================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Hudson General Corporation
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock 443784 10 3
------------------------------ --------------
(Title of class of securities) (CUSIP number)
Richard D. Segal Jay B. Langner
c/o Seavest Partners 111 Great Neck Road
707 Westchester Avenue Suite 600
White Plains, New York 10604 Great Neck, New York 11021
(914) 681-4453 (516) 487-8610
- --------------------------------------------------------------------------------
(Name, address and telephone number of person authorized
to receive notices and communications)
November 20, 1998
- --------------------------------------------------------------------------------
(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 information required on the remainder
of this cover page shall not be deemed to be "filed" for the purpose of Section
18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
otherwise subject to the liabilities of that Section of the Exchange Act but
shall be subject to all other provisions of the Exchange Act.
(Continued on following page(s))
(Page 1 of 34 Pages)
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NYFS10...:\80\57780\0003\1948\FRM0288K.33F
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------- --------------------------------------
CUSIP No. 443784 10 3 13D Page 2 of 34
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
1 NAME OF REPORTING PERSON: Jay B. Langner
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: 00
- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 131,254 (1)
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 131,254 (1)
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 131,254 (1)
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 7.5%
- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: IN
- ---------------------------------------------------------------------------------------------------------
1] Includes 10,000 shares issuable upon the exercise of presently exercisable
options.
<PAGE>
- -------------------------------------------------------- --------------------------------------
CUSIP No. 443784 10 3 13D Page 3 of 34
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: Richard D. Segal
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: 00
- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 125,972 (1)
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 125,972 (1)
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 125,972
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 7.2%
- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: IN
- ---------------------------------------------------------------------------------------------------------
1] Consists of (i) 27,590 shares owned by a partnership of which Mr. Segal is
the managing partner, (ii) 37,321 shares owned by a partnership of which Mr.
Segal is a co-trustee of certain of the partners thereof, (iii) 31,472 shares
owned by Mr. Segal's wife as to which he is attorney-in-fact, (iv) an aggregate
of 22,329 shares owned by other members of Mr. Segal's family, as to which he is
attorney-in-fact, and (v) 7,260 shares owned by a trust of which he is a
co-trustee. Mr. Segal disclaims beneficial ownership of all shares referred to
in clauses (ii), (iii), (iv) and (v) of this footnote 1.
<PAGE>
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CUSIP No. 443784 10 3 13D Page 4 of 34
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: Rocco Daloia
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: Not applicable
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 0
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0%
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14 TYPE OF REPORTING PERSON: IN
- ---------------------------------------------------------------------------------------------------------
<PAGE>
- -------------------------------------------------------- --------------------------------------
CUSIP No. 443784 10 3 13D Page 5 of 34
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- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: Fernando DiBenedetto
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
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4 SOURCE OF FUNDS: PF,00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
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NUMBER OF 7 SOLE VOTING POWER: 1,010 (1)
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 1,010 (1)
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 1,010
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
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%
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14 TYPE OF REPORTING PERSON: IN
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1] Includes 1,000 shares issuable upon the exercise of presently exercisable
options.
<PAGE>
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CUSIP No. 443784 10 3 13D Page 6 of 34
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1 NAME OF REPORTING PERSON: Paul R. Pollack
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: PF,00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
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6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
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NUMBER OF 7 SOLE VOTING POWER: 10,140 (1)
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 10,140 (1)
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 10,140
REPORTING PERSON:
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0.6%
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14 TYPE OF REPORTING PERSON: IN
- ---------------------------------------------------------------------------------------------------------
1] Includes 8,200 shares issuable upon the exercise of presently exercisable
options.
<PAGE>
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CUSIP No. 443784 10 3 13D Page 7 of 34
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1 NAME OF REPORTING PERSON: Barry I. Regenstein
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: PF,00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 2,600 (1)
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 2,600 (1)
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 2,600
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
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: IN
- ---------------------------------------------------------------------------------------------------------
1] Consists of 2,600 shares issuable upon the exercise of presently
exercisable options.
<PAGE>
- -------------------------------------------------------- --------------------------------------
CUSIP No. 443784 10 3 13D Page 8 of 34
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1 NAME OF REPORTING PERSON: Raymond J. Rieder
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: PF,00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 2,900 (1)
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 2,900 (1)
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 2,900
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0.2%
- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: IN
- ---------------------------------------------------------------------------------------------------------
1] Consists of 2,900 shares issuable upon the exercise of presently
exercisable options.
<PAGE>
- -------------------------------------------------------- --------------------------------------
CUSIP No. 443784 10 3 13D Page 9 of 34
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: Noah E. Rockowitz
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
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3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: PF,00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 1,800 (1)
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 1,800 (1)
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 1,800
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
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: IN
- ---------------------------------------------------------------------------------------------------------
1] Consists of 1,800 shares issuable upon the exercise of presently
exercisable options.
<PAGE>
- -------------------------------------------------------- --------------------------------------
CUSIP No. 443784 10 3 13D Page 10 of 34
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: Michael Rubin
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: PF,00
- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 8,430 (1)
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 8,430 (1)
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 8,430
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0.5%
- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: IN
- ---------------------------------------------------------------------------------------------------------
1] Includes 8,200 shares issuable upon the exercise of presently exercisable
options.
<PAGE>
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CUSIP No. 443784 10 3 13D Page 11 of 34
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: Henry A. Satinskas
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: PF,00
- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 1,656
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 1,656
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 1,656
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
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: IN
- ---------------------------------------------------------------------------------------------------------
<PAGE>
- -------------------------------------------------------- --------------------------------------
CUSIP No. 443784 10 3 13D Page 12 of 34
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: River Acquisition Corp.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY):
- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: BK
- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 0 (1)
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0%
- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: IN
- ---------------------------------------------------------------------------------------------------------
</TABLE>
1] Does not include shares which may be acquired by the Reporting Group pursuant
to the Merger Agreement, subject to the conditions contained therein. See Items
3 and 4 of this Schedule 13D.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
Statement of
JAY B. LANGNER,
RICHARD D. SEGAL,
ROCCO DALOIA,
FERNANDO DiBENEDETTO,
PAUL R. POLLACK,
BARRY I. REGENSTEIN,
RAYMOND J. RIEDER,
NOAH E. ROCKOWITZ,
MICHAEL RUBIN,
HENRY A. SATINSKAS
and
RIVER ACQUISITION CORP.
Pursuant to Section 13(d)
of the Securities Exchange Act of 1934
in respect of
HUDSON GENERAL CORPORATION
This Report on Schedule 13D relates to the common stock, par value
$1.00 per share (the "Common Stock"), of Hudson General Corporation, a Delaware
corporation (the "Company"). The Report on Schedule 13D originally filed by Jay
B. Langner on September 19, 1974, as amended and supplemented by the amendments
thereto previously filed with the Securities Exchange Commission (collectively,
the "Langner Schedule 13D"), is hereby amended and supplemented to include the
information contained herein, and this Report constitutes Amendment No. 3 to the
Langner Schedule 13D. In addition, the Report on Schedule 13D originally filed
by Richard D. Segal on June 29, 1982, as amended and supplemented by the
amendments thereto previously filed with the Securities Exchange Commission
(collectively, the "Segal Schedule 13D"), is hereby amended and supplemented to
include the information contained herein, and this Report constitutes Amendment
No. 8 to the Segal Schedule 13D. Messrs. Langner, Segal, Daloia, DiBenedetto,
Pollack, Regenstein, Rieder, Rockowitz, Rubin and Satinskas and River
Acquisition Corp. (each, a "Reporting
(Page 13 of 34 Pages)
<PAGE>
Person") constitute a "group" for purposes of Rule 13d-5 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), with respect to their
respective beneficial ownership of the Common Stock and are collectively
referred to as the "Reporting Group." This Report on Schedule 13D also
constitutes the original Report (the "Reporting Group Schedule 13D") of the
Reporting Group. The Langner Schedule 13D, the Segal Schedule 13D and the
Reporting Group Schedule 13D are collectively referred to as the "Schedule 13D."
This Schedule 13D constitutes the first electronic amendment to each of the
Langner Schedule 13D and the Segal Schedule 13D. Pursuant to Rule 13d-2(e) under
the Exchange Act, this Schedule 13D restates the entire text of such filings as
amended and supplemented hereby.
The summary descriptions contained in this Report of certain
agreements and documents are qualified in their entirety by reference to the
complete texts of such agreements and documents filed as Exhibits hereto and
incorporated herein by reference. Information contained herein with respect to
each Reporting Person is given solely by such Reporting Person, and no other
Reporting Person has responsibility for the accuracy or completeness of
information supplied by such other Reporting Person.
(Page 14 of 34 Pages)
<PAGE>
ITEM 1. SECURITY AND ISSUER.
The information set forth in Item 1 of the Langner Schedule 13D and
the Segal Schedule 13D is hereby amended and supplemented by adding the
following information thereto, and such information constitutes Item 1 of the
Reporting Group Schedule 13D:
The principal executive offices of the Company are located at 111
Great Neck Road, P.O. Box 355, Great Neck, New York 11022. The class of
securities to which this Report relates is the Common Stock of the Company.
ITEM 2. IDENTITY AND BACKGROUND.
The information set forth in Item 2 of the Langner Schedule 13D and
the Segal Schedule 13D is hereby amended and supplemented by adding the
following information thereto, and such information also constitutes Item 2 of
the Reporting Group Schedule 13D:
Mr. Langner's business address is 111 Great Neck Road, P.O. Box 355,
Great Neck, New York 11022 and his principal occupation is Chairman of the Board
of Directors and Chief Executive Officer of the Company.
The Company, through its 51% ownership interest in Hudson General
LLC ("LLC"), provides services at various airports in the U.S. and Canada,
including aircraft ground handling; aircraft fueling; fuel management; ground
transportation; snow removal; cargo warehousing; and sale, leasing and
maintenance of airline ground support equipment. In addition, the Company is a
50% partner in a joint venture to develop approximately 4,000 contiguous acres
of land situated in the North Kohala District on the Island of Hawaii.
During the last five years, Mr. Langner has not been convicted in a
criminal proceeding (excluding traffic violations and similar misdemeanors), nor
has he been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction resulting in 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.
Mr. Langner is a United States citizen.
(Page 15 of 34 Pages)
<PAGE>
Mr. Segal's business address is 707 Westchester Avenue, White
Plains, New York 10604 and his principal occupation is Chairman and Chief
Executive Officer of Seavest, Inc., a private investment company. Mr. Segal has
also served as Vice Chairman of the Board of Directors of the Company since
February 1998.
During the last five years, Mr. Segal has not been convicted in a
criminal proceeding (excluding traffic violations and similar misdemeanors), nor
has he been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction resulting in 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.
Mr. Segal is a United States citizen.
Mr. Daloia's business address is 111 Great Neck Road, P.O. Box 355,
Great Neck, New York 11022 and his principal occupation is Vice
President--Maintenance & Facilities of the Company.
Mr. DiBenedetto's business address is 111 Great Neck Road, P.O. Box
355, Great Neck, New York 11022 and his principal occupation is Senior Vice
President--Operations of the Company.
Mr. Pollack's business address is 111 Great Neck Road, P.O. Box 355,
Great Neck, New York 11022 and his principal occupation is Director, Executive
Vice President and Chief Operating Officer of the Company.
Mr. Regenstein's business address is 111 Great Neck Road, P.O. Box
355, Great Neck, New York 11022 and his principal occupation is Vice President
and Chief Financial Officer of the Company.
Mr. Rieder's business address is 111 Great Neck Road, P.O. Box 355,
Great Neck, New York 11022 and his principal occupation is Senior Vice President
and Chief Marketing Officer of the Company.
Mr. Rockowitz's business address is 111 Great Neck Road, P.O. Box
355, Great Neck, New York 11022 and his principal occupation is Senior Vice
President, General Counsel and Secretary of the Company.
(Page 16 of 34 Pages)
<PAGE>
Mr. Rubin's business address is 111 Great Neck Road, P.O. Box 355,
Great Neck, New York 11022 and his principal occupation is President of the
Company.
Mr. Satinskas's business address is 111 Great Neck Road, P.O. Box
355, Great Neck, New York 11022 and his principal occupation is Vice
President--Transportation Services of the Company.
With respect to each of the Reporting Persons other than Messrs.
Langner and Segal, during the last five years, none of them has been convicted
in a criminal proceeding (excluding traffic violations and similar
misdemeanors), nor has any of them been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction resulting in 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. Each of such Reporting Persons is a
United States citizen.
River Acquisition Corp., a Delaware corporation formed by the
Reporting Persons ("Newco"), has no business or operations and will be merged
with and into the Company, with the Company as the surviving corporation upon
consummation of the Merger (as defined below). Newco's business address is c/o
Jay B. Langner, 111 Great Neck Road, Suite 600, Great Neck, New York 11021. The
Board of Directors of Newco is composed of Messrs. Langner and Segal. Mr.
Langner is Chairman of the Board of Directors and President of Newco. Mr. Segal
holds the offices of Vice President and Secretary. Mr. Rubin is Vice President
and Assistant Secretary. As of the date hereof, Newco has no other officers. For
additional information regarding Messrs. Langner, Segal and Rubin, see this Item
2 above.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information set forth in Item 3 of the Langner Schedule 13D and
the Segal Schedule 13D is hereby amended and supplemented by adding the
following information thereto, and such information also constitutes Item 3 of
the Reporting Group Schedule 13D:
On June 22, 1998, the Board of Directors established a Special
Committee (the "Special Committee") to consider potential proposals by members
of senior management to acquire the Company.
(Page 17 of 34 Pages)
<PAGE>
On November 20, 1998, the Reporting Group was formed and Messrs. Langner and
Segal, on behalf of the Reporting Group, transmitted a letter (the "Proposal")
to the Special Committee proposing that the Reporting Persons acquire, by merger
or other business combination, all of the common stock of the Company not owned
by the Reporting Persons at a price of $57.00 per share in cash.
On November 22, 1998, the Reporting Group made a revised offer at a
price of $57.25 per share in cash, which was accepted by the Company's Special
Committee and Board of Directors, and the Company and Newco entered into an
Agreement and Plan of Merger (the "Merger Agreement") providing for the merger
(the "Merger") of Newco with and into the Company. In the Merger, each share of
Common Stock of the Company outstanding immediately prior to the time the Merger
is consummated (other than shares held by Newco or any of its subsidiaries,
which will be cancelled, or shares held by stockholders who have exercised their
statutory right under the laws of the state of Delaware to have such shares
appraised and be paid the fair value thereof ("Dissenting Shares")) will be
converted into the right to receive $57.25 payable entirely in cash, without any
interest thereon (such cash paid for the shares of Common Stock is hereinafter
referred to as the "Merger Consideration"), and each outstanding share of common
stock of Newco will be converted into one share of the common stock of the
Company, as the surviving corporation in the Merger (the "Surviving
Corporation"). Each outstanding option to purchase Common Stock (other than
those owned by certain members of management yet to be determined), whether or
not then exercisable, will be cancelled at the closing of the Merger and the
holder thereof will be paid an amount in cash equal to the difference between
$57.25 and the exercise price of such option.
The Reporting Persons have calculated that, assuming there are no
Dissenting Shares, approximately $86 million will be required to pay the
aggregate Merger Consideration due to stockholders and option holders of the
Company at the closing of the Merger. In addition, it is anticipated that an
aggregate of approximately $3.5 million will be required to pay all of Newco's
other expenses and costs relating to the transactions and for general corporate
purposes (the "Merger Expenses").
(Page 18 of 34 Pages)
<PAGE>
In connection with the submission of the Proposal to the Company (as
more fully described in Item 4 of this Schedule 13D), the Reporting Persons
delivered to the Company a commitment letter dated November 20, 1998 (the
"Commitment Letter"). Pursuant to the Commitment Letter, but subject to the
conditions set forth therein, (i) BankBoston, N.A. ("BKB") has agreed to act as
administrative agent (in such capacity, the "Agent") on its own behalf and on
behalf of European American Bank ("EAB") and The Chase Manhattan Bank ("Chase"
and together with BKB and EAB, the "Initial Lenders") for the proposed senior
secured revolving credit and term loan facilities aggregating up to $59,579,865
(collectively, the "Facilities") for the purpose of providing the financing for
the Merger, (ii) each of the Initial Lenders has agreed to participate on a
several, ratable basis for 50%, 25% and 25%, respectively, of the full amount of
the Facilities and (iii) BancBoston Robertson Stephens Inc. (the "Arranger" and
together with the Initial Lenders, the "BKB Group") has agreed to act as the
exclusive arrangement agent and arranger of the Facilities. The BKB Group may
syndicate a portion of the Facilities to other banks or financial institutions
(together with the Initial Lenders, the "Lenders"). The proceeds of the
Facilities will be used (i) to pay the Merger Consideration, (ii) to pay
expenses of the Merger and (iii) for working capital and general corporate
purposes, including the repurchase of employee-owned stock options. The BKB
Group's obligations under the Commitment Letter are subject to, among other
things, (i) the negotiation and execution of a definitive credit agreement in
respect of the Facilities (the "Credit Agreement") and related documents that
are satisfactory in form and substance to the BKB Group and Newco, (ii) the
absence of any material adverse change (from that described to the BKB Group in
the information previously provided to the BKB Group) in the assets, business,
condition (financial or otherwise) or prospects of the Company, Newco and their
respective subsidiaries, that would impact the ability of any such entity to
perform its respective obligations described in the Commitment Letter, (iii) the
absence of any material misstatements or omissions from the materials provided
by Newco to the BKB Group for their review in connection with the transactions
contemplated by the Commitment Letter and (iv) the absence of any changes in
governmental regulation or policy materially and adversely affecting the ability
of the Initial Lenders to perform their respective duties as described in the
Commitment Letter or otherwise provide financing in connection with the Merger.
(Page 19 of 34 Pages)
<PAGE>
The Commitment Letter contemplates that the definitive Credit
Agreement will contain terms and conditions which are customary in transactions
of this type, including, without limitation, the following:
Borrower. The initial borrower under the Facilities will be Newco.
Upon the consummation of the Merger, the Company, as the surviving corporation
in the Merger (the "Surviving Corporation"), will become the obligor under the
Credit Agreement. The obligor under the Credit Agreement at any particular time
is referred to as the "Borrower."
Interest Rate. Amounts outstanding under the Facilities will bear
interest, at the option of the Borrower, at a rate per annum equal to either:
(i) the London interbank offered rate (adjusted for actual reserves)("LIBOR") or
(ii) the Alternate Base Rate, in each case, plus the Applicable Margin. The
"Alternate Base Rate" or "ABR" is defined as the higher of (x) the Agent's Base
Rate as publicly announced from time to time, and (y) 0.50% plus the federal
funds rate.
The Applicable Margin with respect to the ABR and LIBOR loans under
the revolving credit facility and $47,079,865 term loan tranche will be based
upon the ratio of adjusted EBITDA to Interest (each as defined). The Applicable
Margin for the $7,500,000 term loan tranche is fixed at 3.50% for LIBOR loans
and 1.50% for ABR loans.
Term. Borrowings under the Facilities will be amortized, and
commitments with respect to drawings under the Facilities will be
correspondingly reduced, over the five and six year terms of the Facilities in
accordance with an agreed schedule.
Guarantors. All of the Borrower's obligations under the Facilities
will be fully and unconditionally guaranteed by all direct and indirect present
and future subsidiaries of the Borrower (collectively, the "Guarantors") other
than LLC, Hudson Kohala Inc. and certain other non-operating subsidiaries
(collectively, the "Excluded Subsidiaries").
Security. The Facilities will be secured by a first priority
security interest in (i) all of the stock of the Borrower and its subsidiaries
and (ii) all tangible and intangible assets of the Borrower and its subsidiaries
(including the Company but excluding the Excluded Subsidiaries), including any
common or preferential ownership units in LLC.
(Page 20 of 34 Pages)
<PAGE>
Conditions. The obligations of the Lender under the Credit Agreement
to provide the initial advances pursuant to the Facilities will be subject to
usual and customary conditions for credit facilities of that size, type and
purpose, including, without limitation, the following: (i) no material adverse
change in the condition (financial or otherwise), operation, assets, and/or
income of the Borrower, of the Company, of the Borrower and its subsidiaries
taken as a whole, or of the Company and its subsidiaries taken as a whole; (ii)
delivery by the Borrower of unaudited consolidated financial statements of the
Company and its subsidiaries for the period ended December 31, 1998, which shall
be satisfactory to the Agent and the Lenders; (iii) absence of material
litigation; (iv) no material adverse change in the financial projections
previously furnished by Newco to the Agent, the Lenders and the Arranger; (v)
minimum cash of the Borrower of not less than approximately $44,600,000 (or such
greater amount as is necessary to complete the Merger if fees and expenses
incurred in connection therewith exceed those assumed in the calculation of the
aggregate amount of the Facilities); (vi) the contemporaneous closing of the
$20,000,000 senior secured revolving credit facility (the "LLC Facility") for
LLC pursuant to the terms and conditions set forth in the separate commitment
letter among the BKB Group and Newco relating to the LLC Facility; and (vii)
consummation of the Merger in a manner satisfactory to the Agent and its
counsel, including the minimum equity capital contribution to Newco by the
Reporting Persons or other members of management in connection with the Merger
of at least 280,000 shares and retained options equivalent to shares of Common
Stock of the Company.
Covenants and Events of Default. The Credit Agreement will contain
affirmative and negative covenants and events of default, in each case which are
customary for credit facilities of that size, type and purpose. Such affirmative
and negative covenants will, among other matters, limit certain activities of
the Borrower and require it to satisfy certain ongoing financial requirements.
Such events of default will include, among other matters, a cross-default to
indebtedness of LLC and an event of default upon a change in control (as
defined) of the Company following the Merger.
Expiration. The obligations of the BKB Group under the Commitment
Letter will expire and terminate automatically if loan documentation
satisfactory in form and substance to the BKB Group, the Company and their
respective counsel is not executed on or before April 30, 1999.
(Page 21 of 34 Pages)
<PAGE>
ITEM 4. PURPOSE OF TRANSACTION.
