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EXHIBIT 99.(d)(2)
TENDER, VOTING AND OPTION AGREEMENT
TENDER, VOTING AND OPTION AGREEMENT, dated as of August 28, 2000 (this
"AGREEMENT"), among Foster's Brewing Group Limited, a corporation organized
under the laws of the State of South Australia, Commonwealth of Australia (ABN:
49 007 620 886) ("PARENT"), Bordeaux Acquisition Corp., a Delaware corporation
and wholly owned subsidiary of Parent ("PURCHASER") and each of the stockholders
of the Company set forth on Schedule A hereto (each, a "STOCKHOLDER" and,
collectively, the "STOCKHOLDERS").
RECITALS:
A. Parent, Purchaser and Beringer Wine Estates Holdings, Inc., a
Delaware corporation (the "COMPANY"), propose to enter into an Agreement and
Plan of Merger, dated as of the date hereof (the "MERGER AGREEMENT"), pursuant
to which Purchaser will acquire the Company in a tender offer followed by a
merger on the terms and subject to the conditions set forth in the Merger
Agreement. Except as otherwise defined herein, terms used herein with initial
capital letters have the respective meanings ascribed thereto in the Merger
Agreement.
B. As of the date hereof, each Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of Class A Common Shares and/or Class B Common
Shares of the Company set forth opposite such Stockholder's name on Schedule A
hereto (such Shares, together with any other Shares the beneficial ownership of
which is acquired by such Stockholder during the period from and including the
date hereof through and including the date on which this Agreement is terminated
pursuant to Section 6.2 hereof, are collectively referred to herein as such
Stockholder's "SUBJECT SHARES").
C. As a condition and inducement to their willingness to enter into
the Merger Agreement, Parent and Purchaser have requested that each Stockholder
agree, and each Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
I. TENDER OF SUBJECT SHARES
1.1 AGREEMENT TO TENDER SHARES. Each Stockholder will tender or cause
to be validly tendered (and not withdrawn) pursuant to and in accordance with
the terms of the Offer and Section 14d-2 under the Securities Exchange Act of
1934, not later than the tenth business day after commencement of the Offer and
will cause to remain validly tendered and not withdrawn until termination of
this Agreement, all of such Stockholder's Subject Shares (other than Shares for
which unexercised options are exercisable unless such options have been
exercised). Each Stockholder hereby acknowledges that Purchaser's obligation to
accept for payment and pay for Shares (including
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such Stockholder's Subject Shares) pursuant to the Offer is subject to the
terms and conditions of the Offer set forth in the Merger Agreement.
Notwithstanding the provisions of the first sentence of this Section 1.1, in the
event that any Subject Shares are for any reason withdrawn from the Offer or are
not purchased pursuant to the Offer, such Subject Shares will remain subject to
the terms of this Agreement. Nothing in this Agreement shall obligate any
Stockholder to exercise any option to purchase Shares.
II. VOTING OF SUBJECT SHARES
2.1 AGREEMENT TO VOTE SUBJECT SHARES. From the date hereof until this
Agreement is terminated pursuant to Section 6.2, at any meeting of the
stockholders of the Company called to consider and vote upon the adoption of the
Merger Agreement (and at any and all postponements and adjournments thereof),
and in connection with any action to be taken in respect of the adoption of the
Merger Agreement by written consent of stockholders of the Company, each
Stockholder will vote or cause to be voted (including by written consent, if
applicable) all of such Stockholder's Subject Shares which it has the right to
vote in favor of the adoption of the Merger Agreement and in favor of any other
matter necessary or appropriate for the consummation of the transactions
contemplated by the Merger Agreement that is considered and voted upon at any
such meeting or made the subject of any such written consent, as applicable. At
any meeting of the stockholders of the Company called to consider and vote upon
any Adverse Proposal (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of any
Adverse Proposal by written consent of stockholders of the Company, each
Stockholder will vote or cause to be voted (including by written consent, if
applicable) all of such Stockholder's Subject Shares which it has the right to
vote against the adoption of such Adverse Proposal. For purposes of this
Agreement, the term "ADVERSE PROPOSAL" means any (a) Acquisition Transaction,
(b) proposal or action that would reasonably be expected to result in a breach
of any covenant, agreement, representation or warranty of the Company set forth
in the Merger Agreement, or (c) the following actions (other than the Offer, the
Merger and the other transactions contemplated by the Merger Agreement): (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or its Subsidiaries; (ii) a sale,
lease or transfer of a material amount of assets of the Company or one of its
Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its Subsidiaries; (iii) (1) any change in a majority of
the persons who constitute the board of directors of the Company as of the date
hereof; (2) any change in the present capitalization of the Company or any
amendment of the Company's certificate of incorporation or bylaws, as amended to
date; (3) any other material change in the Company's corporate structure or
business; or (4) any other action that, in the case of each of the matters
referred to in clauses (iii)(1), (2) and (3) is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Offer or the Merger and the other transactions contemplated by this Agreement
and the Merger Agreement or increase the likelihood that such transactions will
not be consummated.
