<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
SCHEDULE 13D
(Amendment No. 4)
Under the Securities Exchange Act of 1934
ORANGE-CO, INC.
(Name of Issuer)
COMMON STOCK, $.50 PAR VALUE
(Title of Class of Securities)
684177108
(CUSIP Number)
GREGG M. ZEITLIN
RESERVOIR CAPITAL MANAGEMENT, 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)
September 27, 1999
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
Page 1 of 15 Pages
<PAGE> 2
The information required in the remainder of this cover page shall not
be deemed to be "filed" for purposes of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 2 of 15 Pages
<PAGE> 3
13D
CUSIP No. 684177108
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Reservoir Capital Management, L.L.C.
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
5,405,660
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY -------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
5,405,660
REPORTING -------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
- --------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,405,660
- --------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
- --------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
52.4%
- --------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
OO
- --------------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 3 of 15 Pages
<PAGE> 4
13D
CUSIP No. 684177108
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Reservoir Capital Group, L.L.C.
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
5,405,660
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY -------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
5,405,660
REPORTING -------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
- --------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,405,660
- --------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
- --------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
52.4%
- --------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
OO
- --------------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 4 of 15 Pages
<PAGE> 5
13D
CUSIP No. 684177108
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Reservoir Capital Partners, L.P.
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
4,634,272
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY -------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
4,634,272
REPORTING -------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
- --------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
4,634,272
- --------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
- --------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.9%
- --------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
PN
- --------------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 5 of 15 Pages
<PAGE> 6
13D
CUSIP No. 684177108
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Reservoir Capital Associates, L.P.
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
12,433
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY -------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
12,433
REPORTING -------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
- --------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
12,433
- --------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
- --------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- --------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
PN
- --------------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 6 of 15 Pages
<PAGE> 7
13D
CUSIP No. 684177108
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Reservoir Capital Master Fund, L.P.
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
- --------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
758,955
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY -------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
758,955
REPORTING -------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
- --------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
758,955
- --------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
- --------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4%
- --------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
PN
- --------------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 7 of 15 Pages
<PAGE> 8
13D
CUSIP No. 684177108
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
OJ Acquisition Corp.
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
5,405,660
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY -------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
5,405,660
REPORTING -------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
- --------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
5,405,660
- --------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
- --------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
52.4%
- --------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
CO
- --------------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 8 of 15 Pages
<PAGE> 9
ITEM 1. SECURITY AND ISSUER.
This Statement constitutes Amendment No. 4 to the Schedule 13D (as
originally filed and amended, the "Schedule 13D") filed by Reservoir Capital
Management, L.L.C., a Delaware limited liability company ("RCM"), Reservoir
Capital Group, L.L.C., a Delaware limited liability company ("RCG"), 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"), and an initial filing by OJ Acquisition Corp., a
Florida corporation ("OJA"), with respect to the beneficial ownership of shares
of common stock, par value $.50 per share (the "Common Stock"), of Orange-co,
Inc., a Florida corporation (the "Company"). All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Schedule 13D.
In this Statement, each of RCM, RCG, RCP, RCA, RCMF and OJA may be
referred to as a "Reporting Person," and collectively as the "Reporting
Persons."
Other than as set forth herein, there has been no material change in
the information set forth in Items 1 through 7 of the Schedule 13D.
ITEM 2. IDENTITY AND BACKGROUND
Item 2 of the Schedule 13D is amended to add the following paragraph at
the end of paragraph 8:
This Statement is also being filed by OJA.
OJA is a newly incorporated Florida corporation, 85.73%-owned by RCP,
0.23%-owned by RCA and 14.04%-owned by RCMF. To date, OJA has not conducted any
business other than that incident to its formation, the purchase of the BHG
Shares and the execution and delivery of the Merger Agreement (as hereinafter
defined) and the transactions contemplated thereunder. The address of OJA's
principal business and principal office is 650 Madison Avenue, 26th Floor, New
York, New York 10022.
Information regarding the directors and executive officers of OJA is
set forth on Schedule II attached hereto, which Schedule is hereby incorporated
by reference. Except as set forth on Schedule II, all such persons are citizens
of the United States.
During the last five years, the Reporting Persons or, to the best
knowledge of the Reporting Persons, any person named in Schedule II has not been
(a) convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (b) 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 or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 of the Schedule 13D is amended to add the following paragraph at
the end of paragraph one:
On September 24, RCG, through OJA, exercised the option granted to it
pursuant to the Reservoir Letter of Intent (and any extensions thereof) and
purchased the BHG
Page 9 of 15 Pages
<PAGE> 10
Shares with working capital for an aggregate cost of $37,839,620. At the time of
the Merger, Parent may refinance such purchase with debt secured by
grove-related assets.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 of the Schedule 13D is amended to add the following paragraph at
the end of paragraph ten:
On September 27, 1999, pursuant to the Reservoir Letter of Intent, the
Extension Letter, the Second Extension Letter and the Third Extension Letter,
RCG, through OJA, acquired 5,405,660 shares (52.4%) of the Company from BHG for
a cash price of $7.00 per BHG Share. At the same time, RCP, RCMF, RCA and OJA
entered into a Merger Agreement with the Company (the Merger Agreement is
attached as Exhibit 5 and is incorporated by reference). The Merger Agreement
provides for a cash tender offer by OJA (the "Offer"), which will commence on
October 1, 1999, to acquire any and all the outstanding common shares of the
Company, not owned by OJA, at $7.00 per share in cash for a total of
approximately $34 million. Under the Merger Agreement, following the Offer, OJA
would merge with and into the Company, with each remaining share not held by OJA
exchanged for $7.00 per share.
The Merger Agreement gives RCA, RCP, RCMF and OJA the right to appoint
a majority of the Company's Board of Directors; however, at this date, they have
no plans to exercise this right.
At the time the Merger Agreement was signed, the Company and Pasco
entered into an Asset Purchase Agreement whereby a subsidiary of Pasco purchased
and paid for the assets and assumed certain liabilities associated with the
Company's food service business, including the working capital related thereto
for approximately $18 million, plus the cost of such working capital. Following
the satisfaction of certain conditions set forth in set forth in the Asset
Purchase Agreement, including the approval of a majority of the Company's
shareholders, Pasco will then acquire Orange-co's citrus processing and packing
business, including certain working capital related thereto.
In connection with the Asset Purchase Agreement, RCA, RCP, RCMF and OJA
entered into an Agreement with Pasco (the "Agreement"; the Agreement is attached
as Exhibit 6 and is incorporated by reference) pursuant to which they agreed to
vote all Shares in favor of the Asset Purchase Agreement. In addition, RCA, RCP,
RCMF and OJA 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 OJA 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
Page 10 of 15 Pages
<PAGE> 11
forth in the Asset Purchase Agreement or related documents or (b) the
satisfaction of conditions to Pasco's obligations under the Asset Purchase
Agreement. In addition, until the final closing under the Asset Purchase
Agreement, OJA agreed not to dispose of any of its Shares or any interest
therein, except in each case to a transferee or pledgee who agrees pursuant to
an instrument reasonably satisfactory to Pasco to become bound by the
obligations of OJA 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 have been held and
proxy or information materials required in connection therewith to be mailed,
then they will promptly cause the Company to take such actions to the extent
required to consummate the Asset Purchase Agreement.
Also, the Company announced that the Fruit Purchase Agreement between
BHGI and Pasco and the Consulting and Non-Compete Agreement between Pasco and
BHGIII were entered into on the same date that the Merger Agreement, the Asset
Purchase Agreement and the Side Agreement were executed.
In connection with the transactions contemplated by the Merger
Agreement, on September 27, 1999, the Company paid 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 agreed to
consent to and waive, subject to certain conditions, any defaults under either
the loan agreement dated April 19, 1993 by and between Farm Credit and the
Company and all amendments thereto and the loan agreement made in conjunction
with loans dated June 30, 1998 by and between Farm Credit of South Florida, ACA
and the Company, caused by the Merger Agreement or the Asset Purchase Agreement
or any of the transactions contemplated by either agreement.
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
trigger a default under such agreement if the transactions contemplated by
either the Merger Agreement or the Asset Purchase Agreement occurred without
such a waiver. As a condition to such temporary waiver, the Company was required
to provide SunTrust Bank with a mortgage lien and security interest in certain
processing plant and related assets, which 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.
Currently, the Company's Common Stock is listed on the New York Stock
Exchange ("NYSE"). The purchase of the Shares pursuant to the Offer may and the
merger will cause the Shares to be delisted under the published guidelines of
the NYSE.
The Company's Common Stock is currently registered under the Exchange
Act. The purchase of the Shares pursuant to the Offer may and the merger will
result in the Common Stock becoming eligible for deregistration under the
Exchange Act. Registration of the Shares may be terminated upon application by
the Company to the Commission if its Common Stock is not listed on a "national
securities exchange" and there are fewer than 300 record holders of such stock.
Page 11 of 15 Pages
<PAGE> 12
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 of the Schedule 13D is amended to replace paragraphs (a), (b)
and (c) in their entirety:
(a) Each of RCM and RCG beneficially own 5,405,660 shares
(52.4%) of the Common Stock of the Company. RCP beneficially owns 4,634,272
shares (44.9%) of the Common Stock of the Company. RCA beneficially owns 12,433
shares (0.1%) of the Common Stock of the Company. RCMF beneficially owns 758,955
shares (7.4%) of the Common Stock of the Company. OJA beneficially owns
5,405,660 shares (52.4%) of the Common Stock of the Company.
(b) RCM and RCG each have the sole power to vote, direct the
voting of, dispose of and direct the disposition of 5,405,660 shares of Common
Stock of the Company. RCP has the sole power to vote, direct the voting of,
dispose of and direct the disposition of 4,634,272 shares of the Common Stock of
the Company. RCA has the sole power to vote, direct the voting of, dispose of
and direct the disposition of 12,433 shares of the Common Stock of the Company.
RCMF has the sole power to vote, direct the voting of, dispose of and direct the
disposition of 758,955 shares of the Common Stock of the Company. OJA has the
sole power to vote, direct the voting of, dispose of and direct the disposition
of 5,405,660 shares of the Common Stock of the Company.
(c) Except as described in Item 4 above, neither the Reporting
Persons nor, to the best knowledge of the Reporting Persons, any of the persons
referred to in Schedule I or Schedule II attached hereto, has effected any
transactions in the Common Stock during the past 60 days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Item 6 of the Schedule 13D is amended to add the following paragraph at
the end of paragraph one:
On September 27, 1999, the Reporting Persons entered into the Merger
Agreement and the Agreement. See Item 4 above.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of the Schedule 13D is amended to add the following exhibits:
Exhibit 5. Merger Agreement, dated as of September 27, 1999, by and
among, the Company, RCP, RCA, RCMF and OJA.
Exhibit 6. Agreement, dated as of September 27, 1999, by and among
RCP, RCA, RCMF, OJA and Pasco.
Page 12 of 15 Pages
<PAGE> 13
ITEM 8. SIGNATURES
After reasonable inquiry and to the best knowledge and belief of each
of the Reporting Persons, each such person or entity certifies that the
information set forth in this Amendment No. 4 to the Schedule 13D is true,
complete and correct and agrees that this statement is filed on behalf of each
of them.
Dated: September 30, 1999
Page 13 of 15 Pages
<PAGE> 14
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
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/ Gregg M. Zeitlin
--------------------------------
Name: Gregg M. Zeitlin
Title: President
Page 14 of 15 Pages
<PAGE> 15
SCHEDULE II
CONTROL PERSONS AND EXECUTIVE OFFICERS OF OJA
The names, present principal occupations and business addresses of the
directors and executive officers of OJA are set forth below. The director's or
executive officer's business address is that of OJA. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to the OJA. Each
of the named individuals is a citizen of the United States of America.
- ------------------------------------------------------------------------
DIRECTORS
<TABLE>
<CAPTION>
<S> <C>
Daniel H. Stern Chairman of the Board; President and Chief Executive Officer and Senior
Managing Member of Reservoir Capital Management, L.L.C.; President and Chief
Executive Officer of Reservoir Capital Group, L.L.C.
Craig A. Huff Co-President; Managing Member and Managing
Director of Reservoir Capital Management, L.L.C.;
Managing Director of Reservoir Capital Group, L.L.C.
Gregg M. Zeitlin Co-President; Managing Member and Managing
Director of Reservoir Capital Management, L.L.C.;
Managing Director of Reservoir Capital Group, L.L.C.
OFFICERS
Daniel H. Stern See information under Directors.
Craig A. Huff See information under Directors.
Gregg M. Zeitlin See information under Directors.
Celia Felsher Secretary; Secretary and General Counsel of
Reservoir Capital Management, L.L.C.; Secretary
and General Counsel of Reservoir Capital Group, L.L.C.
Sal DiFranco Treasurer; Chief Financial Officer and
Treasurer of Reservoir Capital Management,
L.L.C.; Chief Financial Officer and Treasurer of
Reservoir Capital Group, L.L.C.
</TABLE>
Page 15 of 15 Pages
<PAGE> 1
AGREEMENT AND PLAN OF MERGER
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
ORANGE-CO, INC.
<PAGE> 2
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience only.
Page
No.
ARTICLE I
THE OFFER
1.01 The Offer............................................................. 1
1.02 Company Actions....................................................... 3
1.03 Company Board Representation; Section 14(f)........................... 4
ARTICLE II
THE MERGER
2.01 The Merger............................................................ 5
2.02 Closing............................................................... 5
2.03 Effective Time........................................................ 5
2.04 Certificate of Incorporation and Bylaws of the Surviving Corporation.. 5
2.05 Directors and Officers of the Surviving Corporation................... 5
2.06 Effects of the Merger................................................. 6
2.07 Further Assurances.................................................... 6
ARTICLE III
CONVERSION OF SHARES
3.01 Conversion of Capital Stock........................................... 6
3.02 Exchange of Certificates.............................................. 7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.01 Organization and Qualification........................................ 9
4.02 Capital Stock......................................................... 9
4.03 Authority Relative to this Agreement.................................. 10
4.04 Non-Contravention; Approvals and Consents............................. 11
4.05 SEC Reports and Financial Statements.................................. 12
4.06 Absence of Certain Changes or Events.................................. 12
4.07 Absence of Undisclosed Liabilities.................................... 13
4.08 Legal Proceedings..................................................... 13
4.09 Information Supplied.................................................. 13
4.10 Compliance with Laws and Orders....................................... 14
4.11 Compliance with Agreements; Certain Agreements........................ 14
-i-
<PAGE> 3
Page
No.
4.12 Taxes.............................................................. 16
4.13 Employee Benefit Plans; ERISA...................................... 17
4.14 Labor Matters...................................................... 18
4.15 Environmental Matters.............................................. 18
4.16 Intellectual Property Rights....................................... 20
4.17 Real Property...................................................... 21
4.18 Water Rights....................................................... 22
4.19 Termination of Fruit Agreements.................................... 22
4.20 Groves............................................................. 23
4.21 Affiliate Transactions............................................. 23
4.22 Vote Required...................................................... 23
4.23 Opinion of Financial Advisor....................................... 24
4.24 Sections 607.0901 and 607.0902 of the FBCA Not Applicable.......... 24
4.25 Year 2000.......................................................... 24
4.26 Company's Representations in the Asset Purchase Agreement.......... 24
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
5.01 Organization and Qualification..................................... 24
5.02 Authority Relative to this Agreement............................... 25
5.03 Non-Contravention; Approvals and Consents.......................... 25
5.04 Legal Proceedings.................................................. 26
5.05 Information Supplied............................................... 26
5.06 Ownership of Company Common Stock.................................. 27
5.07 Financing.......................................................... 27
ARTICLE VI
COVENANTS OF THE COMPANY
6.01 Covenants of the Company........................................... 27
6.02 No Solicitations................................................... 29
6.03 Third Party Standstill Agreements.................................. 30
6.04 Related Agreements................................................. 30
ARTICLE VII
ADDITIONAL AGREEMENTS
7.01 Access to Information; Confidentiality............................. 30
7.02 Preparation of Proxy Statement..................................... 30
7.03 Approval of Stockholders........................................... 31
7.04 Regulatory and Other Approvals..................................... 31
7.05 Expenses........................................................... 32
7.06 Brokers or Finders................................................. 32
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Page
No.
