<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No._____)*
Todhunter International, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
0008890501
-------------------------------------------------
(CUSIP Number)
Mr. Herman I. Merinoff Andrew M. Crisses, Esq.
c/o Charmer Industries Inc. Baer Marks & Upham LLP
19-50 48th Street 805 Third Avenue
Astoria, New York 11105 New York, New York 10022
(718) 726-2500 (212) 702-5700
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
August 21, 1998
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Page 1 of 110 Pages)
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SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 2 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Herman Merinoff
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC, PF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 50,979 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 50,979 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 50,979
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.0%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 3 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Merinoff Family Co., LLC
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION New York
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 5,000 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 5,000 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,000
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .10%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 4 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Linda Merinoff
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 15,755 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 5,000 (See Item 5)
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 15,755 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,000 (See Item 5)
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 20,755
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .42%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 5 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Barbara Merinoff
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 15,754 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 5,000 (See Item 5)
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 15,754 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,000 (See Item 5)
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 20,754
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .42%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 6 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Spencer Merinoff
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 21,379 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 26,060 (See Item 5)
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 21,379 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 26,060 (See Item 5)
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 47,439
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .96%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 7 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Charles Merinoff
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 5,223 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 15,530 (See Item 5)
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 5,223 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 15,530 (See Item 5)
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 20,753
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .42%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 8 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Cathy Ellen Onufrychuk
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 0
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 15,530 (See Item 5)
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 0
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 15,530 (See Item 5)
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,530
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .31%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 9 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Patricia North
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 15,754 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 15,754 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,754
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .32%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 10 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Nancy Stone
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 15,754 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 15,754 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,754
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .32%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 11 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Steven Drucker
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 15,755 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 15,755 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,755
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .32%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 12 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Peter Baronoff
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 52,244 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 52,244 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 52,244
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.0%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 13 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Abby Crisses
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 10,448 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 10,448 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,448
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .21%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 14 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Stephen Meresman
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 5,224 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 5,224 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,224
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .10%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 15 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Bruce Levine
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 13,061 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 13,061 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,061
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .26%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 16 of 110 Pages
- ---------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Jack Battipaglia
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION United States
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 5,224 (See Item 5)
----------------------------------------------------------------
NUMBER OF
SHARES 8. SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ----------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER 5,224 (See Item 5)
PERSON WITH
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,224
(See Items 3 and 5)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .10%
(See Item 5)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 17 of 110 Pages
- ---------------------- ---------------------
ITEM 1. SECURITY AND ISSUER.
-------------------
This statement on Schedule 13D (the "Schedule 13D") relates to common
stock, par value $.01 per share (the "Common Stock"), of Todhunter
International, Inc., a Delaware corporation (the "Company"). The address of the
principal executive offices of the Company is 222 Lakeview Avenue, Suite 1500,
West Palm Beach, Florida 33401.
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
(a) This Schedule 13D is filed by the persons set forth in Exhibit 1
hereto (the "Reporting Persons"). The Reporting Persons may be deemed a "group"
for purposes of Rule 13d-5(b)(1) under the Securities and Exchange Act of 1934,
as amended (the "Act"), as a result of their agreement to sell, on August 5,
1994, all of their shares of common stock, no par value per share, of Blair
Importers Ltd., a New York corporation ("Blair"), which shares constituted all
of the outstanding shares of common stock of Blair, to the Company in exchange
for an aggregate of 261,214 shares of Common Stock. The Reporting Persons are
filing this Schedule 13D on their own behalf and not on behalf of any other
parties. The agreement by the Reporting Persons to sell their shares of common
stock of Blair to the Company is more fully described in Items 3 and 5 of this
Schedule 13D.
(b) The address of each Reporting Person is as set forth on Exhibit
1 hereto.
(c) The present principal occupation or employment of each Reporting
Person and the name and principal business address of the corporation or other
organization in which such employment is conducted is as set forth on Exhibit 1
hereto.
(d) During the last five years, no Reporting Person has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, no Reporting Person has been a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which proceeding he was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) Each Reporting Person other than Merinoff Family Co., LLC, a New
York limited liability company, is a United States citizen.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
-------------------------------------------------
The summaries of the agreements discussed in this Item are not intended
to be complete and are qualified in their entirety by reference to the full text
of such agreements, copies of which are attached hereto and are incorporated
herein by reference.
On August 5, 1994, the Company acquired all of the shares of common
stock of Blair owned by the Reporting Persons, which constituted all of the
outstanding shares of common stock of Blair, pursuant to a merger of the
Company's subsidiary, Todhunter Acquisition, Inc., into Blair (the "Merger").
Pursuant to the terms of the Merger and in exchange for all of their shares of
common stock in Blair, the Reporting Persons acquired an aggregate of 261,214
shares of Common Stock. The number of shares of Common Stock acquired by each
Reporting Person is as set forth on Exhibit 1 attached hereto.
In connection with the Merger, and in order to secure certain
indemnification obligations of the Reporting Persons to the Company, the
Reporting Persons agreed to place in escrow, among other things, all of the
261,214 shares of Common Stock acquired by them pursuant to the terms of the
Merger. During the time in which their shares of Common Stock were held in
escrow, the Reporting Persons did not have the right to vote or dispose of their
shares of Common Stock. Pursuant to the terms of the escrow agreement entered
into by the Company and each Reporting Person, the shares of Common Stock
acquired pursuant to the Merger were to have been released from escrow on August
25, 1996. However, as a result of litigation between the Company and the
Reporting Persons which arose after the Merger, such shares were not released
from escrow until August 21, 1998, the date such Litigation was settled. Upon
the release of such shares of Common Stock from escrow, the Reporting Persons
retained voting and dispositive powers over the shares they are deemed to
beneficially own, as described on Exhibit 1 attached hereto. Pursuant to the
terms of the Merger, the Company was also obligated to issue up to an additional
261,214 shares of Common Stock to the Reporting Persons after September 30,
1999, if certain earnings levels of Blair were achieved between September 30,
1994 and September 30, 1999 (the "Earn Out Goal"). As part of the settlement of
the Litigation, the Reporting Persons agreed to release the Company from its
obligation to issue such additional shares if the Earn Out Goal is achieved.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 18 of 110 Pages
- ---------------------- ---------------------
In addition to the shares of Common Stock acquired pursuant to the Merger,
on May 3, 1995, Herman Merinoff, a Reporting Person, acquired an additional
2,000 shares of Common Stock on the open market at a price of $10.75 per share,
or an aggregate of $21,500. Mr. Merinoff used personal funds to acquire such
shares.
