<PAGE>
SUPPORT AGREEMENT
This is a SUPPORT AGREEMENT (this "Agreement"), dated as of August 25,
2000, by and among (i) Vincor International Inc., a corporation validly existing
under the laws of Canada ("Parent"), Vincor Holdings, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("Hold Co.") and Toast
Acquisition Company, Inc., a California corporation and a wholly owned
subsidiary of Hold Co. (the "Purchaser") and (ii) [Shareholder] ("Shareholder").
RECITALS
A. Concurrent with the execution and delivery of this Agreement, the
Company, Parent, Hold Co. and Purchaser are entering into an Agreement and Plan
of Merger (the "Merger Agreement"); and pursuant to the Merger Agreement,
Purchaser shall make a tender offer on the terms and conditions set forth in the
Merger Agreement (the "Offer") for any and all outstanding shares of common
stock, options and warrants of the Company.
B. Pursuant to the Offer, Purchaser shall offer to purchase all of the
Company's common stock, no par value (the "Shares"), at Seven Dollars ($7.00)
per share (the "Offer Price") net to the seller in cash, plus the "in the money"
amount for all the Company's outstanding options and warrants, to be followed by
a merger (the "Merger") of Purchaser with and into the Company.
C. As of the date hereof, Shareholder is the beneficial owner of [Shares]
Shares (the "Owned Shares").
D. Subject to the terms of this Agreement, Shareholder desires to
facilitate and support the transactions contemplated by the Merger Agreement and
the Offer.
E. The Purchaser desires to purchase all the Owned Shares and any Shares
acquired after the date hereof and prior to the termination of the Offer,
whether upon the exercise of options, conversion of convertible securities or
otherwise (collectively with the Owned Shares, the "Tendered Shares").
F. Capitalized terms used but not defined herein have the meanings set
forth in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. AGREEMENT TO TENDER.
(a) TENDER. Shareholder hereby agrees to tender (or cause the record
owner of such Shares to tender), pursuant to and in accordance with the terms
of the Offer, no later than three (3) business days prior to the Expiration
Date, the Tender Shares and not to withdraw such
<PAGE>
Tender Shares, except following termination of this Agreement pursuant to
Section 2 hereof. Shareholder hereby acknowledges and agrees that Purchaser's
obligation to accept for payment and pay for the Tender Shares is subject to the
terms and conditions of the Offer. Shareholder hereby authorizes the Company to
permit Parent, Hold Co. and Purchaser to publish and disclose in the Offer
Documents and, if approval of the Company's shareholders is required under
applicable law, the Proxy Statement (including all documents and schedules filed
with the Securities and Exchange Commission) Shareholder's identity and
ownership of the Tender Shares and the nature of Shareholder's commitments,
arrangements and understandings under this Agreement.
(b) VOTING. Shareholder hereby agrees that, while this Agreement is in
effect, at any meeting of the Company's shareholders, however called (or in any
written consent in lieu thereof), other than in connection with the Offer or the
Merger, Shareholder shall not vote the Tender Shares in favor of any other
recapitalization, merger, consolidation or other business combination involving
the Company, or acquisition of any capital stock (other than upon exercise of
the options and warrants which are outstanding as of the date hereof) or any
portion of the assets (except for acquisition of assets in the ordinary course
of business consistent with past practice) of the Company, or any combination of
the foregoing (a "Competing Transaction").
(c) NO INCONSISTENT ARRANGEMENTS. Shareholder hereby covenants and
agrees that, except as contemplated by this Agreement, Shareholder shall not
(i) transfer (which term shall include, without limitation, any sale, gift,
pledge or other disposition), or consent to any transfer of, any or all of
the Tender Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of
any or all of the Tender Shares or any interest therein, (iii) grant any
proxy, power-of-attorney or other authorization in or with respect to the
Tender Shares, other than those that are intended to facilitate or which do
not impede or impair Shareholder's compliance with the terms of this
Agreement, (iv) deposit the Tender Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Tender Shares or (v)
otherwise restrict, limit or interfere with the performance of Shareholder's
obligations hereunder or the transactions contemplated hereby or by the
Merger Agreement. With prior written consent of Purchaser, the Shareholder
may transfer the Tender Shares to his/her heirs, devisees or otherwise in any
inter vivos transfer; provided, however, that each such transferee shall take
the Tender Shares subject to the terms and conditions of this Agreement and
shall so agree in writing prior to such transfer.
