<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 17)*
CROWN CENTRAL PETROLEUM CORPORATION
-----------------------------------
(Name of Issuer)
CLASS A COMMON STOCK, PAR VALUE $5 PER SHARE
--------------------------------------------
(Title of Class of Securities)
00228219101
------------------
(CUSIP Number)
JAMES F. SANDERS, ESQ.
8182 MARYLAND AVE., SUITE 307
ST. LOUIS, MISSOURI 63105
(314) 889-0218
---------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 17, 2000
-----------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box [ ].
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act, but shall be subject to all other provisions of the Act.
[FN]
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
</FN>
Page 1 of 36
<PAGE> 2
This Amendment No. 17 to Schedule 13D amends (i) Items 4 and 7 of
Amendment No. 16 to Schedule 13D filed jointly on July 28, 2000 ("Amendment
No. 16"), and (ii) Item 6 of Amendment No. 8 to Schedule 13D filed jointly on
May 25, 1999 ("Amendment No. 8"), by the parties named herein. Except as
specifically amended hereby, all other provisions of Amendment No. 16 and
prior Amendments (as applicable) remain in full force and effect. The
referenced Items are, respectively, amended as follows:
ITEM 4. PURPOSE OF TRANSACTION.
------
Item 4 of Amendment No. 16 is amended to add at the end thereof the
following paragraphs:
On December 18, 2000, Apex announced it has withdrawn its $10.50 per
share cash proposal to acquire the common shares of the Company. At the same
time, Rosemore, Inc. ("Rosemore") announced its agreement to acquire the
Company in a $10.50 per share cash merger in which the Company will become an
indirect, wholly-owned subsidiary of Rosemore. Apex and parties related to
Apex have agreed to support the new Rosemore merger proposal pursuant to a
Stock Purchase Agreement with Rosemore dated December 17, 2000 ("Stock
Purchase Agreement"), under which Rosemore agrees to acquire all Company
shares owned by Apex and its related parties at a cash price of $10.50 per
share even if the Rosemore/Crown merger is not approved by shareholders.
Rosemore previously had pursued a merger with the Company that failed to
receive approval of the Company's shareholders at a special meeting held on
August 24, 2000.
Immediately following the Company's August 24, 2000, special
shareholders meeting, Apex was invited by the Company's Special Committee of
Independent Directors to pursue a potential acquisition of the Company. Apex
previously had proposed several transactions with the Company at $10.50 per
share and conducted a proxy solicitation against the prior Rosemore merger
proposal. Following the invitation from the Special Committee, Apex and its
lenders undertook a due diligence review of the Company and its operations,
including meeting with the Company's managers, inspecting Company facilities,
and reviewing financial, tax, legal and environmental matters. On October
10, 2000, Apex made a written $10.50 per share tender offer proposal to the
Special Committee. Apex proposed to carry out its tender offer to all Crown
shareholders in a fully-financed, all cash transaction for which Apex
obtained $350 million of committed financing from BNP Paribas. Because
Rosemore is the Company's controlling shareholder, Apex conditioned its
proposal on Rosemore's agreement to tender its Company shares at the $10.50
cash price. Subsequent discussions between the parties led to Rosemore's
agreement to purchase the Company shares owned by Apex and its related
parties. As part of the Stock Purchase Agreement, Rosemore has agreed to
reimburse Apex and its related parties $1.75 million for certain expenses
incurred by them in pursuing the potential acquisition of the Company. The
parties expect the new merger transaction to be completed by March 30, 2001.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
------ RESPECT TO SECURITIES OF THE ISSUER
Item 6 of Amendment No. 8 is amended to read in its entirety as follows:
2
<PAGE> 3
On December 17, 2000, the undersigned filing parties, P.A. Novelly, the
Novelly Exempt Trust U/I dtd. 8/12/92, the Capital Trust dtd. 2/4/94 and
Golnoy Barge Company, Inc. (collectively, "Sellers"), entered into a Stock
Purchase Agreement ("Stock Purchase Agreement") with Rosemore, Inc.
("Rosemore"). Also on December 17, 2000, the Company, Rosemore and Rosemore
Acquisition Corporation, a subsidiary of Rosemore ("Merger Sub"), entered into
an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which
Rosemore agreed to acquire, through Merger Sub, all of the issued and
outstanding shares of Class A and Class B common stock of the Company not
owned by Rosemore and its affiliates at a price of $10.50 per share in cash.
Under the Merger Agreement, Merger Sub will merge with and into the Company,
with the Company being the surviving corporation and an indirect wholly-owned
subsidiary of Rosemore (the "Merger"). Pursuant to the Stock Purchase
Agreement, (i) the Sellers agreed to vote their shares of Company common
stock in favor of the Merger and the Merger Agreement, (ii) the Sellers
agreed to sell and Rosemore agreed to buy the Company common stock held by
the Sellers for $10.50 per share in cash in the event the Merger Agreement is
terminated, (iii) the Sellers agreed that they will not, for a period of five
years, acquire any Company common stock or assets or make any proxy
solicitation or otherwise seek to influence or control the management or
policies of the Company, and (iv) Rosemore agreed to reimburse the Sellers in
an amount equal to $1.75 million for certain expenses incurred by the Sellers
or parties related to the Sellers in connection with their efforts to acquire
the Company.
In connection with the Stock Purchase Agreement, Rosemore, the Sellers
and Union Planters Bank, as escrow agent, will enter into an escrow agreement
("Escrow Agreement") whereby the Sellers shall deposit their Company common
stock and Rosemore shall deposit the purchase price for such stock under the
Stock Purchase Agreement, with Union Planters Bank, pending release in
accordance with the Escrow Agreement following the Merger closing or, if the
Merger closing does not occur, the closing under the Stock Purchase
Agreement.
Copies of the Stock Purchase Agreement and the Escrow Agreement are attached
hereto as Exhibits XIV and XV and are incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
------
The following are filed herewith as exhibits:
Exhibit XIII: Joint Filing Agreement pursuant to Rule 13-d-1(k).
Exhibit XIV: Stock Purchase Agreement dated December 17, 2000, among
Sellers and Rosemore.
Exhibit XV: Escrow Agreement dated as of December 17, 2000, among Sellers,
Rosemore and Union Planters Bank.
3
<PAGE> 4
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of each of
the undersigned, I certify that the information set forth in this statement
is true, complete and correct.
Dated: December 18, 2000
/s/ Paul A. Novelly
-------------------------------------------------
Paul A. Novelly
Golnoy Barge Company, Inc.
By: /s/ P.A. Novelly, II
---------------------------------------------
P.A. Novelly, II, Vice President
Novelly Exempt Trust dated August 12, 1992
By: /s/ P.A. Novelly, II
---------------------------------------------
P.A. Novelly, II, Trustee
By: /s/ John K. Pruellage
---------------------------------------------
John K. Pruellage, Trustee
The Capital Trust dated February 4, 1994
By: /s/ Douglas D. Hommert
---------------------------------------------
Douglas D. Hommert, Trustee
By: /s/ William Lauber
---------------------------------------------
William Lauber, Trustee
/s/ P.A. Novelly, II
-------------------------------------------------
P.A. Novelly, II
/s/ John K. Pruellage
-------------------------------------------------
John K. Pruellage
/s/ Douglas D. Hommert
-------------------------------------------------
Douglas D. Hommert
/s/ William Lauber
-------------------------------------------------
William Lauber
4
<PAGE> 5
EXHIBIT XIII TO AMENDMENT TO SCHEDULE 13-D
JOINT FILING AGREEMENT
----------------------
Dated as of December 18, 2000
The undersigned each hereby agree that the Amendment No. 17 to Schedule
13D filed herewith, relating to the Class A Common Stock of Crown Central
Petroleum Corporation, is filed on behalf of each of the undersigned.
Dated: December 18, 2000
/s/ Paul A. Novelly
-------------------------------------------------
Paul A. Novelly
Golnoy Barge Company, Inc.
