<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
(AMENDMENT NO. 5)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
ORANGE-CO, INC.
(NAME OF SUBJECT COMPANY)
RESERVOIR CAPITAL MANAGEMENT, L.L.C., RESERVOIR CAPITAL GROUP, L.L.C.,
RESERVOIR CAPITAL PARTNERS, L.P., RESERVOIR CAPITAL ASSOCIATES, L.P.,
RESERVOIR CAPITAL MASTER FUND, L.P. AND OJ ACQUISITION CORP.
(BIDDERS)
COMMON STOCK, $.50 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
684177108
(CUSIP NUMBER OF CLASS OF SECURITIES)
CRAIG A. HUFF
GREGG M. ZEITLIN
RESERVOIR CAPITAL GROUP, L.L.C.
650 MADISON AVENUE, 26TH FLOOR
NEW YORK, NEW YORK 10022
(212) 610-9000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
COPIES TO:
MARK L. WEISSLER
MILBANK, TWEED, HADLEY & MCCLOY LLP
1 CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005
(212) 530-5000
CALCULATION OF FILING FEE
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<TABLE>
<S> <C>
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
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$34,421,205 $6,884
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</TABLE>
* For purposes of calculating the filing fee only. Based upon 4,904,315 shares
of common stock, par value $.50 per share, of Orange-co, Inc. outstanding and
not owned by Parent on October 1, 1999, plus the number of Shares issuable
upon the exercise of all outstanding options and warrants.
** The fee, calculated in accordance with Rule 0-11(d) of the Securities
Exchange Act of 1934, is 1/50th of one percent of the aggregate transaction
valuation.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and date of its filing.
<TABLE>
<S> <C>
Amount Previously Paid: None Filing Party: Not applicable
Form or Registration No.: Not applicable Date Filed: Not applicable
</TABLE>
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<PAGE> 2
CUSIP NO. 684177108 14D-1 Page 1 of 6 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Reservoir Capital Management, L.L.C.
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2. Check the Appropriate Box if a Member of a Group (a)[ ]
(b)[X]
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3. SEC Use Only
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4. Sources of Funds
WC
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e)
or 2(f)
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6. Citizenship or Place of Organization
Delaware
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7. Aggregate Amount Beneficially Owned by Each Reporting Person
5,405,660
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8. Check Box if the Aggregate Amount in Row (7) Excludes Certain Shares
[ ]
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9. Percent of Class Represented by Amount in Row (7)
52.4%
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10. Type of Reporting Person
OO
1
<PAGE> 3
CUSIP NO. 684177108 14D-1 Page 2 of 6 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Reservoir Capital Group, L.L.C.
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2. Check the Appropriate Box if a Member of a Group (a)[ ]
(b)[X]
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3. SEC Use Only
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4. Sources of Funds
WC
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e)
or 2(f)
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6. Citizenship or Place of Organization
Delaware
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7. Aggregate Amount Beneficially Owned by Each Reporting Person
5,405,660
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8. Check Box if the Aggregate Amount in Row (7) Excludes Certain Shares
[ ]
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9. Percent of Class Represented by Amount in Row (7)
52.4%
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10. Type of Reporting Person
OO
2
<PAGE> 4
CUSIP NO. 684177108 14D-1 Page 3 of 6 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Reservoir Capital Partners, L.P.
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2. Check the Appropriate Box if a Member of a Group (a)[ ]
(b)[X]
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3. SEC Use Only
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4. Sources of Funds
WC
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e)
or 2(f)
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6. Citizenship or Place of Organization
Delaware
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7. Aggregate Amount Beneficially Owned by Each Reporting Person
4,634,272
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8. Check Box if the Aggregate Amount in Row (7) Excludes Certain Shares
[ ]
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9. Percent of Class Represented by Amount in Row (7)
44.9%
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10. Type of Reporting Person
OO
3
<PAGE> 5
CUSIP NO. 684177108 14D-1 Page 4 of 6 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Reservoir Capital Associates, L.P.
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2. Check the Appropriate Box if a Member of a Group (a)[ ]
(b)[X]
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3. SEC Use Only
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4. Sources of Funds
WC
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e)
or 2(f)
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6. Citizenship or Place of Organization
Delaware
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7. Aggregate Amount Beneficially Owned by Each Reporting Person
12,433
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8. Check Box if the Aggregate Amount in Row (7) Excludes Certain Shares
[ ]
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9. Percent of Class Represented by Amount in Row (7)
0.1%
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10. Type of Reporting Person
OO
4
<PAGE> 6
CUSIP NO. 684177108 14D-1 Page 5 of 6 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Reservoir Capital Master Fund, L.P.
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2. Check the Appropriate Box if a Member of a Group (a)[ ]
(b)[X]
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3. SEC Use Only
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4. Sources of Funds
WC
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e)
or 2(f)
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6. Citizenship or Place of Organization
Delaware
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7. Aggregate Amount Beneficially Owned by Each Reporting Person
758,955
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8. Check Box if the Aggregate Amount in Row (7) Excludes Certain Shares
[ ]
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9. Percent of Class Represented by Amount in Row (7)
7.4%
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10. Type of Reporting Person
OO
5
<PAGE> 7
CUSIP NO. 684177108 14D-1 Page 6 of 6 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
OJ Acquisition Corp.
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2. Check the Appropriate Box if a Member of a Group (a)[ ]
(b)[X]
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3. SEC Use Only
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4. Sources of Funds
WC
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5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(e)
or 2(f)
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6. Citizenship or Place of Organization
Delaware
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7. Aggregate Amount Beneficially Owned by Each Reporting Person
5,405,660
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8. Check Box if the Aggregate Amount in Row (7) Excludes Certain Shares
[ ]
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9. Percent of Class Represented by Amount in Row (7)
52.4%
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10. Type of Reporting Person
OO
6
<PAGE> 8
This Schedule 14D-1 Tender Offer Statement and Amendment No. 5 to Schedule
13D relates to the offer by OJ Acquisition Corp., a Florida corporation
("Purchaser"), all the stock of which is owned by Reservoir Capital Partners,
L.P., a Delaware limited partnership ("RCP"), Reservoir Capital Associates,
L.P., a Delaware limited partnership ("RCA") and Reservoir Capital Master Fund,
L.P., a limited partnership organized under the laws of the Cayman Islands
("RCMF"), to purchase all outstanding shares of common stock, par value $.50 per
share (the "Shares"), not owned by them, of Orange-co, Inc., a Florida
corporation (the "Company"), at a purchase price of $7.00 per Share, net to the
seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase and in the related Letter of
Transmittal (which together constitute the "Offer"), which are annexed to and
filed with this Schedule 14D-1 as Exhibits (a)(1) and (a)(2), respectively. The
general partner of each of RCP, RCA and RCMF is Reservoir Capital Group, L.L.C.,
a Delaware limited liability company ("RCG"), whose managing member is Reservoir
Capital Management, L.L.C., a Delaware limited liability company ("RCM" and,
together with RCP, RCA, RCMF and RCG, the "Parent"). Purchaser has been formed
by Parent in connection with the Offer and the transactions contemplated
thereby.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Orange-co, Inc. The address of the
Company's principal executive offices is 2020 U.S. Highway 17 South, P.O. Box
2158, Bartow, Florida 33831.
(b) Reference is hereby made to the information set forth in the
"Introduction," Section 1 ("Terms of the Offer") and Section 11 ("Purpose of the
Offer; the Merger Agreement; Appraisal Rights; Plans for the Company") of the
Offer to Purchase, which is incorporated herein by reference.
(c) Reference is hereby made to the information set forth in Section 6
("Price Range of the Shares; Dividends") of the Offer to Purchase, which is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d) This Statement is being filed on behalf of Parent and Purchaser for
purposes of the Schedule 14D-1. Reference is hereby made to the information set
forth in the "Introduction," Section 9 ("Certain Information Concerning Parent
and Purchaser") and Schedule I (Control Persons and Executive Officers of Parent
and Purchaser) of the Offer to Purchase, which is incorporated herein by
reference.
(e)-(f) During the last five years, none of Parent or Purchaser, or, to the
best of their knowledge, any of the persons listed in Schedule I (Control
Persons and Executive Officers of Parent and Purchaser) of the Offer to
Purchase, which is incorporated herein by reference, has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
was a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
activities subject to, Federal or State securities laws or finding any violation
of such laws.
(g) Reference is hereby made to the information set forth in Schedule I
(Control Persons and Executive Officers of Parent and Purchaser) of the Offer to
Purchase, which is incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)-(b) Reference is hereby made to the information set forth in the
"Introduction," Section 9 ("Certain Information Concerning Parent and
Purchaser"), Section 10 ("Background of the Offer; Purchase of Shares; Past
Contacts with the Company") and Section 11 ("Purpose of the Offer; the Merger
Agreement; Appraisal Rights; Plans for the Company") of the Offer to Purchase,
which is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) Reference is made to the information set forth in Section 12 ("Source
and Amount of Funds") of the Offer to Purchase, which is incorporated herein by
reference.
(b) Not applicable.
(c) Not applicable.
7
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ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(g) Reference is hereby made to the information set forth in the
"Introduction," Section 7 ("Possible Effects of the Offer on the Market for the
Shares; NYSE Listing; Exchange Act Registration; Margin Regulations"), Section
10 ("Background of the Offer; Purchase of Shares; Past Contacts with the
Company"), Section 11 ("Purpose of the Offer; the Merger Agreement; Appraisal
Rights; Plans for the Company"), Section 12 ("Source and Amount of Funds") and
Section 13 ("Dividends and Distributions") of the Offer to Purchase, which is
incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) Reference is hereby made to the information set forth in Section 9
("Certain Information Concerning Parent and Purchaser") and Section 10
("Background of the Offer; Purchase of Shares; Past Contacts with the Company").
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
Reference is hereby made to the information set forth in the
"Introduction," Section 9 ("Certain Information Concerning Parent and
Purchaser"), Section 10 ("Background of the Offer; Purchase of Shares; Past
Contacts with the Company"), Section 11 ("Purpose of the Offer; the Merger
Agreement; Appraisal Rights; Plans for the Company") and Section 15 ("Certain
Legal Matters; Required Regulatory Approvals") of the Offer to Purchase, which
is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
Reference is hereby made to the information set forth in Section 16
("Certain Fees and Expenses") of the Offer to Purchase, which is incorporated
herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Not applicable.
ITEM 10. ADDITIONAL INFORMATION.
(a) Reference is hereby made to the information set forth in the
"Introduction," Section 10 ("Background of the Offer; Purchase of Shares; Past
Contacts with the Company") and Section 11 ("Purpose of the Offer; the Merger
Agreement; Appraisal Rights; Plans for the Company") of the Offer to Purchase,
which is incorporated herein by reference.
(b)-(c) Reference is hereby made to the information set forth in the
"Introduction," Section 11 ("Purpose of the Offer; the Merger Agreement;
Appraisal Rights; Plans for the Company") and Section 15 ("Certain Legal
Matters; Required Regulatory Approvals") of the Offer to Purchase, which is
incorporated herein by reference.
(d) Reference is hereby made to the information set forth in Section 7
("Possible Effects of the Offer on the Market for the Shares; NYSE Listing;
Exchange Act Registration; Margin Regulations") of the Offer to Purchase, which
is incorporated herein by reference.
(e) Reference is hereby made to the information set forth in Section 15
("Certain Legal Matters; Required Regulatory Approvals") of the Offer to
Purchase, which is incorporated herein by reference.
(f) Reference is hereby made to the entire texts of the Offer to Purchase
and the related Letter of Transmittal, which are incorporated herein by
reference.
8
<PAGE> 10
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<CAPTION>
<S> <C> <C>
(a)(1) -- Offer to Purchase, dated October 1, 1999.
(a)(2) -- Letter of Transmittal.
(a)(3) -- Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees.
(a)(4) -- Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(5) -- Notice of Guaranteed Delivery.
(a)(6) -- Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(7) -- Form of Summary Advertisement dated October 1, 1999.
*(c)(1) -- Letter of Intent, dated as of July 14, 1999, by and among
Ben Hill Griffin, III, Ben Hill Griffin, Inc. and Reservoir
Capital Group, L.L.C.
*(c)(2) -- Letter of Intent, dated as of July 14, 1999, by and among
Pasco Acquisition, Inc., the Company, Ben Hill Griffin, III,
Ben Hill Griffin, Inc. and Reservoir Capital Group, L.L.C.
+(c)(3) -- Extension Letter, dated as of August 19, 1999, by and among
Ben Hill Griffin, III, Ben Hill Griffin, Inc., Reservoir
Capital Group, L.L.C. and Pasco Acquisition, Inc.
++(c)(4) -- Second Extension Letter, dated as of September 10, 1999, by
and among Ben Hill Griffin, III, Ben Hill Griffin, Inc.,
Reservoir Capital Group, L.L.C. and Pasco Acquisition, Inc.
+++(c)(5) -- Third Extension Letter, dated as of September 17, 1999, by
and among Ben Hill Griffin, III, Ben Hill Griffin, Inc.,
Reservoir Capital Group, L.L.C. and Pasco Acquisition, Inc.
++++(c)(6) -- Agreement and Plan of Merger, dated as of September 27,
1999, by and among the Company, Purchaser and Parent.
++++(c)(7) -- Agreement, dated as of September 27, 1999, by and among
Reservoir Capital Partners, L.P., Reservoir Capital
Associates, L.P., Reservoir Capital Master Fund, L.P., OJ
Acquisition Corp. and Pasco Acquisition, Inc.
(d) -- Not applicable.
(e) -- Not applicable.
(f) -- Not applicable.
</TABLE>
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<TABLE>
<S> <C>
* Filed as an exhibit to Parent's Schedule 13D dated July 26,
1999 and incorporated herein by reference.
+ Filed as an exhibit to Parent's Schedule 13D -- Amendment
No. 1 dated August 23, 1999 and incorporated herein by
reference.
++ Filed as an exhibit to Parent's Schedule 13D -- Amendment
No. 2 dated September 14, 1999 and incorporated herein by
reference.
+++ Filed as an exhibit to Parent's Schedule 13D -- Amendment
No. 3 dated September 21, 1999 and incorporated herein by
reference.
++++ Filed as an exhibit to Parent's Schedule 13D -- Amendment
No. 4 dated September 30, 1999 and incorporated herein by
reference.
</TABLE>
9
<PAGE> 11
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: October 1, 1999
RESERVOIR CAPITAL MANAGEMENT, L.L.C.
By: /s/ Daniel H. Stern
------------------------------------
Name: Daniel H. Stern
Title: President
RESERVOIR CAPITAL GROUP, L.L.C.
By: /s/ Daniel H. Stern
------------------------------------
Name: Daniel H. Stern
Title: President
RESERVOIR CAPITAL PARTNERS, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By: /s/ Daniel H. Stern
------------------------------------
Name: Daniel H. Stern
Title: President
RESERVOIR CAPITAL ASSOCIATES L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By: /s/ Daniel H. Stern
------------------------------------
Name: Daniel H. Stern
Title: President
10
<PAGE> 12
RESERVOIR CAPITAL MASTER FUND, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By: /s/ Daniel H. Stern
------------------------------------
Name: Daniel H. Stern
Title: President
OJ ACQUISITION CORP.
By: /s/ Craig A. Huff
------------------------------------
Name: Craig A. Huff
Title: President
11
<PAGE> 13
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
(a)(1) -- Offer to Purchase, dated October 1, 1999.
(a)(2) -- Letter of Transmittal.
(a)(3) -- Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees.
(a)(4) -- Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(5) -- Notice of Guaranteed Delivery.
(a)(6) -- Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(7) -- Form of Summary Advertisement dated October 1, 1999.
*(c)(1) -- Letter of Intent, dated as of July 14, 1999, by and among
Ben Hill Griffin, III, Ben Hill Griffin, Inc. and Reservoir
Capital Group, L.L.C.
*(c)(2) -- Letter of Intent, dated as of July 14, 1999, by and among
Pasco Acquisition, Inc., the Company, Ben Hill Griffin, III,
Ben Hill Griffin, Inc. and Reservoir Capital Group, L.L.C.
+(c)(3) -- Extension Letter, dated as of August 19, 1999, by and among
Ben Hill Griffin, III, Ben Hill Griffin, Inc., Reservoir
Capital Group, L.L.C. and Pasco Acquisition, Inc.
++(c)(4) -- Second Extension Letter, dated as of September 10, 1999, by
and among Ben Hill Griffin, III, Ben Hill Griffin, Inc.,
Reservoir Capital Group, L.L.C. and Pasco Acquisition, Inc.
+++(c)(5) -- Third Extension Letter, dated as of September 17, 1999, by
and among Ben Hill Griffin, III, Ben Hill Griffin, Inc.,
Reservoir Capital Group, L.L.C. and Pasco Acquisition, Inc.
++++(c)(6) -- Agreement and Plan of Merger, dated as of September 27,
1999, by and among the Company, Purchaser and Parent.
++++(c)(7) -- Agreement, dated as of September 27, 1999, by and among
Reservoir Capital Partners, L.P., Reservoir Capital
Associates, L.P., Reservoir Capital Master Fund, L.P., OJ
Acquisition Corp., and Pasco Acquisition, Inc.
(d) -- Not applicable.
(e) -- Not applicable.
(f) -- Not applicable.
</TABLE>
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<TABLE>
<S> <C>
* Filed as an exhibit to Parent's Schedule 13D dated July 26,
1999 and incorporated herein by reference.
+ Filed as an exhibit to Parent's Schedule 13D -- Amendment
No. 1 dated August 23, 1999 and incorporated herein by
reference.
++ Filed as an exhibit to Parent's Schedule 13D -- Amendment
No. 2 dated September 14, 1999 and incorporated herein by
reference.
+++ Filed as an exhibit to Parent's Schedule 13D -- Amendment
No. 3 dated September 21, 1999 and incorporated herein by
reference.
++++ Filed as an exhibit to Parent's Schedule 13D -- Amendment
No. 4 dated September 30, 1999 and incorporated herein by
reference.
</TABLE>
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
OF
ORANGE-CO, INC.
BY
OJ ACQUISITION CORP.
WHICH IS INDIRECTLY CONTROLLED BY
RESERVOIR CAPITAL GROUP, L.L.C.
AT
$7.00 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, OCTOBER 29, 1999, UNLESS THE OFFER IS EXTENDED.
THE BOARD OF DIRECTORS OF THE COMPANY UNANIMOUSLY HAS DETERMINED THAT THE
OFFER AND THE MERGER (AS SUCH TERMS ARE DEFINED HEREIN), ARE FAIR TO, ADVISABLE
AND IN THE BEST INTERESTS OF THE COMPANY AND ITS UNAFFILIATED SHAREHOLDERS, HAS
APPROVED THE OFFER AND ADOPTED THE MERGER AGREEMENT AND RECOMMENDS ACCEPTANCE OF
THE OFFER BY THE COMPANY'S UNAFFILIATED SHAREHOLDERS.
------------------
THE OFFER CONTAINS CERTAIN CONDITIONS. SEE SECTION 14.
------------------
IMPORTANT
Any shareholder desiring to tender all or any portion of such shareholder's
Shares (as defined herein) either should (a) complete and sign the Letter of
Transmittal (or a facsimile thereof) in accordance with the instructions in the
Letter of Transmittal and mail or deliver it together with the certificate(s)
representing tendered Shares and any other required documents to the Depositary
(as defined herein) or tender such Shares pursuant to the procedures for
book-entry transfer set forth in Section 3 or (b) request such shareholder's
broker, dealer, commercial bank, trust company or other nominee to effect such
transaction. A shareholder whose Shares are registered in the name of a broker,
dealer, commercial bank, trust company or other nominee must contact such
broker, dealer, commercial bank, trust company or other nominee if such
shareholder desires to tender such Shares.
A shareholder who desires to tender Shares and whose certificates
representing such Shares are not immediately available or who cannot comply with
the procedures for book-entry transfer on a timely basis may tender such Shares
by following the procedures for guaranteed delivery set forth in Section 3.
Questions and requests for assistance may be directed to the Information
Agent (as such term is defined herein) at its address and telephone number set
forth on the back cover of this Offer to Purchase. Additional copies of this
Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery
and other related materials may be obtained from the Information Agent or from
brokers, dealers, commercial banks, trust companies and other nominees.
October 1, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
1. TERMS OF THE OFFER.......................................... 2
2. ACCEPTANCE FOR PAYMENT AND PAYMENT.......................... 3
3. PROCEDURES FOR TENDERING SHARES............................. 4
4. WITHDRAWAL RIGHTS........................................... 7
5. CERTAIN TAX CONSEQUENCES.................................... 8
6. PRICE RANGE OF THE SHARES; DIVIDENDS........................ 8
7. POSSIBLE EFFECTS OF THE OFFER ON THE MARKET FOR THE
SHARES; NYSE LISTING; EXCHANGE ACT REGISTRATION; MARGIN
REGULATIONS 9
8. CERTAIN INFORMATION CONCERNING THE COMPANY.................. 10
9. CERTAIN INFORMATION CONCERNING PARENT AND PURCHASER......... 11
10. BACKGROUND OF THE OFFER; PURCHASE OF SHARES; PAST CONTACTS
WITH THE COMPANY 12
11. PURPOSE OF THE OFFER; THE MERGER AGREEMENT; APPRAISAL
RIGHTS; PLANS FOR THE COMPANY............................... 16
12. SOURCE AND AMOUNT OF FUNDS.................................. 23
13. DIVIDENDS AND DISTRIBUTIONS................................. 23
14. CERTAIN CONDITIONS OF THE OFFER............................. 24
15. CERTAIN LEGAL MATTERS; REQUIRED REGULATORY APPROVALS........ 25
16. CERTAIN FEES AND EXPENSES................................... 28
17. MISCELLANEOUS............................................... 28
</TABLE>
<PAGE> 3
TO: ALL HOLDERS OF SHARES OF COMMON STOCK OF
ORANGE-CO, INC.: INTRODUCTION
OJ Acquisition Corp., a Florida corporation ("Purchaser"), all the stock of
which is owned by Reservoir Capital Partners, L.P., a Delaware limited
partnership ("RCP"), Reservoir Capital Associates, L.P., a Delaware limited
partnership ("RCA"), and Reservoir Capital Master Fund, L.P., a limited
partnership organized under the laws of the Cayman Islands ("RCMF"), hereby
offers to purchase any and all outstanding shares of common stock, par value
$.50 per share ("Shares"), of Orange-co, Inc., a Florida corporation (the
"Company"), at a purchase price of $7.00 per Share, net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions set forth
in this Offer to Purchase and in the related Letter of Transmittal (which,
together, constitute the "Offer"). The general partner of each of RCP, RCA and
RCMF is Reservoir Capital Group, L.L.C., a Delaware limited liability company
("RCG"), whose managing member is Reservoir Capital Management, L.L.C., a
Delaware limited liability company ("RCM" and, together with RCP, RCA, RCMF and
RCG, the "Parent").