2.2 IRREVOCABLE PROXY. (a) GRANT OF PROXY. Each Stockholder hereby
appoints Parent and any designee of Parent, each of them individually, such
Stockholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent with respect to all of such
Stockholder's Subject Shares which it has the right to vote (i) in accordance
with Section 2.1 hereof
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and (ii) to sign its name (as a stockholder) to any consent, certificate or
other document relating to the Company that the law of the State of Delaware may
permit or require in connection with any matter referred to in Section 2.1. This
proxy is given to secure the performance of the duties of such Stockholder under
this Agreement and its existence will not be deemed to relieve the Stockholders
of their obligations under Section 2.1. Each Stockholder affirms that this proxy
is coupled with an interest and is irrevocable until termination of this
Agreement pursuant to Section 6.2, whereupon such proxy and power of attorney
shall automatically terminate. Each Stockholder will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy. For Subject Shares as to which the Stockholder is the beneficial but
not the record owner, the Stockholder will cause any record owner of such
Subject Shares to grant to Parent a proxy to the same effect as that contained
herein.
(b) OTHER PROXIES REVOKED. Each Stockholder represents that
any proxy heretofore given in respect of such Stockholder's Subject Shares is
not irrevocable, and hereby revokes any and all such proxies.
III. PURCHASE OPTION
3.1 GRANT OF OPTION. Each Stockholder hereby grants to each of Parent
and Purchaser an irrevocable option to purchase such Stockholder's Subject
Shares not purchased in the Offer (each, an "OPTION" and, collectively, the
"OPTIONS") on the terms and subject to the conditions set forth in this Article
III at a purchase price per share equal to the Per Share Amount (the "PURCHASE
PRICE").
3.2 EXERCISE OF OPTION. (a) If the Offer is consummated but (whether
due to improper tender or withdrawal of tender or breach of Section 1.1)
Purchaser has not accepted for payment and paid for all of the Subject Shares,
the Options will become exercisable (in whole but not in part) and remain
exercisable (in whole but not in part) thereafter until termination of this
Agreement pursuant to Section 6.2 (the applicable period of exercisability being
the "OPTION PERIOD"). Parent may exercise all of the Options of all of the
Stockholders, in whole but not in part, at any time during the Option Period.
Notwithstanding anything in this Agreement to the contrary, Parent will be
entitled to purchase all Subject Shares in respect of which it shall have
exercised an Option in accordance with the terms hereof prior to the expiration
of the Option Period, and the expiration of the Option Period will not affect
any rights hereunder which by their terms do not terminate or expire prior to or
as of such expiration.
(b) If Parent wishes to exercise an Option, it will deliver to
the applicable Stockholder (each a "SELLING STOCKHOLDER") a written notice (an
"EXERCISE NOTICE") to that effect which specifies (a) that it has irrevocably
exercised its right to purchase all the Subject Shares (other than those
purchased in the Offer) and (b) a date (an "OPTION CLOSING DATE"), not earlier
than two nor later than five business days after the date such Exercise Notice
is delivered, for the consummation of the purchase and sale of such Subject
Shares (an "OPTION CLOSING"); PROVIDED, HOWEVER, that Parent will exercise the
Option in accordance with the federal securities laws. If the Option Closing
cannot be effected on the Option Closing Date specified in the Exercise Notice
by reason of any applicable judgment, decree, order, law or regulation, or
because any applicable waiting period under the HSR Act shall not have expired
or
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been terminated, (i) the Stockholders will promptly take all such actions as
may be requested by Parent, and will otherwise fully cooperate with Parent, to
cause the elimination of all such impediments to the Option Closing and (ii) the
Option Closing Date specified in the Exercise Notice will be extended to the
second business day following the elimination of all such impediments. The place
of the Option Closing will be at the offices of Jones, Day, Reavis & Pogue, 599
Lexington Avenue, 32nd Floor, New York, New York 10022, and the time of the
Option Closing will be 10:00 a.m. (Eastern Time) on the Option Closing Date.
Upon the giving by Parent to the Selling Stockholder of the Exercise Notice and
the tender of the aggregate Purchase Price, Parent will be deemed to be the
holder of record of the Subject Shares transferrable upon such exercise,
notwithstanding that the stock transfer books of the Company are then closed or
that certificates representing such Subject Shares have not been actually
delivered to Parent.
3.3 PAYMENT AND DELIVERY OF CERTIFICATES. At any Option Closing, Parent
will deliver to each Selling Stockholder, by wire transfer of immediately
available funds to the account designated by such Selling Stockholder to Parent
prior to the Option Closing, the Purchase Price payable in respect of the
Subject Shares to be purchased from such Selling Stockholder at the Option
Closing, and each Selling Stockholder will deliver to Parent such Subject
Shares, free and clear of all Liens, with the certificate or certificates
evidencing such Subject Shares being duly endorsed for transfer by such Selling
Stockholder and accompanied by all powers of attorney and/or other instruments
necessary to convey valid and unencumbered title thereto to Parent. The Selling
Stockholder will pay all expenses, and any and all United States federal, state
and local taxes and other charges that may be payable in connection with the
preparation, issue and delivery of stock certificates under this Section 3.3 in
the name of Parent or its designee.
