<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
THE ARNOLD PALMER GOLF COMPANY
------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.50 PER SHARE
---------------------------------------
(Title of Class of Securities)
696765 10 06
------------
(CUSIP Number)
HUGH F. SHARBER, ESQ., MILLER & MARTIN LLP
SUITE 1000, VOLUNTEER BUILDING,
832 GEORGIA AVENUE, CHATTANOOGA, TN 37402
(423) 756-6600
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
APRIL 29, 1999
--------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. [__]
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
SCHEDULE 13D
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only):
APGC Holdings Company, LLC
----------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group.
(a) X
-------
(b)
-------
3. SEC Use Only
----------------------------------------------------------
4. Source of funds: AF
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
------
6. Citizenship or place of organization: Delaware
Number of shares beneficially owned by each reporting person with:
7. Sole voting power - 0
-----------------------------------------
8. Shared voting power - 1,597,717
------------------------------------------
9. Sole dispositive power - 0
-------------------------------------
10. Shared dispositive power - 1,597,717
--------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,597,717
-----------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares
-------
13. Percent of Class Represented by Amount in Row (11) - 41.1%
--------
14. Type of reporting person - PN
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<PAGE> 3
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only):
John T. Lupton
-----------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group.
(a) X
------
(b)
------
3. SEC Use Only
----------------------------------------------------------
4. Source of funds: PF, AF
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
-------
6. Citizenship or place of organization: United States of America
Number of shares beneficially owned by each reporting person with:
7. Sole voting power - 0
------------------------------------------
8. Shared voting power - 1,343,272
------------------------------------------
9. Sole dispositive power - 890,000
---------------------------------------
10. Shared dispositive power - 1,343,272
-------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
2,233,272
-----------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares X
-----------
13. Percent of Class Represented by Amount in Row (11) - 46.7%
--------
14. Type of reporting person - IN
-------
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<PAGE> 4
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only):
Arnold Palmer Enterprises, Inc.
-----------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group.
(a) X
-----------
(b)
-----------
3. SEC Use Only
-----------------------------------------------------------
4. Source of funds: AF
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
--------
6. Citizenship or place of organization: Ohio
----------------------
Number of shares beneficially owned by each reporting person with:
7. Sole voting power - 0
------------------------------------------
8. Shared voting power - 0
------------------------------------------
9. Sole dispositive power - 100,000
---------------------------------------
10. Shared dispositive power - 0
-------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
100,000
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares
-----------
13. Percent of Class Represented by Amount in Row (11) - 2.5%
-------
14. Type of reporting person - CO
-------
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<PAGE> 5
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only):
Arnold D. Palmer
-----------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group.
(a) X
--------
(b)
--------
3. SEC Use Only
-----------------------------------------------------------
4. Source of funds: AF
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
-------
6. Citizenship or place of organization: United States of America
Number of shares beneficially owned by each reporting person with:
7. Sole voting power - 0
------------------------------------------
8. Shared voting power - 254,445
------------------------------------------
9. Sole dispositive power - 0
----------------------------------------
10. Shared dispositive power - 354,445
--------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
354,445
-----------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain
Shares X
-------------
13. Percent of Class Represented by Amount in Row (11) - 8.9%
-------
14. Type of reporting person - IN
------
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<PAGE> 6
SCHEDULE 13D
ITEM 1. SECURITY AND ISSUER
a. Class of Securities: Common Stock, par value
$0.50 per share ("Common Stock")
b. Issuer: The Arnold Palmer Golf Company
6201 Mountain View Road
Ooltewah, Tennessee 37363
ITEM 2. IDENTITY AND BACKGROUND
a. Name: APGC Holdings Company, LLC ("Holdings"),
a Delaware limited liability company
b. Address: Suite 702, Tallan Building
Two Union Square
Chattanooga, Tennessee 37402
c. Business or Holding Company
occupation:
Pursuant to Instruction C to Schedule 13D of the Act, the name,
residence or business address, and present principal occupation or
employment of each member or controlling person or officer or director
of a member of Holdings are as follows:
<TABLE>
<CAPTION>
Residence or Principal Occupation
Name Business Address or Employment
---- ---------------- ---------------------
<S> <C> <C>
John T. Lupton Suite 702 Private Investor
Two Union Square
Chattanooga, TN 37402
Arnold Palmer P.O. Box 52 Management Company
Enterprises, Inc. Youngstown, PA 15696
Arnold D. Palmer P.O. Box 52 Professional Golfer
Youngstown, PA 15696
Cindy L. Davis 6201 Mountain View Road President & Chief
Ooltewah, TN 37363 Executive Officer,
The Arnold Palmer
Golf Company
Mark H. McCormack IMG Chairman of IMG,
IMG Center, Suite 100 a sports marketing
1360 East 9th Street and management
Cleveland, Ohio 44114 company
Arthur J. Lafave, Jr. IMG Senior Vice President
IMG Center, Suite 100 of IMG, a sports
1360 East 9th Street marketing and
Cleveland, Ohio 44114 management company
Alastair J. Johnston IMG Senior Vice President
IMG Center, Suite 100 of IMG, a sports
1360 East 9th Street marketing and
Cleveland, Ohio 44114 management company
</TABLE>
-6-
<PAGE> 7
d. None of the persons identified in this Item 2 has been
convicted in a criminal proceeding during the past five years.