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of the Shares by Purchaser
pursuant to the Offer. Purchaser will pay all charges and expenses of SunTrust
Bank, Atlanta, as Depositary (the "Depositary") and MacKenzie Partners, Inc., as
Information Agent (the "Information Agent"), incurred in connection with the
Offer. See Section 16.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "COMPANY BOARD") UNANIMOUSLY HAS
DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO, ADVISABLE AND IN THE BEST
INTERESTS OF THE COMPANY AND ITS UNAFFILIATED SHAREHOLDERS, HAS APPROVED THE
OFFER AND ADOPTED THE MERGER AGREEMENT AND RECOMMENDS ACCEPTANCE OF THE OFFER BY
THE COMPANY'S UNAFFILIATED SHAREHOLDERS. THE COMPANY HAS BEEN ADVISED BY EACH OF
ITS DIRECTORS AND EXECUTIVE OFFICERS THAT THEY INTEND TO TENDER ALL SHARES OF
THE COMPANY BENEFICIALLY OWNED BY THEM TO PURCHASER PURSUANT TO THE OFFER.
THE OFFER IS CONDITIONED ON CERTAIN TERMS AND CONDITIONS. THE OFFER WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON OCTOBER 29, 1999, UNLESS
EXTENDED (THE "EXPIRATION DATE"). SEE SECTIONS 1, 14, AND 15.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated
as of September 27, 1999, by and among the Company, Purchaser and RCP, RCA and
RCMF (the "Merger Agreement") pursuant to which, following the consummation of
the Offer and the satisfaction or waiver of certain conditions, Purchaser will
be merged with and into the Company (the "Merger"), with the Company continuing
as the surviving corporation (the "Surviving Corporation"). In the Merger, each
outstanding Share (other than Shares held by Parent, Purchaser or any
wholly-owned subsidiary of Parent or Purchaser or in the treasury of the Company
or by any wholly-owned subsidiary of the Company, which Shares will be canceled
with no payment being made with respect thereto, and other than Shares, if any,
held by shareholders who perfect their appraisal rights under Florida law
("Dissenting Shares")) will, by virtue of the Merger and without any action by
the holder thereof, be converted into the right to receive $7.00 in cash,
payable to the holder thereof, without interest thereon (the "Merger
Consideration"), upon the surrender of the certificate formerly representing
such Share. The Merger Agreement is more fully described in Section 11. Certain
federal income tax consequences of the sale of the Shares pursuant to the Offer
and the Merger, as the case may be, are described in Section 5.
Simultaneous with the execution of the Merger Agreement, Purchaser acquired
from Ben Hill Griffin and related persons 5,405,660 Shares (the "BHG Shares"),
representing 52.4% of the outstanding Shares, at a price of $7.00 per share.
This purchase was approved by an independent committee of the Company Board.
1
<PAGE> 4
Purchaser owns a sufficient number of Shares to ensure that the Merger will
be approved. Under the Florida Business Corporation Act ("FBCA"), if, after
consummation of the Offer, Purchaser owns at least 80% of the Shares then
outstanding, Purchaser will be able to cause the Merger to occur without a vote
of the Company's shareholders. If, however, after consummation of the Offer,
Purchaser owns less than 80% of the then outstanding Shares, a vote of the
Company's shareholders will be required under the FBCA to approve the Merger,
and a significantly longer period of time will be required to effect the Merger.
See Section 11. The Company has informed Purchaser that, as of September 27,
1999, there were 10,309,975 Shares issued and outstanding, 39,424 Shares held in
the treasury of the Company, 13,000 Shares reserved for issuance upon exercise
of outstanding options under the 1987 Company Option Plan (as hereinafter
defined) and 750,000 Shares reserved for issuance upon the exercise of Options
under the Company's 1997 Incentive Equity Plan (as hereinafter defined).
No appraisal rights are available in connection with the Offer; however,
shareholders may have appraisal rights in connection with the Merger regardless
of whether the Merger is consummated with or without a vote of the Company's
shareholders. See Section 11.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), Purchaser will accept for payment and thereby purchase all Shares
validly tendered on or prior to the Expiration Date and not withdrawn in
accordance with the procedures set forth in Section 4, as soon as practicable
after such Expiration Date. Notwithstanding the foregoing, without the consent
of the Company, Purchaser will have the right to extend the Offer (i) for any
period to the extent required by any law or by any rule, regulation,
interpretation or position of the Securities and Exchange Commission (the
"Commission") or the staff thereof applicable to the Offer, and (ii) for up to
ten business days after the initially scheduled expiration date if upon any
expiration of the Offer any condition to the Offer shall not be satisfied and
there is a reasonable basis to believe that such condition could be satisfied
within such ten business day period. The Offer will remain open until the
Expiration Date, unless and until Purchaser extends the period of time for which
the Offer is open, in which event the term "Expiration Date" will mean the time
and date at which the Offer, as so extended by Purchaser, will expire.
THE OFFER CONTAINS CERTAIN CONDITIONS. See Section 14. If the conditions
to the Offer described in Section 14 will not have been satisfied or waived,
Purchaser may extend the Offer for up to ten business days after the initially
scheduled expiration date if there is a reasonable basis to believe that such
condition could be satisfied within such ten day period. During the extension,
all Shares previously tendered and not withdrawn will remain subject to the
Offer and subject to the right of a tendering shareholder to withdraw such
shareholder's Shares. See Section 4. Under no circumstances will interest be
paid on the purchase price for tendered Shares, whether or not the Offer is
extended. The Offer is not conditioned on any minimum number of Shares being
validly tendered and not properly withdrawn prior to the Expiration Date.
Subject to the applicable regulations of the Commission, Purchaser has
expressly reserved the right to waive any of the conditions to the Offer, to
increase the price per Share and to make any other changes in the terms and
conditions of the Offer, provided that, under the Merger Agreement, no change
may be made which (i) decreases the price per Share, (ii) changes the form of
consideration to be paid in the Offer, (iii) reduces the number of Shares sought
to be purchased in the Offer, (iv) imposes any additional conditions to the
Offer, (v) extends the expiration date of the Offer, except as described above,
or (vi) otherwise alters or amends any term of the Offer in any manner adverse
to the holders of the Shares.
Any such extension, termination or amendment will be followed as promptly
as practicable by public announcement thereof. In the case of an extension, Rule
14e-1(d) under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), requires that the announcement be issued no later than 9:00 a.m.,
2
<PAGE> 5
New York City time, on the next business day after the previously scheduled
Expiration Date in accordance with the public announcement requirements of Rule
14e-1 under the Exchange Act. Subject to applicable law (including Rules
14d-4(c) and 14d-6(d) under the Exchange Act, which require that any material
change in the information published, sent or given to shareholders in connection
with the Offer be promptly disseminated to shareholders in a manner reasonably
designed to inform shareholders of such change), and without limiting the manner
in which Purchaser may choose to make any public announcement, Purchaser will
not have any obligation to publish, advertise or otherwise communicate any such
public announcement other than by making a release to the Dow Jones News
Service. As used in this Offer to Purchase, "business day" has the meaning set
forth in Rule 14d-1 under the Exchange Act. The rights reserved by Purchaser in
the preceding paragraph are in addition to Purchaser's rights pursuant to
Section 14.
If Purchaser makes a material change in the terms of the Offer, or if
Purchaser waives a material condition to the Offer, Purchaser will extend the
Offer and disseminate additional tender offer materials to the extent required
by Rules 14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act. The minimum period
during which an offer must remain open following material changes in the terms
of the offer, other than a change in price or a change in percentage of
securities sought, will depend upon the facts and circumstances, including the
materiality of the changes. In the Commission's view, an offer should remain
open for a minimum of five business days from the date the material change is
first published, sent or given to shareholders, and, if material changes are
made with respect to information that approaches the significance of price and
the percentage of securities sought, a minimum of ten business days may be
required to allow for adequate dissemination and investor response. With respect
to a change in price, a minimum ten-business-day period from the date of such
change is generally required under applicable Commission rules and regulations
to allow for adequate dissemination to shareholders. For purposes of the Offer,
a "business day" means any day other than a Saturday, Sunday or a federal
holiday and consists of the time period from 12:01 a.m. through 12:00 midnight,
New York City time.
The Company has provided Purchaser with the Company's shareholder lists and
security position listings for the purpose of disseminating the Offer to holders
of Shares. This Offer to Purchase, the related Letter of Transmittal and other
relevant materials will be mailed by Purchaser to record holders of Shares, and
will be furnished by Purchaser to brokers, dealers, commercial banks, trust
companies and similar persons whose names, or the names of whose nominees,
appear on the securityholder lists or, if applicable, who are listed as
participants in a clearing agency's security position listing, for subsequent
transmittal to beneficial owners of Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of the Offer as so
extended or amended), Purchaser will purchase, by accepting for payment, and
will pay for any and all Shares validly tendered and not properly withdrawn (in
accordance with Section 4) prior to the Expiration Date promptly after the
Expiration Date. In addition, subject to applicable rules of the Commission,
Purchaser expressly reserves the right, in its sole discretion, to delay
acceptance for payment of, or payment for, Shares in order to comply with
applicable law. See Sections 1 and 15. In all cases, payment for Shares
purchased pursuant to the Offer will be made only after timely receipt by the
Depositary of (i) certificates representing such Shares ("Share Certificates")
or timely confirmation (a "Book-Entry Confirmation") of the book-entry transfer
of such Shares into the Depositary's account at The Depository Trust Company
(the "Book-Entry Transfer Facility") pursuant to the procedures set forth in
Section 3; (ii) the appropriate Letter of Transmittal (or a facsimile thereof),
properly completed and duly executed, with any required signature guarantees or
an Agent's Message (as defined herein) in connection with a book-entry transfer;
and (iii) any other documents required by the Letter of Transmittal.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares that are the subject of such Book-Entry
Confirmation that such
3
<PAGE> 6
participant has received and agrees to be bound by the terms of the Letter of
Transmittal and that Purchaser may enforce such agreement against such
participant.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not withdrawn as, if
and when Purchaser gives oral or written notice to the Depositary of Purchaser's
acceptance of such Shares for payment pursuant to the Offer. In all cases, upon
the terms and subject to the conditions of the Offer, payment for Shares
purchased pursuant to the Offer will be made by deposit of the purchase price
therefor with the Depositary, which will act as agent for tendering shareholders
for the purpose of receiving payment from Purchaser and transmitting payment to
validly tendering shareholders.
UNDER NO CIRCUMSTANCES WILL INTEREST ON THE PURCHASE PRICE FOR SHARES BE
PAID BY PURCHASER.
The reservation by Purchaser of the right to delay the acceptance or
purchase of or payment for Shares is subject to the provisions of Rule 14e-1(c)
under the Exchange Act, which requires Purchaser to pay the consideration
offered or to return Shares deposited by or on behalf of shareholders promptly
after the termination or withdrawal of the Offer.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, or if Share Certificates are submitted representing more Shares than are
tendered, Share Certificates representing unpurchased or untendered Shares will
be returned, without expense to the tendering shareholder (or, in the case of
Shares delivered by book-entry transfer into the Depositary's account at a
Book-Entry Transfer Facility pursuant to the procedures set forth in Section 3,
such Shares will be credited to an account maintained within such Book-Entry
Transfer Facility), as promptly as practicable following the expiration,
termination or withdrawal of the Offer. IF, PRIOR TO THE EXPIRATION DATE,
PURCHASER SHALL INCREASE THE CONSIDERATION OFFERED TO HOLDERS OF SHARES PURSUANT
TO THE OFFER, SUCH IN CREASED CONSIDERATION SHALL BE PAID TO ALL HOLDERS OF
SHARES THAT ARE PURCHASED PURSUANT TO THE OFFER, WHETHER OR NOT SUCH SHARES WERE
TENDERED PRIOR TO SUCH INCREASE IN CONSIDERATION.
Purchaser reserves the right, subject to the provisions of the Merger
Agreement, to assign, to a direct or indirect wholly-owned subsidiary of RCP,
RCA and/or RCMF or to another corporation all of the stock of which is owned by
the current shareholders of Purchaser, the right to purchase all or any portion
of the Shares tendered pursuant to the Offer.
3. PROCEDURES FOR TENDERING SHARES.
VALID TENDER. Except as set forth below, in order for Shares to be validly
tendered pursuant to the Offer, a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof), together with any required signature
guarantees or an Agent's Message in connection with a book-entry delivery of
Shares and any other documents required by the Letter of Transmittal must be
received by the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase on or prior to the Expiration Date and either (i)
Share Certificates representing tendered Shares must be received by the
Depositary or tendered pursuant to the procedure for book-entry transfer set
forth below and Book-Entry Confirmation must be received by the Depositary, in
each case, on or prior to the Expiration Date, or (ii) the guaranteed delivery
procedures set forth below must be complied with. No alternate, conditional or
contingent tenders will be accepted.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
SHAREHOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY
CONFIRMATION). IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
4
<PAGE> 7
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to Shares at the Book-Entry Transfer Facility for purposes of the Offer. Any
financial institution that is a participant in any of the Book-Entry Transfer
Facility's systems may make book-entry delivery of Shares by causing such
Book-Entry Transfer Facility to transfer such Shares into the Depositary's
account at a Book-Entry Transfer Facility in accordance with such Book-Entry
Transfer Facility's procedures for such transfer. However, although delivery of
Shares may be effected through book-entry transfer into the Depositary's account
at a Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or an Agent's Message in connection with a book-entry transfer, and
any other required documents must, in any case, be transmitted to and received
by the Depositary at one of its addresses set forth on the back cover of this
Offer to Purchase on or prior to the Expiration Date, or the guaranteed delivery
procedure set forth below must be complied with.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH
SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO
THE DEPOSITARY.
SIGNATURE GUARANTEES. Signatures on all Letters of Transmittal must be
guaranteed by a firm that is a bank, broker, dealer, credit union, savings
association or other entity that is a member in good standing of the Securities
Transfer Agents Medallion Program (an "Eligible Institution"), unless Shares
tendered thereby are tendered (i) by a registered holder of Shares who has not
completed either the box labeled "Special Payment Instructions" or the box
labeled "Special Delivery Instructions" on the Letter of Transmittal or (ii) for
the account of an Eligible Institution. See Instruction 1 of the Letter of
Transmittal.
If the Share Certificates are registered in the name of a person other than
the signer of the Letter of Transmittal, or if payment is to be made to, or
Share Certificates for unpurchased Shares are to be issued or returned to, a
person other than the registered holder, then the tendered certificates must be
endorsed or accompanied by appropriate stock powers, signed exactly as the name
or names of the registered holder or holders appear on the certificates, with
the signatures on the certificates or stock powers guaranteed by an Eligible
Institution as provided in the Letter of Transmittal. See Instructions 1 and 5
of the Letter of Transmittal.
If the Share Certificates are forwarded separately to the Depositary, a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof) must accompany each such delivery.
GUARANTEED DELIVERY. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's Share Certificates are not immediately
available or time will not permit all required documents to reach the Depositary
on or prior to the Expiration Date or the procedures for book-entry transfer
cannot be completed on a timely basis, such Shares may nevertheless be tendered
if all of the following guaranteed delivery procedures are duly complied with:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by Purchaser, is
received by the Depositary, as provided below, on or prior to the
Expiration Date; and
(iii) the Share Certificates (or a Book-Entry Confirmation)
representing all tendered Shares, in proper form for transfer together with
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof), with any required signature guarantees (or, in the case of a
book-entry transfer, an Agent's Message) and any other documents required
by the Letter of Transmittal are received by the Depositary within three
trading days after the date of execution of such Notice of Guaranteed
Delivery. A "trading day" is any day on which the New York Stock Exchange
is open for business.
The Notice of Guaranteed Delivery may be delivered by hand or mail or
transmitted by facsimile transmission to the Depositary and must include a
guarantee by an Eligible Institution in the form set forth in such Notice of
Guaranteed Delivery and a representation that the shareholder on whose behalf
the tender is
5
<PAGE> 8
being made is deemed to own the Shares being tendered within the meaning of Rule
14e-4 under the Exchange Act.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of Share Certificates for, or, of Book-Entry
Confirmation with respect to, such Shares, a properly completed and duly
executed Letter of Transmittal (or facsimile thereof), together with any
required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message) and any other documents required by the appropriate Letter of
Transmittal. Accordingly, payment might not be made to all tendering
shareholders at the same time, and will depend upon when Share Certificates are
received by the Depositary or Book-Entry Confirmations of such Shares are
received into the Depositary's account at a Book-Entry Transfer Facility.
BACKUP WITHHOLDING. Under the backup federal income tax withholding laws
applicable to certain shareholders (other than certain exempt shareholders,
including, among others, all corporations and certain foreign persons that
certify their status on Substitute Form W-8), the Depositary may be required to
withhold 31% of the amount of any payments made to such shareholders pursuant to
the Offer or the Merger. To prevent backup federal income tax withholding, each
such shareholder must provide the Depositary with such shareholder's correct
taxpayer identification number, if any, and certify that such shareholder is not
subject to backup federal income tax withholding by completing the Substitute
Form W-9 (or, in the case of certain foreign persons, Substitute Form W-8)
included in the Letter of Transmittal. See Instruction 9 of the Letter of
Transmittal.
APPOINTMENT AS PROXY. By executing the Letter of Transmittal, a tendering
shareholder irrevocably appoints designees of Purchaser as such shareholder's
agents, attorneys-in-fact and proxies, with full power of substitution, in the
manner set forth in the Letter of Transmittal, to the full extent of such
shareholder's rights with respect to the Shares tendered by such shareholder and
accepted for payment by Purchaser and with respect to any and all other Shares
and other securities or rights issued or issuable in respect of such Shares on
or after the date of this Offer to Purchase. All such powers of attorney and
proxies will be considered irrevocable and coupled with an interest in the
tendered Shares. Such appointment will be effective upon the acceptance for
payment of such Shares by Purchaser in accordance with the terms of the Offer.
Upon such acceptance for payment, all other powers of attorney and proxies given
by such shareholder with respect to such Shares and such other securities or
rights prior to such payment will be revoked, without further action, and no
subsequent powers of attorney and proxies may be given by such shareholder (and,
if given, will not be deemed effective). The designees of Purchaser will, with
respect to the Shares and such other securities and rights for which such
appointment is effective, be empowered to exercise all voting and other rights
of such shareholder as they, in their sole discretion, may deem proper at any
annual or special meeting of the Company's shareholders, or any adjournment or
postponement thereof, or by consent in lieu of any such meeting or otherwise. In
order for Shares to be deemed validly tendered, immediately upon the acceptance
for payment of such Shares, Purchaser or its designee must be able to exercise
full voting rights with respect to such Shares and other securities, including
voting at any meeting of shareholders.
DETERMINATION OF VALIDITY. All questions as to the form of documents and
the validity, eligibility (including time of receipt) and acceptance for payment
of any tender of Shares will be determined by Purchaser, in its sole discretion,
whose determination will be final and binding on all parties. Purchaser reserves
the absolute right to reject any or all tenders determined by it not to be in
proper form or the acceptance of or payment for which may, in the opinion of
Purchaser's counsel, be unlawful. Purchaser also reserves the absolute right to
waive any of the conditions of the Offer to the extent permitted by applicable
law and the Merger Agreement or any defect or irregularity in any tender of
Shares of any particular shareholder whether or not similar defects or
irregularities are waived in the case of other shareholders.
A tender of Shares pursuant to any of the procedures described above will
constitute the tendering shareholder's acceptance of the terms and conditions of
the Offer, as well as the tendering shareholder's representation and warranty to
Purchaser that (a) such shareholder has a net long position in such Shares being
tendered within the meaning of Rule 14e-4 under the Exchange Act and (b) the
tender of such Shares complies with Rule 14e-4 under the Exchange Act. It is a
violation of Rule 14e-4 under the Exchange Act for
6
<PAGE> 9
a person, directly or indirectly, to tender Shares for such person's own account
unless, at the time of tender, the person so tendering (i) has a net long
position equal to or greater than the amount of (x) Shares tendered or (y) other
securities immediately convertible into or exchangeable or exercisable for the
Shares tendered and such person will acquire such Shares for tender by
conversion, exchange or exercise and (ii) will cause such Shares to be delivered
in accordance with the terms of the Offer. Rule 14e-4 provides a similar
restriction applicable to the tender or guarantee of a tender on behalf of
another person.
Purchaser's interpretation of the terms and conditions of the Offer will be
final and binding. No tender of Shares will be deemed to have been validly made
until all defects and irregularities with respect to such tender have been cured
or waived by Purchaser. None of Parent, Purchaser or any of their respective
affiliates or assigns, the Depositary, the Information Agent or any other person
or entity will be under any duty to give any notification of any defects or
irregularities in tenders or incur any liability for failure to give any such
notification.
Purchaser's acceptance for payment of Shares tendered pursuant to any of
the procedures described above will constitute a binding agreement between the
tendering shareholder and Purchaser upon the terms and subject to the conditions
of the Offer.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4, tenders of Shares made
pursuant to the Offer are irrevocable. Shares tendered pursuant to the Offer may
be withdrawn at any time on or prior to the Expiration Date and, unless
theretofore accepted for payment as provided herein, may also be withdrawn at
any time after November 29, 1999 (or such later date as may apply in the case
that the Offer is extended).
If, for any reason whatsoever, acceptance for payment of any Shares
tendered pursuant to the Offer is delayed, or Purchaser is unable to accept for
payment or pay for Shares tendered pursuant to the Offer, then, without
prejudice to Purchaser's rights set forth herein, the Depositary may,
nevertheless, on behalf of Purchaser, retain tendered Shares, and such Shares
may not be withdrawn except to the extent that the tendering shareholder is
entitled to and duly exercises withdrawal rights as described in this Section 4.
In order for a withdrawal to be effective, a written or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. Any
such notice of withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn, and (if Share
Certificates have been tendered) the name of the registered holder of the Shares
as set forth in the Share Certificate, if different from that of the person who
tendered such Shares. If Share Certificates have been delivered or otherwise
identified to the Depositary, then prior to the physical release of such
certificates, the tendering shareholder must submit the serial numbers shown on
the particular certificates evidencing the Shares to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Shares tendered for the account of an
Eligible Institution. If Shares have been tendered pursuant to the procedures
for book-entry transfer set forth in Section 3, the notice of withdrawal must
specify the name and number of the account at the appropriate Book-Entry
Transfer Facility to be credited with the withdrawn Shares, in which case a
notice of withdrawal will be effective if delivered to the Depositary by any
method of delivery described in the first sentence of this paragraph.
Withdrawals of Shares may not be rescinded. Any Shares properly withdrawn will
be deemed not validly tendered for purposes of the Offer, but may be tendered at
any subsequent time prior to the Expiration Date by following any of the
procedures described in Section 3.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
whose determination will be final and binding. None of Parent, Purchaser or any
of their respective affiliates or assigns, the Depositary, the Information Agent
or any other person or entity will be under any duty to give any notification of
any defects or irregularities in any notice of withdrawal or incur any liability
for failure to give any such notification.