3.4 ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. In the event of any
change in the capital stock of the Company by reason of a stock dividend,
subdivision, reclassification, recapitalization, split, combination, exchange of
shares, extraordinary distribution or similar transaction, the type and number
or amount of shares, securities or other property subject to each of the
Options, and the Purchase Price payable therefor, will be adjusted
appropriately, and proper provision will be made in the agreements governing
such transaction, so that (a) Parent will receive upon exercise of any Option
the type and number or amount of shares, securities or property that Parent
would have retained and/or been entitled to receive in respect of the applicable
Selling Stockholder's Subject Shares if the Option had been exercised
immediately prior to such event or the record date therefor, as applicable, and
(b) the applicable Selling Stockholder will receive upon exercise of any Option
granted by such Selling Stockholder the amount of cash that such Selling
Stockholder would have received as a result of the exercise of the Option if the
Option had been exercised immediately prior to such event or the record date
therefor, as applicable. The provisions of this Section 3.4 will apply in a like
manner to successive stock dividends, subdivisions, reclassifications,
recapitalizations, splits, combinations, exchanges of shares, extraordinary
distributions or similar transactions.
3.5 SHARING OF PROFITS. (a) For the purposes of this Section 3.5 only,
the term "Stockholders" refers solely to Wine Partners, L.P., TPG Partners, L.P.
TPG Parallel I, L.P. and TPG GenPar, L.P. (the "TPG Stockholders"). If (i) the
Merger Agreement is terminated in circumstances in which Parent is entitled to a
fee pursuant to Section 8.2(b) (ii) thereof and (ii) not later than one year
from the date of
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termination of the Merger Agreement, (1) the Company consummates a merger,
acquisition, consolidation, recapitalization, liquidation, dissolution or
similar transaction involving, or any sale of all or substantially all of the
assets or equity securities of, the Company and its Subsidiaries (a "BUSINESS
COMBINATION"), (2) the Company enters into an Acquisition Agreement providing
for a Business Combination, which Business Combination is ultimately
consummated, irrespective of when such consummation occurs, (3) a TPG
Stockholder disposes of any or all of its Subject Shares to any person not an
affiliate or an associate of Parent or Purchaser or to the Company or any
affiliate thereof in connection with a Business Combination, or (4) a TPG
Stockholder realizes proceeds in respect of its Subject Shares as a result of a
distribution to such TPG Stockholder by the Company following the sale of
substantially all of the Company's assets in connection with a Business
Combination (each, a "SUBSEQUENT TRANSACTION"), in each case at a per share
price or with equivalent per share proceeds (including, in the case of clause
(4), the market value of the Shares after giving effect to such transactions),
as the case may be (the "SUBSEQUENT PRICE"), having a value in excess of the Per
Share Amount, then the TPG Stockholder will promptly pay to Parent an amount
equal to one-half of the product of (x) the excess of the Subsequent Price over
the Per Share Amount multiplied by (y) the number of Subject Shares beneficially
owned (other than beneficially owned solely by reason of having a right to vote)
by such TPG Stockholder at the time a Business Combination is consummated (in
the case of clauses (1), (2) and (3)) or disposal by such TPG Stockholder (in
the case of clause (4)). Any non-cash consideration received by the TPG
Stockholder in a Subsequent Transaction will be valued at fair market value at
the time of receipt thereof by the TPG Stockholder. In the event of any stock
dividends, stock splits, recapitalizations, combinations, exchanges of shares or
the like or any other action that would have the effect of changing the TPG
Stockholder's ownership of the Company's capital stock or other securities, the
Per Share Amount will be appropriately adjusted for the purpose of this Section
3.5(a).
(b) INDEMNIFICATION (i) If Shares are purchased in the Offer pursuant
to the terms of the Merger Agreement, Parent and Purchaser hereby jointly and
severally agree to indemnify fully, hold harmless and defend the TPG
Stockholders and their respective successors and assigns solely in such party's
capacity as a stockholder of the Company (collectively, the "Indemnitees") from
and against any and all costs and expenses (including, but not limited to,
reasonable attorneys' fees and the costs and expenses of investigating,
defending and litigating any claims), judgments, fines, losses, claims, damages
and liabilities to the extent sustained or incurred by any Indemnitee in
connection with any action, suit or proceeding by or on behalf of any
stockholder of the Company, other than any Indemnitee (a "Claim") arising out
of, relating to or based upon this Agreement or the Merger Agreement or the
transactions contemplated hereby or thereby; provided that the Indemnitee acted
in good faith in connection with the matters that are the subject of such Claim.
Notwithstanding anything contained in this Section 3.5(b), no claim for
indemnity under this Section 3.5(b) may be asserted by any Indemnitee arising or
resulting from (1) any breach by the Company of any representation, warranty or
covenant of the Company in the Merger Agreement or (2) any breach by any party
to this Agreement (other than by Parent or Purchaser) of any representation,
warranty or covenant in this Agreement.
(ii) Each Indemnitee shall give Parent notice in writing as soon as
practicable after Indemnitee receives notice of a Claim made against Indemnitee
for which indemnification will or could be sought under this Section 3.5(b).
Written notice to Parent shall be given in accordance with Section 6.6. The
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failure to notify Parent as required pursuant to this paragraph (ii) will not
relieve Parent or Purchaser from any liability hereunder unless and to the
extent Parent or Purchaser did not otherwise learn of such action and such
failure results in the forfeiture by Parent or Purchaser of any significant
right or defense. In addition, Indemnitee shall give Parent such information and
cooperation as Parent may reasonably request in connection with the defense of
any Claim for which indemnification is sought under this Section 3.5(b).
