv). Notwithstanding the foregoing, a general solicitation on the part of the Executive by form letter, blanket mailing or published advertisement that is not directed at any of the Persons described in this Section 3(d)(iv) will not, solely by reason thereof, constitute a violation of this Section 3(d)(iv).

(e) In signing this Agreement, the Executive gives the Companies assurance that the Executive has carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed on the Executive under this Section 3. The Executive agrees without reservation that these restraints are necessary for the reasonable and proper protection of the Company, Parent and their Affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area. The Executive further agrees that, were the Executive to breach any of the covenants contained in this Section 3, the damage to the Company, Parent and their Affiliates would be irreparable. The Executive therefore agrees that the Companies, in addition and not in the alternative to any other remedies available to them, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by the Executive of any such covenants, without having to post bond, together with an award of its reasonable attorneys’ fees incurred in enforcing their rights hereunder. The Executive further agrees that the Restricted Period shall be tolled, and shall not run, during the period of any breach by the Executive of any of the covenants contained in Section 3(d)(iv) above. The Executive and the Companies further agree that, in the event that any provision of this Section 3 is determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, that provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law. It is also agreed that each of the Companies’ Affiliates shall have the right to enforce all of the Executive’s obligations to that Affiliate under this Agreement, including without limitation pursuant to this Section 3. No claimed breach of this Agreement or other violation of law attributed to the Company, Parent or any of their Affiliates, or change in the nature or scope of the Executive’s employment or other relationship with the Company, Parent or any of their Affiliates, shall operate to excuse the Executive from the performance of the Executive’s obligations under this Section 3.

4. Termination of Employment. The Executive’s employment under this Agreement shall continue until terminated pursuant to this Section 4.

(a) By the Companies For Cause. The Companies, or either of them, may terminate the Executive’s employment for Cause upon notice to the Executive setting forth in reasonable detail the nature of the Cause. For purposes of this Agreement, “Cause” shall mean the occurrence of any of the following, as determined by the Board in its reasonable judgment: (i) the Executive’s material failure to perform (other than by reason of disability), or substantial negligence in the performance of, the Executive’s duties and responsibilities to the Company, Parent or any of their Affiliates, which material failure or substantial negligence, if curable, is not cured by the Executive within twenty (20) days after the Board’s notice to the Executive of such breach; (ii) the Executive’s material breach of this Agreement or any other agreement between the Executive and the Company, Parent or any of their Affiliates, which material breach, if curable, is not cured by the Executive within twenty (20) days after the Board’s notice to the Executive of such breach; (iii) the Executive’s commission of, or plea of nolo contendere

 

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to, a felony or other crime involving moral turpitude; or (iv) the Executive’s fraud, theft, embezzlement or material dishonesty, in each case with respect to the Company, Parent or any of their Affiliates; provided, however, that the Board will not be required to provide more than one notice and opportunity to cure under subsection (i) or (ii) with respect to any repeated or substantially similar events or circumstances.

(b) By the Company Without Cause. The Companies, or either of them, may terminate the Executive’s employment at any time other than for Cause upon notice to the Executive.

(c) By the Executive for Good Reason. The Executive may terminate the Executive’s employment for Good Reason, provided that (i) the Executive provides written notice to the Companies, setting forth in reasonable detail the nature of the condition giving rise to Good Reason, within thirty (30) days of the initial existence of such condition, (ii) the condition remains uncured by the Company or Parent, as applicable, for a period of thirty (30) days following such notice and (iii) the Executive terminates the Executive’s employment, if at all, not later than thirty (30) days after the expiration of such cure period. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following without the Executive’s consent: (A) the Company’s or Parent’s relocation of the Executive’s primary place of work (disregarding any temporary remote work or work-from-home arrangements) by more than twenty-five (25) miles or (B) the Company’s or Parent’s material breach of this Agreement.

(d) By the Executive Without Good Reason. The Executive may terminate the Executive’s employment without Good Reason at any time upon thirty (30) days’ notice to the Companies. The Board may elect to waive such notice period or any portion thereof.

(e) Death and Disability. The Executive’s employment hereunder shall automatically terminate in the event of the Executive’s death during employment. The Companies, or either of them, may terminate the Executive’s employment, upon notice to the Executive, in the event that the Executive becomes disabled during the Executive’s employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to perform substantially all of the Executive’s duties and responsibilities hereunder (notwithstanding the provision of any reasonable accommodation) for a period of ninety (90) days during any period of three hundred sixty-five (365) consecutive days. If any question shall arise as to whether the Executive is disabled to the extent that the Executive is unable to perform substantially all of the Executive’s duties and responsibilities for the Company, Parent and their Affiliates, the Executive shall, at the Companies’ request, submit to a medical examination by a physician selected by the Companies to whom the Executive or the Executive’s guardian, if any, has no reasonable objection (provided that such physician must maintain a regular practice in Sonoma County or Napa County, California) to determine whether the Executive is so disabled, and such determination shall for purposes of this Agreement be conclusive of the issue. If such a question arises and the Executive fails to submit to the requested medical examination, the Companies’ good faith, reasonable determination of the issue shall be binding on the Executive.