On May 5, 1995, Merinoff Family Partnership, a New York general partnership
now known as Merinoff Family Co., LLC, a New York limited liability company (the
"LLC") acquired 3,000 shares of Common Stock on the open market at a price of
$10.00 per share, or an aggregate of $30,000. In addition, on July 31, 1995,
the LLC acquired 2,000 shares of Common Stock on the open market at a price of
$9.58 per share, or an aggregate of $19,160. The LLC used funds from working
capital to purchase such shares.
ITEM 4. PURPOSE OF TRANSACTION.
----------------------
The text of Items 2 and 3 is hereby incorporated herein by reference.
All of the 268,214 shares of Common Stock acquired by the Reporting
Persons were acquired for investment purposes. The Reporting Persons' primary
interest is to maximize the value of their investment in the Company.
Other than as stated in Item 4 hereof, the Reporting Persons do not
currently have any definitive plans or proposals which relate to or would result
in:
(a) The acquisition by any person of additional securities of the
Company, or the disposition of securities of the Company;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of
its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Company
or any of its subsidiaries;
(d) Any change in the present board of directors or management of
the Company including any plans or proposals to change the
number or term of directors or to fill any existing vacancies on
the board of directors;
(e) Any material change in the present capitalization or dividend
policy of the Company;
(f) Any other material change in the Company's business or corporate
structure including but not limited to, if the Company is a
registered closed-end investment company, any plans or proposals
to make any changes in its investment policy for which a vote is
required by Section 13 of the Investment Company Act of 1940;
(g) Changes in the Company's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the Company by any person;
(h) Causing a class of securities of the Company to be delisted from
a national securities exchange or to cease to be authorized to
be quoted in an inter-dealer quotation system of a registered
national securities association;
(i) A class of equity securities of the Company becoming eligible
for termination of registration pursuant to Section 12(g)(4) of
the Securities Exchange Act of 1934, as amended; or
(j) Any action similar to any of those enumerated above.
As of the date of this Schedule 13D, all of the Reporting Persons other
than Herman Merinoff and the LLC intend to sell their shares of Common Stock to
Efficiency Enterprises, Inc., a New York corporation ("Efficiency"), which is
owned by the following Reporting Persons: (i) Linda Merinoff; (ii) Barbara
Merinoff; (iii) Spencer Merinoff; (iv) Charles Merinoff; (v) Cathy Ellen
Onufrychuk; (vi) Patricia North; (vii) Nancy Stone; and (viii) Steven Drucker.
All of the shareholders of Efficiency are children or nieces and nephews of
Herman Merinoff. An aggregate of 212,635 shares will be sold to Efficiency.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
------------------------------------
The text of Items 3 and 4 is hereby incorporated herein by reference.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 19 of 110 Pages
- ---------------------- ---------------------
The summary of the agreements discussed in this Item are not intended
to be complete and are qualified in their entirety by reference to the full text
of such agreements, copies of which are attached hereto and are incorporated
herein by reference.
(a) As of August 21, 1998, each Reporting Person beneficially owned
such number of shares of Common Stock as is set forth beside such Reporting
Person's name on Exhibit 1 attached hereto. Such shares in the aggregate
represent approximately 5.4% of the outstanding shares of Common Stock. The
Reporting Persons may be deemed to be a "group" for purposes of Rule 13d-5(b)(1)
under the Act based upon their agreement to acquire shares of Common Stock
pursuant to the terms of the Merger. In addition: (i) Herman Merinoff is the
father of Linda Merinoff, Barbara Merinoff, Spencer Merinoff, Charles Merinoff
and Cathy Ellen Onufrychuk; and (ii) Patricia North, Nancy Stone and Steven
Drucker are siblings and are nieces and nephews of Herman Merinoff and cousins
of Linda Merinoff, Barbara Merinoff, Spencer Merinoff, Charles Merinoff and
Cathy Ellen Onufrychuk. The members of the LLC are Linda Merinoff, Barbara
Merinoff, Spencer Merinoff, Charles Merinoff and Cathy Ellen Onufrychuk (the
"LLC Members"). Spencer Merinoff serves as manager of the LLC. Accordingly, as a
result of family relationships, the Reporting Persons may be deemed to be acting
as a "group" for purposes of Rule 13d-5(b)(1) under the Act. Except as disclosed
in Item 4 of this Schedule 13D, the Reporting Persons have not entered into any
other agreements, arrangements or understandings with respect to the voting or
disposition of the shares of Common Stock which they beneficially own.
Notwithstanding the fact that the Reporting Persons may constitute a "group" for
purposes of Rule 13d-5(b)(1) under the Act, each Reporting Person disclaims
beneficial ownership of any shares owned by each other Reporting Person, except
as set forth on Exhibit 1 hereto. The LLC Members may be deemed to share voting
and dispositive power with respect to the shares of Common Stock owned by the
LLC. Each LLC Member disclaims beneficial ownership of the shares of Common
Stock owned by the LLC. Other than the agreement to acquire the 261,214 shares
of Common Stock pursuant to the Merger and the 7,000 shares of Common Stock
acquired in the open market and as set forth in Item 4, there is no other
agreement among the Reporting Persons with respect to the shares of Common Stock
acquired.
(b) As of August 21, 1998, the Reporting Persons may be deemed to
have an interest in the shares of Common Stock of the Company as set forth on
Exhibit 1 attached hereto:
(c) The Reporting Persons did not consummate any transactions in
respect of the Common Stock of the Company during the past sixty days.
(d) Other than Charles Merinoff, Spencer Merinoff, Cathy Ellen
Onufrychuk, Peter Baronoff and the LLC, no person other than each respective
record owner of shares of Common Stock referred to herein is known to have the
right to receive or the power to direct the receipt of dividends from or the
proceeds of sale of such shares of Common Stock.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
------------------------------------------------------------------------
SECURITIES OF THE ISSUER.
- ------------------------
The text of Items 3 and 5 are hereby incorporated herein by reference.
The summary of the agreements discussed in this Item are not intended
to be complete and are qualified in their entirety by reference to the full text
of such agreements, copies of which are attached hereto and are incorporated
herein by reference.
Other than as described above and in Items 3, 4 and 5 hereof, there are
no contracts, arrangements, understandings or relationships (legal or otherwise)
among the Reporting Persons and any other person with respect to any shares of
Common Stock of the Company, including but not limited to transfer or voting of
any shares of Common Stock, finder's fees, joint ventures, loan or option
agreements, put or calls, guarantees of profits, division of profits or loss, or
the giving or withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
---------------------------------
The following documents are filed as exhibits:
Exhibit 1. Reporting Persons, Occupations, Addresses and
Shareholdings.
Exhibit 2. Merger Agreement dated as of August 5, 1994, as amended,
among the Company, Todhunter Acquisition, Inc. and each of
the Reporting Persons.