e. None of the persons identified in this Item 2 has, during
the 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 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.
f. Citizenship: All of the natural persons identified in
this Item 2 are citizens of the United States of America
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Holdings was formed on April 28, 1999, for the express purpose
of acquiring all of the outstanding shares of the Issuer not
held by Holdings or its members or their affiliates. On April
29, 1999, Holdings made a proposal to the Board of Directors
of the Issuer to acquire all of the outstanding shares of the
Common Stock not owned by Holdings or its affiliates at a cash
price per share of $1.20 pursuant to a cash-out merger (the
"Proposed Transaction"). A copy of the letter setting forth
Holdings proposal is filed as Exhibit A to this Schedule 13D.
Also on April 29, 1999, Holdings received commitments from its
members to contribute 1,597,717 shares of the outstanding
Common Stock of the Issuer to Holdings upon the consummation
of the Proposed Transaction as capital contributions. No funds
or other consideration will be transferred to the members in
connection with the contributions. If the transaction is
consummated, the purchase price for the shares to be acquired
in the Proposed Transaction is to be funded from additional
cash contributions from personal funds of the members of
Holdings or their affiliates.
ITEM 4. PURPOSE OF TRANSACTION
Holdings has been formed for the express purpose of acquiring
all of the outstanding shares of the Issuer not held by
Holdings or its members or their affiliates. Consummation of
the acquisition would be subject to the negotiation and
execution of a merger agreement, approval of the Board of
Directors and shareholders of the Issuer,
-7-
<PAGE> 8
certain other conditions imposed by Holdings, as well as other
customary conditions in a transaction of this nature,
including receipt of all necessary regulatory approvals.
Holdings anticipates that upon completion of the acquisition,
the registration of the Common Stock of the Company will be
terminated and the Issuer will no longer be a publicly-traded
reporting company under the Securities Exchange Act of 1934,
as amended. Holdings reserves the right to withdraw the
proposal in its discretion at any time.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
As of April 29, 1999, Holdings has received commitments from
its members to contribute 1,597,717 shares of Common Stock to
Holdings in the event of the consummation of the Purposed
Transaction. Based upon these commitments Holdings would be
deemed to beneficially own 41.1% of the outstanding shares of
Common Stock of the Issuer.
In addition to 1,343,272 shares of Common Stock which have
been agreed to be contributed to Holdings in the event of
the consummation of the Proposed Transaction, Mr. Lupton
beneficially owns currently vested warrants to purchase
890,000 shares of Common Stock of the Issuer.
Arnold Palmer Enterprises, Inc. beneficially owns currently
vested warrants to purchase 100,000 shares of Common Stock
of the Issuer.
Ms. Davis is deemed to beneficially own currently vested stock
options to purchase 20,000 shares of Common Stock of the
Issuer.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER
As of April 29, 1999, John T. Lupton and an affiliated entity,
pursuant to Contribution Agreements with Holdings attached as
Exhibit B, have agreed to contribute to Holdings 1,343,272
outstanding shares of Common Stock of the Issuer beneficially
owned by Mr. Lupton and any additional shares to be issued to
Mr. Lupton in connection with the conversion of outstanding
debt of the Issuer in the event the acquisition is
consummated. Also as of April 29, 1999, Arnold Palmer pursuant
to a Contribution Agreement with Holdings attached as Exhibit
B, has also agreed to contribute to Holdings 254,445
-8-
<PAGE> 9
outstanding shares of Common Stock of the Issuer to Holdings
in the event the acquisition is consummated. Also as of April
29, 1999, Arnold Palmer Enterprises, Inc., pursuant to a
Contribution Agreement with Holdings attached as Exhibit B,
has also agreed to contribute to Holdings any additional
shares to be issued in connection with the conversion of
outstanding debt of the Issuer in the event the acquisition is
consummated.