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<PAGE> 10
5. CERTAIN TAX CONSEQUENCES.
The receipt of cash for Shares pursuant to the Offer or the Merger will be
a taxable transaction for federal income tax purposes and may also be a taxable
transaction under applicable state, local, foreign and other tax laws. For
federal income tax purposes, each selling shareholder would generally recognize
gain or loss equal to the difference between the amount of cash received and
such shareholder's tax basis for the sold or exchanged Shares. Such gain or loss
will be capital gain or loss (assuming the Shares are held as a capital asset)
and any such capital gain or loss will be long term capital gain if the
shareholder held the Shares for more than one year. In the case of a shareholder
who is an individual, such long term capital gain will generally be subject to
tax at a maximum rate of 20%.
The foregoing discussion may not be applicable to certain types of
shareholders, including shareholders who acquired Shares pursuant to the
exercise of employee stock options or otherwise as compensation, individuals who
are not citizens or residents of the United States and foreign corporations, or
entities that are otherwise subject to special tax treatment under the Internal
Revenue Code of 1986, as amended (such as insurance companies, tax-exempt
entities and regulated investment companies). This discussion does not address
all aspects of federal income taxation that may be relevant to a particular
shareholder in light of such shareholder's personal investment circumstances nor
does it address any aspect of foreign, state, local, estate or gift taxation
that may be applicable to a shareholder.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY. SHAREHOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS WITH
RESPECT TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE OFFER AND MERGER,
INCLUDING FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES.
6. PRICE RANGE OF THE SHARES; DIVIDENDS.
The Shares are traded on the New York Stock Exchange ("NYSE") under the
symbol "OJ." The following table sets forth, for the periods indicated, the
reported high and low sale prices for the Shares on the New York Stock Exchange.
<TABLE>
<CAPTION>
HIGH LOW
------- -------
<S> <C> <C>
1997
First Quarter............................................. $8.0000 $6.7500
Second Quarter............................................ $8.1250 $7.5000
Third Quarter............................................. $7.8750 $7.5000
Fourth Quarter............................................ $8.1875 $7.6250
1998
First Quarter............................................. $8.4375 $7.6875
Second Quarter............................................ $7.9375 $6.6875
Third Quarter............................................. $6.9375 $5.6250
Fourth Quarter............................................ $6.5000 $5.0000
1999
First Quarter............................................. $7.3125 $5.6875
Second Quarter............................................ $6.2500 $5.2500
Third Quarter............................................. $5.4375 $4.7500
Fourth Quarter (through September 30)..................... $6.9375 $5.3125
</TABLE>
On September 24, 1999, the last full day of trading prior to the
announcement of the execution of the Merger Agreement, according to publicly
available sources, the reported closing price on the NYSE for the Shares was
$6.50 per Share. On September 30, 1999, the last full day of trading prior to
the commencement of the Offer, according to publicly available sources, the
reported closing price on the NYSE for the Shares was $6.81 per Share. The
Company paid a dividend of $.10 per Share on its common stock payable to
shareholders of record on January 20, 1997. Since then, no dividends have been
issued by the Company to its shareholders.
SHAREHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
8
<PAGE> 11
7. POSSIBLE EFFECTS OF THE OFFER ON THE MARKET FOR THE SHARES; NYSE LISTING;
EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS.
POSSIBLE EFFECTS OF THE OFFER ON THE MARKET FOR THE SHARES. The purchase of
Shares pursuant to the Offer will reduce the number of Shares that might
otherwise trade publicly, and could adversely affect the liquidity and market
value of the remaining Shares held by the public. The purchase of Shares
pursuant to the Offer can also be expected to reduce the number of holders of
Shares. Purchaser cannot predict whether the reduction in the number of Shares
that might otherwise trade publicly would have an adverse or beneficial effect
on the market price for or marketability of the Shares or whether it would cause
future market prices to be greater or less than the Offer Price therefor.
NYSE LISTING. The purchase of Shares pursuant to the Offer will reduce the
number of holders of Shares and the number of Shares that might otherwise trade
publicly, and could adversely affect the liquidity and market value of the
remaining Shares held by the public.
The Shares are listed on the NYSE. Depending upon the aggregate market
value and the per share price of any Shares not purchased pursuant to the Offer,
the Shares may no longer meet the requirements for continued listing on the
NYSE. According to the NYSE's published guidelines, the NYSE would consider
delisting the Shares if, among other things, the number of record holders of at
least 100 or more Shares should fall below 1,200, the number of publicly held
Shares (exclusive of holdings of officers and directors of the Company and their
immediate families and other concentrated holdings of 10% or more including
those of Purchaser (the "NYSE Excluded Holdings")) should fall below 600,000, or
the aggregate market value of the publicly held Shares (exclusive of the NYSE
Excluded Holdings) should fall below $5,000,000.
If the NYSE were to delist the Shares, the market therefor could be
adversely affected. It is possible that such Shares would continue to trade on
other securities exchanges or in the over-the-counter market, and that price
quotations would be reported by such exchanges or through the Nasdaq or other
sources. The extent of the public market for the Shares and the availability of
such quotations would, however, depend upon the number of shareholders and/or
the aggregate market value of such Shares remaining at such time, the interest
in maintaining a market in such Shares on the part of securities firms, the
possible termination of registration of such Shares under the Exchange Act and
other factors. The Purchaser cannot predict whether the reduction in the number
of Shares that might otherwise trade publicly would have an adverse or
beneficial effect on the market price for, or marketability of, the Shares or
whether it would cause future market prices to be greater or less than the Offer
Price.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. The purchase of the Shares pursuant to the Offer may result in the
Shares becoming eligible for deregistration under the Exchange Act. Registration
of the Shares may be terminated upon application by the Company to the
Commission if the Shares are not listed on a "national securities exchange" and
there are fewer than 300 record holders of the Shares. Termination of
registration of the Shares under the Exchange Act would substantially reduce the
information required to be furnished by the Company to its shareholders and the
Commission and would make certain provisions of the Exchange Act, such as the
short-swing profit recovery provisions of Section 16(b) under the Exchange Act
and the requirements of furnishing a proxy statement in connection with
shareholders' meetings pursuant to Section 14(a) or 14(c) under the Exchange Act
and the related requirement of an annual report, no longer applicable to the
Company. If the Shares are no longer registered under the Exchange Act, the
requirements of Rule 13e-3 under the Exchange Act with respect to "going
private" transactions would no longer be applicable to the Company. Furthermore,
the ability of "affiliates" of the Company and persons holding "restricted
securities" of the Company to dispose of such securities pursuant to Rule 144
under the Securities Act of 1933, as amended, may be impaired or, with respect
to certain persons, eliminated. If registration of the Shares under the Exchange
Act were terminated, the Shares would no longer be "margin securities" or
eligible for stock exchange listing or Nasdaq reporting. Purchaser believes that
the purchase of the Shares pursuant to the Offer may result in the Shares
becoming eligible for deregistration under the Exchange Act, and Purchaser would
intend to cause the Company to make an application for termination of
registration of the Shares as soon as possible after successful completion of
the Offer if the Shares are then eligible for such termination.
9
<PAGE> 12
MARGIN REGULATIONS. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which regulations have the effect, among other things,
of allowing brokers to extend credit on the collateral of such Shares for the
purpose of buying, carrying or trading in securities ("Purpose Loans").
Depending upon factors such as the number of record holders of the Shares and
the number and market value of publicly held Shares following the purchase of
Shares pursuant to the Offer, the Shares might no longer constitute "margin
securities" for purposes of the Federal Reserve Board's margin regulations and,
therefore, could no longer be used as collateral for Purpose Loans made by
brokers. In addition, if registration of the Shares under the Exchange Act were
terminated, the Shares would no longer constitute "margin securities."
The Purchaser may delist the Shares from the NYSE and may terminate the
registration of the Shares under the Exchange Act as soon after the completion
of the Offer as the requirements for such delisting and termination are met. If
the NYSE listing and the Exchange Act registration of the Shares are not
terminated prior to the Merger, then the Shares will be delisted from the NYSE
and the registration of the Shares under the Exchange Act will be terminated
following the consummation of the Merger.
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
The Company is a Florida corporation with its principal executive offices
located at 2020 U.S. Highway 17 South, P.O. Box 2158, Bartow, Florida 33831. The
following overview of the Company's business has been taken from, and is
qualified in its entirety by reference to, the Form 10-K filed by the Company
for the year ended September 30, 1998 (the "Form 10-K"):
The Company is an integrated citrus company primarily engaged in
growing and processing citrus products as well as packaging and marketing
these products and other beverages. As of November 30, 1998, the Company
owned and managed approximately 16,796 acres of Florida citrus groves and
the fruit harvested therefrom. The production from these groves is
principally used in the Company's citrus processing operations in Bartow,
Florida. This processing facility has concentrate, blending, single
strength not from concentrate juice, by-products, packaging and storage
operations providing the versatility to make many citrus and related
beverage products for sale in a variety of markets. The Company also
packages and sells non-citrus beverages to complement the citrus related
products supplied to its customers in the foodservice business.
Additionally, the Company offers a line of formulated citrus and non-citrus
beverage bases for reconstitution by industrial and retail packers. The
Company entered the formulated beverage base business in August 1993 with
the purchase of all of the capital stock of International Fruit, Inc. Also,
the Company has recently developed capabilities in the private label, shelf
stable juices for distribution in the retail grocery business.
On September 27, 1999 the Company sold its food service business and agreed to
sell its citrus processing business. Following these sales, the Company's
remaining assets would be mainly its citrus groves and related assets. The sale
of the processing business is not expected to occur before the Merger. See
Section 10.
The selected financial information of the Company and its consolidated
subsidiaries set forth below has been excerpted and derived from the Form 10-K
and from the Form 10-Q filed by the Company for the nine months ended June 30,
1999. More comprehensive financial and other information is included in such
reports (including management's discussion and analysis of financial condition
and results of operations) and in other reports and documents filed by the
Company with the Commission. The financial information set forth below is
qualified in its entirety by reference to such reports and documents filed with
the Commission and the financial statements and related notes contained therein.
These reports and other documents may be examined and copies thereof may be
obtained in the manner set forth below.
10
<PAGE> 13
ORANGE-CO, INC.
SELECTED FINANCIAL INFORMATION
(IN THOUSANDS EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
JUNE 30, YEARS ENDED SEPTEMBER 30,
------------------- ------------------------------
1999 1998 1998 1997 1996
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA
Sales....................................... $ 97,536 $ 88,934 $118,880 $109,337 $119,130
======== ======== ======== ======== ========
Income (loss) from continuing operations
before income taxes....................... $ 1,922 $ (3,357) $ (2,038) $ 1,833 $ 14,487
Net income (loss)........................... $ 1,196 $ (2,203) $ (1,413) $ 1,079 $ 10,091
======== ======== ======== ======== ========
Net income (loss) per common share.......... $ .12 $ (.21) $ (.14) $ .10 $ .98
======== ======== ======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30,
JUNE 30, -------------------
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C> <C> <C>
STATEMENT OF FINANCIAL POSITION DATA
Total assets................................ $228,210 $208,362 $201,129
Long-term debt (less current portion)....... $ 75,290 $ 54,901 $ 46,764
======== ======== ========
Shareholders' equity........................ $108,886 $107,690 $109,100
======== ======== ========
</TABLE>
The Company is subject to the information and reporting requirements of the
Exchange Act, and, in accordance therewith is required to file periodic reports,
proxy statements and other information with the Commission relating to its
business, financial condition and other matters. Certain information, as of
particular dates, concerning the Company's business, principal physical
properties, capital structure, material pending legal proceedings, operating
results, financial condition, directors and officers (including their
remuneration and the stock options granted to them), the principal holders of
the Company's securities, any material interests of such persons in transactions
with the Company and certain other matters is required to be disclosed in proxy
statements and annual reports distributed to the Company's shareholders and
filed with the Commission. Such reports, proxy statements and other information
can be inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the following regional offices of the Commission: Northeast Regional
Office, Seven World Trade Center, Suite 1300, New York, New York 10048, and
Midwest Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material can also be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549. Such material may be obtained electronically by visiting the Commission's
worldwide web site on the Internet at HTTP://WWW.SEC.GOV. The Shares are traded
on the New York Stock Exchange. Reports, proxy statements and other information
concerning the Company should also be available for inspection at the library of
the New York Stock Exchange, at 20 Broad Street, New York, New York 10005.
Although neither Parent nor Purchaser has any knowledge that any such
information is untrue, neither Parent nor Purchaser takes any responsibility for
the accuracy or completeness of information contained in this Offer to Purchase
with respect to the Company or any of its subsidiaries or affiliates or for any
failure by the Company to disclose events which may have occurred or may affect
the significance or accuracy of any such information.
9. CERTAIN INFORMATION CONCERNING PARENT AND PURCHASER.
PARENT AND PURCHASER. Purchaser is a newly incorporated Florida
corporation all the stock of which is owned by RCP, RCA, and RCMF. To date,
Purchaser has not conducted any business other than that incident to its
formation, the purchase of the BHG Shares, the execution and delivery of the
Merger Agreement, the commencement of the Offer and related matters. Purchaser
beneficially owns 5,405,660
11
<PAGE> 14
Shares (52.4%) of the Company. The principal executive office of the Purchaser
is located at 650 Madison Avenue, 26th Floor, New York, New York 10022.
RCP is a Delaware private investment limited partnership whose general
partner is RCG. RCP beneficially owns 4,634,272 Shares (44.9%) of the Company.
The address of RCP's principal business and principal office is 650 Madison
Avenue, 26th Floor, New York, New York 10022.
RCA is a Delaware private investment limited partnership whose general
partner is RCG. RCA beneficially owns 12,433 Shares (0.1%)of the Company. The
address of RCA's principal business and principal office is 650 Madison Avenue,
26th Floor, New York, New York 10022.
RCMF is a private investment limited partnership organized under the laws
of the Cayman Islands. RCMF's general partner is RCG. RCMF beneficially owns
758,955 Shares (7.4%) of the Company. The address of RCMF's principal business
and principal office is c/o Goldman Sachs (Cayman) Trust, Limited, P.O. Box 896,
Harbour Centre, George Town, Grand Cayman, BWI.
RCP, RCA and RCMF's general partner, RCG, is an investment management firm
whose managing member is RCM. RCM is an investment management firm. Each of RCM
and RCG, through RCP, RCA and RCMF, beneficially owns 5,405,660 (52.4%) Shares
of the Company. The address of RCG's and RCM's principal businesses and
principal offices is 650 Madison Avenue, 26th Floor, New York, New York 10022.
Information regarding the control persons, directors (if applicable) and
executive officers of Parent is set forth on Schedule I attached hereto, which
Schedule is hereby incorporated by reference. Except as set forth on Schedule I,
all such persons are citizens of the United States.
Except as set forth elsewhere in this Offer to Purchase or Schedule I : (i)
none of Parent or Purchaser and, to the knowledge of Parent or Purchaser, none
of the persons listed in Schedule I hereto or any associate or majority-owned
subsidiary of any of the foregoing, beneficially owns or has a right to acquire
any Shares or any other equity securities of the Company; (ii) neither Parent
nor Purchaser nor, to the knowledge of Parent or Purchaser, any of the persons
or entities referred to in clause (i) above has effected any transaction in the
Shares or any other equity securities of the Company during the past 60 days;
(iii) neither Parent nor Purchaser nor, to the knowledge of Parent or Purchaser,
any of the persons listed in clause (i) above has any contract, arrangement,
understanding or relationship with any other person with respect to any
securities of the Company (including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or the voting
of any such securities, joint ventures, loan or option arrangements, puts or
calls, guaranties of loans, guaranties against loss or the giving or withholding
of proxies, consents or authorizations); (iv) during the past sixty 60 days,
there have been no transactions which would require reporting under the rules
and regulations of the Commission between Parent, Purchaser or any of their
respective subsidiaries or, to the knowledge of Parent or Purchaser, any of the
persons listed in clause (i) above, on the one hand, and the Company or any of
its executive officers, directors or affiliates, on the other hand; and (v)
during the past sixty 60 days, there have been no contacts, negotiations or
transactions between Parent or Purchaser or any of their respective subsidiaries
or, to the knowledge of Parent or Purchaser, any of the persons listed in clause
(i) above, on the one hand, and the Company or any of its subsidiaries or
affiliates, on the other hand, concerning a merger, consolidation or
acquisition, a tender offer or other acquisition of securities, an election of
directors or a sale or other transfer of a material amount of assets.
10. BACKGROUND OF THE OFFER; PURCHASE OF SHARES; PAST CONTACTS WITH THE
COMPANY.
On April 8, 1999, RCG received an offering memorandum from SunTrust
Equitable Securities Corporation ("SunTrust") soliciting the purchase of Shares
from Ben Hill Griffin, III ("BHGIII") and Ben Hill Griffin, Inc. ("BHGI" and,
together with BHGIII, the "Seller" or "BHG") and providing certain information
with respect to the Company. On that date, RCG entered into a confidentiality
and standstill agreement (the "Confidentiality Agreement") with SunTrust whereby
RCG requested certain confidential information regarding BHGIII and BHGI's, sale
of its ownership interests in the Company. Pursuant to the Confidentiality
Agreement, RCG agreed to treat as confidential certain information provided to
it by SunTrust
12
<PAGE> 15
regarding the Company, and agreed, for a period of two years following the
termination of any evaluation of a possible transaction with the Seller or any
participation in any transaction with the Seller, not to disclose such
information. BHG also agreed not to, subject to certain exceptions, without the
prior written consent of the Seller or the Company, disclose the fact that
discussions or negotiations were taking place concerning a possible transaction
between RCG and the Seller. In addition, RCG agreed that neither it nor any of
its subsidiaries or affiliates would initiate discussions with or otherwise
solicit the employment of or hire any of the Company's or Seller's employees or
any of their subsidiaries or affiliates employees.
Thereafter, RCG had discussions with advisers of BHG regarding the Company
and the sale of the Shares owned by BHG and reviewed the offering memorandum and
other publicly available information with respect to the Company.
On May 3, 1999, RCG submitted an expression of interest in buying the
Shares owned by BHG. On May 17, 1999, RCG entered into a supplemental
confidentiality agreement with SunTrust pursuant to which RCG agreed, subject to
certain exceptions, to keep confidential any information concerning the Company
that was material and had not been publicly disclosed.
On May 26 and May 27, 1999, RCG participated in meetings with the Company
at the Company's facilities in Arcadia and Bartow, Florida. During such
meetings, RCG discussed the Company's business with the President and Chief
Operating Officer and the Chief Financial Officer of the Company, as well as
other officers and employees of the Company.
On June 11, 1999, at a meeting held in New York City, RCG met with
representatives of Pasco, who had been introduced to RCG by a representative of
BHG. RCG and Pasco discussed their respective business strategies and how they
might relate to the Company's operations.
On June 23, 1999, RCG submitted a draft letter of intent to BHG expressing
RCG's interest in purchasing the Shares owned by BHG for $7.00 per Share. RCG
also discussed with representatives of BHG the possibility of purchasing the
Shares not owned by BHG for the same price.
RESERVOIR LETTER OF INTENT
On July 14, 1999, following negotiations concerning the draft letter of
intent submitted on June 23, RCG and BHG entered into a letter of intent (the
"Reservoir Letter of Intent") whereby RCG was granted an option to purchase the
BHG Shares. Pursuant to the Reservoir Letter of Intent, BHG offered to sell the
BHG Shares for a cash price of $7.00 per BHG Share. Such offer remained open and
was irrevocable for 25 business days. RCG's right to buy the BHG Shares was
conditioned upon: (i) its agreement to acquire the remaining outstanding stock
of the Company at $7.00 per share, (ii) the approval by an independent committee
of the Company's Board of Directors (the "Special Committee"), and to the extent
required, the Company's Board of the transactions contemplated by the Reservoir
Letter of Intent, (iii) the execution of an Asset Purchase Agreement between the
Company and Pasco pursuant to which Pasco would agree to buy and the Company
would agree to sell the Company's processing plant located in Bartow, Florida
and food service assets, with such sale conditioned upon completion of the
Merger, and (iv) the execution of a Fruit Purchase Agreement between BHGI and
Pasco and a Consulting and Non-Compete Agreement between Pasco and BHGIII,
accompanied by required initial payments under such agreements. After the
contemplated transactions, neither BHGI nor BHGIII would have any continuing
obligations or liability for any representations and warranties to RCG or the
Company.
The Reservoir Letter of Intent also contained, among other things,
provisions (i) restricting BHG's or the Company's solicitation or negotiation of
other offers to purchase any shares of capital stock of the Company and (ii)
requiring BHG to use its best efforts to cause the Company to conduct its
business only in the usual and ordinary course. Each party was to bear its own
expenses in connection with the Reservoir Letter of Intent and the transactions
contemplated thereunder.
13
<PAGE> 16
PASCO LETTER OF INTENT
On July 15, 1999, the Company announced that on July 14, 1999 it had
entered into a letter of intent with Pasco (the "Pasco Letter of Intent")
pursuant to which Pasco would purchase the processing plant and food service
assets of the Company. Under the terms of the Pasco Letter of Intent, the
Company and Pasco stated their non-binding intention to enter into an Asset
Purchase Agreement, on terms acceptable to the parties thereto, committing the
Company to sell and Pasco to purchase the Company's citrus processing and
beverage and food servicing businesses, at a purchase price of approximately
$18.0 million plus the value of the net working capital of the businesses at
closing, subject to the satisfaction of various conditions. The conditions
included RCG's purchase of the BHG Shares and all of the remaining Shares of the
Company prior to the closing of the asset sale. The Pasco Letter of Intent
required that, simultaneous with the execution of the Asset Purchase Agreement,
(i) a Fruit Purchase Agreement, between and on terms acceptable to Pasco and
BHGI, be executed, (ii) a Consulting and Non-Compete Agreement between and on
terms acceptable to Pasco and BHGIII be executed pursuant to which Mr. Griffin
would agree to consult with Pasco and not compete in the processing and food
service business for a period of five years from the closing of the asset sale,
and (iii) the initial payments of $4,750,000 under the Fruit Purchase Agreement
and $2,000,000 under the Non-Compete and Consulting Agreement be paid.
ANTITRUST FILINGS
On July 22, 1999, pursuant to the rules and regulations of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), Parent filed a Premerger Notification and Report Form with the United
States Federal Trade Commission (the "FTC") and the Antitrust Division of the
United States Department of Justice (the "Antitrust Division") in connection
with the purchase of the BHG Shares. The waiting period with respect to such
transaction was terminated by the FTC and the Antitrust on August 5, 1999. In
addition, on July 23, 1999, Parent filed a Notification and Report Form with the
FTC and the Antitrust Division in connection with the purchase of all of the
assets of the Company used in the Company's citrus processing and beverage and
food servicing businesses, including the processing plant. The waiting period
with respect to such transaction was terminated by the FTC and the Antitrust
Division on August 16, 1999.
EXTENSION LETTERS
Following execution of the Letters of Intent, the parties continued their
due diligence investigations of the Company and negotiated definitive documents.