(iii) Parent and Purchaser will be entitled to participate in the
defense of any Claim for which indemnification will or could be sought under
this Section 3.5(b) or to assume the defense thereof, with counsel reasonably
satisfactory to the Indemnitee, provided that in the event that (1) the use of
counsel chosen by Parent and Purchaser to represent Indemnitee would present
such counsel with an actual or potential conflict, (2) the named parties in any
such Claim (including any impleaded parties) include or is reasonably likely to
include both Parent or Purchaser and Indemnitee and Indemnitee shall conclude
that there may be one or more legal defenses available to it that are different
from or in addition to those available to Parent or Purchaser, or (3) any such
representation by Parent or Purchaser would be precluded under the applicable
standards of professional conduct then prevailing, then Indemnitee will be
entitled to retain separate counsel (but not more than one law firm for all
Indemnitees plus, if applicable, local counsel in respect of any particular
Claim) at Parent's expense. Parent and Purchaser will not, without the prior
written consent of the Indemnitee, effect any settlement of any threatened or
pending Claim which the Indemnitee is or could have been a party unless such
settlement solely involves the payment of money and includes an unconditional
release of the Indemnitee from all liability on any claims that are the subject
matter of or are related to such Claim.
(iv) Purchaser and Parent will not be liable under this Section 3.5(b)
to make any payment to an Indemnitee to the extent Indemnitee has otherwise
actually received payment (net of expenses incurred in connection therewith)
under any insurance policy, the certificate of incorporation or bylaws of the
Company or otherwise of the amounts otherwise indemnifiable hereunder.
IV. REPRESENTATIONS AND WARRANTIES
4.1 CERTAIN REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder, severally and not jointly, represents and warrants to Parent and
Purchaser, as of the date hereof , as of the Option Closing Date and as of the
Closing Date, as follows:
(a) OWNERSHIP. Such Stockholder is the sole record and
beneficial owner of the options to acquire Shares described on Schedule B hereto
(the "EXISTING OPTIONS") and will, upon exercise, have full and unrestricted
power to dispose of and to vote any Shares for which the Existing Options are
exercisable ("OPTION SHARES"). Such Stockholder is the sole record and
beneficial owner of the number of Shares set forth opposite such Stockholder's
name on Schedule A hereto, has full and unrestricted power to dispose of and to
vote such Shares. Such Shares are now, and at all times during the term hereof
will be, and such Option Shares will upon exercise and at all times thereafter
during the term hereof be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all Liens and
proxies, except for any Liens or proxies arising hereunder. The transfer by such
Stockholder of its Subject Shares to Purchaser or Parent pursuant to the Offer
or
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the applicable Option, respectively, will pass to and unconditionally vest in
Purchaser or Parent good and valid title to those Subject Shares, free and clear
of all Liens other than restrictions set forth under applicable securities laws.
Except as set forth opposite the Stockholder's name on Schedule A or Schedule B
hereto, such Stockholder (i) does not beneficially own any securities of the
Company on the date hereof; (ii) does not, directly or indirectly, beneficially
own or have any option, warrant or other right to acquire any securities of the
Company that are or may by their terms become entitled to vote or any securities
that are convertible or exchangeable into or exercisable for any securities of
the Company that are or may by their terms become entitled to vote, nor is the
Stockholder subject to any contract, commitment, arrangement, understanding or
relationship (whether or not legally enforceable), other than this Agreement,
that allows or obligates him to vote, dispose of or acquire any securities of
the Company; and (iii) holds exclusive power to vote the Subject Shares and has
not granted a proxy to any other Person to vote the Subject Shares, subject to
the limitations set forth in this Agreement.
(b) POWER AND AUTHORITY; EXECUTION AND DELIVERY. Each
Stockholder that is not a natural person is a limited partnership or corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Stockholder has all requisite partnership, corporate or
individual, as applicable, power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement. This Agreement has been duly executed and delivered by the
Stockholder and constitutes a valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms.
(c) NO CONFLICTS. The execution and delivery of this Agreement
do not, and, subject to compliance with the HSR Act and appropriate filings
under securities laws (which each Stockholder agrees to make promptly), to the
extent applicable, the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, conflict with, result in a
violation or breach of, or constitute a default (or an event that, with notice
or lapse of time or both, would result in a default) or give rise to any right
of termination, amendment, cancellation, notice or acceleration under, (i) the
Stockholder's articles of organization, partnership agreement or similar
constituent documents, (ii) any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which the Stockholder is a party or by
which the Stockholder is bound, (iii) any injunction judgment, writ, decree,
order or ruling applicable to the Stockholder or (iv) any law, statute, rule or
regulation applicable to the Stockholder; except in the case of clauses (ii) and
(iii) for conflicts, violations, breaches or defaults that would not (1) impair
the ability of the Stockholder to perform its obligations under this Agreement
or (2) prevent or delay the consummation of any of the transactions contemplated
hereby.
(d) BROKERS. Except as set forth in Section 4.10 of the Merger
Agreement, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement or the Merger Agreement based upon arrangements
made by or on behalf of the Stockholder that is or will be payable by the
Company or any of its Subsidiaries.