ITEM 7. MATERIAL FILED AS EXHIBITS
Exhibit A: Proposal Letter dated April 29, 1999
Exhibit B: Contribution Agreements dated April 29, 1999
Exhibit C: Joint Filing Agreement and Power of Attorney
-9-
<PAGE> 10
After reasonable inquiry and to the best of our knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
APGC HOLDINGS COMPANY, LLC
4/30/99 By: /s/ Cindy L. Davis
- ----------------------- ---------------------------------
Date Title: President & CEO
-------------------------------
-10-
<PAGE> 11
After reasonable inquiry and to the best of our knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
4/30/99 /s/ John T. Lupton
- --------------- ------------------------------
Date John T. Lupton
-11-
<PAGE> 12
After reasonable inquiry and to the best of our knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
ARNOLD PALMER ENTERPRISES, INC.
5/10/99 By: /s/ Alastair J. Johnston
- ------------------ ----------------------------
Date Title: Chief Operating Officer
--------------------------
-12-
<PAGE> 13
After reasonable inquiry and to the best of our knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
4/30/99 /s/ Cindy L. Davis
- --------------- ------------------------------
Date Cindy L. Davis
-13-
<PAGE> 14
After reasonable inquiry and to the best of our knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
5/10/99 /s/ Arnold D. Palmer
- --------------- ------------------------------
Date Arnold D. Palmer
<PAGE> 15
EXHIBIT A
APGC HOLDINGS COMPANY, LLC
THE LUPTON COMPANY, LLC
702 TALLAN BUILDING
CHATTANOOGA, TN 37402
April 29, 1999
Board of Directors
The Arnold Palmer Golf Company
6201 Mountain View Road
Ooltewah, Tennessee 37363
Re: Proposal for Acquisition
Dear Board of Directors:
APGC Holdings Company, LLC, ("Holdings") is pleased to submit
a proposal to acquire The Arnold Palmer Golf Company (the "Company") in a
cash-out merger transaction in which the Company will merge with Holdings or a
wholly-owned subsidiary of Holdings (the "Merger"). The President and Chief
Executive Officer of the Company, Ms. Cindy L. Davis, and certain shareholders
and directors of the Company, including Messrs. John T. Lupton and Arnold D.
Palmer, have formed Holdings for the purpose of acquiring the Company. These
individuals or their affiliates have agreed to contribute approximately 41
percent of the issued and outstanding shares of common stock of the Company to
Holdings.
Holdings hereby proposes to pay, upon the consummation of the
Merger, $1.20 per share to the holders of the issued and outstanding shares of
the Company which are not then owned by Holdings. All such shares shall be
canceled in the Merger. Upon the consummation of the Merger, the registration of
the Company as a publicly-traded reporting company under the Securities Exchange
Act of 1934, as amended, shall be terminated.
This proposal is subject to the negotiation of a definitive
merger agreement and other documentation of the Merger which are, in form and
substance, satisfactory to Holdings and which include customary representations,
warranties, covenants and conditions. Moreover, this proposal is subject to the
following additional conditions:
<PAGE> 16
1. Holdings shall have made arrangements for the satisfactory
restructuring of the Company's outstanding indebtedness on
terms acceptable to Holdings including the Company's short-
and long-term debt and the Company's outstanding subordinated
debentures whether held by affiliates of Holdings or others.
2. No litigation or other challenge to the proposal shall have
been commenced or threatened whether by the existing
shareholders of the Company or others.
3. The Company shall not have entertained proposals or entered
discussions with any other persons regarding the acquisition
of all of the stock or substantially all of the assets of the
Company.
4. The Company shall not have suffered, or expect to suffer, a
material adverse change in its business, operations,
properties or financial condition arising from any cause
whatsoever.
5. The Company shall have received no indication that it will be
unable to obtain any necessary consents or approvals from
third parties necessary for the consummation of the Merger
including consents from third-parties that have existing
contractual relationships with the Company or governmental
approvals or authorizations for the form or substance of the
transaction.
6. The Merger can be structured in a fashion to obtain the most
favorable tax treatment possible for Holdings and the Company
including fully utilizing the net operating loss carry
forwards of the Company to offset income of the Company to the
extent permitted under the Internal Revenue Code of 1986, as
amended.
7. There shall be no indication that the execution of a
definitive merger agreement shall be delayed beyond June 30,
1999, or that closing of the Merger shall be delayed beyond
September 30, 1999.
Please note that this proposal is preliminary in nature and
may be withdrawn by Holdings by notice provided to the Company at any time prior
to the execution of a definitive merger agreement notwithstanding the continued
satisfaction of the conditions enumerated above.
