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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report. .. . . . . . . . . . . . . . June 24, 1997
CABLE CAR BEVERAGE CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware 0-14784 52-0880815
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State or other jurisdiction Commission (I.R.S. Employer
of incorporation File Number Identification No.)
717 17th Street, Suite 1475 Denver, Colorado 80202
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(Address of principal executive offices) (Zip Code)
N/A
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(Former name or former address, if changed since last report)
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Item 1. Changes in Control of Registrant
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Pursuant to a Stockholders Agreement dated June 24, 1997
entered into between Triarc Companies, Inc. ("Triarc") and the
two principal shareholders of Registrant, Samuel M. Simpson and
William H. Rutter and their respective spouses, the latter
granted Triarc an option to acquire in the aggregate 1,778,609
shares of outstanding common stock of the Registrant held by
Messrs Simpson and Rutter and their respective spouses
(representing approximately 20% of the outstanding stock) only if
the Registrant shall have taken certain action with respect to an
acquisition proposal from a party other than Triarc. On the same
date the Registrant entered into an Agreement and Plan of Merger
with Triarc and a subsidiary of Triarc. See Item 5 below.
Item 2. Acquisition on Disposition of Assets
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On June 24, 1997 Registrant entered into an agreement with
Stewart's Restaurants, Inc. ("Stewart's Restaurants") amending
and modifying an agreement of July 11, 1989 with Stewart's
Restaurants. Among other things, the new agreement gives
Registrant the ownership of formulas for and manufacturing rights
to concentrates used to make Stewart's soft drinks. The new
agreement also provides that the Registrant is permitted to use
the Stewart's trademark on any other product of any type and that
Stewart's shall not, without Registrant's consent, use the
Stewart's trademark except to operate Stewart's Restaurants,
Drive-Ins and mobile food and beverage concessions and on certain
other products.
On June 24, 1997 Registrant also entered into an agreement
with Stewart's Restaurants amending an agreement of December 1,
1993 with Stewart's Restaurants. Among other things the new
agreement grants to the Registrant the perpetual exclusive world-
wide license to manufacture, distribute and sell post mix syrups
and pre mixes for Stewart's beverages throughout the world
(fountain-type beverages), except that Stewart's Restaurants
retains such rights in any of its company-owned licensed or
franchised Stewart's restaurants, drive-ins or mobile food and
beverage concessions and subject to Registrant meeting certain
quality standards. Registrant also agreed to certain minimum
annual royalty payments to Stewart's Restaurants.
As additional consideration for the foregoing the Registrant
agreed to issue Stewart's Restaurant 150,000 shares of its $.001
par value Common Stock.
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Item 5. Other Events
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On June 24, 1997 the Registrant entered into an Agreement
and Plan of Merger ("Agreement") with Triarc Companies, Inc.
(NYSE: TRY) whereby the Registrant agreed to be merged with a
wholly owned subsidiary of Triarc, subject to shareholders'
approval. Pursuant to the Agreement stockholders of the
Registrant are to receive .1722 shares of Triarc's Class A Common
Stock for each share of the Registrant, subject to adjustment in
the event the average price per share of Triarc for the fifteen
trading days immediately preceding the closing date is less than
$18.875 per share or more than $24.50 per share ("Conversion
Price"), all as more fully described in the Agreement which is
attached hereto as an exhibit. Triarc may terminate the
Agreement if its average share price for fifteen trading days
prior to closing is less than $15.00 in which event it is to pay
the Registrant up to $225,000 toward its expenses related to this
matter.
The Agreement and Plan of Merger provides that Triarc will
file a registration statement with the Commission covering the
shares proposed to be issued to Cable Car shareholders on
approval of the proposed merger.
Samuel M. Simpson, President of the Registrant, and Triarc
tentatively have agreed that upon completion of the proposed
merger transaction his employment contract with the Registrant
will be terminated and he will enter into a new employment
agreement for a three year period.
The two principal stockholders of the registrant, Samuel M.
Simpson and William H. Rutter, together with their respective
spouses, signed a Stockholders Agreement pursuant to which they
each agreed to vote their respective shares in favor of the
proposed merger, against any other acquisition proposal and
similar action which may prevent the proposed merger. In
addition they granted Triarc an irrevocable proxy if they should
fail to vote for the proposed merger or against action
inconsistent with completing the proposed merger. They further
granted Triarc an option to purchase the 1,778,609 shares, using
the same formula as used to determine the Conversion Price,
subject to adjustment, if the Registrant takes certain action
with respect to an acquisition proposal from a competing party.
A copy of the Stockholders Agreement is attached.
The attached press release provides information on Triarc
and the proposed transaction. Triarc's Class A Common Stock
closed at $20-3/8 on the NYSE on June 24, 1997.
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Item 7. Financial Statements and Exhibits
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(c) Exhibits
(2)-1 Agreement and Plan of Merger - Triarc
Companies, Inc.
(10)-V Agreement - Stewart's Restaurants, Inc.
(10)-W Agreement - Stewart's Restaurants, Inc.
(10)-X Stockholders Agreement - Samuel M. Simpson
and William H. Rutter
(99)-1 Press Release
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
(Registrant) CABLE CAR BEVERAGE CORPORATION
BY(Signature) /s/ Samuel M. Simpson
(Date) June 26, 1997
(Name and Title Samuel M. Simpson, President
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CABLE CAR BEVERAGE CORPORATION
717 17th Street, Suite 1475
Denver, Colorado 80202
June 24, 1997
Stewart's Restaurants, Inc.
114 West Atlantic Avenue
Clementon, New Jersey 08021
Gentlemen:
Reference is made to the Agreement dated July 11, 1989, as amended
(as so amended, the "Prior Master Agreement") between us and you. This
letter agreement confirms the amendments and modifications to the Prior
Master Agreement that we have agreed to. Except as amended by this letter
agreement, the Prior Master Agreement, shall continue in full force and
effect. Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings given to them in the Prior Master Agreement. To the
extent there is any inconsistency between the terms of this letter agreement
and the Prior Master Agreement, the terms of this letter agreement shall
govern.
Accordingly, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. Territory. Subject to continuing to meet the minimum case
requirements set forth in the last sentence of paragraph 3 of the Prior
Master Agreement after the date hereof, the territory of Licensee's rights
under the Prior Master Agreement is now worldwide as provided in paragraph
3 of the Prior Master Agreement.
2. Quality Control.
(a) Licensee and Owner shall comply with standards of
quality comparable to that maintained by Licensee in
selling and distributing STEWART'S soft drinks.
(b) Commencing January 1, 1998, Licensee may purchase soft
drink concentrates or syrups for making STEWART'S soft
drinks (which term, for all purposes of this letter
agreement and the Prior Master Agreement, shall include
all non-carbonated and carbonated non-alcoholic
beverages, excluding postmix syrup and premix
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beverages) from any supplier; provided that any
concentrates or syrups purchased shall comply with the
quality standards set forth in clause (a) above;
provided, further, that the Licensee will purchase
concentrates and syrups for a minimum of 1.75 million
cases of soft drinks per year for 1998, 1999 and 2000
from the existing supplier of concentrates and syrups
for STEWART'S soft-drinks at existing prices. Licensee
will submit to the Owner such samples and analyses as
Owner may from time to time reasonably request in
connection with STEWART'S soft drinks, it being
understood however, that the Owner may object to any
such sample or analysis only if it does not comply with
the quality standards set forth in clause (a) above.
Licensee shall be permitted to deal directly with and
make payment to, any of such suppliers. Owner agrees
that it will from time to time as reasonably requested
by Licensee provide, at mutually agreed upon fees,
consulting services to Licensee with respect to the
production of STEWART'S soft drinks.
(c) Licensee agrees to comply in all material respects with
all applicable requirements of laws and regulations.
(d) Licensee agrees to use commercially reasonable effects
to require sublicensees to maintain uniform quality and
control over soft drinks made and offered for sale under
the STEWART'S trademark.
3. Labelling and Advertising. Licensee agrees that all labels,
containers, advertising and other promotional material of Licensee bearing
the STEWART'S mark shall be in good taste and of good quality. Owner shall
not have approval rights with respect to any labels, containers, advertising
or other promotional matter of Licensee and its sublicensees. Licensee agrees
to provide to Owner, on or about July 1 of each year, commencing July 1, 1998,
samples of all labels then used on Licensee's STEWART'S products.
4. Sublicensees. The Licensee shall be permitted to use any form
of sublicensing agreement with sublicensees that is not inconsistent with the
Prior Master Agreement, as amended hereby.
5. Royalties.Licensee shall pay the per case royalties set forth
in the Prior Master Agreement for all soft drinks sold by the Licensee under
the STEWART'S trademark. Payment of such royalties shall be made monthly
within 20 days after the month for which such royalties shall apply and shall
be accompanied by documentation setting forth the calculation of such
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royalties. Within 120 days of the end of each fiscal year, the Licensee
shall deliver to the Owner a certification from a "Big-Six" accounting firm
certifying the amount of royalties due to the Owner with respect to such
fiscal year.
6. New Products.
(a) In addition to all rights granted under the Prior Master
Agreement and this letter agreement with regard to soft
drinks, Licensee shall also be permitted to use the STEWART'S
trademark, mark or other identifying means on any other
product of any type, (such other products are referred to as
"New Products"), provided that such New Products comply with
the quality standards set forth in paragraph 2(a) above;
provided that if the quality standard set forth in paragraph
2(a) would be inapplicable to such New Product, then such New
Product shall be of good quality. Owner shall be entitled to
a royalty of 2% of the "net sales" of any New Products
produced by the Licensee in accordance with the terms of this
paragraph. For purposes of this letter agreement,
"net sales" of a New Product means the sum of money actually
received by Licensee from sales of such New Product less,
to the extent applicable, the sum of (i) sales, excise, use,
currency, repatriation and similar taxes, (ii) returns, (iii)
trade discounts, (iv) sales commissions, (v) shipping costs
and (vi) credits (other than advertising credits).
(b) Owner shall not manufacture, distribute or sell any products
bearing the STEWART'S trademark, mark or other identifying
means without the prior written consent of the Licensee,
which consent may be given or withheld by Licensee in its
sole discretion. Notwithstanding the foregoing, Licensee
acknowledges that Owner retains all rights to own, operate,
license or franchise STEWART'S Restaurants, Drive-Ins and
mobile food and beverage concession trailers, in each case
where the STEWART'S brand is the primary brand associated
with such location (collectively, "Owner's Locations"), and
to sell post mix syrups and pre mix beverages at or to
Owner's Locations. Licensee also acknowledges that (i)
Owner retains all rights to sell and market good quality ice
cream and hot dogs using the STEWART'S trademark, (ii) Owner
retains all rights to do STEWART'S advertising (provided that
such advertising is in good taste and of good quality) for,
and to sell paper goods and promotional items identified by
the STEWART'S trademark at or to, Owner's Locations and (iii)
Owner may, subject to (x) such products meeting the quality
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standards set forth in paragraph 2(a) above and (y) obtaining
the prior approval of Licensee (which approval will not be
unreasonably withheld or delayed), sell and market popsicles,
water ice and chile using the STEWART'S trademark. Licensee
shall not be entitled to a royalty with respect to sales of
any product produced, distributed or sold by Owner in
accordance with the terms of this paragraph 6.
Notwithstanding the foregoing, Owner's right to sell and
market any product listed in clause (iii) above shall
automatically revert to Licensee (A) if within four (4) years
of the date of this letter agreement Owner is not actively
selling or marketing such product or (B) if after Owner
has commenced selling or marketing such product a two-year
period shall have elapsed during which Owner shall not be
selling or marketing such product. Owner agrees to execute
and deliver to Licensee such documents as Licensee shall
reasonably request to evidence any such reversion of rights
to Licensee.
(c) Each party agrees to indemnify and hold the other party
harmless from any and all claims, suits, loss or damage
(including reasonable attorneys' fees and expenses) arising
out of or relating to any products produced, distributed
or sold by such party in accordance with the terms of this
paragraph 6.
7. Notice of Infringement. Owner agrees to notify Licensee in
writing of any suspected infringement of the STEWART'S mark and/or of any
claim made against it or adverse to or conflicting with the ownership of the
STEWART'S mark by the Owner. Each party agrees that it will not
intentionally do anything harmful to the reputation of the STEWART'S mark or
to the other party's interest therein.
8. Registration.
(a) The Owner agrees that it will take whatever action may be
required by law to secure and maintain its federal
registration or registrations in the United States of
STEWART'S for soft drinks or in connection with any of
Licensee's New Products, including the timely filing of
applications for registration and acquisition of any renewals
or extensions thereof. Owner hereby appoints Licensee its
attorney and agent-in-fact, and if the Owner fails to so act,
Licensee may act on Owner's behalf to maintain said
registrations at Owner's expense, provided that Licensee
first makes written demand upon the Owner to so act and the
Owner fails to act within twenty (20) days of its receipt of
the demand; and provided, further, that any costs incurred in
connection with the registration of New Products in the
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United States shall be paid by Licensee except that Licensee
may credit any such amount paid by it against royalties owed
by Licensee to Owner with respect to such New Product.
(b) The Owner agrees to take whatever action may be requested by
Licensee to register and maintain the mark STEWART'S for soft
drinks or in connection with any of Licensee's New Products,
in countries outside of the United States, including the
timely filing of applications for registration and
acquisition of any renewals or extensions thereof. The
filing and prosecution of such applications shall be the
responsibility of Owner, who shall be promptly reimbursed for
all reasonable expenses, including attorney's fees, in
connection therewith by the Licensee. If it fails to so act,
Licensee may act as an agent on Owner's behalf to maintain
said registrations at Owner's expense, provided that Licensee
first makes written demand upon the Owner to so act and the
Owner fails to act within twenty (20) days of its receipt of
the demand; provided, further, that any costs incurred in
connection with the registration of the STEWART'S trademark
for soft drinks or New Products in any foreign jurisdiction
shall be paid by Licensee, except that Licensee may credit
any such amount paid by it against royalties owed by Licensee
to Owner with respect to sales by Licensee in such
jurisdiction. The Owner's obligations under this paragraph
shall cease upon the transfer of the foreign rights to the
Licensee pursuant to paragraph 17(b) of the Prior Master
Agreement.
9. Infringement. The Owner and Licensee jointly or singly may
police the mark STEWART'S including the institution of proceedings in the
appropriate tribunals to prevent trademark infringement, unauthorized use of
the mark, colorable imitations, unfair competition and/or the registration by
others of confusingly similar marks, except that the Licensee shall not take
any such action without first advising Owner in writing of such intention to
act and giving Owner the first option to so act. Owner shall notify Licensee
within ten (10) business days after the date of receipt of such notice from
Licensee of Owner's decision to institute any proceeding or other action
under this paragraph. If Owner fails to notify Licensee of its decision
within ten (10) business days or elects to take no action, Licensee shall be
free to take any action it deems appropriate to protect its interest under
this agreement. Where such action is instituted by either party, the other
party agrees to furnish such assistance as may reasonably be requested
including becoming a party to the action. The cost of all policing of the
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mark shall be borne equally by the parties if the policing relates to a third
party use of a mark in connection with soft drinks; provided that the cost
borne by Owner pursuant to this sentence during any calendar year shall not
exceed the royalties paid by Licensee to Owner with respect to such calendar
year; and provided, further that the cost borne by Owner pursuant to this
sentence in any calendar year with respect to all unsuccessful actions which
were brought by Licensee after Owner elected not to bring such actions shall
not exceed 25% of the royalties paid by Licensee to Owner with respect to
such calendar year. The cost of any action (other than with respect to soft
drinks) under this paragraph shall be borne by the party instituting such
action. In the event that a monetary recovery is awarded in any action
brought pursuant to this paragraph, such recovery shall first be used to
reimburse each party (prorata) for any costs that it incurred as a result of
such action, thereafter each party shall be entitled to receive any damages
that are expressly awarded to such party by the court (pro rata based on the
relative amounts of such awards) and thereafter, any remaining amounts shall
be paid to the party that brought such action.
10. Ownership.
(a) The rights to be transferred in accordance with paragraph
13(B) of the Prior Master Agreement shall include the
associated goodwill.
(b) The Licensee shall own all formulae, rights to packaging and
other rights with respect to soft drinks and New Products
bearing the STEWART'S trademark (other than ownership of the
STEWART'S trademark in the United States). Owner shall at
Licensee's cost, assign whatever rights it has to such
formulae, packaging and other rights (other than ownership
of the STEWART'S trademark in the United States) with respect
to such products. Owner agrees that, if Licensee shall
change any formula for any soft drink sold under the
STEWART'S trademark, Owner shall change the formula that
it uses for the corresponding post mix syrup and pre mix
beverage so as to be substantially identical with Licensee's
formula so long as such change is being made by Licensee in
its reasonable business judgment (i) in order to enhance the
quality or flavor of such soft drink, (ii) if any formula
ingredient becomes unavailable (by governmental regulation or
otherwise) or (iii) if the relative cost of any formula
ingredient becomes commercially unreasonable for use.
Licensee agrees in any such case to use commercially
reasonable efforts to maintain the quality of any such
product.
11. Term. The Prior Master Agreement, as amended hereby, shall
be perpetual unless sooner terminated as provided in the Prior Master
Agreement, as amended hereby.
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12. Termination.
(a) In the case of a material violation by either party of any
one or more of the material terms of this letter agreement
or the Prior Master Agreement and the failure of the
violating party to correct such violation within forty-five
(45) days following the receipt of written notice of
violation from the other party, such other party shall be
entitled to terminate this letter agreement and the Prior
Master Agreement on forty-five (45) days prior written
notice; provided, however, that if any such breach is
curable by Licensee, then for so long as Licensee is
attempting in good faith to cure such breach, the
Owner may not terminate this letter agreement or the Prior
Master Agreement.
(b) Notwithstanding anything to the contrary, the Prior Master
Agreement may be cancelled immediately by the Owner in the
event of Licensee's failure to prepare the soft drinks
identified by trademark STEWART'S in substantial conformity
with the quality standards being met by Licensee as of the
date hereof. Such cancellation shall be effective on the
date written notice thereof is received by the Licensee;
provided, however, that if any of the foregoing violations
are the result of a mistake or oversight not involving any
bad faith or willful misconduct or adulteration or
substitution on the part of the Licensee, itself, then
cancellation shall only be effective in the event that
Licensee fails to correct such violation within ninety (90)
days following receipt of written notice of violation (which
shall include full details of such violation) from the Owner;
provided, further, that if any of the foregoing violations
are the result of a default by a sublicensee, the Owner's
sole remedy shall be to have the right to require Licensee to
terminate its sublicense with such sublicensee, except that
if Licensee shall fail, within sixty (60) days of the date
Owner makes such request, to take reasonable steps to pursue
the termination of such sublicense, then Owner shall have the
right to terminate this letter agreement and the Prior Master
Agreement.
13. Right of First Refusal. Owner, William Fessler and Michael W.
Fessler hereby grant to Licensee a right of first refusal with respect to (i)
any shares of stock of Owner or any equity interest in any parent company of
Owner which is proposed to be sold, and (ii) any proposed sale of the Prior
Master Agreement, the Agreement dated December 1, 1993, as amended, between
the parties hereto or any of Owner's rights with respect to the STEWART'S
trademark; provided that such shares of stock, equity interests or rights may
be transferred to immediate family members of William Fessler or Michael W.
Fessler so long as prior to such transfer such transferee agrees to be
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bound by the terms of this letter agreement as if such transferee were an
original signatory hereto. Licensee shall have fifteen (15) business days
from the date on which it receives a notice (which notice shall contain a
description of the proposed sale, the name and address of the proposed
purchaser and a copy of all agreements with such proposed purchaser) with
respect to such proposed sale (the "Notice Date") to notify Owner whether it
will exercise its right of first refusal. If Licensee shall elect to
exercise such right, the proposed sale to Licensee shall be consummated
within 45 days after the Notice Date, subject to extension for receipt of all
necessary governmental and regulatory approvals.
14. Arbitration. All disputes under this letter agreement or the
Prior Master Agreement shall be resolved through binding arbitration in
Philadelphia, Pennsylvania under the commercial rules and regulations of the
American Arbitration Association. In any such dispute, the arbitrators
shall have the right in their discretion to award attorneys' fees, costs and
damages.