 

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5. Other Matters Related to Termination.

(a) Final Compensation. In the event of termination of the Executive’s employment with the Companies, howsoever occurring, the Companies shall pay the Executive (i) the Base Salary for the final payroll period of the Executive’s employment, through the date the Executive’s employment terminates; (ii) compensation at the rate of the Base Salary for any vacation time earned but not used as of the date the Executive’s employment terminates; and (iii) reimbursement, in accordance with Section 2(e) hereof, for business expenses incurred by the Executive but not yet paid to the Executive as of the date the Executive’s employment terminates, provided that the Executive submits all expenses and supporting documentation required within sixty (60) days of the date the Executive’s employment terminates, and provided further that such expenses are reimbursable under policies of the Companies then in effect (all of the foregoing, “Final Compensation”). Except as otherwise provided in Section 5(a)(iii), Final Compensation will be paid to the Executive within the time period required by law.

(b) Severance Benefits. In the event of any termination of the Executive’s employment pursuant to Section 4(b) or Section 4(c) above, the Companies will pay the Executive, in addition to Final Compensation, (i) the Base Salary for a period of twelve (12) months following the date of termination (the “Severance Payments”), (ii) provided that the Executive timely elects to continue the Executive’s coverage and, if applicable, that of the Executive’s eligible dependents in the Companies’ group health plans under the federal law known as “COBRA” or similar state law, a monthly amount equal to the monthly health premiums for such coverage paid by the Companies on behalf of the Executive and the Executive’s eligible dependents, if any, based on the portion of such monthly health premiums paid by the Companies immediately prior to the date that the Executive’s employment terminates until the earlier of (y) the date that is twelve (12) months following the date that the Executive’s employment terminates and (z) the date that the Executive and the Executive’s eligible dependents cease to be eligible for such COBRA coverage under applicable law or plan terms (the “Health Continuation Benefits”) and (iii) any bonus determined by the Board or the Compensation Committee pursuant to Section 2(b) above for the fiscal year prior to the fiscal year in which the Executive’s employment terminates, to the extent such bonus has not yet been paid as of the date of such termination (the “Prior Year Bonus” and, together with the Severance Payments and the Health Continuation Benefits, the “Severance Benefits”).

(c) Conditions To And Timing Of Severance Benefits. Any obligation of the Companies to provide the Executive the Severance Benefits is conditioned on the Executive’s signing and returning, without revoking, to the Companies a timely and effective separation agreement containing a general release of claims and other customary terms in the form provided to the Executive by the Companies at the time that the Executive’s employment terminates (the “Separation Agreement”). The Separation Agreement must become effective, if at all, by the sixtieth (60th) calendar day following the date the Executive’s employment terminates. Any Severance Payments to which the Executive is entitled will be payable in the form of salary continuation in accordance with the normal payroll practices of the Companies. Any Health Continuation Benefits to which the Executive is entitled will be payable in substantially equal monthly installments. Any Prior Year Bonus to which the Executive is entitled will be payable at the time that annual bonuses for such year are paid to employees of the Companies generally (which in no event will be later than December 31 of the year following the fiscal year for which

 

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such Prior Year Bonus was earned). The first installments of the Severance Payments and the Health Continuation Benefits will be made on the Companies’ next regular payday following the expiration of sixty (60) calendar days from the date that the Executive’s employment terminates, but will be retroactive to the day following such date of termination. Notwithstanding the foregoing, in the event that the Companies’ payment of the Health Continuation Benefits would subject the Executive or the Companies to any tax or penalty under the Patient Protection and Affordable Care Act (as amended from time to time, the “ACA”) or Section 105(h) of the Internal Revenue Code of 1986, as amended (“Section 105(h)”), or applicable regulations or guidance issued under the ACA or Section 105(h), the Executive and the Companies agree to work together in good faith, consistent with the requirements for compliance with or exemption from Section 409A (as defined below), to restructure such benefit.

(d) Benefits Termination. Except for any right the Executive may have under COBRA or other applicable law to continue participation in the Companies’ group health and dental plans at the Executive’s cost, the Executive’s participation in all employee benefit plans shall terminate in accordance with the terms of the applicable benefit plans based on the date of termination of the Executive’s employment, without regard to any continuation of the Base Salary or other payment to the Executive following termination of the Executive’s employment, and the Executive shall not be eligible to earn vacation or other paid time off following the termination of the Executive’s employment.