Please note as well that this proposal is being made solely to
you in your capacity as representatives of the Company and is not to be
construed as a proposal to purchase on any terms other than as specifically set
forth herein or as a proposal to anyone other than the Company. This proposal is
further to be treated as confidential pending agreement by the Company and
Holdings of an appropriate public announcement.
Yours very truly,
APGC HOLDINGS COMPANY, LLC
/s/ Cindy L. Davis
---------------------------
Cindy L. Davis
President and Chief Executive Officer
<PAGE> 17
EXHIBIT B-1
CONTRIBUTION AGREEMENT
This Contribution Agreement is made and entered into as of the
29th day of April, 1999, by and between John T. Lupton Trust (the
"Contributor"), and APGC Holdings Company, LLC, a Delaware limited liability
company (the "Company").
The Contributor has agreed to make contributions to the
capital of the Company in accordance with the terms and conditions described in
this Agreement.
NOW, THEREFORE, for and in consideration of the premises and
the mutual promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Subscription and Contribution. The Contributor hereby
subscribes for a Membership Interest (the "Membership Interest") in the Company
on the terms and conditions described herein. As consideration for the
Membership Interest, the Contributor agrees to contribute:
(a) Upon the capital call set forth in Section 2 below:
(i) 833,333 shares of common stock of the Arnold
Palmer Golf Company, a Tennessee corporation
("APGC"); and
(ii) any additional shares of APGC common stock
or other securities to be issued to
Contributor in connection with the
conversion of APGC indebtedness into equity.
The consideration described in Section 1(b) above shall
be referred to as the "Contribution Amount."
The parties agree and acknowledge that the Membership Interest
will have the financial and governance rights prescribed by the Delaware Limited
Liability Company Act (the "Act"), and the Company's Certificate of Formation
and the Limited Liability Company Agreement. The Membership Interest allocated
to the Contributor upon receipt by the Company of the Contribution Amount shall
be determined by the Board of Managers.
<PAGE> 18
2. Capital Call. The Contributor agrees to deliver to
the Company the Contribution Amount upon the call by the Company's Board of
Managers at the closing of the merger pursuant to which the Company or a
wholly-owned subsidiary of the Company will merge with APGC in accordance with
the terms of, and subject to the conditions set forth in, the Proposal for
Acquisition in the form attached hereto as Appendix 1 , as such terms may
hereafter be amended or modified by the Board of Managers of the Company.
3. Representations. The Contributor represents, warrants
and acknowledges to the Company that:
(a) The Contributor understands and agrees that the
Membership Interest is subject to certain restrictions set forth in the
Limited Liability Company Agreement, which the Contributor agrees to be
bound by;
(b) The Contributor is aware that (i) no registration
statement relating to the Membership Interest has been filed under the
Securities Act of 1933, as amended (the "Securities Act") or the
securities laws of any state, (ii) the Membership Interest may not be
transferred or resold except as permitted under applicable securities
laws, including the Securities Act and such state securities laws,
pursuant to registration or exemption therefrom and (iii) the Company
will refuse to allow any transfer of the Membership Interest in
violation of applicable securities laws, including the Securities Act
or such state securities laws;
(c) The Contributor understands that the Company is not
obligated to register the Membership Interest under the Securities Act
or under any state securities laws. The Contributor further understands
that the Company is not obligated to take any action, except as may be
required by law, necessary to make Rule 144 under the Securities Act or
any other method available for resales of the Membership Interest by
the Contributor;
(d) The Contributor acknowledges that the Company has not
prepared, and that it has not been requested by the Contributor to
prepare, a comprehensive written prospectus or disclosure statement in
connection with the issuance of the Membership Interest to the
Contributor, covering the business, operations, management, financial
condition or prospects of the Company of the nature that otherwise
might be required if the sale of the Membership Interest to the
Contributor were required to be registered under the Act. The
Contributor further acknowledges that the Company, prior to the date
hereof, has furnished the Contributor the opportunity to ask
<PAGE> 19
questions of and receive answers from the Company concerning the
financial and business affairs of the Company and has afforded the
Contributor the opportunity to verify the accuracy of all information
provided or made available to the Contributor by the Company;
(e) The Contributor is acquiring the Membership Interest
for investment, for the Contributor's own account and not with a view
to the distribution thereof; and
(f) The Contributor understands that the foregoing
representations, warranties, acknowledgments and agreements will be
relied upon by the Company as a basis for exemption of the issuance of
the Interest from the registration requirements of the Securities Act
and any applicable state securities law.