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4.2 REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER. Each of
Parent and Purchaser hereby represents and warrants, jointly and severally, to
each Stockholder, as of the date hereof and as of the Closing Date, that:
(a) ORGANIZATION; AUTHORITY. Parent is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation. Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation. Each
of Parent and Purchaser has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement.
(b) EXECUTION AND DELIVERY. This Agreement has been duly
executed and delivered by Parent and Purchaser and, assuming that this Agreement
constitutes a valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of Parent and Purchaser, enforceable
against Parent and Purchaser in accordance with its terms.
(c) NO CONFLICTS. Neither the execution and delivery of this
Agreement nor the performance by Parent or Purchaser of its respective
obligations hereunder will conflict with, result in a violation or breach of, or
constitute a default (or an event that, with notice or lapse of time or both,
would result in a default) or give rise to any right of termination, amendment,
cancellation, or acceleration under, (i) Parent's or Purchaser's certificate of
incorporation, bylaws or similar constituent documents, (ii) any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which Parent or Purchaser is a party or by which Parent or Purchaser is bound,
(iii) any judgment, writ, decree, order or ruling applicable to Parent or
Purchaser, or (iv) any law, statute, rule or regulation applicable to Parent or
Purchaser; except in the case of clauses (ii) and (iii) for conflicts,
violations, breaches or defaults that would not (1) impair the ability of Parent
or Purchaser to perform its obligations under this Agreement or (2) prevent or
delay the consummation of any of the transactions contemplated hereby.
(d) SECURITIES LAW COMPLIANCE. The Options and the Subject
Shares to be acquired upon exercise of the Options are being and will be
acquired by Parent without a view to public distribution thereof otherwise than
in compliance with the Securities Act and applicable state securities laws and
will not be transferred or otherwise disposed of except in a transaction
registered or exempt from registration under the Securities Act and in
compliance with applicable state securities laws. Neither Parent nor Purchaser
will effect any offer or sale of Subject Shares which would cause any
Stockholder to violate the registration requirements of the Securities Act or
the registration or qualification requirements of the securities laws of any
jurisdiction.
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V. CERTAIN COVENANTS OF STOCKHOLDERS
5.1 RESTRICTION ON TRANSFER OF SUBJECT SHARES, PROXIES AND
NONINTERFERENCE. No Stockholder will, directly or indirectly: (a) except
pursuant to the terms of this Agreement and for the conversion of Subject Shares
at the Effective Time pursuant to the terms of the Merger Agreement, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Stockholder's Subject Shares other than any sale, transfer or assignment to
members of such Stockholder's family, a family trust of such Stockholder or a
charitable institution if the transferee of such Subject Shares agrees in
writing to be bound by the terms hereof and notice of such sale, transfer or
assignment, including the name and address of the purchaser, transferree or
assignee, is delivered to Parent pursuant to Section 6.6. hereof; (b) acquire
any Shares or other securities of the Company (other than in connection with a
transaction of the type described in Section 5.2 or the grant of Shares to
Directors as Director compensation in accordance with past practice) or enter
into any contract, option, arrangement or other undertaking with respect to the
direct or indirect acquisition of any interest in or the voting of any Subject
Shares or any other securities of the Company; (c) except pursuant to the terms
of this Agreement, grant any proxies or powers of attorney, deposit any Subject
Shares into a voting trust or enter into a voting agreement with respect to any
Subject Shares; or (d) take any action that would reasonably be expected to make
any of its representations or warranties contained herein untrue or incorrect or
have the effect of impairing the ability of such Stockholder to perform such
Stockholder's obligations under this Agreement or preventing or delaying the
consummation of any of the transactions contemplated hereby.
5.2 ADJUSTMENTS. (a) In the event (i) of any stock dividend, stock
split, recapitalization, reclassification, combination or exchange of shares of
capital stock or other securities of the Company on, of or affecting the Shares
or the like or any other action that would have the effect of changing a
Stockholder's ownership of the Company's capital stock or other securities or
(ii) a Stockholder becomes the beneficial owner of any additional Shares or
other securities of the Company, then the terms of this Agreement will apply to
the shares of capital stock held by the Stockholder immediately following the
effectiveness of the events described in clause (i) or the Stockholder becoming
the beneficial owner thereof, as described in clause (ii), as though they were
Shares hereunder.
(b) Each Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of any new Shares acquired by
the Stockholder, if any, after the date hereof.
5.3 NO SOLICITATION. No Stockholder will take, authorize or permit any
of its officers, directors, employees, agents or representatives (including any
investment banker, financial advisor, attorney or accountant for such
Stockholder) ("Representatives") to take, any action that the Company would be
prohibited from taking under the first sentence of Section 5.2(a) of the Merger
Agreement (disregarding for purposes of this Section 5.3 the proviso to such
sentence). Each Stockholder will, and will cause its Representatives to,
immediately cease all existing discussions or negotiations with respect to any
of the foregoing and promptly (and in any event within one business day) advise
Parent in writing of the
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receipt by such Stockholder of a request for information or any inquiries or
proposals relating to an Acquisition Transaction. Notwithstanding any provision
of this Section 5.3 or 5.6 to the contrary, (a) if any Stockholder is a member
of the Board of Directors of the Company, such member of the Board of Directors
of the Company may take actions in such capacity to the extent permitted by
Section 5.2 of the Merger Agreement, and (b) if any Stockholder is an officer of
the Company, such officer may take actions in such capacity to the extent
directed to do so by the Board of Directors in compliance with Section 5.2 of
the Merger Agreement.