By: /s/ P.A. Novelly, II
---------------------------------------------
P.A. Novelly, II, Vice President
Novelly Exempt Trust dated August 12, 1992
By: /s/ P.A. Novelly, II
---------------------------------------------
P.A. Novelly, II, Trustee
By: /s/ John K. Pruellage
---------------------------------------------
John K. Pruellage, Trustee
The Capital Trust dated February 4, 1994
By: /s/ Douglas D. Hommert
---------------------------------------------
Douglas D. Hommert, Trustee
By: /s/ William Lauber
---------------------------------------------
William Lauber, Trustee
/s/ P.A. Novelly, II
-------------------------------------------------
P.A. Novelly, II
/s/ John K. Pruellage
-------------------------------------------------
John K. Pruellage
/s/ Douglas D. Hommert
-------------------------------------------------
Douglas D. Hommert
/s/ William Lauber
-------------------------------------------------
William Lauber
5
<PAGE> 6
EXHIBIT XIV TO AMENDMENT TO SCHEDULE 13-D
EXECUTION COPY
STOCK PURCHASE AGREEMENT, dated as of December 17, 2000, among P.A.
Novelly, II and John K. Pruellage, as Trustees for The Novelly Exempt Trust
U/I dated August 12, 1992 (the "Novelly Trust"), Douglas D. Hommert and
-------------
William Lauber, as Trustees for The Capital Trust U/I dated February 4, 1994
(the "Capital Trust"), Paul A. Novelly, as Trustee of the Paul A. Novelly
-------------
Living Trust U/I dated July 28, 1982, as amended (the "Living Trust"), Golnoy
------------
Barge Company, Inc. (each of the foregoing, a "Seller", and collectively,
------
the "Sellers"), and Rosemore, Inc., a Maryland corporation (the "Purchaser").
------- ---------
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Sellers collectively own 708,375 shares of Class A common
stock, $5.00 par value per share (the "Class A Common Shares") of Crown
---------------------
Central Petroleum Corporation, a Maryland corporation (the "Company"), and
-------
182,800 shares of Class B common stock of the Company, par value $5.00 per
share (the "Class B Common Shares" and, with the Class A Common Shares, the
---------------------
"Shares");
------
WHEREAS, on the date hereof, the Purchaser, the Company and Rosemore
Acquisition Corporation, a Maryland corporation and an indirect wholly owned
subsidiary of the Purchaser ("Merger Sub"), have entered into an Agreement
----------
and Plan of Merger (as amended from time to time, the "Merger Agreement"),
----------------
pursuant to which, subject to the terms and conditions set forth therein,
Merger Sub shall be merged with and into the Company (the "Merger") following
------
the closing under the Merger Agreement (the "Merger Closing");
--------------
WHEREAS, each of the Sellers approves the Merger and the Merger
Agreement, pursuant to which the Shares shall be exchanged for the Merger
Consideration (as defined in the Merger Agreement) and wish to have their
respective Shares voted in favor of the Merger;
WHEREAS, if the Merger is not consummated as provided in the Merger
Agreement, the Sellers wish to sell to the Purchaser, and the Purchaser
wishes to purchase from the Sellers, the Shares, upon the terms set forth
herein; and
WHEREAS, in furtherance of the transactions contemplated by this
Agreement, within three business days of the date hereof, the Sellers and
Union Planters Bank as escrow agent (the "Escrow Agent"), shall enter into an
------------
escrow agreement (the "Escrow Agreement") in the form attached hereto as
----------------
Exhibit A, with such changes as the Escrow Agent may reasonably request,
pursuant to which the Shares and the aggregate Per Share Purchase Price (as
defined herein) shall be deposited with the Escrow Agent in accordance with
the terms of the Escrow Agreement; and
WHEREAS, capitalized terms that are not defined in this Agreement have
the meanings specified in the Merger Agreement;
NOW THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, the Purchaser and the Sellers hereby
agree as follows:
<PAGE> 7
ARTICLE
MERGER; PURCHASE AND SALE
SECTION 1.01 Irrevocable Proxy. (a) (i) Each Seller, severally and
-----------------
not jointly, hereby agrees that, from and after the date hereof and until
this Agreement shall have been terminated in accordance with Section 5.07
hereof, at any meeting of the stockholders of the Company, however called,
and in any action by consent of the stockholders of the Company, such Seller
will vote (or cause to be voted) such Seller's Shares as follows (the
"Included Matters"):
----------------
(w) in favor of the approval and adoption of the Merger Agreement,
the Merger and all the transactions contemplated by the Merger Agreement
and this Agreement and otherwise in such manner as may be necessary to
consummate the Merger;
(x) except as otherwise agreed to in writing in advance by the
Purchaser, against any action, proposal, agreement or transaction that
would result in a breach of any covenant, obligation, agreement,
representation or warranty of the Company contained in the Merger
Agreement (whether or not theretofore terminated) or of any Seller
contained in this Agreement; and
(y) against any action, proposal, agreement or transaction (other
than the Merger Agreement or the transactions contemplated thereby) that
could result in any of the conditions to the Company's obligations under
the Merger Agreement (whether or not theretofore terminated) not being
fulfilled or that is intended, or could reasonably be expected, to
impede, interfere or be inconsistent with, delay, postpone, discourage or
adversely affect the Merger Agreement (whether or not theretofore
terminated), the Merger or this Agreement, including, but not limited to,
any Competing Transaction.
(ii) Each Seller hereby irrevocably appoints the designees of the
Purchaser and each of them, as the attorneys and proxies of such Seller, each
with full power of substitution, with respect to all Shares held by such
Seller, and all Shares and other securities issued in distributions in
respect of such Shares, which such Seller is entitled to vote at any meeting
of stockholders of the Company (whether annual or special and whether or not
an adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise, to vote in a manner consistent with the Included Matters (by
written consent or otherwise) and for no other purpose whatsoever. Except as
set forth above and as provided in Section 1.01(b) below, each Seller
specifically reserves the right to vote its Shares as it determines in its
sole discretion on matters that are not inconsistent with the Included
Matters. This limited proxy and power of attorney is coupled with an
interest in the Shares held by such Seller, is irrevocable and is granted in
consideration of, and is effective upon, the signature of this Agreement by
the Purchaser and terminates on the termination of this Agreement as provided
in Section 5.07 (it being understood that if the Stock Purchase Closing (as
defined below) occurs, this proxy and power of attorney shall remain in full
force and effect with respect to any matter for which the record date was any
date prior to or including the date of the Stock Purchase Closing). Unless
this Agreement is terminated by the Purchaser pursuant to Section 5.07, this
Agreement revokes
2
<PAGE> 8
all other proxies and powers of attorney granted by such Seller at any time
(before or after the date hereof) with respect to the Shares held by such
Seller (and all Shares and other securities issued in distributions in
respect of such Shares). Unless this Agreement is terminated by the Purchaser
pursuant to Section 5.07, no subsequent proxies, powers of attorney, consents
or revocations may be given by any Seller with respect to any Included
Matter, and if given will not be deemed effective. Furthermore, unless this
Agreement is terminated by the Purchaser pursuant to Section 5.07, no Seller
shall enter into any agreement or understanding with any person or entity
to vote such Seller's shares with respect to any Included Matter or give
instructions or make any transfers of Shares in any manner inconsistent with
this Section 1.01(a). Each Seller acknowledges receipt and review of a copy
of the Merger Agreement.
(b) Unless this Agreement is terminated by the Purchaser pursuant to
Section 5.07, each Seller, on behalf of itself and all of its affiliates,
agrees that it will not make any nomination, proposal or proposed Competing
Transaction for consideration at any meeting (special or annual) of the
stockholders of the Company.
SECTION 1.02. Purchase and Sale of the Shares. If the Merger
-------------------------------
Agreement is terminated for any reason, then on and subject to the terms and
conditions contained herein, and provided that this Agreement has not been
terminated by the Purchaser pursuant to Section 5.07 hereof, each Seller
hereby agrees to sell, transfer, assign, convey and deliver to the Purchaser,
and the Purchaser hereby agrees to purchase, acquire and accept from such
Seller, all of such Seller's right, title and interest in and to the Shares
held by it, free and clear of any liens, pledges, security interests, claims
or encumbrances of any kind. The number and class of Shares held by each
Seller is set forth on Schedule I hereto. The obligations of the Sellers
hereunder shall be several and not joint; provided, however, that the
-----------------
Purchaser shall have no obligation to accept and pay for any Shares unless
all Shares owned by the Sellers are delivered and presented for payment at
the Stock Purchase Closing (as defined below).