4. Assignment. With the prior written approval of the
Company, the Contributor's obligation to contribute cash to the Company in
accordance with Section 1(b) (iii) of this Agreement may be assigned to a third
party or third parties. In the absence of such prior written approval by the
Company, any such assignment shall be null and void.
5. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Contributor and the Contributor's heirs,
executors, administrators, successors, legal representatives and assigns. This
Agreement shall be binding upon and inure to the benefit of the Company and its
successors and assigns.
IN WITNESS WHEREOF, the Contributor has executed and delivered
this Agreement, effective as of the day and year first above written.
CONTRIBUTOR:
JOHN T. LUPTON TRUST
By: /s/ Joel W. Richardson, Jr.
-------------------------------
Accepted:
APGC HOLDING COMPANY, LLC
/s/ Cindy L. Davis
- --------------------------------
Cindy L. Davis
President
<PAGE> 20
EXHIBIT B-2
CONTRIBUTION AGREEMENT
This Contribution Agreement is made and entered into as of the
29th day of April, 1999, by and between Arnold Palmer (the "Contributor"),
and APGC Holdings Company, LLC, a Delaware limited liability company
(the "Company").
The Contributor has agreed to make contributions to the
capital of the Company in accordance with the terms and conditions described in
this Agreement.
NOW, THEREFORE, for and in consideration of the premises and
the mutual promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Subscription and Contribution. The Contributor hereby
subscribes for a Membership Interest (the "Membership Interest") in the Company
on the terms and conditions described herein. As consideration for the
Membership Interest, the Contributor agrees to contribute:
(a) $450 upon the date hereof; and
(b) Upon the capital call set forth in Section 2 below:
(i) 254,445 shares of common stock of the Arnold
Palmer Golf Company, a Tennessee corporation
("APGC");
(ii) any additional shares of APGC common stock
or other securities to be issued to
Contributor in connection with the
conversion of APGC indebtedness into equity;
and
(iii) an aggregate of $________________ (to be
determined).
The consideration described in Section 1(b) above shall
be referred to as the "Contribution Amount."
The parties agree and acknowledge that the Membership Interest
will have the financial and governance rights prescribed by the Delaware Limited
Liability Company Act (the "Act"), and the
<PAGE> 21
Company's Certificate of Formation and the Limited Liability Company Agreement.
The Membership Interest allocated to the Contributor upon receipt by the Company
of the Contribution Amount shall be determined by the Board of Managers.
2. Capital Call. The Contributor agrees to deliver to
the Company the Contribution Amount upon the call by the Company's Board of
Managers at the closing of the merger pursuant to which the Company or a
wholly-owned subsidiary of the Company will merge with APGC in accordance with
the terms of, and subject to the conditions set forth in, the Proposal for
Acquisition in the form attached hereto as Appendix 1 , as such terms may
hereafter be amended or modified by the Board of Managers of the Company.
3. Representations. The Contributor represents, warrants
and acknowledges to the Company that:
(a) The Contributor understands and agrees that the
Membership Interest is subject to certain restrictions set forth in the
Limited Liability Company Agreement, which the Contributor agrees to be
bound by;
(b) The Contributor is aware that (i) no registration
statement relating to the Membership Interest has been filed under the
Securities Act of 1933, as amended (the "Securities Act") or the
securities laws of any state, (ii) the Membership Interest may not be
transferred or resold except as permitted under applicable securities
laws, including the Securities Act and such state securities laws,
pursuant to registration or exemption therefrom and (iii) the Company
will refuse to allow any transfer of the Membership Interest in
violation of applicable securities laws, including the Securities Act
or such state securities laws;
(c) The Contributor understands that the Company is not
obligated to register the Membership Interest under the Securities Act
or under any state securities laws. The Contributor further understands
that the Company is not obligated to take any action, except as may be
required by law, necessary to make Rule 144 under the Securities Act or
any other method available for resales of the Membership Interest by
the Contributor;
(d) The Contributor acknowledges that the Company has not
prepared, and that it has not been requested by the Contributor to
prepare, a comprehensive written prospectus or disclosure statement in
connection with the issuance of the Membership Interest to the
Contributor, covering the business, operations, management, financial
condition or prospects of
<PAGE> 22
the Company of the nature that otherwise might be required if the sale
of the Membership Interest to the Contributor were required to be
registered under the Act. The Contributor further acknowledges that the
Company, prior to the date hereof, has furnished the Contributor the
opportunity to ask questions of and receive answers from the Company
concerning the financial and business affairs of the Company and has
afforded the Contributor the opportunity to verify the accuracy of all
information provided or made available to the Contributor by the
Company;
(e) The Contributor is acquiring the Membership Interest
for investment, for the Contributor's own account and not with a view
to the distribution thereof; and
(f) The Contributor understands that the foregoing
representations, warranties, acknowledgments and agreements will be
relied upon by the Company as a basis for exemption of the issuance of
the Interest from the registration requirements of the Securities Act
and any applicable state securities law.
