<PAGE>
FIRST SUPPLEMENT DATED JUNE 28, 2000 TO
OFFER TO PURCHASE FOR CASH DATED MAY 31, 2000
CASTLE ACQUISITION COMPANY, INC.
An Indirect Wholly-Owned Subsidiary of
FLEXI-VAN LEASING, INC.
Has Amended its Offer to Purchase for Cash
and is Now Offering to Purchase Each Outstanding Share of Common Stock,
of
CASTLE & COOKE, INC.
at
$19.25 net Per Share in Cash
--------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON JULY 6, 2000, UNLESS THE OFFER IS EXTENDED.
THE OFFER TO PURCHASE, THIS SUPPLEMENT AND THE REVISED GREY LETTER OF
TRANSMITTAL AS DEFINED HEREIN CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ
CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE TRANSACTION, PASSED UPON THE
MERITS OR FAIRNESS OF THE TRANSACTION, OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THE DISCLOSURE IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The following information amends and supplements the Offer to Purchase for
Cash dated May 31, 2000 (the "Original Offer") of Castle Acquisition
Company, Inc., a Hawaii Corporation ("Purchaser") and a wholly owned subsidiary
of Castle & Cooke Holdings, Inc., a Delaware corporation ("Parent") and a wholly
owned subsidiary of Flexi-Van Leasing, Inc., a Delaware corporation ("FLX"),
which is 100% owned by David H. Murdock, pursuant to which Purchaser offered to
purchase all of the outstanding shares of common stock, having no par value (the
"Shares") of Castle & Cooke, Inc., a Hawaii corporation (the "Company"), at a
price of $18.50 per Share (the "Offer Price"), net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions set forth
in the Offer to Purchase and in the related Letter of Transmittal. This First
Supplement, dated June 28, 2000, to the Original Offer (the "Supplement")
provides information with respect to an increase in the Offer Price from $18.50
per Share to $19.25 per Share, and certain other additional information.
------------------------
<PAGE>
IMPORTANT
This Supplement should be read in conjunction with the Offer to Purchase.
Except as set forth in this Supplement and the revised GREY Letter of
Transmittal, the terms and conditions previously set forth in the Offer to
Purchase and the original BLUE Letter of Transmittal remain applicable in all
respects to this Supplement. Terms used but not defined in this Supplement have
the meanings set forth in the Original Offer.
Any shareholder desiring to tender all or any portion of his shares should
either (1) complete and sign the original BLUE or the revised GREY Letter of
Transmittal or a facsimile thereof in accordance with the instructions in the
revised GREY Letter of Transmittal, have his signature thereon guaranteed if
required by Instruction 1 of either Letter of Transmittal and mail or deliver
either Letter of Transmittal or such facsimile with his certificates evidencing
his Shares and any other required documents to the Depositary, or follow the
procedure for book-entry transfer of Shares set forth in PROCEDURE FOR TENDERING
SHARES of the Original Offer, or (2) request his broker, dealer, commercial
bank, trust company or other nominee to effect the transaction for him.
Shareholders having Shares registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such broker,
dealer, commercial bank, trust company or other nominee if they desire to tender
their Shares.
A shareholder who wants to tender Shares and whose certificates representing
such Shares are not immediately available, or who cannot comply with the
procedures for book-entry transfer on a timely basis, or who cannot deliver all
required documents to the Depositary prior to the expiration of the Offer, may
tender such Shares by following the procedures for guaranteed delivery set forth
in PROCEDURE FOR TENDERING SHARES of the Original Offer.
Questions and requests for assistance may be directed to Georgeson
Shareholder Communications Inc. (the "Information Agent") or Deutsche Bank
Securities Inc. (the "Dealer Manager") at their respective addresses and
telephone numbers set forth below and on the back cover of this Supplement.
Additional copies of this Supplement, the revised GREY Letter of Transmittal,
the revised Notice of Guaranteed Delivery and other related materials may be
obtained from the Information Agent or from brokers, dealers, commercial banks
and trust companies.
THE DEALER MANAGER FOR THE OFFER IS:
Deutsche Banc Alex. Brown
Deutsche Bank Securities Inc.