7.07 Takeover Statutes................................................. 32
7.08 Conveyance Taxes.................................................. 32
7.09 Conduct of Business of Sub........................................ 32
7.10 Affiliate Transactions............................................ 32
7.11 Notice and Cure................................................... 33
7.12 Fulfillment of Conditions......................................... 33
ARTICLE VIII
CONDITIONS
8.01 Conditions to Each Party's Obligation to Effect the Merger........ 33
8.02 Condition to Parent's and Sub's Obligation to Effect the Merger... 34
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.01 Termination....................................................... 34
9.02 Effect of Termination............................................. 35
9.03 Amendment......................................................... 35
9.04 Waiver............................................................ 36
ARTICLE X
GENERAL PROVISIONS
10.01 Non-Survival of Representations, Warranties, Covenants and
Agreements.................................................... 36
10.02 Notices........................................................... 36
10.03 Entire Agreement; Incorporation of Exhibits....................... 37
10.04 Public Announcements.............................................. 37
10.05 No Third Party Beneficiary........................................ 38
10.06 No Assignment; Binding Effect..................................... 38
10.07 Headings.......................................................... 38
10.08 Invalid Provisions................................................ 38
10.09 Governing Law..................................................... 38
10.10 Enforcement of Agreement.......................................... 38
10.11 Certain Definitions............................................... 39
10.12 Counterparts...................................................... 40
Annex A CONDITIONS TO THE OFFER
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<PAGE> 5
GLOSSARY OF DEFINED TERMS
The following terms, when used in this Agreement, have the
meanings ascribed to them in the corresponding Sections of this Agreement listed
below:
"affiliate" -- Section 10.11(a)
"Agreement" -- Preamble
"Alternative Proposal" -- Section 6.02
"Asset Purchase Agreement" -- Preamble
"beneficially" -- Section 10.11(b)
"BHG" -- Preamble
"BHG III" -- Preamble
"BHG Inc." -- Preamble
"BHG Purchase" -- Preamble
"business day" -- Section 10.11(c)
"CERCLA" -- Section 4.15(c)
"CERCLIS" -- Section 4.15(c)
"Certificate of Merger" -- Section 2.03
"Certificates" -- Section 3.02(b)
"Closing" -- Section 2.02
"Closing Date" -- Section 2.02
"Code" -- 3.02(e)
"Company" -- Preamble
"Company Common Stock" -- Preamble
"Company Disclosure Letter" -- Section 4.01
"Company Employee Benefit Plans" -- Section 4.13(b)(i)
"Company Financial Statements" -- Section 4.05
"Company Option Plan" -- Section 3.01(e)
"Company Permits" -- Section 4.10
"Company Preferred Stock" -- Section 4.02
"Company SEC Reports" -- Section 4.05
"Company Stockholders' Approval" -- Section 7.03
"Company Stockholders' Meeting" -- Section 7.03
"Confidentiality Agreement" -- Section 7.01
"Constituent Corporations" -- Section 2.01
"Contracts" -- Section 4.04(a)
"control," "controlling," "controlled
by" and "under common control with" -- Section 10.11(a)
"Control Date" -- Section 1.03(a)
"Dissenting Share" -- Section 3.01(d)(i)
"Effective Time" -- Section 2.03
"Environmental Claim" -- Section 4.15(h)(i)
"Environmental Law" -- Section 4.15(h)(ii)
"ERISA" -- Section 4.13(b)(i)
"Exchange Act" -- Section 1.01(a)
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<PAGE> 6
"FBCA" -- Section 1.03(a)
"Fruit Agreements" -- Section 4.19
"Governmental or Regulatory Authority" -- Section 4.04(a)
"group" -- Section 10.11(f)
"Hazardous Material" -- Section 4.15(h)(iii)
"Indebtedness" -- Section 7.11
"Independent Directors" -- Section 1.03(c)
"Intellectual Property" -- Section 4.16
"Investment Assets" -- Section 4.21
"knowledge" -- Section 10.11(d)
"laws" -- Section 4.04(a)
"Liabilities" -- Section 4.21
"License" -- Section 4.15(h)(iv)
"Lien" -- Section 4.02(b)
"material", "material adverse
effect" and "materially adverse" -- Section 10.11(e)
"Merger" -- Preamble
"Merger Price" -- Section 3.01(c)
"NPL" -- Section 4.15(c)
"Offer" -- Section 1.01(a)
"Offer Documents" -- Section 1.01(b)
"Offer to Purchase" -- Section 1.01(b)
"Option Amount" -- Section 3.01(e)
"Options" -- Section 4.02
"orders" -- Section 4.04(a)
"Parent" -- Preamble
"Parent Disclosure Letter" -- Section 5.01
"Pasco" -- Preamble
"Payment Agent" -- Section 3.02(a)
"Payment Fund" -- Section 3.02(a)
"Per Share Amount" -- Section 1.01(a)
"Permitted Liens" -- Section 4.17(a)
"person" -- Section 10.11(f)
"Plan" -- Section 4.13(b)(ii)
"Proxy Statement" -- Section 4.09
"RCA" -- Preamble
"RCMF" -- Preamble
"RCP" -- Preamble
"Release" -- Section 4.15(h)(v)
"Representatives" -- Section 10.11(g)
"Schedule 14D-1" -- Section 1.01(b)
"Schedule 14D-9" -- Section 1.02(b)
"SEC" -- Section 1.01(a)
"Secretary of State" -- Section 2.03
"Securities Act" -- Section 4.05
"Sub" -- Preamble
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<PAGE> 7
"Sub Common Stock" -- Section 3.01(a)
"Subsidiary" -- Section 10.11(i)
"Surviving Corporation" -- Section 2.01
"Surviving Corporation Common Stock" -- Section 3.01(a)
"taxes" -- Section 4.12(c)
"Transfer Taxes" -- Section 7.09
"Water Permits" -- Section 4.18
"Year 2000 Compliant" -- Section 4.25
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<PAGE> 8
This AGREEMENT AND PLAN OF MERGER dated as of September 27,
1999 ("this Agreement") is made and entered into by and among Reservoir Capital
Partners, L.P., a Delaware limited partnership ("RCP"), Reservoir Capital
Associates, L.P., a Delaware limited partnership ("RCA"), Reservoir Capital
Master Fund, a limited partnership organized under the laws of the Cayman
Islands ("RCMF" and, together with RCP and RCA, "Parent"), OJ Acquisition Corp.,
a Florida corporation and a Subsidiary of Parent ("Sub"), and Orange-co, Inc., a
Florida corporation (the "Company").
WHEREAS, on the date hereof Sub has purchased 5,405,660 shares
of Common Stock, par value $.50 per share, of the Company ("Company Common
Stock") from Ben Hill Griffin, III ("BHG III"), Ben Hill Griffin Investments,
Inc. ("BHGI"), the Griffin Family Limited Partnership ("GFLP"), Dorothy Brown
Griffin ("DBG") and Ben Hill Griffin, Inc. ("BHG Inc." and, together with BHG
III, BHGI, GFLP and DBG, "BHG"), constituting 52.4% of the outstanding Company
Common Stock, for a cash price of $7.00 per share (the "BHG Purchase") and the
BHG Purchase has been approved by the Board of Directors of the Company;
WHEREAS, on the date hereof the Company entered into an Asset
Purchase Agreement (the "Asset Purchase Agreement") with Pasco Acquisition, Inc.
("Pasco") pursuant to which the Company, subject to certain conditions, agreed
to sell to Pasco and Pasco agreed to purchase from the Company certain assets
and associated liabilities of the Company;
WHEREAS, the Boards of Directors of Sub and the Company have
each determined that it is advisable and in the best interests of their
respective stockholders to consummate, and have approved, the business
combination transaction provided for herein in which (i) Sub would make a cash
tender offer to acquire all of the other issued and outstanding shares of
Company Common Stock upon the terms and subject to the conditions of this
Agreement and (ii) subsequently Sub would merge with and into the Company and
the Company would become a subsidiary of Parent (the "Merger");
WHEREAS, Parent, Sub and the Company desire to make certain
representations, warranties and agreements in connection with the transactions
contemplated by this Agreement and also to prescribe various conditions to the
consummation of such transactions;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
THE OFFER
1.01 The Offer. (a) Provided that this Agreement shall not
have been terminated in accordance with Section 9.01 and none of the events set
forth in Annex A hereto shall have occurred and be continuing, as promptly as
practicable, but in no event later than five business days, after the date
hereof, Parent shall cause Sub to, and Sub shall, commence (within the meaning
of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (such Act
<PAGE> 9
and the rules and regulations promulgated thereunder being referred to herein as
the "Exchange Act")) a tender offer (the "Offer") to acquire all of the issued
and outstanding shares of Company Common Stock for $7.00 per share (such amount,
or any greater amount per share paid pursuant to the Offer, the "Per Share
Amount") net to the seller in cash. The obligation of Sub to consummate the
Offer and to accept for payment and to pay for shares of Company Common Stock
tendered pursuant to the Offer shall be subject only to the conditions set forth
in Annex A hereto. Sub expressly reserves the right to waive any such condition,
to increase the Per Share Amount and to make any other changes in the terms and
conditions of the Offer. Notwithstanding the foregoing, no change may be made
which (i) decreases the Per Share Amount, (ii) changes the form of consideration
to be paid in the Offer, (iii) reduces the number of shares of Company Common
Stock sought to be purchased in the Offer, (iv) imposes conditions to the Offer
in addition to those set forth in Annex A hereto, (v) extends the expiration
date of the Offer or (vi) otherwise alters or amends any term of the Offer in
any manner adverse to the holders of shares of Company Common Stock; 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
Securities and Exchange Commission (the "SEC") 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. Assuming the
prior satisfaction or waiver of the conditions of the Offer and subject to the
foregoing right to extend the Offer, Sub shall pay for shares of Company Common
Stock tendered pursuant to the Offer as soon as practicable after termination
thereof.
(b) As soon as practicable on the date of commencement of the
Offer, Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1
promulgated under the Exchange Act (together with all amendments and supplements
thereto, the "Schedule 14D-1") with respect to the Offer, and take such steps as
are reasonably necessary to cause the Offer to Purchase (as defined below) to be
disseminated to the holders of shares of Company Common Stock as and to the
extent required by applicable federal securities laws. The Schedule 14D-1 shall
contain an offer to purchase (the "Offer to Purchase") and forms of the related
letter of transmittal and any related summary advertisement (the Schedule 14D-1,
the Offer to Purchase and such other documents, together with all amendments and
supplements thereto, the "Offer Documents"). Parent, Sub and the Company shall
correct promptly any information provided by any of them for use in the Offer
Documents which shall have become false or misleading, and Parent and Sub shall
take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed
with the SEC and the other Offer Documents as so corrected to be disseminated to
holders of shares of Company Common Stock, in each case as and to the extent
required by applicable federal securities laws. The Company and its counsel
shall be given an opportunity to review and comment on the Offer Documents prior
to their being filed with the SEC, and Parent and Sub will provide the Company
and its counsel in writing with any comments that Parent or Sub receives from
the SEC or its staff with respect to the Offer Documents promptly after receipt
of any such comments.
(c) Parent shall provide or cause to be provided to Sub on a
timely basis the funds necessary to accept for payment, and pay for, any shares
of Company Common Stock that Sub becomes obligated to accept for payment, and
pay for, pursuant to the Offer.
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<PAGE> 10
1.02 Company Actions. (a) The Company hereby approves and
consents to the Offer and represents that the Board of Directors of the Company,
at a meeting duly called and held, has (A) determined that this Agreement and
the transactions contemplated hereby, including the Offer and the Merger, taken
together, are fair to and in the best interests of the unaffiliated holders of
shares of Company Common Stock, (B) approved the Asset Purchase Agreement and
the transactions contemplated thereby, (C) approved and adopted this Agreement
and the transactions contemplated hereby and (D) recommended that the
stockholders of the Company accept the Offer, tender their shares of Company
Common Stock thereunder to Sub and, if required by applicable law in order to
consummate the Merger, approve and adopt this Agreement and the transactions
contemplated hereby. The Company hereby consents to the inclusion in the Offer
Documents of the recommendation of the Board described in the immediately
preceding sentence. The Company has been advised by each of its directors and
executive officers (other than Ben Hill Griffin, III) that they intend to tender
all shares of Company Common Stock beneficially owned by them to Sub pursuant to
the Offer.
(b) On the date the Offer Documents are filed with the SEC,
the Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 promulgated under the Exchange Act (together with all amendments
and supplements thereto, the "Schedule 14D-9") containing the recommendation of
the Board of Directors of the Company described in Section 1.02(a), and shall
take such steps as are necessary to cause the Schedule 14D-9 to be disseminated
to the holders of shares of Company Common Stock as and to the extent required
by applicable federal securities laws. The Company, Parent and Sub shall correct
promptly any information provided by any of them for use in the Schedule 14D-9
which shall have become false or misleading, and the Company shall take all
steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the
SEC and disseminated to holders of shares of Company Common Stock, in each case
as and to the extent required by applicable federal securities laws. Parent and
its counsel shall be given an opportunity to review and comment on the Schedule
14D-9 prior to its being filed with the SEC, and the Company will provide Parent
and its counsel in writing with any comments that the Company receives from the
SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of
any such comments.
(c) In connection with the Offer, the Company shall cause its
transfer agent to furnish Sub promptly with mailing labels containing the names
and addresses of all record holders of shares of Company Common Stock and with
security position listings of shares of Company Common Stock held in stock
depositories, each as of a recent date, together with all other available
listings and computer files containing names, addresses and security position
listings of record holders and beneficial owners of shares of Company Common
Stock. The Company shall furnish Sub with such additional information,
including, without limitation, updated listings and files of stockholders,
mailing labels and security position listings and such other assistance as
Parent, Sub or their agents may reasonably request in communicating the Offer to
record and beneficial holders of shares of Company Common Stock. Subject to the
requirements of applicable law, and except for such steps as are necessary to
disseminate the Offer Documents and any other documents necessary to consummate
the Offer or the Merger, Parent and Sub shall hold in confidence the information
contained in such labels, listings and files, shall use such information only in
connection with the Offer and the Merger, and, if this Agreement shall be
terminated in accordance with Section 9.01, shall deliver to the Company all
3
<PAGE> 11
copies of, and any extracts or summaries from, such information then in their
possession or control.
(d) In connection with the Offer, the Company will furnish
Parent with such information (which will be treated and held in confidence by
Parent) and assistance as Parent or its Representatives) may reasonably request
in connection with the preparation of the Offer and communicating the Offer to
the record and beneficial holders of shares of Company Common Stock.
1.03 Company Board Representation; Section 14(f). (a) Subject
to compliance with the Florida Business Corporations Act (the "FBCA"), the
Company's Certificate of Incorporation and other applicable law, the Company
shall, upon request of Parent, 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. The date on which
Parent's designees constitute at least a majority of the Company's Board of
Directors is herein referred to as the "Control Date." Prior to the Control
Date, a representative of Parent and Sub, 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 to the Board of
Directors, as if such representative were a member of the Board of Directors.
The representative shall be entitled to reimbursement for all reasonable
expenses incurred in connection with the rights granted hereunder.
(b) The Company's obligations to appoint Parent's designees to
the Board of Directors of the Company shall be subject to Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder, if applicable. The Company
shall promptly take all actions required pursuant to such Section and Rule in
order to fulfill its obligations under this Section, and shall include in the
Schedule 14D-9 such information with respect to the Company and its officers and
directors as is required under such Section and Rule to fulfill such
obligations. Parent or Sub shall supply to the Company and be solely responsible
for any information with respect to either of them and their designees,
officers, directors and affiliates required by such Section 14(f) and Rule
14f-1.
(c) Following the election of designees of Parent pursuant to
this Section and prior to the Effective Time, any amendment of this Agreement or
the Certificate of Incorporation or Bylaws of the Company, any termination of
this Agreement by the Company, any extension by the Company of the time for the
performance of any of the obligations or other acts of Parent or Sub or waiver
of any of the Company's rights hereunder shall require the concurrence of a
majority of the directors of the Company then in office who neither were
designated by Parent nor are employees of the Company or any of its Subsidiaries
or, if there be just one such director, the concurrence of such director (the
"Independent Directors").
4
<PAGE> 12
ARTICLE II
THE MERGER
2.01 The Merger. Upon the terms and subject to the conditions
of this Agreement, at the Effective Time, Sub shall be merged with and into the
Company in accordance with the FBCA. At the Effective Time, the separate
existence of Sub shall cease and the Company shall continue as the surviving
corporation in the Merger (the "Surviving Corporation"). Sub and the Company are
sometimes referred to herein as the "Constituent Corporations". As a result of
the Merger, the outstanding shares of capital stock of the Constituent
Corporations shall be converted or cancelled in the manner provided in Article
III.
2.02 Closing. Unless this Agreement shall have been terminated
and the transactions herein contemplated shall have been abandoned pursuant to
Section 9.01, the closing of the Merger (the "Closing") will take place at the
offices of Milbank, Tweed, Hadley & McCloy LLP, 1 Chase Manhattan Plaza, New
York, New York 10005 at 10:00 a.m., local time, on a date to be specified by
Parent or Sub, which shall be no later than the second business day following
consummation of the Offer and, if required by applicable law in order to
consummate the Merger, after the adoption of this Agreement by the requisite
vote of the stockholders of the Company, subject to the satisfaction or waiver
(where applicable) of the conditions set forth in Article VIII, unless another
date, time or place is agreed to in writing by the parties hereto (the "Closing
Date").
2.03 Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the Closing Date, the parties
shall file a certificate of merger or other appropriate documents (in any such
case, the "Certificate of Merger") executed in accordance with the relevant
provisions of the FBCA and shall make all other filings or recordings required
under the FBCA. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Secretary of State of the State of
Florida (the "Secretary of State"), or at such other time as Sub and the Company
shall agree should be specified in the Certificate of Merger (the time the
Merger becomes effective being hereinafter referred to as the "Effective Time").
2.04 Certificate of Incorporation and Bylaws of the Surviving
Corporation. At the Effective Time, (i) the Certificate of Incorporation of the
Sub as in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by law and such Certificate of Incorporation, provided that
the name of Sub shall be changed to the name of the Company, and (ii) the Bylaws
of Sub as in effect immediately prior to the Effective Time shall be the Bylaws
of the Surviving Corporation until thereafter amended as provided by law, the
Certificate of Incorporation of the Surviving Corporation and such Bylaws.