SECTION 1.03. Purchase Price. The purchase price for each Share
--------------
purchased by the Purchaser pursuant to Section 1.02 shall be $10.50, payable
in cash (the "Per Share Purchase Price").
------------------------
SECTION 1.04. Closing. On and subject to the terms and conditions set
-------
forth herein and in the Escrow Agreement, the sale and transfer pursuant to
Section 1.02 of the Shares by the Sellers to the Purchaser (the "Stock
-----
Purchase Closing"; either the Merger Closing or the Stock Purchase Closing is
----------------
referred to as a "Closing") shall take place at the offices of the Purchaser,
-------
One North Charles Street, Suite 2300, Baltimore, Maryland. The Stock
Purchase Closing shall occur on the earlier of March 31, 2001 or the fifth
Business Day following the date that the Merger Agreement is terminated for
any reason. The Purchaser agrees to use its commercially reasonable efforts
to consummate the Merger as soon as practicable.
SECTION 1.05. Closing Deliveries by the Seller. At the Stock Purchase
--------------------------------
Closing, each Seller shall deliver (or cause to be delivered pursuant to the
Escrow Agreement) to the Purchaser the respective number of Shares set forth
opposite such Seller's name on Schedule I hereto, either by the transfer of
such Shares to a book-entry account designated by the Purchaser at least one
Business Day in advance or by the delivery of stock certificates
3
<PAGE> 9
evidencing such Shares, duly endorsed in blank, or accompanied by stock powers
duly executed in blank, in a form satisfactory to the Purchaser.
SECTION 1.06. Closing Deliveries by the Purchaser. At the Stock
-----------------------------------
Purchase Closing, the Purchaser shall deliver (or cause to be delivered
pursuant to the Escrow Agreement) to each Seller cash equal to the product of
the Per Share Purchase Price and the number of Shares delivered by such
Seller, as set forth opposite such Seller's name on Schedule I hereto, by
wire transfer in immediately available funds to an account or accounts
specified by the Sellers to the Purchasers or the Escrow Agent at least one
Business Day prior to the Stock Purchase Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS
As an inducement to the Purchaser to enter into this Agreement, each
Seller hereby, severally and not jointly, represents and warrants to the
Purchaser as follows:
SECTION 2.01. Organization, Authority and Qualification of the
------------------------------------------------
Sellers. Such Seller is either (a) the trustee of the Novelly Trust, the
-------
Capital Trust or the Living Trust, duly authorized and empowered by the
corresponding trust agreement and the laws of the jurisdiction governing the
corresponding trust agreement, or (b) an entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization and in each case, has all necessary power and
authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by such Seller, the performance by
such Seller of its obligations hereunder, and the consummation by such Seller
of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of such Seller. This Agreement has been duly
executed and delivered by such Seller, and (assuming due authorization,
execution and delivery by the Purchaser) this Agreement constitutes a legal,
valid and binding obligation of such Seller, enforceable against such Seller
in accordance with its terms.
SECTION 2.02. Ownership of the Shares. Such Seller is the legal and
-----------------------
beneficial owner (except for the trustees of the Capital Trust, the Novelly
Trust and the Living Trust, who are legal owners only) of the number of
Shares set forth opposite such Seller's name on Schedule I hereto, free and
clear of all security interests, pledges, mortgages, liens, charges,
encumbrances, adverse claims or restrictions of any kind, including, without
limitation, any restrictions on the voting or transfer thereof other than as
set forth in this Agreement (collectively, "Encumbrances"). Upon the sale of
------------
the Shares held by such Seller to the Purchaser pursuant to this Agreement,
such Shares will be free and clear of all Encumbrances. There are no
outstanding rights or agreements granted or entered into by or binding upon
such Seller with respect to the Shares held by such Seller. Delivery of the
Shares held by such Seller at the Stock Purchase Closing will provide the
Purchaser with good and marketable title to the Shares held by such Seller,
free of any Encumbrances of any kind whatsoever.
4
<PAGE> 10
SECTION 2.03. No Conflict. The execution, delivery and performance of
-----------
this Agreement by such Seller do not and will not, (a) violate, conflict with
or result in the breach of any provision of the charter, by-laws or any other
organizational documents of such Seller, or, in the case of Sellers who are
trustees of the Capital Trust, the Novelly Trust or the Living Trust, the
corresponding trust agreements, (b) conflict with or violate any law, rule or
regulation or Governmental Order (as defined below) applicable to such Seller
or any of its Shares, assets, properties or businesses, or (c) conflict with,
result in any breach of, constitute a default (or event which with the giving
of notice or lapse of time, or both, would become a default) under, require
any consent under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or result in the
creation of any Encumbrance on any of the Shares held by such Seller or on
any of the assets or properties of, such Seller pursuant to, any note, bond,
mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement to which such Seller is a party
or by which any of the Shares owned by such Seller or any of such assets or
properties is bound or affected which in any such case would prevent or delay
such Seller from consummating the transactions contemplated by this
Agreement. ("Governmental Order" means any order, writ, judgment,
------------------
injunction, decree, stipulation, determination or award entered by or with
any Governmental Authority; "Governmental Authority" means any United States
----------------------
federal, state or local or any foreign government, governmental, regulatory
or administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.)
SECTION 2.04. Governmental Consents and Approvals. The execution,
-----------------------------------
delivery and performance of this Agreement by such Seller do not and will not
require such Seller to obtain any consent, approval, authorization or other
order of, or to make any filing with, or notification to, any Governmental
Authority except for (a) those that have been obtained or made, and (b) the
pre-merger notification requirements (i) of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder (the "HSR Act"), which requirements have been
-------
satisfied assuming the Closing occurs before May 26, 2001, or (ii) as may be
applicable to the antitrust laws of any state.
SECTION 2.05. Litigation. There are no actions or proceedings by or
----------
against such Seller that would affect the valid transfer to the Purchaser of
good and marketable title to the Shares held by such Seller, free and clear
of all Encumbrances pending by or before any Governmental Authority, nor to
the knowledge of such Seller are any such actions or proceedings threatened.
SECTION 2.06. Brokers. Except for Bear, Stearns & Co., Inc., 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 based upon arrangements made by or on behalf of such Seller.
The fees and expenses of Bear, Stearns & Co., Inc. shall be the sole
responsibility of the Sellers; provided, however, that such fees and expenses
-----------------
shall be reimbursed by the Purchaser only to the extent provided for under
Section 4.02.
5
<PAGE> 11
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
As an inducement to the Sellers to enter into this Agreement, the
Purchaser hereby represents and warrants to the Sellers as follows:
SECTION 3.01. Organization and Authority of the Purchaser. The
-------------------------------------------
Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Maryland and has all necessary
corporate power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Purchaser, the
performance by the Purchaser of its obligations hereunder and the
consummation by the Purchaser of the transactions contemplated hereby have
been duly authorized by all requisite action on the part of the Purchaser.
This Agreement has been duly executed and delivered by the Purchaser, and
(assuming due authorization, execution and delivery by each of the Sellers)
this Agreement constitutes a legal, valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms.
SECTION 3.02. No Conflict. The execution, delivery and performance of
-----------
this Agreement by the Purchaser do not and will not (a) violate, conflict
with or result in the breach of any provision of the charter or by-laws of
the Purchaser, (b) conflict with or violate any law, rule or regulation or
Governmental Order applicable to the Purchaser or any of its assets,
properties or businesses, or (c) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or lapse of
time, or both, would become a default) under, or require any consent under,
any note, bond, mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument or arrangement to which the
Purchaser is a party or by which any of such assets or properties is bound or
affected which in any such case would prevent or delay the Purchaser from
consummating the transactions contemplated by this Agreement.
SECTION 3.03. Governmental Consents and Approvals. The execution,
-----------------------------------
delivery and performance of this Agreement by the Purchaser do not and will
not require the Purchaser to obtain any consent, approval, authorization or
other order of, or to make any filing with, or notification to, any
Governmental Authority except for (a) those that have been obtained or made,
and (b) the pre-merger notification requirements (i) of the HSR Act, which
requirements have been satisfied assuming the Closing occurs before May 26,
2001, or (ii) as may be applicable to the antitrust laws of any state.