130 Liberty Street, 33(rd) Floor
New York, New York 10006
(212) 250-6000 (Call Collect)
THE INFORMATION AGENT FOR THE OFFER IS:
[LOGO]
17 State Street, 10(th) Floor
New York, New York, 10004
Banks and Brokers Call Collect:
(212) 440-9800
All Others Call Toll-Free:
(800) 223-2064
<PAGE>
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
Introduction................................................ 1
Tendering Shares............................................ 1
Summary of the Supplement to the Offer...................... 2
Background of the Revised Offer............................. 3
Fairness of the Transaction................................. 4
Source and Amount of Funds.................................. 6
The Merger Agreement; Conditions to the Offer............... 6
Miscellaneous............................................... 7
</TABLE>
<PAGE>
INTRODUCTION
On June 22, 2000, Purchaser and Parent amended the Original Offer to
increase the Offer Price and the Merger Consideration from $18.50 per Share to
$19.25 per Share as contemplated by the terms of a proposed settlement of eight
class action lawsuits filed against the Company, FLX, and Mr. David H. Murdock,
among other parties, relating to the Original Offer and the Merger. On June 28,
2000, Purchaser and Parent further amended the Original Offer to increase the
Minimum Condition (the number of shares which must be tendered before Purchaser
is obliged to purchase tendered shares) from 50% to 75% of the Shares Purchaser
and its affiliates do not presently own. The Original Offer, as revised by this
Supplement, is referred to herein as the "Revised Offer." The increase in the
Offer Price and the Merger Consideration is reflected in the Amendment to the
Agreement and Plan of Merger, dated as of June 27, 2000, among Parent,
Purchaser, FLX and the Company (the "Amendment").
TENDERING SHARES
Any shareholder desiring to tender all or any portion of his shares should
either (1) complete and sign the original BLUE or the revised GREY Letter of
Transmittal or a facsimile thereof in accordance with the instructions in the
revised GREY Letter of Transmittal, have his signature thereon guaranteed if
required by Instruction 1 of either Letter of Transmittal and mail or deliver
either Letter of Transmittal or such facsimile with his certificates evidencing
his Shares and any other required documents to the Depositary, or follow the
procedure for book-entry transfer of Shares set forth in PROCEDURE FOR TENDERING
SHARES of the Offer to Purchase, or (2) request his broker, dealer, commercial
bank, trust company or other nominee to effect the transaction for him.
Shareholders having Shares registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such broker,
dealer, commercial bank, trust company or other nominee if they desire to tender
their Shares.
A shareholder who wants to tender Shares and whose certificates representing
such Shares are not immediately available, or who cannot comply with the
procedures for book-entry transfer on a timely basis, or who cannot deliver all
required documents to the Depositary prior to the expiration of the Revised
Offer, may tender such Shares by following the procedures for guaranteed
delivery set forth in PROCEDURE FOR TENDERING SHARES of the Original Offer.
SHAREHOLDERS WHO HAVE PREVIOUSLY VALIDLY TENDERED SHARES PURSUANT TO THE
ORIGINAL OFFER AND WHO HAVE NOT WITHDRAWN THOSE SHARES NEED NOT TAKE ANY FURTHER
ACTION IN ORDER TO TENDER SHARES PURSUANT TO THE REVISED OFFER AND RECEIVE THE
INCREASED OFFER PRICE. SHAREHOLDERS WHO HAVE TENDERED SHARES PURSUANT TO THE
GUARANTEED DELIVERY PROCEDURE BUT HAVE NOT COMPLETED THE REQUIRED STEPS STILL
NEED TO DO SO. SEE PROCEDURES FOR TENDERING SHARES IN THE ORIGINAL OFFER.
1
<PAGE>
I. SUMMARY OF THE REVISED TERMS OF THE OFFER
Castle Acquisition Company, Inc. is offering to purchase all of the
outstanding common stock of Castle & Cooke, Inc. for $19.25 net per share in
cash. The following are some of the questions you, as a shareholder of Castle &
Cooke, Inc., may have regarding the Revised Offer and answers to those
questions. We urge you to carefully read this Supplement in its entirety in
connection with the terms of the Original Offer, and the accompanying revised
GREY Letter of Transmittal because the information in this summary is not
complete and additional important information is contained in both the remainder
of this Supplement, in the Original Offer, and in the revised GREY Letter of
Transmittal.
HOW MUCH ARE YOU OFFERING TO PAY FOR MY SECURITIES AND WHAT IS THE FORM OF
PAYMENT?
We are offering to pay $19.25 per share in cash, less any required
withholding taxes, and without the payment of interest. The other payment terms
remain the same as stated in the Original Offer. You are encouraged to read the
Original Offer in its entirety. See INTRODUCTION, above.
WHY HAS THE PRICE CHANGED FROM THE PRICE SHOWN IN THE ORIGINAL OFFER
Eight purported class action lawsuits were filed against Castle &
Cooke, Inc., Mr. David H. Murdock, and related parties, based upon the proposed
transactions described in the Original Offer. See CERTAIN LEGAL MATTERS in the
Original Offer. Since the Original Offer was filed, the parties have reached a
tentative settlement with the plaintiffs. One of the terms of the settlement was
a price increase from $18.50 to $19.25. See BACKGROUND OF THE REVISED OFFER,
below.
HAS THE COMPANY APPROVED THIS REVISED OFFER?