Exhibit 3. Escrow Agreement dated as of August 5, 1994, by and among
the Company, the Reporting Persons and First Union National
Bank of Florida, as escrow agent.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 20 of 110 Pages
- ---------------------- ---------------------
Exhibit 4. Agreement among the Reporting Persons as to authority to
execute this Schedule 13D on behalf of all Reporting
Persons.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 21 of 110 Pages
- ---------------------- ---------------------
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
/s/ Herman Merinoff
--------------------
Herman Merinoff
Dated: October 28, 1998
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 22 of 110 Pages
- ---------------------- ---------------------
EXHIBIT 1
---------
<TABLE>
<CAPTION>
SOLE POWER
EMPLOYER/ADDRESS TO SHARED POWER SOLE POWER TO SHARED POWER
OCCUPATION OR OR SHARES SHARES VOTE OR TO TO VOTE OR TO DISPOSE OR TO TO DISPOSE OR
PRINCIPAL STATE OF BENEFICIALLY OWNED DIRECT THE DIRECT THE DIRECT THE TO DIRECT THE
NAME/ADDRESS BUSINESS INCORPORATION OWNED DIRECTLY VOTE VOTE DISPOSITION OF DISPOSITION OF
- ------------ -------- ------------- ----- -------- ---- ---- -------------- --------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Herman Merinoff Chairman Charmer 50,979 50,979 50,979 0 50,979 0
10 Westcliff Drive Industries Inc.
Lake Success, NY 11020 19-50 48th Street
Astoria, NY 11105
Merinoff Family Co., Investment
LLC c/o Management New York 5,000 5,000 5,000 0 5,000 0
Andrew Crisses
1615 Northern Boulevard
Manhasset, NY 11030
Linda Merinoff Self-employed- N/A 20,755/(1)/ 15,755 15,755 5,000/(1)/ 15,755 5,000/(1)/
1639 Ben Lomond Drive Free-lance
Glendale, CA 91202 writer
Barbara Merinoff Self-employed 360 East 20,754/(1)/ 15,754 15,754 5,000/(1)/ 15,754 5,000/(1)/
360 East 72nd Street -Independent 72nd Street
New York, NY 10021 travel New York, NY
contractor 10021
Spencer Merinoff President Premier 47,439/(1)(2)(3)/ 15,755 21,379/(2)/ 26,060/(1)(3)/ 21,379/(2)/ 26,060/(1)(3)/
3700 Island Boulevard Beverage
Williams Island, Company, LLC
FL 33160 3700 Commerce
Parkway
Miramar, FL 33025
Charles Merinoff President Charmer 20,753/(1)(4)(5)/ 0 5,223/(4)/ 15,530/(1)(5)/ 5,223/(4)/ 15,530/(1)(4)(5)/
317 Massachusetts Industries, Inc.
Avenue 19-50 48th Street
Haworth, NJ 07641 Astoria, NY 11105
Cathy Ellen Homemaker N/A 15,530/(1)(6)/ 0 0 15,530/(1)(6)/ 0 15,530/(1)(6)/
Onufrychuk
6685 Rutlege Drive
Fairfax Station,
VA 22039
Patricia North Homemaker N/A 15,754 15,754 15,754 0 15,754 0
10 Farmers Road
Kings Point,
NY 11024
Nancy Stone Homemaker N/A 15,754 15,754 15,754 0 15,754 0
7 Channel Drive
Kings Point,
NY 11024
Steven Drucker President Service- 15,755 15,755 15,755 0 15,755 0
8 Emerson Road Universal
Brookville, NY 11545 Distributors, inc.
19-50 48th Street
Astoria, NY 11105
</TABLE>
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 23 of 110 Pages
- ---------------------- ---------------------
<TABLE>
<CAPTION>
SOLE POWER
EMPLOYER/ADDRESS TO SHARED POWER SOLE POWER TO SHARED POWER
OCCUPATION OR OR SHARES SHARES VOTE OR TO TO VOTE OR TO DISPOSE OR TO TO DISPOSE OR
PRINCIPAL STATE OF BENEFICIALLY OWNED DIRECT THE DIRECT THE DIRECT THE TO DIRECT THE
NAME/ADDRESS BUSINESS INCORPORATION OWNED DIRECTLY VOTE VOTE DISPOSITION OF DISPOSITION OF
- ------------ -------- ------------- ----- -------- ---- ---- -------------- --------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Peter Baronoff President Sun Capital, 52,244 47,020 52,244/(7)/ 0 52,244/(7)/ 0
3969 N.W. Inc. 929
52nd Street Clint Moore Road
Boca Raton, Boca Raton,
FL 33498 FL 33487
Abby Crisses Homemaker N/A 10,448 10,448 10,448 0 10,448 0
8 Cow Lane
Kings Point,
NY 11024
Stephen Meresman Vice Charmer 5,224 5,224 5,224 0 5,224 0
381 West Neck Road President Industries Inc.
Lloyd Harbor, 19-50 48th
NY 11743 Street
Astoria, NY 11105
Bruce Levine Vice Charmer 13,061 13,061 13,061 0 13,061 0
221 Melbourne Road President Industries Inc.
Great Neck, NY 11021 19-50 48th
Street
Astoria, NY 11105
Jack Battipaglia Vice Charmer 5,224 5,224 5,224 0 5,224 0
5 Caterina Court President Industries Inc.
Dix Hills, NY 11746 19-50 48th
Street
Astoria, NY 11105
====================================================================================================================================
</TABLE>
______________________
(1) Includes beneficial ownership of 5,000 shares of Common Stock directly owned
by Merinoff Family Co., LLC (the "LLC"). The Reporting Person disclaims
beneficial ownership of such shares.
(2) Includes 2,812 shares of Common Stock beneficially held as custodian for
each of Leslie Merinoff and Andrew Merinoff, the children of Charles
Merinoff and the grandchildren of Herman Merinoff.
(3) Includes 10,530 shares beneficially held as co-trustee for each of the
Charles Merinoff Trust and the Cathy Ellen Onufrychuk Family Trust.
(4) Includes 1,742 shares of Common Stock beneficially held as custodian for
each of, Brian Onufrychuk and Jacob Onufrychuk and 1,739 shares of Common
Stock beneficially held as custodian for Zachary Onufrychuk, the children of
Cathy Ellen Onufrychuk and the grandchildren of Herman Merinoff.
(5) Includes 10,530 shares of Common Stock beneficially held as co-trustee for
the Cathy Ellen Onufrychuk Family Trust.
(6) Includes 10,530 shares of Common Stock beneficially held as co-trustee for
the Charles Merinoff Trust.