2.05 Directors and Officers of the Surviving Corporation. The
directors of Sub and the officers of Sub immediately prior to the Effective Time
shall, from and after the Effective Time, be the directors and officers,
respectively, of the Surviving Corporation until their successors shall have
been 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.
5
<PAGE> 13
2.06 Effects of the Merger. Subject to the foregoing, the
effects of the Merger shall be as provided in the applicable provisions of the
FBCA.
2.07 Further Assurances. Each party hereto will, either prior
to or after the Effective Time, execute such further documents, instruments,
deeds, bills of sale, assignments and assurances and take such further actions
as may reasonably be requested by one or more of the others to consummate the
Merger, to vest the Surviving Corporation with full title to all assets,
properties, privileges, rights, approvals, immunities and franchises of either
of the Constituent Corporations or to effect the other purposes of this
Agreement.
ARTICLE III
CONVERSION OF SHARES
3.01 Conversion of Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of the holder thereof:
(a) Capital Stock of Sub. Each issued and outstanding
share of the common stock, par value $.01 per share, of Sub ("Sub Common Stock")
shall 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
Sub Common Stock shall at the Effective Time represent an equal number of shares
of Surviving Corporation Common Stock.
(b) Cancellation of Treasury Stock and Stock Owned by
Parent and Subsidiaries. All shares of Company Common Stock that are owned by
the Company as treasury stock and any shares of Company Common Stock owned by
Parent, Sub or any wholly-owned Subsidiary of Parent shall be canceled and
retired and shall cease to exist and no stock of Parent or other consideration
shall be delivered in exchange therefor.
(c) Exchange Ratio for Company Common Stock. (i) Each
issued and outstanding share of Company Common Stock (other than shares to be
canceled in accordance with Section 3.01(b) and other than Dissenting Shares)
shall be converted into the right to receive $7.00 in cash (the "Merger Price").
(ii) All shares of Company Common Stock converted in
accordance with paragraph (i) of this Section 3.01(c) shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall cease
to have any rights with respect thereto, except the right to receive the Merger
Price per share, upon the surrender of such certificate in accordance with
Section 3.02, without interest.
(d) Dissenting Shares. (i) Notwithstanding any provision
of this Agreement to the contrary, each outstanding share of Company Common
Stock the holder of which has not voted in favor of the Merger, has perfected
such holder's right to an appraisal of such holder's shares in accordance with
the applicable provisions of the FBCA and has not effectively
6
<PAGE> 14
withdrawn or lost such right to appraisal (a "Dissenting Share") shall not be
converted into or represent a right to receive the Merger Price pursuant to
Section 3.01(c), but the holder thereof shall be entitled only to such rights as
are granted by the applicable provisions of the FBCA; provided, however, that
any Dissenting Share held by a person at the Effective Time who shall, after the
Effective Time, withdraw the demand for appraisal or lose the right of
appraisal, in either case pursuant to the FBCA, shall be deemed to be converted
into, as of the Effective Time, the right to receive the Merger Price pursuant
to Section 3.01(c).
(ii) The Company shall give Parent (x) prompt notice of
any written demands for appraisal, withdrawals of demands for appraisal and any
other instruments served pursuant to the applicable provisions of the FBCA
relating to the appraisal process received by the Company and (y) the
opportunity to direct all negotiations and proceedings with respect to demands
for appraisal under the FBCA. The Company will not voluntarily make any payment
with respect to any demands for appraisal and will not, except with the prior
written consent of Parent, settle or offer to settle any such demands.
(e) Stock Option Plan. Each option to acquire a share of
Company Common Stock outstanding under the Company's 1987 Employee Stock Option
Plan (the "1987 Company Option Plan") shall be changed into an amount in cash in
respect of each share of 1987 Company Common Stock 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 this Section.
3.02 Exchange of Certificates.
(a) Payment Agent. At the Effective Time, Parent shall make
available to the Surviving Corporation for deposit with a bank or trust company
designated before the Closing Date by Parent and reasonably acceptable to the
Company (the "Payment Agent") a cash amount equal to the aggregate Merger Price
to which holders of shares of Company Common Stock shall be entitled upon
consummation of the Merger, to be held for the benefit of and distributed to
such holders in accordance with this Section. The Payment Agent shall agree to
hold such funds (such funds, together with earnings thereon, being referred to
herein as the "Payment Fund") for delivery as contemplated by this Section and
upon such additional terms as may be agreed upon by the Payment Agent, the
Company and Parent. If for any reason (including losses) the Payment Fund is
inadequate to pay the cash amounts to which holders of shares of Company Common
Stock shall be entitled, Parent shall in any event remain liable, and shall make
available to the Surviving Corporation additional funds, for the payment
thereof. The Payment Fund shall not be used for any purpose except as expressly
provided in this Agreement.
(b) Exchange Procedures. As soon as reasonably practicable
after the Effective Time, the Surviving Corporation shall cause the Payment
Agent to mail to each holder of record of a certificate or certificates which
immediately prior to the Effective Time represented outstanding shares of
Company Common Stock (the "Certificates") whose shares are
7
<PAGE> 15
converted pursuant to Section 3.01(c) into the right to receive the Merger Price
(i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Payment Agent and shall be in such form and
have such other provisions as the Surviving Corporation may reasonably specify)
and (ii) instructions for use in effecting the surrender of the Certificates in
exchange for the Merger Price. Upon surrender of a Certificate for cancellation
to the Payment Agent, together with such letter of transmittal duly executed and
completed in accordance with its terms, the holder of such Certificate shall be
entitled to receive in exchange therefor a check representing the Merger Price
per share of Company Common Stock represented thereby, which such holder has the
right to receive pursuant to the provisions of this Article III, and the
Certificate so surrendered shall forthwith be canceled. In no event shall the
holder of any Certificate be entitled to receive interest on any funds to be
received in the Merger, including any interest accrued in respect of the Payment
Fund. In the event of a transfer of ownership of Company Common Stock which is
not registered in the transfer records of the Company, the Merger Price may be
issued to a transferee if the Certificate representing such Company Common Stock
is presented to the Payment Agent accompanied by all documents required to
evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated by this Section
3.02(b), each Certificate shall be deemed at any time after the Effective Time
to represent only the right to receive upon such surrender the Merger Price per
share of Company Common Stock represented thereby as contemplated by this
Article III.
(c) No Further Ownership Rights in Company Common Stock. All
cash paid upon the surrender for exchange of Certificates in accordance with the
terms hereof shall be deemed to have been paid in full satisfaction of all
rights pertaining to the shares of Company Common Stock represented thereby.
From and after the Effective Time, the stock transfer books of the Company shall
be closed and there shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of the shares of Company Common
Stock which were outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Surviving Corporation for
any reason, they shall be canceled and exchanged as provided in this Section.
(d) Termination of Payment Fund. Any portion of the Payment
Fund which remains undistributed to the stockholders of the Company for six
months after the Effective Time shall be delivered to the Surviving Corporation,
upon demand, and any stockholders of the Company who have not theretofore
complied with this Article III shall thereafter look only to the Surviving
Corporation (subject to abandoned property, escheat and other similar laws) as
general creditors for payment of their claim for the Merger Price per share.
Neither Parent nor the Surviving Corporation shall be liable to any holder of
shares of Company Common Stock for cash representing the Merger Price delivered
to a public official pursuant to any applicable abandoned property, escheat or
similar law.
(e) Withholding Rights. Parent shall be entitled to deduct and
withhold from the Merger Price otherwise payable pursuant to this Agreement to
any holder of shares of Company Common Stock such amounts as Parent is required
to deduct and withhold with respect to the making of such payment under the
Internal Revenue Code of 1986, as amended (the "Code"), or any provision of
state, local or foreign tax law. To the extent that amounts are
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so withheld by Parent, such withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the holder of the shares of Company
Common Stock in respect of which such deduction and withholding was made by
Parent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Sub as
follows:
4.01 Organization and Qualification. Each of the Company and
its Subsidiaries is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation and has full
corporate power and authority to conduct its business as and to the extent now
conducted and to own, use and lease its assets and properties, except for such
failures to be so incorporated, existing and in good standing or to have such
power and authority which, individually or in the aggregate, are not having and
could not be reasonably expected to have a material adverse effect on the
Company and its Subsidiaries taken as a whole. Each of the Company and its
Subsidiaries is qualified, licensed or admitted to do business and is in good
standing in each jurisdiction in which the ownership, use or leasing of its
assets and properties, or the conduct or nature of its business, makes such
qualification, licensing or admission necessary, except for such failures to be
so qualified, licensed or admitted and in good standing which, individually or
in the aggregate, are not having and could not be reasonably expected to have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
Section 4.01 of the letter dated the date hereof and delivered to Parent and Sub
by the Company concurrently with the execution and delivery of this Agreement
(the "Company Disclosure Letter") sets forth (i) the name and jurisdiction of
incorporation of each Subsidiary of the Company, (ii) its authorized capital
stock, (iii) the number of issued and outstanding shares of capital stock and
(iv) the record owners of such shares. Except for interests in the Subsidiaries
of the Company and as disclosed in Section 4.01 of the Company Disclosure
Letter, the Company does not directly or indirectly own any equity or similar
interest in, or any interest convertible into or exchangeable or exercisable
for, any equity or similar interest in, any corporation, partnership, limited
liability company, joint venture or other business association or entity. The
Company has previously made available to Parent correct and complete copies of
the certificate or articles of incorporation and bylaws (or other comparable
charter documents) of the Company and its Subsidiaries.
4.02 Capital Stock. (a) The authorized capital stock of the
Company consists solely of 30,000,000 shares of Company Common Stock and
10,000,000 shares of preferred stock, par value $.10 per share ("Company
Preferred Stock"). As of the date hereof, except as disclosed in Section 4.02 of
the Company Disclosure Letter, 10,309,975 shares of Company Common Stock were
issued and outstanding, 39,424 shares were held in the treasury of the Company,
13,000 shares are reserved for issuance upon exercise of outstanding Options
under the 1987 Company Option Plan and 750,000 shares are reserved for issuance
upon the exercise of Options under the Company's 1997 Incentive Equity Plan. As
of the date hereof, no shares of Company Preferred Stock are issued and
outstanding. All of the issued and outstanding shares of
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Company Common Stock are, and all shares reserved for issuance will be, upon
issuance in accordance with the terms specified in the instruments or agreements
pursuant to which they are issuable, duly authorized, validly issued, fully paid
and nonassessable. Except pursuant to this Agreement and except as set forth in
Section 4.02 of the Company Disclosure Letter, there are no outstanding
subscriptions, options, warrants, rights (including "phantom" stock rights),
preemptive rights or other contracts, commitments, understandings or
arrangements, including any right of conversion or exchange under any
outstanding security, instrument or agreement (together, "Options"), obligating
the Company or any of its Subsidiaries to issue or sell any shares of capital
stock of the Company or to grant, extend or enter into any Option with respect
thereto.
(b) Except as disclosed in Section 4.02 of the Company
Disclosure Letter, all of the outstanding shares of capital stock of each
Subsidiary of the Company are authorized, issued, fully paid and nonassessable
and are owned, beneficially and of record, by the Company or a Subsidiary
wholly-owned, directly or indirectly, by the Company, free and clear of any
liens, claims, mortgages, encumbrances, pledges, security interests, equities
and charges of any kind (each a "Lien"). Except as disclosed in Section 4.02 of
the Company Disclosure Letter, there are no (i) outstanding Options obligating
the Company or any of its Subsidiaries to issue or sell any shares of capital
stock of any Subsidiary of the Company or to grant, extend or enter into any
such Option or (ii) voting trusts, proxies or other commitments, understandings,
restrictions or arrangements in favor of any person other than the Company or a
Subsidiary wholly-owned, directly or indirectly, by the Company with respect to
the voting of or the right to participate in dividends or other earnings on any
capital stock of any Subsidiary of the Company.
(c) Except as disclosed in Section 4.02 of the Company
Disclosure Letter, there are no outstanding contractual obligations of the
Company or any Subsidiary of the Company to repurchase, redeem or otherwise
acquire any shares of Company Common Stock or any capital stock of any
Subsidiary of the Company or to provide funds to, or make any investment (in the
form of a loan, capital contribution or otherwise) in, any Subsidiary of the
Company or any other person.
4.03 Authority Relative to this Agreement. The Company has
corporate power and authority to enter into this Agreement and the Asset
Purchase Agreement and, subject to obtaining the Company Stockholders' Approval,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby (including the execution, delivery and performance of the
Asset Purchase Agreement). The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby (including the execution, delivery and performance of the
Asset Purchase Agreement) have been approved by the Board of Directors of the
Company, the Board of Directors of the Company has recommended adoption of this
Agreement and the Asset Purchase Agreement by the stockholders of the Company
and directed that this Agreement and the Asset Purchase Agreement be submitted
to the stockholders of the Company for their consideration, and no other
corporate proceedings on the part of the Company or its stockholders are
necessary to authorize the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby (including the execution, delivery and performance of the
Asset Purchase Agreement), other than obtaining the Company Stockholders'
Approval if and to the extent required by applicable law. Each of this
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Agreement and the Asset Purchase Agreement has been duly and validly executed
and delivered by the Company and, subject to the obtaining of the Company
Stockholders' Approval, constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.04 Non-Contravention; Approvals and Consents. (a) The
execution and delivery of this Agreement by the Company do not, and the
performance by the Company of its obligations hereunder and the consummation of
the transactions contemplated hereby (including the Asset Purchase Agreement)
will not, conflict with, result in a violation or breach of, constitute (with or
without notice or lapse of time or both) a default under, result in or give to
any person any right of payment or reimbursement, termination, cancellation,
modification or acceleration of, or result in the creation or imposition of any
Lien upon any of the assets or properties of the Company or any of its
Subsidiaries under, any of the terms, conditions or provisions of (i) the
certificates or articles of incorporation or bylaws (or other comparable charter
documents) of the Company or any of its Subsidiaries, or (ii) subject to the
obtaining of the Company Stockholders' Approval and the taking of the actions
described in paragraph (b) of this Section, (x) any statute, law, rule,
regulation or ordinance (together, "laws"), or any judgment, decree, order,
writ, permit or license (together, "orders"), of any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision (a "Governmental or Regulatory Authority")
applicable to the Company or any of its Subsidiaries or any of their respective
assets or properties, or (y) any note, bond, mortgage, security agreement,
indenture, license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind (together, "Contracts") to which
the Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries or any of their respective assets or properties is bound,
excluding from the foregoing clauses (x) and (y) conflicts, violations,
breaches, defaults, terminations, modifications, accelerations and creations and
impositions of Liens which, individually or in the aggregate, could not be
reasonably expected to 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 this Agreement.
(b) Except (i) for the filing of the Schedule 14D-9 and any
Proxy Statement with the SEC pursuant to the Exchange Act, (ii) for the filing
of the Certificate of Merger and other appropriate merger documents required by
the FBCA with the Secretary of State and appropriate documents with the relevant
authorities of other states in which the Constituent Corporations are qualified
to do business and (iii) as disclosed in Section 4.04 of the Company Disclosure
Letter, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other public or private third party is
necessary or required under any of the terms, conditions or provisions of any
law or order of any Governmental or Regulatory Authority or any Contract to
which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries or any of their respective assets or properties is
bound for the execution and delivery of this Agreement by the Company, the
performance by the Company of its obligations hereunder or the consummation of
the transactions contemplated hereby, other
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than such consents, approvals, actions, filings and notices which the failure to
make or obtain, as the case may be, individually or in the aggregate, could not
be reasonably expected to 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 this Agreement.
4.05 SEC Reports and Financial Statements. The Company
delivered to Parent prior to the execution of this Agreement a true and complete
copy of each form, report, schedule, registration statement, definitive proxy
statement and other document (together with all amendments thereof and
supplements thereto) filed by the Company or any of its Subsidiaries with the
SEC since September 30, 1996 (as such documents have since the time of their
filing been amended or supplemented, the "Company SEC Reports"), which are all
the documents (other than preliminary material) that the Company and its
Subsidiaries were required to file with the SEC since such date. As of their
respective dates, the Company SEC Reports (i) complied as to form in all
material respects with the requirements of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (the "Securities Act"), or the
Exchange Act, as the case may be, and (ii) did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The audited
consolidated financial statements and unaudited interim consolidated financial
statements (including, in each case, the notes, if any, thereto) included in the
Company SEC Reports (the "Company Financial Statements") complied as to form in
all material respects with the published rules and regulations of the SEC with
respect thereto, were prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except as
may be indicated therein or in the notes thereto and except with respect to
unaudited statements as permitted by Form 10-Q of the SEC) and fairly present
(subject, in the case of the unaudited interim financial statements, to normal,
recurring year-end audit adjustments (which are not expected to be, individually
or in the aggregate, materially adverse to the Company and its Subsidiaries
taken as a whole)) the consolidated financial position of the Company and its
consolidated subsidiaries as at the respective dates thereof and the
consolidated results of their operations and cash flows for the respective
periods then ended. Except as set forth in Section 4.05 of the Company
Disclosure Letter, each Subsidiary of the Company is treated as a consolidated
subsidiary of the Company in the Company Financial Statements for all periods
covered thereby.