(d) NO SOLICITATION. Shareholder hereby agrees that Shareholder shall
not, and shall not permit or authorize any of Shareholder's Affiliates,
representatives or agents to, directly or indirectly, solicit, participate in
or initiate discussions or negotiations with, or provide or disclose any
information to, any Person (other than Parent, Hold Co., Purchaser or any of
their Affiliates or representatives) concerning any Competing Transaction or
enter into any agreement, arrangement or understanding requiring the Company
to abandon, terminate or fail to consummate the Merger or any other
transactions contemplated by the Merger Agreement. Shareholder shall promptly
cease any existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any Competing Transaction. Any action
taken by the Company or any member of the Board of Directors of the Company
including, if applicable,
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Shareholder, acting solely in such capacity, in accordance with the provisions
of Section 6.08 of the Merger Agreement shall be deemed not to violate this
Section 1(d).
(e) BEST EFFORTS. Subject to the terms and conditions of this Agreement,
Shareholder shall use its best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to tender the Tender Shares as
contemplated by this Agreement.
(f) WAIVER OF APPRAISAL RIGHTS. Shareholder hereby waives any rights of
appraisal or rights to dissent from the Merger.
2. TERMINATION. This Agreement and Shareholder's obligation to tender
and vote the Tender Shares as provided herein shall terminate on the
Termination Date. As used herein, the term "Termination Date" means the first
to occur of (a) the Effective Time, (b) the termination of the Merger
Agreement, (c) the termination or withdrawal of the Offer by Parent or
Purchaser, (d) the receipt of written notice of termination of this Agreement
by the Parent to Shareholder, and (e) Purchaser's purchase of the Tender
Shares pursuant to the Offer. Nothing contained in this Section 2 shall
relieve any party from liability for any breach of this Agreement.
3. REPRESENTATIONS AND WARRANTIES. Shareholder hereby represents and
warrants that Shareholder has full power and authority to tender, sell, assign
and transfer the Tender Shares and that, when the same are accepted for payment
and paid for by Purchaser, Purchaser shall acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions, charges,
claims and encumbrances and the same shall not be subject to any adverse claim.
In addition, if this Agreement is not terminated, Shareholder shall promptly
remit and transfer to the Depositary (as defined in the Offer Documents) for the
account of Purchaser the whole of any non-cash dividend, distribution or right
issued to Shareholder on or after August 25, 2000, in respect of the Tender
Shares, accompanied by appropriate documentation of transfer.
4. FURTHER ASSURANCES. From time to time, at the request of the Company,
Parent or Purchaser and without further consideration, Shareholder shall execute
and deliver such additional documents and take all such further action as may be
reasonably necessary to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
5. [INTENTIONALLY LEFT BLANK]
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6. [INTENTIONALLY LEFT BLANK]
7. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; ASSIGNMENT. Except as otherwise set forth herein,
this Agreement (i) constitutes the entire agreement between 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 and (ii) shall not be assigned by operation of law or
otherwise.
(b) AMENDMENTS. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by each of the parties hereto.
(c) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand
delivery, by telecopy or by nationally recognized courier service providing
proof of delivery. All communications hereunder shall be delivered to;
If to Parent or the Purchaser:
Vincor International Inc.
441 Courtney Drive East
Mississauga, Ontario L5T 2V3
Canada
ATTN: Jonathan Bamberger
With a copy to:
Brown, Todd & Heyburn PLLC
400 West Market Street, 32nd Floor
Louisville, KY 40202-3363
USA
ATTN: Jay Middleton Tannon
Fax: (502) 581-1087
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Goodman Phillips & Vineberg
250 Yonge Street, Suite 2400
Toronto, ON M5B 2M6
Canada
ATTN: David Matlow
Fax: (416) 979-1234
If to the Company:
R.H. Phillips, Inc.