4. Assignment. With the prior written approval of the
Company, the Contributor's obligation to contribute cash to the Company in
accordance with Section 1(b) (iii) of this Agreement may be assigned to a third
party or third parties. In the absence of such prior written approval by the
Company, any such assignment shall be null and void.
5. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Contributor and the Contributor's heirs,
executors, administrators, successors, legal representatives and assigns. This
Agreement shall be binding upon and inure to the benefit of the Company and its
successors and assigns.
IN WITNESS WHEREOF, the Contributor has executed and delivered
this Agreement, effective as of the day and year first above written.
CONTRIBUTOR:
/s/ Arnold D. Palmer
------------------------------
Arnold D. Palmer
Accepted:
APGC HOLDINGS COMPANY, LLC
/s/ Cindy L. Davis
- --------------------------------
Cindy L. Davis
President
<PAGE> 23
EXHIBIT B-3
CONTRIBUTION AGREEMENT
This Contribution Agreement is made and entered into as of the
29th day of April, 1999, by and between John T. Lupton, an individual (the
"Contributor"), and APGC Holdings Company, LLC, a Delaware limited liability
company (the "Company").
The Contributor has agreed to make contributions to the
capital of the Company in accordance with the terms and conditions described in
this Agreement.
NOW, THEREFORE, for and in consideration of the premises and
the mutual promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Subscription and Contribution. The Contributor hereby
subscribes for a Membership Interest (the "Membership Interest") in the Company
on the terms and conditions described herein. As consideration for the
Membership Interest, the Contributor agrees to contribute:
(a) $450 upon the date hereof; and
(b) Upon the capital call set forth in Section 2 below:
(i) 509,939 shares of common stock of the Arnold
Palmer Golf Company, a Tennessee corporation
("APGC");
(ii) any additional shares of APGC common stock
or other securities to be issued to
Contributor in connection with the
conversion of APGC indebtedness into equity;
(iii) an aggregate of $1,350,000; and
(iv) such additional amounts of cash up to an
additional $1,650,000 as may be required in
order to effectuate the merger pursuant to
which the Company or a wholly-owned
subsidiary of the Company will merge with
APGC in accordance with the terms of, and
subject to the conditions set forth in, the
Proposal for Acquisition in the form
attached hereto as
<PAGE> 24
Appendix 1 , as such terms may hereafter be
amended or modified by the Board of Managers
of the Company.
The consideration described in Section 1(b) above shall
be referred to as the "Contribution Amount."
The parties agree and acknowledge that the Membership Interest
will have the financial and governance rights prescribed by the Delaware Limited
Liability Company Act (the "Act"), and the Company's Certificate of Formation
and the Limited Liability Company Agreement. The Membership Interest allocated
to the Contributor upon receipt by the Company of the Contribution Amount shall
be determined by the Board of Managers.
2. Capital Call. The Contributor agrees to deliver to
the Company the Contribution Amount upon the call by the Company's Board of
Managers at the closing of the merger pursuant to which the Company or a
wholly-owned subsidiary of the Company will merge with APGC in accordance with
the terms of, and subject to the conditions set forth in, the Proposal for
Acquisition in the form attached hereto as Appendix 1 , as such terms may
hereafter be amended or modified by the Board of Managers of the Company.