4.06 Absence of Certain Changes or Events. Except as disclosed
in the Company SEC Reports filed prior to the date of this Agreement, (a) since
September 30, 1998 there has not been any change, event or development having,
or that could be reasonably expected to have, individually or in the aggregate,
a material adverse effect on the Company and its Subsidiaries taken as a whole,
and (b) except as disclosed in Section 4.06 of the Company Disclosure Letter,
between such date and the date hereof (i) the Company and its Subsidiaries have
conducted their respective businesses only in the ordinary course consistent
with past practice, (ii) no physical damage, destruction or other casualty loss
(whether or not covered by insurance) affecting any of the plant, real or
personal property or equipment of the Company or any of its Subsidiaries in an
aggregate amount exceeding $50,000 has occurred and (iii) neither the Company
nor any of its Subsidiaries has taken any action which, if taken after the date
hereof, would constitute a breach of any provision of clause (ii) of Section
6.01(b).
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4.07 Absence of Undisclosed Liabilities. Except for matters
reflected or reserved against in the balance sheet for the period ended
September 30, 1998 included in the Company Financial Statements or as disclosed
in Section 4.07 of the Company Disclosure Letter, neither the Company nor any of
its Subsidiaries had at such date, or has incurred since that date, any
liabilities or obligations (whether absolute, accrued, contingent, fixed or
otherwise, or whether due or to become due) of any nature that would be required
by generally accepted accounting principles to be reflected on a consolidated
balance sheet of the Company and its consolidated subsidiaries (including the
notes thereto), except liabilities or obligations (i) which were incurred in the
ordinary course of business consistent with past practice or (ii) which have not
been, and could not be reasonably expected to be, individually or in the
aggregate, materially adverse to the Company and its Subsidiaries taken as a
whole.
4.08 Legal Proceedings. Except as disclosed in the Company SEC
Reports filed prior to the date of this Agreement or in Section 4.08 of the
Company Disclosure Letter, (i) there are no actions, suits, arbitrations or
proceedings pending or, to the knowledge of the Company, threatened against,
relating to or affecting, nor to the knowledge of the Company are there any
Governmental or Regulatory Authority investigations or audits pending or
threatened against, relating to or affecting, the Company or any of its
Subsidiaries or any of their respective assets and properties which,
individually or in the aggregate, could be reasonably expected to 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
this Agreement, and (ii) neither the Company nor any of its Subsidiaries is
subject to any order of any Governmental or Regulatory Authority which,
individually or in the aggregate, is having or could be reasonably expected to
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 this Agreement.
4.09 Information Supplied. (a) The Schedule 14D-9, any proxy
statement or information statement, as the case may be, relating to the Company
Stockholders' Meeting, as amended or supplemented from time to time (as so
amended and supplemented, the "Proxy Statement"), and any other documents to be
filed by the Company with the SEC or any other Governmental or Regulatory
Authority in connection with the Offer or the Merger and the other transactions
contemplated hereby will not, on the date of its filing or, with respect to the
Schedule 14D-9, at the date it is filed with the SEC and first published, sent
or given to stockholders, or, in the case of the Proxy Statement, at the date it
is mailed to stockholders of the Company and at the date of the Company
Stockholders' Meeting, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading, except that no representation is made by the Company
with respect to information supplied in writing by or on behalf of Parent or Sub
expressly for inclusion therein and information incorporated by reference
therein from documents filed by Parent or any of its Subsidiaries with the SEC.
The Schedule 14D-9, Proxy Statement and any such other documents filed by the
Company with the SEC under the Exchange Act will comply as to form in all
material respects with the requirements of the Exchange Act.
(b) Neither the information supplied or to be supplied in
writing by or on behalf of the Company for inclusion, nor the information
incorporated by reference from
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documents filed by the Company or any of its Subsidiaries with the SEC, in the
Offer Documents or any other documents to be filed by Parent or Sub with the SEC
or any other Governmental or Regulatory Authority in connection with the Offer
or the Merger and the other transactions contemplated hereby will on the date of
its filing or, with respect to the Offer Documents, at the date they are filed
with the SEC and first published, sent or given to stockholders, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading.
4.10 Compliance with Laws and Orders. The Company and its
Subsidiaries hold all permits, licenses, variances, exemptions, orders and
approvals of all Governmental and Regulatory Authorities necessary for the
lawful conduct of their respective businesses (the "Company Permits"), except
for failures to hold such permits, licenses, variances, exemptions, orders and
approvals which, individually or in the aggregate, are not having and could not
be reasonably expected to have a material adverse effect on the Company and its
Subsidiaries taken as a whole. The Company and its Subsidiaries are in
compliance with the terms of the Company Permits, except failures so to comply
which, individually or in the aggregate, are not having and could not be
reasonably expected to have a material adverse effect on the Company and its
Subsidiaries taken as a whole. Except as disclosed in the Company SEC Reports
filed prior to the date of this Agreement, the Company and its Subsidiaries are
not in violation of or default under any law or order of any Governmental or
Regulatory Authority, except for such violations or defaults which, individually
or in the aggregate, are not having and could not be reasonably expected to have
a material adverse effect on the Company and its Subsidiaries taken as a whole.
4.11 Compliance with Agreements; Certain Agreements. (a)
Except as disclosed in the Company SEC Reports filed prior to the date of this
Agreement or in Section 4.11(a) of the Company Disclosure Letter, neither the
Company nor any of its Subsidiaries nor, to the knowledge of the Company, any
other party thereto is in breach or violation of, or in default in the
performance or observance of any term or provision of, and no event has occurred
which, with notice or lapse of time or both, could be reasonably expected to
result in a default under, (i) the certificates or articles of incorporation or
bylaws (or other comparable charter documents) of the Company or any of its
Subsidiaries or (ii) any Contract to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries or
any of their respective assets or properties is bound, except in the case of
clause (ii) for breaches, violations and defaults which, individually or in the
aggregate, are not having and could not be reasonably expected to have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
(b) Except as disclosed in Section 4.11(b) of the Company
Disclosure Letter or in the Company SEC Reports filed prior to the date of this
Agreement or as provided for in this Agreement, as of the date hereof, neither
the Company nor any of its Subsidiaries is a party to any oral or written:
(i) (A) Contract (excluding Company Employee Benefit Plans)
providing for a commitment of employment or consultation services for a
specified or unspecified term or otherwise relating to employment or
the termination of employment; and (B) representations, commitments,
promises, communications or courses of conduct
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(excluding Company Employee Benefit Plans and any such Contracts
referred to in clause (A)) involving an obligation of the Company or
any Subsidiary of the Company to make payments in any year, other than
with respect to salary or incentive compensation payments in the
ordinary course of business, to any employee exceeding $50,000 or any
group of employees exceeding $200,000 in the aggregate;
(ii) Contracts with any person containing any provision or
covenant prohibiting or limiting the ability of the Company or any
Subsidiary of the Company to engage in any business activity or compete
with any person or prohibiting or limiting the ability of any person to
compete with the Company or any Subsidiary of the Company;
(iii) partnership, joint venture, shareholders' or other
similar Contracts with any person;
(iv) Contracts relating to Indebtedness of the Company or any
Subsidiary of the Company in excess of $150,000 or to preferred stock
issued by the Company or any Subsidiary of the Company;
(v) Contracts with distributors, dealers, manufacturer's
representatives, sales agencies or franchisees involving the payment or
potential payment, pursuant to the terms of any such Contract, by or to
the Company or any Subsidiary of the Company of more than $50,000
annually;
(vi) Contracts relating to (A) the future disposition or
acquisition of any assets or properties, other than dispositions or
acquisitions in the ordinary course of business consistent with past
practice, and (B) any merger or other business combination;
(vii) agreement or plan, including any stock option, stock
appreciation right, restricted stock or stock purchase plan, any of the
benefits of which will be increased, or the vesting of the benefits of
which will be accelerated, by the occurrence of any of the transactions
contemplated by this Agreement or the value of any of the benefits of
which will be calculated on the basis of any of the transactions
contemplated by this Agreement;
(viii) collective bargaining or similar labor Contracts;
(ix) Contracts that (A) limit or contain restrictions on the
ability of the Company or any Subsidiary of the Company to declare or
pay dividends on, to make any other distribution in respect of or to
issue or purchase, redeem or otherwise acquire its capital stock, to
incur Indebtedness, to incur or suffer to exist any Lien, to purchase
or sell any assets or properties, to change the lines of business in
which it participates or engages or to engage in any merger or similar
business combination or (B) require the Company or any Subsidiary of
the Company to maintain specified financial ratios or levels of net
worth or other indicia of financial condition;
(x) Contracts relating to grove care, harvesting and marketing
services for groves owned by third parties; or
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(xi) any other Contracts (other than Company Employee Benefit
Plans listed in Section 4.13 of the Company Disclosure Letter) that (A)
involve the payment or potential payment, pursuant to the terms of any
such Contract, by or to the Company or any Subsidiary of the Company of
more than $100,000 annually and (B) cannot be terminated within 60 days
after giving notice of termination without resulting in any material
cost or penalty to the Company or any Subsidiary of the Company.
4.12 Taxes. (a) Each of the Company and its Subsidiaries has
filed all material tax returns and reports required to be filed by it, or
requests for extensions to file such returns or reports have been timely filed
or granted and have not expired, and all tax returns and reports are complete
and accurate in all respects, except to the extent that such failures to file,
have extensions granted that remain in effect or be complete and accurate in all
respects, as applicable, individually or in the aggregate, would not have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
The Company and each of its Subsidiaries has paid (or the Company has paid on
its behalf) all taxes shown as due on such tax returns and reports. The most
recent financial statements contained in the Company SEC Reports reflect an
adequate reserve for all taxes payable by the Company and its Subsidiaries for
all taxable periods and portions thereof accrued through the date of such
financial statements, and no deficiencies for any taxes have been proposed,
asserted or assessed against the Company or any of its Subsidiaries that are not
adequately reserved for, except for inadequately reserved taxes and inadequately
reserved deficiencies that would not, individually or in the aggregate, have a
material adverse effect on the Company and its Subsidiaries taken as a whole. No
requests for waivers of the time to assess any taxes against the Company or any
of its Subsidiaries have been granted or are pending, except for requests with
respect to such taxes as are set forth in Section 4.12(a) of the Company
Disclosure Letter and which have been adequately reserved for in the most recent
financial statements contained in the Company SEC Reports, or, to the extent not
adequately reserved, the assessment of which would not, individually or in the
aggregate, have a material adverse effect on the Company and its Subsidiaries
taken as a whole.
(b) Except as set forth in Section 4.12(b) of the Company
Disclosure Letter, (i) there are no audits or other administrative proceedings
or court proceedings presently pending with respect to any taxes or tax returns,
(ii) there are no tax liens upon the assets of the Company, excepts liens for
taxes not yet due; (iii) the statute of limitations for the assessment of all
taxes has expired for all tax returns of the Company and its Subsidiaries for
all fiscal years ended on or before September 30, 1995; (iv) the Company has not
received any written ruling of a taxing authority relating to taxes or entered
into any other written and legally binding agreement with a taxing authority
relating to taxes; (v) the Company has made available (or, in the case of tax
returns to be filed on or before the Closing Date, will make available) to
Parent and Sub complete and accurate copies of all tax returns and associated
work papers filed by or on behalf of the Company and its Subsidiaries for all
taxable years ending on or prior to the Closing Date; (vi) the Company and its
Subsidiaries have not filed (and will not file prior to the Closing) the consent
referred to in Code section 341(f); and (vii) the Company and its Subsidiaries
are not parties to any agreement, contract, or arrangement that would result,
separately or in the aggregate, in the payment of any "excess parachute
payments" within the meaning of Code Section 280G.
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(c) As used in this Section 4.12, "taxes" shall include all
federal, state, local and foreign income, franchise, property, sales, use,
excise and other taxes, including obligations for withholding taxes from
payments due or made to any other person and any interest, penalties or
additions to tax.
4.13 Employee Benefit Plans; ERISA. (a) Except as described in
the Company SEC Reports filed prior to the date of this Agreement or as would
not have a material adverse effect on the Company and its Subsidiaries taken as
a whole or as set forth in Section 4.13 of the Company Disclosure Letter, (i)
all Company Employee Benefit Plans (as defined below) are and have been
maintained in compliance with all applicable requirements of law, including
ERISA and the Code, and (ii) neither the Company nor any of its Subsidiaries has
any liabilities or obligations with respect to any such Company Employee Benefit
Plans, whether accrued, contingent or otherwise, nor to the knowledge of the
Company are any such liabilities or obligations expected to be incurred. Section
4.13 of the Company Disclosure Letter lists all Company Employee Benefits Plans.
The execution of, and performance of the transactions contemplated in, this
Agreement will not (either alone or upon the occurrence of any additional or
subsequent events) constitute an event under any Company Employee Benefit Plan
that will or may result in any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase in
benefits or obligation to fund benefits with respect to any employee. The only
severance agreements or severance policies applicable to the Company or any of
its Subsidiaries are the agreements and policies specifically referred to in
Section 4.13 of the Company Disclosure Letter. Each Company Employee Benefit
Plan intended to be qualified under Section 401(a) of the Code is so qualified,
has received a favorable determination letter from the IRS and nothing has
changed that could adversely affect such termination.
(b) As used herein:
(i) "Company Employee Benefit Plan" means any Plan entered
into, established, maintained, sponsored, contributed to or required to
be contributed to by the Company or any of its Subsidiaries for the
benefit of the current or former employees or directors of the Company
or any of its Subsidiaries and existing on the date of this Agreement
or at any time subsequent thereto and on or prior to the Effective Time
and, in the case of a Plan which is subject to Part 3 of Title I of the
Employee Retirement Income Security Act of 1974, as amended, and the
rules and regulations thereunder ("ERISA"), Section 412 of the Code or
Title IV of ERISA, at any time during the five-year period preceding
the date of this Agreement; and
(ii) "Plan" means any employment, bonus, incentive
compensation, deferred compensation, pension, profit sharing,
retirement, stock purchase, stock option, stock ownership, stock
appreciation rights, phantom stock, leave of absence, layoff, vacation,
day or dependent care, legal services, cafeteria, life, health,
medical, accident, disability, workmen's compensation or other
insurance, severance, separation, termination, change of control or
other benefit plan, agreement, practice, policy, program or arrangement
of any kind, whether written or oral, including but not limited to any
"employee benefit plan" within the meaning of Section 3(3) of ERISA.
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4.14 Labor Matters. Except as disclosed in the Company SEC
Reports filed prior to the date of this Agreement or in Section 4.14 of the
Company Disclosure Letter, there are no material controversies pending or, to
the knowledge of the Company, threatened between the Company or any of its
Subsidiaries and any representatives of its employees, except as would not,
individually or in the aggregate, have a material adverse effect on the Company
and its Subsidiaries taken as a whole, and, to the knowledge of the Company,
there are no material organizational efforts presently being made involving any
of the now unorganized employees of the Company or any of its Subsidiaries.
Since September 30, 1993, there has been no work stoppage, strike or other
concerted action by employees of the Company or any of its Subsidiaries except
as would not, individually or in the aggregate, have a material adverse effect
on the Company and its Subsidiaries taken as a whole. During that period, the
Company and its Subsidiaries have complied in all material respects with all
applicable laws relating to the employment of labor, including without
limitation those relating to wages, hours and collective bargaining. Neither the
Company nor any of its Subsidiaries is a party to any oral or written contracts
or agreements granting benefits or rights to any employees or any collective
bargaining agreement or to any conciliation or similar agreement with the
Department of Labor, the Equal Employment Opportunity Commission or any federal,
state or local agency which requires equal employment opportunities or
affirmative action in employment. There have been and currently are no unfair
labor practice complaints pending against the Company or any of its Subsidiaries
before the National Labor Relations Board and, except as set forth in Section
4.14 of the Company Disclosure Letter, no similar claims pending before any
similar state, local or foreign agency.
4.15 Environmental Matters. Each of the Company and its
Subsidiaries has obtained all Licenses which are required under applicable
Environmental Laws in connection with the conduct of the business or operations
of the Company or its Subsidiaries. Each of such Licenses is in full force and
effect and each of the Company and its Subsidiaries is in compliance in all
material respects with the terms and conditions of all such Licenses and, except
as set forth in Section 4.15 of the Company Disclosure Letter, with any
applicable Environmental Law. In addition, except as set forth in Section 4.15
of the Company Disclosure Letter (with paragraph references corresponding to
those set forth below):
(a) No order has been issued, no Environmental Claim has been
filed, no penalty has been assessed and no investigation or review is pending
or, to the knowledge of the Company, threatened by any Governmental or
Regulatory Authority with respect to any alleged failure by the Company or any
of its Subsidiaries to have any License required under applicable Environmental
Laws in connection with the conduct of the business or operations of the Company
or any of its Subsidiaries or with respect to any generation, treatment,
storage, recycling, transportation, discharge, disposal or Release of any
Hazardous Material generated by the Company or any of its Subsidiaries, and to
the knowledge of the Company, there are no facts or circumstances in existence
which could reasonably be expected to form the basis for any such order,
Environmental Claim, penalty or investigation.