The higher offer price and the other terms of the Revised Offer described in
this Supplement have been approved by the Board of Directors of Castle &
Cooke, Inc. and its Special Committee of disinterested directors. See BACKGROUND
OF THE REVISED OFFER, below.
WILL THE PURCHASERS BE ABLE TO FINANCE THE HIGHER PURCHASE PRICE?
Castle Acquisition Company, Inc. has received commitments for both a bridge
loan and a permanent financing arrangement which will provide sufficient funding
to pay the increased offer price to shareholders who tender their shares, and
whose shares are accepted in the Revised Offer, as well as all of the fees and
expenses incurred in connection with the Revised Offer. See SOURCE AND AMOUNT OF
FUNDS, below.
WHAT ARE THE ADDITIONAL CONDITIONS TO YOUR COMPLETING THE TENDER OFFER?
We are not required to complete the tender offer unless (1) the number of
tendered shares represents more than 75% of the outstanding shares of common
stock which we, or our affiliates, do not already own; and (2) the other
conditions described in the Original Offer are satisfied. See CONDITIONS TO THE
OFFER in the Original Offer. Based on the number of shares outstanding as of
May 19, 2000, the number of shares not owned by us that must be validly tendered
and not withdrawn in order to meet the first conditions is 9,418,893. In
addition to the conditions described in the Original Offer, we are not required
to accept for payment, or pay for, any shares tendered in the Revised Offer if
the parties to the litigation have not signed a settlement stipulation, or if
such stipulation has not been submitted to a court for approval and approved on
a preliminary basis. In that case, we will extend the Revised Offer (but not to
a date beyond August 15, 2000) to permit the execution, submission, and
preliminary approval of a settlement stipulation, unless we otherwise have the
right to terminate the Revised Offer. See THE MERGER AGREEMENT; CONDITIONS TO
THE REVISED OFFER, below.
IS THE REVISED OFFER CHANGING THE TIME I HAVE TO TENDER MY SHARES?
We are not extending the Original Offer by filing this Supplement, or
otherwise changing the length of time the Original Offer will remain open. You
therefore have the same amount of time to tender your
2
<PAGE>
shares under the Revised Offer as you did under the terms of the Original Offer.
Therefore, under the terms of the Revised Offer, you have at least until 12:00
midnight, New York City time, on July 6, 2000, or such longer period as required
by law, to decide whether you would like to tender your shares in the Revised
Offer. See MISCELLANEOUS, below.
WHAT WILL HAPPEN IF THE NUMBER OF SHARES TENDERED IS LESS THAN SEVENTY-FIVE
PERCENT OF THE SHARES YOU DO NOT ALREADY OWN?
We have the right to extend the offer so this condition can be met or to waive
this condition (after consulting with the Company's Special Committee of
independent directors) or depending on the circumstances, to abandon the offer.
We will determine what to do once we know what shares are tendered and by whom.
WILL THERE BE A SUBSEQUENT OFFERING PERIOD?
Following the initial acceptance of the shares, we will grant a subsequent
offering period of five days pursuant to Rule 14d-11 of the Securities Exchange
Act of 1934, as amended. See MISCELLANEOUS, below.
WHAT IF I HAVE ALREADY TENDERED MY SHARES?
If you have previously validly tendered your shares in the Original Offer
and have not withdrawn them, you do not need to take any further action. See
TENDERING SHARES, above. If you have previously tendered your shares pursuant to
the guaranteed delivery procedure and have not yet completed the required steps,
you will need to complete those steps. See PROCEDURE FOR TENDERING SHARES in the
Original Offer.
HOW CAN I GET FURTHER INFORMATION?
You can call Georgeson Shareholder Communications Inc., at (800) 223-2064
(toll free). Georgeson Shareholder Communications Inc. is continuing to act as
the Information Agent for our tender offer.
II. BACKGROUND TO THE REVISED OFFER
On May 31, 2000, Castle Acquisition Company, Inc., a Hawaii corporation
("Purchaser") and a wholly owned subsidiary of Castle & Cooke Holdings, Inc.
("Parent"), a Delaware corporation and a wholly owned subsidiary of Flexi-Van
Leasing, Inc., a Delaware corporation ("FLX"), which is 100% owned by David H.
Murdock, commenced an offer to purchase all outstanding shares of common stock,
without par value (the "Shares"), of Castle & Cooke, Inc., a Hawaii corporation
(the "Company"), at a price of $18.50 per Share, net to the seller in cash, upon
the terms and subject to the conditions set forth in the Offer to Purchase dated
May 31, 2000 (the "Original Offer"). The Original Offer was intended to permit
Purchaser to acquire all of the outstanding Shares not already owned by
Purchaser or its affiliates, including FLX, thereby causing the Company to
become a wholly-owned indirect subsidiary of FLX. The Original Offer also
contemplated that Purchaser would be merged with and into the Company pursuant
to the Agreement and Plan of Merger, dated as of May 19, 2000, by and among FLX,
Purchaser, Parent, and the Company (the "Merger"; the "Merger Agreement").