SECTION 3.04. Litigation. There are no actions or proceedings by or
----------
against the Purchaser that would affect the valid purchase of the Shares from
the Sellers, or otherwise prevent the Purchaser from consummating the
transactions contemplated to be consummated by the Purchaser hereunder,
pending by or before any Governmental Authority, nor to the knowledge of the
Purchaser are any such actions or proceedings threatened.
6
<PAGE> 12
SECTION 3.05. Brokers. Except for Aegis Muse Associates LLC, 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 based upon arrangements made by or on behalf of the Purchaser.
The Purchaser shall be solely responsible for payment of the fees and
expenses of Aegis Muse Associates LLC.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01. Further Action. If at any time after the Closing any
--------------
further action is reasonably necessary to carry out the purposes hereof, each
of the Sellers and the Purchaser shall use all reasonable efforts to take, or
cause to be taken, such further action.
SECTION 4.02. Reimbursement of Expenses. Upon the execution of this
-------------------------
Agreement, the Purchaser shall reimburse the Sellers, by wire transfer of
immediately available funds to an account or accounts specified by the
Sellers to the Purchaser, for expenses incurred after November 8, 1999 by the
Sellers or parties related to the Sellers in connection with their efforts to
acquire control of the Company, in an amount equal to $1,750,000.00, which
expenses have been reviewed and approved by the Purchaser as evidenced by its
signature hereto.
SECTION 4.03. Amendment to the Merger Agreement. Without the prior
---------------------------------
written consent of the Sellers, Purchaser agrees that it will not decrease
the amount or change the character of the Merger Consideration or otherwise
amend the Merger Agreement, or any provision thereof, in a manner that
materially adversely affects the Sellers.
SECTION 4.04. Standstill Agreement(a) Except as provided in Section
--------------------
4.04(b), the Sellers, their affiliates (as such term is defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
------------
successors and permitted assigns shall not, without the prior written consent
of the Purchaser, for a period of five (5) years, beginning on the Stock
Purchase Closing:
(i) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any voting securities or direct or
indirect rights to acquire any voting securities or any assets of the
Company;
(ii) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" to vote (as such terms are used in the rules
promulgated by the Securities and Exchange Commission under the Exchange
Act) or otherwise seek to influence or control the management or policies
of the Company; or
(iii) form, join or in any way participate in a "group" as defined
in Section 13(d)(3) of the Exchange Act or act in concert with other
shareholders in connection with the activities described in clauses (i)
and (ii) above.
(b) The covenants and agreements contained in Section 4.04(a) do not
apply to (i) the 10 7/8% Senior Notes of the Company (the "Senior Notes"),
------------
(ii) any securities that the
7
<PAGE> 13
Company exchanges or proposes to exchange for or in redemption of the Senior
Notes, (iii) any securities exchanged or proposed to be exchanged for the
Senior Notes in connection with any bankruptcy, reorganization or
insolvency proceeding involving the Company, (iv) any action taken by the
holders of Senior Notes to enforce their rights under the indenture pursuant
to which the Senior Notes were issued, or (v) any other action taken by
Sellers or their affiliates in connection with any bankruptcy,
reorganization or insolvency proceeding involving the Company.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.01. Expenses. Except as provided in Section 4.02, all costs
--------
and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby, shall be paid by the
party incurring such costs and expenses. In the event any party brings suit
to construe or enforce the terms hereof, or raises this Agreement as a
defense in a suit brought by another party, the prevailing party is entitled
to recover its attorneys' fees and expenses.
SECTION 5.02. Notices. All notices, requests, claims, demands and
-------
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by telecopy, or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 5.02):
(a) if to the Sellers:
c/o P.A. Novelly
8182 Maryland Avenue, Fourth Floor
Clayton, Missouri 63105
Telecopy: (314) 889-0211
with copies to:
James F. Sanders, Esq.
8182 Maryland Avenue, Third Floor
Clayton, Missouri 63105
Telecopy: (314) 889-0219
and to:
Lewis Rice & Fingersh, L.C.
500 North Broadway
St. Louis, Missouri 63102
Telecopy: (314) 612-7721
Attention: Douglas D. Hommert, Esq.
8
<PAGE> 14
(b) if to the Purchaser:
Rosemore, Inc.
One North Charles Street, Suite 2300
Baltimore, Maryland 21201
Telecopy: (410) 347-7081
Attention: Edward L. Rosenberg
President and Chief Executive Officer
with copies to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telecopy: (212) 848-7179
Attention: John Marzulli, Jr., Esq.
SECTION 5.03. Public Announcements. Unless otherwise required by any
--------------------
applicable law, rule or regulation or stock exchange requirements, no party
to this Agreement shall make, or cause to be made, any regulatory filing,
press release or public announcement in respect of this Agreement or the
transactions contemplated hereby or otherwise communicate with any news
media, without prior consultation with the other party, and the parties shall
cooperate as to the timing and contents of any such regulatory filing, press
release or public announcement.
SECTION 5.04. Severability. If any term or other provision of this
------------
Agreement is invalid, illegal or incapable of being enforced by any law, rule
or regulation or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the
greatest extent possible.
SECTION 5.05. Entire Agreement. This Agreement, together with the
----------------
Escrow Agreement, constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral, between any of the Sellers and the
Purchaser or their respective affiliates or agents with respect to the
subject matter hereof.
SECTION 5.06. Assignment. This Agreement may not be assigned by
----------
operation of law or otherwise without the express written consent of the
Sellers and the Purchaser (which consent may be granted or withheld in their
sole discretion); provided, however, that the Purchaser may assign this
-----------------
Agreement to an affiliate of the Purchaser without the consent of the
Sellers; provided further, however, that any such assignment shall not
-------------------------
relieve
9
<PAGE>
<PAGE> 15
the Purchaser of its obligations hereunder in the event of
nonperformance of any such obligations.
SECTION 5.07. Amendment; Termination. This Agreement may not be
----------------------
amended or modified except by an instrument in writing signed by, or on
behalf of, the Sellers and the Purchaser. Waiver of any term or condition of
this Agreement shall only be effective if in writing and shall not be
construed as a waiver of any subsequent breach or waiver of the same term or
condition, or a waiver of any other term or condition of this Agreement.
This Agreement may be terminated by the Purchaser if (i) there occurs after
the date of this Agreement a Material Adverse Effect and (ii) by reason of
such Material Adverse Effect the Purchaser also terminates the Merger
Agreement pursuant to Section 8.01(f) thereof. For purposes of this
Agreement, "Material Adverse Effect" means an event, circumstance, or change
-----------------------
in the Company and the Company Subsidiaries, taken as a whole, that results
in a material adverse effect on the business, financial condition, or the
results of operations of the Company and the Company Subsidiaries taken as a
whole; provided, however, that the following events or circumstances and any
-----------------
effect resulting therefrom shall not be a Material Adverse Effect for
purposes of this Agreement: (i) any changes in general United States or
global economic conditions; (ii) any changes affecting the oil and gas
industry in general, including without limitation changes in oil refining
margins or in the price of crude oil, feedstocks or other petroleum products;
(iii) any changes in the stock markets or financial markets, including
without limitation changes in the market price of the Company's common stock
or in interest rates; (iv) the occurrence of any default or event of default,
or acceleration (including as a result of a change in control) under any loan
agreement, note indenture, or other financing agreement or arrangement
(including without limitation the FFCA sale/leaseback transaction); (v) the
loss of, or failure to obtain or replace, any financing of the Company or any
of its Subsidiaries; or (vi) labor union activities involving the Company or
any of its subsidiaries, including, without limitation, boycotts, lawsuits or
work stoppages. It is understood and agreed that any of the events
underlying the changes, defaults or losses described in clauses (iii) through
(vi) above are not excluded from the definition of Material Adverse Effect
unless those changes, defaults or losses themselves fall under an exclusion
set forth in the proviso to such definition.
SECTION 5.08. Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed entirely within that state.