(b) Neither the Company nor any of its Subsidiaries owns,
operates or leases a treatment, storage or disposal facility requiring a permit
under the Resource Conservation and Recovery Act, as amended, or under any other
comparable state or local law; and, without limiting the foregoing, except, with
respect to clauses (i) and (ii), where such matter will have no
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material adverse effect on the Company and its Subsidiaries taken as a whole,
(i) no polychlorinated biphenyl is or has been present, (ii) no asbestos or
asbestos-containing material is or has been present, (iii) there are no
underground storage tanks or surface impoundments for Hazardous Materials,
active or abandoned, and (iv) no Hazardous Material has been Released in a
quantity reportable under, or in violation of, any Environmental Law or
otherwise Released, in the cases of clauses (i) through (iv), at, on or under
any site or facility now or previously owned, operated or leased by the Company
or any of its Subsidiaries.
(c) Neither the Company nor any of its Subsidiaries has
transported or arranged for the transportation of any Hazardous Material to any
location that is (i) listed on the National Priorities List ("NPL") under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, and the rules and regulations promulgated thereunder ("CERCLA"), (ii)
listed for possible inclusion on the NPL by the Environmental Protection Agency
in the Comprehensive Environmental Response and Liability Information System
("CERCLIS") or on any similar state or local list or (iii) the subject of
enforcement actions by federal, state or local Governmental or Regulatory
Authorities that may lead to Environmental Claims against the Company or any of
its Subsidiaries.
(d) No Hazardous Material generated by the Company or any of
its Subsidiaries has been recycled, treated, stored, disposed of or Released by
the Company or any of its Subsidiaries at any location.
(e) No oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of the Company or any of its
Subsidiaries and no site or facility now or previously owned, operated or leased
by the Company or any of its Subsidiaries is listed or proposed for listing on
the NPL, CERCLIS or any similar state or local list of sites requiring
investigation or clean-up.
(f) No Liens have arisen under or pursuant to any
Environmental Law on any site or facility owned, operated or leased by the
Company or any of its Subsidiaries, and no federal, state or local Governmental
or Regulatory Authority action has been taken or, to the knowledge of the
Company, is in process that could subject any such site or facility to such
Liens, and neither the Company nor any of its Subsidiaries would be required to
place any notice or restriction relating to the presence of Hazardous Materials
at any site or facility owned by it in any deed to the real property on which
such site or facility is located.
(g) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by, or that are in the
possession of, the Company or any of its Subsidiaries in relation to any site or
facility now or previously owned, operated or leased by the Company or any of
its Subsidiaries which have not been made available to Parent prior to the
execution of this Agreement.
(h) As used herein:
(i) "Environmental Claim" means, with respect to any person,
any written or oral notice, claim, demand or other communication
(collectively, a "claim") by any other person alleging or asserting
such person's liability for investigatory costs, cleanup costs,
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Governmental or Regulatory Authority response costs, damages to natural
resources or other property, personal injuries, fines or penalties
arising out of, based on or resulting from (a) the presence, or Release
into the environment, of any Hazardous Material at any location,
whether or not owned by such person, or (b) circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
The term "Environmental Claim" shall include, without limitation, any
claim by any Governmental or Regulatory Authority for enforcement,
cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any
third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the presence
of Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment;
(ii) "Environmental Law" means any law or order of any
Governmental or Regulatory Authority relating to the regulation or
protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial, toxic or hazardous substances or
wastes into the environment (including, without limitation, ambient
air, soil, surface water, ground water, wetlands, land or subsurface
strata), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or wastes;
(iii) "Hazardous Material" means (A) any petroleum or
petroleum products, flammable explosives, radioactive materials,
asbestos in any form that is or could become friable, urea formaldehyde
foam insulation and transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls (PCBs);
(B) any chemicals or other materials or substances which are now or
hereafter become defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants" or words of similar import under any Environmental
Law; and (C) any other chemical or other material or substance,
exposure to which is now or hereafter prohibited, limited or regulated
by any Governmental or Regulatory Authority under any Environmental
Law;
(iv) "Licenses" means all licenses, permits, certificates of
authority, authorizations, approvals, registrations, franchises and
similar consents granted or issued by any Governmental or Regulatory
Authority; and
(v) "Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration into the indoor or outdoor environment, including, without
limitation, the movement of Hazardous Materials through ambient air,
soil, surface water, ground water, wetlands, land or subsurface strata.
4.16 Intellectual Property Rights. The Company and its
Subsidiaries have all right, title and interest in, or a valid and binding
license to use, all Intellectual Property (as defined below) individually or in
the aggregate material to the conduct of the businesses of the Company and its
Subsidiaries taken as a whole. Neither the Company nor any Subsidiary of the
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Company is in default (or with the giving of notice or lapse of time or both,
would be in default) under any license to use such Intellectual Property, such
Intellectual Property is not being infringed by any third party, and neither the
Company nor any Subsidiary of the Company is infringing any Intellectual
Property of any third party, except for such defaults and infringements which,
individually or in the aggregate, are not having and could not be reasonably
expected to have a material adverse effect on the Company and its Subsidiaries
taken as a whole. For purposes of this Agreement, "Intellectual Property" means
patents and patent rights, trademarks and trademark rights, trade names and
trade name rights, service marks and service mark rights, service names and
service name rights, copyrights and copyright rights and other proprietary
intellectual property rights and all pending applications for and registrations
of any of the foregoing.
4.17 Real Property. (a) Section 4.17(a) of the Company
Disclosure Letter contains a true and correct list of (i) each parcel of real
property owned by the Company or any Subsidiary of the Company, (ii) each parcel
of real property leased by the Company or any Subsidiary of the Company (as
lessor or lessee) and (iii) all Liens (other than Permitted Liens) relating to
or affecting any parcel of real property referred to in clause (i). For the
purposes of this Section 4.17, "Permitted Liens" means (i) any Lien for taxes
not yet due or delinquent or being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance with
generally accepted accounting principles, (ii) any statutory Lien arising in the
ordinary course of business by operation of law with respect to a liability that
is not yet due or delinquent and (iii) any minor imperfection of title or
similar Lien which individually or in the aggregate with other such Liens does
not materially impair the value of the property subject to such Lien or the use
of such property in the conduct of the business of the Company or any Subsidiary
of the Company.
(b) Except as disclosed in Section 4.17(a) of the Company
Disclosure Letter, the Company or a Subsidiary of the Company has good and
marketable fee simple title to each parcel of real property owned by it, free
and clear of all Liens, other than Permitted Liens, the existence of which could
materially impair the property with respect to its value or current use. Except
for the real property leased to others referred to in clause (ii) of paragraph
(a) above, the Company or a Subsidiary of the Company is in possession of each
parcel of real property owned by it, together with all buildings, structures,
facilities, fixtures and other improvements thereon. The Company and its
Subsidiaries have adequate rights of ingress and egress with respect to the real
property listed in Section 4.17(a) of the Company Disclosure Letter and all
buildings, structures, facilities, fixtures and other improvements thereon. None
of such real property, buildings, structures, facilities, fixtures or other
improvements, or the use thereof, contravenes or violates any building, zoning,
administrative, occupational safety and health or other applicable law in any
material respect (whether or not permitted on the basis of prior nonconforming
use, waiver or variance).
(c) The Company or a Subsidiary of the Company has a valid and
subsisting leasehold estate in and the right to quiet enjoyment of the real
properties leased by it for the full term of the lease thereof. Each lease
referred to in clause (ii) of paragraph (a) above is a legal, valid and binding
agreement, enforceable in accordance with its terms, of the Company or a
Subsidiary of the Company and of each other person that is a party thereto, and
except as set
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forth in Section 4.17(c) of the Company Disclosure Letter, there is no, and
neither the Company nor any Subsidiary of the Company has received notice of
any, default (or any condition or event which, after notice or lapse of time or
both, would constitute a default) thereunder. Neither the Company nor any
Subsidiary of the Company owes any brokerage commissions with respect to any
such leased space.
(d) The Company has made available to Parent prior to the
execution of this Agreement true and complete copies of (i) all deeds, leases,
mortgages, deeds of trust, certificates of occupancy, title insurance policies,
title reports, surveys and similar documents, and all amendments thereof, with
respect to the real property owned by the Company and its Subsidiaries, and (ii)
all leases (including any amendments and renewal letters) and, to the extent
reasonably available, all other documents referred to in clause (i) of this
paragraph (d) with respect to the real property leased by the Company and its
Subsidiaries.
(e) Except as disclosed in Section 4.17(e) of the Company
Disclosure Letter, no tenant or other party in possession of any of the real
properties owned by the Company and its Subsidiaries, has any right to purchase,
or holds any right of first refusal to purchase, such properties.
(f) Except as disclosed in Section 4.17(f) of the Company
Disclosure Letter, the improvements on the real property identified in Section
4.17(a) of the Company Disclosure Letter are in good operating condition and in
a state of good maintenance and repair, ordinary wear and tear excepted, are
adequate and suitable for the purposes for which they are presently being used
and, to the knowledge of Company, there are no condemnation or appropriation
proceedings pending or threatened against any of such real property or the
improvements thereon.
4.18 Water Rights. Section 4.18 of the Company Disclosure
Letter lists all Company Permits issued to the Company or its Subsidiaries in
connection with the withdrawal of water, or drainage, retention, detention or
the management of surface water in connection with the Company's and its
Subsidiaries' properties (the "Water Permits"). Each of the Company and its
Subsidiaries is in compliance in all material respects with the terms and
conditions of all such Water Permits and, to the Company's belief, such Water
Permits are adequate for the Company's purposes.
4.19 Termination of Fruit Agreements. Section 4.19 of the
Company Disclosure Letter lists each fruit processing, participation, marketing
and purchase agreement (the "Fruit Agreements") to which the Company and its
Subsidiaries are a party. The Company and its Subsidiaries have taken all
required steps in order to terminate all Fruit Agreements entered into with BHG
or its Affiliates which were able to be terminated without penalty or
termination charge as of the end of the 1998/1999 fruit processing season, such
that such Fruit Agreements shall terminate as of the end of the 1998/1999 fruit
processing season. Attached to Section 4.19 of the Company Disclosure Letter are
copies of each of the notices given to the Company and its Subsidiaries by BHG
under such Fruit Agreements which terminates each of such Fruit Agreements as of
the end of the 1998/1999 fruit processing season.
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4.20 Groves. The Company owns not less than 14,000 gross acres
of citrus groves, of which there are not less than 12,000 net planted acres. In
addition, the Company owns not less than 1,500 plantable acres, not less than
1,600 suitable acres and not less than 1,500 unusable acres (wetlands and other)
and manages not less than 2,900 acres of citrus groves owned by other growers.
During the 1995/1996 harvest season, the Company produced not less than
4,025,000 boxes of fruit (based on 90-pound boxes), which consisted of not less
than 110,000 boxes of fresh fruit and not less than 3,915,000 boxes of juice
fruit. During the 1996/1997 harvest season, the Company produced not less than
4,385,000 boxes of fruit (based on 90-pound boxes), which consisted of not less
than 70,000 boxes of fresh fruit and not less than 4,315,000 boxes of juice
fruit. During the 1997/1998 harvest season, the Company produced not less than
4,570,000 boxes of fruit (based on 90-pound boxes), which consisted of not less
than 90,000 boxes of fresh fruit and not less than 4,480,000 boxes of juice
fruit. During the 1998/1999 harvest season, the Company produced not less than
3,610,000 boxes of fruit (based on 90-pound boxes), which consisted of not less
than 85,000 boxes of fresh fruit and not less than 3,525,000 boxes of juice
fruit.
4.21 Affiliate Transactions. Except as disclosed in Section
4.21(a) of the Company Disclosure Letter or as described in the Company SEC
Reports filed prior to the date of this Agreement, (i) there are no intercompany
Indebtedness, obligations or other liabilities (whether absolute, accrued,
contingent, fixed or otherwise, or whether due or to become due) ("Liabilities")
between the Company or any of its Subsidiaries, on the one hand, and any
officer, director or affiliate (other than any Subsidiary of the Company) of the
Company, on the other, (ii) no such officer, director or affiliate provides or
causes to be provided any assets, services or facilities to the Company or any
Subsidiary of the Company, (iii) neither the Company nor its Subsidiaries
provides or causes to be provided any assets, services or facilities to any such
officer, director or affiliate and (iv) neither the Company nor any Subsidiary
of the Company beneficially owns, directly or indirectly, any Investment Assets
issued by any such officer, director or affiliate. Except as disclosed in
Section 4.21(b) of the Company Disclosure Letter, each of the Liabilities and
transactions listed in Section 4.21(a) of the Company Disclosure Letter was
incurred or engaged in, as the case may be, on an arm's-length basis. Except as
disclosed in Section 4.21(c) of the Company Disclosure Letter, since September
30, 1998, all settlements of intercompany Liabilities between the Company or any
of its Subsidiaries, on the one hand, and any such officer, director or
affiliates, on the other, have been made, and all allocations of intercompany
expenses have been applied, in the ordinary course of business consistent with
past practice. For the purposes of this Section 4.21, "Investment Assets" means
all debentures, notes and other evidences of Indebtedness, stocks, securities
(including rights to purchase and securities convertible into or exchangeable
for other securities), interests in joint ventures and general and limited
partnerships, mortgage loans and other investment or portfolio assets owned of
record or beneficially by the Company or any of its Subsidiaries and issued by
any person other than the Company or any of its Subsidiaries (other than trade
receivables generated in the ordinary course of business of the Company and its
Subsidiaries).
4.22 Vote Required. Assuming the accuracy of the
representation and warranty contained in Section 5.06, the affirmative vote of
the holders of record of at least a majority of the outstanding shares of
Company Common Stock with respect to the adoption of this
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Agreement and the Asset Purchase Agreement is the only vote of the holders of
any class or series of the capital stock of the Company required to adopt this
Agreement and approve the Merger and the other transactions contemplated hereby
(including the Asset Purchase Agreement).
4.23 Opinion of Financial Advisor. The Company has received
the opinion of Stephens Inc., dated the date hereof, to the effect that, as of
the date hereof, the consideration to be received in the Offer and the Merger by
the stockholders of the Company is fair from a financial point of view to the
unaffiliated stockholders of the Company, and a true and complete copy of such
opinion has been delivered to Parent prior to the execution of this Agreement.
4.24 Sections 607.0901 and 607.0902 of the FBCA Not
Applicable. The Company has taken all necessary actions so that the provisions
of Sections 607.0901 and 607.0902 of the FBCA will not, before the termination
of this Agreement, apply to this Agreement, the Offer, the Merger, the BHG
Purchase or the other transactions contemplated hereby (including the execution,
delivery and performance of the Asset Purchase Agreement).
4.25 Year 2000. The Company and its Subsidiaries have put into
effect reasonable and customary practices and programs (which include
communications with third party vendors and service providers on whom they rely
to determine whether such parties have put into effect practices and programs
which will enable their material software, hardware and equipment (including
microprocessors) to be Year 2000 Compliant (as defined below)) designed to
enable all material software, hardware and equipment (including microprocessors)
that are owned or utilized by the Company or any of its Subsidiaries in the
operations of its or their respective business to be capable, by December 31,
1999, of accounting for all calculations using a century and date sensitive
algorithm for the year 2000 and the fact that the year 2000 is a leap year and
to otherwise continue to function without any material interruption caused by
the occurrence of the year 2000 (such capabilities are herein referred to as
being "Year 2000 Compliant").
4.26 Company's Representations in the Asset Purchase
Agreement. The representations and warranties made by the Company in the Asset
Purchase Agreement are true and correct in all material respects.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Sub represent and warrant to the Company as
follows:
5.01 Organization and Qualification. Each of RCP, RCA and RCMF
is a limited partnership validly existing and Sub is a corporation incorporated,
existing and in good standing under the laws of its respective jurisdiction of
organization and has full partnership or corporate power and authority to
conduct its business as and to the extent now conducted and to own, use and
lease its assets and properties, except for such failures to be so incorporated,
existing and in good standing or to have such power and authority which,
individually or in the
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aggregate, are not having and could not be reasonably expected to have a
material adverse effect on Parent and its Subsidiaries taken as a whole. Sub was
formed solely for the purpose of engaging in the transactions contemplated by
this Agreement, has engaged in no other business activities and has conducted
its operations only as contemplated hereby. Parent has previously delivered to
the Company correct and complete copies of the certificate of incorporation and
bylaws (or other comparable charter or organizational documents) of Parent and
Sub. At the date hereof, RCP owns approximately 85.7% of the outstanding shares
of Sub, RCA owns approximately .2% of the outstanding shares of Sub and RCMF
owns approximately 14.1% of the outstanding shares of Sub.