5.4 WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that such Stockholder
may have.
5.5 NONEXERCISE OF RIGHTS OF FIRST REFUSAL. No Stockholder will
exercise any purchase right or right of first refusal that it may have with
respect to any Shares of any other Person in connection with any tender by such
other Person of such Shares pursuant to the Offer.
5.6 COOPERATION. Each Stockholder will cooperate fully with Parent,
Purchaser and the Company in connection with their respective reasonable best
efforts to fulfill the conditions to (a) the Offer set forth in Annex I to the
Merger Agreement and (b) the Merger set forth in Article VI of the Merger
Agreement.
5.7 DISCLOSURE. Each Stockholder hereby authorizes Parent and Purchaser
to publish and disclose in the Offer Documents, any announcement or disclosure
required by the Australian Stock Exchange Listing Rules and, if approval of the
Company's stockholders is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the SEC in connection with
either of the foregoing), its identity and ownership of the Shares and the
nature of its commitments, arrangements and understandings under this Agreement.
VI. MISCELLANEOUS
6.1 FEES AND EXPENSES. Each party hereto will pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
6.2 AMENDMENT; TERMINATION. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto. This
Agreement will terminate on the earliest to occur of (a) the consummation of the
purchase of all the Subject Shares pursuant to the Offer, (b) the Effective Time
or (c) the date the Merger Agreement is terminated in accordance with its terms.
This Agreement may be earlier terminated by the mutual consent of the Board of
Directors of Parent and the Stockholders representing a majority of the Subject
Shares subject to this Agreement. Except as set forth below, in the event of
termination of this Agreement pursuant to this Section 6.2, this Agreement will
become null and void and of no effect with no liability on the part of any party
hereto and all proxies granted hereby will be automatically revoked; provided,
however, that no such termination will relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such termination.
10
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Notwithstanding anything to the contrary contained in this Agreement,
(a) if this Agreement is terminated for any reason, Sections 3.5(a), 6.1, 6.5,
6.15 and 6.16 and this Section 6.2 will survive any termination of this
Agreement indefinitely and (b) if this Agreement is terminated pursuant to
clause (a) or (b) in the preceding paragraph, Section 3.5(b) will survive such
termination for a period of six years.
6.3 EXTENSION; WAIVER. Any agreement on the part of a party to waive
any provision of this Agreement, or to extend the time for any performance
hereunder, will be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise will not constitute a waiver of
such rights. Any waiver by any party of a breach of any provision of this
Agreement will not operate as or be construed as a waiver of any other breach of
such provision or of any breach of any other provision of this Agreement. The
failure of a party to insist upon strict adherence to any term of this Agreement
or one or more sections hereof will not be considered a waiver or deprive that
party of a right thereafter to insist upon strict adherence to that term or any
other term of this Agreement.
6.4 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES; SEVERAL
OBLIGATIONS. This Agreement and the Merger Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to such matters. Neither the Merger Agreement nor
this Agreement is intended to confer upon any Person other than the parties
hereto any rights or remedies. The obligations of, and the representations and
warranties made by, each Stockholder shall be several and not joint and shall
relate only to such Stockholder.
6.5 GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Delaware regardless of the laws that
might otherwise govern under applicable principles of conflict of laws thereof.
6.6 NOTICES. Any notice required to be given hereunder will be
sufficient if in writing, and sent by facsimile transmission and by courier
service (with proof of service), hand delivery or certified or registered mail
(return receipt requested and first-class postage prepaid), addressed as
follows:
If to Parent or Purchaser:
Foster's Brewing Group Limited
77 Southbank Boulevard
Southbank Victoria Australia 3006
Attn: Company Secretary
Fax No.: 011-613-9645-7226
With copies to:
11
<PAGE>
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Attn: James E. O'Bannon
Fax No.: 212-755-7306
If to any Stockholder:
301 Commerce Street
Suite 3300
Fort Worth, Texas 76102
Attention: Richard Ekleberry, Esq.
Fax No.: 817-871-4088
With copies to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attn: David Leinwand
Fax No.: 212-225-3999
or to such other address as any party specifies by written notice, such notice
being deemed to have been delivered as of the date so telecommunicated,
personally delivered or mailed.
6.7 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any Stockholder without
the prior written consent of Parent or by Parent without the consent of the
applicable Stockholder (and then only with respect to such Stockholder), and any
such assignment or delegation that is not consented to will be null and void;
PROVIDED that this Agreement, together with any rights, interests, or
obligations of Parent hereunder, may be assigned or delegated, in whole or in
part, by Parent to any direct or indirect wholly owned subsidiary of Parent
without the consent of or any action by any Stockholder upon notice by Parent to
each Stockholder affected thereby as herein provided; PROVIDED FURTHER, HOWEVER,
that any such assignment shall not relieve Parent of its obligations hereunder.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of, and be enforceable by, the parties and their respective
successors and assigns (including, without limitation, any Person to whom any
Subject Shares are sold, transferred or assigned).