The information set forth in Item 4 of the Langner Schedule 13D and
the Segal Schedule 13D is hereby amended and supplemented by adding the
following information thereto, and such information also constitutes Item 4 of
the Reporting Group Schedule 13D:
The purpose of the formation of the Reporting Group is to acquire
the Company through the Merger. The Reporting Persons intend to consummate the
Merger and acquire all of the outstanding shares of Common Stock at the earliest
practicable date. The Merger Agreement specifies certain conditions which must
be satisfied prior to the closing of the Merger, including, among other things,
(a) the obtaining of the affirmative vote of a majority of the voting power of
the shares owned by stockholders of the Company and a majority of the voting
power of such shares (excluding those owned by the Reporting Persons), (b) the
expiration of all waiting periods under the Hart-Scott Rodino Antitrust
Improvement Act of 1976 with respect to the Merger, (c) the obtaining of the
Financing described in the Commitment Letter, (d) that there be no pending or
threatened governmental actions or claims or pending third party actions or
claims relating to the Merger at the Effective Time and (e) that the total
number of Dissenting Shares is no more than 7.5% of the then outstanding shares
of Common Stock.
As a result of the Merger, (a) all of the outstanding shares of
Common Stock (other than Dissenting Shares and shares owned by Newco or any of
its subsidiaries) would be cancelled, and the shares of Newco would become the
shares of the Surviving Corporation, (b) the Common Stock of the Company would
cease to be authorized to be quoted on any national securities exchange, (c) the
capital stock of the Company would be removed from registration under the
Exchange Act, (d) the directors of Newco would become the directors of the
Surviving Corporation and (e) the officers of the Company would become the
officers of the Surviving Corporation.
The descriptions contained herein of the Merger Agreement and the
Proposal are qualified in their entirety by reference to the complete text
thereof, copies of which are filed as Exhibits hereto and incorporated by
reference herein.
The information set forth in Items 3 and 6 of this Schedule 13D is
hereby incorporated by reference herein.
(Page 22 of 34 Pages)
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
The information set forth in Item 5 of the Langner Schedule 13D and
the Segal Schedule 13D is hereby amended and supplemented by adding the
following information thereto, and such information also constitutes Item 5 of
the Reporting Group Schedule 13D:
Reporting Group
The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998 reports that as of October 31, 1998 there were outstanding
1,744,949 shares of Common Stock. As of the date hereof, the Reporting Persons
beneficially own an aggregate of 285,762 shares of Common Stock, or
approximately 16.1% of the Common Stock deemed outstanding. With respect to the
percentages of outstanding shares set forth in this Schedule 13D, the percentage
of outstanding shares (i) for each individual has been calculated as though only
the options held by such individual, if any, had been exercised, and (ii) for
the Reporting Group has been calculated as though all options held by them had
been exercised.
By virtue of their status as a "group" for purposes of Rule 13d-5,
each of the members of the Reporting Group may be deemed to have shared voting
and dispositive power over the shares owned by the other members. However, the
filing of this Schedule 13D shall not be construed as an admission that any of
the Reporting Persons is, for the purposes of Section 13(d) or 13(g) of the
Exchange Act, the beneficial owner of any securities held by any other member of
the Reporting Group.
Jay B. Langner
(a) Mr. Langner beneficially owns 131,254 shares of Common Stock
(including 10,000 shares issuable upon the exercise of presently exercisable
options), constituting approximately 7.5% of the Common Stock outstanding as of
October 31, 1998.
(b) Mr. Langner has sole voting power and sole investment power with
respect to all of the shares of Common Stock referred to in paragraph (a) above.
(c) No transactions in the Common Stock were effected by Mr. Langner
within the past 60 days.
(Page 23 of 34 Pages)
<PAGE>
(d) Except as set forth above in this Item 5, no other person is
know to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the securities.
(e) Not applicable.
Richard D. Segal
(a) Mr. Segal may be deemed to be the beneficial owner of 125,972
shares of Common Stock, constituting approximately 7.2% of the outstanding
shares of Common Stock as of October 31, 1998.
(b) Mr. Segal may be deemed to have shared voting and dispositive
power with respect to (i) 27,590 shares of Common Stock owned by Seavest
Partners, a partnership of which Mr. Segal is the managing partner, (ii) 37,321
shares of Common Stock owned by Fourth Generation Partners, a partnership of
which Mr. Segal is a co-trustee of certain of the partners of such partnership,
(iii) 31,472 shares of Common Stock owned by Mr. Segal's wife as to which he is
attorney-in-fact, (iv) 3,800 shares of Common Stock owned by Betty L. Bardige
because Mr. Segal is one of two individuals designated by Ms. Bardige as her
attorney-in-fact, (v) 9,205 shares of Common Stock owned by Wendy S. Masi
because Mr. Segal is one of two individuals designated by Ms. Masi as her
attorney-in-fact, (vi) 5,930 shares of Common Stock owned by Patricia S.
Lieberman because Mr. Segal is one of two individuals designated by Ms. Masi as
her attorney-in-fact, (vii) 3,394 shares of Common Stock owned by a revocable
trust of which Mr. Segal is a co-trustee and (viii) 7,260 shares of Common Stock
owned by a trust of which Mr. Segal is a co-trustee.
Mr. Segal disclaims beneficial ownership of the aggregate 98,382
shares of Common Stock, referred to in clauses (ii) through (viii) above, as to
which he may be deemed to have shared voting and dispositive power.
To Mr. Segal's best knowledge, (i) Schedule 1 hereto contains the
information required by Items 2(a), 2(b) and 2(c) of Schedule 13D with respect
to each individual with whom Mr. Segal may be deemed to share voting or
dispositive power with respect to shares of Common Stock, (ii) none of these
individuals has, during the last five years, been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors), (iii) none of
these individuals has, during the
(Page 24 of 34 Pages)
<PAGE>
last five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such a
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 violations with respect to such laws and
(iv) those individuals are United States citizens.
(c) No transactions in the Common Stock were effected by Mr. Segal
within the past 60 days.
(d) Except as set forth above in this Item 5, no other person is
know to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the securities.
(e) Not applicable.
Rocco Daloia
(a) Mr. Daloia does not beneficially own any shares of Common Stock.
(b) Not applicable.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
Fernando DiBenedetto
(a) Mr. DiBenedetto beneficially owns 1,010 shares of Common Stock
(including 1,000 shares issuable upon the exercise of presently exercisable
options), constituting approximately 0.1% of the Common Stock outstanding as of
October 31, 1998.
(b) Mr. DiBenedetto has sole voting power and sole investment power
with respect to all of the shares of Common Stock referred to in paragraph (a)
above.
(c) No transactions in the Common Stock were effected by Mr.
DiBenedetto within the past 60 days.
(Page 25 of 34 Pages)
<PAGE>
(d) Except as set forth above in this Item 5, no other person is
know to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the securities.
(e) Not applicable.
Paul R. Pollack
(a) Mr. Pollack beneficially owns 10,140 shares of Common Stock
(including 8,200 shares issuable upon the exercise of presently exercisable
options), constituting approximately 0.6% of the Common Stock outstanding as of
October 31, 1998.
(b) Mr. Pollack has sole voting power and sole investment power with
respect to all of the shares of Common Stock referred to in paragraph (a) above.
(c) No transactions in the Common Stock were effected by Mr. Pollack
within the past 60 days.
(d) Except as set forth above in this Item 5, no other person is
know to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the securities.
(e) Not applicable.
Barry I. Regenstein
(a) Mr. Regenstein beneficially owns 2,600 shares of Common Stock
(consisting of 2,600 shares issuable upon the exercise of presently exercisable
options), constituting approximately 0.1% of the Common Stock outstanding as of
October 31, 1998.
(b) Mr. Regenstein has sole voting power and sole investment power
with respect to all of the shares of Common Stock referred to in paragraph (a)
above.
(c) No transactions in the Common Stock were effected by Mr.
Regenstein within the past 60 days.
(d) Except as set forth above in this Item 5, no other person is
know to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the securities.
(Page 26 of 34 Pages)
<PAGE>
(e) Not applicable.
Raymond J. Rieder
(a) Mr. Rieder beneficially owns 2,900 shares of Common Stock
(consisting of 2,900 shares issuable upon the exercise of presently exercisable
options), constituting approximately 0.2% of the Common Stock outstanding as of
October 31, 1998.
(b) Mr. Rieder has sole voting power and sole investment power with
respect to all of the shares of Common Stock referred to in paragraph (a) above.
(c) No transactions in the Common Stock were effected by Mr. Rieder
within the past 60 days.
(d) Except as set forth above in this Item 5, no other person is
know to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the securities.
(e) Not applicable.
Noah E. Rockowitz
(a) Mr. Rockowitz beneficially owns 1,800 shares of Common Stock
(consisting of 1,800 shares issuable upon the exercise of presently exercisable
options), constituting approximately 0.1% of the Common Stock outstanding as of
October 31, 1998.
(b) Mr. Rockowitz has sole voting power and sole investment power
with respect to all of the shares of Common Stock referred to in paragraph (a)
above.
(c) No transactions in the Common Stock were effected by Mr.
Rockowitz within the past 60 days.
(d) Except as set forth above in this Item 5, no other person is
know to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the securities.
(e) Not applicable.
(Page 27 of 34 Pages)
<PAGE>
Michael Rubin
(a) Mr. Rubin beneficially owns 8,430 shares of Common Stock
(including 8,200 shares issuable upon the exercise of presently exercisable
options), constituting approximately 0.5% of the Common Stock outstanding as of
October 31, 1998.
(b) Mr. Rubin has sole voting power and sole investment power with
respect to all of the shares of Common Stock referred to in paragraph (a) above.
(c) No transactions in the Common Stock were effected by Mr. Rubin
within the past 60 days.
(d) Except as set forth above in this Item 5, no other person is
know to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the securities.
(e) Not applicable.
Henry A. Satinskas
(a) Mr. Satinskas beneficially owns 1,656 shares of Common Stock,
constituting approximately 0.1% of the Common Stock outstanding as of October
31, 1998.
(b) Mr. Satinskas has sole voting power and sole investment power
with respect to all of the shares of Common Stock referred to in paragraph (a)
above.
(c) No transactions in the Common Stock were effected by Mr.
Satinskas within the past 60 days.
(d) Except as set forth above in this Item 5, no other person is
know to have the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale of the securities.
(e) Not applicable.
River Acquisition Corp.
(a) Newco does not beneficially own any shares of Common Stock. See
Item 4 above.
(b) Not applicable.
(Page 28 of 34 Pages)
<PAGE>
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
The information set forth in Item 6 of the Langner Schedule 13D and
the Segal Schedule 13D is hereby amended and supplemented by adding the
following information thereto, and such information also constitutes Item 6 of
the Reporting Group Schedule 13D:
In June and July 1998, each of Messrs. Langner, Segal, Rubin,
Pollack, Rockowitz and Regenstein entered into a separate confidentiality
agreement (collectively, the "Confidentiality Agreements") regarding discussions
or information to be had or provided in respect of the consideration of a
possible proposal by members of senior management.
By letter dated July 9, 1998 (the "Expense Letter"), the Company
agreed to reimburse certain expenses of Messrs. Langner and Segal to be incurred
by them in considering the possibility of proposing a transaction to the
Company. The Merger Agreement expressly provides, however, that the Expense
Letter is superseded by the provisions of the Merger Agreement relating to
expense reimbursement.
By letter dated November 22, 1998 (the "Contribution Letter"),
Messrs. Langner and Segal agreed, subject to the conditions set forth therein,
to contribute to Newco an aggregate of 280,000 shares of Common Stock (subject
to offset as set forth therein) upon consummation of the Merger.
The Reporting Persons (other than Newco) currently contemplate that
in connection with the Acquisition each of them would contribute to Newco all of
the shares of Common Stock owned by them or in respect of which they have
dispositive power; however, the Reporting Persons have not yet formulated
definitive plans regarding such equity contributions, the treatment of stock
options held by such Reporting Persons and certain other arrangements expected
to be made among the members of the Reporting Group regarding ownership
interests in Newco.
(Page 29 of 34 Pages)
<PAGE>
The descriptions contained herein of the Confidentiality Agreements,
the Expense Letter and the Contribution Letter are qualified in their entirety
by reference to the complete text thereof, copies of which are filed as Exhibits
hereto and incorporated by reference herein.
The information set forth in Items 3 and 4 of this Schedule 13D is
hereby incorporated by reference herein.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS
1. Proposal Letter, dated November 20, 1998, from Jay B. Langner
and Richard D. Segal to the Special Committee of the Board of
Directors of Hudson General Corporation.
2. Agreement and Plan of Merger, dated as of November 22, 1998,
between Hudson General Corporation and River Acquisition Corp.
3. Contribution Letter, dated November 22, 1998, from Jay B.
Langner and Richard D. Segal to Hudson General Corporation.
4. Commitment Letter, dated November 20, 1998, among BankBoston,
N.A., European American Bank, The Chase Manhattan Bank,
BancBoston Robertson Stephens Inc., River Acquisition Corp.
and Jay B.
Langner.
5. Confidentiality Agreement, dated June 30, 1998, between Hudson
General Corporation and Jay B.
Langner.
6. Confidentiality Agreement, dated June 30, 1998, between Hudson
General Corporation and Michael Rubin.
7. Confidentiality Agreement, dated July 1, 1998, between Hudson
General Corporation and Noah E.
Rockowitz.
8. Confidentiality Agreement, dated July 1, 1998, between Hudson
General Corporation and Paul R.
Pollack.
(Page 30 of 34 Pages)
<PAGE>
9. Confidentiality Agreement, dated July 2, 1998, between Hudson
General Corporation and Richard D.
Segal.
10. Confidentiality Agreement, dated July 6, 1998, between Hudson
General Corporation and Barry I.
Regenstein.
11. Expense Reimbursement Letter, dated July 9, 1998, from
Hudson General Corporation to Jay B. Langner and Richard D.
Segal.
12. Joint Filing Agreement, dated as of November 22, 1998, among
Jay B. Langner, Richard D. Segal, Rocco Daloia, Fernando
DiBenedetto, Paul R. Pollack, Barry I. Regenstein, Raymond J.
Rieder, Noah E. Rockowitz, Michael Rubin, Henry A. Satinskas
and River Acquisition Corp.
(Page 31 of 34 Pages)
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: November 23, 1998
/s/ Jay B. Langner
-----------------------------------------
Jay B. Langner
/s/ Richard D. Segal
-----------------------------------------
Richard D. Segal
/s/ Rocco Daloia
-----------------------------------------
Rocco Daloia
/s/ Fernando DiBenedetto
-----------------------------------------
Fernando DiBenedetto
/s/ Paul R. Pollack
-----------------------------------------
Paul R. Pollack
/s/ Barry Regenstein
-----------------------------------------
Barry Regenstein
/s/ Raymond J. Rieder
-----------------------------------------
Raymond J. Rieder
/s/ Noah Rockowitz
-----------------------------------------
Noah Rockowitz
/s/ Michael Rubin
-----------------------------------------
Michael Rubin
/s/ Henry A. Satinskas
-----------------------------------------
Henry A. Satinskas
(Page 32 of 34 Pages)
<PAGE>
RIVER ACQUISITION CORP.
By: /s/ Michael Rubin
-----------------------------------------
Michael Rubin
Vice President
(Page 33 of 34 Pages)
<PAGE>
Schedule 1
Betty L. Bardige
Betty L. Bardige is a homemaker. Ms. Bardige's residence address is
96 Raymond Street, Cambridge, Massachusetts 02138.
Wendy S. Masi
Wendy S. Masi is a professor at Nova University. Ms. Masi's business
address is c/o Nova University, Inc., 3301 College Avenue, Fort Lauderdale,
Florida 33314.
Patricia S. Lieberman
Patricia S. Lieberman is a homemaker. Ms. Lieberman's business
address is c/o Seavest Inc., 707 Westchester Avenue, White Plains, New York
10604.
Jay B. Langner
Jay B. Langner is Chairman of the Board and Chief Executive Officer
of Hudson General Corporation. Mr. Langner's business address is c/o Hudson
General Corporation, 111 Great Neck Road, P.O. Box 355, Great Neck, New York
11022.
Robert A. Lieberman
Robert A. Lieberman is Executive Director of Timesteps Productions
Inc., a film and video production company. Mr. Lieberman's business address is
c/o Timesteps Productions Inc., 2 Glennside Drive, West Orange, NJ 07052.
Marilyn Segal
Marilyn Segal is a professor at Nova University. Ms. Segal's
business address is c/o Nova University, Inc., 3301 College Avenue, Fort
Lauderdale, Florida 33314.
Monica Segal
Monica Segal is a homemaker. Ms. Segal's business address is c/o
Seavest, Inc., 707 Westchester Avenue, White Plains, New York 10604.
(Page 34 of 34 Pages)
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
No. Description
--- -----------
1. Proposal Letter, dated November 20, 1998, from Jay B. Langner
and Richard D. Segal to the Special Committee of the Board of
Directors of Hudson General Corporation.
2. Agreement and Plan of Merger, dated as of November 22, 1998,
between Hudson General Corporation and River Acquisition Corp.
3. Contribution Letter, dated November 22, 1998, from Jay B.
Langner and Richard D. Segal to Hudson General Corporation.
4. Commitment Letter, dated November 20, 1998, among BankBoston,
N.A., European American Bank, The Chase Manhattan Bank,
BancBoston Robertson Stephens Inc., River Acquisition Corp.
and Jay B.
Langner.
5. Confidentiality Agreement, dated June 30, 1998, between Hudson
General Corporation and Jay B.
Langner.
6. Confidentiality Agreement, dated June 30, 1998, between Hudson
General Corporation and Michael Rubin.
7. Confidentiality Agreement, dated July 1, 1998, between Hudson
General Corporation and Noah E.
Rockowitz.
8. Confidentiality Agreement, dated July 1, 1998, between Hudson
General Corporation and Paul R.
Pollack.
9. Confidentiality Agreement, dated July 2, 1998, between Hudson
General Corporation and Richard D.
Segal.
10. Confidentiality Agreement, dated July 6, 1998, between Hudson
General Corporation and Barry I.
Regenstein.
11. Expense Reimbursement Letter, dated July 9, 1998, from
Hudson General Corporation to Jay B. Langner and Richard D.
Segal.
12. Joint Filing Agreement, dated as of November 22, 1998, among
Jay B. Langner, Richard D. Segal, Rocco Daloia, Fernando
DiBenedetto, Paul R. Pollack, Barry I. Regenstein, Raymond J.
Rieder, Noah E. Rockowitz, Michael Rubin, Henry A. Satinskas
and River Acquisition Corp.
Exhibit 1
Jay B. Langner Richard D. Segal
c/o Hudson General c/o Hudson General
Corporation Corporation
111 Great Neck Road 111 Great Neck Road
Great Neck, NY 11021 Great Neck, NY 11021
November 20, 1998
Special Committee of the
Board of Directors
Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11021
Dear Sirs:
We are hereby making an offer pursuant to which River Acquisition
Corp., a corporation formed by Jay B. Langner and Richard D. Segal ("Newco"),
would acquire (the "Acquisition") all of the capital stock of Hudson General
Corporation (the "Company") not owned by it at a price per share of $57 in cash.
The price we are prepared to pay represents a premium in excess of 10% over the
average closing price of the Company's common stock over the past sixty (60)
days.
Consummation of the proposed transaction would be subject to, among
other things, the negotiation and execution of a definitive merger agreement
which would provide, among other things, that the obligations of the parties to
consummate the Acquisition will be subject to the satisfaction of a number of
conditions customarily contained in transactions of this type.
BankBoston, N.A., European American Bank and The Chase Manhattan
Bank have committed to provide the necessary financing for the transaction and
our offer will not be subject to receipt of any other financing.
NYFS10...:\80\57780\0003\1948\AGRN038L.34A
<PAGE>
We and our advisors are prepared to meet with the Special Committee
and its advisors in order to answer any questions about our proposal and to
present definitive merger and other agreements for prompt consideration and
execution. We assume that you will want to make a prompt announcement of our
proposal. We are, however, of the view that it is in the best interest of the
Company's shareholders that they be made aware of our proposal as promptly as
possible, and will therefore release this letter publicly shortly after it is
delivered to you and we will also be making appropriate filings to comply with
our obligations under the federal securities laws.
We hope that the Special Committee will give this offer serious
consideration. As you can appreciate, with offers of this kind time is of the
essence. Accordingly, if you wish to pursue a possible transaction, please
contact Mr. Langner as soon as possible to discuss these matters further.
Very truly yours,
/s/ Jay B. Langner
-----------------------------------
Jay B. Langner
/s/ Richard D. Segal
-----------------------------------
Richard D. Segal
2
Exhibit 2
AGREEMENT AND PLAN OF MERGER
BETWEEN
HUDSON GENERAL CORPORATION
AND
RIVER ACQUISITION CORP.