5.02 Authority Relative to this Agreement. Each of Parent and
Sub has partnership or corporate power and authority to enter into this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by each of Parent and Sub and the consummation by each of Parent
and Sub of the transactions contemplated hereby have been approved by its Board
of Directors (or in the case of Parent, its general partner) and by the
stockholders of Sub, and no other corporate proceedings on the part of either of
Parent or Sub or their stockholders or partners are necessary to authorize the
execution, delivery and performance of this Agreement by Parent and Sub and the
consummation by Parent and Sub of the transactions contemplated hereby. This
Agreement has been executed and delivered by each of Parent and Sub and
constitutes a legal, valid and binding obligation of each of Parent and Sub
enforceable against each of Parent and Sub in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.03 Non-Contravention; Approvals and Consents. (a) The
execution and delivery of this Agreement by each of Parent and Sub do not, and
the performance by each of Parent and Sub of its obligations hereunder and the
consummation of the transactions contemplated hereby will not, conflict with,
result in a violation or breach of, constitute (with or without notice or lapse
of time or both) a default under, result in or give to any person any right of
payment or reimbursement, termination, cancellation, modification or
acceleration of, or result in the creation or imposition of any Lien upon any of
the assets or properties of Parent or any of its Subsidiaries under, any of the
terms, conditions or provisions of (i) the certificates or articles of
incorporation or bylaws (or other comparable charter or organizational
documents) of Parent or any of its Subsidiaries, or (ii) subject to the taking
of the actions described in paragraph (b) of this Section, (x) any laws or
orders of any Governmental or Regulatory Authority applicable to Parent or any
of its Subsidiaries or any of their respective assets or properties, or (y) any
Contracts to which Parent or any of its Subsidiaries is a party or by which
Parent or any of its Subsidiaries or any of their respective assets or
properties is bound, excluding from the foregoing clauses (x) and (y) conflicts,
violations, breaches, defaults, terminations, modifications, accelerations and
creations and impositions of Liens which, individually or in the aggregate,
could not be reasonably expected to have a material adverse effect on the
ability of Parent and Sub to consummate the transactions contemplated by this
Agreement.
(b) Except (i) for the filing of the Offer Documents with the
SEC (ii) for the filing of the Certificate of Merger and other appropriate
merger documents required by the
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FBCA with the Secretary of State and appropriate documents with the relevant
authorities of other states in which the Constituent Corporations are qualified
to do business, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other public or private third party is
necessary or required under any of the terms, conditions or provisions of any
law or order of any Governmental or Regulatory Authority or any Contract to
which Parent or any of its Subsidiaries is a party or by which Parent or any of
its Subsidiaries or any of their respective assets or properties is bound for
the execution and delivery of this Agreement by each of Parent and Sub, the
performance by each of Parent and Sub of its obligations hereunder or the
consummation of the transactions contemplated hereby, other than such consents,
approvals, actions, filings and notices which the failure to make or obtain, as
the case may be, individually or in the aggregate, could not be reasonably
expected to have a material adverse effect on the ability of Parent and Sub to
consummate the transactions contemplated by this Agreement.
5.04 Legal Proceedings. There are no actions, suits,
arbitrations or proceedings pending or, to the knowledge of Parent, threatened
against, relating to or affecting, nor to the knowledge of Parent are there any
Governmental or Regulatory Authority investigations or audits pending or
threatened against, relating to or affecting, Parent or any of its Subsidiaries
or any of their respective assets and properties which, individually or in the
aggregate, could be reasonably expected to have a material adverse effect on the
ability of Parent and Sub to consummate the transactions contemplated by this
Agreement, and neither Parent nor any of its Subsidiaries is subject to any
order of any Governmental or Regulatory Authority which, individually or in the
aggregate, could be reasonably expected to have a material adverse effect on the
ability of Parent and Sub to consummate the transactions contemplated by this
Agreement.
5.05 Information Supplied. (a) The Offer Documents and any
other documents to be filed by Parent or Sub with the SEC or any other
Governmental or Regulatory Authority in connection with the Offer or the Merger
and the other transactions contemplated hereby will not, on the date of its
filing or, with respect to the Offer Documents, on the date they are filed with
the SEC and first published, sent or given to stockholders of the Company, as
the case may be, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading, except that no representation is made by Parent or Sub
with respect to information supplied in writing by or on behalf of the Company
expressly for inclusion therein and information incorporated by reference
therein from documents filed by the Company or any of its Subsidiaries with the
SEC. The Offer Documents and any other such documents filed by Parent or Sub
with the SEC under the Exchange Act will comply as to form in all material
respects with the requirements of the Exchange Act.
(b) Neither the information supplied or to be supplied in
writing by or on behalf of Parent or Sub for inclusion, nor the information
incorporated by reference from documents filed by Parent or any of its
Subsidiaries with the SEC, in the Schedule 14D-9, the Proxy Statement or any
other documents to be filed by Parent, Sub or the Company with the SEC or any
other Governmental or Regulatory Authority in connection with the Offer or the
Merger and the other transactions contemplated hereby will on the date of its
filing or, with respect to the Schedule 14D-9, on the date it is filed with the
SEC and first published, sent or given to
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stockholders of the Company, or, in the case of the Proxy Statement, at the date
it is mailed to stockholders of the Company and at the date of the Company
Stockholders' Meeting, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading.
5.06 Ownership of Company Common Stock. Except for the Company
Common Stock purchased from BHG, on the date hereof neither Parent nor any of
its Subsidiaries or other affiliates beneficially owns any shares of Company
Common Stock.
5.07 Financing. Parent has sufficient cash and/or available
credit facilities to pay the Per Share Amount for all shares of Company Common
Stock tendered pursuant to the Offer and the aggregate Merger Price in
accordance with this Agreement and to make all other necessary payments of fees
and expenses required to be paid by Parent and Sub in connection with the
transactions contemplated by this Agreement.
ARTICLE VI
COVENANTS OF THE COMPANY
6.01 Covenants of the Company. At all times from and after the
date hereof until the Control Date, the Company covenants and agrees as to
itself and its Subsidiaries that (except as expressly contemplated or permitted
by this Agreement, or to the extent that Parent shall otherwise previously
consent in writing):
(a) The Company and its Subsidiaries shall conduct their
respective businesses only in, and neither the Company nor any such Subsidiary
shall take any action except in, the ordinary course consistent with past
practice.
(b) Without limiting the generality of paragraph (a) of this
Section, (i) the Company and its Subsidiaries shall use all commercially
reasonable efforts to preserve intact in all material respects their present
business organizations and reputation, to keep available the services of their
key officers and employees, to maintain their assets and properties in good
working order and condition, ordinary wear and tear excepted, to maintain
insurance on their tangible assets and businesses in such amounts and against
such risks and losses as are currently in effect, to preserve their
relationships with customers and suppliers and others having significant
business dealings with them and to comply in all material respects with all laws
and orders of all Governmental or Regulatory Authorities applicable to them, and
(ii) the Company shall not, nor shall it permit any of its Subsidiaries to,
except as otherwise expressly provided for in this Agreement:
(A) amend or propose to amend its certificate or articles of
incorporation or bylaws (or other comparable corporate charter
documents);
(B) (w) declare, set aside or pay any dividends on or make
other distributions in respect of any of its capital stock, except for
the declaration and payment of dividends
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by a wholly-owned Subsidiary solely to its parent corporation, (x)
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, (y) adopt a plan of complete or partial
liquidation or resolutions providing for or authorizing such
liquidation or a dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization or (z) directly or indirectly
redeem, repurchase or otherwise acquire any shares of its capital stock
or any Option with respect thereto;
(C) issue, deliver or sell, or authorize or propose the
issuance, delivery or sale of, any shares of its capital stock or any
Option with respect thereto (other than (x) the issuance of shares of
Company Common Stock upon exercise of Options outstanding on the date
of this Agreement under the 1987 Company Option Plan 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;
(D) acquire (by merging or consolidating with, or by
purchasing a substantial equity interest in or a substantial portion of
the assets of, or by any other manner) any business or any corporation,
partnership, association or other business organization or division
thereof or otherwise acquire or agree to acquire any assets other than
inventory and other assets to be sold or used in the ordinary course of
business consistent with past practice;
(E) other than dispositions in the ordinary course of its
business consistent with past practice of assets which are not,
individually or in the aggregate, material to the Company and its
Subsidiaries taken as a whole, sell, lease, grant any security interest
in or otherwise dispose of or encumber any of its assets or properties;
(F) except to the extent required by applicable law, (x)
permit any material change in (A) any pricing, marketing, purchasing,
investment, accounting, financial reporting, inventory, credit,
allowance or tax practice or policy or (B) any method of calculating
any bad debt, contingency or other reserve for accounting, financial
reporting or tax purposes or (y) make any material tax election or
settle or compromise any material income tax liability with any
Governmental or Regulatory Authority;
(G) (x) incur any indebtedness for borrowed money or guarantee
any such indebtedness other than in the ordinary course of its business
consistent with past practice in an aggregate principal amount
exceeding $75,000 (net of any amounts of any such indebtedness
discharged during such period), or (y) voluntarily purchase, cancel,
prepay or otherwise provide for a complete or partial discharge in
advance of a scheduled repayment date with respect to, or waive any
right under, any indebtedness for borrowed money;
(H) enter into, adopt, amend (except as may be required by
applicable law) or terminate any Company Employee Benefit Plan, or
other agreement, arrangement, plan or policy between the Company or one
of its Subsidiaries and one or more of its directors,
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officers or employees, or increase in any manner the compensation or
fringe benefits of any director, officer or employee or pay any benefit
not required by any plan or arrangement in effect as of the date
hereof;
(I) make any capital expenditures or commitments for additions
to plant, property or equipment constituting capital assets in an
aggregate amount exceeding $100,000;
(J) make any change in the lines of business in which it
participates or is engaged; or
(K) enter into any Contract, commitment or arrangement to do
or engage in any of the foregoing.
(c) The Company shall confer on a regular and frequent basis
with Parent with respect to its business and operations and other matters
relevant to the Offer or the Merger, and shall promptly advise Parent, orally
and in writing, of any change or event, including, without limitation, any
complaint, investigation or hearing by any Governmental or Regulatory Authority
(or communication indicating the same may be contemplated) or the institution or
threat of litigation, 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 hereby (including the Asset Purchase Agreement); provided that the
Company shall not be required to make any disclosure to the extent such
disclosure would constitute a violation of any applicable law.
6.02 No Solicitations. Prior to the Effective Time, the
Company agrees (a) that neither it nor any of its Subsidiaries or other
affiliates shall, and it shall use its best efforts to cause their respective
Representatives 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 stockholders) 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
Company Common Stock 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 this Agreement), or otherwise
facilitate any effort or attempt to make or implement an Alternative Proposal;
(b) that 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) that 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.
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6.03 Third Party Standstill Agreements. During the period from
the date of this Agreement through the Effective Time, 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. During such
period, the Company shall 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.
6.04 Related Agreements. The Company shall perform its
obligations under the Asset Purchase Agreement in accordance with the terms
thereof and take all steps necessary and proceed diligently and in good faith to
satisfy each condition to the other parties' obligations contained in such
agreement and to consummate and make effective the transactions contemplated
thereby. The Company agrees that it will not, without the prior consent of
Parent, enter into any amendment or supplement to, or modification or waiver of,
the Asset Purchase Agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.01 Access to Information; Confidentiality. The Company
shall, and shall cause each of its Subsidiaries to, throughout the period from
the date hereof 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 this Agreement or any
condition to the obligations of the parties hereto. Any such information or
material obtained pursuant to this Section 7.01 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.
7.02 Preparation of Proxy Statement. If required by applicable
law, the Company shall prepare and file with the SEC the Proxy Statement as soon
as reasonably practicable after consummation of the Offer, and shall use its
best efforts to have the Proxy Statement cleared by the SEC. If at any time
prior to the Effective Time any event shall occur
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that should be set forth in an amendment of or a supplement to the Proxy
Statement, the Company shall prepare and file with the SEC such amendment or
supplement as soon thereafter as is reasonably practicable. Parent, Sub and the
Company shall cooperate with each other in the preparation of the Proxy
Statement, and the Company shall notify Parent of the receipt of any comments of
the SEC with respect to the Proxy Statement and of any requests by the SEC for
any amendment or supplement thereto or for additional information, and shall
provide to Parent promptly copies of all correspondence between the Company or
any representative of the Company and the SEC with respect to the Proxy
Statement. The Company shall give Parent and its counsel the opportunity to
review the Proxy Statement and all responses to requests for additional
information by and replies to comments of the SEC before their being filed with,
or sent to, the SEC. Each of the Company, Parent and Sub agrees to use its best
efforts, after consultation with the other parties hereto, to respond promptly
to all such comments of and requests by the SEC and to cause the Proxy Statement
to be mailed to the holders of Company Common Stock entitled to vote at the
Company Stockholders' Meeting at the earliest practicable time.
7.03 Approval of Stockholders. (a) If required by applicable
law in order to consummate the Merger and the transactions contemplated hereby
(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
stockholders (the "Company Stockholders' Meeting") for the purpose of voting on
the adoption of this Agreement and the Asset Purchase Agreement (the "Company
Stockholders' Approval") as soon as reasonably practicable after the purchase of
and payment for shares of Company Common Stock pursuant to the Offer. The
Company shall, through its Board of Directors, include in the Proxy Statement
the recommendation of the Board of Directors of the Company that the
stockholders of the Company adopt this Agreement and the 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
Company Common Stock purchased pursuant to the Offer and all other shares of
Company Common Stock owned by Parent or any such Subsidiary to be voted in favor
of the adoption of this Agreement and the Asset Purchase Agreement.
(b) Notwithstanding the foregoing, in the event that Sub shall
acquire at least 80 percent of the then outstanding shares of Company Common
Stock pursuant to the Offer, the parties hereto shall, subject to Article VIII,
at the request of Sub take all necessary and appropriate action to cause the
Merger to become effective in accordance with Section 607.1104 of the FBCA, as
soon as reasonably practicable after such acquisition, without a meeting of the
stockholders of the Company.
7.04 Regulatory and Other Approvals. (a) Subject to the terms
and conditions of this Agreement and without limiting the provisions of Sections
7.02 and 7.03, each of the Company and Parent will proceed diligently and in
good faith to, as promptly as practicable, (a) obtain all consents, approvals or
actions of, make all filings with and give all notices to Governmental or
Regulatory Authorities or any other public or private third parties required of
Parent, the Company or any of their Subsidiaries to consummate the Offer, the
Merger and the other matters contemplated hereby (including the Asset Purchase
Agreement), and (b) provide such other information and communications to such
Governmental or Regulatory
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Authorities or other public or private third parties as the other party or such
Governmental or Regulatory Authorities or other public or private third parties
may reasonably request in connection therewith.
7.05 Expenses. Except as set forth in Section 9.02, whether or
not the Offer or the Merger is consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such cost or expense, except that expenses incurred
in connection with filing, printing and mailing the Offer Documents, the
Schedule 14D-9 and the Proxy Statement shall be shared equally by Parent and the
Company.
7.06 Brokers or Finders. Each of Parent and the Company
represents, as to itself and its affiliates, that no agent, broker, investment
banker, financial advisor or other firm or person is or will be entitled to any
broker's or finder's fee or any other commission or similar fee in connection
with any of the transactions contemplated by this Agreement, and each of Parent
and the Company shall indemnify and hold the other harmless from and against any
and all claims, liabilities or obligations with respect to any other such fee or
commission or expenses related thereto asserted by any person on the basis of
any act or statement alleged to have been made by such party or its affiliate.
7.07 Takeover Statutes. If any "fair price", "moratorium",
"control share acquisition" or other form of antitakeover statute or regulation
shall become applicable to the transactions contemplated hereby, the Company and
the members of the Board of Directors of the Company shall grant such approvals
and take such actions as are reasonably necessary so that the transactions
contemplated hereby (including the Asset Purchase Agreement) may be consummated
as promptly as practicable on the terms contemplated hereby and otherwise act to
eliminate or minimize the effects of such statute or regulation on the
transactions contemplated hereby.
7.08 Conveyance Taxes. The Company and Parent shall cooperate
in the preparation, execution and filing of all returns, questionnaires,
applications or other documents regarding any real property transfer or gains,
sales, use, transfer, value added, stock transfer and stamp taxes, any transfer,
recording, registration and other fees, and any similar taxes which become
payable in connection with the transactions contemplated by this Agreement that
are required or permitted to be filed on or before the Effective Time.
7.09 Conduct of Business of Sub. Prior to the Effective Time,
except as may be required by applicable law and subject to the other provisions
of this Agreement, Parent shall cause Sub to (a) perform its obligations under
this Agreement in accordance with its terms, (b) not incur directly or
indirectly any liabilities or obligations other than those incurred in
connection with the Offer and the Merger, (c) not engage directly or indirectly
in any business or activities of any type or kind and not enter into any
agreements or arrangements with any person, or be subject to or bound by any
obligation or undertaking, which is not contemplated by this Agreement and (d)
not create, grant or suffer to exist any Lien upon its properties or assets
which would attach to any properties or assets of the Surviving Corporation
after the Effective Time.
7.10 Affiliate Transactions. Except as set forth in Section
7.10 of the Company Disclosure Letter, immediately prior to the Closing, all
Indebtedness and other amounts owing
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under Contracts between any officer, director or affiliate (other than any
Subsidiary of the Company) of the Company, on the one hand, and the Company or
any of its Subsidiaries, on the other, will be paid in full, and the Company
will terminate and will cause any such officer, director or affiliate to
terminate each Contract with the Company or any Subsidiary of the Company. Prior
to the Closing, neither the Company nor any Subsidiary of the Company will enter
into any Contract or amend or modify any existing Contract, and will not engage
in any transaction outside the ordinary course of business consistent with past
practice or not on an arm's-length basis, with any such officer, director or
affiliate. For the purposes of this Agreement, "Indebtedness" of any person
means all obligations of such person (i) for borrowed money, (ii) evidenced by
notes, bonds, debentures or similar instruments, (iii) for the deferred purchase
price of goods or services (other than trade payables or accruals incurred in
the ordinary course of business), (iv) under capital leases and (v) in the
nature of guarantees of the obligations described in clauses (i) through (iv)
above of any other person.