26386 Country Road 12A
Esparto, California 95627
USA
ATTN: John Giguiere
Fax: (530) 662-9267
with a copy to:
Farella Brawn & Martel LLP
235 Montgomery Street, 30th Floor
San Francisco, CA 94104
USA
ATTN: Frank Farella
Fax: (415) 954-4480
with a copy to:
[Shareholder]
-----------------
-----------------
or, in any case, to such other address as the party to whom notice is given may
have previously furnished to the others in writing in the manner set forth
above.
(d) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to the
conflicts of laws thereof.
(e) SPECIFIC PERFORMANCE. Shareholder recognizes and acknowledges that a
breach by Shareholder of any covenants or agreements contained in this Agreement
shall cause the Company, Parent and Purchaser to sustain damages for which they
would not have an adequate remedy at law for money damages, and therefore
Shareholder agrees that in the event of any such breach the Company, Parent and
Purchaser 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 they may be entitled, at law or in equity.
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<PAGE>
(f) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but both of which shall
constitute one and the same Agreement.
(g) 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.
(h) SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement shall 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 shall not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(i) PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
PARENT: VINCOR INTERNATIONAL INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
HOLD CO.: VINCOR HOLDINGS, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
PURCHASER: TOAST ACQUISITION COMPANY, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
SHAREHOLDER:
--------------------------------------
[SHAREHOLDER]
NUMBER OF SHARES OWNED [Shares]
S-1
<PAGE>
EXHIBIT A
APPRAISAL PROCEDURE
In determining the monetary value of any consideration paid to you (other
than cash) pursuant to a Restricted Disposition or a Minority Shareholder
Restricted Disposition, the following procedure shall apply:
If Shareholder and Parent cannot agree on such monetary value within a
period of ten (10) days after the applicable request or notice, Shareholder
and Parent shall each appoint one appraiser (each an "APPOINTED APPRAISER",
and collectively the "APPOINTED APPRAISERS") within five (5) days
thereafter (the "APPOINTMENT DATE"), which Appointed Appraisers shall
independently, within twenty (20) days of the Appointment Date (the
"DETERMINATION DATE"), determine the value of such consideration. If the
higher of the two values determined by the Appointed Appraisers is not at
least ten percent (10%) greater than the lower of such values, then the
value for purposes hereof shall be deemed to be the average of such values
determined by the Appointed Appraisers. If the higher of the two values
determined by the Appointed Appraisers is at least ten percent (10%)
greater then the lower of such values, the Appointed Appraisers shall
within five (5) days of the Determination Date appoint a third appraiser
(the "THIRD APPRAISER"), which Third Appraiser shall independently, within
fifteen (15) days of the Determination Dale, select one of the two values
as determined by the Appointed Appraisers as the value, and such selected
value shall be binding on the parties. If either Shareholder or Parent
fails to appoint an Appointed Appraiser by the Appointment Date, then the
Appointed Appraiser who has been appointed shall be the sole appraiser, and
the value determined by such Appointed Appraiser shall be the value for
purposes hereof and shall be binding on the parties. All appraisers
appointed pursuant hereto shall be qualified in valuing securities or other
property similar to the consideration being valued hereunder. No appraiser
shall be a shareholder or Affiliate of the Company, and the Third Appraiser
shall not be an Affiliate of either of the Appointed Appraisers. If a Third
Appraiser is required to determine the applicable monetary value hereunder,
the costs and expenses of all of the appraisers pursuant hereto shall be
borne by the party whose Appointed Appraiser's valuation was not selected
by the Third Appraiser. If no Third Appraiser is necessary pursuant hereto,
each party shall bear the costs and expenses of its Appointed Appraiser.
<PAGE>
The following chart summarizes which shareholder executed this form
Support Agreement and the Number of Shares agreed to be tendered:
<TABLE>
<CAPTION>
SHAREHOLDER NO. OF SHARES
----------- -------------
<S> <C>
R. Ken Coit and Donna Coit 321,746
David Gemmer 306,336
Lane Giguiere 65,688
Victor L. Motto 22,000
R.H. Phillips Vineyards, Inc. 714,103
RHP Vineyards, Inc. 865,773
</TABLE>
2