15. Expenses. Licensee shall pay Owner within 10 days of the
date hereof the sum of $2,500 to compensate Owner for legal and other
expenses incurred in connection with this letter agreement.
16. Notices. Any notice given by either party hereunder shall
be deemed to have been properly given if sent by telecopy (provided that
receipt is acknowledged), registered or certified mail (return receipt
requested) or by reputable overnight courier to the address of the party
set forth below:
If to Owner, to:
Stewart's Restaurants, Inc.
114 West Atlantic Avenue
Clementon, NJ 08021
Attn: President
Telecopy: (609) 783-7616
If to Licensee, to:
Cable Car Beverage Corporation
717 17th Street
Denver, Colorado 80202
Attn: President
Telecopy: (303) 298-1150
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With a copy to:
Triarc Companies, Inc.
280 Park Avenue
New York, NY 10017
Attn: General Counsel
Telecopy: (212) 451-3216
Each party shall promptly advise the other in writing in the
manner provided above whenever its address for notices hereunder shall
change.
17. Assignment. This letter agreement shall be binding on the
successors and permitted assigns of the Licensee, Owner, William Fessler and
Michael W. Fessler. This letter agreement may not be assigned by Licensee
(other than to an affiliate thereof) without the prior written consent of
the Owner, which consent shall not be unreasonably withheld or delayed.
Owner's right to assign its rights under this letter agreement or under the
Prior Master Agreement shall be subject to paragraph 13 of this letter
agreement. Owner hereby acknowledges and consents to the acquisition
(including through a merger where the Licensee is the surviving corporation)
of all of the outstanding capital stock of Licensee by Triarc Companies, Inc.
or its affiliates.
18. Governing Law. This letter agreement shall be governed by the
law of the State of New Jersey.
19. Amendment. This letter agreement may not be amended or
otherwise modified, and no provision hereof may be waived, except in writing
signed by each of the parties hereto.
20. Effectiveness. This letter agreement shall be effective upon
execution by each of the parties hereto. This letter agreement shall
supersede all prior agreements between the parties hereto with respect to the
subject matter hereof (including, without limitation, the Prior Master
Agreement to the extent amended hereby). This letter agreement is the legal,
valid and binding obligation of each of the parties hereto. The parties
hereto intend to execute and deliver a definitive new Master Agreement
embodying the terms of this letter agreement, but until such time as it is
executed and delivered, this letter agreement shall be deemed a legal, valid
and binding obligation of each of the parties hereto. In consideration for
the execution, delivery and performance of this letter agreement, Licensee
agrees promptly to issue to Owner 10,000 shares of common stock of Licensee.
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21. Counterparts. This letter agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. The parties
agree that a telecopied signature shall be deemed an original and shall be
sufficient to evidence execution and delivery of this letter agreement by the
applicable party.
IN WITNESS WHEREOF, this letter agreement has been duly executed as
of the day, month, and year first above written.
STEWART'S RESTAURANTS, INC.
BY(Signature) /s/Michael W. Fessler
(Title) President
CABLE CAR BEVERAGE CORPORATION
BY(Signature) /s/Samuel M. Simpson
(Title) President
PARAGRAPHS 13 AND 17 AGREED TO
AND ACCEPTED:
____________________________________
William Fessler
BY(Signature) /s/Michael W. Fessler
(Name) Michael W. Fessler
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CABLE CAR BEVERAGE CORPORATION
717 17th Street, Suite 1475
Denver, Colorado 80202
June 24, 1997
Stewart's Restaurants, Inc.
114 West Atlantic Avenue
Clementon, New Jersey 08021
Gentlemen:
Reference is made to the Agreement dated December 1, 1993, as
amended (as so amended the "Prior Fountain Agreement") between us and you.
This letter agreement confirms the amendments and modifications to the Prior
Fountain Agreement that we have agreed to. Except as amended by this letter
agreement, the Prior Fountain Agreement shall continue in full force and
effect. Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings given to them in the Prior Fountain Agreement. To
the extent there is any inconsistency between the terms of this letter
agreement and the Prior Fountain Agreement, the terms of this letter
agreement shall govern.
Accordingly, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. Grant of License; Territory.
(a) Owner hereby grants to Licensee a perpetual exclusive
license to manufacture, distribute and sell, and to
license others to manufacture, distribute and sell post
mix syrups and pre mix beverages throughout the
world, except that Owner shall retain only the right to
sell post mix syrups and pre mix beverages to any of
Owner's company-owned, licensed or franchised STEWART'S
Restaurants, Drive-Ins or mobile food and beverage
concession trailers, in each case where the STEWART'S
brand is the primary brand associated with such
location. Licensee agrees to respect the geographic
limitations on sales of STEWART'S products by Owner or
third parties to the extent that such limitations are
set forth in writing in an agreement existing on the
date hereof with Owner's licensees or franchisees.
Owner represents that in no circumstance, other than
with respect to a licensee in Huntington, West Virginia,
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is the geographic limitation contained in any such
agreement in excess of 5 miles. To the extent permitted
by applicable law, Owner agrees not to enter into or
renew any license, franchise or similar agreement which
contains any geographic limitation on the right of
Licensee to sell any product under the STEWART'S
trademark.
(b) Owner agrees to assign the Licensee all of its rights
under and with respect to its agreements with Somerset
Syrup, of Edison, New Jersey, General Carbonator, of
Philadelphia, Pennsylvania, Doug's Classic 57, in
Alliance, Ohio ("Doug's") and Arlene's Dog n' Suds, in
Elyria, Ohio ("Arlene's"); provided that Licensee shall
enter into a sublicense agreement with Owner pursuant to
which Owner may continue to sell STEWART'S products to
Doug's and Arlene's.
2. Quality Control.
(a) Licensee and Owner shall comply with standards of
quality comparable to that maintained by Licensee in
selling and distributing STEWART'S soft drinks (which
term, for all purposes of this letter agreement and the
Prior Fountain Agreement, shall mean all non-carbonated
and carbonated nonalcoholic beverages, in post mix syrup
and pre mix beverage form).
(b) Commencing January 1, 1998, Licensee may purchase soft
drink concentrates or syrups for making STEWART'S post
mix syrup and premix beverages from any supplier without
the approval of Owner; provided, however that any
concentrates or syrups purchased shall comply with the
quality standards set forth in clause (a) above.
Licensee will submit to the Owner such samples and
analyses as Owner may from time to time reasonably
request in connection with STEWART'S soft drinks, it
being understood however, that the Owner may object to
any such sample or analysis only if it does not comply
with the quality standards set forth in clause (a)
above. Licensee shall be permitted to deal directly
with and make payment to, any of such suppliers.
(c) Licensee agrees to comply in all material respects with
all applicable requirements of laws and regulations.
(d) Licensee agrees to use commercially reasonable effects
to require sublicensees to maintain uniform quality and
control over soft drinks made and offered for sale under
the STEWART'S trademark.
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(e) Each party agrees to indemnify and hold the other party
harmless from any and all claims, suits, loss or damage
(including reasonable attorneys' fees and expenses) arising
out of or relating to any products produced, distributed
or sold by such party in accordance with the terms of this
letter agreement and the Prior Fountain Agreement.
3. Labelling and Advertising. Licensee agrees that all labels,
containers, advertising and other promotional material of Licensee bearing
the STEWART'S mark shall be in good taste and of good quality. Owner shall
not have approval rights with respect to any labels, containers, advertising
or other promotional matter of Licensee and its sublicensees. Licensee
agrees to provide to Owner, on or about July 1 of each year, commencing July
1, 1998, samples of all labels then used on Licensee's STEWART'S products.
4. Sublicensees. The Licensee shall be permitted to use any form
of sublicensing agreement with sublicensees that is not inconsistent with the
Prior Fountain Agreement, as amended hereby.
5. Royalties.
(a) Licensee shall pay the royalties set forth in the Prior
Fountain Agreement on a monthly basis within 20 days after
the month for which such royalties apply and shall be
accompanied by documentation setting forth the calculation
of such royalties. Within 120 days of the end of each
fiscal year, the Licensee shall deliver to the Owner a
certification from a "Big-Six" accounting firm certifying
the amount of royalties due to the Owner with respect to such
fiscal year.
(b) The annual minimum royalties to be paid by Licensee to Owner
under the Prior Fountain Agreement, as amended hereby, shall
be (i) $20,000 for each of calendar years 1998 and 1999, (ii)
$40,000 for calendar year 2000, (iii) $60,000 for calendar
year 2001, (iv) $80,000 for calendar year 2002 and (v)
$100,000 for calendar year 2003 and thereafter. Such
minimum royalties shall be paid in advance, on or prior to
January 31 of each year, and shall be credited against actual
royalties due and payable by Licensee to Owner under the
Prior Fountain Agreement.
6. Notice of Infringement. Owner agrees to notify Licensee in
writing of any suspected infringement of the STEWART'S mark and/or of any
claim made against it or adverse to or conflicting with the ownership of the
STEWART'S mark by the Owner. Each party agrees that it will not
intentionally do anything harmful to the reputation of the STEWART'S mark or
to the other party's interest therein.
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7. Registration.
(a) The Owner agrees that it will take whatever action may be
required by law to secure and maintain its federal
registration or registrations in the United States of
STEWART'S for soft drinks (including with respect to soft
drinks in post mix syrup and pre mix beverage form) including
the timely filing of applications for registration and
acquisition of any renewals or extension thereof. Owner
hereby appoints Licensee its attorney and agent-in-fact, and
if the Owner fails to so act, Licensee may act on Owner's
behalf to maintain said registrations at Owner's expense,
provided that Licensee first makes written demand upon the
Owner to so act and the Owner fails to act within twenty (20)
days of its receipt of the demand.
(b) The Owner agrees to take whatever action may be requested by
Licensee to register and maintain the mark STEWART'S for soft
drinks (including with respect to soft drinks in post mix
syrup and pre mix beverage form) in countries outside of the
United States, including the timely filing of applications
for registration and acquisition of any renewals or
extensions thereof. The filing and prosecution of such
applications shall be the responsibility of Owner, who shall
be promptly reimbursed for all reasonable expenses, including
attorney's fees, in connection therewith by the Licensee.
If it fails to so act, Licensee may act as an agent on
Owner's behalf to maintain said registrations at Owner's
expense, provided that Licensee first makes written demand
upon the Owner to so act and the Owner fails to act
within twenty (20) days of its receipt of the demand;
provided, further, that any costs incurred in connection
with the registration of the STEWART'S trademark for soft
drinks in any foreign jurisdiction shall be paid by
Licensee, except that Licensee may credit any such amount
paid by it against royalties owed by Licensee to Owner with
respect to sales by License in such jurisdiction. The
Owner's obligations under this paragraph shall cease upon
the transfer of the foreign rights to the Licensee pursuant
to paragraph 17(b) of the Agreement dated July 11, 1989, as
amended, between the parties hereto.
8. Infringement. The Owner and Licensee jointly or singly may
police the mark STEWART'S including the institution of proceedings in the
appropriate tribunals to prevent trademark infringement, unauthorized use of
the mark, colorable imitations, unfair competition and/or the registration by
others of confusingly similar marks, except that the Licensee shall not take
any such action without first advising Owner in writing of such intention to
act and giving Owner the first option to so act. Owner shall notify Licensee
within ten (10) business days after the date of receipt of such notice from
Licensee of Owner's decision to institute any proceeding or other action
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under this paragraph. If Owner fails to notify Licensee of its decision
within ten (10) business days or elects to take no action, Licensee shall be
free to take any action it deems appropriate to protect its interest under
this agreement. Where such action is instituted by either party, the other
party agrees to furnish such assistance as may reasonably be requested
including becoming a party to the action. The cost of all policing of the
mark shal be borne equally by the parties if the policing relates to a
third party use of a mark in connection with soft drinks; provided that
the cost borne by Owner pursuant to this sentence during any calendar year
shall not exceed the royalties paid by Licensee to Owner with respect to
such calendar year; provided, further, that the cost borne by Owner pursuant
to this sentence in any calendar year with respect to all unsuccessful
actions which were brought by Licensee after Owner elected not to bring such
actions shall not exceed 25% of the royalties paid by Licensee to Owner with
respect to such calendar year. The cost of any action (other than with
respect to soft drinks) under this paragraph shall be borne by the party
instituting such action. In the event that a monetary recovery is awarded
in any action brought pursuant to this paragraph, such recovery shall first
be used to reimburse each party (prorata) for any expenses that it incurred
as a result of such action, thereafter each party shall be entitled to
receive any damages that are expressly awarded to such party by the court
(pro rata based on the relative amounts of such awards) and thereafter, any
remaining amounts shall be paid to the party that brought such action.
9. Ownership. The Licensee shall own all formulae, rights to
packaging and other rights with respect to STEWART'S soft drinks in post mix
syrup and pre mix beverage form (other than ownership of the STEWART'S
trademark in the United States). Owner shall at Licensee's cost, assign
whatever rights it has to such formulae, packaging and other rights (other
than ownership of the STEWART'S trademark in the United States) with respect
to such products. Owner agrees that, if Licensee shall change any formula
for any soft drink sold under the STEWART'S trademark in post mix syrup or
pre mix beverage form, Owner shall change the formula that it uses for its
corresponding product so as to be substantially identical to Licensee's
formula so long as such change is being made by Licensee in its reasonable
business judgement (i) in order to enhance the quality or flavor of such soft
drink, (ii) if any formula ingredient becomes unavailable (by governmental
regulation or otherwise) or (iii) if the relative cost of any formula
ingredient becomes commercially unreasonable for use. Licensee agrees in any
such case to use commercially reasonable efforts to maintain the quality of
any such product.
10. Term. The Prior Fountain Agreement, as amended hereby, shall
be perpetual unless sooner terminated as provided in the Prior Fountain
Agreement, as amended hereby.
11. Termination.
(a) In the case of a material violation by either party of any
one or more of the material terms of this agreement and the
failure of the violating party to correct such violation
within forty-five (45) days following the receipt of
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written notice of violation from the other party, such other
party shall be entitled to terminate this letter agreement
and the Prior Fountain Agreement on forty-five (45) days
prior written notice; provided, however, that if any
such breach is curable by Licensee, then for so long as
Licensee is attempting in good faith to cure such breach,
the Owner may not terminate this letter agreement or the
Prior Fountain Agreement.
(b) Notwithstanding anything to the contrary, the Prior Fountain
Agreement may be cancelled immediately by the Owner in the
event of Licensee's failure to prepare the soft drinks
identified by trademark STEWART'S in substantial conformity
with the quality standards being met by Licensee as of the
date hereof. Such cancellation shall be effective on the
date written notice thereof is received by the Licensee;
provided, however, that if any of the foregoing violations
are the result of a mistake or oversight not involving any
bad faith or willful misconduct or adulteration or
substitution on the part of the Licensee, itself, then
cancellation shall only be effective in the event that
Licensee fails to correct such violation within ninety (90)
days following receipt of written notice of violation (which
shall include full details of such violation) from the Owner;
provided, further, that if any of the foregoing violations
are the result of a default by a sublicensee, the Owner's
sole remedy shall be to have the right to require Licensee to
terminate its sublicense with such sublicensee, except that
if Licensee shall fail, within sixty (60) days of the date
Owner makes such request, to take reasonable steps to pursue
the termination of such sublicense, then Owner shall have the
right to terminate this letter agreement and the Prior
Fountain Agreement.
12. Arbitration. All disputes under this letter agreement or the
Prior Fountain Agreement shall be resolved through binding arbitration in
Philadelphia, Pennsylvania under the commercial rules and regulations of the
American Arbitration Association. In any such dispute, the arbitrators
shall have the right in their discretion to award attorneys fees, costs and
damages.
13. Expenses. Licensee shall pay Owner within 10 days of the
date hereof the sum of $2,500 to compensate Owner for legal and other
expenses incurred in connection with this letter agreement.
14. Notices. Any notice given by either party hereunder shall
be deemed to have been properly given if sent by telecopy (provided that
receipt is acknowledged), registered or certified mail (return receipt
requested) or by reputable overnight courier to the address of the party
set forth below:
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If to Owner, to:
Stewart's Restaurants, Inc.
114 West Atlantic Avenue
Clementon, NJ 08021
Attn: President
Telecopy: (609) 783-7616
If to Licensee, to:
Cable Car Beverage Corporation
717 17th Street
Denver, Colorado 80202
Attn: President
Telecopy: (303) 298-1150
With a copy to:
Triarc Companies, Inc.
280 Park Avenue
New York, NY 10017
Attn: General Counsel
Telecopy: (212) 451-3216
Each party shall promptly advise the other in writing in the
manner provided above whenever its address for notices hereunder shall
change.
15. Assignment. This letter agreement shall be binding on the
successors and permitted assigns of the Licensee. This letter agreement may
not be assigned by Licensee (other than to an affiliate thereof) without the
prior written consent of the Owner, which consent shall not be unreasonably
withheld or delayed. Owner's right to assign its rights under this letter
agreement or under the Prior Fountain Agreement shall be subject to the terms
of the Agreement dated July 11, 1989, as amended, between us and you. Owner
hereby acknowledges and consents to the acquisition (including through a
merger where the Licensee is the surviving corporation) of all of the
outstanding capital stock of Licensee by Triarc Companies, Inc. or its
affiliates.
16. Governing Law. This letter agreement shall be governed by
the law of the State of New Jersey.
17. Amendment. This letter agreement may not be amended or
otherwise modified, and no provision hereof may be waived, except in writing
signed by each of the parties hereto.
18. Effectiveness. This letter agreement shall be effective upon
execution by each of the parties hereto. This letter agreement shall
supersede all prior agreements between the parties hereto with respect to the
subject matter hereof (including, without limitation, the Prior Fountain
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Agreement to the extent amended hereby). This letter agreement is the legal,
valid and binding obligation of each of the parties hereto. The parties
hereto intend to execute and deliver a definitive new Fountain Agreement
embodying the terms of this letter agreement, but until such time as it is
executed and delivered, this letter agreement shall be deemed the legal,
valid and binding obligation of each of the parties hereto. In consideration
for the execution, delivery and performance of this letter agreement,
Licensee agrees promptly to issue to Owner 140,000 shares of common stock of
Licensee.
19. Counterparts. This letter agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. The parties
agree that a telecopied signature shall be deemed an original and shall be
sufficient to evidence execution and delivery of this letter agreement by the
applicable party.
IN WITNESS WHEREOF, this letter agreement has been duly executed
as of the day, month, and year first above written.
STEWART'S RESTAURANTS, INC.
BY(Signature) /s/Michael W. Fessler
(Title) President
CABLE CAR BEVERAGE CORPORATION
BY(Signature) /s/Samuel M. Simpson
(Title) President
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AGREEMENT AND PLAN OF MERGER
By and Among
CABLE CAR BEVERAGE CORPORATION,
TRIARC COMPANIES, INC.