(7) Includes 2,612 shares of Common Stock beneficially held as custodian for
each of Shanna Baronoff and Jillian Baronoff, the children of Peter
Baronoff.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 24 of 110 Pages
- ---------------------- ---------------------
EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
TODHUNTER INTERNATIONAL, INC.,
TODHUNTER ACQUISITIONS, INC.,
BLAIR IMPORTERS, LTD.
AND
THE STOCKHOLDERS OF BLAIR IMPORTERS, LTD.
DATED: APRIL 22, 1994
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 25 of 110 Pages
- ---------------------- ---------------------
TABLE OF CONTENTS
Page
----
1. Definitions.......................................................... 28
2. Basic Transaction.................................................... 33
(a) The Merger..................................................... 33
(b) The Closing.................................................... 33
(c) Effect of Merger............................................... 34
(i) General............................................... 34
(ii) Certificate of Incorporation.......................... 34
(iii) Bylaws................................................ 34
(iv) Directors and Officers................................ 34
(v) Conversion of Blair Shares............................ 34
(vi) Treasury Shares....................................... 35
(vii) Fractional Shares..................................... 35
(viii) Conversion of Merger Sub Shares....................... 35
(d) Procedure for Payment........................................... 35
3. Representation and Warranties of Blair and the Blair Stockholders..... 37
(a) Organization, Qualification, and Corporate Power................ 37
(b) Capitalization.................................................. 37
(c) No Blair Subsidiaries........................................... 37
(d) Authorization of Transaction.................................... 38
(e) Noncontravention................................................ 38
(f) Financial Statements............................................ 38
(g) Accounts Receivable............................................. 39
(h) Undisclosed Liabilities......................................... 39
(i) Related Parties................................................. 40
(j) Brokers' Fees................................................... 40
(k) Taxes........................................................... 40
(l) Properties...................................................... 41
(m) Contracts....................................................... 42
(n) Material Contract Defaults...................................... 42
(o) Compliance with Laws; Permits; Consents......................... 43
(p) Insurance....................................................... 43
(q) Trademarks, Trade Names and Know-How............................ 43
(r) Employee Benefit Plans.......................................... 44
(s) Legal Proceedings............................................... 46
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 26 of 110 Pages
- ---------------------- ---------------------
(t) Absence of Certain Changes or Events............ 46
(u) Reports......................................... 47
(v) Blair Stockholder Approval...................... 47
(w) Statements True and Correct..................... 47
(x) Environmental Matters........................... 47
(y) Labor Matters................................... 48
(z) Investment Intent............................... 49
(aa) Inventories..................................... 49
(bb) Customers and Suppliers......................... 49
(cc) No Other Agreements to Sell Blair............... 50
(dd) Projections..................................... 50
(ee) Propriety of Past Payments...................... 50
4. Representations and Warranties of Todhunter and
Merger Sub.............................................. 50
(a) Organization, Qualification, and
Corporate Power................................. 51
(b) Capitalization.................................. 51
(c) Todhunter Subsidiaries.......................... 51
(d) Authorization of Transaction.................... 52
(e) Noncontravention................................ 52
(f) No Prior Activities............................. 53
(g) SEC Filings..................................... 53
(h) Brokers' Fees................................... 53
(i) Statements True and Correct..................... 53
(j) Todhunter Approval.............................. 53
(k) Status of Todhunter Shares...................... 54
5. Covenants............................................... 54
(a) Delivery of Financial Information................ 54
(b) Governmental Matters............................. 54
(c) Conduct of Business Prior to the
Effective Time................................... 54
(d) Forbearance...................................... 54
(e) Issuance of Securities........................... 56
(f) No Acquisitions.................................. 56
(g) Other Actions.................................... 56
(h) Tax-Free Reorganization Treatment................ 56
(i) Full Access...................................... 56
(j) Notice of Material Adverse Developments.......... 57
(k) Exclusivity...................................... 57
(l) Filings with the State Offices................... 57
(m) Press Releases................................... 58
(n) Current Information.............................. 58
(o) Miscellaneous Agreements and Consents............ 58
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 27 of 110 Pages
- ---------------------- ---------------------
(p) Indemnification................................ 58
(q) Blair's Identity............................... 62
(r) Incidental Registration Rights................. 62
(s) Disclosure Schedules and Exhibits.............. 63
6. Conditions to Obligation to Close..................... 63
(a) Conditions to Obligation of Todhunter and
Merger Sub..................................... 63
(b) Conditions to Obligation of Blair.............. 65
7. Termination........................................... 67
(a) Termination of Agreement....................... 67
(b) Effect of Termination.......................... 68
8. Miscellaneous......................................... 68
(a) Survival....................................... 68
(b) Press Releases and Announcements............... 68
(c) No Third Party Beneficiaries................... 69
(d) Entire Agreement............................... 69
(e) Successors and Assigns......................... 69
(f) Counterparts................................... 69
(g) Headings....................................... 69
(h) Notices........................................ 69
(i) Governing Law.................................. 70
(j) Amendments and Waivers......................... 70
(k) Severability................................... 70
(l) Expenses....................................... 71
(m) Construction................................... 71
(n) Incorporation of Exhibits and Schedules........ 71
(o) Remedies Cumulative............................ 71
(p) Dispute Resolution............................. 72
9. Stockholders' Committee............................... 72
(a) Appointment of Stockholders' Committee......... 72
(b) Authority...................................... 73
(c) Reliance....................................... 74
(d) Actions by Blair Stockholders.................. 75
(e) Additional Baronoff Protective Provisions...... 75
(f) Indemnification of Stockholders' Committee..... 75
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 28 of 110 Pages
- ---------------------- ---------------------
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the"Agreement") is entered into as
of April 22, 1994 by and among Todhunter International, Inc., a Delaware
corporation ("Todhunter"), Todhunter Acquisition, Inc., a New York corporation
("Merger Sub"), Blair Importers, Ltd., a New York corporation ("Blair") and the
undersigned stockholders of Blair (the "Blair Stockholders"). Todhunter, Merger
Sub, Blair and the Blair Stockholders are referred to collectively herein as the
"Parties".