7.11 Notice 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 covenant or
agreement of Parent or the Company under this Agreement to be breached or any of
the conditions to the Offer not to be satisfied or that renders or will render
untrue any representation or warranty of Parent or the Company contained in this
Agreement. Each of Parent and the Company also will notify the other in writing
of, and will use all commercially reasonable efforts to cure, before the
Closing, any violation or breach, 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 this Section shall have any
effect on the representations, warranties, covenants or agreements contained in
this Agreement for purposes of determining satisfaction of any condition
contained herein.
7.12 Fulfillment of Conditions. Subject to the terms and
conditions of this Agreement, each of Parent and the Company will take or cause
to be taken all commercially reasonable steps necessary or desirable and proceed
diligently and in good faith to satisfy each condition to the other's
obligations contained in this Agreement and to consummate and make effective the
transactions contemplated by this 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.
ARTICLE VIII
CONDITIONS
8.01 Conditions to Each Party's Obligation to Effect 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:
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(a) Stockholder Approval. Unless the Merger may be consummated
pursuant to Section 607.1104 of the FBCA as contemplated by Section 7.03(b),
this Agreement shall have been adopted by the requisite vote of the stockholders
of the Company under the FBCA.
(b) No Injunctions or Restraints. No court of competent
jurisdiction or other competent Governmental or Regulatory Authority shall have
enacted, issued, promulgated, enforced or entered any law or order (whether
temporary, preliminary or permanent) which is then in effect and has the effect
of making illegal or otherwise restricting, preventing or prohibiting
consummation of the Offer or the Merger or the other transactions contemplated
by this Agreement (including the Asset Purchase Agreement).
(c) Consummation of Offer. Sub shall have purchased all shares
of Company Common Stock validly tendered and not withdrawn pursuant to the
Offer; provided, however, that this condition shall not be applicable to the
obligations of Parent or Sub if, in breach of this Agreement or the terms of the
Offer, Sub fails to purchase any shares of Company Common Stock validly tendered
and not withdrawn pursuant to the Offer.
8.02 Condition to Parent's and Sub's Obligation to Effect the
Merger. The obligation of Parent and Sub to effect the Merger is subject to the
fullfilment, 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 agreements 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 agreements
shall have been satisfied or shall be capable of being satisfied within any time
period limitations set forth in such agreements.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.01 Termination. Subject, in the case of the Company, to
Section 1.03(c), this Agreement may be terminated, and the transactions
contemplated hereby may be abandoned, at any time prior to the Effective Time,
whether prior to or after the Company Stockholders' Approval:
(a) By mutual written agreement of the parties hereto duly
authorized by action taken by or on behalf of their respective Boards 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
shares of Company Common Stock pursuant to the Offer shall not have
occurred on or prior to such date and such failure is not caused by a
breach of this Agreement by the terminating party; or
(ii) if the Offer shall have terminated or expired in
accordance with its terms without Sub having accepted for payment and
paid for any shares of Company Common
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Stock pursuant to the Offer; provided, however, that Parent may not
terminate this Agreement pursuant to this Section 9.01(b)(ii) if Sub's
termination of, or failure to accept for payment or pay for any shares
of Company Common Stock 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 set forth in Annex A hereto or is otherwise in
breach of the terms of the Offer or this 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 shares of Company
Common Stock 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 stockholders 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 this Agreement, which breach (A) would give rise to the
failure of a condition to the Offer set forth in paragraph (e) or (f) of Annex A
hereto 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.
9.02 Effect of Termination. (a) If this Agreement is validly
terminated by either the Company or Parent pursuant to Section 9.01, this
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 (i) that the provisions of
Sections 7.05 and 7.06 and this Section 9.02 will continue to apply following
any such termination, and (ii) that nothing contained herein shall relieve any
party hereto from liability for willful breach of its representations,
warranties, covenants or agreements contained in this Agreement.
(b) The parties hereto agree that any liability or obligation
on the part of RCP, RCA and RCMF under this Agreement shall be several and not
joint and shall be borne by RCP, RCA and RCMF in proportion to their respective
ownership percentages in Sub at the time such liability or obligation arose.
9.03 Amendment. Subject to Section 1.03(c), this 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 hereto at any time prior to the Effective Time, whether prior to
or after the Company Stockholders' Approval shall have been obtained, but after
such adoption and approval only to the extent permitted by applicable law. No
such amendment, supplement or modification shall be effective unless set forth
in a written instrument duly executed by or on behalf of each party hereto.
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9.04 Waiver. Subject to Section 1.03(c), at any time prior to
the Effective Time any party hereto, 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 hereto, (ii) waive any
inaccuracies in the representations and warranties of the other parties hereto
contained herein or in any document delivered pursuant hereto or (iii) waive
compliance with any of the covenants, agreements or conditions of the other
parties hereto contained herein. No such extension or waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf of the
party extending the time of performance or waiving any such inaccuracy or
non-compliance. No waiver by any party of any term or condition of this
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 this Agreement on any
future occasion.
ARTICLE X
GENERAL PROVISIONS
10.01 Non-Survival of Representations, Warranties, Covenants
and Agreements. The representations, warranties, covenants and agreements
contained in this Agreement or in any instrument delivered pursuant to this
Agreement shall not survive the Merger but shall terminate at the Effective
Time, except for the agreements contained in Article II and Article III, in
Sections 6.04, 7.05, 7.06 and 7.08 and this Article X, which shall survive the
Effective Time.
10.02 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to Parent or Sub, to:
Reservoir Capital Partners, L.P.
650 Madison Avenue
26th Floor
New York, New York 10022
Facsimile No.: 212-610-9020
Attn: Gregg M. Zeitlin
with a copy to:
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
Facsimile No.: (212) 530-5219
Attn: Mark L. Weissler
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If to the Company, to:
Orange-Co, Inc.
2020 U.S. Highway 17 South
P.O. Box 2158
Bartow, Florida 33831
Facsimile No.: (941) 533-6357
Attn: Gene Mooney, President
with a copy to:
Bush Ross Gardner Warren & Rudy, P.A.
220 South Franklin Street
Tampa, Florida 33602
Facsimile No.: (813) 223-9620
Attn: J.P. Ross
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
10.03 Entire Agreement; Incorporation of Exhibits. (a) This
Agreement supersedes all prior discussions and agreements among the parties
hereto with respect to the subject matter hereof, other than the Confidentiality
Agreement, which shall survive the execution and delivery of this Agreement in
accordance with its terms, and contains, together with the Confidentiality
Agreement, the sole and entire agreement among the parties hereto with respect
to the subject matter hereof.
(b) The Company Disclosure Letter, the Parent Disclosure
Letter and any Exhibit attached to this Agreement and referred to herein are
hereby incorporated herein and made a part hereof for all purposes as if fully
set forth herein.
10.04 Public Announcements. Except as otherwise required by
law or the rules of any applicable securities exchange or national market
system, so long as this 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 this 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 this Agreement
and the transactions contemplated hereby,
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and will furnish the other with drafts of any such releases and announcements as
far in advance as practicable.
10.05 No Third Party Beneficiary. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention of
the parties to confer third-party beneficiary rights upon any other person.
10.06 No Assignment; Binding Effect. Neither this Agreement
nor any right, interest or obligation hereunder may be assigned by any party
hereto without the prior written consent of the other parties hereto and any
attempt to do so will be void, except that Sub may assign any or all of its
rights, interests and obligations hereunder, including the right to purchase all
or any portion of the shares of Company Common Stock tendered pursuant to the
Offer, to a direct or indirect wholly-owned Subsidiary of Parent or to another
corporation all of the stock of which is owned by the current stockholders of
Sub, provided that any such Subsidiary or other corporation agrees in writing to
be bound by all of the terms, conditions and provisions contained herein and no
such assignment shall be made if it would materially delay or impede the
transactions contemplated thereby. Subject to the preceding sentence, this
Agreement is binding upon, inures to the benefit of and is enforceable by the
parties hereto and their respective successors and assigns.
10.07 Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define, modify or limit
the provisions hereof.
10.08 Invalid Provisions. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future law
or order, and if the rights or obligations of any party hereto under this
Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, and (iii) the remaining provisions of this Agreement
will remain in full force and effect and will not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom.
10.09 Governing Law. Except to the extent that the FBCA is
mandatorily applicable to the Merger and the rights of the stockholders of the
Constituent Corporations, this Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof except Section 5-1401 of the New York General
Obligations Law.
10.10 Enforcement of Agreement. (a) The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement was not performed in accordance with its specified terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of competent
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
38
<PAGE> 46
(b) Notwithstanding any of the terms or provisions of this
Agreement, the Company agrees that neither it nor any person acting on its
behalf may assert any claim or cause of action against any shareholder of Sub or
any of their respective affiliates (other than Parent or Sub), agents, partners,
officers or employees in connection with or arising out of this Agreement or the
transactions contemplated hereby.
10.11 Certain Definitions. As used in this Agreement:
(a) the term "affiliate," as applied to any person, shall mean
any other person directly or indirectly controlling, controlled by, or under
common control with, that person; for purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that person, whether through the
ownership of voting securities, by contract or otherwise;
(b) a person will be deemed to "beneficially" own securities
if such person would be the beneficial owner of such securities under Rule 13d-3
under the Exchange Act, including securities which such person has the right to
acquire (whether such right is exercisable immediately or only after the passage
of time);
(c) the term "business day" means a day other than Saturday,
Sunday or any day on which banks located in the States of New York or Florida
are authorized or obligated to close;
(d) the term "knowledge" or any similar formulation of
"knowledge" shall mean, with respect to the Company, the knowledge of the
Company's Chief Executive Officer, President, Chief Financial Officer or Ed
Clement, Jack Durkin, Bernie McBee or Jerry Newlin.
(e) any reference to any event, change or effect being
"material" or "materially adverse" or having a "material adverse effect" on or
with respect to an entity (or group of entities taken as a whole) means such
event, change or effect is material or materially adverse, as the case may be,
(i) to the business, properties, assets, liabilities, prospects, condition
(financial or otherwise) or results of operations of such entity (or of such
group of entities taken as a whole) or (ii) in the case of the Company, to the
Company's ownership, harvesting, planting and management of citrus groves in
Florida;
(f) the term "person" shall include individuals, corporations,
partnerships, trusts, other entities and groups (which term shall include a
"group" as such term is defined in Section 13(d)(3) of the Exchange Act);
(g) the "Representatives" of any entity means such entity's
directors, officers, employees, legal, investment banking and financial
advisors, accountants and any other agents and representatives;
(h) the term "Subsidiary" means, with respect to any party,
any corporation or other organization, whether incorporated or unincorporated,
of which more than 50% of either
39
<PAGE> 47
the equity interests in, or the voting control of, such corporation or other
organization is, directly or indirectly through Subsidiaries or otherwise,
beneficially owned by such party.
10.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
40
<PAGE> 48
IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be signed by its officer thereunto duly authorized as of the date
first above written.
RESERVOIR CAPITAL PARTNERS, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By: /s/ Craig A. Huff
----------------------------------
Craig A. Huff
Managing Director
RESERVOIR CAPITAL ASSOCIATES, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By: /s/ Craig A. Huff
----------------------------------
Craig A. Huff
Managing Director
RESERVOIR CAPITAL MASTER FUND, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By: /s/ Craig A. Huff
----------------------------------
Craig A. Huff
Managing Director
OJ ACQUISITION CORP.
By: /s/ Craig A. Huff
----------------------------------
Craig A. Huff
President
ORANGE-CO, INC.
By: /s/Gene Mooney
----------------------------------
Gene Mooney
President
41
<PAGE> 49
Annex A
CONDITIONS TO THE OFFER
The capitalized terms used in this Annex A shall have the
meanings ascribed to them in the Agreement and Plan of Merger to which it is
attached, except that the term "Merger Agreement" shall be deemed to refer to
such Agreement and Plan of Merger.
Notwithstanding any other provision of the Offer, Sub shall
not be required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating
to Sub's obligation to pay for or return tendered shares of Company Common Stock
promptly after termination or withdrawal of the Offer), pay for, and may
(subject to any such rule or regulation) delay the acceptance for payment of any
tendered shares of Company Common Stock, and may (except as provided in the
Merger Agreement) amend or terminate the Offer as to any shares of Company
Common Stock 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 of Company
Common Stock (whether or not any shares of Company Common Stock 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 (1) prohibits, or imposes
any material limitations on, Parent's or Sub'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 (the "Grove Operations") or (ii)
the business of all such entities taken as a whole, or compels Parent
or Sub (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 of Company Common Stock pursuant to the Offer or the
consummation of the Merger, (3) imposes material limitations on the
ability of Sub or Parent (or any of their respective Subsidiaries or
affiliates) effectively to acquire or to hold or to exercise full
rights of ownership of the shares of Company Common Stock purchased
pursuant to the Offer including, without limitation, the right to vote
such shares of Company Common Stock on all matters properly presented
to the Company's stockholders, (4) imposes material limitations on the
ability of Sub 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;
A-1
<PAGE> 50
(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 Sub of shares of Company
Common Stock 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 clauses (1) through (5) of 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
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 SEC Reports filed prior
to the date of the execution of the Merger Agreement, since such date,
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 such agreement shall be
in default thereunder or any condition to the performance of 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 agreement; or
A-2
<PAGE> 51
(i) Parent, Sub and the Company shall have agreed that Sub
shall amend the Offer to terminate the Offer or postpone the payment
for shares of Company Common Stock thereunder;
which in the sole judgment of Parent and Sub, in any such case, and regardless
of the circumstances (including any action or inaction by Parent or Sub 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 Sub, may be asserted by Parent and Sub 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 Sub, in whole or in part at any
time and from time to time in the sole discretion of Parent and Sub. The failure
by Parent and Sub 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.
A-3
<PAGE> 1
[EXECUTION COPY]
SIDE AGREEMENT
AMONG
RESERVOIR CAPITAL PARTNERS, L.P.
RESERVOIR CAPITAL ASSOCIATES, L.P.
RESERVOIR CAPITAL MASTER FUND, L.P.
OJ ACQUISITION CORP.
AND
PASCO ACQUISITION, INC.
DATED SEPTEMBER 27, 1999
<PAGE> 2
PAGE
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.................................................... 2
1.1 Definitions.................................................... 2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF RESERVOIR.................... 2
2.1 Organization and Good Standing; Capitalization................. 2
2.2 Authority; Approval............................................ 2
2.3 Governmental Approvals; Noncontravention....................... 3
2.4 Ownership of Common Stock...................................... 3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER.................... 3
3.1 Organization and Good Standing................................. 3
3.2 Corporate Authority; Approval.................................. 4
3.3 Government Approvals; Noncontravention......................... 4
ARTICLE IV COVENANTS...................................................... 4
4.1 Certain Actions with Respect to the Transactions Contemplated
under the Asset Purchase Agreement............................. 4
4.2 Prohibition on Transfer of Common Stock........................ 5
4.3 Certain Filings................................................ 5
4.4 Information Supplied........................................... 5
ARTICLE V TERMINATION.................................................... 6
5.1 Grounds for Termination........................................ 6
5.2 Effect of Termination.......................................... 6
ARTICLE VI MISCELLANEOUS.................................................. 7
6.1 Notices........................................................ 7
6.2 Amendment and Modification..................................... 8
6.3 Waiver of Compliance; Consents................................. 8
6.4 Survival....................................................... 8
6.5 Expenses....................................................... 8
6.6 Assignment..................................................... 8
6.7 GOVERNING LAW.................................................. 8
6.8 Jurisdiction................................................... 8
6.9 Counterparts................................................... 9
6.10 Interpretation................................................. 9
6.11 Entire Agreement............................................... 9
6.12 No Third Party Beneficiaries................................... 9
6.13 Severability................................................... 9
6.14 WAIVER OF JURY TRIAL........................................... 9
6.15 Specific Performance........................................... 9
6.16 No Other Representations....................................... 10
6.17 Liability of Parties........................................... 10
i
<PAGE> 3
SIDE AGREEMENT
THIS SIDE AGREEMENT, dated as of September 27, 1999 (this
"AGREEMENT"), is among RESERVOIR CAPITAL PARTNERS, L.P., a Delaware limited
partnership ("RCP"), Reservoir Capital Associates, L.P., a Delaware limited
partnership ("RCA"), Reservoir Capital Master Fund, a limited partnership
organized under the laws of the Cayman Islands ("RCM" and together with RCD and
RCA, "RESERVOIR"), OJ Acquisition Corp., a Florida corporation ("RESERVOIR
SUBSIDIARY"), and PASCO ACQUISITION, INC., a Delaware corporation ("PURCHASER").
All capitalized terms not otherwise defined herein have the meanings ascribed to
such terms in the Asset Purchase Agreement, dated as of the date hereof, between
Purchaser and Orange-co., Inc (the "ASSET PURCHASE AGREEMENT").
R E C I T A L S:
A. Upon the terms and subject to the conditions set forth in
the Asset Purchase Agreement, Purchaser desires to purchase from Seller, and
Seller desires to sell to Purchaser, the Purchased Assets, subject to the
Assumed Liabilities.