On August 19, 1999, RCG, BHG and Pasco entered into an agreement pursuant to
which BHG agreed to extend the time during which RCG had the right to purchase
the BHG Shares pursuant to the Reservoir Letter of Intent until midnight on
September 10, 1999 (the "Extension Letter"). The expiration of the Letter of
Intent was thereafter extended (i) to September 17, 1999 pursuant to the
extension letter dated September 10, 1999 and (ii) to September 23, 1999
pursuant to the extension letter dated September 17, 1999.
PURCHASE OF THE BHG SHARES
On September 27, 1999, the Purchaser purchased the BHG Shares under the
Reservoir Letter of Intent. Consequently, the Purchaser acquired ownership of
5,405,660 Shares of the Company, RCP, RCA and RCMF acquired indirect beneficial
ownership of 4,634,272, 12,433 and 758,955 Shares of the Company, respectively,
and each of RCM and RCG became the indirect beneficial owner of 5,405,660 Shares
of the Company. Simultaneous with such purchase, the Merger Agreement was
executed.
At the same time, the Company and Pasco executed an Asset Purchase
Agreement under which the Company sold to Pasco its food service business and
agreed to sell its citrus processing and packaging business. The Fruit Purchase
Agreement and the Consulting and Non-Compete Agreement between Pasco and BHG
were also executed.
In connection with Pasco's entering into the Asset Purchase Agreement, RCP,
RCA, RCMF and Purchaser entered into an agreement with Pasco pursuant to which
they agreed to vote all Shares in favor of
14
<PAGE> 17
the Asset Purchase Agreement. In addition, RCA, RCP, RCMF and Purchaser agreed
to (i) refrain from taking any action that would reasonably be expected to
prevent, interfere with or materially delay, the consummation of the Merger, and
(ii) at any time after January 1, 2000, upon request of Pasco, cause the Company
to waive the condition in the Asset Purchase Agreement that the Merger be
consummated prior to the final closing under the Asset Purchase Agreement. RCA,
RCP, RCMF and Purchaser also agreed to refrain from taking any action that would
reasonably be expected to prevent, materially interfere with or materially delay
(a) the Company's compliance with or performance of any of its covenants and
agreements set forth in the Asset Purchase Agreement or related documents or (b)
the satisfaction of the conditions to Pasco's obligation to close the
acquisition of the Company's processing and packaging business under the Asset
Purchase Agreement. In addition, until the final closing under the Asset
Purchase Agreement, Purchaser agreed not to dispose of any of its Shares or any
interest therein, except to a transferee or pledgee who agrees pursuant to an
instrument reasonably satisfactory to Pasco to become bound by the obligations
of Purchaser under the agreement upon transfer or foreclosure. RCA, RCP, RCMF
and Purchaser also agreed that if on or before January 1, 2000 the Company has
not caused a meeting of shareholders of the Company to approve the Asset
Purchase Agreement to have been held and proxy or information materials required
in connection therewith to be mailed, they will promptly cause the Company to
take such actions to the extent required to consummate the Asset Purchase
Agreement.
After the execution of these agreements, on September 27, 1999, the Company
issued the following press release:
ORANGE-CO, INC. ANNOUNCES PURCHASE BY RESERVOIR
CAPITAL GROUP OF 52% STAKE IN ORANGE-CO AND TENDER
OFFER FOR REMAINING SHARES
BARTOW, Fla., Sept. 27, 1999 -- Orange-co, Inc. (NYSE: OJ) announced
today that Reservoir Capital Group, L.L.C. purchased a 52.4% stake in
Orange-co from affiliates of Ben Hill Griffin, Inc. for $7.00 per share in
cash, pursuant to the previously announced letter of intent that was signed
with Ben Hill Griffin, III on July 14, 1999.
Simultaneously with the purchase of the Orange-co shares from Mr.
Griffin, certain of Reservoir Capital's affiliates signed a definitive
merger agreement with Orange-co. The merger agreement provides for a cash
tender offer, which will commence later this week, to acquire any and all
the outstanding common shares of Orange-co at $7.00 per share in cash for a
total of approximately $34 million.
Following the completion of the tender offer, all shares, which remain
outstanding, will be acquired in a cash merger at the same price. Neither
the tender offer nor the second step merger is subject to financing
contingencies.
A special committee of independent directors of Orange-co unanimously
approved the tender offer and merger.
Orange-co also announced that it had entered into an asset purchase
agreement with Pasco Acquisition, Inc., a company owned by affiliates of
Caxton-Iseman Capital, Inc. and Engles Urso Follmer Capital Corporation,
pursuant to which Pasco agreed to buy and Orange-co agreed to sell certain
assets and liabilities related to Orange-co's citrus processing, packaging
and food service businesses, including the working capital associated with
such businesses, for cash consideration of approximately $18 million plus
the value of the net working capital. Concurrent with the signing of the
asset purchase agreement, Pasco's Vitality Beverage subsidiary purchased
and paid for the assets and assumed certain liabilities associated with the
food service business, including the working capital related thereto.
Following the satisfaction of certain conditions set forth in the asset
purchase agreement, including the approval of a majority of Orange-co's
stockholders, Pasco will then acquire Orange-co's citrus processing and
packing business, including certain working capital related thereto. This
transaction will not affect the price paid in the tender offer and the
merger.
15
<PAGE> 18
Further details about the merger agreement, tender offer, and asset
purchase agreement will be available later this week in the SEC filings to
be made by Orange-co and Reservoir Capital at the time the tender offer
commences.
Gene Mooney, President and Chief Operating Officer of Orange-co, said,
"We are pleased with the completion of the sales agreements, which bring a
degree of certainty to our shareholders and customers. We intend to
continue providing the same high level of product quality and service to
our customers as we have in the past." Robert A. Peiser, President and
Chief Executive Officer of Pasco, said, "The addition of Orange-co's
business to Vitality's food service operation will enhance our ability to
serve the customers of both companies. The acquisition of Orange-co's
processing and consumer packaging operations is an important step in our
plans to significantly grow both our retail and bulk juice businesses."
Statements or estimates contained in this release, which are not
historical facts, are forward-looking statements subject to the Safe Harbor
created by the Private Securities Litigation Reform Act of 1995. Examples
of forward-looking statements are those containing words such as "hope,"
"may," "will," "expect," "believe," "anticipate," or "intend," or words of
similar import. The Company cautions you that, as a result of a number of
factors, actual results could differ materially from those set forth in
this press release. All forward-looking statements included in the press
release or in any other press release of the Company are made as of the
date of the release, and Orange-co, Inc. does not undertake any obligation
to update any such statements. Additional detailed information concerning a
number of these factors is readily available in statements and reports that
Orange-co, Inc. has filed with the Securities and Exchange Commission.
Copies of these reports are available from Orange-co, Inc.
11. PURPOSE OF THE OFFER; THE MERGER AGREEMENT; APPRAISAL RIGHTS; PLANS FOR THE
COMPANY.
(A) PURPOSE
The purpose of the Offer and the Merger is to acquire the entire equity
interest in the Company. The Offer is intended to facilitate the acquisition of
all the Shares. The purpose of the Merger is to acquire all capital stock of the
Company not purchased pursuant to the purchase of the BHG Shares, the Offer or
otherwise. As a result of the Offer and Merger, the Company will become a
wholly-owned subsidiary of Parent.
The following is a summary of certain provisions of the Merger Agreement.
This summary is qualified in its entirety by reference to the Merger Agreement,
which is incorporated by reference and copies or forms of which have been filed
with the Commission as exhibits to the Schedule 14D-1. The Merger Agreement may
be examined and copies may be obtained at the places set forth in Section 8.
Defined terms used herein and not defined herein shall have the respective
meanings assigned to those terms in the Merger Agreement.
If the Offer and the Merger are not consummated, Parent and Purchaser will
evaluate alternatives. Such alternatives could include (i) the purchase of
additional Shares of the Company on the open market, through privately
negotiated transactions or through another tender offer or (ii) taking no
further action. Additional purchases could be at a price above or below the
Merger Consideration and could be for cash or other consideration.
Alternatively, Parent could sell or otherwise dispose of the BHG Shares. Such
transactions may be on terms and at prices then determined by Parent, which
could vary from the price paid to BHG or to holders of Shares of the Company
pursuant to the Offer.
(B) THE MERGER AGREEMENT
THE OFFER. The Merger Agreement provides that Purchaser will commence the
Offer, and that, upon the terms and subject to prior satisfaction or waiver of
the conditions of the Offer, as set forth in Section 14, Purchaser will purchase
all Shares tendered pursuant to the Offer. The Merger Agreement provides that
Purchaser has the right to waive any of the conditions to the Offer and to make
any change in the terms or conditions of the Offer, provided that no change may
be made which (i) decreases the price per Share, (ii) changes the form of
consideration to be paid in the Offer, (iii) reduces the number of Shares sought
to be purchased in the Offer, (iv) imposes additional conditions to the Offer,
(v) extends the expiration date of the
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Offer or (vi) otherwise alters or amends any term of the Offer in any manner
adverse to the holders of the Shares; provided, however, that the Offer may be
extended (1) for any period to the extent required by law or by any rule,
regulation, interpretation or position of the Commission or the staff thereof
applicable to the Offer, and (2) for up to ten business days after the initially
scheduled expiration date if upon any expiration of the Offer any condition to
the Offer shall not be satisfied and there is a reasonable basis to believe that
such condition could be satisfied within such ten business day period.
RECOMMENDATION. The Company has represented to Parent that it approves and
consents to the Offer and that the Company's Board of Directors, at a meeting
duly called and held, (i) determined that the Merger Agreement and the
transactions contemplated thereunder, including the Offer and the Merger, taken
together, are fair to and in the best interests of the unaffiliated holders of
the Shares, (ii) approved the Asset Purchase Agreement and the transactions
contemplated by such agreements, (iv) approved and adopted the Merger Agreement
and the transactions contemplated thereunder and (v) recommended that the
shareholders of the Company accept the Offer, tender their Shares to Purchaser
and, if required by applicable law in order to consummate the Merger, approve
and adopt the Merger Agreement and the transactions contemplated thereunder.
DIRECTORS. Subject to the FBCA, the Company's Certificate of Incorporation
and other applicable laws, the Company shall, if Parent requests, promptly use
its best efforts to take all actions necessary to cause a majority of the
directors of the Company to consist of Parent's designees, including by
accepting the resignations of those incumbent directors designated by the
Company or increasing the size of the Board of Directors and causing Parent's
designees to be elected. Parent has not exercised, and has no present intention
to exercise, this right. The date (if any) on which Parent's designees
constitute at least a majority of the Company's Board of Directors is referred
to as the "Control Date." Prior to the Control Date, a representative of Parent
and Purchaser, who shall be designated by Parent from time to time, shall be
entitled to (i) the same prior written notice of all meetings of the Board of
Directors as that afforded to members thereof, (ii) attend all such meetings and
(iii) copies of all information provided to the Board of Directors at the same
time such information is provided. The representative shall be entitled to
reimbursement for all reasonable expenses incurred in connection with the rights
granted under the Merger Agreement. Notwithstanding anything contained in the
Merger Agreement, any issues involving the Merger Agreement or the transactions
contemplated thereunder will be resolved by Company directors whose members will
not include representatives of the Parent or Parent designees.
THE MERGER. At the Effective Time, Purchaser will be merged with and into
the Company in accordance with the FBCA. At the Effective Time, the separate
existence of Purchaser will cease and the Company will continue as the surviving
corporation in the Merger.
The Company has agreed that, if required by applicable law in order to
consummate the Merger and the transactions contemplated thereby (including the
Asset Purchase Agreement), the Company shall, through its Board of Directors,
duly call, give notice of, convene and hold a meeting of its shareholders for
the purpose of voting on the adoption of the Merger Agreement and the Asset
Purchase Agreement as soon as reasonably practicable after the purchase of and
payment for Shares pursuant to the Offer. The Company shall, through its Board
of Directors, include in the proxy statement ("Company Proxy Statement") for
such meeting the recommendation of the Board of Directors of the Company that
the shareholders of the Company adopt the Merger Agreement and Asset Purchase
Agreement, and shall use its best efforts to obtain such adoption. At such
meeting, Parent shall, and shall cause its Subsidiaries to, cause all Shares of
the Company purchased pursuant to the Offer and all other Shares of the Company
owned by Parent or any such Subsidiary to be voted in favor of the adoption of
the Merger Agreement and the Asset Purchase Agreement. The Company shall give
Parent and its counsel the opportunity to review the Company Proxy Statement and
all responses to requests for additional information by and replies to comments
of the Commission before their being filed with, or sent to, the Commission.
CHARTER, BY-LAWS, DIRECTORS AND OFFICERS. At the Effective Time, (i) the
Articles of Incorporation of the Purchaser as in effect immediately prior to the
Effective Time will be the Articles of Incorporation of the Surviving
Corporation until thereafter amended as provided by law and such Articles of
Incorporation,
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provided that the name of Purchaser shall be changed to the name of the Company,
and (ii) the Bylaws of Purchaser as in effect immediately prior to the Effective
Time will be the Bylaws of the Surviving Corporation until thereafter amended as
provided by law, the Articles of Incorporation of the Surviving Corporation and
such Bylaws. The directors of Purchaser and the officers of Purchaser
immediately prior to the Effective Time will, from and after the Effective Time,
be the directors and officers, respectively, of the Surviving Corporation until
their successors are duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving
Corporation's Certificate of Incorporation and Bylaws.
CONVERSION OF SECURITIES. At the Effective Time, by virtue of the Merger
and without any action on the part of the holder thereof, each issued and
outstanding share of the common stock of Purchaser ("Purchaser Common Stock")
will be converted into and become one fully paid and nonassessable share of
common stock, par value $.50 per share, of the Surviving Corporation ("Surviving
Corporation Common Stock"). Each certificate representing outstanding shares of
Purchaser Common Stock shall at the Effective Time represent an equal number of
shares of Surviving Corporation Common Stock. Each issued and outstanding Share
(other than Shares owned by the Company as treasury stock, Shares owned by
Parent, Purchaser or any wholly-owned Subsidiary of Parent and/or any Shares the
holder of which has not voted in favor of the Merger, has perfected its
appraisal rights and has not effectively withdrawn or lost such right to
appraisal (a "Dissenting Share"), will be cancelled and retired, and will be
converted into the right to receive the Merger Consideration, upon surrender of
the certificate formerly representing such Share. The holder of Dissenting
Shares, however, will be entitled to such rights as are granted by the
applicable provisions of the FBCA.
At the Effective Time, each option to acquire a Share outstanding under the
Company's 1987 Employee Stock Option Plan (the "1987 Company Option Plan") will
be changed into an amount in cash in respect of each Share subject to such
option (the "Option Amount") equal to the Merger Price less the purchase price
therefor pursuant to the Company Option Plan and the related stock option
agreements executed pursuant thereto. On the Closing Date, the Company shall
deposit in a bank account not within the Company's control an amount of cash
equal to the Option Amount for each option then outstanding under the 1987
Company Option Plan (subject to any applicable withholding tax), together with
instructions that such cash be promptly distributed following the Effective Time
to the holders of such options in accordance with the Merger Agreement.
REPRESENTATIONS AND WARRANTIES. The Company has made customary
representations and warranties to the Parent with respect to, among other
matters, its organization, qualification and capitalization, authority relative
to the Merger Agreement, required filings, public filings, consents and
approvals, Commission reports, financial statements, absence of certain changes
or events, absence of undisclosed liabilities, legal proceedings, information
supplied, compliance with laws and orders, compliance with agreements and
certain agreements, taxes, employee benefit plans, labor matters, environmental
matters, intellectual property rights, real property, affiliate transactions,
votes required for the adoption of the Merger Agreement and the Asset Purchase
Agreement, the opinion of its financial advisor, inapplicability of certain
state antitakeover laws and Year 2000 computer issues. In addition, the Company
has made additional representations and warranties to Parent with respect to
Company water rights, the termination of certain fruit agreements, the Company's
groves and the representations and warranties made by the Company in the Asset
Purchase Agreement. Parent and Purchaser have made customary representations and
warranties to the Company with respect to, among other matters, their
organization and qualification, authority relative to the Merger Agreement,
approvals and consents, legal proceedings, information supplied, ownership of
the Shares and financing. The foregoing representations will not survive the
Merger but will terminate at the Effective Time.
COVENANTS. The Company and its subsidiaries, from the date of the Merger
Agreement until the Control Date, must conduct their respective businesses only
in the ordinary course of business consistent with past practice and use their
reasonable best efforts to preserve intact in all material respects their
present business organizations and reputation, keep available the services of
their key officers and employees, maintain their assets and properties in good
working order and condition, ordinary wear and tear excepted, maintain insurance
on their tangible assets and businesses in such amounts and against such risks
and losses as are currently in effect, preserve their relationships with
customers and suppliers and others having significant business dealings with
them and comply in all material respects with all laws and orders of all
governmental or
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<PAGE> 21
regulatory authorities applicable to them. The Company will not (and will not
permit any of its subsidiaries to) take certain actions, including, among other
things, amending its Articles of Incorporation or by-laws, paying dividends or
making other distributions, reclassifying its capital stock, adopting a plan of
liquidation or merger or consolidation, issuing or selling its capital stock,
acquiring any business, selling or granting a security interest in its assets or
properties outside the ordinary course of its business, incurring any
indebtedness for borrowed money other than in the ordinary course of business in
an aggregate principal amount exceeding $75,000, entering into or terminating
any company employee benefit plan, making any capital expenditures or
commitments for additions to plant, property or equipment in an aggregate amount
exceeding $100,000, making any change in its line of business, or entering into
any contract, commitment or arrangement to do or engage in any of the foregoing.
In addition, the Company must confer with Parent with respect to its business
and operations and other matters relevant to the Offer or the Merger and
promptly advise Parent of any change or event having, or which, insofar as can
be reasonably foreseen, could have, a material adverse effect on the Company and
its subsidiaries taken as a whole or on the ability of the Company to consummate
the transactions contemplated by the Merger Agreement (including the Asset
Purchase Agreement).
NO SOLICITATION. The Company has agreed that (a) neither it nor any of its
subsidiaries or other affiliates shall, and it shall use its best efforts to
cause their respective representatives (as defined in the Merger Agreement) not
to, initiate, solicit or encourage, directly or indirectly, any inquiries or the
making or implementation of any proposal or offer (including, without
limitation, any proposal or offer to its shareholders) with respect to a merger,
consolidation or other business combination including the Company or any of its
subsidiaries or any acquisition or similar transaction (including, without
limitation, a tender or exchange offer) involving the purchase of (i) all or any
significant portion of the assets of the Company and its subsidiaries taken as a
whole, (ii) 20% or more of the outstanding Shares of the Company or (iii) 20% of
the outstanding shares of the capital stock of any subsidiary of the Company
(any such proposal or offer being hereinafter referred to as an "Alternative
Proposal"), or engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions with, any person or
group relating to an Alternative Proposal (excluding the transactions
contemplated by the Merger Agreement), or otherwise facilitate any effort or
attempt to make or implement an Alternative Proposal; (b) it will immediately
cease and cause to be terminated any existing activities, discussions or
negotiations with any parties with respect to any of the foregoing, and it will
take the necessary steps to inform such parties of its obligations under this
Section; and (c) it will notify Parent immediately if any such inquiries,
proposals or offers are received by, any such information is requested from, or
any such negotiations or discussions are sought to be initiated or continued
with, it or any of such persons or groups.
ACCESS TO INFORMATION. The Company shall, and shall cause each of its
subsidiaries to, from the date of the Merger Agreement to the Effective Time,
(i) provide Parent and its Representatives with full access, upon reasonable
prior notice and during normal business hours, to all officers, employees,
agents and accountants of the Company and its subsidiaries and their respective
assets, properties, books and records, but only to the extent that such access
does not unreasonably interfere with the business and operations of the Company
and its subsidiaries, and (ii) furnish promptly to such persons (x) a copy of
each report, statement, schedule and other document filed or received by the
Company or any of its subsidiaries pursuant to the requirements of federal or
state securities laws and each material report, statement, schedule and other
document filed with any other governmental or regulatory authority, and (y) all
other information and data (including, without limitation, copies of contracts,
Company employee benefit plans and other books and records) concerning the
business and operations of the Company and its subsidiaries as Parent or any of
such other persons reasonably may request. No investigation pursuant to this
paragraph or otherwise shall affect any representation or warranty contained in
the Merger Agreement or any condition to the obligations of the parties hereto.
Any such information or material obtained pursuant to the Merger Agreement that
constitutes "Evaluation Material" (as such term is defined in the letter
agreement dated April 8, 1999, as amended and supplemented on May 17, 1999
between the Company and Parent (the "Confidentiality Agreement")) shall be
governed by the terms of the Confidentiality Agreement.
EFFORTS. Subject to the terms and conditions provided in the Merger
Agreement, the Company and Parent will take, or cause to be taken, all
commercially reasonable steps necessary or desirable and proceed
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diligently and in good faith to satisfy each condition to the other's
obligations contained in the Merger Agreement and to consummate and make
effective the transactions contemplated by the Merger Agreement, and neither
Parent nor the Company will, nor will it permit any of its subsidiaries to, take
or fail to take any action that could be reasonably expected to result in the
nonfulfillment of any such condition.
PUBLIC ANNOUNCEMENTS. Except as otherwise required by law or the rules of
any applicable securities exchange or national market system, so long as the
Merger Agreement is in effect, Parent and the Company will not, and will not
permit any of their respective Representatives to, issue or cause the
publication of any press release or make any other public announcement with
respect to the transactions contemplated by the Merger Agreement without the
consent of the other, which consent shall not be unreasonably withheld. Parent
and the Company will cooperate with each other in the development and
distribution of all press releases and other public announcements with respect
to the Merger Agreement and the transactions contemplated thereunder, and will
furnish the other with drafts of any such releases and announcements as far in
advance as practicable.
NOTIFICATION AND CURE. Each of Parent and the Company will notify the
other of, and will use all commercially reasonable efforts to cure before the
closing, any event, transaction or circumstance, as soon as practical after it
becomes known to such party, that causes or will cause any of its covenants or
agreements under the Merger Agreement to be breached or any of the conditions to
the Offer not to be satisfied or that renders or will render untrue any of its
representations or warranties contained in the Merger Agreement. Each will also
notify the other in writing of, and will use all commercially reasonable efforts
to cure, before the Closing, any of its violations or breaches, as soon as
practical after it becomes known to such party, of any representation, warranty,
covenant or agreement made by Parent or the Company. No notice given pursuant to
the previous sentences will have any effect on the representations, warranties,
covenants or agreements contained in the Merger Agreement for purposes of
determining satisfaction of any condition contained therein.
THIRD PARTY STANDSTILL AGREEMENTS. Neither the Company nor any of its
subsidiaries shall terminate, amend, modify or waive any provision of any
confidentiality or standstill agreement to which it is a party. The Company must
enforce, to the fullest extent permitted under applicable law, the provisions of
any such agreement, including, but not limited to, by obtaining injunctions to
prevent any breaches of such agreements and to enforce specifically the terms
and provisions thereof in any court having jurisdiction.