W I T N E S S E T H:
-------------------
WHEREAS, Merger Sub is a wholly-owned subsidiary of Todhunter;
WHEREAS, the Boards of Directors of Todhunter and Blair deem the
merger of Merger Sub into Blair, whereby Blair will be the surviving corporation
and the Blair Stockholders will become stockholders of Todhunter on the terms
set forth herein, to be desirable and in the best interests of their respective
stockholders and have approved this Agreement;
WHEREAS, prior to or concurrently herewith, Todhunter and the Blair
Stockholders have approved this Agreement and the merger contemplated hereby;
and
WHEREAS, the parties intend that this Agreement constitute a plan of
reorganization by a transaction of a type described in Section 368(a) of the
Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
1. Definitions.
-----------
"Additional Todhunter Share Component" shall mean the number of
Todhunter Shares obtained by dividing (i) the Additional Todhunter Share Value
by (ii) the average of the closing sales prices for Todhunter Shares on the
NASDAQ National Market for the ten trading days immediately preceding September
30, 1999, or a prior Early Payment Event; provided, however, that in no event
shall the Additional Todhunter Share Component exceed the Initial Todhunter
Share Component, adjusted for stock splits, stock dividends or recapitalizations
with respect to Todhunter Shares occurring on or after the
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 29 of 110 Pages
- ---------------------- ---------------------
Closing and prior to the date of issuance of the Additional Todhunter Share
Component and, provided further, that if the limitation with respect to the
Additional Todhunter Share Component not exceeding the Initial Todhunter Share
Component shall result in the Additional Todhunter Share Component being a
lesser number of Shares than the number of Shares derived from the calculation
set forth above, then the Blair Stockholders shall receive, in addition, a Boot
Payment. "Boot Payment" means a payment in cash equal to the difference between
the Additional Todhunter Share Value and an amount that is equal to (i) the
Additional Todhunter Share Component, adjusted for such limitation, multiplied
by (ii) the average of the closing sales prices for Todhunter Shares on the
NASDAQ National Market for the ten trading days immediately preceding September
30, 1999, or a prior Early Payment Event, to the Blair Stockholders; provided,
however, that the Boot Payment shall not in any case exceed an amount equal to
20% of Total Consideration. For purposes of this definition, "Total
Consideration" means the Initial Todhunter Share Value plus the Additional
Todhunter Share Value (including, for calculation purposes, the Boot Payment
amount) but excluding amounts treated as interest income under the Internal
Revenue Code.
"Additional Todhunter Share Value" shall mean eight (8) times the
average annual net income, after all Federal, state, local or foreign income
taxes and provisions therefor, of Blair and, subject to Section 5(q) below and
to the Blair Stockholders' rights upon an Early Payment Event, any successor
subsidiary or division of Todhunter for the five fiscal years beginning October
1, 1994 and ending September 30, 1999, or, in the event of the occurrence of a
prior Early Payment Event, such average net income for the periods including the
fiscal year ended September 30, 1995 and all subsequent fiscal years ending
prior to the date of such Early Payment Event, or, in the event of an Early
Payment Event occurring prior to September 30, 1995, such average Net Income for
the portion of the fiscal year ending on the date of such Early Payment Event.
In no event shall the Additional Todhunter Share Value exceed $4,000,000. For
all purposes hereof, such net income, after taxes, will be calculated in
accordance with GAAP and in a manner consistent with Blair's audited financial
statements for the year ended December 31, 1993, including, but not limited to,
principles regarding recognition of revenue and expense, and calculated to give
effect to Blair's inventories stated at first-in, first-out basis ("Net
Income"); provided, however, that (i) no income or deduction shall be included
for extraordinary items, for these purposes including, but not limited to, any
cancellation of debt income, provided, however, that income or deduction
resulting from the sale of a proprietary brand of Blair shall not be considered
extraordinary, (ii) portions of Todhunter's general and administrative expenses
will be allocated to Blair or its successor subsidiary or division based upon
the proportion of its net sales to the consolidated net sales of Todhunter,
(iii) all other intercompany charges will be allocated to Blair or its successor
subsidiary or division on an actual cost basis, (iv) the aggregate expenses in
excess of $150,000 incurred by Todhunter, Blair, or its successor subsidiary or
division in relocating the offices of Blair to Florida or such other location as
Todhunter may designate, including, for these purposes, but not limited to,
costs and expenses relating to building the relocated office space for the
personnel of Blair, the
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 30 of 110 Pages
- ---------------------- ---------------------
costs of furniture, fixtures and office equipment relating to the relocated
office space, relocation expenses of Blair employees moved to Florida, and the
severance pay of any employee of Blair terminated by Blair or Todhunter or that
resigns from Blair prior to or in connection with such relocation, shall be
allocated to Blair or its successor subsidiary or division for the fiscal year
ended September 30, 1995, if incurred prior to October 1, 1994, or for the
fiscal year in which incurred, if incurred on or after October 1, 1994, and
shall not be deemed an extraordinary item for this purpose, and (v) the loan
transaction fees or other costs and expenses (including, without limitation,
legal and accounting fees) of Todhunter, Merger Sub or Blair incurred in
connection with obtaining the financing contemplated by Section 6(a)(i) hereof
shall be deducted from the Net Income of Blair or its successor subsidiary or
division for the fiscal year ended September 30, 1995.
"Benefit Plan" has the meaning set forth in Section 3(r)(i)
below.
"Blair Disclosure Schedule" has the meaning set forth in Article
3 below.
"Blair Financial Statements" has the meaning set forth in
Section 3(f) below.
"Blair Share" means any share of the Common Stock, no par value
per share, of Blair.
"Blair Stockholder" means the undersigned shareholders of Blair,
who will constitute all persons who or which hold any Blair Shares immediately
prior to the Effective Time.
"Certificate of Merger" has the meaning set forth in Section
2(b) below.
"Closing" has the meaning set forth in Section 2(b) below.
"Closing Date" has the meaning set forth in Section 2(b) below.
"Confidential Information" means any information concerning or
related to the businesses, assets, operation, financial conditions and affairs
of Todhunter, Merger Sub or Blair.
"Condition" has the meaning set forth in Section 3(a) below.
"Core Blair Stockholders" means Peter Baronoff and Herman
Merinoff.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 31 of 110 Pages
- ---------------------- ---------------------
"Early Payment Event" means the sale by Todhunter of the Blair
shares, the sale of substantially all of the Blair assets, the merger or other
material reorganization of Blair (other than with one of its affiliates,
provided that Todhunter is in compliance with Section 5(q)), the liquidation of
Blair, or the failure of Todhunter Shares to be traded on NASDAQ (or the New
York Stock Exchange or any other exchange reasonably acceptable to the Blair
Stockholders).
"Effective Time" has the meaning set forth in Section 2(c)(i)
below.
"Environmental Laws" has the meaning set forth in Section 3(x)
below.
"Escrow Agent" shall mean First Union National Bank of Florida,
or such other escrow agent as shall be mutually agreed upon by the Parties.
"Escrow Agreement" shall mean the Escrow Agreement dated as of
the Closing among Todhunter, Blair, the Blair Stockholders and the Escrow Agent.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"Hazardous Material" has the meaning set forth in Section 3(x)
below.
"Indemnified Party" has the meaning set forth in Section 5(p)
below.
"Initial Todhunter Share Component" shall mean the number of
Todhunter Shares obtained by dividing (i) the Initial Todhunter Share Value by
(ii) the Todhunter Closing Date Share Price.