6.8 FURTHER ASSURANCES. Each Stockholder will execute and deliver such
other documents and instruments and take such further actions as may be
necessary or appropriate or as may be reasonably requested by Parent in order to
ensure that Parent and Purchaser receive the full benefit of this Agreement.
12
<PAGE>
6.9 PUBLICITY. Parent, Purchaser, the Company and each Stockholder will
consult with each other party before issuing any press release or otherwise
making any public statements with respect to this Agreement or the Merger
Agreement or the other transactions contemplated hereby or thereby and will not
issue any such press release or make any such public statement before such
consultation, except as may be required by law or applicable stock exchange
rules.
6.10 ENFORCEMENT. Irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity.
6.11 SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such a manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
6.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same instrument and
will become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
6.13 HEADINGS. The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
6.14 REMEDIES NOT EXCLUSIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity will be cumulative and not alternative, and the exercise of any thereof
by either party will not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
6.15 JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each party hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the exclusive jurisdiction of the Chancery or other courts of the State of
Delaware (a "DELAWARE COURT"), and any appellate court from any such court, in
any suit, action or proceeding arising out of or relating to this Agreement, or
for recognition or enforcement of any judgment resulting from any suit, action
or proceeding, and each party hereby irrevocably and unconditionally agrees that
all claims in respect of any such suit, action or proceeding may be heard and
determined in a Delaware Court.
(b) It will be a condition precedent to each party's right to
bring any such suit, action or proceeding that such suit, action or proceeding,
in the first instance, be brought in a Delaware Court (unless such suit, action
or proceeding is brought solely to obtain discovery or to enforce a judgment),
13
<PAGE>
and if each such court refuses to accept jurisdiction with respect thereto, such
suit, action or proceeding may be brought in any other court with jurisdiction.
(c) No party may move to (i) transfer any such suit, action or
proceeding from a Delaware Court to another jurisdiction, (ii) consolidate any
such suit, action or proceeding brought in a Delaware Court with a suit, action
or proceeding in another jurisdiction, or (iii) dismiss any such suit, action or
proceeding brought in a Delaware Court for the purpose of bringing the same in
another jurisdiction.
(d) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, (i) any objection
which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in a Delaware Court,
(ii) the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court, and (iii) the right to object, with
respect to such suit, action or proceeding, that such court does not have
jurisdiction over such party. Each party irrevocably consents to service of
process in any manner permitted by law.
6.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRAIL BY JURY IN ANY LEGAL PROCEEDING ARISING OUR OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.17 FIDUCIARY DUTIES. Each Stockholder is signing this Agreement
solely in such Stockholder's capacity as the beneficial owner of Subject Shares
and nothing contained herein shall limit or affect any actions taken by such
Stockholder in his or her capacity as an officer or director of the Company and
none of such actions in any such capacity shall be deemed to constitute a breach
of this Agreement.
14
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
FOSTER'S BREWING GROUP LIMITED
By: /s/ Peter A. Bobeff
-------------------------------
Name: Peter A. Bobeff
Title: SVP Commercial Affairs
BORDEAUX ACQUISITION CORP.
By: /s/ Terry J. Davis
-------------------------------
Name: Terry J. Davis
Title: Director
CRULL FAMILY TRUST
By: /s/ Timm F. Crull
-------------------------------
Name: Timm F. Crull
Title: Trustee
MOONE FAMILY TRUST
By: /s/ E. Michael Moone
-------------------------------
Name: E. Michael Moone
Title: Trustee
PRIVATE RESERVE LP
By: /s/ E. Michael Moore
-------------------------------
Name: E. Michael Moore
Title:
MOONE FAMILY FOUNDATION
By: /s/ E. Michael Moone
-------------------------------
Name: E. Michael Moore
Title: Trustee
MOONE ENTERPRISES LLP
By: /s/ E. Michael Moone
-------------------------------
Name: E. Michael Moore
Title:
THE ROBERT E. STEINHAUER AND
VERNA STEINHAUER 1992 TRUST
By: /s/ Robert E. Steinhauer
-------------------------------
Name: Robert E. Steinhauer
Title: SVP Vineyard Operations
ROGERS FAMILY TRUST
By: /s/ George A. Vare
-------------------------------
Name: George A. Vare
Title: Trustee
VARE FAMILY PARTNERSHIP
By: /s/ George A. Vare
-------------------------------
Name: George A. Vare
Title: Trustee
PETERSON FAMILY TRUST
By: /s/ Thomas W. Peterson
-------------------------------
Name: Thomas W. Peterson
Title: Trustee
15
<PAGE>
WINE PARTNERS, L.P.
By: TPG Advisors, Inc., its general partner
By: /s/ James Coulter
-------------------------------
Name: James Coulter
Title: Managing Director
TPG GENPAR, L.P.
By: TPG Advisors, Inc., its general partner
By: /s/ James Coulter
-------------------------------
Name: James Coulter
Title: Managing Director
TPG PARALLEL I, L.P.
By: TPG GenPar, L.P., its general partner
By: TPG Advisors, Inc., its general partner
By: /s/ James Coulter
-------------------------------
Name: James Coulter
Title: Managing Director
TPG PARTNERS, L.P.