The Original Offer described several class actions filed by shareholders of
the Company against FLX, Mr. Murdock, the Company, and other related parties in
connection with the matters contemplated by the Original Offer (the "Pending
Actions"), including the Merger. The parties have recently reached a tentative
settlement with respect to the Pending Actions, and have negotiated a settlement
stipulation (the "Stipulation of Settlement"), which describes the terms of the
tentative settlement (the "Settlement"). The Settlement provides for a new offer
price per share of $19.25 (the "Revised Offer Price"), which represents a 59%
premium over the closing market price of the Shares on March 29, 2000, the last
full trading day prior to the initial public announcement of the proposal by FLX
to acquire the Company (the "Proposal"), and a 13% premium over the $17.00 per
share price presented in the Proposal. The Settlement terms also include
(i) dismissal of all Pending Actions, (ii) release of all claims which the
proposed class of plaintiffs in
3
<PAGE>
the Pending Actions (the "Plaintiffs") would have against FLX and its
affiliates, the Company, their advisors, and the officers and directors of the
Company (including Mr. Murdock) and all their affiliates, (iii) the release by
FLX and the Company of all claims against the Plaintiffs and their advisors and
(iv) an acknowledgment that Purchaser will increase the minimum number of Shares
that must be tendered before Parent and Purchaser are required to complete the
Revised Offer (the "Minimum Condition") from a simple majority to more than 75%
of the Shares held by shareholders not affiliated with Purchaser. Purchaser
believes that the Minimum Condition will be satisfied if 9,418,893 shares held
by shareholders unaffiliated with Purchaser are validly tendered and not
withdrawn. FLX and the Company will agree not to oppose the application for
legal fees and costs submitted by Plaintiffs' counsel, provided such fees do not
exceed $5,000,000 in the aggregate.
The Settlement is not yet final and remains subject to, preliminary court
approval and final court approval after notice to the class. The Settlement
provides that the Revised Offer and Merger can be completed before the
Settlement becomes final. It is expected that the Settlement will be submitted
for preliminary approval on July 5, 2000. The Special Committee of independent
directors (the "Special Committee") and the Board of Directors of the Company
(the "Company Board") have approved the Settlement in principle.
On June 27, 2000, the parties to the Merger Agreement entered into the
Amendment to Agreement and Plan of Merger set forth in Exhibit A hereto.
III. FAIRNESS OF THE TRANSACTION
Mr. Murdock, Parent, FLX, and the Purchaser (collectively, the "Offerors")
continue to believe that the terms and conditions of the Original Offer were
substantively and procedurally fair to the Company and to its shareholders,
including shareholders unaffiliated with any of the Offerors, and believe that
the terms and conditions of the Revised Offer and Merger are substantively and
procedurally fair to the Company and to its shareholders, including shareholders
unaffiliated with the Offerors. They base this belief on the same factors that
were discussed in the Original Offer, including, but not limited to, the
following:
SUBSTANTIVE FACTORS
- CURRENT AND HISTORICAL MARKET PRICES. Shareholders who accept the Revised
Offer will sell their Shares for cash at a price presenting a premium of
approximately 59% over the closing market price of the Shares on
March 29, 2000. This will provide a source of liquidity not otherwise
available, and will eliminate the shareholders' exposure to fluctuations
in market value of the Shares. In addition, the cash received in the
Revised Offer will allow shareholders to pursue other investment
alternatives. An investment in the Company on December 27, 1995 (the first
day it traded as a public company) would have yielded a negative return or
loss of 29% as of December 31, 1999. An investment during the same time
period in the S&P 500 or NASDAQ would have yielded a positive return or
gain of 155% or 293%, respectively.
- GOING CONCERN VALUE. The Offerors considered the Company's "going concern"
value as a public company in the absence of an offer to acquire the
Company and determined that the Original Offer was at a significant
premium to the likely near term trading range of the Company's stock based
on the Company's near term prospects. In connection with its consideration
of this matter, the Offerors reviewed a segment valuation analysis,
assuming the Company remained public, provided by Deutsche Bank, financial
advisor to Mr. Murdock and FLX. A summary of this analysis is given in the
Original Offer. This analysis showed a per share value range of $7.64 to
$4.27, implying a discount of 36.7% to 64.6% to the Company's stock price
before the announcement of the Proposal.
4
<PAGE>
- PRICES PAID IN PREVIOUS PURCHASES. This was not considered a material
factor by the Offerors since they have not conducted any prior stock
purchases of the common stock of the Company within the past two years.