"Initial Todhunter Share Value" shall mean $4,000,000.
"Insurance Policies" has the meaning set forth on Section 3(p).
"Internal Revenue Code" means the Internal Revenue Code of 1986.
"IRS" means the Internal Revenue Service.
"Knowledge", with respect to a Core Blair Stockholder means
actual knowledge, after reasonable investigation; with respect to any other
Blair Stockholder means actual knowledge; and with respect to Blair, means the
actual knowledge of the current members of the board of directors and the
current officers of Blair, after reasonable investigation.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 32 of 110 Pages
- ---------------------- ---------------------
"Merger" has the meaning set forth in Section 2(a) below.
"Merger Sub Share" means any share of the Common Stock, $.01 par
value per share, of Merger Sub.
"New York Act" means the New York Business Corporation Law.
"Ordinary Course of Business" means the ordinary course of
business consistent with past custom and practice (including with respect to
quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Permits" has the meaning set forth in Section 3(o) below.
"Regulatory Authority" means any agency or department of any
federal, state or local government, or the staffs thereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Security Interest" means any mortgage, pledge, security
interest, encumbrance, charge, or other lien, other than (a) mechanic's,
materialmen's, and similar liens, (b) liens for taxes not yet due and payable or
for taxes that the taxpayer is contesting in good faith through appropriate
proceedings, (c) liens arising under worker's compensation, unemployment
insurance, social security, retirement, and similar legislation, (d) liens on
goods in transit incurred pursuant to documentary letters of credit, (e)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (f) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Stockholders' Committee" has the meaning set forth in Article 9
below.
"Subsidiary" means all those corporations, associations or other
entities of which the entity in question owns or controls 5% or more of the
outstanding equity securities either directly or through an unbroken chain of
entities as to each of which 5% or more of the outstanding equity securities is
owned directly or indirectly by its parent.
"Surviving Corporation" has the meaning set forth in Section
2(a) below.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 33 of 110 Pages
- ---------------------- ---------------------
"Todhunter" means Todhunter International, Inc., a Delaware
corporation.
"Todhunter Closing Date Share Price" means the average of the
closing sales prices for Todhunter Shares on the NASDAQ National Market for the
ten trading days immediately preceding the Closing.
"Todhunter Disclosure Schedule" has the meaning set forth in
Article 4 below.
"Todhunter Share" means any share of the Common Stock, $.01 par
value per share, of Todhunter.
"Total Consideration" has the meaning set forth in the
definition of Additional Todhunter Share Component above.
2. Basic Transaction.
-----------------
(a) The Merger. On and subject to the terms and conditions of this
----------
Agreement, Merger Sub will merge with and into Blair (the "Merger") at the
Effective Time. The separate corporate existence of Merger Sub shall thereupon
cease, and Blair shall be the corporation surviving the Merger (the "Surviving
Corporation"), and shall continue to be governed by the laws of the State of New
York. All Merger Sub Shares issued and outstanding immediately prior to the
Effective Time shall be converted into the same number of issued and outstanding
Blair Shares. All Blair Shares issued and outstanding immediately prior to the
Effective Time shall be converted into the right to receive Todhunter Shares
pursuant to Section 2(c)(v) below and the other terms of this Agreement.
(b) The Closing. The closing of the transactions contemplated by
-----------
this Agreement (the "Closing") shall take place at the offices of Gunster,
Yoakley & Stewart, P.A., Suite 500 East, 777 South Flagler Drive, West Palm
Beach, Florida 33401, commencing at 9:00 a.m. local time, on the second (2nd)
business day following the date that all of the conditions precedent specified
in Article 6 of this Agreement have been satisfied or waived by the Party or
Parties permitted to do so, or such other date as Todhunter and Blair may
mutually determine (the "Closing Date"). At the Closing, (i) Blair will deliver
to Merger Sub and Todhunter the various certificates, instruments, and documents
referred to in Section 6(a) below, (ii) Merger Sub and Todhunter will deliver to
Blair the various certificates, instruments, and documents referred to in
Section 6(b) below, (iii) Merger Sub and Blair will file with the Secretary of
State of the State of New York, a Certificate of Merger in the form attached
hereto as Exhibit A (the "Certificate of Merger"), and (iv) Todhunter will
---------
deliver to the Escrow Agent, in the manner provided below in this
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 34 of 110 Pages
- ---------------------- ---------------------
Section 2 the certificates evidencing the Todhunter Shares to be issued in the
Merger pursuant to Section 2(d)(i) below.
(c) Effect of Merger.
----------------
(i) General. The Merger shall become effective on the date
-------
and at the time (the "Effective Time") the Certificate of Merger is filed with
the Secretary of State of the State of New York, which shall be the date of the
Closing (or such later date and time as may be specified in such Certificate),
unless otherwise agreed to by Todhunter and Blair. The Merger shall have the
effect set forth in the New York Act. The Surviving Corporation may, at any time
after the Effective Time, take any action (including executing and delivering
any document) in the name and on behalf of either Merger Sub or Blair in order
to carry out and effectuate the transactions as contemplated by this Agreement.
All of the Todhunter Shares issued and outstanding immediately prior to the
Effective Time shall remain issued and outstanding after the Effective Time and
shall be unaffected by the Merger.
(ii) Certificate of Incorporation. The Certificate of
----------------------------
Incorporation of Blair in effect currently and at and as of the Effective Time,
a copy of which is attached hereto as a part of Schedule 3(a), will remain the
-------------
Certificate of Incorporation of the Surviving Corporation without any
modification or amendment in the Merger.
(iii) Bylaws. The Bylaws of Blair in effect currently and at
------
and as of the Effective Time, a copy of which is attached hereto as a part of
Schedule 3(a), will remain the Bylaws of the Surviving Corporation without any
- -------------
modification or amendment in the Merger.
(iv) Directors and Officers. From and after the Effective
----------------------
Time the directors of the Surviving Corporation shall be as designated by
Todhunter and the officers shall be elected by such directors, provided,
however, that until the earlier of (i) the issuance of the Additional Todhunter
Share Component or (ii) a prior Early Payment Event, the Surviving Corporation
board of directors shall continue to consist of at least three directors, one of
which shall be Peter Baronoff, or, if he is unable to serve or otherwise no
longer serves as such, a person designated by the Stockholders' Committee and
reasonably acceptable to Todhunter.