AND
CCB MERGER CORPORATION
_________________________________
Dated June 24, 1997
_________________________________
<PAGE>
TABLE OF CONTENTS
-----------------
Page
ARTICLE I
THE MERGER
Section 1.1 The Merger. . . . . . . . . . . . 2
Section 1.2 Closing . . . . . . . . . . . . . 3
Section 1.3 Certificate of Incorporation. . . 3
Section 1.4 By-laws . . . . . . . . . . . . . 4
Section 1.5 Board of Directors and Officers . 4
Section 1.6 Meeting of Company Stockholders . 4
Section 1.7 SEC Filings . . . . . . . . . . . 6
Section 1.8 Effective Time of the Merger. . . 8
ARTICLE II
CONVERSION OF SHARES
Section 2.1 Conversion of Shares. . . . . . . 8
Section 2.2 No Further Transfers. . . . . . .12
Section 2.3 Exchange of Shares of Company
Common Stock . . . . . . . . . . 12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 Organization and Good Standing. .15
Section 3.2 Corporate Authorization;
Validity of Agreement; Company
Action . . . . . . . . . . . . . 16
Section 3.3 Capitalization. . . . . . . . . .17
Section 3.4 Reports and Financial Statements.19
Section 3.5 Absence of Certain Changes. . . .20
Section 3.6 Consents and Approvals; No
Violations . . . . . . . . . . . 21
Section 3.7 No Undisclosed Liabilities. . . .22
Section 3.8 Registration Statement. . . . . .22
Section 3.9 Litigation; Compliance with Law .22
Section 3.10 Taxes . . . . . . . . . . . . . .23
Section 3.11 No Default. . . . . . . . . . . .26
Section 3.12 Contracts . . . . . . . . . . . .27
Section 3.13 Intellectual Property . . . . . .28
Section 3.14 Employee Benefit Plans. . . . . .30
Section 3.15 Inventory and Supplies. . . . . .31
Section 3.16 Receivables . . . . . . . . . . .32
Section 3.17 Case Sales. . . . . . . . . . . .32
Section 3.18 Transactions with Affiliates. . .32
Section 3.19 State Takeover Statutes . . . . .33
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND MERGERCO
Section 4.1 Organization and Good Standing. .33
Section 4.2 Corporate Authorization;
Validity of Agreement . . . . . .34
Section 4.3 Capitalization. . . . . . . . . .35
Section 4.4 Reports and Financial Statements.35
Section 4.5 Absence of Certain Changes. . . .36
Section 4.6 Consents and Approvals; No
Violations . . . . . . . . . . . 37
Section 4.7 Registration Statement. . . . . .38
Section 4.8 Tax Representations.. . . . . . .39
ARTICLE V
COVENANTS
Section 5.1 Interim Operations of the
Company . . . . . . . . . . . . .39
Section 5.2 Access to Information . . . . . .44
Section 5.3 Consents and Approvals. . . . . .44
Section 5.4 No Solicitation . . . . . . . . .45
Section 5.5 Additional Agreements . . . . . .47
Section 5.6 Notification of Certain Matters .48
Section 5.7 Indemnification of Directors
and Officers . . . . . . . . . . 48
Section 5.8 Rule 145 Affiliates . . . . . . .49
Section 5.9 Stock Exchange Listing. . . . . .49
Section 5.10 Tax-Free Reorganization.. . . . .49
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 Conditions to the Obligations
of Each Party . . . . . . . . . .50
Section 6.2 Conditions to the Obligations
of the Parent and Mergerco . . . 51
Section 6.3 Conditions to the Obligations
of the Company . . . . . . . . . 54
ARTICLE VII
TERMINATION
Section 7.1 Termination . . . . . . . . . . .55
Section 7.2 Effect of Termination . . . . . .59
ARTICLE VIII
GENERAL AGREEMENTS
Section 8.1 Definitions . . . . . . . . . . .59
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Section 8.2 Survival of Representations,
Warranties and Agreements . . . .66
Section 8.3 Expenses. . . . . . . . . . . . .66
Section 8.4 Notice. . . . . . . . . . . . . .67
Section 8.5 Amendments. . . . . . . . . . . .68
Section 8.6 Waiver. . . . . . . . . . . . . .69
Section 8.7 Brokers . . . . . . . . . . . . .69
Section 8.8 Publicity . . . . . . . . . . . .70
Section 8.9 Headings. . . . . . . . . . . . .70
Section 8.10 Non-Assignability . . . . . . . .70
Section 8.11 Entire Agreement; No Third
Party Beneficiaries; Rights of
Ownership . . . . . . . . . . . .71
Section 8.12 Specific Performance. . . . . . .71
Section 8.13 Counterparts. . . . . . . . . . .71
Section 8.14 Governing Law . . . . . . . . . .71
Section 8.15 Consent to Jurisdiction . . . . .71
Section 8.16 WAIVER OF JURY TRIAL. . . . . . .72
Section 8.17 Disclosure Schedule . . . . . . .72
Exhibit A - Form of Restated Certificate of Incorporation
Exhibit B - Form of Affiliate Agreement
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated June 24, 1997 (this
"Agreement"), by and among Cable Car Beverage Corporation, a Delaware
corporation (the "Company"), Triarc Companies, Inc., a Delaware corporation
(the "Parent"), and CCB Merger Corporation, a Delaware corporation and a
wholly owned subsidiary of the Parent ("Mergerco").
The Boards of Directors of the Parent, Mergerco and the Company
have approved, and deem it advisable and in the best interests of their
respective stockholders to consummate, the merger of Mergerco with and into
the Company (the "Merger") upon the terms and subject to the conditions set
forth herein and in accordance with the General Corporation Law of the State
of Delaware (the "DGCL").
The Parent and Mergerco are unwilling to enter into this agreement
unless certain stockholders of the Company enter into a stockholders
agreement (the "Stockholders Agreement") among the Parent, Mergerco and such
stockholders providing for, among other things, the granting to the Parent
and Mergerco of the right to vote shares of Company Common Stock owned by
such stockholders under the circumstances set forth in such agreement and the
granting to Parent and Mergerco of an option to purchase such shares of
Company Common Stock owned by such stockholders under the circumstances and
at the price set forth in such agreement, and the Board of Directors of the
Company has approved the Parent and Mergerco entering into the Stockholders
Agreement.
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The Board of Directors of the Company, having received advice from
Montgomery Securities, its investment advisor, and an opinion from such firm
to the effect that the consideration to be received by the stockholders of
the Company pursuant to the Merger is fair to such stockholders from a
financial point of view (the "Company Fairness Opinion"), has approved the
transactions contemplated by this Agreement and the Stockholders Agreement
(the "Contemplated Transactions") in accordance with the provisions of
Section 203 of the DGCL ("Section 203") and has resolved to recommend the
approval of the Merger by the holders of shares of the Common Stock, par
value $.01 per share, of the Company (the "Company Common Stock").
For United States federal income tax purposes, it is intended
that the Merger provided for herein shall qualify as a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code").
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows (capitalized terms used herein
have the meanings ascribed to them in Section 8.1):
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the
conditions hereof and in accordance with the provisions of the DGCL, at the
Effective Time, Mergerco and the Company shall consummate the Merger pursuant
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to which Mergerco shall be merged with and into the Company in accordance
with the applicable provisions of the DGCL and the separate existence of
Mergerco shall thereupon cease, and the Company, as the surviving corporation
in the Merger (the "Surviving Corporation"), shall continue its corporate
existence under the laws of the State of Delaware as a wholly owned
subsidiary of the Parent. The Merger shall have the effects set forth in
Section 259 of the DGCL.
Section 1.2 Closing. The closing of the Merger (the "Closing")
shall take place at the offices of Paul, Weiss, Rifkind, Wharton & Garrison,
1285 Avenue of the Americas, New York, New York 10019-6064 on a date to be
specified by the parties, which shall be no later than five (5) Business Days
after all of the conditions set forth in Article VI hereof shall be fulfilled
or waived in accordance with this Agreement and applicable law or at such
other time, date and/or place as the Company, the Parent and Mergerco may
agree (the "Closing Date"). Subject to the provisions of Article VII hereof,
failure to consummate the Merger on the date and time and at the place
determined pursuant to this Section 1.2 shall not result in the termination
of this Agreement and will not relieve any party of any obligations hereunder.
Section 1.3 Certificate of Incorporation. The certificate of
incorporation of the Company as in effect immediately prior to the Effective
Time (the "Certificate of Incorporation") shall be amended in its entirety as
set forth in Exhibit A hereto, and such Certificate of Incorporation, as so
amended at the Effective Time, shall be the certificate of incorporation of
the Surviving Corporation, until thereafter further changed or amended as
provided therein or by applicable law.
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Section 1.4 By-laws. The by-laws of Mergerco as in effect
immediately prior to the Effective Time shall be the by-laws of the
Surviving Corporation until thereafter changed or amended as provided
therein or as otherwise permitted or required by the Surviving Corporation's
certificate of incorporation or by applicable law, except that at the
Effective Time, the name in the heading thereof shall be changed to "Cable
Car Beverage Corporation."
Section 1.5 Board of Directors and Officers.
(a) The directors of Mergerco immediately prior to the
Effective Time shall be the initial directors of the Surviving Corporation
and shall serve until their respective successors are duly elected or
appointed and qualify in the manner provided in the certificate of
incorporation and by-laws of the Surviving Corporation, or as otherwise
provided by applicable law.
(b) The officers of Mergerco immediately prior to the Effective
Time shall be the initial officers of the Surviving Corporation and shall
serve until their respective successors are duly elected or appointed and
qualify in the manner provided in the certificate of incorporation and
by-laws of the Surviving Corporation, or as otherwise provided by applicable
law.
Section 1.6 Meeting of Company Stockholders.
(a) Subject to the provisions of Section 1.6(b) below, the
Company shall take all necessary action in accordance with applicable law to
convene a meeting of its stockholders (a "Meeting") to consider and vote upon
the Merger and this Agreement and shall use its best efforts to hold such
Meeting as promptly as practicable after the date the Registration
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Statement becomes effective. Subject to the provisions of Section 1.6(b)
below, the Company agrees that the Board of Directors of the Company shall
recommend that the Company's stockholders vote in favor of the Merger and the
approval and adoption of this Agreement. The Parent agrees that it shall
vote, or cause to be voted, in favor of the Merger and the adoption and
approval of this Agreement any shares of Company Common Stock held by it or
by any of its Subsidiaries on the record date set by the Company for
determining shares of Company Common Stock entitled to vote at the Meeting.
(b) Nothing in Section 1.6(a) shall prevent the Board of Directors of
the Company from withdrawing, amending or modifying its unanimous
recommendation in favor of the Merger if (i) an unsolicited bona fide
written Acquisition Proposal is submitted to the Company and is not
withdrawn, (ii) the Board of Directors of the Company concludes in
good faith, based upon the advice of its financial advisor, that such
Acquisition Proposal would result in a transaction that is more favorable
from a financial point of view to the Company's stockholders than the Merger,
(iii) neither the Company nor any of its Representatives shall violate any of
the restrictions set forth in Section 5.4(a), and (iv) the Board of Directors
of the Company concludes in good faith, after consultation with its outside
legal counsel, that the withdrawal, amendment or modification of such
recommendation is required in connection with such Acquisition Proposal in
order for the Board of Directors of the Company to comply with its
fiduciary obligations to the Company's stockholders under applicable law.
Nothing in Section 1.6(a) or in Section 5.4(a) shall prevent the Board of
Directors of the Company from recommending that its stockholders accept an
unsolicited tender offer or exchange offer commenced by a third party with
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respect to shares of Company Common Stock if (1) such tender offer or
exchange offer constitutes an Acquisition Proposal, (2) the Board of
Directors of the Company shall have withdrawn its recommendation in favor
of the Merger in accordance with and as permitted by the preceding sentence,
(3) the Board of Directors of the Company shall have concluded in good faith,
based upon the advice of its financial advisor, that such tender offer or
exchange offer is more favorable from a financial point of view to the
Company's stockholders than the Merger, (4) neither the Company nor any of
its Representatives shall have violated any of the restrictions set forth in
Section 5.4, and (5) the Board of Directors of the Company shall have
concluded in good faith, after consultation with its outside legal counsel,
that the recommendation in favor of acceptance of such tender offer or
exchange offer is required in order for the Board of Directors of the
Company to comply with its fiduciary obligations to the Company's
stockholders under applicable law. Nothing contained in this Section 1.6
shall limit the Company's obligation to hold and convene the Meeting, it
being understood that the Company shall be required to hold and convene the
Meeting in accordance with this Section 1.6 unless the holding of such
Meeting would constitute a violation of any applicable court order or
statute. The Company shall use all reasonable efforts to ensure that
the holding of the Meeting will not constitute a violation of any applicable
court order or statute.
Section 1.7 SEC Filings.
(a) As soon as practicable after the date hereof, the Parent
shall prepare and file with the SEC the Registration Statement on Form S-4
(such registration statement at the time it becomes effective, together with
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all amendments duly filed and mailed is referred to as the "Registration
Statement") under the Securities Act, which registers the Parent Class A
Common Stock to be issued to the Company's stockholders pursuant to the
Merger and in which the prospectus (the "Prospectus") will be in the form of
a proxy statement. The Company shall prepare and provide the Parent with
information concerning the Company required to be included in the
Registration Statement. Such information prepared and provided by the
Company shall comply in all material respects with all applicable
requirements of law.
(b) Each of the Company and the Parent, as applicable, shall
use its reasonable best efforts to (i) respond to any comments of the SEC,
(ii) have the Registration Statement declared effective under the Securities
Act as promptly as practicable after such filing and to keep the Registration
Statement effective as long as is necessary to consummate the Merger and
(iii) cause the Prospectus to be mailed to the stockholders of the Company as
promptly as practicable after the Registration Statement is declared
effective under the Securities Act. Each of the Parent and the Company
shall notify the other promptly of the receipt of any comments from the SEC
and of any request by the SEC for amendments or supplements to the
Registration Statement or for additional information and will supply the
other with copies of all correspondence between such party or any of its
representatives and the SEC, with respect to the Registration Statement.
The Registration Statement shall comply in all material respects with all
applicable requirements of law. The Parent shall take any action required to
be taken under state blue sky or securities laws in connection with the
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Merger and the issuance of the Merger Consideration in connection therewith.
(c) No amendment or supplement to the Registration Statement
will be made without the approval of the Company, which approval will not be
unreasonably withheld or delayed. The Parent will advise the Company,
promptly after it receives notice thereof, of the time when the Registration
Statement or any amendment thereto has become effective or any amendment
thereto, or the issuance of any stop order, or the suspension of the
qualification of the Parent Class A Common Stock to be issued in the Merger
for offering or sale in any jurisdiction or of any request by the NYSE for
amendment of the Registration Statement.
Section 1.8 Effective Time of the Merger. As soon as
practicable following the satisfaction or waiver of the conditions set forth
in Article VI hereof, a Certificate of Merger shall be duly executed by the
Company and shall be duly filed with the Secretary of State of the State of
Delaware in accordance with the DGCL. The Merger shall become effective on
the date on which such Certificate of Merger is so filed with the Secretary
of State of the State of Delaware.
ARTICLE II
CONVERSION OF SHARES
Section 2.1 Conversion of Shares. At the Effective Time, by
virtue of the Merger and without any action on the part of the holder
thereof:
(a) Each share of Company Common Stock owned by the Parent or
Mergerco or by any direct or indirect Subsidiary of the Parent immediately
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prior to the Effective Time, and each share of Company Common Stock held in
the treasury of the Company or by any direct or indirect Subsidiary of the
Company immediately prior to the Effective Time (each of the foregoing shares
being an "Excluded Share"), shall, by virtue of the Merger, and without
any action on the Company or the holder thereof, be cancelled.
(b) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time (other than the Excluded Shares and
other than the Dissenting Shares) shall be by virtue of the Merger, and
without any action on the part of the holder thereof, cancelled and converted
solely into the right to receive, upon the surrender of the certificate
formerly representing such share of Company Common Stock in accordance with
Section 2.3 hereof, 0.1722 (the "Conversion Price") of a validly issued,
fully paid and non-assessable share of the Parent Class A Common Stock,
without interest; provided, that (i) if the Average Parent Share Price shall
be less than $18.875, then the Conversion Price shall be adjusted so that it
shall equal the quotient obtained by dividing (A) $3.25 by (B) the Average
Parent Share Price, and (ii) if the Average Parent Share Price shall be
greater than $24.50, then the Conversion Price shall be adjusted so that it
shall equal the quotient obtained by dividing (x) $4.22 by (y) the Average
Parent Share Price (the Conversion Price to reflect such adjustment,
if any, is hereinafter referred to as the "Adjusted Conversion Price").
(c) Each share of Mergerco Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into one validly
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issued, fully paid and non-assessable share of common stock, par value $1.00
per share, of the Surviving Corporation.
(d) (i) Each Company Stock Option that is outstanding
immediately prior to the Effective Time, whether or not then vested or
exercisable, shall,effective as of the Effective Time, and without any
action on the part of the holder thereof, be assumed by the Parent and
become and represent an option exercisable for shares of Parent Class A
Common Stock (a "Substitute Option") with the same vesting schedules, if
any, and expiration dates as such Company Stock Option immediately prior to
the Effective Time (but taking into account any acceleration of the vesting
of such Company Stock Option as a result of the consummation of the Merger),
with (A) the new exercise price thereof being determined by dividing the
exercise price of such Company Stock Option by the Adjusted Conversion Price
(with the result of such calculation rounded to the nearest whole cent) and
(B) the number of shares issuable upon exercise being determined by
multiplying the number of shares to be issued upon exercise of such Company
Stock Option by the Adjusted Conversion Price (with the result of such
calculation rounded to the nearest whole number).
(ii) The Parent shall take all corporate action necessary
to reserve for issuance a sufficient number of the shares of Parent Class A
Common Stock for delivery upon exercise of the Substitute Options. As soon
as practicable after the Effective Time, but in no event later than 45 days
after the Effective Time, the Parent shall file one or more registration
statements on Form S-8 (or any successor or appropriate form (including a
shelf registration statement on Form S-3 if Form S-8 is not available)) with
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respect to the shares of Parent Class A Common Stock subject to such
Substitute Options and shall maintain the effectiveness of such registration
statement or registration statements (and maintain the current status of the
prospectus or prospectuses referred to therein) for so long as such
Substitute Options remain outstanding.
(e) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time and held by a stockholder of the
Company who does not vote in favor of the Merger and who complies with all of
the relevant provisions of Section 262 (each such share being a "Dissenting
Share") shall not be converted into the right to receive the Merger
Consideration pursuant to the Merger, but instead the holders of Dissenting
Shares shall be entitled to receive such consideration as shall be determined
in accordance with the provisions of Section 262; provided, however, that (i)
if any such holder of Dissenting Shares shall have failed to establish its
entitlement to appraisal rights as provided in Section 262 or (ii) if any
such holder of Dissenting Shares shall have effectively withdrawn its demand
for appraisal of such shares of Company Common Stock, or lost its right to
appraisal and payment as provided in Section 262, or (iii) if neither any
holder of Dissenting Shares nor the Surviving Corporation shall have filed a
petition demanding a determination of the value of all Dissenting Shares
within the time period provided in Section 262, such holder or holders (as
the case may be) shall forfeit the right to the appraisal of such shares of
Company Common Stock and each such share of Company Common Stock shall
thereupon be deemed to have been converted, as of the Effective Time, into
and represent the right to receive the Merger Consideration upon surrender
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of the certificate or certificates formerly representing such shares of
Company Common Stock in accordance with Section 2.3 hereof. The Company
shall not, except with the prior written consent of the Parent, voluntarily
make or agree to make any payment with respect to, or settle or offer to
settle, any such demands for payment.
Section 2.2 No Further Transfers. At the Effective Time, the
Company Common Stock transfer books shall be closed and no further transfer
of shares of Company Common Stock shall be made thereafter. If, after the
Effective Time, any certificate previously representing shares of Company
Common Stock is presented for transfer, it shall be forwarded to the Exchange
Agent (as defined in Section 2.3 hereof) for cancellation and exchange in
accordance with Section 2.3 hereof.
Section 2.3 Exchange of Shares of Company Common Stock.
(a) Prior to the Effective Time, the Parent shall designate,
subject to the approval of the Company which shall not be unreasonably
withheld, a bank or trust company to act as exchange agent (the "Exchange
Agent") for the Merger. Immediately prior to the Effective Time, the Parent
will instruct the transfer agent of the shares of the Parent Class A Common
Stock to countersign and deliver to the Exchange Agent certificates
representing an aggregate number of shares of the Parent Class A Common
Stock as nearly as practicable equal to the product of the Adjusted
Conversion Price and the number of shares of Company Common Stock to be
converted into the Parent Class A Common Stock pursuant to Section 2.1(b) so
as to allow for the issuance and delivery of the Merger Consideration on a
timely basis. The Parent shall pay all reasonable charges or expenses,
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including those of the Exchange Agent, in connection with the exchange of
the shares of Company Common Stock for the Merger Consideration.