DATED AS OF
NOVEMBER 22, 1998
NYFS10...:\80\57780\0003\1948\AGR9038U.48K
<PAGE>
TABLE OF CONTENTS
ARTICLE I
THE MERGER
SECTION 1.01. The Merger...................................... 1
SECTION 1.02. Effective Time.................................. 2
SECTION 1.03. Effects of the Merger........................... 2
SECTION 1.04. Certificate of Incorporation.................... 2
SECTION 1.05. Bylaws.......................................... 2
SECTION 1.06. Directors and Officers.......................... 2
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.01. Conversion of Securities........................ 3
SECTION 2.02. Exchange of Certificates and Cash............... 3
SECTION 2.03. Stock Transfer Books............................ 6
SECTION 2.04. Stock Options; Payment Rights................... 6
SECTION 2.05. Dissenting Shares............................... 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.01. Organization and Qualifications; Subsidiaries... 7
SECTION 3.02. Certificate of Incorporation and Bylaws......... 8
SECTION 3.03. Capitalization.................................. 8
SECTION 3.04. Authority Relative to This Agreement............ 8
SECTION 3.05. No Conflict; Required Filings and Consents...... 9
SECTION 3.06. Opinion of Financial Advisor.................... 10
SECTION 3.07. Board Approval.................................. 10
SECTION 3.08. Brokers......................................... 10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MERGER SUB
SECTION 4.01. Organization and Qualification.................. 11
SECTION 4.02. Authority Relative to This Agreement............ 11
SECTION 4.03. No Conflict; Required Filings and Consents...... 12
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SECTION 4.04. Brokers......................................... 12
SECTION 4.05. Financing....................................... 13
SECTION 4.06. Capitalization of Merger Sub.................... 13
SECTION 4.07. Investigation by Merger Sub..................... 13
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.01. Conduct of Business by the Company Pending the
Merger......................................... 14
ARTICLE VI
ADDITIONAL COVENANTS
SECTION 6.01. Access to Information; Confidentiality.......... 15
SECTION 6.02. Proxy Statement; Schedule 13E-3................. 15
SECTION 6.03. Action by Stockholders.......................... 16
SECTION 6.04. No Solicitation................................. 17
SECTION 6.05. Directors' and Officers' Insurance and
Indemnification............................... 18
SECTION 6.06. Further Action; Best Efforts.................... 20
SECTION 6.07. Public Announcements............................ 21
SECTION 6.08. Conveyance Taxes................................ 21
SECTION 6.09. Employee Benefits............................... 21
SECTION 6.10. Commitment Letter Notices....................... 22
SECTION 6.11. Knowledge of Breach............................. 22
ARTICLE VII
CLOSING CONDITIONS
SECTION 7.01. Conditions to Obligations of Each Party to
Effect the Merger.............................. 22
SECTION 7.02. Additional Conditions to Obligations of
Merger Sub..................................... 23
SECTION 7.03. Additional Conditions to Obligations of the
Company........................................ 24
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination..................................... 24
SECTION 8.02. Effect of Termination........................... 26
SECTION 8.03. Amendment....................................... 26
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SECTION 8.04. Waiver.......................................... 26
SECTION 8.05. Fees, Expenses and Other Payments............... 26
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Effectiveness of Representations, Warranties and
Agreements..................................... 27
SECTION 9.02. Notices......................................... 27
SECTION 9.03. Certain Definitions............................. 28
SECTION 9.04. Headings........................................ 29
SECTION 9.05. Severability.................................... 29
SECTION 9.06. Entire Agreement................................ 30
SECTION 9.07. Assignment...................................... 30
SECTION 9.08. Parties in Interest............................. 30
SECTION 9.09. Governing Law................................... 30
SECTION 9.10. Submission to Jurisdiction; Waivers............. 30
SECTION 9.11. Enforcement of this Agreement................... 31
SECTION 9.12. Counterparts.................................... 31
Annex A Commitment Letter
iii
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November 22, 1998 (the
"Agreement"), between HUDSON GENERAL CORPORATION, a Delaware corporation (the
"Company"), and RIVER ACQUISITION CORP., a Delaware corporation (the "Merger
Sub").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of this Agreement
and in accordance with the General Corporation Law of the State of Delaware (the
"DGCL"), Merger Sub will merge with and into the Company (the "Merger") pursuant
to which each outstanding share of common stock, par value $1.00 per share, of
the Company (the "Common Stock" other than shares owned by Merger Sub), shall be
converted into the right to receive $57.25 in cash per share of Common Stock, as
more fully set forth herein;
WHEREAS, the Board of Directors of the Company, based on the unanimous
recommendation of the Special Committee (as defined in Section 3.07), has
determined that the Merger is fair to and in the best interests of the Company
and its stockholders (other than Merger Sub and its affiliates and members of
the Management Group (as defined in Section 9.03)) and has approved this
Agreement, the Merger and the other transactions contemplated hereby and has
recommended approval and adoption of this Agreement by the stockholders of the
Company.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01. The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the DGCL, at the Effective Time
(as defined in Section 1.02), Merger Sub shall be merged with and into the
Company. Following the Merger, the separate existence of Merger Sub shall cease
and the Company shall continue as the surviving corporation of the Merger (the
"Surviving Corporation").
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SECTION 1.02. Effective Time. As soon as practicable after the
satisfaction or, if permissible, waiver of the conditions set forth in Article
VII, the parties hereto shall cause the Merger to be consummated by filing a
certificate of merger (the "Certificate of Merger") with the Secretary of State
of the State of Delaware and by making any related filings required under the
DGCL in connection with the Merger. 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 Delaware or at such later time as is agreed to by the parties
hereto and as is specified in the Certificate of Merger (the "Effective Time" or
the "Closing").
SECTION 1.03. Effects of the Merger. From and after the Effective Time,
the Merger shall have the effects set forth in the DGCL (including, without
limitation, Sections 259, 260 and 261 thereof). Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time, all the
properties, rights, privileges, powers and franchises of the Company and Merger
Sub shall vest in the Surviving Corporation, and all debts, liabilities and
duties of the Company and Merger Sub shall become the debts, liabilities and
duties of the Surviving Corporation.
SECTION 1.04. Certificate of Incorporation. The certificate of
incorporation of the Company immediately prior to the Effective Time shall be
the certificate of incorporation of the Surviving Corporation (the "Surviving
Certificate") until thereafter amended in accordance with the DGCL.
SECTION 1.05. Bylaws. The bylaws of Merger Sub immediately prior to the
Effective Time shall be the bylaws of the Surviving Corporation until thereafter
amended in accordance with the Surviving Certificate and the DGCL.
SECTION 1.06. Directors and Officers. From and after the Effective Time,
until their respective successors are duly elected or appointed and qualified in
accordance with applicable law, (a) the directors of Merger Sub at the Effective
Time shall be the directors of the Surviving Corporation and (b) the officers of
the Company at the Effective Time shall be the officers of the Surviving
Corporation.
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ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.01. Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of Merger Sub, the
Company or the holders of any of the following securities:
(a) Each share of the Common Stock issued and outstanding immediately
prior to the Effective Time (other than any shares of Common Stock to be
canceled pursuant to Section 2.01(b) and any Dissenting Shares (as defined
below)) shall be converted into the right to receive $57.25 in cash, without
interest (the "Merger Consideration"). At the Effective Time, each share of
Common Stock shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each certificate previously evidencing
any such share (other than shares to be canceled pursuant to Section 2.01(b) and
any Dissenting Shares) shall thereafter represent only the right to receive,
upon the surrender of such certificate in accordance with the provisions of
Section 2.02, an amount in cash per share equal to the Merger Consideration. The
holders of such certificates previously evidencing such shares of Common Stock
outstanding immediately prior to the Effective Time shall cease to have any
rights with respect to such shares of Common Stock except as otherwise provided
herein or by law.
(b) Each share of capital stock of the Company (i) held in the treasury of
the Company or by any wholly owned subsidiary of the Company or (ii) owned by
Merger Sub or any of its subsidiaries shall automatically be canceled, retired
and cease to exist without any conversion thereof and no payment shall be made
with respect thereto.
(c) Each share of common stock of Merger Sub outstanding immediately prior
to the Effective Time shall be converted into and become one share of common
stock of the Surviving Corporation and shall constitute the only outstanding
shares of capital stock of the Surviving Corporation.
SECTION 2.02. Exchange of Certificates and Cash. (a) Exchange Agent. On or
before the Closing Date, Merger Sub shall enter into an agreement providing for
the matters set forth in this Section 2.02 (the "Exchange Agent Agreement") with
a bank or trust company selected by Merger Sub and reasonably acceptable to the
Company (the "Exchange Agent"), authorizing such Exchange Agent to act as
Exchange Agent in connection with the Merger. Immediately prior to the Effective
Time, Merger Sub shall deposit or shall cause to be
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deposited with or for the account of the Exchange Agent, for the benefit of the
holders of shares of Common Stock (other than Dissenting Shares and shares to be
canceled pursuant to Section 2.01(b)), an amount in cash equal to the Merger
Consideration payable pursuant to Section 2.01(a) (such cash funds are hereafter
referred to as the "Exchange Fund").
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, Merger Sub will instruct the Exchange Agent to mail to each
holder of record of a certificate or certificates which immediately prior to the
Effective Time evidenced outstanding shares of Common Stock (other than
Dissenting Shares and shares to be canceled pursuant to Section 2.01(b)) (the
"Certificates"), (i) a form letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon proper delivery of the Certificates to the Exchange Agent and
shall be in such form and have such other provisions as Merger Sub may
reasonably specify) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Exchange Agent or to such other agent or
agents as may be appointed by Merger Sub, together with a letter of transmittal,
duly executed, and such other customary documents as may be required pursuant to
such instructions (collectively, the "Transmittal Documents"), the holder of
such Certificate shall be entitled to receive in exchange therefor the Merger
Consideration for each share of Common Stock formerly represented by such
Certificate, without any interest thereon, less any required withholding of
taxes, and the Certificate so surrendered shall thereupon be canceled. In the
event of a transfer of ownership of shares of Common Stock which is not
registered in the transfer records of the Company, the Merger Consideration may
be issued and paid in accordance with this Article II to the transferee of such
shares if the Certificate evidencing such shares of Common Stock is presented to
the Exchange Agent and is properly endorsed or otherwise in proper form for
transfer. The signature on the Certificate or any related stock power must be
properly guaranteed and the person requesting payment of the Merger
Consideration must either pay any transfer or other taxes required by reason of
the payment to a person other than the registered holder of the Certificate so
surrendered or establish to the Surviving Corporation that such tax has been
paid or is not applicable. The Merger Consideration will be delivered by the
Exchange Agent as promptly as practicable following surrender of a Certificate
and the related Transmittal Documents. Cash payments may be made by check unless
otherwise required by a depositary institution in connection with the book-entry
delivery of securities. No interest will be payable on such Merger
Consideration. Until surrendered in accordance with this Section 2.02, each
Certificate shall be deemed at any time after the Effective Time to evidence
only
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the right to receive, upon such surrender, the Merger Consideration for each
share of Common Stock formerly represented by such Certificate. The Exchange
Fund shall not be used for any purpose other than as set forth in this Article
II. Any interest, dividends or other income earned on the investment of cash
held in the Exchange Fund shall be for the account of the Surviving Corporation.
(c) Termination of Exchange Fund. Any portion of the Exchange Fund
(including the proceeds of any investments thereof) which remains undistributed
to the holders of Common Stock for one year following the Effective Time shall
be delivered to the Surviving Corporation, upon demand. Any holders of Common
Stock who have not theretofore complied with this Article II shall thereafter
look only to the Surviving Corporation for payment of the Merger Consideration.
(d) No Liability. None of Merger Sub, the Surviving Corporation or the
Company shall be liable to any holder of shares of Common Stock for any cash
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(e) Withholding Rights. The Surviving Corporation and the Exchange Agent
shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of shares of Common Stock such
amounts as the Surviving Corporation or the Exchange Agent is required to deduct
and withhold with respect to the making of such payment under the United States
Internal Revenue Code of 1986, as amended, or any provision of state, local or
foreign tax law. To the extent that amounts are so withheld by the Surviving
Corporation or the Exchange Agent, such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the holder of the shares
of Common Stock in respect of which such deduction and withholding was made by
the Surviving Corporation or the Exchange Agent.
(f) Lost, Stolen or Destroyed Certificates. In the event any Certificates
evidencing shares of Common Stock shall have been lost, stolen or destroyed, the
holder of such lost, stolen or destroyed Certificate(s) shall execute an
affidavit of that fact upon request. The holder of any such lost, stolen or
destroyed Certificate(s) shall also deliver a reasonable indemnity against any
claim that may be made against Merger Sub or the Exchange Agent with respect to
the Certificate(s) alleged to have been lost, stolen or destroyed. The affidavit
and any indemnity which may be required hereunder shall be delivered to the
Exchange Agent, who shall be responsible for making payment for such lost,
stolen or destroyed Certificates(s) pursuant to the terms hereof.
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SECTION 2.03. Stock Transfer Books. At the Effective Time, the stock
transfer books of the Company shall be closed, and there shall be no further
registration of transfers of shares of Common Stock thereafter on the records of
the Company. Any Certificates presented to the Exchange Agent or the Surviving
Corporation for any reason at or after the Effective Time shall be exchanged for
the Merger Consideration pursuant to the terms hereof.
SECTION 2.04. Stock Options; Payment Rights. (a) Subject to Sections
2.04(b) and 2.04(c), each Option (as defined below) other than any Options held
by Merger Sub which is outstanding immediately prior to the Effective Time,
whether or not then exercisable, shall be canceled and the Company Option Plans
(as defined below) shall be assumed by the Surviving Corporation, in each case
at and as of the Effective Time, and each holder of such canceled Options shall
be paid by the Surviving Corporation as soon as practicable, but in any event
within five days after the Effective Time, for each such Option, an amount
determined by multiplying (i) the excess, if any, of the Merger Consideration
over the applicable exercise price per share of such Option by (ii) the number
of shares issuable upon exercise of such Option, subject to any required
withholding of taxes.
(b) Prior to the Effective Time, the Company shall use its best efforts to
(i) obtain any consents from holders of the Options and (ii) make any amendments
to the terms of the Company Option Plans and any Options granted thereunder
that, in the case of either (i) or (ii) are necessary or appropriate to give
effect to the transactions contemplated by this Section 2.04.
(c) In lieu of the cancellation of Options referred to in Section 2.04(a)
hereof, prior to the Effective Time Merger Sub may, with the consent of the Com
pany (which consent will not be unreasonably withheld), enter into mutually
acceptable arrangements with any holder of Options providing that such holder's
Options will be treated in a manner other than as provided in Section 2.04(a);
provided, however, that in no event will such holder be paid at the Effective
Time an amount in cash in excess of the amount such holder would have received
had such holder's Options been cancelled in accordance with Section 2.04(a).
SECTION 2.05. Dissenting Shares. (a) Notwithstanding any other provision
of this Agreement to the contrary, shares of Common Stock that are outstanding
immediately prior to the Effective Time and which are held by stockholders (i)
who shall not have voted in favor of adoption of this Agreement and (ii) who
shall be entitled to and shall have demanded properly in writing appraisal for
such shares in accordance with Section 262 of the DGCL ("Dissenting Shares"),
shall not be converted into or represent the right to receive
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the Merger Consideration unless such stockholders fail to perfect, withdraw or
otherwise lose their right to appraisal. Such stockholders shall be entitled to
receive payment of the appraised value of such Dissenting Shares in accordance
with the provisions of the DGCL. If, after the Effective Time, any such
stockholder fails to perfect, withdraws or loses its right to appraisal, such
shares of Common Stock shall be treated as if they had been converted as of the
Effective Time into a right to receive the Merger Consideration, without
interest thereon, upon surrender of the Certificate or Certificates that
formerly evidenced such shares of Common Stock in the manner set forth in
Section 2.02.
(b) The Company shall give Merger Sub prompt notice of any demands for
appraisal received by it, withdrawals of such demands, and any other instruments
served pursuant to the DGCL and received by the Company and relating thereto.
Merger Sub shall direct all negotiations and proceedings with respect to demands
for appraisal under the DGCL. The Company shall not, except with the prior
written consent of Merger Sub, make any payment with respect to any demands for
appraisal, or offer to settle, or settle, any such demands.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Merger Sub that:
SECTION 3.01. Organization and Qualifications; Subsidiaries. The Company
and each significant subsidiary of the Company (a "Company Subsidiary") within
the meaning of Rule 1-02(w) of Regulation S-X under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), is a corporation, partnership or other
legal entity duly incorporated or organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization
and has the requisite power and authority and all necessary governmental
approvals, to own, lease and operate its properties and to carry on its business
as it is now being conducted, except where the failure to be so organized,
existing and in good standing would not have a Company Material Adverse Effect
(as defined below). The Company and each Company Subsidiary is duly qualified or
licensed and in good standing to do business in each jurisdiction where the
character of the properties owned, leased or operated by it or the nature of its
business makes such qualification or licensing necessary, except for such
failures to be so qualified or licensed and in good standing that
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would not, individually or in the aggregate, have a material adverse effect on
the business, assets, results of operations or financial condition of the
Company and the Company Subsidiaries, taken as a whole (a "Company Material
Adverse Effect").
SECTION 3.02. Certificate of Incorporation and Bylaws. Merger Sub has been
given access by the Company to a complete and correct copy of the certificate of
incorporation and the bylaws or equivalent organizational documents, each as
amended to the date hereof, of the Company and each Company Subsidiary. Such
certificates of incorporation, bylaws and equivalent organizational documents
are in full force and effect. Neither the Company nor any Company Subsidiary is
in violation of any provision of its certificate of incorporation, bylaws or
equivalent organizational documents.
SECTION 3.03. Capitalization. The authorized capital stock of the Company
consists of 7,000,000 shares of Common Stock and 100,000 shares of preferred
stock, par value $1.00 per share ("Preferred Stock"). As of October 31, 1998,
(a) 1,744,949 shares of Common Stock were outstanding, all of which were validly
issued, fully paid and nonassessable; (b) no shares of Preferred Stock were
issued and outstanding and no action had been taken by the Board of Directors of
the Company with respect to the designation of the rights and preferences of any
series of Preferred Stock; (c) 37,100 shares of Common Stock were reserved for
issuance upon the exercise of outstanding stock options (the "Options") granted
pursuant to the Company's 1981 Non-Qualified Stock Option and Stock Appreciation
Rights Plan and 1981 Incentive Stock Option and Stock Appreciation Rights Plan
(collectively, the "Company Option Plans"); (d) 357,311 shares of Common Stock
and no shares of Preferred Stock were held in the treasury of the Company; (e)
no Company Subsidiary owns any shares of the Company's capital stock; and (f)
there are no securities of any Company Subsidiary outstanding which are
convertible into or exercisable or exchangeable for capital stock of the
Company. Except as set forth above, no shares of capital stock or other voting
securities of the Company have been issued, are reserved for issuance or are
outstanding. All shares of Common Stock subject to issuance as aforesaid, upon
issuance on the terms and conditions specified in the instruments pursuant to
which they are issuable, will be duly authorized, validly issued, fully paid and
nonassessable.
SECTION 3.04. Authority Relative to This Agreement. The Company has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
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Company and the consummation by the Company of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action
and no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby
(other than, with respect to the Merger, the adoption of this Agreement by the
holders of (x) a majority of the aggregate voting power of the issued and
outstanding shares of Common Stock and (y) a majority of the aggregate voting
power of the issued and outstanding shares of Common Stock not owned by Merger
Sub or the members of the Management Group, (such votes being collectively
referred to as the "Company Stockholder Approval"), and the filing and
recordation of appropriate merger documents as required by, and in accordance
with, the DGCL). This Agreement has been duly and validly executed and delivered
by the Company and, assuming the due authorization, execution and delivery by
Merger Sub, constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the rights of
creditors generally and by general principles of equity.
SECTION 3.05. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by the Company do not, and the perfor
mance of this Agreement and the consummation of the transactions contemplated
hereby will not, (i) conflict with or violate the Company's Restated Certificate
of Incorporation, as amended to the date hereof (the "Company Charter"), or its
by-laws, or the certificate of incorporation, by-laws or other equivalent
organizational documents of any Company Subsidiary or (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to the
Company or any Company Subsidiary or by which any property or asset of the
Company or any Company Subsidiary is bound or affected, except, in the case of
clause (ii), for any such conflicts, violations, breaches, defaults or other
occurrences which (A) would not prevent or delay consummation of the Merger in
any material respect or otherwise prevent the Company from performing its
obligations under this Agreement in any material respect, and (B) would not,
individually or in the aggregate, have a Company Material Adverse Effect.
(b) The execution and delivery of this Agreement by the Company do not,
and the performance of this Agreement and the consummation of the Merger and the
other transactions contemplated hereby by the Company will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign (each a
"Governmental Entity"), except (i) for (A) any applicable requirements of the
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Exchange Act or the Securities Act of 1933, as amended (the "Securities Act"),
(B) the pre-merger notification requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations thereunder
(the "HSR Act"), (C) the filing and recordation of appropriate merger and
similar documents as required by the DGCL, (D) filings under the rules and
regulations of the American Stock Exchange, Inc. and (E) filings and consents
under any applicable foreign laws, including, without limitation, the antitrust
laws or laws intended to prohibit, restrict or regulate actions having the
purpose or effect of monopolization or restraint of trade and any filings and
consents which may be required by any foreign environmental, health or safety
laws or regulations pertaining to any notification, disclosure or required
approval triggered by the Merger or the transactions contemplated by this
Agreement, and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, (x) would
not prevent or delay consummation of the Merger in any material respect or
otherwise prevent the Company from performing its obligations under this
Agreement in any material respect, and (y) would not, individually or in the
aggregate, have a Company Material Adverse Effect.
SECTION 3.06. Opinion of Financial Advisor. Allen & Company Incorporated
has delivered to the Special Committee (as defined below) its opinion
substantially to the effect that, as of the date hereof, the consideration to be
received by the stockholders of the Company (other than Merger Sub and its
affiliates and members of the Management Group) pursuant to the Merger is fair
to such stockholders from a financial point of view.
SECTION 3.07. Board Approval. The Board of Directors of the Company, based
on the unanimous recommendation of the Special Committee of the Board of
Directors of the Company (the "Special Committee"), at a meeting duly called and
held and at which a quorum was present and voting, unanimously (a) determined
that this Agreement and the Merger are fair to and in the best interests of the
Company's stockholders (other than Merger Sub and its affiliates and members of
the Management Group), (b) approved this Agreement, the Merger and the other
transactions contemplated hereby, and (c) resolved to recommend approval and
adoption of this Agreement by the Company's stockholders.
SECTION 3.08. Brokers. No broker, finder or investment banker (other
than Allen & Company Incorporated) is entitled to any brokerage, finder's or
other fee or commission in connection with this Agreement, the Merger and the
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other transactions contemplated hereby based upon arrangements made by or on
behalf of the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MERGER SUB
Merger Sub hereby makes to the Company the representations and warranties
set forth below:
SECTION 4.01. Organization and Qualification. Merger Sub is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the requisite power and authority and all necessary
governmental approvals to own, lease and operate its properties and to carry on
its business as it is now being conducted. Merger Sub is duly qualified or
licensed and in good standing to do business in each jurisdiction where the
character of the properties owned, leased or operated by it or the nature of its
business makes such qualification or licensing necessary, except for such
failures to be so qualified or licensed and in good standing that would not,
individually or in the aggregate, have a material adverse effect on the
business, results of operations or financial condition of Merger Sub and its
subsidiaries, taken as a whole ("Merger Sub Material Adverse Effect").