CONDITIONS TO CONSUMMATION OF THE MERGER. The respective obligation of
each party to effect the Merger is subject to the fulfillment, at or prior to
the closing, of each of the following conditions: (i) if required by Florida
law, the Merger Agreement shall have been adopted by the requisite vote of the
shareholders of the Company under the FBCA; (ii) no court of competent
jurisdiction or other competent governmental or regulatory authority shall have
enacted, issued, promulgated, enforced or entered any law or order which is then
in effect and has the effect of making illegal or otherwise restricting or
preventing or prohibiting consummation of the Offer or the Merger or the other
transactions contemplated by the Merger Agreement (including the Asset Purchase
Agreement); and (iii) Purchaser shall have purchased all Shares validly tendered
and not withdrawn pursuant to the Offer; provided, however, that this condition
shall not be applicable to Parent and Purchaser if, in breach of the Merger
Agreement or the Offer, Purchaser fails to purchase any Shares validly tendered
and not withdrawn pursuant to the Offer. In addition, the obligation of Parent
and Purchaser to effect the Merger is subject to the fulfillment, at or prior to
the Closing, of the condition that the Asset Purchase Agreement shall have been
duly executed and delivered by the parties thereto, such agreement shall remain
in full force and effect, no party to any such agreement shall be in default
thereunder and all conditions to the performance of any such parties' obligation
to perform under such agreement shall have been satisfied or shall be capable of
being satisfied within any time period limitations set forth in such agreement.
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TERMINATION. The Merger Agreement may be terminated and the transactions
contemplated by the Merger Agreement may be abandoned, at any time prior to the
Effective Time, whether prior to or after the approval of the Company's
Shareholders:
(a) By mutual written agreement of the parties to the Merger Agreement
duly authorized by action taken by or on behalf of their respective Board
of Directors (or, in the case of Parent, its general partner);
(b) By Parent upon notification to the Company, (i) at any time after
September 30, 2000, if the purchase of the Shares pursuant to the Offer
shall not have occurred on or prior to such date and such failure is not
caused by a breach of the Merger Agreement by the terminating party; (ii)
if the Offer is terminated or expires in accordance with its terms without
Purchaser having accepted for payment and paid for any Shares pursuant to
the Offer; provided, however, that Parent may not terminate the Merger
Agreement if Purchaser's termination of, or failure to accept for payment
or pay for any Shares tendered pursuant to, the Offer does not follow the
occurrence, or failure to occur, as the case may be, of any condition to
the Offer or is otherwise in breach of the terms of the Offer or the Merger
Agreement;
(c) By either the Company or Parent upon notification to the
non-terminating party by the terminating party, if any court of competent
jurisdiction or other competent governmental or regulatory authority shall
have issued an order making illegal or otherwise restricting, preventing or
prohibiting the Merger and such order shall have become final and
nonappealable; or
(d) By Parent, prior to the purchase of the Shares pursuant to the
Offer, if (i) the Board of Directors of the Company (or any committee
thereof) shall have withdrawn or modified in a manner adverse to Parent its
approval or recommendation of this Agreement, the Offer or the Merger or
shall have recommended or taken no position with respect to an Alternative
Proposal to the shareholders of the Company; or (ii) there has been a
breach of any representation, warranty, covenant or agreement on the part
of the Company set forth in the Merger Agreement, which breach (A) would
give rise to the failure of a condition to the Offer and (B) is not curable
or, if curable, has not been cured within 30 days following receipt by the
Company of notice of such breach from Parent.
If the Merger Agreement is validly terminated by either the Company or
Parent, the Merger Agreement will forthwith become null and void and there will
be no liability or obligation on the part of either the Company or Parent (or
any of their respective Representatives or affiliates), except that (i) certain
provisions of the Merger Agreement relating to expenses and brokers or finders
will continue to apply following any such termination, and (ii) nothing
contained in the Merger Agreement shall relieve any party from liability for
willful breach of its representations, warranties, covenants or agreements
contained in the Merger Agreement.
AMENDMENT; WAIVERS. The Merger Agreement may be amended, supplemented or
modified by action taken by or on behalf of the respective Boards of Directors
(or, in the case of Parent, its general partner) of the parties at any time
prior to the Effective Time, whether prior to or after the Company Shareholders'
Approval shall have been obtained, but after such adoption and approval only to
the extent permitted by applicable law. Subject to the terms of the Merger
Agreement, at any time prior to the Effective Time any party, by action taken by
or on behalf of its Board of Directors (or, in the case of Parent, its general
partner), may to the extent permitted by applicable law (i) extend the time for
the performance of any of the obligations or other acts of the other parties,
(ii) waive any inaccuracies in the representations and warranties of the other
parties contained in the Merger Agreement or in any document delivered pursuant
to the Merger Agreement or (iii) waive compliance with any of the covenants,
agreements or conditions of the other parties contained in the Merger Agreement.
No waiver by any party of any term or condition of the Merger Agreement, in any
one or more instances, shall be deemed to be or construed as a waiver of the
same or any other term or condition of the Merger Agreement on any future
occasion.
(C) APPRAISAL RIGHTS.
If the Merger is effected with a vote of the Company's shareholders and if
on the record date fixed to determine the shareholders entitled to vote, the
Shares are listed on the New York Stock Exchange or other national securities
exchange, are designated as a Nasdaq National Market security or are hold of
record by
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2,000 or more of such shareholders, then holders of Shares will not have
dissenters' rights under the FBCA. If, however, the Merger is consummated
without the vote of the Company's shareholders or with a vote but the Shares are
not so listed or designated or are not held of record by at least 2,000
shareholders, holders of Shares will have certain rights pursuant to the
provisions of Sections 607.1301, 607.1302 and 607.1320 of the FBCA to dissent
and demand determination, and to receive payment in cash, of the fair value of
their Shares. If the statutory procedures were complied with, such rights could
lead to a judicial determination of the fair value required to be paid in cash
to such dissenting holders for their Shares. Any such judicial determination of
the fair value of Shares or the market value of the Shares could be more or less
than in the Merger Consideration. Section 607.1301(2) of the FBCA defines "fair
value" as the value of the shares excluding any appreciation or depreciation in
anticipation of the transaction unless such exclusion would be inequitable.
If any holder of Shares who asserts dissenters' rights under the FBCA fails
to perfect, or effectively withdraws or loses his or her dissenters' rights, as
provided in the FBCA, the Shares of such shareholder will be converted into the
right to receive the price provided for in the Merger Agreement in accordance
with the Merger Agreement. A shareholder may withdraw his or her notice of
election to dissent by delivery to Parent of a written withdrawal of his or her
notice of election to dissent and acceptance of the Merger.
Parent does not intend to object, assuming the proper procedures are
followed, to the exercise of appraisal rights by any shareholder and the demand
for appraisal of, and payment in cash for the fair value of, the Shares. Parent
may, however, cause the Surviving Corporation to argue in an appraisal
proceeding that, for purposes of such proceeding, the fair value of each Share
is less than the price paid in the Merger. In this regard, shareholders should
be aware that opinions of investment banking firms as to the fairness from a
financial point of view are not necessarily opinions as to "fair value" under
Section 607.1301(2) of the FBCA. Pursuant to Section 607.1302(5) of the FBCA, a
shareholder entitled to dissent and obtain payment for his or her shares who
fails to exercise his or her appraisal rights may not challenge the corporate
action unless the corporate action is unlawful or fraudulent with respect to the
shareholder or the Company.
FAILURE TO FOLLOW THE STEPS REQUIRED BY THE FBCA FOR PERFECTING DISSENTERS'
RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS.
(D) PLANS FOR THE COMPANY.
Except as otherwise set forth in this Offer to Purchase, it is expected
that, initially following the Merger, the Surviving Corporation will continue
the business and operations of the Company substantially as they are currently
being conducted. Except as indicated in this Offer to Purchase and the Asset
Purchase Agreement, Parent does not have any present plans or proposals which
relate to or would result in any material change in the Company's capitalization
or dividend policy.
On September 27, 1999, the Company announced that Pasco and the Company
executed an Asset Purchase Agreement (such Asset Purchase Agreement is attached
as an Exhibit to the Company's Schedule 14D-9, filed with the Commission on
October 1, 1999), whereby Pasco agreed to buy and the Company agreed to sell
certain assets and liabilities related to the Company's citrus processing and
packaging and food service businesses, including the working capital associated
with such businesses. Pursuant to and concurrent with the signing of the Asset
Purchase Agreement, a subsidiary of Pasco acquired the assets and assumed
certain liabilities associated with the food service business, including the
working capital related thereto, and made a payment to the Company of
$17,925,000 plus a payment of $11,767,548 for the value of the net working
capital of the food service business as of such date. Following the satisfaction
of certain conditions set forth in the Asset Purchase Agreement, Pasco will
acquire the Company's citrus processing and packaging business, including
certain working capital related thereto, and will make a payment to the Company
equal to the value of the net working capital of the Company's citrus processing
and packaging business as of such date. The sale of the citrus processing and
packaging business is not expected to occur before the Merger; however, if the
Offer has not been consummated by November 15, 1999, the Company is required to
seek separate shareholder approval of the sale transaction and, upon such
approval, must waive the condition that the Merger have occurred.
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On September 27, 1999, the Company paid from the amounts received from
Pasco on such date the outstanding balance of $21,774,689 (including interest
and premium) on its loan from John Hancock Mutual Life Insurance Company.
On September 16, 1999, Farm Credit of Southwest Florida, ACA and Farm
Credit of South Florida, ACA agreed to consent to and waive, subject to certain
conditions, any defaults under its two loan agreements with the Company caused
by the Merger Agreement or the Asset Purchase Agreement or any of the
transactions contemplated by either agreement. However, this consent and waiver
will be void if the transactions are not consummated on or before November 15,
1999. On September 23, 1999, the Company received a letter from SunTrust Bank,
Central Florida, N.A., pursuant to which SunTrust Bank agreed, subject to
certain conditions, to temporarily waive certain sections of the loan agreement,
dated as of June 16, 1993 by and among SunTrust Bank and the Company that would
be breached by the transactions contemplated by the Merger Agreement and the
Asset Purchase Agreement. As a condition to this temporary waiver, the Company
was required to provide SunTrust Bank with a mortgage lien and security interest
in certain processing plant and related assets to be held in escrow. This
mortgage will be recorded if the entire outstanding principal balance of the
lien, together with accrued but unpaid interest, is not paid in full by November
30, 1999.
Historically the Company has used the production from its groves in its
citrus processing operations. Since the Company has agreed to sell these
operations, discussions have been held with third parties concerning the
long-term sale of this production. Also, discussions have occurred with third
parties concerning the management, control and operation of the Company's
grove-related assets; it is not expected that any arrangements concerning these
assets would go into effect before the Merger.
12. SOURCE AND AMOUNT OF FUNDS.
The total amount of funds required by Purchaser to purchase all Shares and
to cancel all of the Options pursuant to the Offer and to pay related fees and
expenses is expected to be approximately $34 million. Purchaser will purchase
the Shares with funds furnished to it by Parent from working capital. At the
time of the Merger, Parent may refinance the purchase with debt secured by the
Company's grove-related assets.
13. DIVIDENDS AND DISTRIBUTIONS.
The Merger Agreement provides that from the date of the Merger Agreement
until such time when Parent's designees constitute at least a majority of the
Company's Board of Directors, the Company will not, and will not permit any of
its subsidiaries to, (i) declare, set aside or pay any dividend or make other
distributions in respect of any of its capital stock, except for the declaration
and payment of dividends by a wholly-owned subsidiary solely to its parent
corporation, (ii) split, combine, reclassify or take similar action with respect
to any of its capital stock or issue or authorize or propose the issuance of any
other securities in respect of, in lieu of or in substitution for shares of its
capital stock, directly or indirectly redeem, repurchase or otherwise acquire
any shares of its capital stock or any Option with respect thereto; (iii) issue,
deliver or sell, or authorize or propose the issuance, delivery or sale of, any
share of its capital stock or any Option with respect thereto (other than (x)
the issuance of Shares of the Company upon exercise of Company Stock Options
outstanding on the date of the Merger Agreement and (y) the issuance by a
wholly-owned subsidiary of its capital stock to its parent corporation), or
modify or amend any right of any holder of outstanding shares of capital stock
or Options with respect thereto.
If, on or after September 27, 1999, the Company should declare or pay any
cash dividend on the Shares or other distribution on the Shares, or issue with
respect to the Shares any additional Shares, shares of any other class of
capital stock, voting debt or any securities convertible into, or rights,
warrants or options, conditional or otherwise, to acquire any of the foregoing,
payable or distributable to shareholders of record on a date prior to the
transfer to the name of the Purchaser or its nominee or transferee on the
Company's stock transfer records of the Shares purchased pursuant to the Offer,
then subject to the provisions of the Merger Agreement, (i) the purchase price
per Share payable by the Purchaser pursuant to the Offer may, in the sole
discretion of the Purchaser, be reduced by the amount of any such cash dividend
or cash distribution and
23
<PAGE> 26
(ii) the whole of any such noncash dividend, distribution or issuance to be
received by the tendering shareholders will (a) be received and held by the
tendering shareholders for the account of the Purchaser and will be required to
be promptly remitted and transferred by each tendering shareholder to the
Depository for the account of the Purchaser, accompanied by appropriate
documentation of transfer, or (b) at the direction of the Purchaser, be
exercised for the benefit of the Purchaser, in which case the proceeds of such
exercise will promptly be remitted to the Purchaser. Pending such remittance,
the Purchaser will be entitled to all rights and privileges as owner of any such
noncash dividend, distribution, issuance or proceeds and may withhold the entire
purchase price or deduct from the purchase price the amount or value thereof, as
determined by the Purchaser in its sole discretion.
14. CERTAIN CONDITIONS OF THE OFFER.
Notwithstanding any other provision of the Offer, Purchaser shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the Commission, pay for, and may (subject to any such rule or
regulation) delay the acceptance for payment of any tendered Shares, and may
(except as provided in the Merger Agreement) amend or terminate the Offer as to
any Shares not then paid for, if at any time on or after the date of the Merger
Agreement and before the time of payment for any such Shares (whether or not any
Shares have theretofore been accepted for payment or paid for pursuant to the
Offer), any of the following events shall have occurred and remain in effect:
(a) there shall have been any law or order promulgated, entered,
enforced, enacted, issued or deemed applicable to the Offer or the Merger
by any court of competent jurisdiction or other competent governmental or
regulatory authority which, directly or indirectly, (1) prohibits, or
imposes any material limitations on, Parent's or Purchaser's ownership or
operation (or that of any of their respective subsidiaries or affiliates)
of any portion of their or the Company's businesses or assets which is
material to (i) the Company's ownership, harvesting, planting and
management of citrus groves in Florida ("Grove Operations") or (ii) the
business of all such entities taken as a whole, or compels Parent or
Purchaser (or their respective subsidiaries or affiliates) to dispose of or
hold separate any portion of their or the Company's business or assets
which is material to (i) the Grove Operations or (ii) the business of all
such entities taken as a whole, (2) prohibits, restrains or makes illegal
the acceptance for payment, payment for or purchase of Shares pursuant to
the Offer or the consummation of the Merger, (3) imposes material
limitations on the ability of Purchaser or Parent (or any of their
respective subsidiaries or affiliates) effectively to acquire or to hold or
to exercise full rights of ownership of Shares purchased pursuant to the
Offer including, without limitation, the right to vote such shares on all
matters properly presented to the Company's shareholders, (4) imposes
material limitations on the ability of Purchaser or Parent (or any of their
respective subsidiaries or affiliates) effectively to control in any
material respect any material portion of the business or assets of the
Company and its subsidiaries taken as a whole, or (5) otherwise materially
adversely affects (i) the Grove Operations or (ii) the Company and its
subsidiaries taken as a whole;
(b) there shall be instituted or pending any action, suit or
proceeding brought by a governmental or regulatory authority (1)
challenging the acquisition by Parent or Purchaser of Shares of the Company
or otherwise seeking to restrain or prohibit the making or consummation of
the Offer or the Merger or (2) that could reasonably be expected to result,
directly or indirectly, in any of the consequences referred to in paragraph
(a) above;
(c) there shall have occurred (1) any general suspension of trading
in, or limitation on prices for, securities on any United States national
securities exchange or in the over-the-counter market, (2) a declaration of
a banking moratorium or any suspension of payments in respect of banks in
the United States (whether or not mandatory), (3) a commencement of a war
involving the United States, (4) any limitation (whether or not mandatory)
by any United States governmental or regulatory authority on the extension
of credit by banks or other financial institutions, (5) any decline in
either the Dow Jones Industrial Average or the Standard & Poor's 500 Index
by an amount in excess of 30% measured from the close of business on the
date of the execution of the Merger Agreement or (6) in the case of any of
the
24
<PAGE> 27
foregoing (other than clause (5)) existing at the time of the execution of
the Merger Agreement, a material acceleration or worsening thereof;
(d) except as disclosed in the Company Commission reports filed prior
to the date of the execution of the Merger Agreement, since September 27,
1999, there shall have been any change, event or development having, or
that could reasonably be expected to have, individually or in the
aggregate, a material adverse effect on (i) the Grove Operations or (ii)
the Company and its subsidiaries taken as a whole;
(e) the representations and warranties made by the Company in the
Merger Agreement shall not have been true and correct as of the date of
execution of the Merger Agreement (or any other date as of which they are
specifically made) or shall thereafter cease to be true and correct (in
each case giving effect to any materiality standard included in such
representations and warranties);
(f) the Company shall not have performed and complied with, in all
material respects, each agreement and covenant required by the Merger
Agreement to be performed or complied with by it;
(g) the Merger Agreement shall have been terminated in accordance with
its terms;
(h) the Asset Purchase Agreement shall not have been duly executed and
delivered by the parties thereto, such agreement shall not remain in full
force and effect, any party to any such agreement shall be in default
thereunder or any condition to the performance of any such parties'
obligation to perform under such agreement shall not have been satisfied or
shall not be capable of being satisfied within any time period limitations
set forth in such agreements; or
(i) Parent, Purchaser and the Company shall have agreed that Purchaser
shall amend the Offer to terminate the Offer or postpone the payment for
Shares thereunder;
which in the sole judgment of Parent and Purchaser, in any such case, and
regardless of the circumstances (including any action or inaction by Parent or
Purchaser giving rise to such condition) makes it inadvisable to proceed with
the Offer or with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Parent and Purchaser,
may be asserted by Parent and Purchaser regardless of the circumstances
(including any action or inaction by Parent or any of its Subsidiaries) giving
rise to any such condition and, subject to the terms and conditions of the
Merger Agreement, may be waived by Parent and Purchaser, in whole or in part at
any time and from time to time in the sole discretion of Parent and Purchaser.
The failure by Parent and Purchaser at any time to exercise any of the foregoing
rights shall not be deemed a waiver of any such right and each such right shall
be deemed an ongoing right which may be asserted at any time and from time to
time.
15. CERTAIN LEGAL MATTERS; REQUIRED REGULATORY APPROVALS.
GENERAL. Except as set forth in this Offer to Purchase, Parent is not
aware of any licenses or regulatory permits that appear to be material to the
business of the Company and its subsidiaries, taken as a whole, and that might
be adversely affected by Purchaser's acquisition of Shares (and the indirect
acquisition of the stock of the Company's subsidiaries) as contemplated herein,
or any filings, approvals or other actions by or with any domestic, foreign or
supranational governmental authority or administrative or regulatory agency that
would be required for the acquisition or ownership of the Shares (or the
indirect acquisition of the stock of the Company's subsidiaries) by Purchaser
pursuant to the Offer as contemplated herein. Should any such approval or other
action be required, it is presently contemplated that such approval or action
would be sought except as described below under "State Takeover Laws." Should
any such approval or other action be required, there can be no assurance that
any such approval or action would be obtained without substantial conditions or
that adverse consequences might not result to the Company's or its subsidiaries'
businesses, or that certain parts of the Company's, Parent's, Purchaser's or any
of their respective subsidiaries' businesses might not have to be disposed of or
held separate or other substantial conditions complied with in order to obtain
such approval or action or in the event that such approvals were not obtained or
such actions were not
25
<PAGE> 28
taken. Purchaser's obligation to purchase and pay for Shares is subject to
certain conditions, including conditions with respect to litigation and
governmental actions. See Introduction and Section 14.
STATE TAKEOVER LAWS. A number of states (including Florida where the
Company is incorporated) have adopted takeover laws and regulations which
purport, to varying degrees, to be applicable to attempts to acquire securities
of corporations which are incorporated in such states or which have substantial
assets, shareholders, principal executive offices or principal places of
business therein. To the extent that certain provisions of certain of these
state takeover statutes purport to apply to the Offer or the Merger, Purchaser
believes that such laws conflict with federal law and constitute an
unconstitutional burden on interstate commerce. In 1982, the Supreme Court of
the United States, in Edgar v. Mite Corp, invalidated on constitutional grounds
the Illinois Business Takeovers Statute, which as a matter of state securities
law made takeovers of corporations meeting certain requirements more difficult.
The reasoning in such decision is likely to apply to certain other state
takeover statutes. In 1987, however, in CTS Corp. v. Dynamics Corp. of America,
the Supreme Court of the United States held that the State of Indiana could as a
matter of corporate law and, in particular, those aspects of corporate law
concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without the prior
approval of the remaining shareholders, provided that such laws were applicable
only under certain conditions.
Section 607.0901 of the FBCA (the "Affiliated Transactions Statute")
prohibits certain "affiliated transactions" (defined to include mergers and
consolidations) involving a Florida corporation and an "interested shareholder"
(defined generally as a person who is the beneficial owner of more than 10% of
the outstanding voting shares of the subject corporation) unless the transaction
has been approved by (i) a majority of "disinterested directors" of the subject
corporation (defined generally as directors who were elected to the board prior
to the time of the shareholder became an interested shareholder), (ii) holders
of two-thirds of the outstanding voting shares of the subject corporation,
exclusive of those shares beneficially owned by the shareholder who, but for
such approval, would be an "interested shareholder" or (iii) certain other
statutory conditions have been met. At a meeting held on September 8, 1999, the
Special Committee of the Board of Directors of the Company unanimously approved
the Merger Agreement, the Merger and the transactions contemplated thereby and
determined that each of the Offer and the Merger are fair to, and in the best
interest of, the Company's shareholders. Thus, the Affiliated Transaction
Statute is inapplicable to the Merger Agreement and the transactions
contemplated thereby.
Section 607.0902 of the FBCA (the "Control Share Acquisition Statute")
limits, in certain circumstances, the voting rights of "control shares" (defined
generally as those shares of an issuing public corporation which, when added to
the number of shares of the corporation already owned or controlled by a person,
entitle that person, immediately after the acquisition of the shares, to
exercise, directly or indirectly, alone or as part of a group, at least
one-fifth of the voting power of the corporation in the election of directors)
acquired in a "control share acquisition" (defined generally to mean the
acquisition directly or indirectly by any person of ownership of, where the
person is to direct the exercise of, voting power with respect to issued and
outstanding control shares). The Company has represented that it has taken all
necessary actions so that the Control Share Acquisition Statute will not apply
to the Offer, the Merger, the BHG Purchase or the other transactions
contemplated by the Merger Agreement.