(b) As soon as practicable after the Effective Time, the Parent
shall cause the Exchange Agent to mail and/or make available to each holder
of a Certificate (other than holders of Certificates theretofore representing
Excluded Shares) (a "Stockholder") a notice and letter of transmittal
advising such holder of the effectiveness of the Merger and the procedure for
surrendering to the Exchange Agent such Certificate or Certificates for
exchange for the Merger Consideration multiplied by the number of shares of
Company Common Stock represented by such Certificate or Certificates. Upon
the surrender to the Exchange Agent of such Certificate or Certificates,
together with a letter of transmittal, duly executed and completed in
accordance with the instructions thereon, the Stockholder shall be entitled
to receive the Merger Consideration. From and after the Effective Time,
until surrendered in accordance with the provisions of this Section 2.3,
each Certificate evidencing shares of Company Common Stock (other than
Certificates representing Excluded Shares and Dissenting Shares) shall
represent for all purposes only the right to receive the Merger
Consideration, without any interest thereon. Any portion of the Merger
Consideration that shall not have been paid to Stockholders pursuant to this
Section 2.3 prior to the second anniversary of the Effective Time (including
any cash payable pursuant to Section 2.3(e) hereof) shall be paid to the
Parent and any Stockholder who has not theretofore complied with this Section
2.3 thereafter shall look, subject to escheat and other similar laws, solely
to the Parent for payment of the Merger Consideration to which they are
entitled under this Agreement.
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(c) No dividends or other distributions that are otherwise
payable on the shares of the Parent Class A Common Stock constituting any of
the Merger Consideration shall be paid to the holder of any unsurrendered
Certificate until such Certificate is properly surrendered as provided
herein, but (i) upon such surrender, there shall be paid to the Person in
whose name the shares of the Parent Class A Common Stock constituting any of
the Merger Consideration shall be issued the amount of any dividends which
shall have become payable with respect to such shares between the Effective
Time and the time of such surrender and (ii) at the appropriate payment date
or as soon thereafter as practicable, there shall be paid to such Person the
amount of any dividends on such shares of the Parent Class A Common Stock
which shall have a record or due date prior to such surrender and a payment
date after such surrender, subject in each such case to (x) deduction
therefrom of any amount required by applicable law to be withheld, and (y)
any applicable escheat laws or unclaimed property laws. On surrender of a
Certificate, no interest shall be payable with respect to the payment of
such dividends and no interest shall be payable with respect to the amount
of any cash payable in lieu of a fractional share of the Parent Class A
Common Stock pursuant to Section 2.3(e).
(d) If any cash is to be paid pursuant to Section 2.3(e), or
certificates representing shares of the Parent Class A Common Stock are to
be issued, to a Person other than the Person in whose name the Certificate
so surrendered in exchange therefor is registered, it shall be a condition
of the payment or issuance thereof that the Certificate so surrendered
shall be properly endorsed and otherwise in proper form for transfer and
that the Person requesting such exchange shall pay to the Exchange Agent any
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transfer or other taxes required by reason of the payment of cash to a Person
other than, or if the issuance of certificates representing the shares of the
Parent Class A Common Stock in any name other than that of, the registered
holder of the Certificate surrendered, or otherwise required, or shall
establish to the satisfaction of the Exchange Agent that such tax has been
paid or is not payable.
(e) Shares of the Parent Class A Common Stock shall be issued
only in whole shares. A Stockholder will not be entitled to receive
Fractional Shares but, instead, will be entitled to receive promptly from the
Exchange Agent a cash payment in lieu of Fractional Shares in an amount equal
to such Stockholder's proportionate interest in the net proceeds from the
sale or sales in the open market by the Exchange Agent, on behalf of all such
Stockholders, of the aggregate Fractional Shares. Such sales shall be made
promptly after the Effective Time, or in the case of Dissenting Shares which
become exchangeable for the Merger Consideration pursuant to Section 2.1(e)
hereof, promptly after such change in status of such Dissenting Shares. Such
cash payments will be made to each such Stockholder only upon proper
surrender of such Stockholder's Certificates, together with a properly
completed and duly executed transmittal form and any other required documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Parent and Mergerco as
follows:
Section 3.1 Organization and Good Standing. Each of the
Company and its Subsidiaries is a corporation duly organized, validly
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existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate or other power and
authority and all necessary governmental approvals to own, lease and operate
its properties and to carry on its business as now being conducted, except
where the failure to be so organized, existing and in good standing or to
have such power, authority and governmental approvals would not have a
Material Adverse Effect on the Company and its Subsidiaries taken as a whole.
Section 3.1 of the Disclosure Schedule sets forth a complete list of
the Company's Subsidiaries, their state of incorporation and each state in
which they are qualified to do business.
Section 3.2 Corporate Authorization; Validity of Agreement;
Company Action. (a) The Company has full corporate power and authority to
execute and deliver this Agreement and, subject to obtaining any necessary
approval of its stockholders as contemplated by Section 1.6 hereof with
respect to the Merger, to consummate the Contemplated Transactions. The
execution, delivery and performance by the Company of this Agreement, and
the consummation by it of the Contemplated Transactions, have been duly and
validly authorized by its Board of Directors and, except for obtaining the
approval of its stockholders as contemplated by Section 1.6 hereof with
respect to the Merger, no other corporate action or proceedings on the part
of the Company is necessary to authorize the execution and delivery by
the Company of this Agreement, and the consummation by it of the Contemplated
Transactions. This Agreement has been duly executed and delivered by the
Company and, assuming this Agreement constitutes a valid and binding
obligation of the Parent and Mergerco, constitutes a valid and binding
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obligation of the Company enforceable against the Company in accordance
with its terms, except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(b) The affirmative vote of the holders of a majority of the
shares of Company Common Stock outstanding (the "Required Stockholder Vote")
is the only vote of the holders of any class or series of Company capital
stock necessary to approve the Merger.
Section 3.3 Capitalization. (a) The authorized capital stock of
the Company consists of 25,000,000 shares of Company Common Stock. As of the
date hereof, (i) 9,024,681 shares of Company Common Stock are issued, of
which 8,948,324 shares are outstanding and 76,357 shares are held in treasury
and (ii) options to acquire an aggregate of 902,500 shares of Company Common
Stock have been issued pursuant to Company Stock Options. The Company has
previously delivered to the Parent a true and correct list of all outstanding
Company Stock Options setting forth in each case the name of the
optionholder, the number of shares of Company Common Stock subject thereto,
the exercise price, the vesting schedule and the expiration date. All the
outstanding shares of the Company's capital stock are duly authorized,
validly issued, fully paid and non-assessable. There is no Voting Debt of
the Company or any of its Subsidiaries issued and outstanding. Except as
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set forth above, as set forth in Section 3.3(a) of the Disclosure Schedule,
and for the Contemplated Transactions, (i) there are no shares of capital
stock of the Company authorized, issued or outstanding and (ii) there are no
existing options, warrants, calls, pre-emptive rights, subscriptions or other
rights, convertible securities, agreements, arrangements or commitments of
any character, relating to the issued or unissued capital stock of the
Company or any of its Subsidiaries, obligating the Company or any of its
Subsidiaries to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or Voting Debt of, or other
equity interest in, the Company or any of its Subsidiaries or securities
convertible into or exchangeable for such shares or equity interests or
obligations of the Company or any of its Subsidiaries to grant, extend or
enter into any such option, warrant, call, subscription or other right,
convertible security, agreement, arrangement or commitment. Except as set
forth in Section 3.3(a) of the Disclosure Schedule, there are no outstanding
contractual obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any shares of the capital stock of
the Company or any Subsidiary or affiliate of the Company or to provide funds
to make any investment (in the form of a loan, capital contribution or
otherwise) in any Subsidiary or any other entity. Following the Merger
neither the Company nor any of its Subsidiaries will have any obligation to
issue, transfer or sell any shares of its capital stock.
(b) All of the outstanding shares of capital stock of each of
the Subsidiaries are directly owned by the Company, and all such shares have
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been validly issued and are fully paid and non-assessable and are owned by
either the Company or one of its Subsidiaries free and clear of all liens,
charges, security interests, options, claims or encumbrances of any nature
whatsoever.
(c) Except as set forth in Section 3.3(c) of the Disclosure
Schedule, there are no voting trusts or other agreements or understandings to
which the Company or any of its Subsidiaries is a party with respect to the
voting of the capital stock of the Company or any of the Subsidiaries. None
of the Company or its Subsidiaries is required to redeem, repurchase or
otherwise acquire shares of capital stock of the Company, or any of its
Subsidiaries, respectively, as a result of the Contemplated Transactions.
Section 3.4 Reports and Financial Statements. The Company has
filed with the SEC, and has heretofore made available to the Parent true and
complete copies of, all forms, reports, schedules, statements and other
documents required to be filed by it and its Subsidiaries since December 31,
1993 under the Exchange Act and the Securities Act (as such documents
have been amended since the time of their filing, collectively, the "Company
SEC Documents"). As of their respective dates or, if amended, as of the date
of the last such amendment, the Company SEC Documents, including, without
limitation, any financial statements or schedules included therein (a) did
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading and (b) complied in all material respects with the
applicable requirements of the Exchange Act and the Securities Act, as the
case may be, and the applicable rules and regulations of the SEC thereunder.
Each of the consolidated financial statements included in the Company SEC
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Documents have been prepared from, and are in accordance with, the books and
records of the Company and/or its consolidated Subsidiaries, comply in all
material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, have
been prepared in accordance with GAAP applied on a consistent basis during
the periods involved (except as may be indicated in the notes thereto) and
fairly present in all material respects the consolidated financial position
and the consolidated results of operations and cash flows (and changes in
financial position, if any) of the Company and its consolidated Subsidiaries
as at the dates thereof or for the periods presented therein (subject, in the
case of unaudited interim financial statements, to normal year end
adjustments).
Section 3.5 Absence of Certain Changes. Except as disclosed
in the Company SEC Documents or as set forth in Section 3.5 of the Disclosure
Schedule, since December 31, 1996, the Company and its Subsidiaries have
conducted their respective businesses and operations in the ordinary course
of business consistent with past practice. Since December 31, 1996, there
has not occurred (i) any event, change or effect (including the incurrence of
any liabilities of any nature, whether or not accrued, contingent or
otherwise) having or, which would be reasonably likely to have, in the
aggregate, a Material Adverse Effect on the Company and its Subsidiaries
taken as a whole; (ii) any declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock or property) with
respect to the equity interests of the Company or of any of its Subsidiaries,
other than regular quarterly cash dividends or dividends paid by its
Subsidiaries; or (iii) any change by the Company or any of its
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Subsidiaries in accounting principles or methods, except insofar as may be
required by a change in GAAP.
Section 3.6 Consents and Approvals; No Violations. Except as
set forth in Section 3.6 of the Disclosure Schedule and for (a) the filing of
a pre-merger notification and report form by the Company under the HSR Act
and the expiration or termination of the applicable waiting period
thereunder, (b) the filing of a Certificate of Merger with the Secretary
of State of the State of Delaware in accordance with the DGCL, (c) filings
with the SEC and any applicable national securities exchanges or Nasdaq, (d)
filings under state securities, "Blue Sky" or anti-takeover laws, (e) any
applicable filings required under the laws of foreign jurisdictions
and (f) filings, authorizations, consents or approvals relating to matters
which, in the aggregate, are not material to the Company and its Subsidiaries
taken as a whole, neither the execution, delivery or performance of this
Agreement nor the consummation by the Company of the Contemplated
Transactions nor compliance by the Company with any of the provisions hereof
will (i) conflict with or result in any breach of any provision of the
certificate of incorporation or by-laws or similar organizational documents
of the Company or of any of its Subsidiaries, (ii) require any material
filing with, or permit, authorization, consent or approval of, any
Governmental Authority, (iii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of any
material Company Agreement or (iv) violate any order, writ, injunction,
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decree, statute, rule or regulation applicable to the Company, any of its
Subsidiaries or any of their properties or assets.
Section 3.7 No Undisclosed Liabilities. Except (a) as
disclosed in Section 3.7 of the Disclosure Schedule, (b) to the extent
disclosed in the Company SEC Documents filed prior to the date of this
Agreement and (c) for liabilities and obligations incurred in the ordinary
course of business consistent with past practice, since December 31, 1996,
neither the Company nor any of its Subsidiaries has incurred any liabilities
or obligations of any nature, whether or not accrued, contingent or
otherwise. Section 3.7 of the Disclosure Schedule sets forth each instrument
evidencing indebtedness of the Company and its Subsidiaries which will
accelerate or become due or payable, or result in a right of redemption or
repurchase on the part of the holder of such indebtedness, or with respect to
which any other payment or amount will become due or payable, in any such
case with or without due notice or lapse of time, as a result of this
Agreement, the Merger or the other Contemplated Transactions.
Section 3.8 Registration Statement. None of the information
provided by the Company for inclusion in the Registration Statement will be
false or misleading with respect to any material fact or will omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading.
Section 3.9 Litigation; Compliance with Law. (a) Except (i)
as disclosed in Section 3.9(a) of the Disclosure Schedule or (ii) to the
extent disclosed in the Company SEC Documents filed prior to the date of
this Agreement, there is no suit, claim, action, proceeding, review or
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investigation pending or, to the knowledge of the Company, threatened
against or affecting, the Company or any of its Subsidiaries.
(b) The Company and its Subsidiaries have complied in all
material respects with all laws, statutes, regulations, rules, ordinances,
and judgments, decrees, orders, writs and injunctions, of any court or
Governmental Authority relating to any of the property owned, leased or used
by them, or applicable to their business, including, but not limited to,
equal employment opportunity, discrimination, occupational safety and health,
environmental, insurance regulatory, antitrust laws, ERISA and laws relating
to Taxes (as defined in Section 3.10).
Section 3.10 Taxes. (a) All material federal, state, county,
local, foreign, and other taxes (including, without limitation, income,
profits, premium, estimated, excise, sales, use, occupancy, gross receipts,
franchise, ad valorem, severance, capital levy, production, transfer,
license, stamp, environmental, withholding, employment, unemployment
compensation, payroll related and property taxes, import duties, and other
governmental charges and assessments), whether or not measured in whole or
in part by net income, and including deficiencies, interest, additions to
tax or interest, and penalties with respect thereto (hereinafter "Taxes" or,
individually, a "Tax"), required to be paid on or before the date hereof by
or with respect to the Company or any of its Subsidiaries, including amounts,
other than amounts being contested in good faith and for payment of which
adequate reserves are reflected in the Company's financial statements
included in its Quarterly Report on Form 10-Q for the quarterly period ended
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March 31, 1997, required to be paid on or before the date hereof with respect
to Taxes as a result of any tax sharing agreement or similar arrangement
("Tax Sharing Agreement Amounts") of the Company or any of its Subsidiaries,
have been timely paid.
(b) All material returns and reports required to be filed by
or with respect to the Company or any of its Subsidiaries with respect to
Taxes (hereinafter "Tax Returns" or, individually, a "Tax Return") on or
before the date hereof have been timely filed. No penalties or other charges
in a material amount are or will become due with respect to the late filing
of any Tax Return of the Company or any of its Subsidiaries or payment of
any Tax of the Company or any of its Subsidiaries required to be filed or
paid on or before the date hereof.
(c) With respect to all Tax Returns filed by or with respect
to the Company or any its Subsidiaries, (i) Section 3.10(c) of the
Disclosure Schedule sets forth the periods for which the statute of
limitations for the assessment of federal Taxes have expired; (ii) except as
set forth in Section 3.10(c) of the Disclosure Schedule, no audit is in
progress and no extension of time has been executed with respect to any date
on which any Tax Return was or is to be filed and no waiver or agreement has
been executed for the extension of time for the assessment or payment of any
Tax; and (iii) except as set forth in Section 3.10(c) of the Disclosure
Schedule, there is no material unassessed deficiency proposed or threatened
against the Company or any of its Subsidiaries.
(d) Except as set forth in Section 3.10(d) of the Disclosure
Schedule, neither the Company nor any of its Subsidiaries has not been and is
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not a party to any tax sharing agreement, tax indemnification agreement or
similar arrangement.
(e) Section 3.10(e) of the Disclosure Schedule identifies (i)
the common parent of each group of affiliated corporations that filed a
consolidated federal income tax return, and the period to which such returns
related, that included the Company or any of its Subsidiaries since 1987 and
(ii) all material Tax liabilities or issues that have been asserted or
proposed by a taxing authority with respect to any such return and all claims
with respect to Taxes in a material amount that have been asserted against
the Company or any of its Subsidiaries.
(f) With regard to any assets or property held or acquired by
the Company or any of its Subsidiaries, the Company or such Subsidiary has
not filed a consent to the application of Section 341(f) of the Code, or
agreed to have Section 341(f)(2) of the Code apply to any disposition of a
subsection (f) asset (as such term is defined in Section 341(f)(4) of the
Code) owned by the Company or such Subsidiary.
(g) The Company and its Subsidiaries have not agreed, and are
not required to make, any adjustment under Section 481(a) of the Code by
reason of a change in accounting method or otherwise, and there is no
application to change any accounting method by the Company or any of its
Subsidiaries pending with any taxing authority. The Internal Revenue
Service has not proposed any such adjustment or change in method.
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(h) Reserves and provisions for Taxes reflected in the
Company's financial statements included in its Quarterly Report on Form 10-Q
for the quarterly period ended March 31, 1997 are adequate.
(i) The Company and its Subsidiaries have not been and are not
in violation (or with notice or lapse of time or both, would be in violation)
of any applicable law relating to the payment or withholding of Taxes
relating to employment and have duly and timely withheld from employee
salaries, wages and other compensation and timely paid over to the
appropriate taxing authorities all amounts required to be so withheld and
paid over for all periods under all applicable laws.
(j) There are no liens or encumbrances of any kind with respect
to Taxes upon any of the assets of the Company and its Subsidiaries (except
for liens for Taxes not yet due) or on the capital stock of the Company or
any of its Subsidiaries.
Section 3.11 No Default. Except as disclosed in the Company
SEC Documents, the business of the Company and each of its Subsidiaries is
not being conducted in default or violation of any term, condition or
provision of (a) its respective certificate of incorporation or
by-laws or similar organizational documents, or (b) any Company Agreement,
excluding from the foregoing clause (b), defaults or violations that would
not have a Material Adverse Effect on the Company and its Subsidiaries taken
as a whole or would not, or would not be reasonably likely to, materially
impair the ability of the Company to consummate the Merger or the other
Contemplated Transactions.
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Section 3.12 Contracts. (a) The Company has previously
delivered to the Parent true and complete copies of all material Company
Agreements and true and correct summaries of all material oral agreements to
which the Company or any of its Subsidiaries is a party. Each material
Company Agreement is valid, binding and enforceable and in full force and
effect in accordance with its terms. Neither the Company nor any of its
Subsidiaries is in default in any material respect under any such Company
Agreement, nor does any condition exist that with notice or lapse of time or
both would constitute such a material default thereunder. To the
knowledge of the Company or any of the Subsidiaries, no other party to any
such Company Agreement is in default thereunder in any material respect, nor
does any condition exist that with notice or lapse of time or both would
constitute such a material default thereunder, nor is any such material
default threatened.
(b) Except as set forth in Section 3.12(b) of the Disclosure
Schedule, neither the Company nor any Subsidiary is a party to any Company
Agreement that (i) includes any "change of control" or similar provision
which, as a result of the Merger or any other Contemplated Transaction,
would result in a violation or breach of, or default (with or without due
notice or lapse of time or both) under, such Company Agreement, or give rise
to a right to accelerate the terms of payment or the provision of benefits,
or enhance the amount of payment or the provision of benefits, thereunder, or
(ii) expressly and materially limits the ability of the Company or any of its
Subsidiaries to compete in or conduct any line of business or compete with
any person or in any geographic area or during any period of time.
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(c) The Company (i) has satisfied the sales requirements under
paragraph 3 of the Stewart's Master Agreement such that the territory subject
to the Stewart's Master Agreement is worldwide and (ii) has not failed to
achieve the sales requirements under said paragraph 3 which would permit
Stewart's to terminate the Stewart's Master Agreement with respect to any
territory.
Section 3.13 Intellectual Property.