SECTION 4.02. Authority Relative to This Agreement. Merger Sub has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Merger Sub
and the consummation by it of the transactions contemplated hereby have been
duly and validly authorized by the Board of Directors of Merger Sub and no other
corporate proceedings on the part of Merger Sub are necessary to authorize this
Agreement or to consummate such transactions (other than the filing and
recordation of appropriate merger documents as required by the DGCL). This
Agreement has been duly and validly executed and delivered by Merger Sub and,
assuming the due authorization, execution and delivery by the Company,
constitutes the legal, valid and binding obligation of Merger Sub, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally and by general
principles of equity.
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SECTION 4.03. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by Merger Sub do not, and the
consummation of the transactions contemplated hereby will not, (i) conflict with
or violate the certificate of incorporation or by-laws of Merger Sub, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to Merger Sub or by which any of its properties or assets are bound
or affected, or (iii) result in any breach of or constitute a default (or an
event which, with notice, lapse of time or both, would become a default) under,
result in the loss of a material benefit under or give to others any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a lien or other encumbrance on any properties or
assets of Merger Sub pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or any other instrument or
obligation to which Merger Sub is a party or by which Merger Sub or any of its
properties or assets is bound or affected, except in the case of clauses (ii)
and (iii), for any such conflicts, violations, breaches, defaults or other
occurrences which (x) would not prevent or delay consummation of the Merger in
any material respect or otherwise prevent Merger Sub from performing its
obligations under this Agreement in any material respect, or (y) would not,
individually or in the aggregate, have a Merger Sub Material Adverse Effect.
(b) The execution and delivery of this Agreement by Merger Sub do not, and
the performance of this Agreement and the consummation of the Merger and the
other transactions contemplated hereby by Merger Sub will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entity, except (i) for (A) any applicable requirements, if
any, of the Exchange Act, the Securities Act and state takeover laws, (B) the
pre-merger notification requirements of the HSR Act and (C) filing and
recordation of appropriate merger and similar documents as required by the DGCL
and (ii) where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not (x) prevent or
delay consummation of the Merger in any material respect or otherwise prevent
Merger Sub from performing its obligations under this Agreement in any material
respect, or (y) would not, individually or in the aggregate, have a Merger Sub
Material Adverse Effect.
SECTION 4.04. Brokers. No broker, finder or investment banker (other
than Lazard Freres & Co. LLC ("Lazard") and BancBoston Robertson Stephens
Inc.) is entitled to any brokerage, finder's or other fee or commission in
connection with this Agreement, the Merger and the other transactions
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contemplated hereby based upon arrangements made by or on behalf of Merger Sub
or the members of the Management Group.
SECTION 4.05. Financing. Merger Sub has delivered to the Company a true
and complete copy of a letter (the "Commitment Letter") executed by BankBoston,
N.A., European American Bank, The Chase Manhattan Bank, and BancBoston Robertson
Stephens Inc. describing the sources of financing for the transactions
contemplated by this Agreement. The amount provided pursuant to the Commitment
Letter will be sufficient to provide the funds required by Merger Sub to pay the
Merger Consideration pursuant to this Agreement and to pay all fees and expenses
required to be paid by Merger Sub in connection with the consummation of the
transactions contemplated by this Agreement. Merger Sub agrees to use its best
efforts to obtain the financing on the terms contemplated by the Commitment
Letter.
SECTION 4.06. Capitalization of Merger Sub. The authorized capital stock
of Merger Sub consists of 1,000 shares of Common Stock, par value $.01 per share
("Merger Sub Common Stock"). As of the date hereof, 200 shares of Merger Sub
Common Stock are outstanding, all of which were validly issued, fully paid and
nonassessable. Schedule 4.06 sets forth the ownership of the outstanding shares
of Merger Sub as of the date hereof.
SECTION 4.07. Investigation by Merger Sub. Merger Sub:
(a) acknowledges that, except as set forth in this Agreement, none of the
Company, any Company Subsidiary or any of their respective directors, officers,
employees, affiliates, agents or representatives makes any representation or
warranty, either express or implied, as to the accuracy or completeness of any
of the information provided or made available to Merger Sub or the members of
the Management Group or their agents, representatives or financing sources prior
to the execution of this Agreement; and
(b) agrees that, to the fullest extent permitted by law except as provided
by this Agreement, none of the Company, any Company Subsidiary or any of their
respective directors, officers, employees, stockholders, affiliates, agents or
representatives shall have any liability or responsibility whatsoever to Merger
Sub on any basis (including without limitation in contract, tort or otherwise)
based upon any information provided or made available, or statement made to
Merger Sub or the members of the Management Group prior to the execution of this
Agreement.
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ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.01. Conduct of Business by the Company Pending the Merger. The
Company covenants and agrees that, between the date of this Agreement and the
Effective Time, unless Merger Sub shall have consented (which consent shall not
be unreasonably withheld), neither the Company nor any Company Subsidiary shall:
(a) conduct its business in any manner other than in the ordinary course
of business consistent with past practice;
(b) amend or propose to amend its certificate of incorporation or by-laws;
(c) authorize for issuance, issue, grant, sell, pledge, redeem or acquire
for value any of its or their securities, including options, warrants,
commitments, stock appreciation rights, subscriptions, rights to purchase or
otherwise (other than the issuance of equity securities upon the conversion of
outstanding convertible securities or in connection with any dividend
reinvestment plan or any Benefit Plan with an employee stock fund or employee
stock ownership plan feature, consistent with applicable securities laws, or the
exercise of options or warrants outstanding as of the date of this Agreement and
in accordance with the terms of such options or warrants in effect on the date
of this Agreement);
(d) declare, set aside, make or pay any dividend or other distribution,
payable in cash, stock, property, or otherwise, with respect to any of its
capital stock or other equity interests, except for (i) the regular semi-annual
dividends of $.50 per share which shall be paid consistent with past practice
and (ii) dividends and other distributions declared and paid by a Company
Subsidiary only to the Company (and also to LAGS (USA) Inc. in the case of
Hudson General LLC), or subdivide, reclassify, recapitalize, split, combine or
exchange any of its shares of capital stock;
(e) take any action, other than reasonable and usual actions in the
ordinary course of business and consistent with past practice, with respect to
accounting policies or procedures (including tax accounting policies and
procedures);
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(f) take any action that would, or could reasonably be expected to result
in, any of its representations and warranties set forth in this Agreement being
untrue or in any of the conditions to the Merger set forth in Article VII not
being satisfied; or
(g) authorize any of, or commit or agree to take any of, the foregoing
actions.
ARTICLE VI
ADDITIONAL COVENANTS
SECTION 6.01. Access to Information; Confidentiality. From the date hereof
to the Effective Time, the Company shall (and shall cause the Company
Subsidiaries and the officers, directors, employees, auditors and agents of the
Com pany and each of the Company Subsidiaries to) afford the officers, employees
and agents of Merger Sub (the "Merger Sub Representatives") reasonable access at
all reasonable times to its officers, employees, agents, properties, offices,
plants and other facilities, books and records, and shall furnish such Merger
Sub Representatives with all financial, operating and other data and information
as may from time to time be reasonably requested. Merger Sub agrees to be bound
by the terms of the Confidentiality Agreement, dated as of June 29, 1998,
between the Company and Jay B. Langner (the "Confidentiality Agreement").
SECTION 6.02. Proxy Statement; Schedule 13E-3. (a) As soon as practicable
after the date of this Agreement, the Company shall prepare and file with the
SEC a proxy statement, in form and substance reasonably satisfactory to Merger
Sub, relating to the meeting of the Company's stockholders to be held in
connection with the Merger (together with any amendments thereof or supplements
thereto, the "Proxy Statement"). Merger Sub shall furnish to the Company such
information concerning itself as the Company may reasonably request in
connection with the preparation of the Proxy Statement. The Proxy Statement will
comply in all material respects with applicable federal securities laws, except
that no representation is made by the Company with respect to information
supplied by Merger Sub for inclusion in the Proxy Statement. As promptly as
practicable after the Proxy Statement has been cleared by the SEC, the Company
shall mail the Proxy Statement to its stockholders. The Proxy Statement shall
include the opinion of Allen & Company Incorporated referred to in Section 3.06
hereof.
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(b) The information provided by each of the Company and Merger Sub for use
in the Proxy Statement shall not, at (i) the time the Proxy Statement (or any
amendment thereof or supplement thereto) is first mailed to the stockholders of
the Company or (ii) the time of the Company stockholders' meeting contemplated
by such Proxy Statement, 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 not misleading. If at any time prior to the
Effective Time any event or circumstance relating to any party hereto, or their
respective officers or directors, should be discovered by such party which
should be set forth in an amendment or a supplement to the Proxy Statement, such
party shall promptly inform the Company and Merger Sub thereof and take
appropriate action in respect thereof.
(c) As soon as practicable after the date of this Agreement, Merger Sub,
members of the Management Group and the Company shall file with the SEC a Rule
13E-3 Transaction Statement on Schedule 13E-3 ("Schedule 13E-3"), with respect
to the Merger. Each of the parties hereto agrees to use its reasonable best
efforts to cooperate and to provide each other with such information as any of
such parties may reasonably request in connection with the preparation of the
Schedule 13E-3. The information provided by each of the Company and Merger Sub
for use in the Schedule 13E-3 shall not, at the time the Schedule 13E-3 is filed
with the SEC, 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 not misleading. Each party hereto agrees promptly to
supplement, update and correct any information provided by it for use in the
Schedule 13E-3 if and to the extent that it is or shall have become incomplete,
false or misleading.
SECTION 6.03. Action by Stockholders. Except as otherwise required by the
fiduciary duties of the Board of Directors of the Company (as determined in good
faith by the Special Committee after consulting with its outside legal counsel):
(a) the Company, acting through its Board of Directors, shall, in accordance
with applicable law, the Company Charter and the Company's bylaws, duly call,
give notice of, convene and hold a special meeting of stockholders (the "Company
Stockholders' Meeting") as soon as practicable after the date of this Agreement
for the purpose of adopting this Agreement and (b) the Company will, through the
Board of Directors based on the recommendation of the Special Committee, (i)
recommend to its stockholders the adoption of this Agreement, and (ii) use its
best efforts to obtain the Company Stockholder Approval. Merger Sub shall vote
all shares of Common Stock owned by it in favor of the adoption of this
Agreement.
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SECTION 6.04. No Solicitation. The Company shall not, and shall not
authorize or permit any of its officers, directors, employees or agents to
directly or indirectly, solicit, encourage, participate in or initiate
discussions or negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group (other than Merger
Sub, any of its affiliates or representatives) (collectively, a "Person")
concerning any merger, consolidation, tender offer, exchange offer, sale of all
or substantially all of the Company's assets, sale of shares of capital stock or
similar business combination transaction involving the Company or any principal
operating or business unit of the Company or its Subsidiaries (an "Acquisition
Proposal"). Notwithstanding the foregoing, (i) if the Company or the Special
Committee receives an unsolicited, written indication of a willingness to make
an Acquisition Proposal at a price per share which the Special Committee
reasonably concludes is in excess of the Merger Consideration from any Person
and if the Special Committee reasonably concludes, based upon advice of its
financial advisor, that the Person delivering such indication is capable of
consummating such an Acquisition Proposal (based upon, among other things, the
availability of financing and the capacity to obtain financing, the expectation
of receipt of required antitrust and other regulatory approvals and the identity
and background of such Person), then the Company or the Special Committee may,
directly or indirectly, provide access to or furnish or cause to be furnished
information concerning the Company's business, properties or assets to any such
Person pursuant to an appropriate confidentiality agreement and the Company or
the Special Committee may engage in discussions related thereto, and (ii) the
Company or the Special Committee may participate in and engage in discussions
and negotiations with any Person meeting the requirement set forth in clause (i)
above in response to a written Acquisition Proposal if the Special Committee
concludes, upon advice of its legal counsel, that the failure to engage in such
discussions or negotiations would be inconsistent with the Special Committee's
(and the Board's) fiduciary duties to the Company's stockholders under
applicable law. In the event that, after the Company has received a written
Acquisition Proposal (without breaching its obligations under clause (i) or (ii)
above) but prior to obtaining the Company Stockholder Approval of the Merger,
the Special Committee determines, in good faith and upon advice of its financial
advisor and legal counsel, that it is necessary to do so in order to comply with
its fiduciary duties to the Company's stockholders under applicable law, the
Special Committee may do any or all of the following: (x) withdraw or modify the
Board of Directors' approval or recommendation of the Merger or this Agreement,
(y) approve or recommend an Acquisition Proposal and (z) terminate this
Agreement. Furthermore, nothing contained in this Section 6.04 shall prohibit
the Company or its Board of Directors, upon the recommendation of the Special
Committee, from taking and disclosing to the Company's stockholders a position
with respect to a
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tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a)
promulgated under the Exchange Act or from making such disclosure to the
Company's stockholders or otherwise which, in the judgment of the Special
Committee upon advice of legal counsel, is necessary under applicable law or
rules of any stock exchange. The Company shall promptly (but in any event within
two days) advise Merger Sub in writing of any Acquisition Proposal or any
inquiry regarding the making of an Acquisition Proposal including any request
for information, the material terms and conditions of such request, Acquisition
Proposal or inquiry and the identity of the Person making such request,
Acquisition Proposal or inquiry. The Company will, to the extent reasonably
practicable, keep Merger Sub fully informed of the status and details (including
amendments or proposed amendments) of any such request, Acquisition Proposal or
inquiry.
SECTION 6.05. Directors' and Officers' Insurance and Indemnification. (a)
From and after the consummation of the Merger, the parties shall, and shall
cause the Surviving Corporation to, indemnify, defend and hold harmless any
person who is now, or has been at any time prior to the date hereof, or who
becomes prior to the Effective Time, an officer or director (the "Indemnified
Party") of the Company and its subsidiaries against all losses, claims, damages,
liabilities, costs and expenses (including attorneys' fees and expenses),
judgments, fines, losses, and amounts paid in settlement, with the written
approval of the Surviving Corporation (which approval shall not be unreasonably
withheld), in connection with any actual or threatened action, suit, claim,
proceeding or investigation (each a "Claim") to the extent that any such Claim
is based on, or arises out of, (i) the fact that such person is or was a
director, officer, employee or agent of the Company or any subsidiaries or is or
was serving at the request of the Company or any of its subsidiaries as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or (ii) this Agreement, or any of the
transactions contemplated hereby, in each case to the extent that any such Claim
pertains to any matter or fact arising, existing, or occurring prior to or at
the Effective Time, regardless of whether such Claim is asserted or claimed
prior to, at or after the Effective Time, to the full extent permitted under
Delaware law or the Company's Certificate of Incorporation, Bylaws or
indemnification agreements in effect at the date hereof, including provisions
relating to advancement of expenses incurred in the defense of any action or
suit. Without limiting the foregoing, in the event any Indemnified Party becomes
involved in any capacity in any Claim, then from and after consummation of the
Merger, the parties shall cause the Surviving Corporation to, periodically
advance to such Indemnified Party its legal and other expenses (including the
cost of any investigation and preparation incurred in connection
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therewith), subject to the provision by such Indemnified Party of an undertaking
to reimburse the amounts so advanced in the event of a final non-appealable
determination by a court of competent jurisdiction that such Indemnified Party
is not entitled thereto,
(b) Merger Sub and the Company agree that all rights to
indemnification and all limitations on liability existing in favor of the
Indemnified Party as provided in the Company's Certificate of Incorporation and
By-laws as in effect as of the date hereof shall survive the Merger and shall
continue in full force and effect, without any amendment thereto, for a period
of six years from the Effective Time to the extent such rights are consistent
with the DGCL; provided that in the event any claim or claims are asserted or
made within such six year period, all rights to indemnification in respect of
any such claim or claims shall continue until disposition of any and all such
claims; provided further, that any determination required to be made with
respect to whether an Indemnified Party's conduct complies with the standards
set forth under Delaware law, the Company's Certificate of Incorporation or
By-laws or such agreements, as the case may be, shall be made by independent
legal counsel selected by the Indemnified Party and reasonably acceptable to the
Surviving Corporation; and, provided further, that nothing in this Section 6.05
shall impair any rights or obligations of any present or former directors or
officers of the Company.
(c) In the event the Surviving Corporation or any of its successors or
assigns (i) consolidates with or merges into any other person and shall not be
the continuing or surviving corporation or entity of such consolidation or
merger, or (ii) transfers or conveys all or substantially all of its properties
and assets to any person, then, and in each such case, to the extent necessary
to effectuate the purposes of this Section 6.05, proper provision shall be made
so that the successors and assigns of the Surviving Corporation assume the
obligations set forth in this Section 6.05 and none of the actions described in
clauses (i) or (ii) shall be taken until such provision is made.
(d) The parties shall cause the Surviving Corporation to maintain the
Company's existing officers' and directors' liability insurance policy ("D&O
Insurance") for a period of not less than six years after the Effective Date;
provided, that the Surviving Corporation may substitute therefor policies of
substantially similar coverage and amounts containing terms no less advantageous
to such former directors or officers so long as such substitution does not
result in gaps or lapses in coverage; provided, further, if the existing D&O
Insurance expires or is cancelled during such period, Merger Sub or the
Surviving Corporation will use its best efforts to obtain substantially similar
D&O Insurance;
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provided, however, that if the aggregate annual premiums for such D&O Insurance
(or successor insurance policy) at any time during such period exceed 200% of
the per annum rate of premiums currently paid by the Company for such insurance
on the date of this Agreement, then the parties will cause the Surviving
Corporation to, and the Surviving Corporation will, provide the maximum coverage
that shall then be available at an annual premium equal to 200% of such rate.
(e) This Section 6.05 is intended to be for the benefit of, and shall be
enforceable by, the Indemnified Parties, their heirs and personal
representatives, and shall be binding on the Surviving Corporation and its
respective successors and assigns.
SECTION 6.06. Further Action; Best Efforts.
(a) Upon the terms and subject to the conditions hereof, each of the
parties hereto shall (i) make promptly its respective filings and thereafter
make any other required submissions under the HSR Act with respect to the Merger
and the other transactions contemplated hereby, and (ii) use its reasonable best
efforts to take, or cause to be taken, all appropriate action, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations or otherwise to consummate and make effective the Merger
and the other transactions contemplated hereby, including, without limitation,
using its reasonable best efforts to obtain (x) the Financing and (y) all
licenses, permits, waivers, orders, consents, approvals, authorizations,
qualifications and orders of Governmental Entities and parties to contracts with
the Company and the Company Subsidiaries as are necessary for the consummation
of the Merger and the other transactions contemplated hereby.
(b) Notwithstanding the provisions of Section 6.06(a), nothing contained
in this Agreement shall obligate Merger Sub to take any action to consummate the
Merger and the other transactions contemplated hereby, the consummation of which
is dependent or conditioned on the receipt of any governmental or regulatory
approval or consent, in the event that the approval or consent so received
specifically includes conditions or restrictions in addition to those imposed by
laws and regulations of general applicability as in effect from time to time
(including conditions in addition to those imposed by existing laws and
regulations which require the prior approval of any governmental or regulatory
agency to the taking of any action or the consummation of any transaction), the
direct or indirect effect of which is or would be, to restrict, limit or
otherwise subject to penalty Merger Sub in the ownership of its assets or the
conduct of its business. For purposes of the foregoing, a condition, restriction
or
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limitation arising out of any such approval or consent shall be deemed to be a
restriction or limitation on Merger Sub (regardless of whether Merger Sub is a
party to or otherwise legally obligated by such consent or approval) to the
extent that the taking of an action or the consummation of a transaction by
Merger Sub would result in Merger Sub, the Company or any Company Subsidiary
being in breach or violation of such consent or approval or otherwise causing
such consent or approval to terminate or expire.
(c) In case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement, the proper
officers and directors of each party to this Agreement shall use their
reasonable best efforts to take all such action.
SECTION 6.07. Public Announcements. Merger Sub and the Company shall
consult with each other before issuing any press release or otherwise making any
public statements with respect to this Agreement or the transactions
contemplated hereby and shall not issue any such press release or make any such
public statement without the prior consent of the other party, which consent
shall not be unreasonably withheld; provided, however, that a party may, without
the prior consent of the other party, issue such press release or make such
public statement as may be required by law, regulation or any listing agreement
or arrangement to which the Company or Merger Sub is a party with a national
securities exchange or the Nasdaq Stock Market if it has used all reasonable
efforts to consult with the other party and to obtain such party's consent but
has been unable to do so in a timely manner.
SECTION 6.08. Conveyance Taxes. Merger Sub and the Company 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.
SECTION 6.09. Employee Benefits. For the one-year period immediately
following the Effective Time, the coverage and benefits provided to those
individuals who are employees of the Company immediately prior to the Effective
Time (the "Employees") pursuant to employee benefit plans or arrangements
maintained by the Surviving Corporation shall not be, in the aggregate,
materially less favorable than the coverage benefits provided to the Employees
immediately prior to the Effective Time.
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SECTION 6.10. Commitment Letter Notices. Following receipt by Merger Sub
or any of its affiliates of any written or oral communication to the effect that
the banks that are parties to the Commitment Letter are contemplating not
providing the financing for the Merger or the terminating or cancelling or
modifying in any respect of the Commitment Letter, or that the financing for the
Merger is unlikely to be obtained, Merger Sub shall immediately communicate such
event to the Company and provide the Company with a true and complete copy of
any such written communication.
SECTION 6.11. Knowledge of Breach. If prior to the Closing Merger Sub or
any member of the Management Group shall have actual knowledge of any breach of
a representation and warranty or covenant of the Company, Merger Sub shall
promptly notify the Company of such knowledge, including the basis of such
belief set forth in reasonable detail. If an officer of Merger Sub or any member
of the Management Group had actual knowledge prior to the execution of this
Agreement of a breach by the Company of any representation, warranty, covenant,
agreement or condition of this Agreement, such breach shall not be deemed to be
a breach of this Agreement for any purpose hereunder, and neither Merger Sub nor
any member of the Management Group shall have any claim or recourse against the
Company or its directors, officers, employees, affiliates, controlling persons,
agents, advisors or representatives with respect to such breach.