SECTION 5.09. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR
--------------------------
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO
SHALL BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS LOCATED IN THE CITY
OF CHICAGO, COOK COUNTY, OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN DIVISION (COLLECTIVELY, A "NORTHERN ILLINOIS
-----------------
COURT") OR, IF A NORTHERN ILLINOIS COURT REFUSES TO TAKE JURISDICTION OVER
-----
SUCH LEGAL ACTION OR PROCEEDING, THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND OR THE COURTS OF THE STATE OF MARYLAND AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
SUCH COURTS. THE PARTIES
10
<PAGE>
<PAGE> 16
IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH ANY OF THEM MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS. EACH PARTY IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS PROVIDED HEREIN, SUCH SERVICE
TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
SECTION 5.10. Counterparts. This Agreement may be executed in one or
------------
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
SECTION 5.11. Counterpart Facsimile Execution. For purposes of this
-------------------------------
Agreement, a document (or signature page thereto) signed and transmitted by
facsimile machine or telecopier is to be treated as an original document.
The signature of any party thereon, for purposes hereof, is to be considered
as an original signature, and the document transmitted is to be considered to
have the same binding effect as an original signature on an original
document. At the request of any party, any facsimile or telecopy document is
to be re-executed in original form by the parties who executed the facsimile
or telecopy document. No party may raise the use of a facsimile machine or
telecopier or the fact that any signature was transmitted through the use of
a facsimile or telecopier machine as a defense to the enforcement of this
Agreement or any amendment or other document executed in compliance with this
Section 5.11.
SECTION 5.12. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
SECTION 5.13. Further Assurances. The parties will execute and
------------------
deliver such further instruments and do such further acts and things as may
be required to carry out the intent and purpose of this Agreement.
SECTION 5.14. Captions. Captions contained in this Agreement have
--------
been inserted herein only as a matter of convenience and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provision hereof.
SECTION 5.15. Failure or Delay. No failure on the part of any party
----------------
to exercise, and no delay in exercising, any right, power or privilege
hereunder operates as a waiver thereof; nor does any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof, or the exercise of any other right, power or
privilege. No notice to or demand on any party in any case entitles such
party to any other or further notice or demand in similar or other
circumstances.
11
<PAGE> 17
SECTION 5.16. Successors and Assigns. All provisions of this
----------------------
Agreement are binding upon, inure to the benefit of, and are enforceable by
or against the parties and their respective heirs, executors, administrators
or other legal representatives and permitted successors and assigns.
12
<PAGE> 18
IN WITNESS WHEREOF, each of the Sellers and the Purchaser have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
P.A. NOVELLY, II
-----------------------------------
Title: Trustee, NOVELLY
EXEMPT TRUST U/I
Dated August 12, 1992
JOHN K. PRUELLAGE
-----------------------------------
Title: Trustee, NOVELLY
EXEMPT TRUST U/I
Dated August 12, 1992
DOUGLAS D. HOMMERT
-----------------------------------
Title: Trustee, THE CAPITAL TRUST U/I
Dated February 4, 1994
WILLIAM LAUBER
-----------------------------------
Title: Trustee, THE CAPITAL TRUST U/I
Dated February 4, 1994
PAUL A. NOVELLY
-----------------------------------
Title: Trustee, PAUL A. NOVELLY
LIVING TRUST U/I
Dated July 28, 1982, as amended
13
<PAGE> 19
GOLNOY BARGE COMPANY, INC.
-----------------------------------
Name: P.A. Novelly, II
Title: Vice President
ROSEMORE, INC.
-----------------------------------
Name: Edward L. Rosenberg
Title: President and
Chief Executive Officer
14
<PAGE> 20
EXHIBIT A
---------
15
<PAGE> 21
<TABLE>
SCHEDULE I
----------
<CAPTION>
Seller Class A Common Shares Class B Common Shares Total Shares Purchase Price
------------------------------ --------------------- --------------------- ----------- --------------
<S> <C> <C> <C> <C>
P.A. Novelly, II and
John K. Pruellage, as Trustees
of The Novelly Exempt Trust U/I
Dated August 12, 1992 516,600 182,800 699,400 $7,343,700.00
William Lauber and
Douglas D. Hommert, as
Trustees of The
Capital Trust U/I
Dated February 4, 1994 142,800 142,800 $1,499,400.00
Paul A. Novelly, as
Trustee of the
Paul A. Novelly Living Trust U/I
dated July 28, 1982, as amended 16,325 16,325 $ 171,412.50
Golnoy Barge Company, Inc. 32,650 32,650 $ 342,825.00
Total: 708,375 182,800 891,175 $9,357,337.50
===== ======= ======= ======= =============
</TABLE>
<PAGE> 22
EXHIBIT XV TO AMENDMENT TO SCHEDULE 13-D
EXECUTION COPY
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (as the same may be amended or modified from time
to time and including any and all written instructions given to the Escrow
------
Agent (as hereinafter defined) pursuant hereto, this "Escrow Agreement") is
----- ----------------
made and entered into as of December 17, 2000 among P.A. Novelly, II and John
K. Pruellage, as trustees for the Novelly Exempt Trust U/I dated August 12,
1992, Douglas D. Hommert and William Lauber, as trustees for the Capital
Trust U/I dated February 4, 1994, Paul A. Novelly, as trustee of the Paul A.
Novelly Living Trust U/I dated July 28, 1982, as amended, Golnoy Barge
Company, Inc. (each of the foregoing, a "Seller", and collectively, the
------
"Sellers") and Rosemore, Inc. (the "Purchaser", and together with the
------- ---------
Sellers, the "Parties") and Union Planters Bank, a national banking
-------
association (the "Bank").
----
W I T N E S S E T H :
WHEREAS, the Sellers collectively own 708,375 shares of Class A common
stock, $5.00 par value per share (the "Class A Common Shares") of Crown
---------------------
Central Petroleum Corporation, a Maryland corporation (the "Company") and
-------
182,800 shares of Class B common stock of the Company, par value $5.00 per
share (the "Class B Common Shares" and, with the Class A Common Shares, the
---------------------
"Shares");
------
WHEREAS, on the date hereof, the Purchaser, the Company and Rosemore
Acquisition Corporation, a Maryland corporation and an indirect wholly owned
subsidiary of the Purchaser ("Merger Sub"), have entered into an Agreement
----------
and Plan of Merger (as may be amended, the "Merger Agreement"), pursuant to
----------------
which, subject to the terms and conditions set forth therein, Merger Sub
shall be merged with and into the Company (the "Merger") following the
------
closing under the Merger Agreement (the "Merger Closing");
--------------
WHEREAS, the Sellers approve of the Merger and the Merger Agreement,
pursuant to which the Shares shall be exchanged for the Merger Consideration
(as defined in the Merger Agreement), and the Sellers wish to have their
respective Shares voted in favor of the Merger;
WHEREAS, on the date hereof, the Purchaser and the Sellers have entered
into a stock purchase agreement whereby, subject to the terms and conditions
contained therein (i) the Sellers have severally agreed to sell, and the
Purchaser has agreed to purchase, the Shares to the Purchaser if the Merger
Closing does not occur (the closing of such transaction, the "Stock Purchase
--------------
Closing"), and (ii) the Sellers have given the Purchaser an irrevocable proxy
-------
to vote the Shares for, among other matters, the approval of the Merger and
the Merger Agreement; and
WHEREAS, the Parties have requested Bank to act in the capacity of escrow
agent under this Escrow Agreement, and Bank, subject to the terms and
conditions hereof, has agreed to do so.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained herein, the parties hereto hereby agree as follows:
<PAGE>
<PAGE> 23
1. Appointment of Escrow Agent. Each of the Parties hereby
appoints the Bank as the escrow agent under this Escrow Agreement (the Bank
in such capacity, the "Escrow Agent"), and the Escrow Agent hereby accepts
------------
such appointment.