(v) Conversion of Blair Shares. At and as of the Effective
--------------------------
Time, by virtue of the Merger and without any action on the part of the holders
thereof, each Blair Share issued and outstanding immediately prior to the
Effective Time shall be converted into the right to receive (A) subject to the
Escrow Agreement, that number of Todhunter Shares as shall be equal to the
quotient obtained by dividing (i) the Initial Todhunter Share
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 35 of 110 Pages
- ---------------------- ---------------------
Component by (ii) the number of Blair Shares issued and outstanding immediately
prior to the Effective Time and (B) following completion of the audited
financial statements of Blair or, subject to Subsection 5(q) below and the Blair
Stockholders' rights with respect to an Early Payment Event, its successor
subsidiary or division of Todhunter for the fiscal year ended September 30,
1999, or upon the earlier occurrence of an Early Payment Event, that number of
Todhunter Shares as shall be equal to the quotient obtained by dividing (i) the
Additional Todhunter Share Component by (ii) the number of Blair Shares issued
and outstanding immediately prior to the Effective Time. No Blair Share which
was issued and outstanding immediately prior to the Effective Time shall be
deemed to be outstanding or to have any rights other than those set forth above
in this Section 2(c)(v) after the Effective Time.
(vi) Treasury Shares. Any and all Blair Shares held as
---------------
treasury shares by Blair immediately prior to the Effective Time shall be
cancelled and retired at the Effective Time, and no consideration shall be
issued in exchange therefor.
(vii) Fractional Shares. No fractional Todhunter Shares will
-----------------
be issued as a result of the Merger. In lieu of the issuance of fractional
Todhunter Shares pursuant to Section 2(c)(v), cash adjustments (without
interest) will be paid to the Escrow Agent, with respect to the Initial
Todhunter Share Component, or to each Blair Stockholder, with respect to the
Additional Todhunter Share Component, in respect of a Todhunter Share that would
otherwise be issuable pursuant to this Section 2(c), and the amount of such cash
adjustment shall be determined by multiplying the fraction of a Todhunter Share
otherwise issuable times the average of the closing sales prices for Todhunter
Shares on the NASDAQ National Market for the ten trading days immediately
preceding the respective date of determination. No such holder will be entitled
to dividends, voting rights or any other rights as a stockholder in respect of
any fractional share.
(viii) Conversion of Merger Sub Shares. At and as of the
-------------------------------
Effective Time, by virtue of the Merger and without any action on the part of
the holder thereof, each Merger Sub Share shall be converted into one (1) Blair
Share. On and after the Effective Time, the only Blair Shares that shall be
issued and outstanding shall be those into which Merger Sub Shares were
converted, all of which shall be owned by Todhunter.
(d) Procedure for Payment.
---------------------
(i) At the Closing, Todhunter will deliver to the Escrow
Agent certificates representing the Initial Todhunter Share Component in such
record ownership and in such amounts as are designated by the Stockholders'
Committee in writing to Todhunter, and checks representing any cash payments in
lieu of fractional shares to which holders of Blair Shares are entitled pursuant
to Section 2(c) with respect to the Initial Todhunter Share Component, against
delivery by the Stockholders' Committee to Todhunter
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 36 of 110 Pages
- ---------------------- ---------------------
of the certificates for all issued and outstanding Blair Shares, duly completed
and endorsed for surrender and cancellation as Todhunter may reasonably require,
and delivery by the representative of the Stockholders' Committee to the Escrow
Agent of stock transfer powers relating to the Initial Todhunter Share
Component, duly executed in blank and having all necessary stock transfer tax
stamps affixed thereto. Upon release from escrow pursuant to the terms of the
Escrow Agreement of the certificates representing the Initial Todhunter Share
Component, or any proceeds from the sale of such Initial Todhunter Share
Component, as provided in the Escrow Agreement, the Initial Todhunter Share
Component shall be transferred and assigned, and/or such proceeds paid, as
provided therein.
(ii) As soon as is practicable following completion of the
audit of Blair's financial statements for the fiscal year ended September 30,
1999, or for such earlier fiscal period ending on the date of any prior
occurrence of an Early Payment Event, Todhunter will deliver to the
Stockholders' Committee certificates representing the Additional Todhunter Share
Component in such record ownership and in such amounts as are designated by the
Stockholders' Committee in writing to Todhunter, and checks representing any
Boot Payments and/or cash payments in lieu of fractional shares to which holders
of Blair Shares are entitled pursuant to Section 2(c) with respect to the
Additional Todhunter Share Component. Such certificates will be accompanied by a
copy of the audited financial statements of Blair or, subject to Section 5(q)
hereof, its successor subsidiary or division for the periods included in the
calculation of the Additional Todhunter Share Component.
(iii) After the Effective Time, each certificate that
represented outstanding Blair Shares prior to the Effective Time shall be deemed
for all corporate purposes to evidence only the right of the holder thereof to
receive the consideration provided in Section 2(c) of this Agreement in exchange
therefor.
(iv) The Blair Stockholders shall pay any charges and
expenses of the Stockholders' Committee or its representative.
(v) For each fiscal year of Blair concluding prior to the
payment of the Additional Todhunter Share Component, within 15 days of
Todhunter's receipt of its audited financial statements for such fiscal year,
Todhunter shall provide the Stockholders' Committee with a determination of Net
Income of Blair, in respect of such concluded fiscal year, and a pro forma
determination of the Additional Todhunter Share Value as if for calculating the
Additional Todhunter Share Component at such date. The determination will be
made by Todhunter's independent accountants, and shall be accompanied by such
summary information deemed reasonably necessary by such independent accountants
to support such calculation of the Additional Todhunter Share Component. The
Blair Stockholders, at their own expense, may consult with and ask questions of
such independent accountants regarding the determination on a reasonable basis.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 37 of 110 Pages
- ---------------------- ---------------------
3. Representation and Warranties of Blair and the Blair
----------------------------------------------------
Stockholders. Blair and the Blair Stockholders jointly and severally represent
and warrant to Todhunter and Merger Sub that the statements contained in this
Article 3 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
Article 3), except as set forth in the disclosure schedule prepared by Blair and
attached to this Agreement as Exhibit B (the "Blair Disclosure Schedule"), or
the Schedules attached hereto. The Blair Disclosure Schedule will be arranged
in paragraphs corresponding to the lettered and numbered paragraphs contained in
Article 3.
(a) Organization, Qualification, and Corporate Power. Blair is
------------------------------------------------
duly authorized to conduct business and is in good standing under the laws of
each jurisdiction in which the nature of its business or the ownership or
leasing of its properties requires such qualification except where the lack of
such qualification would not have a material adverse effect on its (i) business,
financial condition or results of operations, or (ii) ability to consummate the
transactions contemplated by this Agreement (together, its "Condition'). Blair
has full corporate power and authority to carry on the businesses in which it is
engaged and to own and use the properties owned and used by it. True and
complete copies of the Certificate of Incorporation and the Bylaws of Blair are
attached hereto as Schedule 3(a). Blair has in effect all federal, state, local
-------------
and foreign governmental, regulatory and other authorizations, permits and
licenses necessary for it to own or lease its properties and assets and to carry
on its business as now conducted, the absence of which would have a material
adverse effect on the Condition of Blair.