- GOING PRIVATE TRANSACTION PREMIA ANALYSIS. As more fully described in the
Original Offer, Deutsche Bank provided an analysis regarding transaction
premia experienced in certain "going private" transactions. Deutsche
Bank's analysis showed that the premium implied by a $17.00 per share
offer exceeded the median premia for the selected "going private"
transactions.
- LIQUIDATION VALUE. The Offerors considered liquidation of the Company but
rejected it as an alternative because of the length of time, transaction
costs, and uncertainty involved.
- NET BOOK VALUE. Net book value was not a significant factor considered by
the Offerors in formulating the Original Offer and the Revised Offer and,
like liquidation value, was accorded little or no weight due to the
impracticality and uncertainty of realizing upon it and the fact that (i)
book value has not been reflected in the Company's historical stock market
prices and (ii) book value does not relate to the estimated fair values of
the underlying business segments. Subsequent to the Original Offer, the
Plaintiffs focused extensively on book value or net asset value per share,
and there has been public commentary by analysts about such values. The
Offerors continue to believe that net book value per share is not the
appropriate basis to value the Shares and believe the historical market
prices for the Shares, as well as the analysis conducted by Mr. Murdock's
and FLX's financial advisor, Deutsche Bank, and the separate analysis
conducted by the Special Committee's financial advisor, Bear Stearns,
support their view.
- FAIRNESS OPINION OF BEAR STEARNS. Bear Stearns financial advisor to the
Special Committee, delivered its opinion to the Special Committee to the
effect that the consideration in the Original Offer was fair, from a
financial point of view, to the Company's shareholders other than the
Offerors.
- FIRM OFFERS BY UNAFFILIATED PERSONS. The Offerors did not consider this as
a factor since they were not aware of any firm offers from unaffiliated
persons within the two years prior to the date of this Supplement.
IN CONSIDERING THE FINANCIAL ANALYSES PROVIDED BY DEUTSCHE BANK, THE
OFFERORS NOTED THAT DEUTSCHE BANK HAS NOT ACTED AS FINANCIAL ADVISOR TO THE
COMPANY, THE COMPANY BOARD, OR THE SPECIAL COMMITTEE. DEUTSCHE BANK WAS NOT
REQUESTED TO, AND DID NOT, RENDER AN OPINION WITH RESPECT TO THE FAIRNESS OF THE
TRANSACTION OR THE CONSIDERATION TO BE PAID IN THE ORIGINAL OFFER AND MERGER, OR
AS TO VALUATION OR OTHERWISE. DEUTSCHE BANK CAUTIONED THE OFFERORS THAT ITS
ANALYSES DO NOT CONSTITUTE A RECOMMENDATION TO THE COMPANY OR ITS SHAREHOLDERS
AS TO THE TRANSACTION, AS TO WHETHER SHAREHOLDERS SHOULD TENDER THEIR SHARES OR
AS TO HOW THEY SHOULD VOTE WITH RESPECT TO THE TRANSACTION, AND SHOULD NOT BE
RELIED UPON AS A BASIS FOR ANY INVESTMENT DECISION.
In deciding to increase the Offer Price, the Offerors considered these
matters again and noted the absence of any competing proposals for an
acquisition of the Company or its assets since the Original Offer was announced.
They continue to believe the terms and conditions of the Original Offer, the
Revised Offer, and the Merger are fair to the shareholders of the Company not
affiliated with the Offerors.
PROCEDURAL FACTORS
- APPROVAL OF SECURITY HOLDERS. The terms of the Revised Offer explicitly
require that the Minimum Condition must be satisfied prior to the
expiration of the Revised Offer. The Revised Offer also provides that the
Minimum Condition may be waived by the Offerors, but not without
consulting with the Special Committee. In addition, the Offerors cannot
waive the Minimum Condition if they would hold less than a majority of the
outstanding shares following the acceptance of the Shares, without the
express written consent of the Company.
5
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- UNAFFILIATED REPRESENTATIVE. The Offerors believe that there was no need
to retain any additional unaffiliated representatives to act on behalf of
the shareholders (other than the Offerors), since the unaffiliated status
of the members of the Special Committee and the retention by the Special
Committee of its own independent legal counsel and financial advisor
permitted the Special Committee to effectively represent the interests of
such shareholders.
- APPROVAL OF DIRECTORS. The Original Offer, the Revised Offer, the Merger
and the Amendment were approved by a majority of the members of the
Company Board who were not affiliated with any of the Offerors, as well as
by the entire Company Board. In addition, the Special Committee, which
consisted of independent directors appointed to represent the interests of
the Company's shareholders, other than Offerors, and which was represented
by its own independent legal counsel and advised by its own financial
advisor, unanimously determined that the terms of the Original Offer and
Merger are fair to the shareholders, other than to the Offerors, and
recommended to the Company Board that the Original Offer and Merger be
approved.