2. Deposit. Promptly upon execution of this Escrow Agreement, (i)
the Escrow Agent will open a book entry account for deposit of the Shares
(the "Book Entry Account"), (ii) each Seller will deliver to the Escrow Agent
------------------
Shares held by such Seller, as set forth opposite such Seller's name on
Exhibit A hereto (such Shares as are held by the Sellers in book entry
accounts to be transferred to the Book Entry Account and registered in the
name of the Escrow Agent and such Shares as are in certificated form to be
delivered to the Escrow Agent together with properly executed stock powers
endorsed in the name of the Escrow Agent (all such Shares referred to herein
being the "Escrowed Shares")) and (iii) the Purchaser shall deliver to the
---------------
Escrow Agent the sum of $9,357,337.50, in cash (the "Share Purchase Price"),
--------------------
all of which are to be held by the Escrow Agent in accordance with the terms
hereof (the Escrowed Shares and the Share Purchase Price being hereinafter
referred to collectively as the "Deposit"). Subject to and in accordance
-------
with the terms and conditions hereof, the Escrow Agent agrees that it shall
receive, hold in escrow, invest and reinvest and release or distribute the
Deposit.
3. Investment of the Share Purchase Price. The Escrow Agent shall
invest and reinvest the Share Purchase Price in the [ ],
----------------------
unless otherwise instructed in writing by the Purchaser. Such written
instructions, if any, referred to in the foregoing sentence shall specify the
type and identity of the investments to be purchased and/or sold and shall
also include the name of the broker-dealer, if any, which the Purchaser
directs the Escrow Agent to use in respect of such investment, any particular
settlement procedures required, if any (which settlement procedures shall be
consistent with industry standards and practices), and such other information
as the Escrow Agent may require. The Escrow Agent shall not be liable for
failure to invest or reinvest funds absent sufficient written direction.
Unless the Escrow Agent is otherwise directed in such written instructions,
the Escrow Agent may use a broker-dealer of its own selection, including a
broker-dealer owned by or affiliated with the Escrow Agent or any of its
affiliates. The Escrow Agent or any of its affiliates may receive
compensation solely from the Purchaser with respect to any investment
directed hereunder. It is expressly agreed and understood by the parties
hereto that the Escrow Agent shall not in any way whatsoever be liable for
losses on any investments, including, but not limited to, losses from market
risks due to premature liquidation or resulting from other actions taken
pursuant to this Escrow Agreement.
Receipt, investment and reinvestment of the Share Purchase Price shall be
confirmed by the Escrow Agent as soon as practicable by account statement,
and any discrepancies in any such account statement shall be noted by the
Parties to the Escrow Agent within 30 calendar days after receipt thereof.
Failure to inform the Escrow Agent in writing of any discrepancies in any
such account statement within said 30-day period shall conclusively be deemed
confirmation of such account statement in its entirety. For purposes of this
paragraph, (a) each account statement shall be deemed to have been received
by the party to whom directed on the earlier to occur of (i) actual receipt
thereof and (ii) three "Business Days" (hereinafter defined) after the
deposit thereof in the United States Mail, postage prepaid and (b) the term
"Business Day" shall mean any day of the year, excluding Saturday, Sunday and
any other day on which national banks are required or authorized to close in
St. Louis, Missouri.
2
<PAGE>
<PAGE> 24
4. Disbursement of the Deposit. The Escrow Agent is hereby
authorized to release the Deposit only as follows:
(a) Merger Closing. Upon receipt by the Escrow Agent of a letter of
transmittal for the Merger from a paying agent with instructions for
tendering securities of the Company and deposit by the Purchaser with
such paying agent of sufficient funds to pay the Share Purchase Price to
the Sellers and all other merger consideration to be paid by the
Purchaser in connection with the Merger, and confirmation of such
deposit, the Escrow Agent shall (i) tender the Escrowed Shares in
accordance with the instructions contained in such letter of transmittal
and complete such letter of transmittal to provide for payment by the
paying agent to the Sellers of all consideration in accordance with the
amounts set forth opposite each Seller's name in the purchase price
column on Exhibit A hereto, (ii) transfer the Share Purchase Price to an
account designated by the Purchaser, and (iii) transfer all interest
accrued on the Share Purchase Price from the date hereof to an account
designated by the Purchaser.
(b) Stock Purchase Closing. Upon receipt by the Escrow Agent of
written confirmation that the Stock Purchase Closing has occurred subject
only to transfer of the Escrowed Shares and the Share Purchase Price, in
the form of Exhibit B attached hereto, jointly signed by the Purchaser
and each of the Sellers, the Escrow Agent shall (i) release the Escrowed
Shares to the Purchaser or its designee, (ii) transfer the Share
Purchase Price to an account designated by the Sellers, and (iii)
transfer all interest accrued on the Share Purchase Price from the date
hereof to an account designated by the Purchaser.
(c) Into the registry of a court in accordance with Sections 8 or
16 hereof.
5. Tax Matters. The Parties shall provide the Escrow Agent with
their taxpayer identification numbers documented by an appropriate Form W-8
or Form W-9 upon execution of this Escrow Agreement. Failure so to provide
such forms may prevent or delay disbursements from the Deposit and may also
result in the assessment of a penalty and the Escrow Agent's being required
to withhold tax on any interest or other income earned on the Share Purchase
Price. Any payments of income shall be subject to applicable withholding
regulations then in force in the United States or any other jurisdiction,
as applicable.
6. Scope of Undertaking. The Escrow Agent's duties and
responsibilities in connection with this Escrow Agreement shall be purely
ministerial and shall be limited to those expressly set forth in this Escrow
Agreement. The Escrow Agent is not a principal, participant or beneficiary
in any transaction underlying this Escrow Agreement and shall have no duty to
inquire beyond the terms and provisions hereof. The Escrow Agent shall have
no responsibility or obligation of any kind in connection with this Escrow
Agreement or the Deposit and shall not be required to deliver the Deposit or
take any action with respect to any matters that might arise in connection
therewith, other than to receive, hold and release the Deposit as herein
provided. Without limiting the generality of the foregoing, it is hereby
expressly agreed and stipulated by the parties hereto that the Escrow Agent
shall not be required to exercise any discretion hereunder and shall have no
investment or management responsibility and, accordingly, shall have no duty
to, or liability for its failure to, provide investment recommendations or
investment advice to the Parties. The Escrow Agent shall not be liable for
any error in judgment, any act or omission, any mistake of law or fact, or
for anything it may do or refrain from doing in connection herewith, except
for, subject to Section 7 hereinbelow, its own willful misconduct or
3
<PAGE>
<PAGE> 25
gross negligence. It is the intention of the parties hereto that the Escrow
Agent shall never be required to use, advance or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
or the exercise of any of its rights and powers hereunder.
7. Reliance; Liability. The Escrow Agent may rely on, and shall
not be liable for acting or refraining from acting in accordance with, any
written notice, instruction or request or other paper furnished to it
hereunder or pursuant hereto and believed by it to have been signed or
presented by the proper party or parties. The Escrow Agent shall be
responsible for holding and disbursing the Deposit pursuant to this Escrow
Agreement; provided, however, that in no event shall the Escrow Agent be
-------- -------
liable for any lost profits, lost savings or other special, exemplary,
consequential or incidental damages in excess of the Escrow Agent's fee
hereunder and provided further that the Escrow Agent shall have no liability
-------- -------
for any loss arising from any cause beyond its control, including, but not
limited to, the following: (a) acts of God, force majeure, including,
without limitation, war (whether or not declared or existing), revolution,
insurrection, riot, civil commotion, accident, fire, explosion, stoppage of
labor, strikes and other differences with employees; (b) the act, failure or
neglect of any Party or any agent or correspondent or any other person
selected by the Escrow Agent; (c) any delay, error, omission or default of
any mail, courier, telegraph, cable or wireless agency or operator; or (d)
the acts or edicts of any government or governmental agency or other group or
entity exercising governmental powers. The Escrow Agent is not responsible
or liable in any manner whatsoever for the sufficiency, correctness,
genuineness or validity of the subject matter of this Escrow Agreement or any
part hereof or for the transaction or transactions requiring or underlying
the execution of this Escrow Agreement, the form or execution hereof or for
the identity or authority of any person executing this Escrow Agreement or
any part hereof or receiving the Deposit.