Pursuant to the Merger Agreement, the Company has represented that the
Company's Board of Directors has taken appropriate action to render Sections
607.0901 and 607.0902 of the FBCA inapplicable to the Offer, the Merger and the
transactions contemplated by the Merger Agreement. Purchaser reserves the right
to challenge the validity or applicability of any state law allegedly applicable
to the Offer or the Merger, and nothing in this Offer to Purchase nor any action
taken in connection herewith is intended as a waiver of that right. In the event
that it is asserted that one or more takeover statutes apply to the Offer or the
Merger, and it is not determined by an appropriate court that such statute or
statutes do not apply or invalid as applied to the Offer or the Merger, as
applicable, Purchaser may be required to file certain documents with, or receive
approvals from, the relevant state authorities, and Purchaser might be unable to
accept for payment or purchase Shares tendered pursuant to the Offer or be
delayed in continuing or consummating the Offer. In such case, Purchaser may not
be obligated to accept for purchase, or pay for, any Shares tendered. See
Section 14.
26
<PAGE> 29
UNITED STATES ANTITRUST APPROVALS. Under the HSR Act, and the rules and
regulations that have been promulgated thereunder by the FTC, certain
acquisition transactions may not be consummated until certain information and
documentary material has been furnished for review by the FTC and the Antitrust
Division and certain waiting period requirements have been satisfied. The
acquisition of Shares pursuant to the Offer and the Merger would not be subject
to such requirements because Purchaser already owns a majority of the Company's
Shares. See Section 10.
FOREIGN APPROVALS. According to publicly available information, the
Company conducts business in a number of foreign countries and jurisdictions. In
connection with the acquisition of the Shares pursuant to the Offer or the
Merger, the laws of certain of those foreign countries and jurisdictions may
require the filing of information with, or the obtaining of the approval or
consent of, governmental authorities in such countries and jurisdictions. The
governments in such countries and jurisdictions might attempt to impose
additional conditions on the Company's operations conducted in such countries
and jurisdictions as a result of the acquisition of the Shares pursuant to the
Offer or the Merger. If such approvals or consents are found to be required the
parties intend to make the appropriate filings and applications. In the event
such a filing or application is made for the requisite foreign approvals or
consents, there can be no assurance that such approvals or consents will be
granted and, if such approvals or consents are received, there can be no
assurance as to the date of such approvals or consents. In addition, there can
be no assurance that Purchaser will be able to cause the Company or its
subsidiaries to satisfy or comply with such laws or that compliance or
noncompliance will not have adverse consequences for the Company or any
subsidiary after purchase of the Shares pursuant to the Offer or the Merger.
"GOING PRIVATE" RULE. Rule 13e-3 under the Exchange Act is applicable to
certain "going private" transactions. Rule 13e-3 under the Exchange Act
requires, among other things, that certain financial information concerning the
fairness of the proposed transaction and the consideration offered to minority
shareholders in such transaction be filed with the Commission and disclosed to
shareholders prior to the consummation of the transaction.
Rule 13e-3(g)(1) exempts transactions from its requirements if: (i) the
13e-3 transaction occurs within one year of the date a tender offer in which the
acquirer became an affiliate of the issuer terminates, provided that the
consideration offered to the remaining shareholders is at least equal to the
consideration offered pursuant to the tender offer, (ii) the tender offer was
made for all the securities of a class of the issuer and (iii) such tender offer
(x) fully disclosed the intention to engage in a Rule 13e-3 transaction, the
form and effect of such transaction and, to the extent known, the proposed terms
of such transaction and (y) the subsequent Rule 13e-3 transaction is
substantially similar to that described in the tender offer. In interpreting
this exception and its applicability to transactions involving the purchase of a
controlling interest in a class of equity securities of an issuer and a
subsequent acquisition of the balance of the outstanding securities of such
class, the Commission's Division of Corporation Finance has taken a "no-action"
position, provided certain conditions are met. These conditions are: (i) prior
to the initial acquisition of securities, there was no affiliation between the
issuer and the acquiring entity; (ii) the initial acquisition of and the
second-step transaction are made pursuant to an agreement or agreements for the
acquisition of the entire class of securities at the same unit price; (iii) the
intention to engage in the second-step transaction was publicly announced at the
time of the initial acquisition, and the second-step transaction is effected
within a relatively short period of time thereafter; and (iv) the acquiring
entity will not change the management or the board of directors, or otherwise
exercise control, of the issuer prior to the completion of the second-step
transaction. The Commission has stated that the initial purchase and the
subsequent acquisition of the balance of the outstanding securities of the class
at the same unit price pursuant to an agreement disclosed at the time of the
initial purchase may properly be regarded as a unitary transaction by a
non-affiliate, and such transactions do not present the potential for abuse at
which Rule 13e-3 was directed. These conditions are satisfied here and thus
Parent and Purchaser believe that Rule 13e-3 does not apply to the Offer or the
Merger.
27
<PAGE> 30
16. CERTAIN FEES AND EXPENSES.
MacKenzie Partners, Inc. has been retained by Parent and Purchaser to act
as Information Agent and SunTrust Bank, Atlanta has been retained by Parent and
Purchaser to act as the Depositary in connection with the Offer. The Information
Agent may contact holders of Shares by mail, telephone, telex, telegraph and
personal interview and may request brokers, dealers and other nominee
shareholders to forward material relating to the Offer to beneficial owners of
Shares. Parent and Purchaser will pay the Information Agent and the Depositary
reasonable and customary compensation for all such services, reimburse the
Information Agent and Depositary for reasonable out-of-pocket expenses in
connection therewith, and indemnify the Information Agent and the Depositary
against certain liabilities and expenses in connection therewith, including
certain liabilities under the federal securities laws.
Except as set forth above, neither Parent nor Purchaser will pay any fees
or commissions to any broker, dealer or other person for soliciting tenders of
Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust
companies and other nominees will, upon request, be reimbursed by Parent and
Purchaser for customary clerical and mailing expenses incurred by them in
forwarding offering materials to their customers.
17. MISCELLANEOUS.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares residing in any jurisdiction in which the making of
the Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other laws of such jurisdiction. However, Purchaser may,
in its discretion, take such action as it may deem necessary to make the Offer
in any jurisdiction and extend the Offer to holders of Shares in such
jurisdiction.
In any jurisdiction where the securities, blue sky or other laws require
the Offer to be made by a licensed broker or dealer, the Offer will be deemed to
be made on behalf of Purchaser by one or more registered brokers or dealers that
are licensed under the laws of such jurisdiction.
Parent and Purchaser have filed with the Commission a Schedule 14D-1,
together with exhibits, pursuant to Rule 14d-3 of the General Rules and
Regulations under the Exchange Act, furnishing certain additional information
with respect to the Offer, and may file amendments thereto. Such Schedule 14D-1
and any amendments thereto, including exhibits such as the Merger Agreement, may
be examined and copies may be obtained from the office of the Commission in the
same manner as described in Section 8 with respect to information concerning the
Company, except that copies will not be available at the regional offices of the
Commission.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF PARENT OR PURCHASER NOT CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, ANY SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Neither the delivery of the Offer to Purchase nor any purchase pursuant to
the Offer shall under any circumstances create any implication that there has
been no change in the affairs of Parent, Purchaser, the Company or any of their
respective subsidiaries since the date as of which information is furnished or
the date of this Offer to Purchase.
OJ ACQUISITION CORP.
October 1, 1999
28
<PAGE> 31
SCHEDULE I
CONTROL PERSONS AND EXECUTIVE OFFICERS OF PARENT AND PURCHASER
1. CONTROL PERSONS AND EXECUTIVE OFFICERS OF PARENT. Set forth below is
the name, age, present principal occupation or employment and five-year
employment history of each control person and executive officer of RCM, RCG and
Purchaser. RCM is the managing member of RCG, which is the general partner and
control person of RCA, RCP and RCMF. RCA, RCP and RCMF have no executive
officers. Each person listed below has his or her principal business address at
650 Madison Avenue, 26th Floor, New York, NY 10022. Unless otherwise indicated,
all persons listed below are citizens of the United States of America.
RESERVOIR CAPITAL MANAGEMENT, L.L.C.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
NAME OFFICE OR EMPLOYMENT; 5-YEAR EMPLOYMENT HISTORY
- ------------------- ----------------------------- -------------------------------------------
<S> <C> <C>
Daniel H. Stern President and Chief Executive Mr. Stern is presently the President, Chief
Officer and Senior Managing Executive Officer and Senior Managing
Member Member of RCM and RCG. Prior to joining RCM
and RCG, Mr. Stern co-founded and was
President of Ziff Brothers Investments,
L.L.C. ("ZBI") from 1992 to 1997.
Craig A. Huff Managing Member and Managing Mr. Huff is presently a Managing Member and
Director Managing Director of RCM, and a Managing
Director of RCG. Prior to joining RCM and
RCG, Mr. Huff was a partner at ZBI in 1997
and a principal from 1993 to 1996.
Gregg M. Zeitlin Managing Member and Managing Mr. Zeitlin is presently a Managing Member
Director and Managing Director of RCM and a Managing
Director of RCG. Prior to joining RCM and
RCG, Mr. Zeitlin was a partner at ZBI in
1997 and a principal from 1995 to 1996.
Before joining ZBI, Mr. Zeitlin was Vice
President, Financial Strategy for Ziff
Communications Company ("ZCC"), a media and
electronic information business from 1994
to 1995.
Celia A. Felsher Secretary and General Counsel Ms. Felsher is presently the Secretary and
General Counsel of both RCM and RCG. Prior
to joining RCM and RCG in July 1998, Ms.
Felsher was a partner in the law firm of
Milbank, Tweed, Hadley & McCloy LLP from
January 1, 1988 until December 31, 1997 and
was Of Counsel at Milbank from January 1,
1998 through June 1998.
Salvatore DiFranco Chief Financial Officer and Mr. DiFranco is presently the Chief
Treasurer Financial Officer and Treasurer of both RCM
and RCG. Prior to joining RCM and RCG in
August 1998, Mr. DiFranco was a partner at
Ernst & Young LLP from 1994 to 1998. Mr.
DiFranco served as a general partner of an
investment adviser (EGS Partners, L.P.) and
affiliated investment partnerships from
1990 to 1994.
</TABLE>
I-1
<PAGE> 32
RESERVOIR CAPITAL GROUP, L.L.C.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
NAME OFFICE OR EMPLOYMENT; 5-YEAR EMPLOYMENT HISTORY
- ------------------- ----------------------------- -------------------------------------------
<S> <C> <C>
Daniel H. Stern President, Chief Executive See information under Reservoir Capital
Officer and Senior Managing Management L.L.C.
Member
Craig A. Huff Managing Director See information under Reservoir Capital
Management L.L.C.
Gregg M. Zeitlin Managing Director See information under Reservoir Capital
Management L.L.C.
Celia A. Felsher Secretary and General Counsel See information under Reservoir Capital
Management L.L.C.
Salvatore DiFranco Chief Financial Officer and See information under Reservoir Capital
Treasurer Management L.L.C.
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER. Unless otherwise
indicated below, all information concerning each person listed below is the same
as shown above.
DIRECTORS
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
NAME OFFICE HELD IN PURCHASER OR EMPLOYMENT; 5-YEAR EMPLOYMENT HISTORY
- ------------------- ----------------------------- -------------------------------------------
<S> <C> <C>
Daniel H. Stern Chairman of the Board See information under Reservoir Capital
Management, L.L.C.
Craig A. Huff Co-President See information under Reservoir Capital
Management, L.L.C.
Gregg M. Zeitlin Co-President See information under Reservoir Capital
Management, L.L.C.
</TABLE>
OFFICERS
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
NAME OFFICE HELD IN PURCHASER OR EMPLOYMENT; 5-YEAR EMPLOYMENT HISTORY
- ------------------- ----------------------------- -------------------------------------------
<S> <C> <C>
Daniel H. Stern Chairman of the Board See information under Reservoir Capital
Management, L.L.C.
Craig A. Huff Co-President See information under Reservoir Capital
Management, L.L.C.
Gregg M. Zeitlin Co-President See information under Reservoir Capital
Management, L.L.C.
Celia A. Felsher Secretary Treasurer See information under Reservoir Capital
Management, L.L.C.
Salvatore DiFranco Treasurer See information under Reservoir Capital
Management, L.L.C.
</TABLE>
I-2
<PAGE> 33
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates for Shares
and any other required documents should be sent or delivered by each shareholder
of the Company or his or her broker, dealer, commercial bank, trust company or
other nominee to the Depositary at one of its addresses set forth below:
The Depositary for the Offer is:
SUNTRUST BANK, ATLANTA
<TABLE>
<S> <C> <C>
Facsimile for Eligible By Mail: By Overnight Courier:
Institutions: SunTrust Bank, Atlanta SunTrust Bank, Atlanta
404-865-5371 Post Office Box 4625 Stock Transfer Department
Atlanta, Georgia 30302 58 Edgewood Avenue
Confirm by Telephone: Room 225, Annex
1-800-568-3476 Atlanta, Georgia 30303
</TABLE>
Questions and requests for assistance may be directed to the Information
Agent at the address and telephone number set forth below. Additional copies of
this Offer to Purchase, the Letter of Transmittal and other tender offer
materials may be obtained from the Information Agent as set forth below and will
be furnished promptly at Purchaser's expense. Shareholders may also contact
their broker, dealer, commercial bank, trust company or other nominee for
assistance concerning the Offer.
The Information Agent for the Offer is:
LOGO
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
or
Call Toll Free (800) 322-2885
<PAGE> 1
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
ORANGE-CO, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED OCTOBER 1, 1999
BY
OJ ACQUISITION CORP.
WHICH IS INDIRECTLY CONTROLLED BY
RESERVOIR CAPITAL GROUP, L.L.C.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON OCTOBER 29, 1999, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
SUNTRUST BANK, ATLANTA
<TABLE>
<S> <C> <C>
Facsimile for Eligible By Mail: By Overnight Courier:
Institutions: SunTrust Bank, Atlanta SunTrust Bank, Atlanta
404-865-5371 Post Office Box 4625 Stock Transfer Department
Atlanta, Georgia 30302 58 Edgewood Avenue
Confirm by Telephone: Room 225, Annex
1-800-568-3476 Atlanta, Georgia 30303
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE> 2
This Letter of Transmittal is to be completed by shareholders either if
certificates for Shares (as defined in the Offer to Purchase dated October 1,
1999 (the "Offer to Purchase")) are to be forwarded herewith or, unless an
Agent's Message (as defined in the Offer to Purchase) is utilized, if tenders of
Shares are to be made by book-entry transfer to an account maintained by
SunTrust Bank, Atlanta (the "Depositary") at The Depository Trust Company
("DTC") (the "Book-Entry Transfer Facility"), pursuant to the procedures set
forth in Section 3 of the Offer to Purchase. Shareholders who tender Shares by
book-entry transfer are referred to herein as "Book-Entry Shareholders."
Holders of Shares whose certificates for such Shares (the "Share
Certificates") are not immediately available or who cannot deliver their Share
Certificates and all other required documents to the Depositary on or prior to
the Expiration Date (as defined in the Offer to Purchase) or who cannot complete
the procedures for book-entry transfer on a timely basis must tender their
Shares according to the guaranteed delivery procedures set forth in Section 3 of
the Offer to Purchase. See Instruction 2.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE
WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY
TO THE DEPOSITARY.
NOTE: SIGNATURES MUST BE PROVIDED ON THE INSIDE AND REVERSE BACK COVER.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
[ ] CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER FACILITY
AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
Name of Book-Entry Transfer Facility:
Account Number: Transaction Code Number:
[ ] CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING.
PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
Name(s) of Registered Holder(s):
Window Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution which Guaranteed Delivery:
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- ---------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARE CERTIFICATE(S) AND SHARE(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) APPEAR ON TENDERED (ATTACH ADDITIONAL LIST, IF
SHARE CERTIFICATE(S) TENDERED NECESSARY)
- ---------------------------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES
SHARE REPRESENTED NUMBER OF
CERTIFICATE BY SHARE SHARES
NUMBER(S)* CERTIFICATES(S)* TENDERED**
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
TOTAL
SHARES
- ---------------------------------------------------------------------------------------------------
* Need not be completed by Book-Entry Shareholders.
** Unless otherwise indicated it will be assumed that all Shares represented by Share
Certificates delivered to the Depositary are being tendered. See Instruction 4.
- ---------------------------------------------------------------------------------------------------
</TABLE>
Ladies and Gentlemen:
The undersigned hereby tenders to OJ Acquisition Corp. ("Purchaser"), a
Florida corporation, all the stock of which is owned by Reservoir Capital
Partners, L.P., a Delaware limited partnership ("RCP"), Reservoir Capital
Associates, L.P., a Delaware limited partnership ("RCA") and Reservoir Capital
Master Fund, L.P., a limited partnership organized under the laws of the Cayman
Islands ("RCMF"), pursuant to Purchaser's offer to purchase all outstanding
Shares of Orange-co, Inc., a Florida corporation (the "Company"), not owned by
them, at a price of $7.00 per Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in the Offer to
Purchase, receipt of which is hereby acknowledged, and in this Letter of
Transmittal (which together with the Offer to Purchase constitute the "Offer").
The general partner of each of RCP, RCA and RCMF is Reservoir Capital Group,
L.L.C., a Delaware limited liability company ("RCG"), whose managing member is
Reservoir Capital Management, L.L.C., a Delaware limited liability company
("RCM" and, together with RCP, RCA and RCMF, the "Parent"). The undersigned
understands that Purchaser reserves the right to transfer or assign, in whole or
from time to time in part, to one or more of its direct or indirect subsidiaries
or affiliates the right to purchase all or any portion of the Shares tendered
pursuant to the Offer. As used herein, the term "Purchaser" shall, if
applicable, include any such subsidiary and affiliate.
Subject to, and effective upon, acceptance for payment of and payment for
the Shares tendered hereby in accordance with the terms and subject to the
conditions of the Offer, the undersigned hereby sells, assigns, and transfers
to, or upon the order of, Purchaser all right, title and interest in and to all
of the Shares that are being tendered hereby and any and all dividends on the
Shares (including, without limitation, the issuance of additional Shares
pursuant to a stock dividend or stock split, the issuance of other securities,
the issuance of rights for the purchase of any securities, or any cash dividends
that are declared or paid by the Company on or after the date of the Offer to
Purchase and are payable or distributable to shareholders of record on a date
prior to the transfer into the name of Purchaser or its nominees or transferees
on the Company's stock transfer records of the Shares purchased pursuant to the
Offer (collectively, "Distributions")), and constitutes and irrevocably appoints
the Depositary the true and lawful agent, attorney-in-fact and proxy of the
undersigned to the full extent of the undersigned's rights with respect to such
Shares (and Distributions) with full power of substitution (such power of
attorney and proxy being deemed to be irrevocable and coupled with an interest),
to (a) deliver Share Certificates (and Distributions), or transfer ownership of
such Shares on the account books maintained by the Book-Entry Transfer Facility,
together in either such case with all accompanying evidences of transfer and
authenticity, to or upon the order of Purchaser upon receipt by the Depositary,
as the undersigned's agent, of the purchase price, (b) present such Shares (and
Distributions) for transfer on the books of the Company and (c) receive all
benefits
<PAGE> 4
and otherwise exercise all rights of beneficial ownership of such Shares (and
Distributions), all in accordance with the terms of the Offer.
The undersigned hereby irrevocably appoints designees of Purchaser as such
shareholder's agents, attorneys-in-fact and proxies, with full power of
substitution, in the manner set forth in the Letter of Transmittal, to the full
extent of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by Purchaser and with respect to any and
all other Shares and other securities or rights issued or issuable in respect of
such Shares on or after the date of the Offer to Purchase. All such powers of
attorney and proxies will be considered irrevocable and coupled with an interest
in the tendered Shares. Such appointment will be effective upon the acceptance
for payment of such Shares by Purchaser in accordance with the terms of the
Offer. Upon such acceptance for payment, all other powers of attorney and
proxies given by such shareholder with respect to such Shares and such other
securities or rights prior to such payment will be revoked, without further
action, and no subsequent powers of attorney and proxies may be given by such
shareholder (and, if given, will not be deemed effective). The designees of
Purchaser will, with respect to the Shares and such other securities and rights
for which such appointment is effective, be empowered to exercise all voting and
other rights of such shareholder as they in their sole discretion may deem
proper at any annual or special meeting of the Company's shareholders, or any
adjournment or postponement thereof, or by consent in lieu of any such meeting
or otherwise. The undersigned understands that in order for Shares to be deemed
validly tendered, immediately upon the acceptance for payment of such Shares,
Purchaser or its designee must be able to exercise full voting rights with
respect to such Shares and other securities, including voting at any meeting of
shareholders.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby (and Distributions), that the undersigned own(s) the Shares
tendered hereby within the meaning of Rule 14e-4 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that such
tender of Shares complies with Rule 14e-4 under the Exchange Act and that when
the same are accepted for payment by Purchaser, Purchaser will acquire good,
marketable and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and the same will not be subject to any
adverse claim. The undersigned, upon request, will execute and deliver any
additional documents reasonably deemed by the Depositary or Purchaser to be
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby (and Distributions). In addition, the undersigned shall
promptly remit and transfer to the Depositary for the account of Purchaser any
and all other Distributions in respect of the Shares tendered hereby,
accompanied by appropriate documentation of transfer and, pending such
remittance or appropriate assurance thereof, Purchaser shall be entitled to all
rights and privileges as owner of such Distributions and may withhold the entire
purchase price or deduct from the purchase price of Shares tendered hereby the
amount or value thereof, as determined by Purchaser in its sole discretion.
All authority herein conferred or herein agreed to be conferred shall not
be affected by, and shall survive, the death or incapacity of the undersigned
and any obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, legal representatives, successors and assigns of the
undersigned. Tenders of Shares pursuant to the Offer are irrevocable, except
that Shares tendered pursuant to the Offer may be withdrawn at any time on or
prior to the Expiration Date and, unless theretofore accepted for payment
pursuant to the Offer, may also be withdrawn at any time after November 29, 1999
(or such later date as may apply in the case that the Offer is extended). See
Section 4 of the Offer to Purchase.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute a binding agreement between the undersigned
and Purchaser upon the terms and subject to the conditions of the Offer.
<PAGE> 5
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any Share
Certificates not tendered or accepted for payment in the name(s) of the
undersigned. Similarly, unless otherwise indicated under "Special Delivery
Instructions," please mail the check for the purchase price and/or return any
Share Certificates not tendered or accepted for payment (and accompanying
documents as appropriate) to the undersigned at the address shown below the
undersigned's signature. In the event that both the "Special Delivery
Instructions" and the "Special Payment Instructions" are completed, please issue
the check for the purchase price and/or return any Share Certificates not
tendered or accepted for payment in the name(s) of, and deliver said check
and/or return certificates to, the person or persons so indicated. Shareholders
tendering Shares by book-entry transfer may request that any Shares not accepted
for payment be returned by crediting such account maintained at such Book-Entry
Transfer Facility as such shareholder may designate by making an appropriate
entry under "Special Payment Instructions." The undersigned recognizes that
Purchaser has no obligation pursuant to the "Special Payment Instructions" to
transfer any Shares from the name of the registered holder thereof if Purchaser
does not accept for payment any of such Shares.