IV. SOURCE AND AMOUNT OF FUNDS
After considering the Revised Offer Price, the total amount of funds
required to consummate the Revised Offer, assuming all Shares are tendered and
including estimated fees and expenses, is approximately $248 million. Parent
will obtain 4,501,310 Shares and $25 million from FLX, and will obtain the rest
of the necessary funds through outside financing sources.
Parent has obtained a commitment from Bankers Trust Company ("BTC") for a
bridge loan facility of up to $235 million (the "Bridge Loan"), which will
provide funds to pay the Revised Offer Price to all shareholders who tender
Shares, as well as a commitment from BTC for permanent financing in an amount up
to $300 million (the "Permanent Loan"). The obligations of BTC to provide the
Bridge Loan and the Permanent Loan are subject to certain conditions including
(i) the execution by Parent and its affiliates of financing documents evidencing
the Bridge Loan and the Permanent Loan, in forms acceptable to BTC
(collectively, the "Loan Documents") and (ii) the execution of the Stipulation
of Settlement, and preliminary court approval of the Settlement (but not final
approval) after notice to class members. There are no alternative financing
plans other than the Bridge Loan and the Permanent Loan.
It is expected that the Loan Documents will be completed in the ordinary
course while the Revised Offer is outstanding and signed on or before the date
funds are needed.
V. THE MERGER AGREEMENT; CONDITIONS TO THE OFFER
In connection with the Settlement, FLX, Parent, Purchaser and the Company
executed the Amendment to Agreement and Plan of Merger set forth in Exhibit A
hereto which provided for the following, in addition to the Revised Offer Price:
-- An increase in the Minimum Condition from a simple majority of the
Shares held by security holders not affiliated with the Offerors to more
than 75% of such Shares;
-- Allowing certain persons who hold employee stock options to purchase
common stock of the Company (the "Optionholders") to elect to receive
payment for options cancelled in the Merger through the Company's
Deferred Compensation Plan, rather than receiving a cash payment at the
time of the Merger, as contemplated by the original terms of the Merger
Agreement;
-- Giving Parent and Purchaser the right not to accept tendered shares if
the Stipulation of Settlement is not executed, submitted to a court for
approval, and approved on a preliminary basis by such court prior to the
scheduled expiration date of the Revised Offer; and
-- Requiring Parent and Purchaser to extend the Revised Offer (but not
beyond August 15, 2000) if the Stipulation of Settlement has not been
executed, submitted to a court for approval and approved on a preliminary
basis, in order to permit such execution, submission, and approval.
6
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The portion of the Amendment referring to the Company's Deferred
Compensation Plan is designed to avoid any restrictions, under the Merger
Agreement, on the rights of a Company executive to defer amounts payable upon
the cancellation of options. This plan, approved by the Company's Compensation
and Benefits Committee, is an unfunded deferred compensation plan for executive
officers and certain other highly compensated executives selected by the
Committee, pursuant to which certain cash compensation may be deferred at the
election of the participant. Participants may elect to defer base salary and
bonuses and (except for Mr. Murdock) defer any cash payable to them pursuant to
Section 3.2 of the Merger Agreement (i.e., cash payable in respect of
unexercised options at the time of the Merger). Amounts deferred are indexed
under the plan to various investment alternatives, all of which are unrelated to
the Company, for purposes of determining actual payout amounts as of applicable
deferred payment dates.
VI. MISCELLANEOUS
Unless a term of the Original Offer is discussed in this Supplement, such
term or condition remains the same as described in the Original Offer.
Therefore, shareholders of the Company should read the Original Offer in its
entirety, as this Supplement only addresses the conditions that have changed and
the Original Offer contains important information necessary for shareholders of
the Company to tender their Shares.
Following the initial acceptance of Shares, Purchaser will grant a
supplemental offering period of five days pursuant to Rule 14d-11 of the
Securities Exchange Act of 1934, as amended.
This Supplement is not an extension of the Original Offer. The Revised Offer
will remain open until midnight, New York City time, on July 6, 2000, or such
later date as required by law.
7
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Facsimile copies of both the revised GREY and original BLUE Letters of
Transmittal, properly completed and duly executed, will be accepted. Any Letter
of Transmittal, certificates for Shares and other required documents should be
sent or delivered by each shareholder of the Company or his broker, dealer,
commercial bank, trust company or other nominee to the Depositary, at one of the
addresses set forth below:
The Depositary for the Offer is:
EquiServe Trust Company, N.A.
<TABLE>
<S> <C> <C>
BY MAIL: BY OVERNIGHT COURIER BY HAND:
EquiServe Trust Company, N.A. EquiServe Trust Company, N.A. Securities Transfer & Reporting
Attn: Corporate Actions Attn: Corporate Actions Services, Inc.