8. Right of Interpleader. Should any controversy arise involving
the parties hereto or any of them or any other person, firm or entity with
respect to this Escrow Agreement or the Deposit, or should a substitute
escrow agent fail to be designated as provided in Section 16 hereof, or if
the Escrow Agent should be in doubt as to what action to take, the Escrow
Agent shall have the right, but not the obligation, either to (a) withhold
delivery of the Deposit until the controversy is resolved, the conflicting
demands are withdrawn or its doubt is resolved or (b) institute a petition
for interpleader in any court of competent jurisdiction to determine the
rights of the parties hereto. Should a petition for interpleader be
instituted, or should the Escrow Agent be threatened with litigation or
become involved in litigation in any manner whatsoever in connection with
this Escrow Agreement or the Deposit, the Parties hereby jointly and
severally agree to reimburse the Escrow Agent for its attorneys' fees and any
and all other expenses, losses, costs and damages incurred by the Escrow
Agent in connection with or resulting from such threatened or actual
litigation or arbitration prior to any disbursement hereunder; provided,
--------
however, that the Purchaser and the Sellers agree between themselves that the
-------
maximum liability for any such fees (x) for the Purchaser shall not exceed
one half of the aggregate amount required to be paid or reimbursed hereunder,
and (y) for the Sellers shall not exceed one half of the aggregate amount
required to be paid or reimbursed hereunder.
9. Indemnification. The Parties hereby jointly and severally
indemnify the Escrow Agent, its officers, directors, partners, employees and
agents (each herein called an "Indemnified Party") against, and hold each
-----------------
Indemnified Party harmless from, any and all expenses, including, without
limitation, attorneys' fees and court costs, losses, costs, damages and
claims, including, but not limited to, costs of investigation, litigation
and arbitration, tax
4
<PAGE>
<PAGE> 26
liability and loss on investments suffered or incurred by any Indemnified
Party in connection with or arising from or out of this Escrow Agreement,
except such acts or omissions as may result from the willful misconduct or
gross negligence of such Indemnified Party. IT IS THE EXPRESS INTENT OF
EACH OF THE PARTIES TO INDEMNIFY EACH OF THE INDEMNIFIED PARTIES FOR, AND
HOLD THEM HARMLESS AGAINST, THEIR OWN NEGLIGENT ACTS OR OMISSIONS; provided,
--------
however, that the Purchaser and the Sellers agree between themselves that the
-------
maximum liability for any such fees (x) for the Purchaser shall not exceed
one half of the aggregate amount required to be paid or reimbursed hereunder,
and (y) for the Sellers shall not exceed one half of the aggregate amount
required to be paid or reimbursed hereunder.
10. Compensation and Reimbursement of Expenses. The Parties hereby
agree to pay the Escrow Agent for its services hereunder in accordance with
the Escrow Agent's fee schedule as attached as Schedule I hereto as in effect
from time to time and to pay all expenses incurred by the Escrow Agent in
connection with the performance of its duties and enforcement of its rights
hereunder and otherwise in connection with the preparation, operation,
administration and enforcement of this Escrow Agreement, including, without
limitation, attorneys' fees, brokerage costs and related expenses incurred by
the Escrow Agent. The foregoing notwithstanding, the Parties shall be
jointly and severally liable to the Escrow Agent for the payment of all such
fees and expenses. In the event the Parties for any reason fail to pay any
such fees and expenses as and when the same are due, such unpaid fees and
expenses shall be charged to and set off and paid from the Share Purchase
Price by the Escrow Agent without any further notice; provided, however, that
-------- -------
the Purchaser and the Sellers agree between themselves that the maximum
liability for any such fees (x) for the Purchaser shall not exceed one half
of the aggregate amount required to be paid or reimbursed hereunder, and (y)
for the Sellers shall not exceed one half of the aggregate amount required to
be paid or reimbursed hereunder.
11. Lien. Each of the Parties hereby grants to the Escrow Agent
a lien upon, and security interest in, all its right, title and interest in
and to all of the Deposit as security for the payment and performance of its
obligations owing to the Escrow Agent hereunder, including, without
limitation, its obligations of payment, indemnity and reimbursement provided
for hereunder, which lien and security interest may be enforced by the Escrow
Agent without notice by charging and setting-off and paying from, the Deposit
any and all amounts then owing to it pursuant to this Escrow Agreement or by
appropriate foreclosure proceedings.
12. Funds Transfer. In the event funds transfer instructions
are given (other than in writing at the time of execution of the Escrow
Agreement), whether in writing, by telefax, or otherwise, the Escrow Agent
is authorized to seek confirmation of such instructions by telephone
call-back to the person or person designated on Schedule II hereto, and the
Escrow Agent may rely upon the confirmations of anyone purporting to be the
person or persons so designated. The persons and telephone numbers for
call-backs may be changed only in writing actually received and acknowledged
by the Escrow Agent. The parties to this Escrow Agreement acknowledge that
such security procedure is commercially reasonable.
It is understood that the Escrow Agent and the beneficiary's bank
in any funds transfer may rely solely upon any account numbers or similar
identifying number provided by either of the other parties hereto to identify
(i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary
bank. The Escrow Agent may apply any of the escrowed funds for any
5
<PAGE>
<PAGE> 27
payment order it executes using any such identifying number, even where its
use may result in a person other than the beneficiary being paid, or the
transfer of funds to a bank other than the beneficiary's bank or
an intermediary bank, designated.
13. Notices. Any notice or other communication required or
permitted to be given under this Escrow Agreement by any party hereto to any
other party hereto shall be considered as properly given if in writing and
(a) delivered against receipt therefor, (b) mailed by registered or certified
mail, return receipt requested and postage prepaid or (c) sent by telefax
machine, in each case to the address or telefax number, as the case may be,
set forth below:
If to the Escrow Agent:
Union Planters Bank
8182 Maryland Avenue, First Floor
Clayton, Missouri 63105
Attn: Michael Ross
Telefax No.: (314) 615-2323
If to the Sellers:
c/o P.A. Novelly
8182 Maryland Avenue, Fourth Floor
Clayton, Missouri 63105
Telecopy: (314) 889-0211
with copies to:
James F. Sanders, Esq.
8182 Maryland Avenue, Third Floor
Clayton, Missouri 63105
Telecopy: (314) 889-0219
and to:
Lewis Rice & Fingersh, L.C.
500 North Broadway
St. Louis, Missouri 63102
Telecopy: (314) 612-7721
Attention: Douglas D. Hommert, Esq.
If to the Purchaser:
Rosemore, Inc.
One North Charles Street, Suite 2300
Baltimore, Maryland 21201
Telecopy: (410) 347-7081
Attention: Edward L. Rosenberg
President and Chief Executive Officer
with copies to:
6
<PAGE>
<PAGE> 28
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telecopy: (212) 848-7179
Attention: John Marzulli, Jr., Esq.
Except to the extent otherwise provided in the second paragraph of Section 3
hereinabove, delivery of any communication given in accordance herewith shall
be effective only upon actual receipt thereof by the party or parties to whom
such communication is directed. Any party to this Escrow Agreement may change
the address to which communications hereunder are to be directed by giving
written notice to the other party or parties hereto in the manner provided in
this section.
14. Consultation with Legal Counsel. The Escrow Agent may consult
with its counsel or other counsel satisfactory to it concerning any question
relating to its duties or responsibilities hereunder or otherwise in
connection herewith and shall not be liable for any action taken, suffered or
omitted by it in good faith upon the advice of such counsel.
15. Governing Law; Dispute Resolution. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York applicable to contracts executed in and to be performed entirely
within that state. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO SHALL BE BROUGHT IN THE COURTS OF
THE STATE OF ILLINOIS LOCATED IN THE CITY OF CHICAGO, COOK COUNTY, OR THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN
DIVISION, (COLLECTIVELY, A "NORTHERN ILLINOIS COURT") OR, IF A NORTHERN
-----------------------
ILLINOIS COURT REFUSES TO TAKE JURISDICTION OVER SUCH LEGAL ACTION OR
PROCEEDING, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND OR
THE COURTS OF THE STATE OF MARYLAND AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PARTY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF SUCH COURTS.
THE PARTIES IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH ANY OF
THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. EACH PARTY IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS PROVIDED HEREIN, SUCH SERVICE
TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
16. Resignation. The Escrow Agent may resign hereunder upon
twenty (20) days' prior notice to the Parties. Upon the effective date
of such resignation, the Escrow Agent shall deliver the Deposit to any
substitute escrow agent designated by the Parties in writing. If the Parties
fail to designate a substitute escrow agent within twenty (20) days after the
giving of
7
<PAGE>
<PAGE> 29
such notice, the Escrow Agent may institute a petition for interpleader.