By: TPG GenPar, L.P., its general partner
By: TPG Advisors, Inc., its general partner
By: /s/ James Coulter
-------------------------------
Name: James Coulter
Title: Managing Director
/s/ Richard L. Adams
-------------------------------
Richard L. Adams
/s/ Randy Christofferson
-------------------------------
Randy Christofferson
/s/ Timm F. Crull
-------------------------------
Timm F. Crull
/s/ William A. Franke
-------------------------------
William A. Franke
/s/ E. Michael Moone
-------------------------------
E. Michael Moone
/s/ Jesse Rogers
-------------------------------
Jesse Rogers
/s/ George A. Vare
-------------------------------
George A. Vare
/s/ Richard G. Carter
-------------------------------
Richard G. Carter
/s/ Lloyd P. Chasey
-------------------------------
Lloyd P. Chasey
/s/ Martin L. Foster
-------------------------------
Martin L. Foster
/s/ Walter T. Klenz
-------------------------------
Walter T. Klenz
/s/ Allan Tor Kenwood
-------------------------------
Allan Tor Kenwood
16
<PAGE>
/s/ Benjie Lawrence
-------------------------------
Benjie Lawrence
/s/ Thomas W. Peterson
-------------------------------
Thomas W. Peterson
/s/ Douglas W. Roberts
-------------------------------
Douglas W. Roberts
/s/ Peter Scott
-------------------------------
Peter Scott
/s/ Edward Sbagia
-------------------------------
Edward Sbagia
/s/ Robert E. Steinhauer
-------------------------------
Robert E. Steinhauer
/s/ Janelle E. Thompson
-------------------------------
Janelle E. Thompson
/s/ Douglas A. Walker
-------------------------------
Douglas A. Walker
/s/ James W. Watkins
-------------------------------
James W. Watkins
17
<PAGE>
SCHEDULE A
STOCKHOLDER CLASS A SHARES CLASS B SHARES TOTAL A & B
Richard Adams 0 2,685 2,685
Randy Christofferson 0 6,203 6,203
Timm F. Crull 0 8,498 8,498
Crull Family Trust 0 149,540 149,540
William Franke 0 3,083 3,083
E. Michael Moone 0 8,795 8,795
Moone Family Trust 28,000 0 28,000
Private Reserve LP 0 202,068 202,068
Moone Family Trust 0 261,410 261,410
Moone Family Foundation 0 8,245 8,245
Moone Enterprises LLP 0 17,359 17,359
Jesse Rogers 0 2,761 2,761
Rogers Family Trust 0 22,287 22,287
George A. Vare 14,000 127,673 141,673
Vare Family Partnership 0 66,106 66,106
Richard G. Carter** 796 21,651 22,447
Lloyd P. Chasey 0 7,000 7,000
Martin L. Foster** 630 26,130 26,760
Allan Tor Kenward** 796 16,445 17,241
Walter T. Klenz** 3,980 65,600 69,580
Benjie Lawrence 0 7,000 7,000
Peterson Family Trust 0 29,728 29,728
Douglas W. Roberts** 316 10,687 11,003
Edward Sbragia** 1,856 0 1,856
Peter Scott** 0 1,928 1,928
Robert E. Steinhauer** 1,856 0 1,856
The Robert E. Steinhauer and
Verna Steinhauer 1992 Trust 0 39,826 39,826
Janelle E. Thompson** 398 295 693
Douglas A. Walker** 0 31,244 31,244
Wine Partners, L.P. 68,956 0 68,956
TPG Partners, L.P. 1,083,012 7,520,876 8,603,888
TPG Parallel I, L.P. 107,934 749,537 857,471
TPG GenPar, L.P. 0 11,692 11,692
TOTAL 1,312,530 9,426,352 10,738,882
A-1
<PAGE>
** Excludes one Class B Common Share owned by each designated party. Parent and
Purchaser hereby acknowledge that this Class B Common Share is not part of this
Agreement and does not constitute a breach of the agreements and representations
and warranties of the Stockholder contained herein.
A-2
<PAGE>
SCHEDULE B
STOCKHOLDER OPTIONS TO PURCHASE SHARES
Richard Adams 0
Randy Christofferson 0
Timm F. Crull 0
Crull Family Trust 0
William Franke 0
E. Michael Moone 0
Moone Family Trust 0
Private Reserve LP 0
Moone Family Trust 0
Moone Family Foundation 0
Moone Enterprises LLP 0
Jesse Rogers 0
Rogers Family Trust 0
George A. Vare 0
Vare Family Partnership 0
Richard G. Carter 63,892
Lloyd P. Chasey 30,000
Martin L. Foster 45,806
Allan Tor Kenward 54,892
Walter T. Klenz 249,584
Benjie Lawrence 25,000
Thomas W. Peterson 33,342
Peterson Family Trust 0
Douglas W. Roberts 60,500
Edward Sbragia 112,374
Peter Scott 138,000
Robert E. Steinhauer 90,317
The Robert E. Steinhauer and Verna Steinhauer 1992
Trust 0
Janelle E. Thompson 62,517
Douglas A. Walker 23,750
James W. Watkins 135,000
Wine Partners, L.P. 0
TPG Partners, L.P. 0
TPG Parallel I, L.P. 0
TPG GenPar, L.P. 0
TOTAL 1,124,974
A-3