ARTICLE VII
CLOSING CONDITIONS
SECTION 7.01. Conditions to Obligations of Each Party to Effect the
Merger. The respective obligations of each party to effect the Merger and the
other transactions contemplated hereby shall be subject to the satisfaction at
or prior to the Effective Time of the following conditions, any or all of which
may be waived, in whole or in part, to the extent permitted by applicable law:
(a) Stockholder Approval. The Company Stockholder Approval shall
have been obtained.
(b) No Order. No Governmental Entity or federal or state court of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, executive order, decree, injunction or
other order (whether temporary, preliminary or permanent) which is in effect and
which materially restricts, prevents or prohibits consummation of the Merger or
the other
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transactions contemplated by this Agreement; provided, however, that the parties
shall use their reasonable best efforts (subject to Section 6.06(b)) to cause
any such decree, judgment, injunction or other order to be vacated or lifted.
(c) HSR Act. Any waiting period applicable to the consummation of the
Merger under the HSR Act shall have expired or been terminated, and no action
shall have been instituted by the Department of Justice or the Federal Trade
Commission challenging or seeking to enjoin the consummation of the Merger,
which action shall not have been withdrawn or terminated.
SECTION 7.02. Additional Conditions to Obligations of Merger Sub. The
obligation of Merger Sub to effect the Merger is also subject to satisfaction or
waiver of the following conditions:
(a) Representations and Warranties. Each of the representations and
warranties of the Company contained in this Agreement, shall be true and
correct, in each case as of the Effective Time as though made on and as of the
Effective Time, except (i) for changes specifically permitted by this Agreement
and (ii) that those representations and warranties which address matters only as
of a particular date shall remain true and correct as of such date and (iii)
where the failure to be true and correct would not, individually or in the
aggregate with all other such failures, have a Company Material Adverse Effect.
(b) Agreement and Covenants. The Company shall have performed or complied
in all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it at or prior to the Effective
Time.
(c) Financing. Merger Sub shall have obtained the financing (the
"Financing") described in the Commitment Letter attached hereto as Annex A, and
the proceeds of such Financing shall have been received by or made immediately
available to Merger Sub at or immediately prior to the Closing.
(d) Dissenting Shares. On the Closing Date, Dissenting Shares shall
aggregate no more than 7.5% of the then outstanding shares of Common Stock.
(e) Material Adverse Effect. Subsequent to the date of this Agreement,
there shall not have occurred an event or events which, individually or in the
aggregate, has had or could reasonably be expected to have a Company Material
Adverse Effect, provided, however, that, for the purposes of this Section
7.01(e), the following shall be excluded from the definition of "Company
Material Adverse
23
<PAGE>
Effect" and from any determination as to whether a Company Material Adverse
Effect has occurred or may occur with respect to the Company: the effects of
changes that are applicable to (A) the United States and Canada aviation ground
services business generally, (B) the United States and Canadian economy
generally or (C) the United States securities markets generally.
(f) Officer's Certificate. Merger Sub shall have received a certificate of
an appropriate officer of the Company to the effect that the conditions set
forth in Section 7.02(a), (b), (d) and (e) have been satisfied at the Effective
Time.
SECTION 7.03. Additional Conditions to Obligations of the Company.
The obligation of the Company to effect the Merger is also subject to the
satisfaction or waiver of the following conditions:
(a) Representations and Warranties. Each of the representations and
warranties of Merger Sub contained in this Agreement shall, if qualified by
materiality, be true and correct, and if not so qualified, be true and correct
in all material respects, in each case as of the Effective Time as though made
on and as of the Effective Time, except (i) for changes specifically permitted
by this Agreement and (ii) that those representations and warranties which
address matters only as of a particular date shall remain true and correct as of
such date.
(b) Agreement and Covenants. Merger Sub shall have performed or complied
in all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it at or prior to the Effective
Time.
(c) Officer's Certificate. The Company shall have received a certificate
of an appropriate officer of Merger Sub to the effect that the conditions set
forth in Section 7.03(a) and (b) have been satisfied at the Effective Time.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination. This Agreement may be terminated at any
time prior to the Effective Time, whether before or after adoption of this
Agreement by the stockholders of the Company:
24
<PAGE>
(a) by mutual consent of the Company (acting through the Special
Committee) and Merger Sub;
(b) by Merger Sub upon a material breach of any covenant or agreement on
the part of the Company set forth in this Agreement which has not been cured, or
if any representation or warranty of the Company shall have become untrue in any
material respect, in either case such that such breach or untruth is incapable
of being cured prior to April 30, 1999;
(c) by the Company upon a material breach of any covenant or agreement on
the part of Merger Sub set forth in this Agreement which has not been cured, or
if any representation or warranty of the Company or Merger Sub shall have become
untrue in any material respect, in either case such that such breach or untruth
is incapable of being cured prior to April 30, 1999;
(d) by either Merger Sub or the Company, if any permanent injunction,
order, decree, ruling or other action by any Governmental Entity preventing the
consummation of the Merger shall have become final and nonappealable;
(e) by either Merger Sub or the Company, if the Merger shall not have been
consummated before April 30, 1999 (provided that the right to terminate this
Agreement under this Section 8.01(e) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of or
resulted in the failure of the Effective Time to occur on or before such date);
(f) by Merger Sub if: (i) the Board of Directors of the Company (acting
through the Special Committee) shall withdraw, modify or change its
recommendation so that it is not in favor of this Agreement or the Merger or
shall have resolved to do any of the foregoing; (ii) the Board of Directors of
the Company (acting through the Special Committee) shall have recommended or
resolved to recommend to its stockholders an Acquisition Proposal; or (iii) the
stockholder approval required pursuant to Section 7.01(a) shall not have been
obtained by April 30, 1999;
(g) by the Company (acting through the Special Committee) as provided in
Section 6.04; and
(h) by the Company (acting through the Special Committee) if it has
received a notice from Merger Sub that the Commitment Letter has been terminated
or cancelled.
25
<PAGE>
The right of any party hereto to terminate this Agreement pursuant to this
Section 8.01 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any party hereto, any person
controlling any such party or any of their respective officers or directors,
whether prior to or after the execution of this Agreement.
SECTION 8.02. Effect of Termination. Except as provided in Section 8.05 or
Section 9.01(b), in the event of the termination of this Agreement pursuant to
Section 8.01, this Agreement shall forthwith become void, there shall be no
liability on the part of any party hereto, or any of their respective officers
or directors, to the other and all rights and obligations of any party hereto
shall cease; provided, however, that nothing herein shall relieve any party from
liability for the wilful breach of any of its representations, warranties,
covenants or agreements set forth in this Agreement.
SECTION 8.03. Amendment. Before or after adoption of this Agreement by the
stockholders of the Company, this Agreement may be amended by the parties hereto
at any time prior to the Effective Time; provided, however, that (a) any such
amendment shall, on behalf of the Company, have been approved by the Special
Committee and (b) after adoption of this Agreement by the stockholders of the
Company, no amendment which under applicable law may not be made without the
approval of the stockholders of the Company may be made without such approval.
This Agreement may not be amended except by an instrument in writing signed by
the parties hereto.
SECTION 8.04. Waiver. At any time prior to the Effective Time, either the
Company (acting through the Special Committee), on the one hand, or Merger Sub,
on the other, may (a) extend the time for the performance of any of the
obligations or other acts of the other party hereto, (b) waive any inaccuracies
in the representations and warranties of the other party contained herein or in
any document delivered pursuant hereto and (c) waive compliance by the other
party with any of the agreements or conditions contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by the party or parties to be bound thereby and, with respect to
extensions or waivers granted by the Company, if the Special Committee shall
have approved such waiver or extension.
SECTION 8.05. Fees, Expenses and Other Payments. (a) Subject to paragraph
(b) of this Section 8.05, all costs and expenses (including any expenses related
to any claims or litigation in connection with the transactions contemplated by
this Agreement, or any settlement thereof), including, without limitation, fees
26
<PAGE>
and disbursements of counsel, financial advisors and accountants and other
out-of-pocket expenses, incurred or to be incurred by the parties hereto in
connection with the transactions contemplated hereby (with respect to such
party, its "Expenses"), shall be borne solely and entirely by the party which
has incurred such costs and expenses; provided, however, that all costs and
expenses related to printing and mailing the Proxy Statement shall be borne by
the Company.
(b) The Company agrees that it will, promptly following receipt of
reasonable supporting documentation, pay to Merger Sub the reasonable Expenses
incurred by Merger Sub in connection with the transactions contemplated by this
Agreement, including any fees or expenses payable pursuant to the Commitment
Letter upon such termination, (x) up to a maximum reimbursement amount of
$1,750,000, if this Agreement shall be terminated by Merger Sub pursuant to
clause (i) and (ii) of Section 8.01(f) hereof or if this Agreement is terminated
by the Company pursuant to Section 8.01(g) hereof and (y) up to a maximum
reimbursement amount of $875,000, if this Agreement shall be terminated by
Merger Sub pursuant to clause (iii) of Section 8.01(f) hereof.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Effectiveness of Representations, Warranties and Agreements.
(a) Except as set forth in Section 9.01(b), the representations, warranties and
agreements of each party hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any other party
hereto, any person controlling any such party or any of their respective
officers or directors, whether prior to or after the execution of this
Agreement.
(b) The representations, warranties and agreements in this Agreement shall
terminate at the Effective Time or upon the termination of this Agreement
pursuant to Article VIII, except that the agreements set forth in Articles I, II
and IX and Section 6.05 shall survive the Effective Time and those set forth in
the last sentence of Section 6.01 and Sections 8.02 and 8.05 and Article IX
shall survive termination.
SECTION 9.02. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered or transmitted, and shall be effective upon
receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at
27
<PAGE>
such other address for a party as shall be specified by like changes of address)
or sent by electronic transmission to the telecopier number specified below:
(a) If to Merger Sub:
c/o Jay B. Langner
River Acquisition Corp.
111 Great Neck Road
P.O. Box 355
Great Neck, NY 11022
Telecopier No.: (516) 773-0343
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Simeon Gold, Esq.
Telecopier No.: (212) 310-8007
(b) If to the Company:
Hudson General Corporation
111 Great Neck Road
P.O. Box 355
Great Neck, NY 11022
Attention: Chief Executive Officer
Telecopier No.: (516) 773-0343
with separate copies to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Daniel E. Stoller, Esq.
Telecopier No.: (212) 735-2000
SECTION 9.03. Certain Definitions. For purposes of this Agreement, the
term:
28
<PAGE>
(a) "affiliate" means a person that, directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control
with, the first mentioned person;
(b) "business day" means any day other than a day on which (i) banks in
the State of New York are authorized or obligated to be closed or (ii) the SEC
or The American Stock Exchange, Inc. is closed;
(c) "control" (including the terms "controlled," "controlled by" and
"under common control with") means the possession, directly or indirectly or as
trustee or executor, of the power to direct or cause the direction of the
management or polices of a person or entity, whether through the ownership of
stock or as trustee or executor, by contract or credit arrangement or otherwise;
and
(d) "Management Group" means those persons listed on Schedule 9.03(d).
(e) "person" means any person or any corporation, partnership, limited
liability company or other legal entity.
(f) "subsidiary" or "subsidiaries" of any person means any corporation,
partnership, joint venture or other legal entity of which such person (either
alone or through or together with any other subsidiary) owns, directly or
indirectly, at least a majority of the securities or other interests having by
their terms ordinary voting power to elect a majority of the Board of Directors
or others performing similar functions with respect to such corporation or other
organization.
SECTION 9.04. Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9.05. Severability. If any term or other provision of this Agree
ment is invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an
29
<PAGE>
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
SECTION 9.06. Entire Agreement. This Agreement, together with the
Confidentiality Agreement and the other documents delivered in connection
herewith, constitutes the entire agreement of the parties and supersedes all
prior agreements and undertakings including, without limitation, the letter
agreement dated July 9, 1998 relating to reimbursement of expenses, both written
and oral, between the parties, or any of them, with respect to the subject
matter hereof.
SECTION 9.07. Assignment. This Agreement shall not be assigned by
operation of law or otherwise and any purported assignment shall be null and
void, provided that Merger Sub may assign its rights, but not its obligations,
under this Agreement to any of its subsidiaries.
SECTION 9.08. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied (other than the provisions of Section 6.05, which
provisions are intended to benefit and may be enforced by the beneficiaries
thereof), is intended to or shall confer upon any person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 9.09. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, without
regard to the conflict of laws rules thereof.
SECTION 9.10. Submission to Jurisdiction; Waivers. Each party hereto
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
brought by the other party hereto or its successors or assigns may be brought
and determined in the Court of Chancery, or other courts, of the State of
Delaware, and each party hereto hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect to its property, generally
and unconditionally, to the nonexclusive jurisdiction of the aforesaid courts.
Each party hereto hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (a) the defense of sovereign immunity, (b) any
claim that it is not personally subject to the jurisdiction of the courts for
any reason other than the failure to serve process in accordance with this
Section 9.10, (c) that it, or its property, is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of
30
<PAGE>
notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise), and (d) to the fullest extent
permitted by applicable law, that (i) the suit, action or proceeding in any such
court is brought in an inconvenient forum, (ii) the venue of such suit, action
or proceeding is improper and (iii) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts.
SECTION 9.11. Enforcement of this Agreement. (a) The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. 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, this being in
addition to any other remedy to which they are entitled at law or in equity.
(b) The parties hereto acknowledge and agree that no director, officer,
employee, stockholder, affiliate or representative of Merger Sub shall have any
liability whatsoever for any obligation or liability of Merger Sub.
SECTION 9.12. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
31
<PAGE>
IN WITNESS WHEREOF, the Company and Merger Sub have caused this Agreement
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
COMPANY:
HUDSON GENERAL CORPORATION
By: /s/ Michael Rubin
---------------------------------------
Name: Michael Rubin
Title: President
MERGER SUB:
RIVER ACQUISITION CORP.
By: /s/ Jay B. Langner
---------------------------------------
Name: Jay B. Langner
Title: Chairman
32
Exhibit 3
Jay B. Langner Richard D. Segal
c/o Hudson General c/o Hudson General
Corporation Corporation
111 Great Neck Road 111 Great Neck Road
Great Neck, NY 11021 Great Neck, NY 11021
November 22, 1998
Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11021
Gentlemen:
Reference is hereby made to the Agreement and Plan of Merger (the
"Merger Agreement"), dated as of the date hereof, between Hudson General
Corporation (the "Company") and River Acquisition Corp. (the "Merger Sub"). As
of the Effective Time, subject to the satisfaction or waiver of all of the
closing conditions contained in Article VII of the Merger Agreement, we hereby
agree, jointly and severally, to contribute 280,000 shares of Common Stock, par
value $1.00 per share ("Common Stock"), of the Company to the Merger Sub;
provided, however, that the number of shares contributed to Merger Sub shall be
reduced on a share by share basis for (i) any shares of Common Stock that are
contributed by other investors to Merger Sub and (ii) up to 35,000 options to
purchase shares of Common Stock retained by other members of the Management
Group in lieu of cancellation pursuant to the Merger. Capitalized terms used but
not otherwise defined herein shall have the respective meanings ascribed thereto
in the Merger Agreement.
If the foregoing is acceptable to you, kindly acknowledge your
agreement by countersigning this letter agreement below.
Very truly yours,
/s/ Jay B. Langner
-----------------------------------
Jay B. Langner
/s/ Richard D. Segal
-----------------------------------
Richard D. Segal
ACKNOWLEDGED AND AGREED:
HUDSON GENERAL CORPORATION
By: /s/ Michael Rubin
------------------------------------
Name: Michael Rubin
Title: President
NYFS10...:\80\57780\0003\2475\LTRN218T.00A
Exhibit 4
November 20, 1998
River Acquisition Corp.
Jay B. Langner
Suite 600
111 Great Neck Road
Great Neck, New York 11021
Re: River Acquisition Corp. Commitment Letter
-----------------------------------------
Ladies and Gentlemen:
We are pleased to confirm the commitments of each of BankBoston, N.A.
("BKB"), European American Bank ("EAB") and The Chase Manhattan Bank ("Chase"
and together with BKB and EAB, the "Initial Lenders"), subject to the terms and
conditions in this letter and in the Summary Terms and Conditions (as defined
and referred to below), to provide a senior secured financing (the "Financing")
in an aggregate amount not to exceed $59,579,865 or such lesser amount as is
calculated in accordance with Annex X attached hereto depending upon the price
per share for completion of the Recapitalization (as defined below) on a
several, ratable basis according to the respective percentages set forth
opposite our names on the signature pages hereto. The Financing will finance the
payment by a newly formed special purpose acquisition vehicle (the "HGC
Borrower") to be formed by Jay B. Langner and certain other individuals
(collectively, the "Investors") of the merger consideration for the acquisition
by the HGC Borrower of 100% of the capital stock of Hudson General Corporation,
a Delaware corporation ("HGC") not otherwise contributed by the Investors to the
HGC Borrower pursuant to the terms of a proposed cash-out merger transaction
(the "Recapitalization").
The HGC Borrower will secure its obligations under the HGC Facility
with substantially all of its assets, including, upon the consummation of the
Recapitalization, the assets of HGC. All subsidiaries of the HGC Borrower and
HGC (other than Hudson General LLC ("LLC"), Hudson Kohala, Inc. and other
subsidiaries described as Excluded Subsidiaries in the Summary Terms and
Conditions (as hereinafter defined)) will, contemporaneously with the
consummation of the Recapitalization, guaranty the obligations of the HGC
Borrower under the Financing and will secure their obligations under such
guaranty with substantially all of their assets. BKB will act as agent (the
"Agent") for itself, the other Initial Lenders and any other lending
institutions which may become party to the Financing (collectively with BKB, the
"Lenders"), and BancBoston Robertson Stephens Inc. ("BRS") will act as the
exclusive arrangement agent and arranger for the Lenders (the "Arranger") with
respect to the Financing. Based on our discussions and on the financial
statements, projections and other information and documents previously furnished
to us, we are enclosing herewith an outline of terms and conditions (the
"Summary Terms and Conditions"), which set forth the principal terms on which
each of the Initial Lenders is committing to provide its portion of the proposed
Financing, and the Arranger is committing to act as the Arranger hereunder. This
letter, along with the Summary Terms and Conditions, shall together be referred
to as the "Commitment Letter".
Although the Summary Terms and Conditions sets forth the principal
terms of the Financing, you should understand that the Initial Lenders, the
Agent and the Arranger reserve the right to propose, and you hereby agree to
<PAGE>
River Acquisition Corp.
Jay B. Langner
November 20, 1998
Page 2
negotiate in good faith, terms in addition to these terms which will not
substantially change or alter the terms of this commitment and the Summary Terms
and Conditions. Moreover, the Summary Terms and Conditions does not purport to
include all of the covenant levels, customary representations, warranties,
conditions, defaults, definitions and other terms which will be contained in the
definitive documents for the transaction, all of which must be reasonably
satisfactory in form and substance to us and our counsel and to you and your
counsel prior to proceeding with the proposed Financing and which will not
substantially change or alter the terms hereof.
Our commitments to proceed with the proposed Financing are conditioned
on there being no material misstatements in or omissions from the materials
which have previously been furnished to us for our review in connection with the
transactions contemplated hereby (taking into account all such information and
materials) and on there being no material adverse change since the date of such
materials in the assets, business or condition (financial or otherwise) or
prospects of HGC, the HGC Borrower and their respective subsidiaries, that would
impact the ability of any such entity to perform its respective obligations
described in the Summary Terms and Conditions. In addition, the proposed
Financing is subject to the conditions that no changes in governmental
regulation or policy materially and adversely affecting our ability to perform
our duties as described in the Commitment Letter or otherwise provide financing
in connection with this transaction occur prior to the closing.
By your signatures below, you represent and warrant to the Initial
Lenders, the Agent and the Arranger that (a) all information that has been and
will be made available by you or the HGC Borrower or on your or its behalf to
the Initial Lenders, the Agent or the Arranger is and will be true and correct
in all material respects and that any financial information included therein
fairly presents in all material respects the financial condition (as of the
dates thereof) and the results of operations (for the periods covered thereby)
of the HGC Borrower, HGC and their respective subsidiaries, and (b) all
financial projections concerning the HGC Borrower, HGC and their respective
subsidiaries that have been or will be made available by you, the HGC Borrower,
HGC or on your or their behalf to the Initial Lenders, the Agent or the Arranger
have been and will be prepared in good faith based upon assumptions deemed
reasonable by you at the time of preparation. You agree to revise, modify and
supplement such information and projections from time to time through the
completion of the arrangement process as necessary in order that such
information continues to be true and correct in all material respects and that
such projections remain in all material respects the Investors' good faith
estimate of financial performance. You understand that the Initial Lenders, the
Agent and the Arranger and potential Lenders will be using and relying on such
information and projections without independent verification thereof and that
the Initial Lenders', the Agent's and the Arranger's willingness to proceed with
the proposed financing is conditioned upon, among other things, there being no
material misstatement in or omissions from such information and projections.
By your signatures below, you further agree to permit the Arranger, on
or after closing, to publicize information in respect of the Financing
(including the Agent's and the Arranger's role in the structuring and financing
thereof) subject to your prior reasonable approval of the form and content
thereof. You further agree that prior to or after the execution of the
definitive documentation for the Financing, each of the Initial Lenders reserves
the right to syndicate all or any portion of its commitment hereunder to one or
more financial institutions after consultation with the Agent, the Arranger and
you, and, upon the receipt of signed commitments from any Lender agreeing to
become a party to the Financing with respect to a portion of the facilities,
such Initial Lender shall be released from a portion of its commitment hereunder
in an aggregate amount equal to the commitment of such Lender.
<PAGE>
River Acquisition Corp.