The Escrow Agent's sole responsibility after such 20-day notice period
expires shall be to hold the Deposit and to deliver the same to a designated
substitute escrow agent, if any, or in accordance with the directions of a
final order or judgment of a court of competent jurisdiction, at which time
of delivery the Escrow Agent's obligations hereunder shall cease and
terminate.
17. Severability. If one or more of the provisions hereof shall for
any reason be held to be invalid, illegal or unenforceable in any respect
under applicable law, such invalidity, illegality or unenforceability shall
not affect any other provisions hereof, and this Escrow Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein, and the remaining provisions hereof shall be given
full force and effect.
18. Termination. This Escrow Agreement shall terminate upon the
release, in accordance with Section 4, of the Deposit in full; provided,
--------
however, that in the event all fee, expenses, costs and other amounts
-------
required to be paid to the Escrow Agent hereunder are not fully and finally
paid prior to termination, the provisions of Section 10 hereof shall survive
the termination hereof and, provided further that the last two sentences of
-------- -------
Section 8 hereof and the provisions of Section 9 hereof shall, in any event,
survive the termination hereof.
19. General. The section headings contained in this Escrow
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Escrow Agreement. This Escrow Agreement
and any affidavit, certificate, instrument, agreement or other document
required to be provided hereunder may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute but one and the same instrument. Unless the
context shall otherwise require, the singular shall include the plural and
vice versa, and each pronoun in any gender shall include all other genders.
The terms and provisions of this Escrow Agreement constitute the entire
agreement among the parties hereto in respect of the subject matter hereof,
and neither the Parties nor the Escrow Agent has relied on any
representations or agreements of the other, except as specifically set forth
in this Escrow Agreement. This Escrow Agreement or any provision hereof may
be amended, modified, waived or terminated only by written instrument duly
signed by the parties hereto. This Escrow Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective
heirs, devisees, executors, administrators, personal representatives,
successors, trustees, receivers and permitted assigns. This Escrow Agreement
is for the sole and exclusive benefit of the Parties and the Escrow Agent,
and nothing in this Escrow Agreement, express or implied, is intended to
confer or shall be construed as conferring upon any other person any rights,
remedies or any other type or types of benefits.
20. Counterpart Facsimile Execution. For purposes of this Escrow
Agreement, a document (or signature page thereto) signed and transmitted by
facsimile machine or telecopier is to be treated as an original document.
The signature of any party thereon, for purposes hereof, is to be considered
as an original signature, and the document transmitted is to be considered to
have the same binding effect as an original signature on an original
document. At the request of any party, any facsimile or telecopy document is
to be re-executed in original form by the parties who executed the facsimile
or telecopy document. No party may raise the use of a facsimile machine or
telecopier or the fact that any signature was transmitted through the use of
a facsimile or telecopier machine as a defense to the enforcement of this
Escrow Agreement or any amendment or other document executed in compliance
with this Section 20.
8
<PAGE>
<PAGE> 30
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement to be effective as of the date first above written.
P.A. NOVELLY, II
------------------------------------------
Title: Trustee, NOVELLY EXEMPT TRUST U/I
Dated August 12, 1992
JOHN K. PRUELLAGE
------------------------------------------
Title: Trustee, NOVELLY EXEMPT TRUST U/I
Dated August 12, 1992
DOUGLAS D. HOMMERT
------------------------------------------
Title: Trustee, THE CAPITAL TRUST U/I
Dated February 4, 1994
WILLIAM LAUBER
------------------------------------------
Title: Trustee, THE CAPITAL TRUST U/I
Dated February 4, 1994
PAUL A. NOVELLY
------------------------------------------
Title: Trustee, PAUL A. NOVELLY
LIVING TRUST U/I
Dated July 28, 1982, as amended
GOLNOY BARGE COMPANY, INC.
By:
--------------------------------------
Name: P.A. Novelly, II
Title: Vice President
9
<PAGE>
<PAGE> 31
ROSEMORE, INC.
By:
--------------------------------------
Name: Edward L. Rosenberg
Title: President and Chief
Executive Officer
UNION PLANTERS BANK, AS ESCROW AGENT
By:
--------------------------------------
Name:
Title:
10
<PAGE>
<PAGE> 32
EXHIBIT A
<TABLE>
<CAPTION>
Seller Class A Common Shares Class B Common Shares Total Shares Purchase Price
------ --------------------- --------------------- ------------ --------------
<S> <C> <C> <C> <C>
P.A. Novelly, II and
John K. Pruellage, as Trustees
of The Novelly Exempt Trust U/I
Dated August 12, 1992 516,600 182,800 699,400 $7,343,700.00
William Lauber and
Douglas D. Hommert, as
Trustees of The
Capital Trust U/I
Dated February 4, 1994 142,800 142,800 $1,499,400.00
Paul A. Novelly, as
Trustee of the
Paul A. Novelly Living Trust U/I
Dated July 28, 1982, as amended 16,325 16,325 $ 171,412.50
Golnoy Barge Company, Inc. 32,650 32,650 $ 342,825.00
Total: 708,375 182,800 891,175 $9,357,337.50
====== ======= ======= ======= =============
</TABLE>
<PAGE>
<PAGE> 33
EXHIBIT B
FORM OF INSTRUCTION FOR RELEASE OF THE DEPOSIT
----------------------------------------------
To: Union Planters Bank
8182 Maryland Avenue, First Floor
Clayton, Missouri 63105
Attn: Michael Ross
Sir:
Reference is made to the Escrow Agreement, dated as of December 17, 2000
among P.A. Novelly, II and John K. Pruellage, as trustees for the Novelly
Exempt Trust U/I dated August 12, 1992, Douglas D. Hommert and William
Lauber, as trustees for the Capital Trust U/I dated February 4, 1994, Paul A.
Novelly, as trustee of the Paul A. Novelly Living Trust U/I dated July 28,
1982, as amended, Golnoy Barge Company, Inc. and Rosemore, Inc. and Union
Planters Bank. Capitalized terms used and not otherwise defined in this
instruction letter are used with the meanings set forth in the Escrow
Agreement. Each of the undersigned confirms to you that the Stock Purchase
Closing has occurred, subject only to the transfer of the Escrowed Shares and
the Share Purchase Price.
P.A. NOVELLY, II
------------------------------------------
Title: Trustee, NOVELLY EXEMPT TRUST U/I
Dated August 12, 1992
JOHN K. PRUELLAGE
------------------------------------------
Title: Trustee, NOVELLY EXEMPT TRUST U/I
Dated August 12, 1992
<PAGE>
<PAGE> 34
DOUGLAS D. HOMMERT
------------------------------------------
Title: Trustee, THE CAPITAL TRUST U/I
Dated February 4, 1994
WILLIAM LAUBER
------------------------------------------
Title: Trustee, THE CAPITAL TRUST U/I
Dated February 4, 1994
PAUL A. NOVELLY
------------------------------------------
Title: Trustee, PAUL A. NOVELLY
LIVING TRUST U/I
Dated July 28, 1982, as amended
GOLNOY BARGE COMPANY, INC.
------------------------------------------
Name: P.A. Novelly, II
Title: Vice President
ROSEMORE, INC.
------------------------------------------
Name: Edward L. Rosenberg
Title: President and Chief
Executive Officer
<PAGE>
<PAGE> 35
SCHEDULE I
ESCROW AGENT'S FEE SCHEDULE
---------------------------
<PAGE>
<PAGE> 36
SCHEDULE II
DISBURSEMENT CONFIRMATION TELEPHONE NUMBERS
-------------------------------------------
TELEPHONE NUMBER(S) FOR CALL-BACKS AND PERSON(S)
DESIGNATED TO CONFIRM DEPOSIT RELEASE INSTRUCTIONS
If to the Sellers:
Name Telephone Number
---- ----------------
1.
------------------------------------ ------------------------------------
2.
------------------------------------ ------------------------------------
If to the Purchaser:
Name Telephone Number
---- ----------------
1.
------------------------------------ ------------------------------------
2.
------------------------------------ ------------------------------------
Telephone call-backs shall be made to both parties if joint instructions are
required pursuant to the Escrow Agreement.