(a) Section 3.13(a) of the Disclosure Schedule lists
(i) all Copyrights, Patents, Trademarks and formulae and processes (other
than unregistered Trademarks for which no application for registration is
pending) (collectively, the "Intellectual Property") owned by the Company or
any of its Subsidiaries, specifying as to each such item, as applicable: (A)
the category of Intellectual Property; (B) the owner of the item; (C) the
jurisdictions in which the item is issued or registered or in which any
application for issuance or registration has been filed, including the
respective issuance, registration or application number; (D) the date of
application, issuance or registration and the expiration date of the item;
and (E) with respect to any Trademarks, the class or classes of goods or
services on which each such Trademark is or is intended to be used; (ii) all
material licenses, sublicenses and other agreements ("IP Licenses") under
which the Company or any of its Subsidiaries is either a licensor or licensee
of any Intellectual Property; and (iii) all agreements involving Intellectual
Property that are currently in negotiation or proposed by the Company or any
of its Subsidiaries. Neither the Company nor any of its Subsidiaries owns
any Copyrights or Patents or is a party to any license for a Copyright or
Patent either as a licensor or as a licensee. The Company has previously
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delivered to the Parent true and complete copies of all material documents
evidencing Intellectual Property and IP Licenses (including all
modifications, amendments and supplements).
(b) Except as set forth in Section 3.13(b) of the Disclosure
Schedule, the Company and its Subsidiaries own or have a license for all the
Intellectual Property that is material to the business of the Company and its
Subsidiaries as presently conducted or being developed, free and clear of any
liens.
(c) None of the Company or its Subsidiaries or, to the
knowledge of the Company, any other party is in breach of or default under
any IP License. Each IP License is now, and immediately following the
consummation of the Contemplated Transactions will be, valid and in full
force and effect.
(d) No Claim is pending or, to the knowledge of the Company,
threatened, that challenges the validity, enforceability, ownership of or
right to use, sell, license or dispose of any Intellectual Property, nor
does the Company know of any valid grounds for any such Claim.
(e) To the knowledge of the Company, neither the Company nor
any of its Subsidiaries has infringed upon or otherwise violated the
intellectual property rights of third parties or has received or has been
the subject of any Claim, charge or notice alleging any such infringement or
other violation, and the Company knows of no basis for any such Claim.
To the knowledge of the Company, the continued use of the Intellectual
Property by the Company or the relevant Subsidiary after the Effective
Time will not infringe upon or otherwise violate any intellectual property
rights of third parties as a result of the continued operation of the
businesses of the Company and its Subsidiaries as presently conducted.
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(f) To the knowledge of the Company, no third party is
infringing upon or otherwise violating the Intellectual Property rights of
the Company or any of its Subsidiaries.
(g) All registered Trademarks held by the Company or any of
its Subsidiaries are valid and subsisting. The Company and its Subsidiaries
have taken all necessary action to maintain and protect each item of
Intellectual Property owned or used by the Company or any of its Subsidiaries.
(h) To the knowledge of the Company, no Patent, statute, rule,
regulation, code or standard is pending or proposed that would have a
material adverse effect on the validity, enforceability, ownership of or
right to use, sell, license or dispose of any Intellectual Property.
(i) None of the material formulae and processes of the Company
or any of its Subsidiaries has been disclosed to any Person other than its
bottlers, suppliers and consultants and Stewart's.
Section 3.14 Employee Benefit Plans.
(a) With respect to each Company Benefit Plan, the
Company has previously provided to the Parent true and complete copies of
(i) all plan texts and agreements and related trust agreements, if any, (ii)
all summary plan descriptions, if any, (iii) the most recent annual report
(including all schedules thereto), if any, (iv) the most recent annual
audited financial statement, if any, (v) if the plan is intended to qualify
under Code Section 401(a) or 403(a), the most recent determination letter,
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if any, received from the IRS and (vi) all material communications with any
Governmental Authority (including, without limitation, the PBGC and the IRS).
(b) There are no Company Benefit Plans that provide retiree
medical or life or pension coverage (other than coverage mandated by law)
or that are subject to any of Code Section 412, ERISA Section 302 or Title
IV of ERISA.
(c) Each Company Benefit Plan conforms in all material respects
to, and its administration is in all material respects in compliance with,
all applicable laws and regulations, except for such failures to conform or
comply that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect with respect to the Company
and its Subsidiaries taken as a whole.
(d) Except as disclosed in the Company SEC Documents or as set
forth in Section 3.14(d) of the Disclosure Schedule, the consummation of the
Contemplated Transactions will not (a) entitle any current or former Company
Employee to severance pay, unemployment compensation or any similar payment
or (b) accelerate the time of payment or vesting, or increase the amount of
any compensation due to, any current or former Company Employee.
Section 3.15 Inventory and Supplies. Except as set forth on
Section 3.15 of the Disclosure Schedule, the inventory of each of the
Company and its Subsidiaries is in good and merchantable condition, and
suitable and usable or salable in the ordinary course of business for the
purposes for which it is intended and none of such inventory is obsolete,
damaged, or defective, subject to an inventory reserve computed in a manner
consistent with past practice and reasonably estimated to reflect inventory
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values. Section 3.15 of the Disclosure Schedule sets forth the location of
all of the inventory of the Company and its Subsidiaries. The Company
has no knowledge of any adverse condition affecting the supply of materials
available to the Company and its Subsidiaries.
Section 3.16 Receivables. All accounts and notes receivable
of the Company and its Subsidiaries (a) have arisen in the ordinary course
of business of the Company and its Subsidiaries and (b) subject only to a
reserve for bad debts computed in a manner consistent with past practice and
reasonably estimated to reflect the probable results of collection, have
been collected or are collectible in the ordinary course of business of the
Company and its Subsidiaries in the aggregate recorded amounts thereof in
accordance with their terms.
Section 3.17 Case Sales. Section 3.17 of the Disclosure
Schedule sets forth the true and correct amount of the Company's aggregate
sales of cases of soft drinks under the "Stewart's" trademark for the
eighteen (18) months ended December 31, 1991, each of fiscal years 1992,
1993, 1994, 1995 and 1996 and the first five (5) months of 1997.
Section 3.18 Transactions with Affiliates. Except to the
extent disclosed in the Company SEC Documents filed prior to the date of
this Agreement, since December 31, 1996, there have been no material
transactions, agreements, arrangements or understandings between the
Company or its Subsidiaries, on the one hand, and the Company's affiliates
(other than wholly owned Subsidiaries of the Company) or any other Person,
on the other hand, that would be required to be disclosed under Item 404 of
Regulation S-K under the Securities Act.
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Section 3.19 State Takeover Statutes. The Board of Directors
of the Company has approved the Merger and this Agreement, and the entering
into, and performance, by the Parent and Mergerco of the Stockholders
Agreement. Such approval is sufficient to render inapplicable to the Merger,
this Agreement and the entering into, and performance, by the Parent and
Mergerco of the Stockholders Agreement and any other transactions
contemplated by this Agreement and the Stockholders Agreement, the
restrictions on business combinations provided for in Section 203. Other
than Section 203, no state takeover statute or similar statute or regulation
applies or purports to apply to the Merger, this Agreement or the
Stockholders Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PARENT AND MERGERCO
The Parent and Mergerco, jointly and severally, represent and
warrant to the Company as follows:
Section 4.1 Organization and Good Standing. Each of the Parent
and its Subsidiaries is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, and
has all requisite corporate or other power and authority and all necessary
governmental approvals to own, lease and operate its properties and
to carry on its business as now being conducted, except where the failure to
be so organized, existing and in good standing or to have such power,
authority and governmental approvals would not have a Material Adverse
Effect on the Parent and its Subsidiaries taken as a whole. Each of the
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Parent and its Subsidiaries is duly qualified or licensed to do business and
in good standing in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so
duly qualified or licensed and in good standing would not have a Material
Adverse Effect on the Parent and its Subsidiaries taken as a whole.
Mergerco has not heretofore conducted any business other than in connection
with this Agreement and the Contemplated Transactions.
Section 4.2 Corporate Authorization; Validity of Agreement;
Necessary Action. Each of the Parent and Mergerco has full corporate power
and authority to execute and deliver this Agreement and to consummate the
Contemplated Transactions. The execution, delivery and performance by the
Parent and Mergerco of this Agreement and the consummation by the Parent and
Mergerco of the Contemplated Transactions have been duly and validly
authorized by their respective Boards of Directors and no other corporate
action or proceedings on the part of the Parent and Mergerco is necessary to
authorize the execution and delivery by the Parent and Mergerco of this
Agreement, and the consummation by the Parent and Mergerco of the
Contemplated Transactions. This Agreement has been duly executed and
delivered by the Parent and Mergerco, and assuming this Agreement constitutes
a valid and binding obligation of the Company, constitutes a valid and
binding obligation of each of the Parent and Mergerco, enforceable against
each of them in accordance with its terms, except that (i) such enforcement
may be subject to applicable bankruptcy, insolvency or other similar laws,
now or hereafter in effect, affecting creditors rights generally, and (ii)
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the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
Section 4.3 Capitalization. (a) The authorized capital stock
of the Parent consists of 60,000,000 shares of Parent Class A Common Stock,
16,000,000 shares of Parent Class B Common Stock, par value $.10 per share,
25,000,000 shares of Preferred Stock, of which 5,982,866 shares have been
designated Redeemable Preferred Stock. As of June 17, 1997, 23,998,221
shares of Parent Class A Common Stock and 5,997,662 shares of Parent Class
B Common Stock were issued and outstanding, and no shares of Preferred Stock
were issued or outstanding. As of March 31, 1997, options to acquire an
aggregate of 8,849,499 shares of Parent Class A Common Stock had been issued.
The authorized capital stock of Mergerco consists solely of 1,000 shares of
Mergerco Common Stock, all of which, as of the date hereof, are issued and
outstanding and held by the Parent. All of the outstanding shares of capital
stock of the Parent and Mergerco (including Mergerco) have been duly
authorized and validly issued and are fully paid and non-assessable.
(b) The shares of the Parent Class A Common Stock to be issued
pursuant to the Merger will be duly authorized, validly issued, fully paid
and non-assessable and not subject to preemptive rights.
Section 4.4 Reports and Financial Statements. The Parent has
filed with the SEC, and has heretofore made available to the Company true
and complete copies of, all forms, reports, schedules, statements and other
documents required to be filed by it and its Subsidiaries since December 31,
1993 under the Exchange Act or the Securities Act (as such documents have
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been amended since the time of their filing, collectively, the "Parent SEC
Documents"). As of their respective dates or, if amended, as of the date of
the last such amendment, the Parent SEC Documents, including, without
limitation, any financial statements or schedules included therein (a) did
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading and (b) complied in all material respects with the
applicable requirements of the Exchange Act and the Securities Act, as the
case may be, and the applicable rules and regulations of the SEC thereunder.
Each of the consolidated financial statements included in the Parent SEC
Documents have been prepared from, and are in accordance with, the books and
records of the Parent and/or its consolidated Subsidiaries, comply in all
material respects with applicable accounting requirements and with
the published rules and regulations of the SEC with respect thereto, have
been prepared in accordance with GAAP applied on a consistent basis during
the periods involved (except as may be indicated in the notes thereto) and
fairly present in all material respects the consolidated financial position
and the consolidated results of operations and cash flows (and changes in
financial position, if any) of the Parent and its consolidated Subsidiaries
as at the dates thereof or for the periods presented therein (subject, in the
case of unaudited interim financial statements, to normal year end
adjustments).
Section 4.5 Absence of Certain Changes. Except to the extent
set forth in the Parent SEC Documents filed prior to the date of this
Agreement, since December 31, 1996, the Parent and its Subsidiaries have
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conducted their respective businesses in the ordinary course of business
consistent with past practice. Since December 31, 1996, there has not
occurred (a) any event, change or effect (including the incurrence of any
liabilities of any nature, whether or not accrued, contingent or otherwise)
having or, which would be reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on the Parent and its Subsidiaries
taken as a whole; (b) any declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock or property) with
respect to the equity interests of the Parent or of any of its Subsidiaries
other than regular quarterly cash dividends or dividends paid by wholly owned
Subsidiaries; or (c) any change by the Parent or any of its Subsidiaries in
accounting principles or methods, except insofar as may be required by a
change in GAAP.
Section 4.6 Consents and Approvals; No Violations. Except for
(a) the filing of a pre-merger notification and report form by the Parent
under the HSR Act, and the expiration or termination of the applicable
waiting period thereunder, (b) the filing of a Certificate of Merger with the
Secretary of the State of the State of Delaware in accordance with the DGCL,
(c) filings with the SEC and any applicable national securities exchanges,
(d) filings under state securities, "Blue Sky" or antitakeover laws, (e) any
applicable filings required under the laws of foreign jurisdictions and (f)
filings, authorizations, consents or approvals relating to matters which, in
the aggregate, are not material to the Parent and its Subsidiaries (including
Mergerco but excluding the Company and its Subsidiaries) taken as a whole,
neither the execution, delivery or performance of this Agreement by the
Parent and Mergerco nor the consummation by the Parent and Mergerco of the
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Contemplated Transactions nor compliance by the Parent and Mergerco with any
of the provisions hereof will (i) conflict with or result in any breach of
any provision of the certificate of incorporation or by-laws of the Parent
and any of its Subsidiaries, (ii) require any filing with, or permit,
authorization, consent or approval of, any Governmental Authority (except
where the failure to obtain such permits, authorizations, consents or
approvals or to make such filings would not have a Material Adverse Effect
on the Parent and its Subsidiaries taken as a whole or would not, or would
not be reasonably likely to, materially impair the ability of the Parent and
Mergerco to consummate the Merger or the other Contemplated Transactions),
(iii) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, lease, license, contract,
agreement or other instrument or obligation to which the Parent or any of
its Subsidiaries is a party or by which any of them or any of their
properties or assets may be bound or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Parent,
any of its Subsidiaries or any of their properties or assets, except in the
case of clauses (iii) and (iv) for violations, breaches or defaults which
would not have a Material Adverse Effect on the Parent and its Subsidiaries
taken as a whole or would not, or would not be reasonably likely to,
materially impair the ability of the Parent or Mergerco to consummate the
Merger or the other Contemplated Transactions.
Section 4.7 Registration Statement. The Registration Statement
(and any amendment thereof or supplement thereto), at the date it becomes
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effective and at the time of the Meeting, will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading;
provided, however, that no representation is made by the Parent or Mergerco
with respect to statements made therein based on information supplied by the
Company for inclusion in the Registration Statement. Subject to the proviso
set forth in the preceding sentence, the Registration Statement will comply
in all material respects with the provisions of the Securities Act and the
rules and regulations thereunder.
Section 4.8 Tax Representations. (a) Mergerco is a wholly
owned subsidiary of the Parent organized for the purpose of consummating the
Merger and has no assets other than (i) Parent Class A Common Stock, if any,
and (ii) assets permitted under Treasury Regulation 1.368-2(j)(3)(iii).
(b) The Parent has no plan or intention not to (i) continue at
least a principal historic business line of the Company or (ii) use at least
a significant portion of the Company's historical assets in a business of the
Parent, in each case within the meaning of Treasury Regulation 1.368-1(d).
ARTICLE V
COVENANTS
Section 5.1 Interim Operations of the Company. The Company
covenants and agrees that, except (i) as expressly provided in this
Agreement, (ii) with the prior written consent of the Parent or (iii) as set
forth on Section 5.1 of the Disclosure Schedule, after the date hereof and
prior to the Effective Time:
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(a) the business of the Company and its Subsidiaries, including,
without limitation, investment practices and policies, shall be conducted
only in the ordinary course of business consistent with past practice and,
each of the Company and its Subsidiaries shall use all reasonable efforts to
preserve its business organization intact and maintain its existing relations
with material customers, distributors, suppliers, employees, creditors and
business partners;
(b) the Company will not, directly or indirectly, split,
combine or reclassify the outstanding Company Common Stock, or any
outstanding capital stock of any of the Subsidiaries of the Company;
(c) neither the Company nor any of its Subsidiaries shall (i)
amend its certificate of incorporation or by-laws or similar organizational
documents; (ii) declare, set aside or pay any dividend or other distribution
payable in cash, stock or property with respect to its capital stock other
than dividends paid by the Company's wholly owned Subsidiaries to the
Company; (iii) issue, sell, transfer, pledge, dispose of or encumber any
additional shares of, or securities convertible into or exchangeable for, or
options, warrants, calls, commitments or rights of any kind to acquire, any
shares of capital stock of any class of the Company or its Subsidiaries,
other than issuances pursuant to exercise of stock options outstanding on the
date hereof as disclosed in Section 3.3 hereof; (iv) transfer, lease,
license, sell, mortgage, pledge, dispose of, or encumber any assets that are
material to the Company and its Subsidiaries taken as a whole other than
sales of investment assets in the ordinary course of business consistent with
past practice; or (v) redeem, purchase or otherwise acquire directly or
indirectly any of its capital stock;
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(d) neither the Company nor any of its Subsidiaries shall (i)
grant any increase in the compensation payable or to become payable by the
Company or any of its Subsidiaries to any officer or employee other than
scheduled annual increases in the ordinary course of business consistent
with past practice in an amount not to exceed five percent (5%) for
any individual; (ii) adopt any new, or amend or otherwise increase, or
accelerate the payment or vesting of the amounts payable or to become payable
under any Company Benefit Plan; (iii) enter into any, or amend any existing,
employment, consulting or severance agreement with or, except in accordance
with the existing written policies of the Company, grant any severance
or termination pay to any officer, director or employee of the Company or
any of its Subsidiaries; (iv) make any additional contributions to any
grantor trust created by the Company to provide funding for non-tax-qualified
employee benefits or compensation; or (v) provide any severance program to
any Subsidiary which does not have a severance program as of the date of
this Agreement;
(e) neither the Company nor any of its Subsidiaries shall
modify, amend or terminate any of the material Company Agreements or waive,
release or assign any material rights or claims, except in the ordinary
course of business consistent with past practice;
(f) neither the Company nor any of its Subsidiaries shall
permit any material insurance policy naming it as a beneficiary or a loss
payable payee to be cancelled or terminated, except in the ordinary course
of business consistent with past practice;
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(g) neither the Company nor any of its Subsidiaries shall: (i)
incur or assume any debt except for borrowings under its existing credit
facility in an amount exceeding $100,000 without the written consent of the
Parent, which consent shall not be unreasonably withheld, provided that the
Company may extend the term of its existing credit facility for a period not
to exceed one (1) year so long as the commitment thereunder is not increased;
(ii) assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any
other Person; (iii) make any loans, advances or capital contributions to, or
investments in, any other Person (other than to wholly owned Subsidiaries of
the Company, or customary loans or advances to employees in accordance with
past practice not to exceed $25,000 in the aggregate); or (iv) enter into any
material commitment (including, but not limited to, any capital expenditure,
"take-or-pay" contract or purchase of assets) in excess of $100,000, provided
that the Company may (x) purchase inventory in the ordinary course of
business consistent with past practice (without any "take-or-pay" commitment)
and (y) enter into a lease for office space in the greater Denver, Colorado
area not to exceed 4,500 square feet, at a cost per square foot per year not
to exceed $17.00 and for a term not to exceed three (3) years;
(h) neither the Company nor any of its Subsidiaries shall
change any of the accounting principles used by it unless required by GAAP;
(i) neither the Company nor any of its Subsidiaries shall pay,
discharge or satisfy any material claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise), other
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than the payment, discharge or satisfaction of any such claims, liabilities
or obligations, (x) reflected or reserved against in, or contemplated
by, the consolidated financial statements (or the notes thereto) of the
Company and its consolidated Subsidiaries, (y) incurred in the ordinary
course of business consistent with past practice or (z) which are legally
required to be paid, discharged or satisfied;
(j) neither the Company nor any of its Subsidiaries will adopt
a plan of complete or partial liquidation, dissolution, merger,
consolidation, restructuring, recapitalization or other material
reorganization of the Company or any of its Subsidiaries or any agreement
relating to a Acquisition Proposal (other than the Merger);
(k) neither the Company nor any of its Subsidiaries will engage
in any transaction with, or enter into any agreement, arrangement, or
understanding with, directly or indirectly, any of the Company's affiliates,
including, without limitation, any transactions, agreements, arrangements or
understandings with any affiliate or other Person covered under Item 404 of
Regulation S-K under the Securities Act that would be required to be
disclosed under such Item 404 other than such transactions of the same
general nature, scope and magnitude as are disclosed in the Company SEC
Documents;
(l) except upon the prior written consent of the Parent, the
Company shall not make any Tax election that would have a Material Adverse
Effect on the Company or any of its Subsidiaries; and
(m) neither the Company nor any of its Subsidiaries will enter
into an agreement, contract, commitment or arrangement to do any of the
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foregoing, or to authorize, recommend, propose or announce an intention to
do any of the foregoing.