(e) Survival. Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary or desirable to accomplish the purposes of other surviving provisions, including without limitation certain of the Executive’s obligations under Section 3 of this Agreement. The obligation of the Companies to make payments to the Executive under Section 5(b), and the Executive’s right to retain the same, are expressly conditioned upon the Executive’s continued full performance of the Executive’s obligations under Section 3 of this Agreement and of any obligations by the Executive under any other agreement with Parent or the Company that contains post-employment restrictive covenants. Upon termination by either the Executive or the Companies, all rights, duties and obligations of the Executive and the Companies to each other shall cease, except as otherwise expressly provided in this Agreement.

(f) Section 280G. If any payment or benefit that the Executive may receive following a change of control of either of the Companies or any of their Affiliates, the Executive’s termination of employment, or otherwise, whether or not payable or provided under this Agreement (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (A) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (B) the largest portion, up to and including the total amount, of the Payment, whichever of the amounts determined under (A) and (B), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or

 

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benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of outstanding equity awards; and reduction of employee benefits. In the event that acceleration of vesting of outstanding equity awards is to be reduced, such acceleration of vesting shall be undertaken in the reverse order of the date of grant of the Executive’s outstanding equity awards. All calculations and determinations made pursuant this Section 5(f) will be made by an independent accounting or consulting firm or independent tax counsel appointed by the Companies (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Companies and the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5(f), the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G of the Code and Section 4999 of the Code.

6. Timing of Payments and Section 409A.

(a) Notwithstanding anything to the contrary in this Agreement, if at the time the Executive’s employment terminates, the Executive is a “specified employee,” as defined below, any and all amounts payable under this Agreement on account of such separation from service that would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6)-month period or, if earlier, upon the Executive’s death; except (A) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Companies in their reasonable good faith discretion); (B) benefits which qualify as excepted welfare benefits pursuant to Treasury regulation Section 1.409A-1(a)(5); or (C) other amounts or benefits that are not subject to the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”).

(b) For purposes of this Agreement, all references to “termination of employment” and correlative phrases shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), and the term “specified employee” means an individual determined by the Companies to be a specified employee under Treasury regulation Section 1.409A-1(i).

(c) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.

(d) In no event shall the Company, Parent or any of their Affiliates have any liability relating to the failure or alleged failure of any payment or benefit under this Agreement to comply with, or be exempt from, the requirements of Section 409A.

 

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7. Definitions. For purposes of this Agreement, the following definitions apply:

Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company or Parent, as applicable, where control may be by management authority, equity interest or otherwise.

Confidential Information” means any and all information of the Company, Parent and their Affiliates that is not generally available to the public. Confidential Information also includes any information received by the Company, Parent or any of their Affiliates from any Person with any understanding, express or implied, that it will not be disclosed. Confidential Information does not include information that enters the public domain, other than through the Executive’s breach of the Executive’s obligations under this Agreement or any other agreement between the Executive and the Company, Parent or any of their Affiliates.

Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or on or off the premises of the Company, Parent or any of their Affiliates) during the Executive’s employment that relate either to the business of the Company, Parent or any of their Affiliates or to any prospective activity of the Company, Parent or any of their Affiliates or that result from any work performed by the Executive for the Company, Parent or any of their Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company, Parent or any of their Affiliates. Notwithstanding the foregoing, Intellectual Property does not include any invention that qualifies fully for exclusion under the provisions of California Labor Code Section 2870, the terms of which are set forth in Exhibit A to this Agreement.

Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust or any other entity or organization, other than the Company, Parent or any of their Affiliates.

8. Conflicting Agreements. The Executive hereby represents and warrants that the Executive’s signing of this Agreement and the performance of the Executive’s obligations under it will not breach or be in conflict with any other agreement to which the Executive is a party or is bound, and that the Executive is not now subject to any covenants against competition or similar covenants or any court order that could affect the performance of the Executive’s obligations under this Agreement. The Executive agrees that the Executive will not disclose to or use on behalf of the Companies any confidential or proprietary information of a third party without that party’s consent.

9. Withholding. All payments made by the Companies under this Agreement shall be reduced by any tax or other amounts required to be withheld by the Companies to the extent required by applicable law.

 

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10. Indemnification. The Executive will be eligible for indemnification in respect of the Executive’s position as an officer of the Companies to the maximum extent permitted by the by-laws and charter of the Company or Parent, as applicable, in each case, as in effect from time to time, and/or pursuant to any indemnification agreement between Executive and the Company or Parent. The Executive shall be entitled to coverage under the director’s and officer’s indemnification insurance policy maintained by the Company or Parent, as applicable, as in effect from time to time, in accordance with the terms of such insurance policy.