P. O. Box 8029 150 Royall Street c/o EquiServe Trust Company,
Boston, MA 02266-8029 Canton, MA 02021 N.A.
100 William Street/Galleria
New York, NY 10038
BY FACSIMILE TRANSMISSIONS
(FOR ELIGIBLE INSTITUTIONS
ONLY) (781) 575-2232
CONFIRM BY TELEPHONE:
(800) 733-5001
</TABLE>
Any questions or requests for assistance or additional copies of this
Supplement, the Original Offer, the Letters of Transmittal and other tender
offer materials may be directed to the Information Agent or to brokers, dealers,
commercial banks or trust companies.
The Dealer Manager for the Offer is:
Deutsche Banc Alex. Brown
Deutsche Bank Securities Inc.
130 Liberty Street, 33(rd) Floor
New York, New York 10006
(212) 250-6000 (Call Collect)
The Information Agent for the Offer is:
[LOGO]
17 State Street, 10(th) Floor
New York, New York, 10004
Banks and Brokers Call Collect:
(212) 440-9800
All Others Call Toll-Free:
(800) 223-2064
EXCEPT AS MODIFIED BY THIS SUPPLEMENT, THE TERMS AND CONDITIONS SET FORTH IN
THE ORIGINAL OFFER REMAIN APPLICABLE IN ALL RESPECTS TO THE REVISED OFFER AND
THIS SUPPLEMENT SHOULD BE READ IN CONJUNCTION WITH THE ORIGINAL OFFER AND THE
REVISED GREY LETTER OF TRANSMITTAL.
<PAGE>
EXHIBIT A
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment (the "Amendment") to the Agreement and Plan of Merger dated
as of May 19, 2000 by and among Flexi-Van Leasing, Inc., a Delaware corporation
("FLX"), Castle & Cooke Holdings, Inc., a Delaware corporation and wholly-owned
subsidiary of FLX ("Buyer"), and Castle Acquisition Company, Inc., a Hawaii
corporation and wholly-owned subsidiary of Buyer ("MergerCo"), on the one hand,
and Castle and Cooke, Inc., a Hawaii corporation ("Castle"), on the other hand
(the "Merger Agreement"), is entered into as of the 27th day of June, 2000, by
and among FLX, Buyer, MergerCo and Castle.
WHEREAS, the parties to this Amendment have previously entered into the
Merger Agreement, which provided for certain transactions, including the
commencement by Buyer and MergerCo of an offer to purchase all of the
outstanding shares of common stock, having no par value, of Castle (the
"Offer"), and following the consummation of the Offer, the merger of MergerCo
with and into Castle (the "Merger"), with Castle becoming a wholly-owned
indirect subsidiary of FLX, subject to the terms and conditions set forth in the
Merger Agreement; and
WHEREAS, each of Castle, the directors of Castle, FLX and David H. Murdock,
the sole shareholder of FLX and Chairman of Castle, have been named as
defendants in eight purported class actions in connection with the transactions
contemplated by the Merger Agreement and the Offer (the "Pending Actions"); and
WHEREAS, counsel to Castle and FLX, FLX, Castle, and the representatives of
the plaintiffs in the Pending Actions have reached an agreement in principle,
providing for, among other things, the settlement of the Pending Actions and, in
connection therewith, an increase in the consideration payable in the Offer and
the Merger, and appropriate amendments to the Merger Agreement and other
documents prepared in connection with the Offer; and
WHEREAS, Section 1.1.1(d) of the Merger Agreement provides that the consent
of Castle and the Special Committee is required to impose additional conditions
on the Offer, which consent has been obtained, and Section 9.3 of the Merger
Agreement provides that the Merger Agreement may be amended or supplemented
pursuant to a writing executed by the parties; and
WHEREAS, FLX, Buyer and MergerCo desire to amend the terms of the Offer, and
FLX, Buyer, MergerCo and Castle desire to amend the corresponding provisions of
the Merger Agreement and in order to reflect the changed circumstances of the
Offer:
THEREFORE, in consideration of the execution of the Merger Agreement and
this Amendment, and the mutual premises and covenants contained therein and
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. All capitalized terms not otherwise defined shall have the meaning set forth
in the Merger Agreement.
2. Section 1.1.1(b)(i) of the Merger Agreement is hereby amended by deleting
"more than 50%," and replacing it with "more than 75%," with respect to
defining the Minimum Condition.
3. Section 3.1(c)(iii) of the Merger Agreement is hereby amended by deleting
the reference to the $18.50 Merger Consideration, and replacing such
reference with $19.25.
A-1
<PAGE>
4. Section 3.2(a) of the Merger Agreement is hereby amended and restated in its
entirety, as follows:
"STOCK OPTIONS AND RIGHTS.