3. Representations. The Contributor represents, warrants
and acknowledges to the Company that:
(a) The Contributor understands and agrees that the
Membership Interest is subject to certain restrictions set forth in the
Limited Liability Company Agreement, which the Contributor agrees to be
bound by;
(b) The Contributor is aware that (i) no registration
statement relating to the Membership Interest has been filed under the
Securities Act of 1933, as amended (the "Securities Act") or the
securities laws of any state, (ii) the Membership Interest may not be
transferred or resold except as permitted under applicable securities
laws, including the Securities Act and such state securities laws,
pursuant to registration or exemption therefrom and (iii) the Company
will refuse to allow any transfer of the Membership Interest in
violation of applicable securities laws, including the Securities Act
or such state securities laws;
(c) The Contributor understands that the Company is not
obligated to register the Membership Interest under the Securities Act
or under any state securities laws. The Contributor further understands
that the Company is not obligated to take any action, except as may be
required by
<PAGE> 25
law, necessary to make Rule 144 under the Securities Act or any other
method available for resales of the Membership Interest by the
Contributor;
(d) The Contributor acknowledges that the Company has not
prepared, and that it has not been requested by the Contributor to
prepare, a comprehensive written prospectus or disclosure statement in
connection with the issuance of the Membership Interest to the
Contributor, covering the business, operations, management, financial
condition or prospects of the Company of the nature that otherwise
might be required if the sale of the Membership Interest to the
Contributor were required to be registered under the Act. The
Contributor further acknowledges that the Company, prior to the date
hereof, has furnished the Contributor the opportunity to ask questions
of and receive answers from the Company concerning the financial and
business affairs of the Company and has afforded the Contributor the
opportunity to verify the accuracy of all information provided or made
available to the Contributor by the Company;
(e) The Contributor is acquiring the Membership Interest
for investment, for the Contributor's own account and not with a view
to the distribution thereof; and
(f) The Contributor understands that the foregoing
representations, warranties, acknowledgments and agreements will be
relied upon by the Company as a basis for exemption of the issuance of
the Interest from the registration requirements of the Securities Act
and any applicable state securities law.
4. Assignment. With the prior written approval of the
Company, the Contributor's obligation to contribute cash to the Company in
accordance with Section 1(b) (iii) of this Agreement may be assigned to a third
party or third parties. In the absence of such prior written approval by the
Company, any such assignment shall be null and void.
5. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Contributor and the Contributor's heirs,
executors, administrators, successors, legal representatives and assigns. This
Agreement shall be binding upon and inure to the benefit of the Company and its
successors and assigns.
<PAGE> 26
IN WITNESS WHEREOF, the Contributor has executed and delivered
this Agreement, effective as of the day and year first above written.
CONTRIBUTOR:
/s/ John T. Lupton
------------------------------
John T. Lupton
Accepted:
APGC HOLDING COMPANY, LLC
/s/ Cindy L. Davis
- --------------------------------
Cindy L. Davis
President
<PAGE> 27
EXHIBIT B-4
CONTRIBUTION AGREEMENT
This Contribution Agreement is made and entered into as of the
29th day of April, 1999, by and between Arnold Palmer Enterprises, Inc. (the
"Contributor"), and APGC Holdings Company, LLC, a Delaware limited liability
company (the "Company").
The Contributor has agreed to make contributions to the
capital of the Company in accordance with the terms and conditions described in
this Agreement.
NOW, THEREFORE, for and in consideration of the premises and
the mutual promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Subscription and Contribution. The Contributor hereby
subscribes for a Membership Interest (the "Membership Interest") in the Company
on the terms and conditions described herein. As consideration for the
Membership Interest, the Contributor agrees to contribute:
(a) Upon the capital call set forth in Section 2 below:
any shares of The Arnold Palmer Golf
Company, a Tennessee corporation ("APGC")
or other securities issued or to be issued
to Contributor in connection with the
conversion of APGC indebtedness into equity;
and
The consideration described in Section 1(b) above shall
be referred to as the "Contribution Amount."
The parties agree and acknowledge that the Membership Interest
will have the financial and governance rights prescribed by the Delaware Limited
Liability Company Act (the "Act"), and the
<PAGE> 28
Company's Certificate of Formation and the Limited Liability Company Agreement.
The Membership Interest allocated to the Contributor upon receipt by the Company
of the Contribution Amount shall be determined by the Board of Managers.
2. Capital Call. The Contributor agrees to deliver to
the Company the Contribution Amount upon the call by the Company's Board of
Managers at the closing of the merger pursuant to which the Company or a
wholly-owned subsidiary of the Company will merge with APGC in accordance with
the terms of, and subject to the conditions set forth in, the Proposal for
Acquisition in the form attached hereto as Appendix 1 , as such terms may
hereafter be amended or modified by the Board of Managers of the Company.