Section 5.2 Access to Information. The Company shall (and
shall cause each of its Subsidiaries to) afford to the officers, employees,
accountants, counsel, financing sources and other representatives of the
Parent, reasonable access, during normal business hours, during the period
prior to the Effective Time, to all of its and its Subsidiaries' properties,
books, contracts, commitments and records (including any Tax Returns or other
Tax related information pertaining to the Company and its Subsidiaries) and,
during such period, the Company shall (and shall cause each of its
Subsidiaries to) furnish promptly to the Parent (a) a copy of each report,
schedule, registration statement and other document filed or received by it
during such period pursuant to the requirements of the federal securities
laws or any insurance regulatory laws and (b) all other information
concerning its business, properties and personnel as the Parent may
reasonably request (including any Tax Returns or other Tax related
information pertaining to the Company and its Subsidiaries). The Parent
will hold any such information which is nonpublic in confidence in
accordance with the provisions of the Confidentiality Agreement.
Section 5.3 Consents and Approvals. Each of the Company, the
Parent and Mergerco will take all reasonable actions necessary to comply
promptly with all legal requirements which may be imposed on it with respect
to this Agreement and the Contemplated Transactions which actions shall
include, without limitation, furnishing all information in connection with
approvals of or filings with any Governmental Authority, including, without
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limitation, any schedule, or reports required to be filed with the SEC, and
will promptly cooperate with and furnish information to each other in
connection with any such requirements imposed upon any of them or any of
their Subsidiaries in connection with this Agreement and the Contemplated
Transactions. Each of the Company, the Parent and Mergerco will, and will
cause its Subsidiaries to, take all reasonable actions necessary to obtain
any consent, authorization, order or approval of, or any exemption by, any
Governmental Authority or other public or private third party, required to
be obtained or made by the Parent, Mergerco, the Company or any of their
Subsidiaries in connection with the Merger or the taking of any action
contemplated thereby or by this Agreement.
Section 5.4 No Solicitation.
(a) The Company shall not directly or indirectly, and shall not
authorize or permit any of its Subsidiaries or any officer, director,
employee, agent, investment banker, financial advisor, attorney, accountant,
broker, finder or other representative (collectively, "Representatives") of
any of the Company or any of its Subsidiaries (collectively, the "Acquired
Corporations") directly or indirectly to, (i) solicit, initiate, encourage or
induce the making, submission or announcement of any Acquisition Proposal or
take any action that could reasonably be expected to lead to an Acquisition
Proposal, (ii) furnish any nonpublic information regarding any of the
Acquired Corporations to any Person in connection with or in response to an
Acquisition Proposal, (iii) engage in discussions with any Person with
respect to any Acquisition Proposal, (iv) approve, endorse or recommend (or
agree to approve, endorse or recommend) any Acquisition Proposal or (v) enter
into any letter of intent or similar document or any agreement contemplating
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or otherwise relating to any Acquisition Proposal; provided, however, that
this Section 5.4(a) shall not prohibit the Company from furnishing nonpublic
information regarding the Acquired Corporations to, or entering into
discussions with, any Person in response to an unsolicited bona fide written
Acquisition Proposal submitted (and not withdrawn) by such Person if
(1) the Board of Directors of the Company concludes in good faith, based
upon the advice of its financial advisor, that such Acquisition Proposal
would result in a transaction that is more favorable from a financial point
of view to the Company's stockholders than the Merger, (2) the
Board of Directors from the Company concludes in good faith, after
consultation with outside legal counsel, that such action is required in
order for the Board of Directors of the Company to comply with its fiduciary
obligations to the Company's stockholders under applicable law, (3) prior to
furnishing any such nonpublic information to, or entering into discussions
with, such Person, the Company gives the Parent written notice of the
identity of such Person and of the Company's intention to furnish nonpublic
information to, or enter into discussions with, such Person, and the Company
receives from such Person an executed confidentiality agreement containing
customary limitations on the use and disclosure of all nonpublic written and
oral information furnished to such Person by or on behalf of the Company, and
(4) prior to furnishing any such nonpublic information to such Person, the
Company furnishes such nonpublic information to the Parent (to the extent
such nonpublic information has not been previously furnished by the Company
to the Parent).
(b) The Company shall promptly advise the Parent orally and in
writing of any Acquisition Proposal (including the identify of the Person
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making or submitting such Acquisition Proposal and the terms thereof) that is
made or submitted by any Person (such Notification referred to as a
"Transaction Notice"). The Company agrees that it will not furnish
confidential information to any Person or enter into negotiations with any
Person with respect to an Acquisition Proposal until it has delivered to the
Parent a Transaction Notice and forty-eight (48) hours have passed since the
Parent's receipt of such Transaction Notice.
(c) As of the date of this Agreement, the Company shall
immediately cease and cause to be terminated any existing discussions with
any Person that relate to any Acquisition Proposal.
(d) Notwithstanding anything to the contrary contained in this
Agreement, the Company may give a copy of this Section 5.4 to any Person who
submits an unsolicited bona fide written Acquisition Proposal to the Company
if, prior to giving a copy of this Section 5.4 to such Person, the Company
gives the Parent written notice that the Company intends to give copy of this
Section 5.4 to such Person.
Section 5.5 Additional Agreements. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its best
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable, whether under applicable
laws and regulations or otherwise, or to remove any injunctions or other
impediments or delays, legal or otherwise, to consummate and make effective
the Merger and the other Contemplated Transactions. 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
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of the Company, the Parent and Mergerco shall use their best efforts to take,
or cause to be taken, all such necessary actions.
Section 5.6 Notification of Certain Matters. The Company shall
give prompt notice to the Parent, and the Parent shall give prompt notice to
the Company, of (a) the occurrence, or non-occurrence of any event the
occurrence or non-occurrence of which would cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in
any material respect at or prior to the Effective Time and (b) any material
failure of the Company or the Parent, as the case may be, to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied
by it hereunder; provided, however, that the delivery of any notice pursuant
to this Section 5.6 shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
Section 5.7 Indemnification of Directors and Officers. The
certificate of incorporation and by-laws of the Surviving Corporation and
each of its Subsidiaries shall contain provisions no less favorable with
respect to indemnification of directors, officers, agents and employees and
other individuals than those set forth in the certification of incorporation
and by- laws of the Company and its Subsidiaries as in effect on the date
hereof, which provisions shall not be amended, repealed or otherwise modified
for a period of five (5) years after the Effective Time in any manner that
would adversely affect the rights thereunder of individuals who at or
prior to the Effective Time were directors, officers, agents or employees
of the Company or any of its Subsidiaries or who were otherwise entitled to
indemnification pursuant to the certificate of incorporation and by-laws (or
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equivalent governing instruments) of the Company or any of its Subsidiaries;
provided, that if the Surviving Corporation or any of its subsidiaries shall
not have the financial resources to satisfy its indemnification obligations
to such directors, officers, agents or employees or other individuals as
provided under its certificate of incorporation and by-laws in accordance
with this Section 5.7, the Parent agrees that it shall provide such
indemnification of such Persons to the extent set forth in such certificate
of incorporation and by-laws in accordance with this Section 5.7.
Section 5.8 Rule 145 Affiliates. At least 30 days prior to the
Closing Date, the Company shall deliver to the Parent a letter identifying,
to the best of the Company's knowledge, all Persons who are, at the time of
the Meeting, deemed to be "affiliates" of the Company for purposes of Rule
145 under the Securities Act (the "Company Affiliates"). The Company shall
use all reasonable efforts to cause each Person who is identified as a
Company Affiliate to deliver to the Parent prior to the Closing Date an
agreement substantially in the form of Exhibit B to this Agreement.
Section 5.9 Stock Exchange Listing. The Parent shall use all
reasonable efforts to cause the shares of the Parent Class A Common Stock
issued in the Merger and the shares of the Parent Class A Common Stock to be
reserved for issuance upon exercise of the Substitute Options to be approved
for listing on the NYSE prior to the Closing Date.
Section 5.10 Tax-Free Reorganization. The Company shall not
intentionally take or cause to be taken any action before the Effective Time
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which would disqualify the Merger as a "reorganization" within the meaning of
Section 368(a) of the Code.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 Conditions to the Obligations of Each Party. The
obligations of the Company, on the one hand, and the Parent, and Mergerco on
the other hand, to consummate the Merger are subject to the satisfaction (or,
if permissible, waiver by the party for whose benefit such conditions exist)
of the following conditions at or prior to the Effective Time:
(a) this Agreement and the Merger shall have been approved and
adopted by the Required Stockholder Vote in accordance with the DGCL;
(b) no court, arbitrator or governmental body, agency or
official shall have issued any order, decree or ruling and there shall not
be any statute, rule or regulation, restraining, enjoining or prohibiting
the consummation of the Merger;
(c) the Registration Statement shall have become effective
under the Securities Act and no stop order suspending effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the SEC;
(d) any waiting period applicable to the Merger under the HSR
Act shall have expired or been terminated;
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(e) all actions by or in respect of or filing with any
Governmental Authority required to permit the consummation of the Merger
shall have been obtained and such approval shall be in full force and
effect; and
(f) the shares of Parent Class A Common Stock to be issued in
the Merger shall have been approved for listing on the NYSE, subject to
official notice of issuance.
Section 6.2 Conditions to the Obligations of the Parent and
Mergerco. The obligations of the Parent and Mergerco to consummate the
Merger are subject to the satisfaction (or waiver by the Parent) of the
following further conditions:
(a) the representations and warranties of the Company shall
have been true and accurate in all material respects as of the Effective
Time as if made at and as of such time (except for those representations and
warranties that address matters only as of a particular date or only with
respect to a specific period of time which need only be true and accurate as
of such date or with respect to such period);
(b) the Company shall have performed in all material respects
its obligations hereunder required to be performed by it at or prior to the
Effective Time;
(c) since December 31, 1996, except as set forth in Section 3.5
of the Disclosure Schedule, there shall not have occurred any event, change
or effect having, or which would be reasonably likely to have, in the
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aggregate, a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole;
(d) the Parent shall have received a certificate signed by an
executive officer of the Company to the effect of Sections 6.2(a), (b) and
(c);
(e) there shall not have been any action taken, or any statute,
rule, regulation, legislation, interpretation, judgment, order or injunction
enacted, entered, enforced, promulgated, amended, issued or deemed applicable
to the Merger by any domestic legislative body, court, government or
governmental, administrative or regulatory authority or agency (i)
restraining or preventing the carrying out of the Contemplated Transactions,
(ii) prohibiting the Parent's ownership or operation of all or any material
portion of its or the Company's businesses or assets, or compelling the
Parent to dispose of or hold separate all or any material portion of the
Parent's or the Company's businesses or assets as a result of the
Contemplated Transactions; (iii) making acquisition of the shares of Company
Common Stock pursuant to the Merger illegal; (iv) prohibiting the Parent
effectively from acquiring or holding or exercising full rights of ownership
of the shares of Company Common Stock, including, without limitation, the
right to vote the shares of Company Common Stock acquired by it pursuant to
the Merger on all matters properly presented to the stockholders of the
Company; (v) prohibiting the Parent or any of its Subsidiaries or affiliates
from effectively controlling in any material respect the businesses
or operations of the Company, the Parent or their respective subsidiaries;
or (vi) which would impose any condition which would materially adversely
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affect the business of the Company or (as a condition of consummating the
Contemplated Transactions) the business of the Parent and its Subsidiaries
taken as a whole;
(f)the Company's Board of Directors shall not have withdrawn or
modified its position with respect to the Merger;
(g) the Parent shall have received an opinion of Krys Boyle
Freedman Scott & Sawyer, P.C. in scope and substance substantially in the
form agreed to by the Company and the Parent prior to the date hereof;
(h) the Average Parent Share Price shall not be less than
$15.00 per share;
(i) the holders of no greater than seven and one-half percent
(7.5%) of the shares of Company Common Stock outstanding on the record date
for the Meeting (x) shall have demanded their appraisal rights with respect
to their shares of Company Common Stock pursuant to, and otherwise complied
with the provisions of, subsection (d) of Section 262, and (y) shall not have
voted in favor of or consented to the Merger; or
(j) no suit, claim, action or proceeding with respect to the
Merger or the other Contemplated Transactions, or the Company or any of its
Subsidiaries or any of their properties or assets, shall have been instituted
or threatened which could reasonably be expected to have a Material Adverse
Effect on the Company and its Subsidiaries taken as a whole or would, or
would be reasonably likely to, materially impair the ability of the Company
to consummate the Merger or the other Contemplated Transactions.
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Section 6.3 Conditions to the Obligations of the Company. The
obligations of the Company to consummate the Merger are subject to the
satisfaction (or waiver by the Company) of the following further conditions:
(a) the representations and warranties of the Parent and
Mergerco shall be true and accurate in all material respects as of the
Effective Time as if made at and as of such time (except for those
representations and warranties that address matters only as of a particular
date or only with respect to a specific period of time which need only be
true and accurate as of such date or with respect to such period);
(b) each of the Parent and Mergerco shall have performed in all
material respects all of the respective obligations hereunder required to be
performed by the Parent or Mergerco, as the case may be, at or prior to the
Effective Time;
(c) since December 31, 1996, there shall not have occurred any
event, change or effect having, or which would be reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on the Parent and
its Subsidiaries taken as a whole;
(d) the Company shall have received a certificate signed by an
executive officer of the Parent as to Sections 6.3(a), (b) and (c);
(e) the Company shall have received an opinion of Paul, Weiss,
Rifkind, Wharton & Garrison in scope and substance substantially in the form
agreed to by the Parent and the Company prior to the date hereof;
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(f) the Company shall have received an opinion of Sherman &
Howard L.L.C. to the effect that the Merger will qualify as a
"reorganization" within the meaning of Section 368 of the Code; and
(g) no suit, claim, action or proceeding with respect to the
Merger or the other Contemplated Transactions, or the Parent or any of its
Subsidiaries or any of their properties or assets, shall have been instituted
which could reasonably be expected to have a Material Adverse Effect on the
Parent and its Subsidiaries taken as a whole, or would be reasonably likely
to materially impair the ability of the Parent to consummate the Merger or
the other Contemplated Transactions.
ARTICLE VII
TERMINATION
Section 7.1 Termination. Anything herein or elsewhere to the
contrary notwithstanding, this Agreement may be terminated and the Merger
contemplated herein may be abandoned at any time prior to the Effective Time,
whether before or after stockholder approval thereof:
(a) By the mutual consent of the Board of Directors of the
Parent and the Board of Directors of the Company;
(b) By either of the Board of Directors of the Company or the
Board of Directors of the Parent:
(i) if the Merger shall not have occurred on or prior
to December 31, 1997; provided, however, that the right to terminate this
Agreement under this Section 7.1(b)(i) shall not be available to any party
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whose failure to fulfill any obligation under this Agreement has been the
cause of, or resulted in, the failure of the Merger to occur on or prior to
such date;
(ii) if a complete Registration Statement shall not
have been filed with the SEC on or before October 1, 1997; or
(iii) if any Governmental Authority shall have issued
an order, decree or ruling or taken any other action (which order, decree,
ruling or other action the parties hereto shall use their best efforts to
lift), in each case permanently restraining, enjoining or otherwise
prohibiting the Contemplated Transactions and such order, decree, ruling or
other action shall have become final and non-appealable;
(c) By the Board of Directors of the Company:
(i) if the Parent or Mergerco (x) breaches or fails in
any material respect to perform or comply with any of its material covenants
and agreements contained herein or (y) breaches its representations and
warranties in any material respect and such breach would have or would be
reasonably likely to have a Material Adverse Effect on the Parent and its
Subsidiaries taken as a whole, in each case such that the conditions set
forth in Section 6.1 or Section 6.3 would not be satisfied; provided,
however, that if any such breach is curable by the breaching party through
the exercise of the breaching party's best efforts and for so long as the
breaching party shall be so using its best efforts to cure such breach, the
Company may not terminate this Agreement pursuant to this Section 7.1(c)(i);
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(ii) if the Board of Directors of the Company
determines in good faith, after consultation with (x) outside legal counsel,
that termination of the Agreement is required for the Board of Directors of
the Company to satisfy its fiduciary obligations to the Company's
stockholders under applicable law by reason of an unsolicited bona fide
Acquisition Proposal having been made and (y) its financial advisor that
such Acquisition Proposal would result in a transaction that is more
favorable than the Merger from a financial point of view to the Company's
stockholders; provided that the Company shall have complied with the
provisions of Section 5.4 and shall notify the Parent at least five (5) days
in advance of its intention to terminate this Agreement pursuant to this
Section 7.1(c)(ii) or to enter into a definitive agreement with respect to
such Acquisition Proposal; and provided, further, that within such five (5)
day period the Parent has not made a competing proposal which is at least as
favorable to the Company's stockholders from a financial point of view as
such Acquisition Proposal;
(iii) if the Company fails to obtain the Required
Stockholder Vote at the Meeting.
(d) By the Board of Directors of the Parent:
(i) if the Company (x) breaches or fails in any
material respect to perform or comply with any of its material covenants and
agreements contained herein or (y) breaches its representations and
warranties in any material respect and such breach would have or would be
reasonably likely to have a Material Adverse Effect on the Company and its
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Subsidiaries taken as a whole, in each case such that the conditions set
forth in Section 6.1 or Section 6.2 would not be satisfied; provided,
however, that if any such breach is curable by the Company through the
exercise of the Company's best efforts and for so long as the Company shall
be so using its best efforts to cure such breach, the Parent may not
terminate this Agreement pursuant to this Section 7.1(d)(i);
(ii) if (A) the Board of Directors of the Company
shall have withdrawn, or modified or changed in a manner adverse to the
Parent or Mergerco its approval or recommendation of this Agreement or the
Merger or shall have recommended an Acquisition Proposal or other business
combination, (B) the Company shall have received a bona fide written
Acquisition Proposal which has not been rejected by the Board of Directors of
the Company within fourteen (14) days after receipt thereof, or (C)
prior to the certification of the vote of the Company's stockholders to
approve the Merger at the Meeting, it shall have been publicly disclosed or
the Parent or Mergerco shall have learned that any person, entity or "group"
(as that term is defined in Section 13(d)(3) of the Exchange Act) (an
"Acquiring Person"), other than the Parent or its Subsidiaries or any of
their affiliates or the stockholders of the Company party to the
Stockholders Agreement, shall have acquired beneficial ownership (determined
pursuant to Rule 13d-3 promulgated under the Exchange Act) of more than 20%
of any class or series of capital stock of the Company (including the
Shares), through the acquisition of stock, the formation of a group or
otherwise, or shall have been granted any option, right or warrant,
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conditional or otherwise, to acquire beneficial ownership of more than 20%
of any class or series of capital stock of the Company (including the Shares)
other than as disclosed in a Schedule 13D on file with the SEC on the date
hereof;
(iii) if the Company fails to obtain the Required
Stockholder Vote at the Meeting; or
(iv) the condition set forth in 6.2(h) is not fulfilled.
Section 7.2 Effect of Termination. In the event of the
termination of this Agreement as provided in Section 7.1, written notice
thereof shall forthwith be given to the other party or parties specifying the
provision hereof pursuant to which such termination is made, and
this Agreement shall forthwith become null and void, and there shall be no
liability on the part of the Parent, Mergerco or the Company except (A) for
fraud or for willful breach of this Agreement and (B) as set forth in Section
8.3 hereof and in the last sentence of Section 5.2.
ARTICLE VIII
GENERAL AGREEMENTS
Section 8.1 Definitions. For the purposes of this Agreement,
the following terms have the meanings ascribed to them in this Section 8.1:
"Agreement" has the meaning specified in the recitals hereto.
"Acquired Corporations" has the meaning specified in Section 5.4(a).