Jay B. Langner
November 20, 1998
Page 3
By your signatures below, you agree that you or the HGC Borrower shall
pay all reasonable out-of-pocket costs and expenses (the "Expenses") incurred by
(1) BKB, the Agent, the Arranger and their respective agents (including, without
limitation, any consultants contemplated herein or in the Summary Terms and
Conditions and engaged by BKB, the Agent or the Arranger) in connection with (a)
the negotiation, preparation, execution and delivery of this Commitment Letter
and the definitive loan and collateral security documentation for the Financing,
and (b) the arrangement of the Financing, and (2) the fees of a single counsel
engaged by EAB and Chase together, in each case, whether or not the transactions
contemplated hereby are consummated. The Expenses shall include, without
limitation, reasonable attorneys' fees and expenses, arrangement fees, fees of
the Agent's commercial finance examiners, consultants' fees, asset appraisal
fees, and other reasonable charges and disbursements and any other reasonable
out-of-pocket costs and expenses. All such fees and expenses invoiced at or
prior to closing shall be paid on or before the Closing Date. Further, in
consideration of the commitments contained herein you agree to pay or to cause
the HGC Borrower to pay to the Initial Lenders, the Agent and the Arranger the
fees described in the separate letters enclosed herewith (one such letter issued
in favor of the Initial Lenders and the other issued in favor of the Agent and
the Arranger and together, the "River Acquisition Corp. Fee Letters") on the
Closing Date or such other date(s) (including the date of your acceptance of
this Commitment Letter) and in the amounts provided in the River Acquisition
Corp. Fee Letters.
By your signatures below, you further agree to indemnify and hold
harmless each of the Initial Lenders, the Agent and the Arranger and their
respective officers, directors, employees, affiliates, agents and controlling
persons from and against any and all losses, claims, damages and liabilities to
which any such person may become subject arising out of, or in connection with,
this Commitment Letter, the transactions contemplated hereby or any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any of such indemnified persons is a party thereto, and to
reimburse each of such indemnified persons, from time to time upon their demand,
for any reasonable legal or other expenses incurred in connection with
investigating or defending any of the foregoing, whether or not the transactions
contemplated hereby are consummated, provided that the foregoing indemnity will
not, as to any indemnified person, apply to losses, claims, damages, liabilities
or related expenses to the extent that they arise from the bad faith, willful
misconduct or gross negligence of such indemnified person. Your obligations to
indemnify and to pay or to cause the HGC Borrower to pay the Expenses as set
forth in this letter shall remain effective until the initial funding of the
Financing under the definitive loan and collateral security documents for the
Financing; thereafter, such obligations shall be superseded by the expense
reimbursement and indemnification provisions contained in such definitive
documents, and you shall have no further such obligations hereunder.
You agree that this Commitment Letter and the River Acquisition Corp.
Fee Letters are for your confidential use only and that, without the prior
written consent of the Agent, none of such agreements will be disclosed by you
to any person (including any lender bidding for the financing contemplated by
this Commitment Letter) other than (a) any of your respective employees,
partners, accountants, attorneys, affiliates and other advisors who are or are
expected to become engaged in evaluating, approving, structuring or
administering the facilities or rendering legal advice in connection therewith,
or (b) to HGC or a special committee of the Board of Directors of HGC in
connection with your negotiation of the Recapitalization, and then, in each
case, only in connection with the transactions contemplated hereby and on a
confidential basis; provided that nothing herein shall prevent you from
disclosing such information (i) upon the order of any court or administrative
agency or upon the request of any administrative agency or authority, (ii) upon
<PAGE>
River Acquisition Corp.
Jay B. Langner
November 20, 1998
Page 4
the request or demand of any regulatory agency or authority, (iii) to the extent
that such information has been generally disclosed to the public, other than as
a result of a disclosure by you, or (iv) otherwise as required by law.
Each of the Initial Lenders, the Agent and the Arranger agrees to keep
any confidential information delivered or made available by you to it regarding
the HGC Borrower confidential from anyone other than their respective employees,
officers, attorneys and other advisors who are or are expected to become engaged
in evaluating, approving, structuring or administering the facilities or
rendering legal advice in connection therewith, and then, in each case, only in
connection with the transactions contemplated hereby and on a confidential
basis; provided that nothing herein shall prevent any of the Initial Lenders,
the Agent or the Arranger from disclosing such information (a) to potential
participants in and assignees of the facilities on a confidential basis and
subject to written confidentiality agreements as provided above, (b) upon the
order of any court or administrative agency or upon the request of any
administrative agency or authority, (c) upon the request or demand of any
regulatory agency or authority, (d) to the extent that such information has been
generally disclosed to the public, other than as a result of a disclosure by
such Initial Lender, the Agent or the Arranger, or (e) otherwise as required by
law.
This Commitment Letter shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts. This Commitment Letter and
the River Acquisition Corp. Fee Letters are the only agreements between you, on
the one hand, and any or all of us, on the other hand, with respect to the
Financing. This Commitment Letter shall not be assignable by you without the
prior written consent of the Initial Lenders, the Agent and the Arranger and is
intended solely for your benefit and is not intended to confer any benefits
upon, or create any rights in favor of any person other than you. This
Commitment Letter may not be amended or waived except by an instrument in
writing signed by each party hereto. This Commitment Letter may be executed in
any number of counterparts, which shall together constitute but one and the same
agreement and which counterparts may be by facsimile (to be followed promptly by
original counterparts) or by original counterparts. This Commitment Letter shall
take effect as a sealed instrument as of the date first hereinabove written.
This Commitment Letter is issued with the understanding that, until
accepted by you and except as specifically set forth in the preceding
paragraphs, it is not intended to give rise to any legal liability on the part
of either you or any of the Initial Lenders, the Agent or the Arranger and that
the proposal set forth herein shall be considered withdrawn if for any reason
you fail to return to Michael J. Blake at BankBoston, N.A., 100 Federal Street,
Boston, Massachusetts 02110 by 5:00 p.m. (Boston time) on November 30, 1998 (the
"Expiration Date") the enclosed copy of this letter and the accompanying River
Acquisition Corp. Fee Letters, signed by you, together with the fees required by
the terms of such River Acquisition Corp. Fee Letters to be paid as of the date
hereof.
[Remainder of page intentionally left blank]
<PAGE>
River Acquisition Corp.
Jay B. Langner
November 20, 1998
Page 5
If the foregoing is in accordance with your understanding, please
accept this letter in the space indicated below and return it to us on or prior
to the Expiration Date. This letter supersedes all of our prior letters and
communications to you regarding the subject matter of this letter.
Commitment Percentages Very truly yours,
Term Loan A: 50% BANKBOSTON, N.A.
Term Loan B: 50%
Revolving Credit: 50%
By: /s/ Michael J. Blake
--------------------------------
Name: Michael J. Blake
Title: Director
EUROPEAN AMERICAN BANK
Term Loan A: 25%
Term Loan B: 25%
Revolving Credit: 25% By: /s/ Pasqualina Coppola
--------------------------------
Name: Pasqualina Coppola
Title: Assistant Vice President
THE CHASE MANHATTAN BANK
Term Loan A: 25%
Term Loan B: 25%
Revolving Credit: 25% By: /s/ William DeMilt
--------------------------------
Name: William DeMilt
Title: Assistant Vice President
BANCBOSTON ROBERTSON STEPHENS INC.
By: /s/ Christopher G. Mathon
--------------------------------
Name: Christopher G. Mathon
Title: Director
<PAGE>
River Acquisition Corp.
Jay B. Langner
November 20, 1998
Page 6
River Acquisition Corp.
Commitment Letter,
Accepted and Agreed to as of this
20th day of November, 1998
RIVER ACQUISITION CORP.
By: /s/ Jay B. Langner
---------------------------------------
Title: President
/s/ Jay B. Langner
- -------------------------------------------
Jay B. Langner
<PAGE>
Annex X
Calculation of Financed Amount
<TABLE>
<CAPTION>
@@
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Price Per Share*+ Term Loan A Term Loan B Revolver Total
----- --- ------- ---- ---- - ---- ---- - -------- -----
<S> <C> <C> <C> <C>
$57.25 $47,079,865 $7,500,000 $5,000,000 $59,579,865
$57 $46,705,560 $7,500,000 $5,000,000 $59,205,560
$56 $45,208,340 $7,500,000 $5,000,000 $57,708,340
$55 $43,711,120 $7,500,000 $5,000,000 $56,211,120
$54 $42,213,900 $7,500,000 $5,000,000 $54,713,900
$53 $40,716,680 $7,500,000 $5,000,000 $53,216,680
$52 $39,219,460 $7,500,000 $5,000,000 $51,719,460
$51 $37,722,240 $7,500,000 $5,000,000 $50,222,240
$50 $36,225,020 $7,500,000 $5,000,000 $48,725,020
$49 $34,727,800 $7,500,000 $5,000,000 $47,227,800
$48 $33,230,580 $7,500,000 $5,000,000 $45,730,580
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
@@
</TABLE>
* In the event that the price per share actually agreed upon is not a
whole dollar amount, the parties agree that the amount financed shall
be modified proportionately to reflect the difference between the
nearest whole dollar share price and the actual price agreed upon.
+ In the event that the price per share is less than $48 per share, the
parties agree that the amount financed (as reflected in the Term Loan A
and Total columns in the table above) shall be reduced by $1,497,220
for every dollar which the final price per share falls below $48 per
share.
<PAGE>
RIVER ACQUISITION CORP.
Summary of Terms and Conditions
For Up to $59,579,865 Senior Secured Credit Facilities
- --------------------------------------------------------------------------------
Borrower: River Acquisition Corp., a special purpose
acquisition vehicle formed by the Investors under
the laws of Delaware and to be merged with HGC on
the Closing Date.
Facilities: (A) Up to $47,079,865 Term Loan A
(B) Up to $7,500,000 Term Loan B
(C) $5,000,000 Revolving Credit
Calculation of the amount of Term Loan A is subject
to the terms and conditions contained in Annex X to
the Commitment Letter.
Use of Proceeds: (A) & (B) To finance the recapitalization of HGC in
connection with a privatization transaction (the
"Recapitalization") and to pay associated fees and
expenses. (C) For working capital and general
corporate purposes.
Agent: BankBoston, N. A. ("BankBoston" or the "Agent").
Arranger: BancBoston Robertson Stephens Inc. ("BRS").
Lenders: BankBoston and a group of financial institutions
reasonably acceptable to BankBoston, BRS and the
Borrower. Notwithstanding the foregoing, the
Facilities shall be arranged on a pro rata basis with
the $20,000,000 Senior Secured Credit Facilities
proposed for Hudson General LLC ("LLC") and its
subsidiaries in the Commitment Letter and Summary
Terms and Conditions dated as of the date hereof and
pertaining to LLC (the "LLC Commitment Letter").
Guarantors: All direct and indirect present and future
subsidiaries of the Borrower other than LLC, LLC's
subsidiaries, Hudson Kohala, Inc. and any subsidiary
which (i) has aggregate total assets or a net worth
less than $100,000 and (ii) does not engage in
business of any kind or nature (such subsidiaries,
collectively with LLC and Hudson Kohala, Inc., the
"Excluded Subsidiaries").
Closing Date: A mutually agreeable date to be determined, but not
later than April 30, 1999.
<PAGE>
Final Maturity Date: (A) & (C) 5 years from the Closing Date.
(B) 6 years from the Closing Date.
Availability: (A) & (B) Loans must be borrowed in a single drawing
on the Closing Date. (C) Loans may be borrowed repaid
and reborrowed from the Closing Date through the
Final Maturity Date, subject to compliance with all
covenants and terms governing the Facilities.
Amortization: (A) & (B) Subject to further due diligence, including
review of the Borrower's financial projections, the
Term Loans will amortize in quarterly payments
aggregating the following amounts annually:
Year Term Loan A Term Loan B
---- ----------- -----------
1 $1,500,000 $0
2 2,000,000 0
3 2,500,000 0
4 32,000,000 0
5 9,079,865 0
---------
6 7,500,000
---------
Total $47,079,865 $7,500,000
Mandatory
Prepayments: Mandatory prepayments from the following sources
(which prepayments shall be subject to payment of
breakage costs) will be applied initially to Term
Loan A until repaid in full and thereafter to Term
Loan B to reduce outstanding amounts under each
facility in equal installments over each of the
remaining years:
o 100% of Excess Cash Flow (definition to be
determined) in excess of $1,000,000 on an annual
basis.
o 100% of the net proceeds from asset sales (other
than in the ordinary course of business) and
equity or new debt offerings
o 100% of the net cash proceeds to the Borrower from
dividends, distributions and intercompany note
collections (in a minimum amount of $9,500,000
within 30 days following the Closing Date) from
LLC for the 1998 fiscal year. If any of such
payments occur prior to the Closing Date, the
minimum cash requirement specified in the
Conditions Precedent section of this term sheet
shall increase by the amount of such payments and
the amount of Term Loan A shall decrease by a
corresponding amount.
o 100% of the net proceeds from the redemption of
HGC's preferred interest in LLC.
Voluntary
Prepayments: Permitted, subject to payment of breakage costs, if
any, in the case of LIBOR Rate loans. Voluntary
prepayments shall be applied first to Term Loan A
until fully repaid and thereafter to Term Loan B. All
prepayments shall be applied to reduce outstanding
amounts in equal installments over each of the
remaining years.
Security: The Revolving Credit, Term Loan A, Term Loan B and
obligations to the Lenders under interest rate
protection agreements will be collateralized by (a)
<PAGE>
a perfected first priority security interest in all
tangible and intangible assets (subject to
exceptions to be determined, which exceptions shall
be reasonably acceptable to the Agent and the
Lenders) of the Borrower and its subsidiaries
(including HGC but excluding the Excluded
Subsidiaries), now owned or hereafter acquired,
including without limitation the Borrower's
interests in the common ownership units of LLC and
any preferential ownership in LLC and (b) a pledge
of 100% of the equity interests in the Borrower. A
double negative pledge will be provided on all
assets of the Borrower and its subsidiaries (with
exceptions satisfactory to the Borrower, the Agent
and the Lenders to be negotiated) not included in
the security package for the Lenders.
Interest Rates: The Alternate Base Rate ("ABR") or the LIBOR
Rate ("LIBOR") plus the Applicable Margin determined
quarterly in accordance with the terms set forth on
Annex A hereto. Alternate Base Rate shall mean the
higher of the Agent's Base Rate as announced from
time to time, or the Federal Funds rate plus 0.50%.
Interest Payments: For Alternate Base Rate loans, at the end
of each fiscal quarter. For LIBOR Rate loans, at the
end of each Interest Period, or quarterly, if
earlier. Interest will be calculated on an actual/365
day basis for Alternate Base Rate Loans and on an
actual/360 day basis for LIBOR Rate loans.
Interest Periods: For LIBOR Rate loans, 1, 2, 3 or 6 months, subject
to availability.
Fees: Per the Fee Letters.
Interest Rate
Protection: Within 90 days following the Closing Date, the
Borrower will obtain interest rate protection in an
amount and tenor satisfactory to the Borrower, the
Agent and the Lenders and at a rate level
satisfactory to the Borrower and the Agent.
Conditions
Precedent: Usual and customary in transactions of this type,
including without limitation, the following:
o Satisfactory representations and warranties and
execution and delivery of satisfactory
documentation including without limitation loan
documentation, security documentation, merger
agreements and any other agreements deemed
necessary or appropriate by the Agent or the
Lenders in connection with the proposed Facilities
and the Recapitalization.
o Satisfactory corporate and capital structure of
the Recapitalization including without limitation
(i) minimum equity capital contribution by the
Investors of at least 280,000 shares and retained
options equivalent to shares of HGC in the
Recapitalization, at least 245,000 of which shall
be shares of HGC, (ii) minimum cash of the
Borrower of not less than $35,000,000 (or such
greater amount as is necessary to complete the
Recapitalization if fees and expenses incurred in
connection therewith exceed those assumed in the
calculation of Annex X) at the time of the
Recapitalization, and (iii) satisfactory
limitations on the types of investments to be made
by HGC and all subsidiaries including LLC and its
subsidiaries.
o The Recapitalization shall be completed at a
maximum share price of $57.25 per share to public
shareholders.
<PAGE>
o The Agent's and the Lenders' satisfaction that the
Recapitalization and the Financing comply with all
applicable laws, including securities laws.
o Successful completion (but for the funding of the
Facilities) of the Recapitalization in accordance
with applicable law and documentation satisfactory
in form and substance to the Agent and the Lenders
(which documentation shall not have been amended,
waived or modified).
o Receipt and review of unaudited consolidated
financial statements of HGC and its subsidiaries
for the fiscal period ended December 31, 1998,
which financial statements shall be reasonably
satisfactory in form and substance to the Agent
and the Lenders.
o The Lenders, the Agent and the Arranger having
received all fees and expenses payable in
connection with the Facilities described herein.
o There being no material adverse change in the
final financial projections received by the Agent
and the Lenders on October 20, 1998 (other than
variations resulting from seasonal weather
conditions).
o No material misstatements in or omissions from the
materials previously furnished to the Agent and
the Lenders for their review. The Agent and the
Lenders must be satisfied that any financial
statements delivered to them fairly present the
business and financial condition of the Borrower
or, as the case may be, HGC and its subsidiaries.
o Absence of any material adverse change in the
condition (financial or otherwise), operations,
assets, and/or income of the Borrower, of HGC, of
the Borrower and its subsidiaries taken as a
whole, or of HGC and its subsidiaries taken as a
whole; and absence of any default or event of
default under any material contract or agreement.
o Satisfactory review of all material pending or
threatened litigation (with the Agent and the
Lenders agreeing that they are satisfied with the
status of the litigation disclosed in the June 30,
1998 10-K of HGC and the September 30, 1998 10-Q
of HGC); absence of any material contingent
liabilities; absence of actual or threatened
litigation or other proceedings challenging the
Recapitalization, the Financing or any
transactions contemplated herewith or therewith,
which could reasonably be expected to have a
materially adverse effect on (a) the assets,
liabilities, business, or business prospects of
the Borrower, of HGC, of the Borrower and its
subsidiaries taken as a whole, or of HGC and its
subsidiaries taken as a whole; (b) the ability of
the Borrower or its subsidiaries to perform its
obligations under the loan or collateral security
documents; or (c) the rights and remedies of the
Agent or the Lenders under the loan or collateral
security documents.
o All governmental and third-party consents and
approvals necessary or advisable in connection
with the Facilities, the Recapitalization and the
continuing operations of the Borrower and HGC
shall have been obtained and shall be in full
force and effect, and all applicable waiting
periods shall have expired without any action
being taken or threatened by any competent
authority that would restrain, prevent or
otherwise impose materially adverse conditions on
the Borrower, the Recapitalization or any of the
transactions contemplated in connection herewith
or therewith.
o The proposed financing is subject to the
conditions that none of the Lenders shall have
breached its obligations under this Commitment
Letter or under the LLC Commitment Letter (it
being understood that withdrawal of a commitment
as a result of any of the conditions set forth in
the Commitment Letter, this Summary of Terms and
<PAGE>
Conditions or any related fee letter not being
satisfied shall not constitute a breach) and that
no material changes in governmental regulations or
policies affecting the Borrower, HGC, the Agent,
Arranger or Lenders involved in this transaction
occur prior to the Closing Date.
o The contemporaneous closing of the $20,000,000
senior secured financing of LLC pursuant to the
terms and conditions set forth in the LLC
Commitment Letter, and the termination of HGC's
and LLC's existing credit facilities, together
with the release or assignment of all liens and
security interests securing the obligations
thereunder.
o Other conditions precedent specific to this
transaction and typical of facilities of this
type, including the Agent's receipt of
satisfactory applicable corporate and shareholder
approval of the Financing and the
Recapitalization, evidence of the completion of
adequate corporate formalities, together with
satisfactory legal opinions, a solvency opinion
(after giving effect to the Recapitalization), UCC
search results, and all filings, documents and
items deemed necessary or appropriate by the Agent
in order to ensure the first priority security
interest of the Agent, for the benefit of the
Lenders, in the collateral.
Reporting
Requirements: Periodic financial reporting with respect to the
Borrower and its subsidiaries, including, but not
limited to, the following: certified annual audited
financials, quarterly financials, quarterly
compliance certificates, annual budgets and other
information that may from time to time be requested
by the Agent, Arranger or any of the Lenders.
Financial
Covenants: Financial covenants, to be determined, will be
satisfactory to the Agent and the Lenders and will be
typical of those found in senior credit agreements of
this type and will include without limitation the
following:
o Maximum Funded Debt/Adjusted EBITDA
o Minimum Interest Coverage
o Minimum Debt Service Coverage
o Minimum Net Worth or equivalent
Other Terms
and Conditions: Customary for facilities of this type,
including without limitation, the following, in each
case reasonably satisfactory in form and substance to
the Agent and the Lenders:
o Customary affirmative covenants.
o Limitations on capital expenditures, dividends,
redemptions, liens, indebtedness, negative pledges,
contingent liabilities, investments, affiliate
transactions, mergers, acquisitions, asset sales, sale
leasebacks, etc.
o Customary events of default including without
limitation a cross-default to other indebtedness
(including a cross-default to indebtedness of LLC) and
a change in control default.
o Restriction on material amendment or other modification
of any of the organizational documents of the Borrower
or its subsidiaries (other than such amendments as are
completed on or prior to the Closing Date and are
necessary to the accomplishment of the Recapitalization
and are satisfactory to the Agent and the Lenders).
<PAGE>
Assignments and
Participations: Usual and customary for transactions of this type
and size. Each Lender may assign all or a portion of
its loans and commitments under the Facilities, or
sell participations therein, to another person or
persons, provided that each such assignment shall be
in a minimum amount of $2,500,000 (or if less, such
Lender's entire commitment), shall only be permitted
in connection with the acceptance by the applicable
assignee of a pro rata portion of such Lender's
interest in the facilities provided pursuant to the
LLC Commitment Letter, and shall be subject to
certain conditions, including but not limited to,
the approval of the Borrower (so long as no Event of
Default has occurred) and the Agent, such approvals
not to be unreasonably withheld. Each assignment
shall be subject to payment to the Agent by the
assigning Lender of an assignment fee of $3,500.