B. Concurrently with the execution of this Agreement,
Reservoir Subsidiary is acquiring (the "BHG SHARE PURCHASE") from Ben Hill
Griffin Investments Inc. and certain related persons (collectively, the "BEN
HILL GRIFFIN ENTITIES") an aggregate of 5,405,660 shares of common stock, par
value $.50, of Seller ("COMMON STOCK"), representing 52.4% of the outstanding
Common Stock.
C. Concurrently with the execution of this Agreement,
Reservoir, Reservoir Subsidiary and Seller are entering into that certain
Agreement and Plan of Merger of even date herewith (the "MERGER AGREEMENT"),
pursuant to which, immediately prior to the Final Closing (unless the condition
set forth in Section 7.2(a) of the Asset Purchase Agreement is waived),
Reservoir Subsidiary will merge with and into Seller (the "MERGER"), with Seller
to be the survivor of the Merger.
D. To induce Purchaser to enter into the Asset Purchase
Agreement, Reservoir is entering into this Agreement with Purchaser concurrently
with the execution of the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual representations, warranties, covenants and agreements hereinafter set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
<PAGE> 4
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms, as used herein, have the
following meanings:
"PURCHASER MATERIAL ADVERSE EFFECT" means any circumstance,
change, or effect which, individually or in the aggregate, is reasonably likely
to prevent, impair or materially delay the ability of Purchaser to perform its
covenants and agreements contemplated hereunder.
"RESERVOIR MATERIAL ADVERSE EFFECT" means any circumstance,
change, or effect which, individually or in the aggregate, is reasonably likely
to prevent, impair or materially delay the ability of any of Reservoir or
Reservoir Subsidiary to perform its covenants and agreements contemplated
hereunder or, in the case of Reservoir Subsidiary, to consummate the BHG Share
Purchase.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF RESERVOIR
As an inducement to Purchaser to enter into this Agreement and
the Asset Purchase Agreement, Reservoir and Reservoir Subsidiary hereby
represent and warrant to Purchaser as follows:
2.1 Organization and Good Standing; Capitalization. Each of
RCP, RCA and RCM is a limited partnership duly organized, validly existing and
in good standing under the laws of the State of Delaware (or, in the case of
RCM, the Cayman Islands) and has all requisite power and authority to own and
operate its properties and assets and to carry on its business as presently
conducted. Reservoir Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and has all
requisite power and authority to own and operate its properties and assets and
to carry on its business as presently conducted. All of the issued and
outstanding capital stock of Reservoir Subsidiary is directly owned by
Reservoir.
2.2 Authority; Approval. Each of Reservoir and Reservoir
Subsidiary has all requisite partnership or corporate power and authority, as
the case may be, and has taken all limited partnership or corporate action
necessary in order to execute and deliver this Agreement and to perform its
covenants and agreements contemplated hereunder. Reservoir Subsidiary has all
requisite corporate power and authority and has taken all corporate action
necessary to consummate the BHG Share Purchase. Assuming due execution and
delivery by Purchaser, this Agreement is a valid and binding agreement of each
of Reservoir and Reservoir Subsidiary, enforceable against it in accordance with
its terms.
2
<PAGE> 5
2.3 Governmental Approvals; Noncontravention.
(a) No Governmental Approvals are required to be
obtained or made on behalf of Reservoir or Reservoir Subsidiary in connection
with the execution and delivery by them of this Agreement, the performance by
them of their covenants and agreements hereunder and the consummation by
Reservoir Subsidiary of the BHG Share Purchase, other than (i) filings required
to be made under the HSR Act (the applicable waiting periods for which have
heretofore expired) and (ii) Governmental Approvals that, if not obtained or
made, are not, individually or in the aggregate, reasonably likely to result in
a Reservoir Material Adverse Effect.
(b) The execution and delivery by Reservoir and
Reservoir Subsidiary of this Agreement, the performance by them of their
covenants and agreements hereunder and the consummation of the BHG Share
Purchase by Reservoir Subsidiary will not (i) conflict with or result in any
violation of any provision of the certificate of limited partnership or
operating agreement (or comparable governing documents) of Reservoir or
Reservoir Subsidiary, (ii) require any consent, approval or notice under, or
conflict with or result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation, acceleration or loss of benefit or result in the
creation of any Lien) under, any of the terms, conditions or provisions of any
Contract to which Reservoir or Reservoir Subsidiary is a party or by which they
or any portion of their properties or assets may be bound that, individually or
in the aggregate, is reasonably likely to result in a Reservoir Material Adverse
Effect or (iii) subject to the Governmental Approvals referred to in Section
2.3(a), violate any Laws applicable to Reservoir or Reservoir Subsidiary or any
portion of their properties or assets in a manner likely to have a Reservoir
Material Adverse Effect.
2.4 Ownership of Common Stock. Upon consummation of the BHG
Share Purchase simultaneous with the execution of this Agreement, Reservoir
Subsidiary owns 5,405,660 shares of Common Stock which based solely on publicly
available information and representations in the Merger Agreement, as of the
date hereof, represents 52.4% of the outstanding Common Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Reservoir and Reservoir Subsidiary to
enter into this Agreement and the Merger Agreement and to consummate the
transactions thereunder, Purchaser hereby represents and warrants to Reservoir
and Reservoir Subsidiary as follows:
3.1 Organization and Good Standing. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own and
operate its properties and assets and to carry on its business as presently
conducted.
3
<PAGE> 6
3.2 Corporate Authority; Approval. Purchaser has all requisite
corporate power and authority and has taken all corporate action necessary in
order to execute and deliver this Agreement and to perform its covenants and
agreements contemplated hereunder. Assuming due execution and delivery of this
Agreement by Reservoir and Reservoir Subsidiary, this Agreement is a valid and
binding agreement of Purchaser enforceable against it in accordance with its
terms.
3.3 Government Approvals; Noncontravention.
(a) No Governmental Approvals are required to be
obtained or made on behalf of Purchaser in connection with the execution and
delivery by it of this Agreement or the performance by it of its covenants and
agreements hereunder, other than (i) filings required to be made under the HSR
Act (the applicable waiting periods for which have heretofore expired) and (ii)
Governmental Approvals that, if not obtained or made, are not, individually or
in the aggregate, reasonably likely to result in any Purchaser Material Adverse
Effect.
(b) The execution and delivery by Purchaser of this
Agreement and the performance by it of its covenants and agreements hereunder
will not (i) conflict with or result in any violation of any provision of its
certificate of incorporation or by-laws, (ii) require any consent, approval or
notice under, or conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any right of termination, cancellation, acceleration or loss of benefit
or result in the creation of any Lien) under, any of the terms, conditions or
provisions of any Contract to which Purchaser is a party or by which it or any
portion of its properties or assets may be bound that, individually or in the
aggregate, is reasonably likely to result in a Purchaser Material Adverse Effect
or (iii) subject to the Governmental Approvals referred to in Section 3.3(a),
violate any Laws applicable to Purchaser or any portion of its properties or
assets.
ARTICLE IV
COVENANTS
4.1 Certain Actions with Respect to the Transactions
Contemplated under the Asset Purchase Agreement.
(a) Reservoir and Reservoir Subsidiary hereby agree
to, and to cause their respective Affiliates to vote (or give a consent in
respect of), all shares of Common Stock held by Reservoir, Reservoir Subsidiary
and their respective Affiliates so as to satisfy the Seller Requisite Vote,
either at the Stockholders Meeting or immediately after the consummation of the
Merger pursuant to a "short form" merger under applicable Law. If the Company
shall not on or before January 1, 2000, have caused a meeting of stockholders of
the Company to have been held and proxy or information materials required in
connection therewith to be mailed, then Reservoir shall promptly cause the
4
<PAGE> 7
Company to take such actions to the extent required in order to consummate the
Asset Purchase Agreement in compliance with all applicable laws.
(b) Reservoir and Reservoir Subsidiary hereby agree
that if all of the conditions set forth in Sections 7.1, 7.2 and 7.3 of the
Asset Purchase Agreement other than Section 7.1(a) and/or Section 7.2(a) have
been satisfied (or waived by the parties entitled to the benefits thereof),
Reservoir and Reservoir Subsidiary shall (i) refrain from the taking of any
action that would reasonably be expected to prevent, interfere with or
materially delay, the waiver or satisfaction by Seller of the condition set
forth in Section 7.2(a), and (ii) at any time after January 1, 2000, upon
request of the Purchaser, cause the Seller to waive the condition set forth in
Section 7.2(a).
(c) Reservoir and Reservoir Subsidiary shall, and
shall cause their respective Affiliates (other than Seller and Seller's
Subsidiaries) to, refrain from the taking of any action that would reasonably be
expected to prevent, materially interfere with or materially delay (a) Seller's
compliance with or performance of any of its covenants and agreements set forth
in the Asset Purchase Agreement or the Acquisition Documents or (b) the
satisfaction of any of the conditions set forth in Section 7.3 of the Asset
Purchase Agreement.
4.2 Prohibition on Transfer of Common Stock. From the date
hereof until the Final Closing, Reservoir Subsidiary shall not sell, transfer,
pledge, encumber, assign or otherwise dispose of any its shares of Common Stock
or any interest therein, except in each case to a transferee or pledgee who
agrees pursuant to an instrument reasonably satisfactory to Purchaser to become
bound by the obligations of Reservoir Subsidiary under this Agreement upon
transfer or foreclosure. No such transfer shall relieve Reservoir or Reservoir
Subsidiary of any of its obligations hereunder.
4.3 Certain Filings. The parties hereto shall cooperate with
one another in determining whether any Governmental Approval is required or
reasonably appropriate, or any other Consent is required or reasonably
appropriate, in connection with the consummation of the Transactions and the
transactions contemplated under the Merger Agreement. Without limiting the
generality of the foregoing, each of the parties hereto shall, as promptly as
practicable following the execution and delivery of this Agreement, make such
filings with Governmental Authorities as are determined to be necessary or
reasonably appropriate in connection with the Transactions and the transactions
contemplated under the Merger Agreement. Each of the parties hereto shall
furnish to the other such necessary information and reasonable assistance as it
may request in connection with its preparation of any filing or submission to
any Governmental Authority. The parties hereto shall keep each other apprised of
the status of any communications with, and any inquiries or requests for
additional information from, any such Governmental Authority, and shall comply
promptly with any such reasonable inquiry or request.
4.4 Information Supplied. Each of Purchaser and Reservoir
agrees, solely as to information it provides, that none of the information
included or incorporated by reference in the Tender Offer Documents and the
Proxy Documents will, as of the dates
5
<PAGE> 8
such documents are filed with the SEC or the New York Stock Exchange, as of the
date of the consummation or expiration of the Tender Offer (in the case of the
Tender Offer Documents) and at the time of the Stockholders Meeting (in the case
of the Proxy Documents), contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. Each of Purchaser and Reservoir agrees to promptly correct
any information provided by it for use in the Tender Offer Documents or the
Proxy Documents, if and to the extent that such information shall have become
false or misleading in any material respect, and in the case of the Tender Offer
Documents, Reservoir further agrees to take all steps necessary to amend or
supplement the Tender Offer Documents and to cause such documents as so amended
or supplemented to be filed with the SEC and the New York Stock Exchange and to
be disseminated to the holders of Common Stock, in each case as and to the
extent required by applicable Law. Reservoir shall provide Purchaser and its
counsel with any comments or other communications, whether written or oral, that
Seller may receive from time to time from the SEC or its staff with respect to
the Tender Offer Documents promptly after the receipt of such comments or other
communications.
ARTICLE V
TERMINATION
5.1 Grounds for Termination. This Agreement may only be
terminated:
(a) by mutual written agreement of Reservoir and
Purchaser;
(b) by Reservoir, if the Asset Purchase Agreement is
terminated in accordance with its terms, other than by reason of a breach by
Seller; and
(c) by Purchaser, if the Asset Purchase Agreement is
terminated in accordance with its terms, other than by reason of a breach by
Purchaser.
Any party desiring to terminate this Agreement pursuant to
this Section 5.1 shall give written notice of such termination and the basis
therefor to the other party hereto.
5.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 5.1, this Agreement shall forthwith become void
and be of no further legal effect, without any liability or obligation on the
part of any party hereto, except that nothing therein shall relieve any party
from liability for any willful and material breach by a party of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
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ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
in person or by telecopier (with a confirmed receipt thereof), and on the next
business day when sent by overnight courier service, to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
if to Purchaser, to:
Pasco Acquisition, Inc.
Post Office Box 1690
400 North Tampa Street (33602)
Tampa, Florida 33601
Attention: Robert A. Peiser, CEO
Telephone: (813) 223-3981
Telecopy: (813) 273-5420
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Carl L. Reisner, Esq.
Telephone: (212) 373-3017
Telecopy: (212) 757-3990
if to Reservoir, to:
Reservoir Capital Group, LLC
650 Madison Avenue, 20th Floor
New York, New York 10022
Attention:
Telephone:
Telecopy:
with a copy to:
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, New York 10005-1413
Attention: Mark L. Weissler, Esq.
Telephone: (212) 530-5000
Telecopy: (212) 530-5219
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6.2 Amendment and Modification. This Agreement may be amended,
modified or supplemented only by a written agreement signed by each of the
parties hereto.
6.3 Waiver of Compliance; Consents. Any failure of any party
hereto to comply with any obligation, covenant, agreement or condition herein
may be waived by the other parties hereto entitled to the benefit thereof only
by a written instrument signed by the party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements for a
waiver of compliance as set forth in this Section 6.3.
6.4 Survival. The covenants, agreements, representations and
warranties contained in this Agreement shall not survive the Final Closing, and
there shall be no liability in respect thereof, whether such liability has
accrued prior to the Final Closing Date or after the Final Closing Date, on the
part of either party or its officers, directors, employees, agents and
Affiliates. This Section shall not limit in any way the survival and
enforceability of any covenant or agreement of the parties hereto which by its
terms contemplates performance after the Final Closing Date, which shall survive
for the respective periods set forth herein.
6.5 Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense,
except as expressly provided otherwise in this Agreement.
6.6 Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties; provided, however, that Purchaser may assign its rights and obligations
under this Agreement to the same extent to which Purchaser may assign its rights
and obligations under the Asset Purchase Agreement thereunder, but Purchaser
shall remain liable hereunder.
6.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO THE CHOICE OF LAW PRINCIPLES THEREOF.
6.8 Jurisdiction. The parties hereto agree that (a) any action
arising out of or relating to this Agreement may be brought on in the state or
federal courts in the County of New York, State of New York, and not in the
courts of any other State; and (b) each party consents to and submits itself to
the personal jurisdiction in the state or
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federal courts in the County of New York, State of New York for any action
arising out of or relating to this Agreement.
6.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.10 Interpretation. The parties hereto acknowledge and agree
that: (i) each party hereto and its counsel reviewed and negotiated the terms
and provisions of this Agreement and have contributed to its revision and (ii)
the rule of construction to the effect that any ambiguities are resolved against
the drafting party shall not be employed in the interpretation of this
Agreement. Unless otherwise expressly provided herein, the words "include,"
"includes" and "including" do not limit the preceding words or terms and shall
be deemed to be followed by the words "without limitation." All pronouns and any
variations thereof refer to the masculine, feminine or neuter, singular or
plural, as the context may require. All terms defined in this Agreement in their
singular or plural forms, have correlative meanings when used herein in their
plural or singular forms, respectively. The article and section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the parties and shall not in any way affect the meaning
or interpretation of this Agreement.
6.11 Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties, or between any of them, with respect to the
subject matter hereof.
6.12 No Third Party Beneficiaries. This Agreement is not
intended to, and does not, create any rights or benefits of any party other than
the parties hereto.
6.13 Severability. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or any other such instrument.
6.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ACQUISITION
DOCUMENTS OR ANY OF THE TRANSACTIONS.
6.15 Specific Performance. The parties hereto acknowledge that
irreparable damage would result if this Agreement were not specifically
enforced, and they therefore consent that the rights and obligations of the
parties under this Agreement may be enforced by a decree of specific performance
issued by any court of competent jurisdiction.
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Such remedy shall, however, not be exclusive and shall be in addition to any
other remedies which any party may have under this Agreement or otherwise, all
remedies being cumulative.
6.16 No Other Representations. Notwithstanding anything to the
contrary contained in this Agreement, it is the explicit intent of each party
hereto that no party is making any representation or warranty whatsoever,
express or implied, including but not limited to any implied representation or
warranty as to condition, merchantability or suitability as to any of the
Purchased Assets or properties of Seller.
6.17 Liability of Parties. The parties hereto agree that any
liability or obligation on the part of RCP, RCA and RCMF under this Agreement
shall be several and not joint and shall be borne by RCP, RCA and RCMF in
proportion to their respective ownership percentages in Reservoir Subsidiary at
the time such liability or obligation arose. None of the parties hereto shall be
responsible for the Seller's performance under the Asset Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Side
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
RESERVOIR CAPITAL PARTNERS, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By: /s/ Craig Huff
---------------------------------
Craig Huff
Managing Director
RESERVOIR CAPITAL ASSOCIATES, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By: /s/ Craig Huff
---------------------------------
Craig Huff
Managing Director
RESERVOIR CAPITAL MASTER, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By: /s/ Craig Huff
---------------------------------
Craig Huff
Managing Director
OJ ACQUISITION CORP.
By: /s/ Craig Huff
---------------------------------
Craig Huff
President
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PASCO ACQUISITION, INC.
By: /s/ Steven Lefkowitz
---------------------------------
Steven Lefkowitz
Vice President
12