"Acquiring Person" has the meaning specified in Section 7.1(d)(ii).
"Acquisition Proposal" means any tender or exchange offer involving
the capital stock of the Company, any proposal for a merger, consolidation
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or other business combination involving the Company or any of its
Subsidiaries, any proposal or offer to acquire in any manner a substantial
equity interest in, or a substantial portion of the business or assets of,
the Company or any of its Subsidiaries, any proposal or offer with respect
to any recapitalization or restructuring with respect to the Company or any
of its Subsidiaries or any proposal or offer with respect to any other
transaction similar to any of the foregoing with respect to the Company or
any of its Subsidiaries, other than pursuant to the transactions to be
effected pursuant to this Agreement or any other transaction with the
Parent or a Subsidiary of the Parent.
"Adjusted Conversion Price" has the meaning specified in Section 2.1(b).
"Average Parent Share Price" means the average (without rounding) of
the closing prices per share of Parent Class A Common Stock on the NYSE on
the NYSE Composite Tape for the fifteen (15) consecutive NYSE trading days
ending on the NYSE trading day immediately preceding the Closing Date.
"Business Day" means any day that is not a Saturday or Sunday or a day
on which banks located in New York City are authorized or required to be
closed.
"Certificate" means a stock certificate which immediately prior to
the Effective Time represents shares of the Company Common Stock.
"Certificate of Incorporation" has the meaning specified in
Section 1.3.
"Claims" means any actions, causes of action, suits, claims,
complaints, demands, litigations or legal, administrative or arbitral
proceedings or investigations.
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"Closing" has the meaning specified in Section 1.2.
"Closing Date" has the meaning specified in Section 1.2.
"Code" has the meaning specified in the recitals.
"Company" means Cable Car Beverage Corporation, a Delaware corporation.
"Company Affiliates" has the meaning specified in Section 5.8.
"Company Agreement" means any note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, lease, license, contract,
agreement or other instrument or obligation to which the Company or any of
its Subsidiaries is a party or by which any of them or any of their
properties or assets may be bound.
"Company Benefit Plan" means any material employee benefit plan,
arrangement, policy or commitment, including, without limitation, any
employment, consulting, severance or deferred compensation agreement,
executive compensation, bonus, incentive, pension, profit- sharing, savings,
retirement, stock option, stock purchase or severance pay plan, any life,
health, disability or accidental death and dismemberment insurance plan,
any holiday or vacation practice or any other employee benefit plan within
the meaning of section 3(3) of ERISA, that is maintained, administered or
contributed to by the Company or any of its affiliates for the benefit
of their current or former employees.
"Company Common Stock" has the meaning specified in the recitals
hereto.
"Company Employee" means any individual employed by the Company or any
of its Subsidiaries.
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"Company Fairness Opinion" has the meaning specified in the recitals
hereto.
"Company SEC Documents" has the meaning specified in Section 3.4.
"Company Stock Option" means an option issued by the Company that is
exercisable for Company Common Stock.
"Confidentiality Agreement" means the confidentiality agreement
between the Company and the Parent, dated April 23, 1997, as amended or
modified from time to time.
"Contemplated Transactions" has the meaning specified in the recitals
hereto.
"Conversion Price" has the meaning specified in Section 2.1(b).
"Copyrights" means any foreign or United States copyright
registrations and applications for registration thereof, and any
non-registered copyrights.
"DGCL" has the meaning specified in the recitals hereto.
"Disclosure Schedule" means the disclosure schedule delivered by the
Company to the Parent prior to the date hereof.
"Dissenting Share" has the meaning specified in Section 2.1(e).
"Effective Time" means the time and date at which the Certificate of
Merger is filed with the Secretary of State of the State of Delaware pursuant
to Section 1.8.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, together with the rules and regulations promulgated thereunder.
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"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Exchange Agent" has the meaning specified in Section 2.3(a).
"Excluded Share" has the meaning specified in Section 2.1(a).
"Fractional Shares" means fractional shares of Parent Class A Common
Stock.
"GAAP" means United States generally accepted accounting principles
as in effect from time to time.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Intellectual Property" has the meaning specified in Section 3.13(a).
"IP Licenses" has the meaning specified in Section 3.13(a).
"IRS" means the United States Internal Revenue Service
"Material Adverse Effect" means, with respect to any Person (or group
of Persons taken as a whole), such event, change or effect, in the aggregate
with such other events, changes or effects, which is materially adverse to
the condition (financial or otherwise), business, results of operations or
prospects of such Person.
"Meeting" has the meaning specified in Section 1.6(a).
"Merger" has the meaning specified in the recitals hereto.
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"Merger Consideration" means the shares of Parent Class A Common
Stock to be issued pursuant to the Merger in exchange for Certificates,
together with any cash to be received pursuant to Section 2.3(e) in lieu of
issuing Fractional Shares.
"Mergerco" means CCB Merger Corporation, a Delaware corporation.
"Mergerco Common Stock" means the Common Stock, par value $1.00 per
share, of Mergerco.
"NYSE" means the New York Stock Exchange.
"Order" means any order, judgment, injunction, award, decree or writ
of any Governmental Authority.
"Parent" means Triarc Companies, Inc., as Delaware corporation.
"Parent Class A Common Stock" means the Class A Common Stock, par
value $.10 per share, of Parent.
"Parent Class B Common Stock" means the Class B Common Stock, par
value $.10 per share, of Parent.
"Parent Disclosure Schedule" means the disclosure schedule delivered
by the Parent to the Company on or prior to the date hereof.
"Parent SEC Documents" has the meaning specified in Section 4.4.
"Patents" means any foreign or United States patents and patent
applications including any divisions, continuations, continuations-in-part,
substitutions or reissues thereof, whether or not patents are issued on such
applications and whether or not such applications are modified, withdrawn or
resubmitted.
"PBGC" means the Pension Benefit Guaranty Corporation.
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"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
joint venture, estate, trust, association, organization or other entity or
Governmental Entity.
"Prospectus" has the meaning specified in Section 1.7(a).
"Registration Statement" has the meaning specified in Section 1.7(a).
"Representatives" has the meaning specified in Section 5.4(a).
"Required Stockholder Vote" has the meaning specified in Section
3.2(b).
"SEC" means the Securities and Exchange Commission.
"Section 203" has the meaning specified in the recitals hereto.
"Section 262" shall mean Section 262 of the DGCL.
"Securities Act" means the Securities Act of 1933, as amended.
"Software" means any computer software programs, source code, object
code, data and documentation.
"Stewart's" means Stewart's Restaurants Inc.
"Stewart's Master Agreement" means the Stewart's Master Agreement,
dated July 11, 1989, between Stewart's and the Company, as amended.
"Stockholder" has the meaning specified in Section 2.3(b).
"Stockholders Agreement" has the meaning specified in the recitals
thereto.
"Subsidiary" means, with respect to any Person, any corporation 50% or
more of the outstanding voting power of which, or any partnership, joint
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venture, limited liability company or other entity 50% or more of the total
equity interest of which, is directly or indirectly owned by such Person.
"Substitute Option" has the meaning specified in Section 2.1(d)(i).
"Surviving Corporation" has the meaning specified in Section 1.1.
"Tax" has the meaning specified in Section 3.10(a).
"Tax Return" has the meaning specified in Section 3.10(b).
"Tax Sharing Agreement Amounts" has the meaning specified in Section
3.10(a).
"Trademarks" means any foreign or United States trademarks, service
marks, trade dress, trade names, brand names, designs and logos, corporate
names, product or service identifiers, whether registered or unregistered,
and all registrations and applications for registration thereof.
"Transaction Notice" has the meaning specified in Section 5.4(b).
"Voting Debt" means bonds, debentures, notes or other indebtedness
having voting rights (or convertible into securities having such rights).
Section 8.2 Survival of Representations, Warranties and
Agreements. All representations, warranties and agreements in this
Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Effective Time.
Section 8.3 Expenses. (a) Except as set forth in Section
8.3(b), whether or not the Merger is consummated, all costs and expenses
incurred in connection with this Agreement and the Contemplated Transactions
shall be paid by the party incurring such costs and expenses.
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(b) If the Board of Directors of the Parent shall terminate
this Agreement pursuant to Section 7.1(d)(iv) in respect of the condition
set forth in Section 6.2(h), then the Parent shall reimburse the Company for
its reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred in connection with this Agreement and
the Contemplated Transactions in an amount not to exceed $225,000 in the
aggregate.
Section 8.4 Notice. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by messenger, transmitted by telecopier, telex or telegram or
mailed by registered or certified mail, postage prepaid, as follows:
(a) If to the Parent or Mergerco, to:
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
Attention: Brian L. Schorr, Esq.
Telecopy No.: (212) 451-3216
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Neale M. Albert, Esq.
Telecopy No.: (212) 373-2315
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(b) If to the Company, to:
Cable Car Beverage Corporation
717 17th Street, Suite 1475
Denver, Colorado 80202
Attention: Samuel M. Simpson
Telecopy No.: (303) 298-1150
with a copy to:
Krys Boyle Freedman Scott & Sawyer, P.C.
Dominion Plaza
600 Seventeenth Street
Suite 2700 South Tower
Denver, Colorado 80202
Attention: Thomas Boyle, Esq.
Telecopy No.: (303) 893-2882
Except as otherwise specified herein, all notices and other
communications shall be considered to have been duly given on the first to
occur of (a) the date of delivery if delivered personally on a Business Day
during normal business hours, and if not, on the next occurring Business Day,
(b) five (5) days following posting if transmitted by mail, (c) the
date of transmission with confirmed answer-back if transmitted by telex on a
Business Day during normal business hours, and if not, on the next occurring
Business Day, or (d) the date of receipt if transmitted by telecopier or
facsimile on a Business Day during normal business hours, and if not, on the
next occurring Business Day. Any party may change his or its address for
purposes hereof by notice to the other party given as provided in this
Section 8.4.
Section 8.5 Amendments. Subject to applicable law, this
Agreement may be amended by the parties hereto, by action taken by their
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respective Boards of Directors, at any time prior to the Effective Time,
provided, however, that after approval of this Agreement by the stockholders
of the Company, no amendment or modification shall (a) alter or change the
amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of the Company, (b) alter or change any term of the
certificate of incorporation of the Surviving Corporation to be effected by
the Merger, or (c) alter or change any of the terms and conditions of this
Agreement if such alteration or change would adversely affect the holders of
any class or series of capital stock of the Company. This Agreement may not
be amended, modified or supplemented except by written agreement of the
parties hereto.
Section 8.6 Waiver. At any time prior to the Effective Time,
the parties hereto by action taken by their respective Boards of Directors
may (a) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto, and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
Section 8.7 Brokers. The Company represents and warrants that
no broker, finder or investment banker is entitled to any brokerage, finder's
or other fee or commission in connection with the Merger based upon
arrangements made by or on behalf of the Company other than the fee payable
to Montgomery Securities in connection with its providing financial advice to
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the Company and the Company's Board of Directors and delivery of the Company
Fairness Opinion. The Parent and Mergerco represent and warrant that no
broker, finder or investment banker is entitled to any brokerage, finder's
or other fee or commission in connection with the Merger based upon
arrangements made by or on behalf of the Parent and Mergerco.
Section 8.8 Publicity. So long as this Agreement is in effect,
neither the Company nor the Parent nor any of their respective affiliates
shall issue or cause the publication of any press release or other public
statement or announcement with respect to this Agreement or the Contemplated
Transaction without prior consultation with the other party, except as may be
required by law or by obligations pursuant to any listing agreement with a
national securities exchange or Nasdaq, provided that the Company and the
Parent may include this Agreement and the Stockholders Agreement as exhibits
to a report on Form 8-K filed with the SEC, and in each such case shall use
all reasonable efforts to consult with the other party prior to such release
or announcement being issued or such filing being made.
Section 8.9 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 8.10 Non-Assignability. This Agreement shall not be
assigned by operation of law or otherwise, except that at the election of
the Parent, any direct or indirect wholly owned Subsidiary of the Parent may
be substituted for Mergerco in the Merger for all purposes of this Agreement
(including, but not limited to, the representations and warranties of
Mergerco herein).
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Section 8.11 Entire Agreement; No Third Party Beneficiaries;
Rights of Ownership. This Agreement and the Confidentiality Agreement
(including the exhibits hereto and the documents and the instruments
referred to herein and therein): (a) constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof, and (b) except
as provided in Section 5.7 with respect to the obligations of the Parent
thereunder, are not intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
Section 8.12 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that the
parties shall be entitled to the remedy of specific performance of the terms
hereof, in addition to any other remedy at law or equity.
Section 8.13 Counterparts. This Agreement may be executed in
two or more counterparts each of which shall be deemed to constitute an
original and shall become effective when one or more counterparts have been
signed by each of the parties hereto and delivered to the other parties.
Section 8.14 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed wholly within such state
except to the extent the provisions of the DGCL apply.
Section 8.15 Consent to Jurisdiction. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of,
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this Agreement may be brought against any of the parties in the courts of
the State of New York, County of New York, or, if it has or can acquire
jurisdiction, in the United States District Court for the Southern District
of New York, and each of the parties consents to the jurisdiction of such
courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any
action or proceeding referred to in the preceding sentence may be served on
any party anywhere in the world.
8.16 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE MERGER OR ANY OTHER CONTEMPLATED TRANSACTIONS.
8.17 Disclosure Schedule. The Disclosure Schedule is a part of
this Agreement as if fully set forth herein and all references to this
Agreement shall be
deemed to include the Disclosure Schedule.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed by their respective duly authorized officers as of the date first
above written.
(Registrant) CABLE CAR BEVERAGE CORPORATION
BY(Signature) /s/ Samuel M. Simpson
(Name and Title) Samuel M. Simpson,
President
TRIARC COMPANIES, INC.
BY(Signature) /s/ Brian L. Schorr
(Name and Title) Brian L. Schorr,
Executive Vice President
CCB MERGER CORPORATION
BY(Signature) /s/ Brian L. Schorr
(Name and Title) Brian L. Schorr,
Executive Vice President
<PAGE>
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated June 24, 1997 (this "Agreement"),
by and among Triarc Companies, Inc., a Delaware corporation (the "Parent")
and each of the other parties signatory hereto (each, a "Stockholder" and,
collectively, the "Stockholders").
RECITALS
A. Concurrently herewith, the Parent, CCB Merger Corporation, a
Delaware corporation and wholly owned subsidiary of the Parent
("Mergerco"), and Cable Car Beverage Corporation, a Delaware corporation
(the "Company"), are entering into an Agreement and Plan of Merger (as
amended or modified from time to time, the "Merger Agreement"; capitalized
terms used herein without definition shall have the respective meanings
ascribed to them in the Merger Agreement) pursuant to which Mergerco will
be merged with and into the Company (the "Merger").
B. As of the date hereof, each of the Stockholders Beneficially Owns
(as defined below) the number of shares of the Common Stock, par value $.01
per share, of the Company ("Company Common Stock") set forth opposite such
Stockholder's name on Schedule I hereto.
C. As an inducement and a condition to entering into the Merger
Agreement, the Parent has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Provisions Concerning Company Common Stock. Each
Stockholder hereby agrees that during the period commencing on the
date hereof and continuing until the first to occur of (i) the Effective
Time and (ii) the termination of the Merger Agreement in accordance
with Section 7.1 thereof, at any meeting of the holders of Company
Common Stock, however called, or in connection with any written
consent of the holders of Company Common Stock, such Stockholder
shall vote (or cause to be voted) the Company Common Stock held of
record or Beneficially Owned by such Stockholder (but excluding the
Company Common Stock identified as Excluded Shares on Schedule I
hereto), whether heretofore owned or hereafter acquired (collectively,
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the "Shares"), (i) in favor of approval of the Merger Agreement and the
transactions contemplated thereby (the "Contemplated Transactions"),
including, without limitation, the Merger, and any actions required in
furtherance thereof; (ii) against any action or agreement that would
result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under
the Merger Agreement or the Contemplated Transactions; and
(iii) except as otherwise agreed to in writing in advance by the Parent,
against the following actions (other than the Merger and the other
Contemplated Transactions): (A) any Acquisition Proposal; or
(B) (1) any change in a majority of the Stockholders who constitute the
board of directors of the Company; (2) any change in the present
capitalization of the Company or any amendment of the Company's
certificate of incorporation or by-laws; (3) any other material change in
the Company's corporate structure or business; or (4) any other action
which is intended, or could reasonably be expected, to prevent, or delay
beyond the date specified in Section 7.1(b)(1) of the Merger
Agreement, the Merger or the Contemplated Transactions. Such
Stockholder shall not enter into any agreement or understanding with
any Person the effect of which would be inconsistent or violative of the
provisions and agreements contained in Section 1 or 3 hereof.
For purposes of this Agreement, "Beneficially Own" or "Beneficial
Ownership" with respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting
of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all
other Persons with whom such Person would constitute a "group"
as within the meanings of Section 13(d)(3) of the Exchange Act. For
the purposes of this Agreement, "Person" means any individual,
corporation (including any non-profit corporation), general or limited
partnership, limited liability company, joint venture, estate,
trust, association, organization or other entity or Governmental
Authority.
2. Irrevocable Proxy. In the event the Stockholder shall
fail to comply with the provisions of Section 1, the Stockholder hereby
agrees that such failure shall result, without any further action by the
Stockholder, in the irrevocable appointment of the Parent and each of
its officers, as its attorney and proxy pursuant to the provisions of
Section 212 of the General Corporation Law of the State of Delaware,
with full power of substitution, to vote and otherwise act (by written
consent or otherwise) with respect to the Shares which the Stockholder
is entitled to vote at any meeting of the holders of Company Common
Stock (whether annual or special and whether or not an adjourned or
postponed meeting) or consent in lieu of any such meeting or
otherwise, on the matters and in the manner specified in Section 1 (the
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"Proxy"). This Proxy and power of attorney is irrevocable and coupled
with an interest. The Stockholder hereby revokes all other proxies and
powers of attorney with respect to such Shares that it may have
heretofore appointed or granted, and no subsequent proxy or power of
attorney shall be given or written consent executed (and if given or
executed, shall not be effective) by the Stockholder with respect
thereto. All obligations of the Stockholder under this Agreement shall
be binding upon the heirs, personal representatives, successors and/or
assigns of the Stockholder.
3. Grant of Option. Each Stockholder severally grants to the
Parent an exclusive and irrevocable option (an "Option") to purchase
such Stockholder's Shares in whole but not in part, subject to the
provisions of Section 4 hereof, at the Option Price (as defined below)
at any time after the Company shall have (a) delivered to the Parent a
Transaction Notice or (b) shall have furnished confidential information
to any Person or entered into negotiations with any Person with respect
to an Acquisition Proposal; provided, that if the Merger Agreement is
terminated pursuant to Section 7.1(c)(iii), 7.1(d)(i) or 7.1(d)(iii) of
the Merger Agreement and this Agreement does not terminate in
accordance with Section 5 hereof, then the Options granted hereunder
shall expire at 5:00 p.m. (New York City time) on the tenth (10th)
Business Day following such termination of the Merger Agreement
unless the Parent shall have delivered a written notice to each
Stockholder of its exercise of the Options in accordance with Section 4
hereof. For purposes of this Agreement, the "Option Price" with
respect to each share of Company Common Stock to be purchased by
the exercise of any Option shall be an amount in cash equal to the
product obtained by multiplying (a) 0.1722 (the "Option Conversion
Price") times (b) the Option Average Parent Share Price (as defined
below); provided, that (i) if the Option Average Parent Share Price
shall be less than $18.875, then the Option Conversion Price shall be
adjusted so that it shall equal the quotient obtained by dividing (A)
$3.25 by (B) the Option Average Parent Share Price, and (ii) if the
Option Average Parent Share Price shall be greater than $24.50, then
the Option Conversion Price shall be adjusted so that it shall equal
the quotient obtained by dividing (x) $4.22 by (y) the Option Average
Share Price. For the purposes of this Section 3, "Option Average Share
Price" means the average (without rounding) of the closing prices per
share of Parent Class A Common Stock on the NYSE on the NYSE
Composite Tape for the fifteen (15) consecutive trading days ending on
the NYSE trading day immediately preceding the date of the closing of
the exercise of the Option.