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Share Certificates not tendered or not purchased
and/or the check for the purchase price of Shares purchased are to be issued in
the name of someone other than the undersigned, or if Shares tendered by
book-entry transfer which are not purchased are to be returned by credit to an
account maintained at a designated on the front cover
Issue check and/or certificates to:
Name
-------------------------------------------------------------------
(PLEASE PRINT)
Address
----------------------------------------------------------------
----------------------------------------------------------------
(INCLUDE ZIP CODE)
- -----------------------------------------------------------------------
(TAX PAYER IDENTIFICATION OR SOCIAL SECURITY NO.)
(See Substitute Form W-9)
[ ] Credit unpurchased Shares tendered by book-entry transfer to the Book-Entry
Transfer Facility account set forth below:
(Account Number)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Share Certificates not tendered or not purchased
and/or the check for the purchase price of Shares purchased are to be sent to
someone other than the undersigned, or to the undersigned at an address other
than that shown on the front cover.
Mail check and/or certificate to:
Name
-------------------------------------------------------------------
(PLEASE PRINT)
Address
----------------------------------------------------------------
----------------------------------------------------------------
(INCLUDE ZIP CODE)
- -----------------------------------------------------------------------
(TAX PAYER IDENTIFICATION OR SOCIAL SECURITY NO.)
<PAGE> 6
IMPORTANT -- SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SIGNATURE(S) OF OWNER(S)
DATED: ________________ , 1999
(Must be signed by the registered holder(s) exactly as name(s) appear(s) on
the Share Certificate(s) or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in a
fiduciary or representative capacity, please provide the necessary information.
See Instruction 5.)
Name(s):
(PLEASE PRINT)
Capacity (full title):
Address:
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number: ( )
Tax Identification or
Social Security Nos.:
(SEE SUBSTITUTE FORM W-9)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED -- SEE INSTRUCTIONS 1 AND 5)
Authorized Signature:
Name (Please print):
Name of Firm:
Address:
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
Dated: ________________, 1999
<PAGE> 7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required (i) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this document, shall include
any participant in a Book-Entry Transfer Facility whose name appears on a
security position listing as the owner of Shares) of the Shares tendered
herewith, unless such holder(s) has completed either the box entitled "Special
Payment Instructions" or the box entitled "Special Delivery Instructions" on the
inside front cover hereof or (ii) if such Shares are tendered for the account of
a firm that is a bank, broker, dealer, credit union, savings association or
other entity which is a member in good standing of the Securities Transfer
Agents Medallion Program (an "Eligible Institution"). In all other cases, all
signatures on this Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES. This Letter of
Transmittal is to be used either if Share Certificates are to be forwarded
herewith or, unless an Agent's Message is utilized, if tenders are to be made
pursuant to the procedures for tender by book-entry transfer set forth in
Section 3 of the Offer to Purchase. Share Certificates, or timely confirmation
of a book-entry transfer (a "Book-Entry Confirmation") of such Shares into the
Depositary's account at a Book-Entry Transfer Facility, as well as this Letter
of Transmittal (or a facsimile hereof), properly completed and duly executed,
with any required signature guarantees, or an Agent's Message in the case of a
book-entry delivery, and any other documents required by this Letter of
Transmittal, must be received by the Depositary at one of its addresses set
forth herein prior to the Expiration Date. Shareholders whose Share Certificates
are not immediately available or who cannot deliver their Share Certificates and
all other required documents to the Depositary prior to the Expiration Date or
who cannot complete the procedures for delivery by book-entry transfer on a
timely basis may tender their Shares by properly completing and duly executing a
Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set
forth in Section 3 of the Offer to Purchase. Pursuant to such procedure: (i)
such tender must be made by or through an Eligible Institution; (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in the
form made available by Purchaser, must be received by the Depositary on or prior
to the Expiration Date; and (iii) the Share Certificates (or a Book-Entry
Confirmation) representing all tendered Shares, in proper form for transfer
together with a properly completed and duly executed Letter of Transmittal (or a
facsimile hereof), with any required signature guarantees (or, in the case of a
book-entry delivery, an Agent's Message) and any other documents required by
this Letter of Transmittal, must be received by the Depositary within three
trading days after the date of execution of such Notice of Guaranteed Delivery.
A "trading day" is any day on which the New York Stock Exchange is open for
business. If Share Certificates are forwarded separately to the Depositary, a
properly completed and duly executed Letter of Transmittal (or facsimile hereof)
must accompany each such delivery.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THIS LETTER OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
SHAREHOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY
THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering shareholders, by execution of
this Letter of Transmittal or facsimile hereof, waive any right to receive any
notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares and any other required
information should be listed on a separate schedule attached hereto and
separately signed on each page thereof in the same manner as this Letter of
Transmittal is signed.
<PAGE> 8
4. PARTIAL TENDERS (NOT APPLICABLE TO SHAREHOLDERS WHO TENDER BY
BOOK-ENTRY TRANSFER). If fewer than all the Shares evidenced by any certificate
submitted are to be tendered, fill in the number of Shares which are to be
tendered in the box entitled "Number of Shares Tendered." In such case, new
certificate(s) for the remainder of the Shares that were evidenced by your old
certificate(s) will be sent to you, unless otherwise provided in the appropriate
box marked "Special Payment Instructions" and/or "Special Delivery Instructions"
on this Letter of Transmittal, as soon as practicable after the Expiration Date.
All Shares represented by certificates delivered to the Depositary will be
deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond exactly with the name(s) as
written on the face of the certificate(s) without alteration, enlargement or any
other change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificates or stock powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and proper evidence
satisfactory to Purchaser of their authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to or
certificates for Shares not tendered or purchased are to be issued in the name
of a person other than the registered owner(s). Signatures on such certificates
or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Shares listed, the certificates must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered owner(s) appear(s) on the certificates.
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
6. STOCK TRANSFER TAXES. Except as set forth in this Instruction 6,
Purchaser will pay or cause to be paid any stock transfer taxes with respect to
the transfer and sale of purchased Shares to it or its order pursuant to the
Offer. If payment of the purchase price is to be made to, or if certificates for
Shares not tendered or purchased are to be registered in the name of, any person
other than the registered holder(s), or if tendered certificates are registered
in the name of any person other than the person(s) signing this Letter of
Transmittal, the amount of any stock transfer taxes (whether imposed on the
registered holder(s) or such person) payable on account of the transfer to such
person will be deducted from the purchase price received by such person(s)
pursuant to this Offer (i.e., such purchase price will be reduced) unless
satisfactory evidence of the payment of such taxes or exemption therefrom is
submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued
in the name of, and/or certificates for unpurchased Shares are to be returned
to, a person other than the person(s) signing this Letter of Transmittal or if a
check is to be sent and/or such certificates are to be returned to someone other
than the person(s) signing this Letter of Transmittal or to an address other
than that shown on the front cover hereof, the appropriate boxes on this Letter
of Transmittal should be completed. Book-Entry Shareholders may request that
Shares not purchased be credited to such account maintained at such Book-
<PAGE> 9
Entry Transfer Facility as such Book-Entry Shareholder may designate hereon. If
no such instructions are given, such Shares not purchased will be returned by
crediting the account at the Book-Entry Transfer Facility designated above. See
Instruction 1.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to the Information Agent at its addresses set forth below.
Requests for additional copies of the Offer to Purchase and this Letter of
Transmittal may be directed to the Information Agent or to brokers, dealers,
commercial banks or trust companies.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income
tax law, a shareholder whose tendered Shares are accepted for payment is
required to provide the Depositary with such shareholder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 below. If the Depositary is
not provided with the correct TIN, the Internal Revenue Service may subject the
shareholder or other payee to a $50 penalty, and payments that are made to such
shareholder or other payee with respect to Shares purchased pursuant to the
Offer may be subject to 31% backup withholding.
Certain shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding requirements.
In order for a foreign individual to qualify as an exempt recipient, it must
submit a Form W-8, signed under penalties of perjury, attesting to that
individual's exempt status. A Form W-8 can be obtained from the Depositary. See
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
If backup withholding applies, the Depositary is required to withhold 31%
of any such payments made to the shareholder or other payee. Backup withholding
is not an additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
To prevent backup withholding on payments that are made to a shareholder
with respect to Shares purchased pursuant to the Offer, the shareholder is
required to notify the Depositary of such shareholder's correct TIN by
completing a Substitute Form W-9 certifying (i) that the TIN provided on
Substitute Form W-9 is correct (or that such shareholder is awaiting a TIN), and
(ii) that (a) such shareholder is exempt from backup withholding, (b) such
shareholder has not been notified by the Internal Revenue Service that such
shareholder is subject to backup withholding as a result of a failure to report
all interest or dividends or (c) the Internal Revenue Service has notified such
shareholder that such shareholder is no longer subject to backup withholding.
The box in Part 3 of the Substitute Form W-9 may be checked if the
tendering shareholder has not been issued a TIN but has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is checked,
the shareholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below. Notwithstanding that the box in Part 3 is
checked and the Certificate of Awaiting Taxpayer Identification Number is
completed, the Depositary will withhold 31% of all payments made prior to the
time a properly certified TIN is provided to the Depositary.
The shareholder is required to give the Depositary the TIN of the holder of
the Shares. If the Shares are held in more than one name or are not held in the
name of the actual owner, consult the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional guidance
on which number to report.
10. LOST, DESTROYED, MUTILATED, OR STOLEN CERTIFICATES. If any
certificate(s) representing Shares has been lost, destroyed, mutilated, or
stolen, the shareholder should promptly notify the Depositary. The shareholder
will then be instructed as to the steps that must be taken in order to replace
the certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, mutilated, or destroyed
certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE COPY HEREOF) OR AN
AGENT'S MESSAGE TOGETHER WITH SHARE CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY
TRANSFER OR A PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF GUARANTEED DELIVERY
AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE DEPOSITARY ON OR PRIOR
TO THE EXPIRATION DATE.
<PAGE> 10
TO BE COMPLETED BY ALL TENDERING SHAREHOLDERS
(SEE INSTRUCTION 9)
PAYOR'S NAME:
<TABLE>
<S> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
PART 3 -- Social Security Number or
PART 1 -- Please provide your name and address in Employer Identification Number
SUBSTITUTE this Part 1 and TIN in Part 3 and certify by
FORM W-9 signing and dating below: --------------------------------------
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE Name: Awaiting TIN [ ]
Address:
- -------------------------------------------------------------------------------------------------------------------------
PART 2 -- CERTIFICATIONS -- Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I am
waiting for a number to be issued to me and have checked the box in Part 3) and
PAYER'S REQUEST FOR TAXPAYER (2) I am not subject to backup withholding because:
IDENTIFICATION NUMBER
("TIN") (a) I am exempt from backup withholding, (b) I have not been notified by the Internal
Revenue Service (the "IRS") that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or (c) the IRS has notified me that I am no
longer subject to backup withholding.
- -------------------------------------------------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS -- YOU MUST CROSS OUT ITEM (2) OF PART 2 ABOVE IF YOU HAVE BEEN NOTIFIED BY THE IRS THAT YOU
ARE CURRENTLY SUBJECT TO BACKUP WITHHOLDING BECAUSE OF UNDERREPORTING INTEREST OR DIVIDENDS ON YOUR TAX RETURN.
HOWEVER, IF AFTER BEING NOTIFIED BY THE IRS THAT YOU WERE SUBJECT TO BACKUP WITHHOLDING YOU RECEIVED ANOTHER
NOTIFICATION FROM THE IRS THAT YOU ARE NO LONGER SUBJECT TO BACKUP WITHHOLDING, DO NOT CROSS OUT SUCH ITEM (2).
Signature: Date:
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED "GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9" FOR ADDITIONAL DETAILS. YOU MUST COMPLETE
THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE
FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I CERTIFY UNDER PENALTIES OF PERJURY THAT A TAXPAYER IDENTIFICATION NUMBER
HAS NOT BEEN ISSUED TO ME, AND EITHER (1) I HAVE MAILED OR DELIVERED AN
APPLICATION TO RECEIVE A TAXPAYER IDENTIFICATION NUMBER TO THE APPROPRIATE
INTERNAL REVENUE SERVICE CENTER OR SOCIAL SECURITY ADMINISTRATION OFFICE OR (2)
I INTEND TO MAIL OR DELIVER AN APPLICATION IN THE NEAR FUTURE. I UNDERSTAND THAT
IF I DO NOT PROVIDE A TAXPAYER IDENTIFICATION NUMBER BY THE TIME OF PAYMENT, 31%
OF ALL REPORTABLE CASH PAYMENTS MADE TO ME WILL BE WITHHELD.
SIGNATURE:
- --------------------------------------------------------- DATE: , 1999
<PAGE> 11
FACSIMILE COPIES OF THE LETTER OF TRANSMITTAL, PROPERLY COMPLETED AND DULY
EXECUTED, WILL BE ACCEPTED. THE LETTER OF TRANSMITTAL, SHARE CERTIFICATES AND
ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT OR DELIVERED BY EACH SHAREHOLDER OF
THE COMPANY OR HIS OR HER BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR
OTHER NOMINEE TO THE DEPOSITARY AT ONE OF ITS ADDRESSES SET FORTH BELOW:
The Depositary for the Offer is:
SUNTRUST BANK, ATLANTA
<TABLE>
<S> <C> <C>
Facsimile for Eligible By Mail: By Overnight Courier:
Institutions: SunTrust Bank, Atlanta SunTrust Bank, Atlanta
404-865-5371 Post Office Box 4625 Stock Transfer Department
Atlanta, Georgia 30302 58 Edgewood Avenue
Confirm by Telephone: Room 225, Annex
1-800-568-3476 Atlanta, Georgia 30303
</TABLE>
Questions and requests for assistance may be directed to the Information
Agent at the address and telephone number listed below. Additional copies of the
Offer to Purchase, the Letter of Transmittal and other tender offer materials
may be obtained from the Information Agent as set forth below, and will be
furnished promptly at Purchaser's expense. You may also contact your broker,
dealer, commercial bank, trust company or other nominee for assistance
concerning the Offer.
The Information Agent for the Offer is:
LOGO
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
or
Call Toll Free (800) 322 - 2885
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
OF
ORANGE-CO, INC.
BY
OJ ACQUISITION CORP.
WHICH IS INDIRECTLY CONTROLLED BY
RESERVOIR CAPITAL GROUP, L.L.C.
AT
$7.00 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON OCTOBER 29, 1999, UNLESS THE OFFER IS EXTENDED.
October 1, 1999
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by OJ Acquisition Corp., a Florida corporation
("Purchaser"), all the stock of which is owned by Reservoir Capital Partners,
L.P., a Delaware limited partnership ("RCP"), Reservoir Capital Associates,
L.P., a Delaware limited partnership ("RCA") and Reservoir Capital Master Fund,
L.P., a limited partnership organized under the laws of the Cayman Islands
("RCMF"), to act as Information Agent in connection with Purchaser's offer to
purchase all outstanding shares of common stock, par value $.50 per share (the
"Shares"), of Orange-co, Inc., a Florida corporation (the "Company"), not owned
by them, at a purchase price of $7.00 per Share, net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions set forth
in the Offer to Purchase, dated October 1, 1999 (the "Offer to Purchase"), and
in the related Letter of Transmittal (which together constitute the "Offer"), in
each case enclosed herewith. The general partner of each of RCP, RCA and RCMF is
Reservoir Capital Group, L.L.C., a Delaware limited liability company ("RCG"),
whose managing member is Reservoir Capital Management, L.L.C., a Delaware
limited liability company.
Please furnish copies of the enclosed materials to those of your clients
for whose accounts you hold Shares registered in your name or in the name of
your nominee.
THE OFFER IS CONDITIONED UPON TERMS AND CONDITIONS CONTAINED IN THE OFFER
TO PURCHASE. SEE THE INTRODUCTION AND SECTIONS 1,14 AND 15 OF THE OFFER TO
PURCHASE.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase, dated October 1, 1999.
2. The Letter of Transmittal for your use to tender Shares and for
the information of your clients. Facsimile copies of the Letter of
Transmittal may be used to tender Shares.
3. A printed form of letter which may be sent to your clients for
whose accounts you hold Shares registered in your name or in the name of
your nominee, with space provided for obtaining such clients' instructions
with regard to the Offer.
4. The Notice of Guaranteed Delivery for Shares to be used to accept
the Offer if certificates for Shares ("Share Certificates") and all other
required documents are not immediately available or cannot be delivered to
SunTrust Bank, Atlanta (the "Depositary") by the Expiration Date (as
defined in the Offer to Purchase) or if the procedure for book-entry
transfer cannot be completed by the Expiration Date.
<PAGE> 2
5. A letter to shareholders from the Chairman of the Company
accompanied by the Company's Solicitation/ Recommendation Statement on
Schedule 14D-9.
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
7. A return envelope addressed to the Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON OCTOBER 29, 1999, UNLESS THE
OFFER IS EXTENDED.
In order to accept the Offer, a properly completed and duly executed Letter
of Transmittal (or facsimile thereof), together with any required signature
guarantees or an Agent's Message (as defined in the Offer to Purchase) in
connection with a book-entry delivery of Shares and any other documents required
by the Letter of Transmittal must be received by the Depositary and Share
Certificates representing the tendered Shares must be received by the Depositary
or tendered pursuant to the procedure for book-entry transfer as set forth in
the Offer to Purchase and Book-Entry Confirmation (as defined in the Offer to
Purchase) must be received by the Depositary.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Share Certificates or other required documents on or prior to the
Expiration Date or to comply with the book-entry transfer procedures on a timely
basis, a tender may be effected by following the guaranteed delivery procedures
specified in Section 3 of the Offer to Purchase.
Purchaser will not pay any commissions or fees to any broker, dealer or
other person (other than the Depositary and MacKenzie Partners, Inc., the
Information Agent, as described in Section 16 of the Offer to Purchase) for
soliciting tenders of Shares pursuant to the Offer. Purchaser will, however,
upon request, reimburse you for customary clerical and mailing expenses incurred
by you in forwarding any of the enclosed materials to your clients. Purchaser
will pay or cause to be paid any stock transfer taxes payable on the transfer of
Shares to it, except as otherwise provided in Instruction 6 of the Letter of
Transmittal.
Any inquiries you may have with respect to the Offer should be addressed
to, and additional copies of the enclosed material may be obtained from, the
undersigned.
Very truly yours,
MACKENZIE PARTNERS, INC.
as Information Agent
156 Fifth Avenue
New York, New York 10010
Call Toll Free (800) 322-2885
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF PARENT, PURCHASER, THE COMPANY, THE DEPOSITARY
OR THE INFORMATION AGENT, OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR
ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF
THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE
STATEMENTS CONTAINED THEREIN.
2
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
OF
ORANGE-CO, INC.
BY
OJ ACQUISITION CORP.
WHICH IS INDIRECTLY CONTROLLED BY
RESERVOIR CAPITAL GROUP, L.L.C.
AT
$7.00 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON OCTOBER 29, 1999, UNLESS THE OFFER IS EXTENDED.
October 1, 1999
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated October 1,
1999 (the "Offer to Purchase"), and the related Letter of Transmittal (which
together constitute the "Offer") relating to the offer by OJ Acquisition Corp.,
a Florida corporation ("Purchaser"), owned by Reservoir Capital Partners, L.P.,
a Delaware limited partnership ("RCP"), Reservoir Capital Associates, L.P., a
Delaware limited partnership ("RCA") and Reservoir Capital Master Fund, L.P., a
limited partnership organized under the laws of the Cayman Islands ("RCMF"), to
purchase all outstanding shares of common stock, par value $.50 per share
("Shares"), of Orange-co, Inc., a Florida corporation (the "Company"), not owned
by them, at a purchase price of $7.00 per Share, net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions set forth
in the Offer to Purchase and in the related Letter of Transmittal enclosed
herewith. The general partner of each of RCP, RCA and RCMF is Reservoir Capital
Group, L.L.C., a Delaware limited liability company ("RCG"), whose managing
member is Reservoir Capital Management, L.L.C., a Delaware limited liability
company ("RCM" and, together with RCP, RCA RCMF and RCG, the "Parent"). Holders
of Shares whose certificates for such Shares (the "Share Certificates") are not
immediately available, or who cannot deliver their Share Certificates and all
other required documents to SunTrust Bank, Atlanta, as depositary (the
"Depositary"), on or prior to the Expiration Date (as defined in the Offer to
Purchase), or who cannot complete the procedures for book-entry transfer on a
timely basis, must tender their Shares according to the guaranteed delivery
procedures set forth in Section 3 of the Offer to Purchase.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD BY US FOR YOUR
ACCOUNT.
<PAGE> 2
Accordingly, we request instructions as to whether you wish to have us
tender on your behalf any or all Shares held by us for your account pursuant to
the terms and conditions set forth in the Offer.
PLEASE NOTE THE FOLLOWING:
1. The tender price is $7.00 per Share, net to you in cash, without
interest thereon, upon the terms and subject to the conditions set forth in the
Offer.
2. THE BOARD OF DIRECTORS OF THE COMPANY UNANIMOUSLY HAS DETERMINED THAT
THE OFFER AND THE MERGER (AS DEFINED IN THE OFFER TO PURCHASE), ARE FAIR TO,
ADVISABLE AND IN THE BEST INTERESTS OF THE COMPANY AND ITS UNAFFILIATED
SHAREHOLDERS, HAS APPROVED THE OFFER AND ADOPTED THE MERGER AGREEMENT AND
RECOMMENDS ACCEPTANCE OF THE OFFER BY THE COMPANY'S UNAFFILIATED SHAREHOLDERS.
3. The Offer is being made for all outstanding Shares.
4. The Offer is conditioned upon, among other things, terms and conditions
contained in the Offer to Purchase. See the Introduction and Sections 1, 12, 14
and 15 of the Offer to Purchase.
5. Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as otherwise provided in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by Purchaser
pursuant to the Offer.
6. The Offer and withdrawal rights will expire at 12:00 midnight, New York
City time, on October 29, 1999, unless the Offer is extended.