Arrangement: The Borrower or the Investors will provide all
information (including pro forma financial
projections), in a form reasonably acceptable to the
Agent and Arranger, necessary for the preparation of
an information memorandum describing the Borrower,
HGC, the Facilities and any related transactions.
Such package will be distributed on a confidential
basis to selected financial institutions. In
addition, the management of HGC and the Investors
will, at the request of the Agent or Arranger, hold
themselves and their advisors available at
reasonable times to meet with potential lenders and
to answer questions during the arrangement process.
Voting Rights: Waivers and amendments must be approved by the
Required Lenders provided, however, that increases
of commitments, reductions in interest rates or
fees, extensions of maturity, postponement of
required principal payments, release of any guaranty
or any substantial part of the collateral, or change
to the definition of Required Lenders will require
consent from 100% of the Lenders. Required Lenders
means any two or more Lenders holding at least
66-2/3% of the outstanding Loans and unused
Commitments.
Expenses and
Indemnification: Without limiting the Commitment Letter, Borrower will
pay all reasonable fees and expenses incurred by the
Agent and Arranger in connection with the preparation
and execution of the Facilities. These will include,
without limitation, legal, arrangement, collateral
examination, tax consultant, appraisal, environmental
survey and other direct out-of-pocket expenses.
Without limiting the Commitment Letter, the Borrower
will indemnify and hold harmless the Agent, Arranger
and the Lenders (and their respective directors,
officers, employees and agents) against any damages,
loss, liability, cost or expense incurred in respect
of the financing contemplated hereby or the use or
the proposed use of proceeds thereof (except to the
extent resulting from the gross negligence or willful
misconduct of the indemnified party).
Governing Law: Commonwealth of Massachusetts.
Agent and
Arranger's Counsel: Bingham Dana LLP
<PAGE>
Annex A
-------
<TABLE>
<CAPTION>
Revolving Credit and
Adjusted Term Loan A
Interest Rate: Level EBITDA/Interest ABR + LIBOR +
----- --------------- ----- -------
<S> <C> <C> <C> <C>
I (less than) 1.50x 1.00% 3.00%
II (greater than) = 1.50x 0.75% 2.75%
III (greater than) = 2.00x 0.50% 2.50%
IV (greater than) = 2.50x 0.25% 2.25%
</TABLE>
The Pricing Grid notwithstanding, pricing would not
be lower than Level I until delivery of the
compliance certificate for the period ending June
30, 1999. Adjusted EBITDA shall be measured on a
rolling four quarter basis (including periods prior
to the Recapitalization) and shall be adjusted to
reflect cash earnings of the Borrower.
Pricing for Term Loan B shall be LIBOR + 3.50% or
ABR + 1.50% without reference to the Pricing Grid.
Default Pricing: Upon the occurrence and continuance of an Event of
Default, the Facilities will accrue interest at the
Applicable Margin or spread over the Alternate Base
Rate plus 2%.
Commitment Fee: 0.375% per annum on the unused portion of the
Revolving Credit facility, payable quarterly in
arrears.
Exhibit 5
HUDSON GENERAL CORPORATION
111 Great Neck Road
Great Neck, New York 11022
June 30, 1998
Mr. Jay B. Langner
Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11022
Dear Jay:
You have informed Hudson General Corporation (the "Company") that
you, together with certain other directors or executives of the Company, are
considering the possibility of proposing to the Company a transaction which
would result in you and other members of the Company's management becoming the
owner of all the outstanding shares of common stock of the Company (the
"Transaction"). In connection with your evaluation of a potential Transaction,
you have requested that the Company furnish you with certain information
relating to the Company which is non-public, confidential or proprietary in
nature. All such information (whether written, computerized or oral) furnished
(whether before or after the date hereof) by the Company or its directors,
officers, employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys or accountants) or agents (collectively, the
"Company Representatives") to you or your representatives (including, without
limitation, financial advisors, attorneys, accountants or prospective lenders or
other financing sources) or agents (collectively, "your Representatives") and
all analyses, compilations, forecasts, studies, summaries, notes, data and other
documents and materials in whatever form maintained, whether prepared by you or
your Representatives or others, which contain or reflect, or are generated from,
any such information or which reflect your or your Representatives' review of,
or your interest in, the Transaction is hereinafter referred to as the
"Information." As a condition to, and in consideration of the Company engaging
in further discussions with you and providing you with the Information, you
acknowledge and agree, as set forth below, to treat confidentially the
Information and any other information furnished to you.
NYFS10...:\80\57780\0003\1948\LTRN108Z.280
<PAGE>
You agree that the Information will not be used other than for the
purpose described above, and that the Information will be kept confidential by
you and your Representatives; provided, however, that (i) the Information may be
disclosed to your Representatives who need to know such Information for the
purpose described above (it being understood that (a) such Representative shall
be informed by you of the confidential nature of the Information, shall be
directed by you to treat the Information confidentially and not to use it other
than for the purpose described above and shall agree to be bound by the terms of
this Agreement, and (b) in any event, you shall be responsible for any breach of
this Agreement by any of your Representatives), and (ii) any other disclosure of
the Information may be made if the Company has, in advance, consented to such
disclosure in writing. You will make all reasonable, necessary and appropriate
efforts to safeguard the Information from disclosure to anyone other than as
permitted hereby. Nothing contained herein shall in any way limit your ability,
in your capacity as an officer or director of the Company, from using the
Information in connection with conducting the business and affairs of the
Company.
In addition, without the Company's prior consent, you will not, and
will direct your Representatives not to, disclose to any person either the fact
that the Information has been made available to you or that this Agreement
exists or that discussions are taking place between you and the Company
concerning a possible transaction, or other facts with respect to such
discussion, including the status thereof. The term "person" as used in this
letter shall be interpreted very broadly and shall include without limitation
any corporation, company, partnership, individual or group.
Notwithstanding the foregoing, if you or any of your Representatives
is requested or required (by oral question or request for information or
documents in legal proceedings, interrogatories, subpoena, civil investigative
demand or similar process) to disclose any Information, you will promptly notify
the Company of such request or requirement so that the Company may seek an
appropriate protective order and/or waive your compliance with the provisions of
this Agreement. If, in the absence of a protective order or the receipt of a
waiver hereunder, you or any of your Representatives is nonetheless, in the
reasonable written opinion of your counsel, compelled to disclose the
Information to any tribunal, you or your
2
<PAGE>
Representative, after notice to the Company, may disclose such Information to
such tribunal. You shall exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the Information so
disclosed. You or your Representative shall not be liable for the disclosure of
the Information hereunder to a tribunal compelling such disclosure unless such
disclosure to such tribunal was caused by or resulted from a previous disclosure
by you or your Representatives not permitted by this Agreement.
If you determine that you do not wish to enter into the Transaction
with the Company, you will promptly advise the Company of this fact. In such
case or in the event that no Transaction between you and the Company is effected
within a reasonable time after the Information is furnished to you, or if the
Company requests the Information for any reason whatsoever, you will promptly,
upon the Company's request, deliver to the Company all documents furnished by
the Company or the Company Representatives to your Representatives constituting
the Information. All oral Information will remain subject to the terms and
provisions of this Agreement.
Although you understand that the Company has endeavored to include
in the Information any information known to the Company which the Company
believes to be relevant for the purpose your investigation of the Company, you
further understand that the Company does not make any representation or
warranty, either express or implied, as to the accuracy or completeness of the
Information. You agree that neither the Company nor any of the Company
Representatives shall have any liability to you or any of your Representatives
resulting from the use of the Information by you or your Representatives.
It is further understood and agreed that no failure or delay in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
You acknowledge and agree that the Company would not have an
adequate remedy at law and would be irreparably harmed in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached by you or your
3
<PAGE>
Representatives. It is accordingly agreed that the Company shall be entitled to
injunctive relief to prevent breaches of this Agreement and to specifically
enforce the terms and provisions hereof, in addition to any other remedy to
which the Company may be entitled, at law or in equity.
This Agreement shall constitute the entire agreement between the
parties with regard to the subject matter hereof and shall be deemed to modify
the confidentiality provisions of any existing agreements between you and the
Company as the same would otherwise relate to a potential Transaction. No
modification, amendment or waiver shall be binding without the written consent
of the parties hereto. This Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware applicable to agreements made and to be
performed within such State without regard to conflicts of law principles
thereof.
This Agreement may be executed in counterparts, each deemed to be an
original, but both of which shall constitute the same agreement.
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this letter whereupon this letter will
constitute our agreement with respect to the subject matter hereof.
Very truly yours,
HUDSON GENERAL CORPORATION
By: /s/ Edward J. Rosenthal
-----------------------------------
Name: Edward J. Rosenthal
Title: Member of the Special
Committee of the Board of Directors
Agreed to and Accepted:
/s/ Jay B. Langner
- -------------------------------------
Jay B. Langner
4
Exhibit 6
HUDSON GENERAL CORPORATION
111 Great Neck Road
Great Neck, New York 11022
June 30, 1998
Mr. Michael Rubin
Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11022
Dear Mike:
You have informed Hudson General Corporation (the "Company") that
you, together with certain other directors or executives of the Company, are
considering the possibility of proposing to the Company a transaction which
would result in you and other members of the Company's management becoming the
owner of all the outstanding shares of common stock of the Company (the
"Transaction"). In connection with your evaluation of a potential Transaction,
you have requested that the Company furnish you with certain information
relating to the Company which is non-public, confidential or proprietary in
nature. All such information (whether written, computerized or oral) furnished
(whether before or after the date hereof) by the Company or its directors,
officers, employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys or accountants) or agents (collectively, the
"Company Representatives") to you or your representatives (including, without
limitation, financial advisors, attorneys, accountants or prospective lenders or
other financing sources) or agents (collectively, "your Representatives") and
all analyses, compilations, forecasts, studies, summaries, notes, data and other
documents and materials in whatever form maintained, whether prepared by you or
your Representatives or others, which contain or reflect, or are generated from,
any such information or which reflect your or your Representatives' review of,
or your interest in, the Transaction is hereinafter referred to as the
"Information." As a condition to, and in consideration of the Company engaging
in further discussions with you and providing you with the Information, you
acknowledge and agree, as set forth below, to treat confidentially the
Information and any other information furnished to you.
NYFS10...:\80\57780\0003\2403\LTRN208U.520
<PAGE>
You agree that the Information will not be used other than for the
purpose described above, and that the Information will be kept confidential by
you and your Representatives; provided, however, that (i) the Information may be
disclosed to your Representatives who need to know such Information for the
purpose described above (it being understood that (a) such Representative shall
be informed by you of the confidential nature of the Information, shall be
directed by you to treat the Information confidentially and not to use it other
than for the purpose described above and shall agree to be bound by the terms of
this Agreement, and (b) in any event, you shall be responsible for any breach of
this Agreement by any of your Representatives), and (ii) any other disclosure of
the Information may be made if the Company has, in advance, consented to such
disclosure in writing. You will make all reasonable, necessary and appropriate
efforts to safeguard the Information from disclosure to anyone other than as
permitted hereby. Nothing contained herein shall in any way limit your ability,
in your capacity as an officer or director of the Company, from using the
Information in connection with conducting the business and affairs of the
Company.
In addition, without the Company's prior consent, you will not, and
will direct your Representatives not to, disclose to any person either the fact
that the Information has been made available to you or that this Agreement
exists or that discussions are taking place between you and the Company
concerning a possible transaction, or other facts with respect to such
discussion, including the status thereof. The term "person" as used in this
letter shall be interpreted very broadly and shall include without limitation
any corporation, company, partnership, individual or group.
Notwithstanding the foregoing, if you or any of your Representatives
is requested or required (by oral question or request for information or
documents in legal proceedings, interrogatories, subpoena, civil investigative
demand or similar process) to disclose any Information, you will promptly notify
the Company of such request or requirement so that the Company may seek an
appropriate protective order and/or waive your compliance with the provisions of
this Agreement. If, in the absence of a protective order or the receipt of a
waiver hereunder, you or any of your Representatives is nonetheless, in the
reasonable written opinion of your counsel, compelled to disclose the
Information to any tribunal, you or your
2
<PAGE>
Representative, after notice to the Company, may disclose such Information to
such tribunal. You shall exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the Information so
disclosed. You or your Representative shall not be liable for the disclosure of
the Information hereunder to a tribunal compelling such disclosure unless such
disclosure to such tribunal was caused by or resulted from a previous disclosure
by you or your Representatives not permitted by this Agreement.
If you determine that you do not wish to enter into the Transaction
with the Company, you will promptly advise the Company of this fact. In such
case or in the event that no Transaction between you and the Company is effected
within a reasonable time after the Information is furnished to you, or if the
Company requests the Information for any reason whatsoever, you will promptly,
upon the Company's request, deliver to the Company all documents furnished by
the Company or the Company Representatives to your Representatives constituting
the Information. All oral Information will remain subject to the terms and
provisions of this Agreement.
Although you understand that the Company has endeavored to include
in the Information any information known to the Company which the Company
believes to be relevant for the purpose your investigation of the Company, you
further understand that the Company does not make any representation or
warranty, either express or implied, as to the accuracy or completeness of the
Information. You agree that neither the Company nor any of the Company
Representatives shall have any liability to you or any of your Representatives
resulting from the use of the Information by you or your Representatives.
It is further understood and agreed that no failure or delay in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
You acknowledge and agree that the Company would not have an
adequate remedy at law and would be irreparably harmed in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached by you or your
3
<PAGE>
Representatives. It is accordingly agreed that the Company shall be entitled to
injunctive relief to prevent breaches of this Agreement and to specifically
enforce the terms and provisions hereof, in addition to any other remedy to
which the Company may be entitled, at law or in equity.
This Agreement shall constitute the entire agreement between the
parties with regard to the subject matter hereof and shall be deemed to modify
the confidentiality provisions of any existing agreements between you and the
Company as the same would otherwise relate to a potential Transaction. No
modification, amendment or waiver shall be binding without the written consent
of the parties hereto. This Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware applicable to agreements made and to be
performed within such State without regard to conflicts of law principles
thereof.
This Agreement may be executed in counterparts, each deemed to be an
original, but both of which shall constitute the same agreement.
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this letter whereupon this letter will
constitute our agreement with respect to the subject matter hereof.
Very truly yours,
HUDSON GENERAL CORPORATION
By: /s/ Edward J. Rosenthal
---------------------------------------
Name: Edward J. Rosenthal
Title: Member of the Special
Committee of the Board of Directors
Agreed to and Accepted:
/s/ Michael Rubin
- --------------------------------
Michael Rubin
4
Exhibit 7
HUDSON GENERAL CORPORATION
111 Great Neck Road
Great Neck, New York 11022
July 1, 1998
Mr. Noah E. Rockowitz, Esq.
Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11022
Dear Noah:
You have informed Hudson General Corporation (the "Company") that
you, together with certain other directors or executives of the Company, are
considering the possibility of proposing to the Company a transaction which
would result in you and other members of the Company's management becoming the
owner of all the outstanding shares of common stock of the Company (the
"Transaction"). In connection with your evaluation of a potential Transaction,
you have requested that the Company furnish you with certain information
relating to the Company which is non-public, confidential or proprietary in
nature. All such information (whether written, computerized or oral) furnished
(whether before or after the date hereof) by the Company or its directors,
officers, employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys or accountants) or agents (collectively, the
"Company Representatives") to you or your representatives (including, without
limitation, financial advisors, attorneys, accountants or prospective lenders or
other financing sources) or agents (collectively, "your Representatives") and
all analyses, compilations, forecasts, studies, summaries, notes, data and other
documents and materials in whatever form maintained, whether prepared by you or
your Representatives or others, which contain or reflect, or are generated from,
any such information or which reflect your or your Representatives' review of,
or your interest in, the Transaction is hereinafter referred to as the
"Information." As a condition to, and in consideration of the Company engaging
in further discussions with you and providing you with the Information, you
acknowledge and agree, as set forth below, to treat confidentially the
Information and any other information furnished to you.
NYFS10...:\80\57780\0003\1948\LTRN208V.040
<PAGE>
You agree that the Information will not be used other than for the
purpose described above, and that the Information will be kept confidential by
you and your Representatives; provided, however, that (i) the Information may be
disclosed to your Representatives who need to know such Information for the
purpose described above (it being understood that (a) such Representative shall
be informed by you of the confidential nature of the Information, shall be
directed by you to treat the Information confidentially and not to use it other
than for the purpose described above and shall agree to be bound by the terms of
this Agreement, and (b) in any event, you shall be responsible for any breach of
this Agreement by any of your Representatives), and (ii) any other disclosure of
the Information may be made if the Company has, in advance, consented to such
disclosure in writing. You will make all reasonable, necessary and appropriate
efforts to safeguard the Information from disclosure to anyone other than as
permitted hereby. Nothing contained herein shall in any way limit your ability,
in your capacity as an officer or director of the Company, from using the
Information in connection with conducting the business and affairs of the
Company.
In addition, without the Company's prior consent, you will not, and
will direct your Representatives not to, disclose to any person either the fact
that the Information has been made available to you or that this Agreement
exists or that discussions are taking place between you and the Company
concerning a possible transaction, or other facts with respect to such
discussion, including the status thereof. The term "person" as used in this
letter shall be interpreted very broadly and shall include without limitation
any corporation, company, partnership, individual or group.
Notwithstanding the foregoing, if you or any of your Representatives
is requested or required (by oral question or request for information or
documents in legal proceedings, interrogatories, subpoena, civil investigative
demand or similar process) to disclose any Information, you will promptly notify
the Company of such request or requirement so that the Company may seek an
appropriate protective order and/or waive your compliance with the provisions of
this Agreement. If, in the absence of a protective order or the receipt of a
waiver hereunder, you or any of your Representatives is nonetheless, in the
reasonable written opinion of your counsel, compelled to disclose the
Information to any tribunal, you or your
2
<PAGE>
Representative, after notice to the Company, may disclose such Information to
such tribunal. You shall exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the Information so
disclosed. You or your Representative shall not be liable for the disclosure of
the Information hereunder to a tribunal compelling such disclosure unless such
disclosure to such tribunal was caused by or resulted from a previous disclosure
by you or your Representatives not permitted by this Agreement.
If you determine that you do not wish to enter into the Transaction
with the Company, you will promptly advise the Company of this fact. In such
case or in the event that no Transaction between you and the Company is effected
within a reasonable time after the Information is furnished to you, or if the
Company requests the Information for any reason whatsoever, you will promptly,
upon the Company's request, deliver to the Company all documents furnished by
the Company or the Company Representatives to your Representatives constituting
the Information. All oral Information will remain subject to the terms and
provisions of this Agreement.
Although you understand that the Company has endeavored to include
in the Information any information known to the Company which the Company
believes to be relevant for the purpose your investigation of the Company, you
further understand that the Company does not make any representation or
warranty, either express or implied, as to the accuracy or completeness of the
Information. You agree that neither the Company nor any of the Company
Representatives shall have any liability to you or any of your Representatives
resulting from the use of the Information by you or your Representatives.
It is further understood and agreed that no failure or delay in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
You acknowledge and agree that the Company would not have an
adequate remedy at law and would be irreparably harmed in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached by you or your
3
<PAGE>
Representatives. It is accordingly agreed that the Company shall be entitled to
injunctive relief to prevent breaches of this Agreement and to specifically
enforce the terms and provisions hereof, in addition to any other remedy to
which the Company may be entitled, at law or in equity.
This Agreement shall constitute the entire agreement between the
parties with regard to the subject matter hereof and shall be deemed to modify
the confidentiality provisions of any existing agreements between you and the
Company as the same would otherwise relate to a potential Transaction. No
modification, amendment or waiver shall be binding without the written consent
of the parties hereto. This Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware applicable to agreements made and to be
performed within such State without regard to conflicts of law principles
thereof.
This Agreement may be executed in counterparts, each deemed to be an
original, but both of which shall constitute the same agreement.
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this letter whereupon this letter will
constitute our agreement with respect to the subject matter hereof.
Very truly yours,
HUDSON GENERAL CORPORATION
By: /s/ Edward J. Rosenthal
----------------------------------------
Name: Edward J. Rosenthal
Title: Member of the Special
Committee of the Board of Directors
Agreed to and Accepted:
/s/ Noah E. Rockowitz
- ------------------------------------
Noah E. Rockowitz
4
Exhibit 8
HUDSON GENERAL CORPORATION
111 Great Neck Road
Great Neck, New York 11022
July 1, 1998
Mr. Paul R. Pollack
Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11022
Dear Paul:
You have informed Hudson General Corporation (the "Company") that
you, together with certain other directors or executives of the Company, are
considering the possibility of proposing to the Company a transaction which
would result in you and other members of the Company's management becoming the
owner of all the outstanding shares of common stock of the Company (the
"Transaction"). In connection with your evaluation of a potential Transaction,
you have requested that the Company furnish you with certain information
relating to the Company which is non-public, confidential or proprietary in
nature. All such information (whether written, computerized or oral) furnished
(whether before or after the date hereof) by the Company or its directors,
officers, employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys or accountants) or agents (collectively, the
"Company Representatives") to you or your representatives (including, without
limitation, financial advisors, attorneys, accountants or prospective lenders or
other financing sources) or agents (collectively, "your Representatives") and
all analyses, compilations, forecasts, studies, summaries, notes, data and other
documents and materials in whatever form maintained, whether prepared by you or
your Representatives or others, which contain or reflect, or are generated from,
any such information or which reflect your or your Representatives' review of,
or your interest in, the Transaction is hereinafter referred to as the
"Information." As a condition to, and in consideration of the Company engaging
in further discussions with you and providing you with the Information, you
acknowledge and agree, as set forth below, to treat confidentially the
Information and any other information furnished to you.
NYFS10...:\80\57780\0003\2403\LTRN208U.550
<PAGE>
You agree that the Information will not be used other than for the
purpose described above, and that the Information will be kept confidential by
you and your Representatives; provided, however, that (i) the Information may be
disclosed to your Representatives who need to know such Information for the
purpose described above (it being understood that (a) such Representative shall
be informed by you of the confidential nature of the Information, shall be
directed by you to treat the Information confidentially and not to use it other
than for the purpose described above and shall agree to be bound by the terms of
this Agreement, and (b) in any event, you shall be responsible for any breach of
this Agreement by any of your Representatives), and (ii) any other disclosure of
the Information may be made if the Company has, in advance, consented to such
disclosure in writing. You will make all reasonable, necessary and appropriate
efforts to safeguard the Information from disclosure to anyone other than as
permitted hereby. Nothing contained herein shall in any way limit your ability,
in your capacity as an officer or director of the Company, from using the
Information in connection with conducting the business and affairs of the
Company.