3. Representations. The Contributor represents, warrants
and acknowledges to the Company that:
(a) The Contributor understands and agrees that the
Membership Interest is subject to certain restrictions set forth in the
Limited Liability Company Agreement, which the Contributor agrees to be
bound by;
(b) The Contributor is aware that (i) no registration
statement relating to the Membership Interest has been filed under the
Securities Act of 1933, as amended (the "Securities Act") or the
securities laws of any state, (ii) the Membership Interest may not be
transferred or resold except as permitted under applicable securities
laws, including the Securities Act and such state securities laws,
pursuant to registration or exemption therefrom and (iii) the Company
will refuse to allow any transfer of the Membership Interest in
violation of applicable securities laws, including the Securities Act
or such state securities laws;
(c) The Contributor understands that the Company is not
obligated to register the Membership Interest under the Securities Act
or under any state securities laws. The Contributor further understands
that the Company is not obligated to take any action, except as may be
required by law, necessary to make Rule 144 under the Securities Act or
any other method available for resales of the Membership Interest by
the Contributor;
(d) The Contributor acknowledges that the Company has not
prepared, and that it has not been requested by the Contributor to
prepare, a comprehensive written prospectus or disclosure statement in
connection with the issuance of the Membership Interest to the
Contributor, covering the business, operations, management, financial
condition or prospects of
<PAGE> 29
the Company of the nature that otherwise might be required if the sale
of the Membership Interest to the Contributor were required to be
registered under the Act. The Contributor further acknowledges that the
Company, prior to the date hereof, has furnished the Contributor the
opportunity to ask questions of and receive answers from the Company
concerning the financial and business affairs of the Company and has
afforded the Contributor the opportunity to verify the accuracy of all
information provided or made available to the Contributor by the
Company;
(e) The Contributor is acquiring the Membership Interest
for investment, for the Contributor's own account and not with a view
to the distribution thereof; and
(f) The Contributor understands that the foregoing
representations, warranties, acknowledgments and agreements will be
relied upon by the Company as a basis for exemption of the issuance of
the Interest from the registration requirements of the Securities Act
and any applicable state securities law.
4. Assignment. With the prior written approval of the
Company, the Contributor's obligation to contribute cash to the Company in
accordance with Section 1(b) (iii) of this Agreement may be assigned to a third
party or third parties. In the absence of such prior written approval by the
Company, any such assignment shall be null and void.
5. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Contributor and the Contributor's heirs,
executors, administrators, successors, legal representatives and assigns. This
Agreement shall be binding upon and inure to the benefit of the Company and its
successors and assigns.
IN WITNESS WHEREOF, the Contributor has executed and delivered
this Agreement, effective as of the day and year first above written.
CONTRIBUTOR:
ARNOLD PALMER ENTERPRISES, INC.
By: /s/ Alastair J. Johnston
------------------------------
Alastair J. Johnston
Accepted:
APGC HOLDINGS COMPANY, LLC
/s/ Cindy L. Davis
- --------------------------------
Cindy L. Davis
President
<PAGE> 30
EXHIBIT C
JOINT FILING AGREEMENT AND POWER OF ATTORNEY
The undersigned hereby acknowledge and agree that the
foregoing statement on Schedule 13D, executed in accordance with and pursuant to
the power of attorney set forth below or otherwise, is filed on behalf of each
of us executing such documents, by power of attorney or otherwise, and that all
subsequent amendments to this statement on Schedule 13D shall be filed on behalf
of each of the undersigned by a single joint filing pursuant to Paragraph (f) of
Rule 13d-1 of the Securities Exchange Act of 1934 (the "Exchange Act").
The undersigned acknowledge that each shall be responsible for
the timely filing of such amendments, and for the completeness and accuracy of
the information concerning it contained therein, but shall not be responsible
for the completeness and accuracy of the information concerning the others,
except to the extent it knows or has reason to believe that such information is
inaccurate.
Each person whose signature appears below hereby constitutes
and appoints JOEL W. RICHARDSON, JR. his true and lawful attorney-in-fact and
agent, for him and in name, place and stead, in any and all capacities, to sign
any and all filings on Schedule 13D under the Exchange Act, and any amendment
thereto, relating to the securities of THE ARNOLD PALMER GOLF COMPANY and to
file the same with the Securities and Exchange Commission, and hereby grants to
such attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do, hereby ratifying and confirming
all that such attorney-in-fact and agent may lawfully do or cause to be done by
virtue hereof in connection with such filings.
This agreement may be executed in any number of counterparts
and all of such counterparts taken together shall constitute one and the same
instrument.
<PAGE> 31
IN WITNESS WHEREOF, the undersigned have caused this Joint
Filing Agreement and Power of Attorney to be duly executed and delivered as of
the 10th day of May, 1999.
APGC HOLDINGS COMPANY, LLC
By: /s/ Cindy L. Davis
--------------------------------------
Title: President & CEO
------------------------------------
/s/ John T. Lupton
------------------------------------------
John T. Lupton
ARNOLD PALMER ENTERPRISES, INC.
By: /s/ Alastair J. Johnston
--------------------------------------
Title: Chief Operating Officer
------------------------------------
/s/ Cindy L. Davis
------------------------------------------
Cindy L. Davis
/s/ Arnold D. Palmer
------------------------------------------
Arnold D. Palmer