7. Payment for Shares purchased pursuant to the Offer will in all cases be
made only after timely receipt by the Depositary of (a) Share Certificates or
timely confirmation of the book-entry transfer of such Shares into the
Depositary's account at The Depository Trust Company (the "Book-Entry Transfer
Facility"), pursuant to the procedures set forth in Section 3 of the Offer to
Purchase, (b) the Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, with any required signature guarantees or an
Agent's Message (as defined in the Offer to Purchase), in connection with a
book-entry transfer, and (c) any other documents required by the Letter of
Transmittal. Accordingly, payment might not be made to all tendering
shareholders at the same time and will depend upon when Share Certificates are
received by the Depositary or Book-Entry Transfer Facility Confirmations of such
shares are received into Depositary's account at the Book-Entry Transfer
Facility.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form set forth on the back page of this letter. If you
authorize the tender of your Shares, all such Shares will be tendered unless
otherwise specified on the back page of this letter. An envelope to return your
instructions to us is enclosed. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN
AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE
EXPIRATION OF THE OFFER.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares residing in any jurisdiction in which the making of
the Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other laws of such jurisdiction. However, Purchaser may,
in its discretion, take such action as it may deem necessary to make the Offer
in any such jurisdiction and extend the Offer to holders of Shares in such
jurisdiction.
In any jurisdiction where the securities, blue sky or other laws require
the Offer to be made by a licensed broker or dealer, the Offer is being made on
behalf of Purchaser by one or more registered brokers or dealers that are
licensed under the laws of such jurisdiction.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
OF
ORANGE-CO, INC.
BY
OJ ACQUISITION CORP.
WHICH IS INDIRECTLY CONTROLLED BY
RESERVOIR CAPITAL GROUP, L.L.C.,
The undersigned acknowledge(s) receipt of your letter, the enclosed Offer
to Purchase, dated October 1, 1999 (the "Offer to Purchase"), and the related
Letter of Transmittal (which together with the Offer to Purchase constitute the
"Offer") in connection with the offer by OJ Acquisition Corp., a Florida
corporation ("Purchaser"), all the stock of which is owned by Reservoir Capital
Partners, L.P., a Delaware limited partnership ("RCP"), Reservoir Capital
Associates, L.P., a Delaware limited partnership ("RCA") and Reservoir Capital
Master Fund, L.P., a limited partnership organized under the laws of the Cayman
Islands ("RCMF"), to purchase all outstanding shares of common stock, par value
$.50 per share ("Shares"), of Orange-co, Inc., a Florida corporation, not owned
by them, at a purchase price of $7.00 per Share, net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions set forth
in the Offer to Purchase. The general partner of each of RCP, RCA and RCMF is
Reservoir Capital Group, L.L.C., a Delaware limited liability company ("RCG"),
whose managing member is Reservoir Capital Management, L.L.C., a Delaware
limited liability company ("RCM" and, together with RCP, RCA, RCMF and RCG, the
"Parent").
This will instruct you to tender to Purchaser the number of Shares
indicated below (or if no number is indicated below, all Shares) which are held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer.
Number of Shares to Be Tendered: Shares*
SIGN BELOW
<TABLE>
<S> <C>
Account Number: Signature(s):
Dated: ______________________________, 1999
____________________________________________
(PLEASE TYPE OR PRINT NAME(S))
____________________________________________
(PLEASE TYPE OR PRINT ADDRESS(ES)) HERE
____________________________________________
(PLEASE TYPE OR PRINT ADDRESS(ES)
____________________________________________
(AREA CODE AND TELEPHONE NUMBER)
____________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY
NUMBER(S))
</TABLE>
- ---------------
* Unless otherwise indicated, it will be assumed that you instruct us to tender
all Shares held by us for your account.
3
<PAGE> 1
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
ORANGE-CO, INC.
TO
OJ ACQUISITION CORP.
WHICH IS INDIRECTLY CONTROLLED BY
RESERVOIR CAPITAL GROUP, L.L.C.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery or one substantially equivalent hereto
must be used to accept the Offer (as defined below) if certificates ("Share
Certificates") representing shares of common stock, par value $.50 per share
(the "Shares"), of Orange-co, Inc., a Florida corporation (the "Company"), are
not immediately available, if time will not permit all required documents to
reach SunTrust Bank, Atlanta (the "Depositary") on or prior to the Expiration
Date (as defined in the Offer to Purchase) or if the procedures for delivery by
book-entry transfer cannot be completed on a timely basis. This Notice of
Guaranteed Delivery may be delivered by hand or sent by facsimile transmission
or mail to the Depositary. See Section 3 of the Offer to Purchase.
The Depositary for the Offer is:
SUNTRUST BANK, ATLANTA
<TABLE>
<S> <C> <C>
Facsimile for Eligible By Mail: By Overnight Courier:
Institutions: SunTrust Bank, Atlanta SunTrust Bank, Atlanta
404-865-5371 Post Office Box 4625 Stock Transfer Department
Confirm by Telephone: Atlanta, Georgia 30302 58 Edgewood Avenue
1-800-568-3476 Room 225, Annex
Atlanta, Georgia 30303
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO
A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to OJ Acquisition Corp., a Florida
corporation ("Purchaser"), all the stock of which is owned by Reservoir Capital
Partners, L.P., a Delaware limited partnership ("RCP"), Reservoir Capital
Associates, L.P., a Delaware limited partnership ("RCA") and Reservoir Capital
Master Fund, L.P., a limited partnership organized under the laws of the Cayman
Islands ("RCMF"), upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated October 1, 1999 (the "Offer to Purchase"), and in the
related Letter of Transmittal (which together constitute the "Offer"), receipt
of each of which is hereby acknowledged, the number of Shares indicated below
pursuant to the guaranteed delivery procedures set forth in Section 3 of the
Offer to Purchase.
<TABLE>
<S> <C>
Number of Shares: Name(s) of Record Holder(s):
----------------------------------------------------------- --------------------------------------------
----------------------------------------------------------- --------------------------------------------
(PLEASE PRINT)
Certificate Nos. (if available): Address(es):
----------------------------------------------------------- --------------------------------------------
----------------------------------------------------------- --------------------------------------------
(ZIP CODE)
Check box if Shares will be tendered by book-entry transfer
(including through DTC's ATOP): Area Code and Tel. No.:
// The Depository Trust Company
--------------------------------------------
Signature(s):
--------------------------------------------
Account Number:
--------------------------------------------
Dated: , 1999
-----------------------------------------------------------
</TABLE>
THE GUARANTEE BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a bank, broker, dealer, credit union,
savings association or other entity which is a member in good standing of the
Securities Transfer Agents Medallion Program, hereby guarantees to deliver to
the Depositary at one of its addresses set forth above either the certificates
representing all tendered Shares, in proper form for transfer, a Book-Entry
Confirmation (as defined in the Offer to Purchase), together with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees, or, in the case of book-entry delivery of
Shares, an Agent's Message (as defined in the Offer to Purchase), and any other
documents required by the Letter of Transmittal within three trading days after
the date of execution of this Notice of Guaranteed Delivery. A "trading day" is
any day on which The New York Stock Exchange is open for business.
<TABLE>
<S> <C>
-------------------------------------------- -----------------------------------------------------------
(NAME OF FIRM) (AUTHORIZED SIGNATURE)
-------------------------------------------- -----------------------------------------------------------
(ADDRESS) (TITLE)
-------------------------------------------- -----------------------------------------------------------
(ZIP CODE) (PLEASE PRINT)
Area code and Tel. No.: Dated: , 1999
</TABLE>
NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY.
SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
2
<PAGE> 1
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER FOR THE PAYEE (YOU)
TO GIVE THE PAYER. -- Social Security numbers have nine digits separated by two
hyphens: i.e. 000-00-0000. Employer identification numbers have nine digits
separated by only one hyphen: i.e. 00-0000000. The table below will help
determine the number to give the payer. All "Section" references are to the
Internal Revenue Code of 1986, as amended. "IRS" is the Internal Revenue
Service.
<TABLE>
<C> <S> <C>
- ------------------------------------------------------------
GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF --
- ------------------------------------------------------------
1. Individual The individual
2. Two or more individuals The actual owner of
(joint account) the account or, if
combined funds, the
first individual on
the account(1)
3. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
4. a. The usual revocable savings The grantor-
trust account (grantor is also trustee(1)
trustee)
b. So-called trust account that is The actual owner(1)
not a legal or valid trust under
state law
5. Sole proprietorship The owner(3)
- ------------------------------------------------------------
- ------------------------------------------------------------
GIVE THE
FOR THIS TYPE OF ACCOUNT SOCIAL SECURITY
NUMBER OF --
- ------------------------------------------------------------
6. Sole proprietorship The owner(3)
7. A valid trust, estate, or pension The legal entity(4)
trust
8. Corporate The corporation
9. Association, club religious, The organization
charitable, educational, or other
tax-exempt organization
10. Partnership The partnership
11. A broker or registered nominee The broker or
nominee
12. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a State or
local government, school district,
or prison) that receives
agricultural program payments
- ------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security number, that
person's number must be furnished.
(2) Circle the minor's name and furnish the minor's social security number.
(3) You must show your individual name, but you may also enter your business or
"doing business as" name. You may use either your social security number or
your employer identification number (if you have one).
(4) List first and circle the name of the legal trust, estate, or pension trust.
(Do not furnish the taxpayer identification number of the personal
representative or trustee unless the legal entity itself is not designated
in the account title).
NOTE: If no name is circled when there is more than one name listed, the number
will be considered to be that of the first name listed.
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you do not have a taxpayer identification number, obtain Form SS-5,
Application for a Social Security Card, at the local Social Security
Administration office, or Form SS-4, Application for Employer Identification
Number, by calling 1 (800) TAX-FORM, and apply for a number
PAYEES EXEMPT FROM BACKUP WITHHOLDING
PAYEES SPECIFICALLY EXEMPTED FROM WITHHOLDING INCLUDE:
- -- An organization exempt from tax under section 501(a), an individual
retirement account (IRA), or a custodial account under Section 403(b)(7), if
the account satisfies the requirements of Section 401(f)(2).
- -- The United States or a state thereof, the District of Columbia, a possession
of the United States, or a political subdivision or wholly-owned agency or
instrumentality of any one or more of the foregoing.
- -- An international organization or agency or instrumentality thereof.
- -- A foreign government and any political subdivision, agency or
instrumentality thereof.
PAYEES THAT MAY BE EXEMPT FROM BACKUP WITHHOLDING INCLUDE:
- -- A corporation.
- -- A financial institution.
- -- A dealer in securities or commodities required to register in the United
States, the District of Columbia, or a possession of the United States.
- -- A dealer in securities or commodities required to register in the United
States, the District of Columbia, or a possession of the United States.
- -- A real estate investment trust.
- -- A common trust fund operated by a bank under Section 584(a).
- -- An entity registered at all times during the tax year under the Investment
Company Act of 1940.
- -- A middleman known in the investment community as a nominee or who is listed
in the most recent publication of the American Society of Corporate
Secretaries, Inc., Nominee List.
- -- A futures commission merchant registered with the Commodity Futures Trading
Commission.
- -- A foreign central bank of issue.
PAYMENTS OF DIVIDENDS AND PATRONAGE DIVIDENDS
GENERALLY EXEMPT FROM BACKUP WITHHOLDING INCLUDE:
- -- Payments to nonresident aliens subject to withholding under Section 1441.
- -- Payments to partnerships not engaged in a trade or business in the United
States and that have at least one nonresident alien partner.
- -- Payments of patronage dividends not paid in money.
- -- Payments made by certain foreign organizations.
- -- Section 404(k) payments made by an ESOP.
PAYMENTS OF INTEREST GENERALLY EXEMPT FROM BACKUP WITHHOLDING INCLUDE:
- -- Payments of tax-exempt interest (including exempt-interest dividends under
Section 852).
- -- Payments described in Section 6049(b)(5) to nonresident aliens.
- -- Payments on tax-free covenant bonds under Section 1451.
- -- Payments made by certain foreign organizations.
CERTAIN PAYMENTS, OTHER THAN PAYMENTS OF INTEREST, DIVIDENDS, AND PATRONAGE
DIVIDENDS, THAT ARE EXEMPT FROM INFORMATION REPORTING ARE ALSO EXEMPT FROM
BACKUP WITHHOLDING. FOR DETAILS, SEE SECTIONS 6041, 6041A, 6042, 6044, 6045,
6049, 6050A AND 6050N AND THE REGULATIONS THEREUNDER.
EXEMPT PAYEES SHOULD COMPLETE A SUBSTITUTE FORM W-9 TO AVOID POSSIBLE ERRONEOUS
BACKUP WITHHOLDING. FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT"
IN PART 2 OF THE FORM, SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER.
PRIVACY ACT NOTICE. -- Section 6109 requires you to provide your correct
taxpayer identification number to payers who must report the payments to the
IRS. The IRS uses the numbers for identification purposes and to help verify the
accuracy of your return and may also provide this information to various
government agencies for tax enforcement or litigation purposes. Payers must be
given the numbers whether or not recipients are required to file tax returns.
Payers must generally withhold 31% of taxable interest, dividend, and certain
other payments to a payee who does not furnish a taxpayer identification number
to a payer. Certain penalties may also apply.
PENALTIES
(1) FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail to furnish
your taxpayer identification number to a payer, you are subject to a penalty of
$50 for each such failure unless your failure is due to reasonable cause and not
to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis that results in no withholding,
you are subject to a $500 penalty.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
<PAGE> 1
Exhibit (a)(7)
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER
TO SELL SHARES (AS DEFINED BELOW). THE OFFER (AS DEFINED BELOW) IS MADE SOLELY
BY THE OFFER TO PURCHASE, DATED OCTOBER 1, 1999, AND THE RELATED LETTER OF
TRANSMITTAL AND IS BEING MADE TO ALL HOLDERS OF SHARES. PURCHASER IS NOT AWARE
OF ANY JURISDICTION WHERE THE MAKING OF THE OFFER IS PROHIBITED BY
ADMINISTRATIVE OR JUDICIAL ACTION PURSUANT TO ANY VALID STATE STATUTE. IF
PURCHASER BECOMES AWARE OF ANY VALID STATE STATUTE PROHIBITING THE MAKING OF THE
OFFER OR THE ACCEPTANCE OF SHARES PURSUANT THERETO, PURCHASER WILL MAKE A GOOD
FAITH EFFORT TO COMPLY WITH SUCH STATE STATUTE. IF, AFTER SUCH GOOD FAITH
EFFORT, PURCHASER CANNOT COMPLY WITH SUCH STATE STATUTE, THE OFFER WILL NOT BE
MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) THE HOLDERS OF
SHARES IN SUCH STATE. IN ANY JURISDICTION WHERE THE SECURITIES, BLUE SKY OR
OTHER LAWS REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE
OFFER SHALL BE DEEMED TO BE MADE ON BEHALF OF PURCHASER BY ONE OR MORE
REGISTERED BROKERS OR DEALERS LICENSED UNDER THE LAWS OF SUCH JURISDICTION.
NOTICE OF OFFER TO PURCHASE FOR CASH
ANY AND ALL OUTSTANDING SHARES OF COMMON STOCK
OF
ORANGE-CO, INC.
AT
$7.00 NET PER SHARE
BY
OJ ACQUISITION CORP.
WHICH IS INDIRECTLY CONTROLLED BY
RESERVOIR CAPITAL GROUP, L.L.C.
OJ Acquisition Corp., a Florida corporation ("Purchaser"), all the stock of
which is owned by Reservoir Capital Partners, L.P., a Delaware limited
partnership ("RCP"), Reservoir Capital Associates, L.P., a Delaware limited
partnership ("RCA"), and Reservoir Capital Master Fund, L.P., a limited
partnership organized under the laws of the Cayman Islands ("RCMF"), is offering
to purchase all of the issued and outstanding shares of Common Stock, $0.50 par
value per share (the "Common Shares"), not owned by them, of Orange-co, Inc., a
Florida corporation (the "Company"), at a price of $7.00 per Common Share net to
the seller in cash, upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated October 1, 1999 (the "Offer to Purchase"), and in
the related Letters of Transmittal (which, together constitute the "Offer"). The
general partner of each of RCP, RCA and RCMF is Reservoir Capital Group, L.L.C.,
a Delaware limited liability company ("RCG"), whose managing member is Reservoir
Capital Management, L.L.C., a Delaware limited liability company ("RCM", and
together with RCP, RCA, RCMF and RCG, the "Parent"). Following the Offer,
Purchaser intends to effect the Merger described below.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated
as of September 27, 1999, by and among the Company, Purchaser, RCA, RCP and RCMF
(the "Merger Agreement") pursuant to which, following the consummation of the
Offer and the satisfaction or waiver of certain conditions and in accordance
with the relevant provisions of the laws of the State of Florida ("Florida
Law"), Purchaser will be merged with and into the Company (the "Merger"), with
the Company continuing as the surviving corporation (the "Surviving
Corporation"). At the effective time of the Merger (the "Effective Time"), each
outstanding Share (other than Shares held by Parent, Purchaser or any
wholly-owned subsidiary of Parent or Purchaser or in the treasury of the Company
or by any wholly-owned subsidiary of the Company, which Shares will be canceled
with no payment being made with respect thereto, and other than Shares, if any,
held by shareholders who perfect appraisal rights under Florida law ("Dissenting
Shares")) will, by virtue of the Merger and without any action by the holder
thereof, be converted into the right to receive $7.00 in cash, payable to the
holder thereof, without interest thereon (the "Merger Consideration"), upon the
surrender of the certificate formerly representing such Share.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "COMPANY BOARD") UNANIMOUSLY HAS
DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO, ADVISABLE AND IN THE BEST
INTERESTS OF THE COMPANY AND ITS UNAFFILIATED SHAREHOLDERS, HAS APPROVED THE
OFFER AND ADOPTED THE MERGER AGREEMENT AND RECOMMENDS ACCEPTANCE OF THE OFFER BY
THE COMPANY'S UNAFFILIATED SHAREHOLDERS. THE COMPANY HAS BEEN ADVISED BY EACH OF
ITS DIRECTORS AND EXECUTIVE OFFICERS THAT THEY INTEND TO TENDER ALL SHARES OF
THE COMPANY BENEFICIALLY OWNED BY THEM TO PURCHASER PURSUANT TO THE OFFER.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not withdrawn as, if
and when Purchaser gives oral or written notice to SunTrust Bank, Atlanta, as
depositary (the "Depositary") of Purchaser's acceptance of such Shares for
payment pursuant to the Offer. In all cases, upon the terms and subject to the
conditions of the Offer, payment for Shares purchased pursuant to the Offer will
be made by deposit of the purchase price therefor with the Depositary, which
will act as agent for tendering shareholders for the purpose of receiving
payment from Purchaser and transmitting payment to validly tendering
shareholders. Under no circumstances will interest on the purchase price for
Shares be paid by Purchaser. In all cases, payment for Shares purchased pursuant
to the Offer will be made only after timely receipt by the Depositary of (i)
certificates representing Shares (the "Share Certificates") for such Shares or
timely confirmation of the book-entry transfer of such Shares
<PAGE> 2
into the Depositary's account at The Depository Trust Company (the "Book-Entry
Transfer Facility") pursuant to the procedures set forth in Section 3 of the
Offer to Purchase, (ii) the Letter of Transmittal (or a facsimile thereof),
properly completed and duly executed, with any required signature guarantees or
an Agent's Message (as defined in the Offer to Purchase) in connection with a
book-entry transfer and (iii) any other documents required by the Letter of
Transmittal.
Purchaser expressly reserves the right, in its sole discretion (subject to
the terms and conditions of the Merger Agreement), to extend the Offer for up to
ten business days after the initial expiration date, if any of the conditions
specified in Section 14 of the Offer to Purchase have not been satisfied or
waived, by giving oral or written notice of such extension to the Depositary.
Any such extension will be followed as promptly as practicable by public
announcement thereof, and such announcement will be made no later than 9:00
a.m., New York City time, on the next business day after the scheduled
Expiration Date (as defined below).
Tenders of Shares made pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may be withdrawn at any time on or prior
to the Expiration Date and, unless theretofore accepted for payment as provided
in the Offer to Purchase, may also be withdrawn at any time after November 29,
1999 (or such later date as may apply in the case that the Offer is extended).
The term "Expiration Date" means 12:00 midnight, New York City time, on October
29, 1999, unless and until Purchaser, subject to the terms of the Merger
Agreement, shall have further extended the period of time for which the Offer is
open, in which event the term "Expiration Date" shall mean the time and date at
which the Offer, as so extended by Purchaser, shall expire. In order for a
withdrawal to be effective, a written or facsimile transmission notice of
withdrawal must be timely received by the Depositary at one of its addresses set
forth on the back cover of the Offer to Purchase. Any such notice of withdrawal
must specify the name of the person who tendered the Shares to be withdrawn, the
number of Shares to be withdrawn, and (if Share Certificates have been tendered)
the name of the registered holder of the Shares as set forth in the Share
Certificate, if different from that of the person who tendered such Shares. If
Share Certificates have been delivered or otherwise identified to the
Depositary, then prior to the physical release of such certificates, the
tendering shareholder must submit the serial numbers shown on the particular
certificates evidencing the Shares to be withdrawn and the signature on the
notice of withdrawal must be guaranteed by a firm that is a bank, broker,
dealer, credit union, savings association or other entity which is a member in
good standing of the Securities Transfer Agents Medallion Program (an "Eligible
Institution"), except in the case of Shares tendered for the account of an
Eligible Institution. If Shares have been tendered pursuant to the procedures
for book-entry transfer set forth in Section 3 of the Offer to Purchase, the
notice of withdrawal must specify the name and number of the account at the
appropriate Book-Entry Transfer Facility to be credited with the withdrawn
Shares, in which case a notice of withdrawal will be effective if delivered to
the Depositary by any method of delivery described in this paragraph. All
questions as to the form and validity (including time of receipt) of notices of
withdrawal will be determined by Purchaser, in its sole discretion, whose
determination shall be final and binding. Any Shares properly withdrawn will be
deemed not validly tendered for purposes of the Offer, but may be tendered at
any subsequent time prior to the Expiration Date by following any of the
procedures described in Section 3 of the Offer to Purchase.
The information required to be disclosed pursuant to Rule 14d-6(e)(1)(vii)
of the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended, is contained in the Offer to Purchase, and is incorporated herein by
reference.
The Company is providing Purchaser with the Company's shareholder list and
security position listings for the purpose of disseminating the Offer to holders
of Shares. The Offer to Purchase and the related Letter of Transmittal and, if
required, other relevant materials will be mailed to record holders of Shares
and will be furnished to brokers, dealers, commercial banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the
shareholder list or who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to beneficial owners of
Shares.
The Offer to Purchase and the related Letter of Transmittal contain
important information which should be read carefully before any decision is made
with respect to the Offer.
Questions and requests for assistance may be directed to MacKenzie
Partners, Inc. as Information Agent (the "Information Agent") at the address and
telephone number listed below. Additional copies of the Offer to Purchase, the
Letter of Transmittal, the Notice of Guaranteed Delivery and other related
materials may be obtained at Purchaser's expense from the Information Agent or
from brokers, dealers, commercial banks and trust companies. Neither Parent nor
Purchaser will pay any fees or commissions to any broker, dealer or other person
for soliciting tenders of Shares pursuant to the Offer.
The Information Agent For The Offer Is:
MacKenzie Partners, Inc. 156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
or
CALL TOLL-FREE (800) 322-2885
October 1, 1999