11. Assignment. Neither the Executive nor the Company nor Parent may make any assignment of this Agreement or any interest in it, by operation of law or otherwise, without the prior written consent of the other; provided, however, the Companies may assign their rights and obligations under this Agreement without the Executive’s consent to one of their Affiliates or to any Person with whom the Companies shall hereafter effect a reorganization, consolidate or merge, or to whom the Companies shall hereafter transfer all or substantially all of its properties or assets. This Agreement shall inure to the benefit of and be binding upon the Executive, the Company and Parent, and each of their respective successors, executors, administrators, heirs and permitted assigns.

12. Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

Miscellaneous. This Agreement sets forth the entire agreement between the Executive and the Companies, and replaces all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to the terms and conditions of the Executive’s employment. This Agreement may not be modified or amended, and no breach shall be deemed to be waived, unless agreed to in writing by the Executive and an expressly authorized representative of the Board. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement. Any obligation of the Companies to make a payment or provide a benefit under Section 2 or 5 of this Agreement may be satisfied by either Parent or the Company. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. This is a California contract and shall be governed and construed in accordance with the laws of the State of California, without regard to any conflict of laws principles that would result in the application of the laws of any other jurisdiction.

13. Notices. Any notices provided for in this Agreement shall be in writing and shall be effective when delivered in person or deposited in the United States mail, postage prepaid, and addressed to the Executive at the Executive’s last known address on the books of the Companies or, in the case of the Company or Parent, to it at its principal place of business, attention of the Chair of the Board, or to such other address as either party may specify by notice to the other actually received.

 

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[Signature page immediately follows.]

 

- 12 -


IN WITNESS WHEREOF, this Agreement has been executed by the Company, by its duly authorized representative, by Parent, by its duly authorized representative, and by the Executive, as of the date first above written.

 

THE COMPANY:
By:  

/s/ Alex Ryan

  Name: Alex Ryan
  Title: President, Chief Executive Officer and Chairman
PARENT:
By:  

/s/ Sean Sullivan

  Name: Sean Sullivan
  Title: Executive Vice President, Chief Administrative Officer and General Counsel
THE EXECUTIVE:

/s/ Gayle Bartscherer

Gayle Bartscherer

 

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Exhibit A

Invention Assignment Notice

You are hereby notified that the Employment Agreement by and among you, Duckhorn Wine Company and The Duckhorn Portfolio, Inc., dated as of March 8, 2022, does not apply to any invention which qualifies fully for exclusion under the provisions of Section 2870 of the California Labor Code. The following is the text of California Labor Code § 2870:

CALIFORNIA LABOR CODE SECTION 2870

(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:

(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or

(2) Result from any work performed by the employee for the employer.

(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.

 

DUCKHORN WINE COMPANY
By:  

/s/ Alex Ryan

  Name: Alex Ryan
  Title: President, Chief Executive Officer and Chairman
THE DUCKHORN PORTFOLIO, INC.
By:  

/s/ Sean Sullivan

  Name: Sean Sullivan
  Title: Executive Vice President, Chief Administrative Officer and General Counsel

I acknowledge receiving a copy of this Invention Assignment Notice:

 

/s/ Gayle Bartscherer

   

Date: March 8, 2022

Gayle Bartscherer

   

 

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Exhibit 31.1

CERTIFICATION PURSUANT TO

RULE 13a-14(a) OR 15d-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934,

AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Alex Ryan, certify that:

 

  1.

I have reviewed this Annual Report on Form 10-K/A of The Duckhorn Portfolio, Inc.; and

 

  2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.

 

Date: December 30, 2022     By:   /s/ Alex Ryan
      Alex Ryan
      President, Chief Executive Officer and Chairman
      (Principal Executive Officer)

Exhibit 31.2

CERTIFICATION PURSUANT TO

RULE 13a-14(a) OR 15d-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934,

AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Lori Beaudoin, certify that:

 

  1.

I have reviewed this Annual Report on Form 10-K/A of The Duckhorn Portfolio, Inc.; and

 

  2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.

 

Date: December 30, 2022     By:   /s/ Lori Beaudoin
      Lori Beaudoin
      Executive Vice President, Chief Financial Officer
      (Principal Financial Officer and Principal Accounting Officer)

Exhibit 32.1

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, Alex Ryan, Chief Executive Officer of The Duckhorn Portfolio, Inc. (the “Company”), do hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

  1.

the Annual Report on Form 10-K/A of the Company for the fiscal year ended July 31, 2022 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  2.

the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date: December 30, 2022     By:   /s/ Alex Ryan
      Alex Ryan
      President, Chief Executive Officer and Chairman
      (Principal Executive Officer)

I, Lori Beaudoin, Chief Financial Officer of The Duckhorn Portfolio, Inc. (the “Company”), do hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

  1.

the Annual Report on Form 10-K/A of the Company for the fiscal year ended July 31, 2022 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  2.

the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date: December 30, 2022     By:   /s/ Lori Beaudoin
      Lori Beaudoin
      Executive Vice President, Chief Financial Officer
      (Principal Financial Officer and Principal Accounting Officer)