4. Exercise of Option. The Parent shall exercise each and every
Option granted hereunder simultaneously. In the event the Parent
wishes to exercise the Options, the Parent shall send a written notice to
each Stockholder specifying the place (which shall be either Denver,
Colorado or New York, New York), time and date (which, to the extent
practicable in the reasonable judgment of the Parent, shall be no earlier
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than forty-eight (48) hours after the delivery of such notice) for the
closing of such purchase. At the closing for the exercise of the
Options:
(a) the Parent shall deliver to each Stockholder a certified
or bank check or checks payable to or upon the order of such
Stockholder in an amount equal to the aggregate Option Price
of the Shares being purchased from such Stockholder; and
(b) each Stockholder shall deliver to the Parent a duly
executed certificate or certificates representing the number of
Shares being purchased duly endorsed in blank or accompanied
by appropriate stock powers duly endorsed in blank.
5. Termination. This Agreement, including the Options granted
hereunder, shall terminate on the earlier to occur of (a) the Effective
Time; (b) the termination of the Merger Agreement pursuant to the
following provisions of the Merger Agreement: Section 7.1(a), 7.1(b),
7.1(c)(i) or 7.1(d)(iv), or Section 7.1(c)(iii), 7.1(d)(i) or 7.1(d)(iii),
provided that in the case of a termination of the Merger Agreement
pursuant to Section 7.1(c)(iii), 7.1(d)(i) or 7.1(d)(iii) of the Merger
Agreement, this Agreement shall terminate only if the Company or its
stockholders shall not have received an Acquisition Proposal, and the
Board of Directors of the Company shall not have withdrawn, or
modified or changed in a manner adverse to the Parent or Mergerco, its
approval or recommendation of the Merger Agreement or the Merger;
and (c) the date that is 31 days after the date set forth in Section
7.1(b)(i) of the Merger Agreement, as such date as set forth in Section
7.1(b)(i) of the Merger Agreement may be extended, modified or
waived from time to time in accordance with the provisions of the
Merger Agreement.
6. Representations and Warranties. Each Stockholder hereby
represents and warrants to the Parent and Mergerco as follows:
(a) Ownership of Company Common Stock. Such Stockholder is,
as of the date hereof, the record and Beneficial Owner of the number of shares
of Company Common Stock set forth opposite such Stockholder's name on Schedule
I hereto. On the date hereof, the Company Common Stock set forth opposite
such Stockholder's name on Schedule I hereto constitutes all of the Company
Common Stock owned of record or Beneficially Owned by such Stockholder.
Such Stockholder has good and valid title, and sole voting power and sole
power to issue instructions with respect to the matters set forth in
Section 1 hereof, sole power of disposition, sole power of conversion, sole
power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement (including, without limitation, to
execute and deliver the Proxy), in each case with respect to all of the
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Company Common Stock set forth opposite such Stockholder's name on Schedule I
hereto, with no limitations, qualifications, encumbrances or restrictions on
such rights (other than those created under this Agreement) except as set
forth on Schedule I hereto.
(b) Power, Binding Agreement. Such Stockholder has the
legal capacity, power and authority to enter into and perform all
of such Stockholder's obligations under this Agreement. The
execution, delivery and performance of this Agreement by such
Stockholder will not violate any other agreement to which such
Stockholder is a party. This Agreement has been duly and
validly executed and delivered by such Stockholder and
constitutes a valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its
terms, except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors' rights generally, and (ii)
the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought. There is no beneficiary or holder of a
voting trust certificate or other interest of any trust of which
such Stockholder is trustee who is not a party to this Agreement
and whose consent is required for the execution and delivery of
this Agreement or the consummation by such Stockholder of
the transactions contemplated hereby. The Stockholder has not
entered into any voting agreement or trust or other stockholder
agreement with respect to any Company Common Stock
Beneficially Owned or held of record by such Stockholder or
granted to any Person any proxy (revocable or irrevocable) or
power-of-attorney with respect to such Company Common
Stock other than the Proxy expressly contemplated hereby. If
such Stockholder is married and such Stockholder's Company
Common Stock constitutes community property, this
Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, such
Stockholder's spouse.
(c) No Conflicts. (i) Other than the filing of Forms
13-D pursuant to the Securities Exchange Act of 1934, as
amended, and such other filings, consents, authorizations and
approvals as are contemplated by the Merger Agreement, no
filing with, and no permit, authorization, consent or approval
of, any Governmental Authority is necessary for the execution
of this Agreement by such Stockholder and the consummation
by such Stockholder of the transactions contemplated hereby.
(ii) None of the execution and delivery of this Agreement by
such Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder with
any of the provisions hereof shall (A) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination,
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cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of its governing documents (as
applicable) or any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Stockholder is a
party or by which such Stockholder or any of such Stockholder's
properties or assets may be bound, or (B) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to such Stockholder or any of such Stockholder's properties
or assets.
(d) As of the date hereof, there is (i) no suit, claim,
action, proceeding, review or investigation pending, or to the
knowledge of such Stockholder, threatened against the
Stockholder, and (ii) no judgment, decree, order, writ or
injunction of any Governmental Authority to which the
Stockholder or his or her assets are subject, that could
materially impair the ability of the Stockholder to perform his
or her obligations hereunder or to consummate the
transactions contemplated hereby.
(e) No Finder's Fees. No broker, investment banker,
financial advisor or other Stockholder is entitled to any
broker's, finder's, financial advisor's or other similar fee or
commission in connection with the Merger or the other
Contemplated Transactions based upon arrangements made
by or on behalf of such Stockholder or any of his or her
affiliates or, to the knowledge of such Stockholder, the
Company or any of its affiliates, other than the fee payable to
Montgomery Securities in connection with its providing
financial advice to the Company and the Company's Board of
Directors and delivery of the Company Fairness Opinion.
(f) Reliance by the Parent. Such Stockholder understands
and acknowledges that the Parent is entering into the Merger
Agreement in reliance upon such Stockholder's execution and
delivery of this Agreement.
7. Covenants.
(a) Other Potential Acquirors. Such Stockholder (i) shall
immediately cease any existing discussions or negotiations, if
any, with any parties conducted heretofore with respect to any
potential Acquisition Proposal, in his or her capacity as such,
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and (ii) from and after the date hereof shall not, in such
capacity, directly or indirectly, initiate, solicit or encourage
(including by way of furnishing non-public information or
assistance), engage in any discussions or negotiations with
respect to, or take any other action to facilitate, any inquiries
or the making of any proposal that constitutes, or may
reasonably be expected to lead to, an Acquisition Proposal, or
agree to or endorse any Acquisition Proposal, or authorize or
permit any of such Stockholder's agents to do so, and such
Stockholder shall promptly notify the Parent of any offers,
proposals, inquiries or Acquisition Proposals and shall
provide a copy of any such written proposal and a summary of
any oral proposal to the Parent immediately after receipt
thereof (and shall specify the material terms and conditions of
such proposal and identify the Person making such proposal)
and thereafter keep the Parent promptly advised of any
developments with respect thereto.
(b) Restriction on Transfer, Proxies and Non-Interference.
Such Stockholder shall not, directly or indirectly, except as
contemplated by the Merger Agreement and this Agreement:
(i) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to
or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of
such Stockholder's Shares or any interest therein; (ii) grant
any proxies or powers of attorney, deposit any Shares into a
voting trust or enter into a voting agreement with respect to
any Shares; or (iii) take any action that would make any
representation or warrant of such Stockholder contained
herein untrue or incorrect or have the effect of preventing or
disabling such Stockholder from performing such
Stockholder's obligations under this Agreement.
8. Further Assurances. From time to time, at the Parent's request
and without further consideration, each Stockholder shall execute and
deliver such additional documents and take all such further lawful
action as may be reasonably necessary or desirable to consummate
and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
9. Stop Transfer. Each Stockholder agrees with, and covenants
to, the Parent that such Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such
Stockholder's Shares, unless such transfer is made in compliance with
this Agreement. In the event of a stock dividend or distribution, or
any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of
Company Common Stock or the like, the term "Company Common
Stock" shall be deemed to refer to and include the Company
Common Stock as well as all such stock dividends and distributions
and any Company Common Stock into which or for which any or all
of the Company Common Stock may be changed or exchanged.
10. Disclosure. Each Stockholder hereby agrees to permit the
Parent to publish and disclose in the S-4 and the Proxy Statement
(including all documents and schedules filed with the SEC), and any
press release or other disclosure document which the Parent, in its
sole discretion, determines to be necessary or desirable in connection
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with the Merger and any transactions related thereto, such Person's
identity and ownership of Company Common Stock and the nature of
his or her commitments, arrangements and understandings under this
Agreement.
11. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject
matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties
with respect to the subject matter hereof.
(b) Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such
Stockholder's Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares
shall pass, whether by operation of law or otherwise,
including, without limitation, such Stockholder's heirs,
guardians, administrators or successors. Notwithstanding any
transfer of his or her Shares, the transferor shall remain liable
for the performance of all obligations under this Agreement of
the transferor.
(c) Assignment. This Agreement shall not be assigned by
the Company or any Stockholder by operation of law or
otherwise without the prior written consent of the other party.
The Parent may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly owned
subsidiary of the Parent.
(d) Amendments, Waivers, Etc. This Agreement may not
be amended, changed, supplemented, waived or otherwise
modified or, except as expressly provided herein, terminated,
with respect to any Stockholder, except upon the execution
and delivery of a written agreement executed by such
Stockholder and the Parent; provided that Schedule I hereto
may be supplemented by the Parent by adding the name and
other relevant information concerning any Stockholder of the
Company who agrees to be bound by the terms of this
Agreement without the agreement of any other party hereto,
and thereafter such added Stockholder shall be treated as a
"Stockholder" for all purposes of this Agreement.
(e) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have
been duly given if delivered by messenger, transmitted by
telecopier, telex or telegram or mailed by registered or
certified mail, postage prepaid, as follows:
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If to any Stockholder: At the addresses set forth on Schedule I hereto
with a copy to:
Krys Boyle Freedman Scott & Sawyer, P.C.
Dominion Plaza
600 Seventeenth Street
Suite 2700, South Tower
Denver, Colorado 80202
Attention: Thomas Boyle, Esq.
Telecopy: (303) 893-2882
If to the Parent:
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
Attention: Brian L. Schorr, Esq.
Telecopy: (212) 451-3216
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Neale M. Albert, Esq.
Telecopy: (212) 373-2315
Except as otherwise specified herein, all notices and other communications
shall be considered to have been duly given on the first to occur of (a) the
date of delivery if delivered personally on a Business Day during normal
business hours, and if not, on the next occurring Business Day, (b) five (5)
days following posting if transmitted by mail, (c) the date of transmission
with confirmed answer-back if transmitted by telex on a Business Day during
normal business hours, and if not, on the next occurring Business Day,
or (d) the date of receipt if transmitted by telecopier or facsimile on a
Business Day during normal business hours, and if not, on the next occurring
Business Day. Any party may change his, her or its address for purposes
hereof by notice to the other party given as provided in this Section 9(e).
(f) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable
law but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or portion of any provision in
such jurisdiction, and this Agreement will be reformed,
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construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision
had never been contained herein.
(g) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any
covenants or agreements contained in this Agreement will
cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of
any such breach, the aggrieved party shall be entitled to the
remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at
law or in equity.
(h) Remedies Cumulative. All rights, powers and
remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such
party.
(i) No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or to
insist upon compliance by any other party hereto with his, her
or its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
waiver by such party of his, her or its right to exercise any
such or other right, power or remedy or to demand such
compliance.
(j) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable
by, any person or entity who or which is not a party hereto.
(k) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are
not intended to be part of or to affect the meaning or
interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original,
but all of which, taken together shall constitute one and the
same Agreement.
(m) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK,
WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF,
10
<PAGE>
EXCEPT TO THE EXTENT THAT THE GENERAL CORPORATION LAW OF THE STATE
OF
DELAWARE APPLY.
(n) NO LIMITATION OF FIDUCIARY DUTIES. THE PARTIES HERETO
ACKNOWLEDGE AND AGREE THAT NONE OF THE PROVISIONS HEREIN SHALL BE
DEEMED
TO RESTRICT OR LIMIT ANY FIDUCIARY DUTY ANY OF THE STOCKHOLDERS MAY
HAVE
AS A MEMBER OF THE BOARD OF DIRECTORS OF THE COMPANY; PROVIDED, THAT
NO SUCH
DUTY SHALL EXCUSE ANY OF THE STOCKHOLDERS
[Intentionally left blank]
11
<PAGE>
FROM HIS OBLIGATIONS AS A STOCKHOLDER TO VOTE THE SHARES OF THE
COMPANY
COMMON STOCK AS HEREIN PROVIDED, AND TO OTHERWISE COMPLY WITH EACH
OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Parent and each Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
TRIARC COMPANIES, INC.
BY(Signature) /s/ Brian L. Schorr
(Name and Title) Brian L. Schorr
Executive Vice President
STOCKHOLDERS:
BY(Signature) /s/ Samuel M. Simpson
(Name) Samuel M. Simpson
BY(Signature) /s/ Susan L. Neff
(Name) Susan L. Neff
BY(Signature) /s/ William H. Rutter
(Name) William H. Rutter
BY(Signature) /s/ Susan L. Fralick
(Name) Susan L. Fralick
<PAGE>
ACKNOWLEDGMENT:
The undersigned hereby acknowledges the terms and
provisions of Section 9 of this Agreement.
CABLE CAR BEVERAGE CORPORATION
BY(Signature) /s/ Samuel M. Simpson
(Name and Title) Samuel M. Simpson
President
<PAGE>
<TABLE>
<CAPTION>
Schedule I
----------
Shares of
Stockholder Company Excluded
Name and Address Common Stock Shares Shares
- ---------------- ------------ -------- ------
<S> <C> <C> <C>
Samuel M. Simpson 723,643 0 723,643<FN1>
3005 Cherry Ridge Road
Cherry Hills Village, CO
80110
Susan L. Neff 381,234 0 381,234
3005 Cherry Ridge Road
Cherry Hills Village, CO
80110
William H. Rutter 666,532 10,000<FN2> 656,532
1868 South Highland Drive
Moab, UT 84532
Susan L. Fralick 7,200 5,000<FN3> 2,200
1868 South Highland Drive
Moab, UT 84532
- -----------------------------------
<FN>
<FN1>
60,000 of Mr. Simpson's Shares have been pledged to William H. Rutter as
security.
<FN2>
Mr. Rutter's Excluded Shares are comprised of 10,000 shares in a trust for
his benefit, for which Cynthia S. Rutter is trustee.
<FN3>
Ms. Fralick's Excluded Shares are comprised of 5,000 shares in an IRA account.
</FN>
</TABLE>
<PAGE>
Contact: Martin M. Shea
Triarc Companies
212/451-3030
Amy Bolding
Cable Car Beverage Corporation
303/298-9038 ext. 26
TRIARC TO ACQUIRE CABLE CAR BEVERAGE CORPORATION
------------------------------------------------
CABLE CAR'S STEWART'S BRAND TO BE ADDED TO THE PREMIUM
OFFERINGS OF THE TRIARC BEVERAGE GROUP
NEW YORK, New York June 24, 1997 - Triarc Companies, Inc.
(NYSE:TRY) and Cable Car Beverage Corporation (NASDAQ:DRNK)
jointly announced today that they have entered into a definitive
agreement pursuant to which Triarc will acquire Cable Car in a
tax-free merger in which Cable Car will become a wholly-owned
subsidiary of Triarc.
Triarc, through the Triarc Beverage Group, owns, markets and
distributes Snapple Beverages, Mistic Brands and Royal Crown
products. Cable Car, which markets premium soft drinks and
waters in the United States and Canada, primarily under the
Stewart's brand, had 1996 sales of $18.8 million, nearly 50%
higher than 1995 revenues of $12.8 million. Cable Car's business
consists primarily of the sale of finished goods to distributors.
Pursuant to the merger agreement, stockholders of Common Stock of
Cable Car will receive 0.1722 shares of Triarc's Class A Common
Stock for each share of Cable Car Common Stock held by them,
(approximately 1.5 million Triarc shares will be issued, assuming
approximately 9.0 million outstanding shares of Cable Car Common
Stock), subject to certain adjustments. Following the
transaction, Triarc will have approximately 31 million shares of
its Common Stock outstanding (including its now voting Class B
Common Stock). Consummation of the merger will be subject to
customary closing conditions, including the approval of the
merger by the stockholders of Cable Car and Hart-Scott-Rodino
antitrust clearance, and is expected to occur during the third
quarter of 1997.
In connection with the transaction, Triarc also announced that it
has entered into an agreement with Cable Car's two largest
stockholders, who hold approximately 20% of Cable Car's
outstanding Common Stock, pursuant to which such stockholders
have agreed, among other things, to vote their shares in favor of
the transaction and not to sell such shares to any other party.
In addition, Triarc has received an option to purchase such
shares if certain events occur.
<PAGE>
Nelson Peltz, chairman and chief executive officer of Triarc,
stated "When we created the Triarc Beverage Group, we envisioned
it as a platform for growth. The Snapple acquisition was the
first step on that growth plan. The Cable Car transaction
represents one of the opportunities that we envision, to attract
first class management and their businesses into the Triarc
family. Acquisitions, such as these, allow us to continue to
build our presence in the premium beverage industry, where we are
now the category leader. The addition of the Stewart's brand
into our fine offering of products makes Triarc a more important
partner for the independent bottlers and distributors with whom
we work. Our premium brands will continue to add margin to these
businesses and will continue to add to the viability and
profitability of the entire independent system."
Cable Car, based in Denver, Colorado, will continue to operate
under its existing management, led by Sam Simpson as president,
and will provide the Triarc Beverage Group with a strong presence
in the Western United States. Cable Car offers a premium product
line consisting primarily of Stewart's brand soft drinks,
including Root Beer, Orange N' Cream, Cream Ale, Ginger Beer, Key
Lime and Cherries N' Cream. Its offerings also include JAVA
COLA, Fountain Classics Seltzer, San Francisco Seltzer, Aspen
Mountain Spring Water and Aspen Flavored Waters. In New York
City, its products are marketed and distributed by Mr. Natural,
Triarc's wholly-owned premium beverage distributor. Cable Car
also announced that it has acquired the world-wide rights to
Stewart's brand products, including fountain rights (in addition
to packaged soft drinks), subject to certain limited exceptions.
Sam Simpson stated "By joining with Triarc, Cable Car will
benefit from the strong marketing and entrepreneurial talent that
is the hallmark of the Triarc management team. We are delighted
to become part of the growing business at the Triarc Beverage
Group and know that Stewart's brand soft drinks and our other
products will greatly enhance Triarc Beverage Group's overall
product offerings."
Triarc is expected to have 1997 annual sales of nearly $1 billion
through its consumer brands in beverages (Snapple, Mistic and
Royal Crown) and restaurants (Arby's). In addition, Triarc has
annual sales of approximately $70 million in specialty dyes and
chemicals (C.H. Patrick) and an equity interest in liquefied
petroleum gas (National Propane) which has annual sales of
approximately $150 million.
###
Notes to Follow
<PAGE>
Notes
-----
The statements in this press release that are not historical
facts constitute "forward-looking statements" that are based on
current expectations but involve risks, uncertainties and other
factors which may cause actual results to be materially different
from those set forth in the forward-looking statements. Such
factors include, but are not limited to the following: general
economic, business and market conditions; competition; success of
operating initiatives; development and operating costs;
advertising and promotional efforts; brand awareness; the
existence or absence of adverse publicity; acceptance of new
product offerings; changes in business strategy or development
plans; quality of management; availability, terms and deployment
of capital; business abilities and judgement of personnel;
availability of qualified personnel; labor and employee benefit
costs; availability and cost of raw materials and supplies;
changes in, or failure to comply with, government regulations;
regional weather conditions; the costs and other effects of legal
and administrative proceedings; and other risks and uncertainties
detailed in Triarc's and Cable Car's Annual Reports on Form 10-K,
and Triarc's and Cable Car's other current and periodic filings
with the Securities and Exchange Commission.