(a) STOCK OPTIONS AND RIGHTS. As soon as practicable following the
date of this Agreement, the Board of Directors of Company (or, if
appropriate, any committee administering the applicable plan) shall adopt
such resolutions or take such other actions as may be required to effect or
confirm the following:
(i) all outstanding stock options to purchase shares of Company
Common Stock except those options held by David H. Murdock, which shall
be canceled ("Company Stock Options"), granted under Company's 1995 Stock
Option and Award Plan, as amended (the "Stock Option Plan") shall, as of
the Effective Time of the Merger, vest as a consequence of the Merger and
shall be canceled upon the Effective Time of the Merger in exchange for
the right to the payment in cash from Company upon the Effective Time of
the Merger in an amount equal to the product of (1) the total number of
shares of Company Common Stock subject to such Company Stock Options,
multiplied by (2) the excess of the Merger Consideration over the
respective exercise prices per share of Company Common Stock subject to
such Company Stock Options, such amount to be paid promptly after the
Merger, subject to any applicable payroll or withholding taxes, and any
deferral elections under the Company's Deferred Compensation Plan;
(ii) all outstanding rights and Stock Units with respect to Common
Stock of the Company under the Deferred Stock Compensation Plan for
Non-Employee Directors (as amended), as of the Effective Time of the
Merger, shall as a consequence of the Merger be converted into unfunded,
unsecured rights to receive payment in cash from the Company equal to the
product of (1) the number of Stock Units multiplied by (2) the per share
cash consideration payable in the Merger, which amount shall be payable
by the Company at the time(s) contemplated by the Plan (including
applicable elections thereunder), with interest at a rate equal to the
applicable federal rate on deferred balances from the Effective Time of
the Merger; and
(iii) except as provided herein or as otherwise agreed to by the
parties, the Stock Option Plan and any other plan, program or arrangement
providing for the issuance or grant of any other interest in respect of
the capital stock of Company or any of its Subsidiaries shall terminate
as of the Effective Time of the Merger, and Company shall ensure that,
following the Effective Time of the Merger, no holder of a Company Stock
Option or Stock Unit nor any participant in the Stock Option Plan or
other incentive compensation plan of the Company shall have any right
thereunder to acquire equity securities of the Surviving Corporation or
any other equity-based benefit, based on the equity of the Company
following the Merger."
5. The Offer Conditions set forth on Annex I to the Merger Agreement are hereby
amended as follows:
(a) by substituting "9,418,893" for "6,278,762" in subsection (a) of Annex
I; and
(b) by adding the following after subsection (e) of Annex I:
"If a definitive settlement agreement by and among FLX, Buyer, MergerCo,
David H. Murdock, the Company, and the other parties thereto in connection
with the Pending Actions (the "Settlement Agreement") (i) has not been
executed, (ii) has not been submitted to a court for preliminary approval,
or (iii) has not been approved on a preliminary basis by the court to which
it is submitted, then Buyer and MergerCo shall not be required to accept for
payment, or pay for, any shares of Company Common Stock tendered pursuant to
the Offer, but shall instead extend the Offer (but not to a date beyond
August 15, 2000) to permit the execution, submission and preliminary
approval of the Settlement Agreement."
A-2
<PAGE>
6. The Definitions set forth in Appendix A to the Merger Agreement are hereby
amended as follows:
(a) by adding the following immediately after the defined term "Offeror":
"Pending Actions" shall mean the eight purported class actions brought in
connection with the transactions contemplated by the Merger Agreement and
the Offer against each of Castle, the directors of Castle, FLX and David
H. Murdock.
(b) by adding the following immediately after the defined term "Securities
Act":
"Settlement Agreement" shall mean the definitive settlement agreement in
connection with the Pending Actions.
7. The rights and remedies of the parties hereto with respect to this Amendment
shall be as set forth in the Merger Agreement.
8. This Amendment may be executed in multiple counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same agreement. Facsimile signatures shall be treated as if they were
originals.
[signature page follows]
A-3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
<TABLE>
<S> <C> <C>
FLEXI-VAN LEASING, INC.
By: /s/ DAVID H. MURDOCK
-----------------------------------------
David H. Murdock
CASTLE & COOKE HOLDINGS, INC.
By: /s/ DAVID H. MURDOCK
-----------------------------------------
David H. Murdock
CASTLE ACQUISITION COMPANY, INC.
By: /s/ DAVID H. MURDOCK
-----------------------------------------
David H. Murdock
CASTLE & COOKE, INC.
By: /s/ DEAN R. ESTRADA
-----------------------------------------
Dean R. Estrada
By: /s/ MARY J. GARNETT
-----------------------------------------
Mary J. Garnett
</TABLE>
A-4