In addition, without the Company's prior consent, you will not, and
will direct your Representatives not to, disclose to any person either the fact
that the Information has been made available to you or that this Agreement
exists or that discussions are taking place between you and the Company
concerning a possible transaction, or other facts with respect to such
discussion, including the status thereof. The term "person" as used in this
letter shall be interpreted very broadly and shall include without limitation
any corporation, company, partnership, individual or group.
Notwithstanding the foregoing, if you or any of your Representatives
is requested or required (by oral question or request for information or
documents in legal proceedings, interrogatories, subpoena, civil investigative
demand or similar process) to disclose any Information, you will promptly notify
the Company of such request or requirement so that the Company may seek an
appropriate protective order and/or waive your compliance with the provisions of
this Agreement. If, in the absence of a protective order or the receipt of a
waiver hereunder, you or any of your Representatives is nonetheless, in the
reasonable written opinion of your counsel, compelled to disclose the
Information to any tribunal, you or your
2
<PAGE>
Representative, after notice to the Company, may disclose such Information to
such tribunal. You shall exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the Information so
disclosed. You or your Representative shall not be liable for the disclosure of
the Information hereunder to a tribunal compelling such disclosure unless such
disclosure to such tribunal was caused by or resulted from a previous disclosure
by you or your Representatives not permitted by this Agreement.
If you determine that you do not wish to enter into the Transaction
with the Company, you will promptly advise the Company of this fact. In such
case or in the event that no Transaction between you and the Company is effected
within a reasonable time after the Information is furnished to you, or if the
Company requests the Information for any reason whatsoever, you will promptly,
upon the Company's request, deliver to the Company all documents furnished by
the Company or the Company Representatives to your Representatives constituting
the Information. All oral Information will remain subject to the terms and
provisions of this Agreement.
Although you understand that the Company has endeavored to include
in the Information any information known to the Company which the Company
believes to be relevant for the purpose your investigation of the Company, you
further understand that the Company does not make any representation or
warranty, either express or implied, as to the accuracy or completeness of the
Information. You agree that neither the Company nor any of the Company
Representatives shall have any liability to you or any of your Representatives
resulting from the use of the Information by you or your Representatives.
It is further understood and agreed that no failure or delay in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
You acknowledge and agree that the Company would not have an
adequate remedy at law and would be irreparably harmed in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached by you or your
3
<PAGE>
Representatives. It is accordingly agreed that the Company shall be entitled to
injunctive relief to prevent breaches of this Agreement and to specifically
enforce the terms and provisions hereof, in addition to any other remedy to
which the Company may be entitled, at law or in equity.
This Agreement shall constitute the entire agreement between the
parties with regard to the subject matter hereof and shall be deemed to modify
the confidentiality provisions of any existing agreements between you and the
Company as the same would otherwise relate to a potential Transaction. No
modification, amendment or waiver shall be binding without the written consent
of the parties hereto. This Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware applicable to agreements made and to be
performed within such State without regard to conflicts of law principles
thereof.
This Agreement may be executed in counterparts, each deemed to be an
original, but both of which shall constitute the same agreement.
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this letter whereupon this letter will
constitute our agreement with respect to the subject matter hereof.
Very truly yours,
HUDSON GENERAL CORPORATION
By: /s/ Edward J. Rosenthal
------------------------------------------
Name: Edward J. Rosenthal
Title: Member of the Special
Committee of the Board of Directors
Agreed to and Accepted:
/s/ Paul R. Pollack
- ----------------------------------
Paul R. Pollack
4
Exhibit 9
HUDSON GENERAL CORPORATION
111 Great Neck Road
Great Neck, New York 11022
July 2, 1998
Mr. Richard D. Segal
Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11022
Dear Rick:
You have informed Hudson General Corporation (the "Company") that
you, together with certain other directors or executives of the Company, are
considering the possibility of proposing to the Company a transaction which
would result in you and other members of the Company's management becoming the
owner of all the outstanding shares of common stock of the Company (the
"Transaction"). In connection with your evaluation of a potential Transaction,
you have requested that the Company furnish you with certain information
relating to the Company which is non-public, confidential or proprietary in
nature. All such information (whether written, computerized or oral) furnished
(whether before or after the date hereof) by the Company or its directors,
officers, employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys or accountants) or agents (collectively, the
"Company Representatives") to you or your representatives (including, without
limitation, financial advisors, attorneys, accountants or prospective lenders or
other financing sources) or agents (collectively, "your Representatives") and
all analyses, compilations, forecasts, studies, summaries, notes, data and other
documents and materials in whatever form maintained, whether prepared by you or
your Representatives or others, which contain or reflect, or are generated from,
any such information or which reflect your or your Representatives' review of,
or your interest in, the Transaction is hereinafter referred to as the
"Information." As a condition to, and in consideration of the Company engaging
in further discussions with you and providing you with the Information, you
acknowledge and agree, as set forth below, to treat confidentially the
Information and any other information furnished to you.
NYFS10...:\80\57780\0003\2403\LTRN208V.020
<PAGE>
You agree that the Information will not be used other than for the
purpose described above, and that the Information will be kept confidential by
you and your Representatives; provided, however, that (i) the Information may be
disclosed to your Representatives who need to know such Information for the
purpose described above (it being understood that (a) such Representative shall
be informed by you of the confidential nature of the Information, shall be
directed by you to treat the Information confidentially and not to use it other
than for the purpose described above and shall agree to be bound by the terms of
this Agreement, and (b) in any event, you shall be responsible for any breach of
this Agreement by any of your Representatives), and (ii) any other disclosure of
the Information may be made if the Company has, in advance, consented to such
disclosure in writing. You will make all reasonable, necessary and appropriate
efforts to safeguard the Information from disclosure to anyone other than as
permitted hereby. Nothing contained herein shall in any way limit your ability,
in your capacity as an officer or director of the Company, from using the
Information in connection with conducting the business and affairs of the
Company.
In addition, without the Company's prior consent, you will not, and
will direct your Representatives not to, disclose to any person either the fact
that the Information has been made available to you or that this Agreement
exists or that discussions are taking place between you and the Company
concerning a possible transaction, or other facts with respect to such
discussion, including the status thereof. The term "person" as used in this
letter shall be interpreted very broadly and shall include without limitation
any corporation, company, partnership, individual or group.
Notwithstanding the foregoing, if you or any of your Representatives
is requested or required (by oral question or request for information or
documents in legal proceedings, interrogatories, subpoena, civil investigative
demand or similar process) to disclose any Information, you will promptly notify
the Company of such request or requirement so that the Company may seek an
appropriate protective order and/or waive your compliance with the provisions of
this Agreement. If, in the absence of a protective order or the receipt of a
waiver hereunder, you or any of your Representatives is nonetheless, in the
reasonable written opinion of your counsel, compelled to disclose the
Information to any tribunal, you or your
2
<PAGE>
Representative, after notice to the Company, may disclose such Information to
such tribunal. You shall exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the Information so
disclosed. You or your Representative shall not be liable for the disclosure of
the Information hereunder to a tribunal compelling such disclosure unless such
disclosure to such tribunal was caused by or resulted from a previous disclosure
by you or your Representatives not permitted by this Agreement.
If you determine that you do not wish to enter into the Transaction
with the Company, you will promptly advise the Company of this fact. In such
case or in the event that no Transaction between you and the Company is effected
within a reasonable time after the Information is furnished to you, or if the
Company requests the Information for any reason whatsoever, you will promptly,
upon the Company's request, deliver to the Company all documents furnished by
the Company or the Company Representatives to your Representatives constituting
the Information. All oral Information will remain subject to the terms and
provisions of this Agreement.
Although you understand that the Company has endeavored to include
in the Information any information known to the Company which the Company
believes to be relevant for the purpose your investigation of the Company, you
further understand that the Company does not make any representation or
warranty, either express or implied, as to the accuracy or completeness of the
Information. You agree that neither the Company nor any of the Company
Representatives shall have any liability to you or any of your Representatives
resulting from the use of the Information by you or your Representatives.
It is further understood and agreed that no failure or delay in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
You acknowledge and agree that the Company would not have an
adequate remedy at law and would be irreparably harmed in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached by you or your
3
<PAGE>
Representatives. It is accordingly agreed that the Company shall be entitled to
injunctive relief to prevent breaches of this Agreement and to specifically
enforce the terms and provisions hereof, in addition to any other remedy to
which the Company may be entitled, at law or in equity.
This Agreement shall constitute the entire agreement between the
parties with regard to the subject matter hereof and shall be deemed to modify
the confidentiality provisions of any existing agreements between you and the
Company as the same would otherwise relate to a potential Transaction. No
modification, amendment or waiver shall be binding without the written consent
of the parties hereto. This Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware applicable to agreements made and to be
performed within such State without regard to conflicts of law principles
thereof.
This Agreement may be executed in counterparts, each deemed to be an
original, but both of which shall constitute the same agreement.
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this letter whereupon this letter will
constitute our agreement with respect to the subject matter hereof.
Very truly yours,
HUDSON GENERAL CORPORATION
By: /s/ Edward J. Rosenthal
--------------------------------------------
Name: Edward J. Rosenthal
Title: Member of the Special
Committee of the Board of Directors
Agreed to and Accepted:
/s/ Richard D. Segal
- --------------------------------------
Richard D. Segal
4
Exhibit 10
HUDSON GENERAL CORPORATION
111 Great Neck Road
Great Neck, New York 11022
July 6, 1998
Mr. Barry I. Regenstein
Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11022
Dear Barry:
You have informed Hudson General Corporation (the "Company") that
you, together with certain other directors or executives of the Company, are
considering the possibility of proposing to the Company a transaction which
would result in you and other members of the Company's management becoming the
owner of all the outstanding shares of common stock of the Company (the
"Transaction"). In connection with your evaluation of a potential Transaction,
you have requested that the Company furnish you with certain information
relating to the Company which is non-public, confidential or proprietary in
nature. All such information (whether written, computerized or oral) furnished
(whether before or after the date hereof) by the Company or its directors,
officers, employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys or accountants) or agents (collectively, the
"Company Representatives") to you or your representatives (including, without
limitation, financial advisors, attorneys, accountants or prospective lenders or
other financing sources) or agents (collectively, "your Representatives") and
all analyses, compilations, forecasts, studies, summaries, notes, data and other
documents and materials in whatever form maintained, whether prepared by you or
your Representatives or others, which contain or reflect, or are generated from,
any such information or which reflect your or your Representatives' review of,
or your interest in, the Transaction is hereinafter referred to as the
"Information." As a condition to, and in consideration of the Company engaging
in further discussions with you and providing you with the Information, you
acknowledge and agree, as set forth below, to treat confidentially the
Information and any other information furnished to you.
NYFS10...:\80\57780\0003\2403\LTRN208V.030
<PAGE>
You agree that the Information will not be used other than for the
purpose described above, and that the Information will be kept confidential by
you and your Representatives; provided, however, that (i) the Information may be
disclosed to your Representatives who need to know such Information for the
purpose described above (it being understood that (a) such Representative shall
be informed by you of the confidential nature of the Information, shall be
directed by you to treat the Information confidentially and not to use it other
than for the purpose described above and shall agree to be bound by the terms of
this Agreement, and (b) in any event, you shall be responsible for any breach of
this Agreement by any of your Representatives), and (ii) any other disclosure of
the Information may be made if the Company has, in advance, consented to such
disclosure in writing. You will make all reasonable, necessary and appropriate
efforts to safeguard the Information from disclosure to anyone other than as
permitted hereby. Nothing contained herein shall in any way limit your ability,
in your capacity as an officer or director of the Company, from using the
Information in connection with conducting the business and affairs of the
Company.
In addition, without the Company's prior consent, you will not, and
will direct your Representatives not to, disclose to any person either the fact
that the Information has been made available to you or that this Agreement
exists or that discussions are taking place between you and the Company
concerning a possible transaction, or other facts with respect to such
discussion, including the status thereof. The term "person" as used in this
letter shall be interpreted very broadly and shall include without limitation
any corporation, company, partnership, individual or group.
Notwithstanding the foregoing, if you or any of your Representatives
is requested or required (by oral question or request for information or
documents in legal proceedings, interrogatories, subpoena, civil investigative
demand or similar process) to disclose any Information, you will promptly notify
the Company of such request or requirement so that the Company may seek an
appropriate protective order and/or waive your compliance with the provisions of
this Agreement. If, in the absence of a protective order or the receipt of a
waiver hereunder, you or any of your Representatives is nonetheless, in the
reasonable written opinion of your counsel, compelled to disclose the
Information to any tribunal, you or your
2
<PAGE>
Representative, after notice to the Company, may disclose such Information to
such tribunal. You shall exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the Information so
disclosed. You or your Representative shall not be liable for the disclosure of
the Information hereunder to a tribunal compelling such disclosure unless such
disclosure to such tribunal was caused by or resulted from a previous disclosure
by you or your Representatives not permitted by this Agreement.
If you determine that you do not wish to enter into the Transaction
with the Company, you will promptly advise the Company of this fact. In such
case or in the event that no Transaction between you and the Company is effected
within a reasonable time after the Information is furnished to you, or if the
Company requests the Information for any reason whatsoever, you will promptly,
upon the Company's request, deliver to the Company all documents furnished by
the Company or the Company Representatives to your Representatives constituting
the Information. All oral Information will remain subject to the terms and
provisions of this Agreement.
Although you understand that the Company has endeavored to include
in the Information any information known to the Company which the Company
believes to be relevant for the purpose your investigation of the Company, you
further understand that the Company does not make any representation or
warranty, either express or implied, as to the accuracy or completeness of the
Information. You agree that neither the Company nor any of the Company
Representatives shall have any liability to you or any of your Representatives
resulting from the use of the Information by you or your Representatives.
It is further understood and agreed that no failure or delay in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
You acknowledge and agree that the Company would not have an
adequate remedy at law and would be irreparably harmed in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached by you or your
3
<PAGE>
Representatives. It is accordingly agreed that the Company shall be entitled to
injunctive relief to prevent breaches of this Agreement and to specifically
enforce the terms and provisions hereof, in addition to any other remedy to
which the Company may be entitled, at law or in equity.
This Agreement shall constitute the entire agreement between the
parties with regard to the subject matter hereof and shall be deemed to modify
the confidentiality provisions of any existing agreements between you and the
Company as the same would otherwise relate to a potential Transaction. No
modification, amendment or waiver shall be binding without the written consent
of the parties hereto. This Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware applicable to agreements made and to be
performed within such State without regard to conflicts of law principles
thereof.
This Agreement may be executed in counterparts, each deemed to be an
original, but both of which shall constitute the same agreement.
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this letter whereupon this letter will
constitute our agreement with respect to the subject matter hereof.
Very truly yours,
HUDSON GENERAL CORPORATION
By: /s/ Edward J. Rosenthal
------------------------------------------
Name: Edward J. Rosenthal
Title: Member of the Special
Committee of the Board of Directors
Agreed to and Accepted:
/s/ Barry I. Regenstein
- -------------------------------------
Barry I. Regenstein
4
Exhibit 11
Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11021
July 9, 1998
Mr. Jay B. Langner
Mr. Richard D. Segal
c/o Hudson General Corporation
111 Great Neck Road
Great Neck, New York 11021
Dear Jay and Rick:
Each of you, together with certain other directors or executives of
Hudson General Corporation (the "Company"), is considering the possibility of
proposing to the Company a transaction which would result in you and other
members of the Company's management becoming the owners of all outstanding
shares of the Company's common stock (the "Potential Transaction"). It is
understood and agreed that except as otherwise specifically set forth in this
letter agreement, (i) the Company will not be responsible for any costs or
expenses incurred by or on behalf of you in connection with your evaluation and
possible pursuit of the Potential Transaction and (ii) the Company will not
reimburse you for any such costs or expenses.
It is agreed as follows:
1. The Company will not be responsible or reimburse you for the
first $250,000 of "Fees and Expenses" (as defined in paragraph 4 below) incurred
by you in connection with the Potential Transaction.
2. In order to induce you to continue your evaluation of a Potential
Transaction, the Company will reimburse you for fifty percent (50%) of Fees and
Expenses incurred by you in connection with the Potential Transaction in excess
of $250,000, up to a maximum of $500,000 of aggregate Fees and Expenses, so that
the Company's maximum reimbursement obligation shall be $125,000.
NYFS10...:\80\57780\0003\1948\LTRN108X.040
<PAGE>
3. The Company will not reimburse you for any portion of your Fees
and Expenses incurred in connection with the Potential Transaction in excess of
the aggregate amount of $500,000, it being understood that the Company's sole
reimbursement obligation shall be pursuant to paragraph 2 above.
4. As used herein, the term "Fees and Expenses" means reasonable,
documented, out-of-pocket costs and expenses incurred by either or both of you
or other members of management in connection with the Potential Transaction,
relating to (a) reasonable out-of-pocket expenses incurred by your financial
advisors in connection with a Potential Transaction, (b) fees paid to your legal
counsel based on standard hourly billing rates of such legal counsel and
reasonable expenses and disbursements incurred by such legal counsel in
connection with the Potential Transaction, (c) fees paid to the Company's
independent public accountant for any services rendered to you in connection
with the Potential Transaction and reasonable expenses and disbursements
incurred by such independent public accountant in connection with the Potential
Transaction, (d) fees, expenses and disbursements paid by you to other advisors,
and (e) other expenses incurred by you in connection with the Potential
Transaction. It is also agreed that the term "Fees and Expenses" does not
include (i) any transaction, "success" fee or similar type of financial advisory
fee paid to any financial advisor or investment banking firm retained by or
providing services to you or (ii) any commitment fees or expenses or similar
fees paid to lending institutions or financing sources in connection with the
financing of the Potential Transaction.
5. You agree to apprise the Special Committee of the Company's Board
of Directors (the "Committee") or its representatives, from time to time, of the
amount of Fees and Expenses incurred by you in connection with the Potential
Transaction. If and when you have incurred $250,000 in Fees and Expenses, you
agree to advise the Committee or its representatives as to the status of the
prospective financing for the Potential Transaction and furnish the Committee or
its representatives with any agreed upon term sheets or other agreements (which
may be redacted to eliminate information regarding any price you may determine
to propose that you pay for shares of the Company's stock or which you or your
advisors deem to be strategically sensitive to a transaction you may determined
to propose) relating to the prospective financing arrangements for the Potential
Transaction.
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<PAGE>
Please indicate your agreement with the foregoing by signing and
returning one copy of this letter.
Sincerely,
HUDSON GENERAL CORPORATION
By: /s/ Edward J. Rosenthal
----------------------------------------------
Name: Edward J. Rosenthal
Title: Member of Special Committee of
the Board of Directors
Agreed and Accepted by:
/s/ Jay B. Langner
- -----------------------------------
Jay B. Langner
/s/ Richard D. Segal
- -----------------------------------
Richard D. Segal
3
Exhibit 12
JOINT FILING AGREEMENT
JOINT FILING AGREEMENT, dated as of November 22, 1998, by and among
Jay B. Langner, Richard D. Segal, Rocco Daloia, Fernando DiBenedetto, Paul R.
Pollack, Barry I. Regenstein, Raymond J. Rieder, Noah E. Rockowitz, Michael
Rubin, Henry A. Satinskas and River Acquisition Corp.
WHEREAS, each of the parties hereto, other than Mr. Daloia and River
Acquisition Corp., beneficially owns shares and/or options to purchase shares of
common stock, par value $1.00 per share (the "Common Stock"), of Hudson General
Corporation;
WHEREAS, the parties hereto constitute a "group" with respect to the
beneficial ownership of the Common Stock for purposes of Rule 13d-1 and Schedule
13D promulgated by the Securities and Exchange Commission; and
NOW, THEREFORE, the parties hereto agree as follows:
1. The parties hereto shall prepare a single statement containing
the information required by Schedule 13D with respect to their respective
interests in the Common Stock (the "Reporting Group Schedule 13D"), and the
Reporting Group Schedule 13D shall be filed on behalf of
each of them.
2. Each party hereto shall be responsible for the timely filing of
the Reporting Group Schedule 13D and any necessary amendments thereto, and for
the completeness and accuracy of the information concerning him or it contained
therein, but shall not be responsible for the completeness and accuracy of the
information concerning any other party contained therein, except to the extent
that he or it knows or has reason to believe that such information is
inaccurate.
3. This Agreement shall continue unless terminated by any party
hereto.
4. Richard D. Segal and Jay B. Langner shall be designated as the
persons authorized to receive notices and communications with respect to the
Reporting Group Schedule 13D and any amendments thereto.
NYFS10...:\80\57780\0003\1948\AGRN208U.330
<PAGE>
5. This Agreement may be executed in counterparts, each of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undesigned have executed this Agreement as
of the date first above written.
/s/ Jay B. Langner
-------------------------------------------
Jay B. Langner
/s/ Richard D. Segal
-------------------------------------------
Richard D. Segal
/s/ Rocco Daloia
-------------------------------------------
Rocco Daloia
/s/ Fernando DiBenedetto
-------------------------------------------
Fernando DiBenedetto
/s/ Paul R. Pollack
-------------------------------------------
Paul R. Pollack
/s/ Barry Regenstein
-------------------------------------------
Barry Regenstein
/s/ Raymond J. Rieder
-------------------------------------------
Raymond J. Rieder
/s/ Noah Rockowitz
-------------------------------------------
Noah Rockowitz
/s/ Michael Rubin
-------------------------------------------
Michael Rubin
/s/ Henry A. Satinskas
-------------------------------------------
Henry A. Satinskas
2
<PAGE>
RIVER ACQUISITION CORP.
By: /s/ Michael Rubin
---------------------------------------
Michael Rubin
Vice President
3