(b) Capitalization. The authorized capital stock of Blair
--------------
consists of 1,000,000 Blair Shares, of which 1,000,000 Blair Shares are issued
and outstanding on the date of this Agreement. There are no other classes of
capital stock of Blair authorized. Blair holds no Blair Shares as treasury
stock. All of the issued and outstanding Blair Shares have been duly authorized
and are validly issued, fully paid and nonassessable. The Blair Disclosure
Schedule sets forth a true and complete list of all holders of Blair Shares and
the number of shares held by each, and each such holder is a party to this
Agreement. No holder of 5% or more of the Blair Shares is an affiliate, directly
or indirectly, of Todhunter. None of the outstanding Blair Shares has been
issued in violation of any preemptive rights of the current or past stockholders
of Blair. There are no outstanding or authorized options, warrants, rights,
contracts, calls, puts, rights to subscribe, conversion rights or other
agreements or commitments to which Blair is a party or which are binding upon
Blair or the Blair Stockholders providing for the issuance, disposition, or
acquisition of any of its capital stock. There are no outstanding or authorized
stock appreciation, phantom stock or similar rights with respect to Blair.
(c) No Blair Subsidiaries. Blair does not have any Subsidiaries.
---------------------
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 38 of 110 Pages
- ---------------------- ---------------------
(d) Authorization of Transaction. Blair has full power and authority
----------------------------
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder; provided, however, that
Blair cannot consummate the Merger unless and until it receives the approval of
the Blair Stockholders, by virtue of the execution of the Unanimous Written
Consent of Blair Stockholders attached hereto as Exhibit C. Subject to the
foregoing sentence, (i) this Agreement has been duly executed and delivered by
each of Blair and the Blair Stockholders and constitutes the valid and binding
agreement of each of Blair and the Blair Stockholders, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and other similar
laws affecting creditors' rights generally, general equitable principles and the
discretion of courts in granting equitable remedies, (ii) the performance by
Blair of its obligations hereunder and the consummation of the Merger and the
other transactions provided for herein have been duly and validly authorized by
all necessary corporate action on the part of Blair, and (iii) the Board of
Directors of Blair has approved the execution, delivery and performance of this
Agreement and the consummation of the Merger and the other transactions provided
for herein. None of Blair and the Blair Stockholders needs to give any notice
to, make any filing with, or obtain any authorization, consent or approval of
any government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement, except where the failure to give
notice, to file, or to obtain any authorization, consent, or approval would not
have a material adverse effect on the Condition of Blair.
(e) Noncontravention. Except as set forth on the Blair Disclosure
----------------
Schedule, neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (i) subject to the
receipt of the approvals contemplated in Section 3(d) above, violate any
statute, regulation, rule, judgment, order, decree, stipulation, injunction,
charge, or other restriction of any government, governmental agency, or court to
which any of Blair or the Blair Stockholders is subject or any provision of the
Certificate of Incorporation or Bylaws of Blair or (ii) with the passing of time
or the giving of notice or both, conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any contract, lease, sublease, license, franchise, permit, indenture,
agreement or mortgage for borrowed money, instrument of indebtedness, Security
Interest, or other obligation to which Blair is a party or by which it is bound
or to which any of its assets is subject (or result in the imposition of any
Security Interest upon any of its assets) except where the violation, conflict,
breach, default, acceleration, termination, modification, cancellation, failure
to give notice, or Security Interest would not have a material adverse effect on
the Condition of Blair.
(f) Financial Statements. Blair has delivered to Todhunter prior to
--------------------
the execution of this Agreement copies of the following financial statements of
Blair (collectively referred to herein as the "Blair Financial Statements"):
audited financial statements of Blair for the fiscal years ended December 31,
1991, December 31, 1992 and
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 39 of 110 Pages
- ---------------------- ---------------------
December 31, 1993, including balance sheet and related statements of income and
cash flow, and the notes thereto as reported upon by Ernest Lowenwater & Co.,
independent certified public accountants.
The Blair Financial Statements (as of the dates thereof and for the
periods covered thereby): (i) have been prepared from the books and records of
Blair, which in all material respects account for those transactions which in
accordance with good business practices and any applicable legal requirements
are required to be accounted for, and (ii) present fairly the financial position
and the results of operations and changes in financial position of Blair as of
the dates and for the periods indicated, in accordance with GAAP, applied on a
basis consistent with prior periods except as disclosed in the notes thereto.
Neither Blair nor the Blair Stockholders have Knowledge not known to
the alcoholic beverage industry in general that would lead them to believe that
a material decline in revenues would occur following the consummation of the
Merger.
(g) Accounts Receivable. The accounts, notes, contracts and
-------------------
other receivables which are reflected in the Blair Financial Statements were
acquired by Blair in the Ordinary Course of Business arising from bona fide
sales and deliveries of service or other business transactions and, except to
the extent of any reserve provided for in the Blair Financial Statements or as
set forth on the Blair Disclosure Schedule, the aggregate amount of the
accounts, notes, contracts and other receivables which are reflected in the
Blair Financial Statements has been collected in full or will be collected in
full, except as in the Ordinary Course of Business after giving effect to
marketing credits or rebates customarily provided in the industry. The accounts,
notes, contracts and other receivables which have been or will be acquired by
Blair since the Blair Financial Statements were or will be acquired in the
Ordinary Course of Business and the aggregate amount thereof has been collected
in full or will be collected in full, in the Ordinary Course of Business, except
as set forth on the Blair Disclosure Schedule.
(h) Undisclosed Liabilities. Except as set forth on the Blair
-----------------------
Disclosure Schedule, Blair does not have any liability (whether known or
unknown, whether absolute or contingent, whether liquidated or unliquidated, and
whether due or to become due), including any liability for taxes, except for (i)
liabilities accrued or reserved against in the balance sheet dated as of
December 31, 1993 included in the Blair Financial Statements or reflected in the
notes thereto, and (ii) liabilities which have arisen after December 31, 1993 in
the Ordinary Course of Business or in connection with the transactions provided
for in this Agreement (none of which relates to any breach of contract, breach
of warranty, tort, infringement, or violation of law or arose out of any charge,
complaint, action, suit proceeding, hearing, investigation, claim, or demand and
none of which, individually or in the aggregate, materially and adversely affect
the Condition of Blair). Since December 31, 1993, Blair has not incurred or
paid any obligation or liability which would be material to
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 40 of 110 Pages
- ---------------------- ---------------------
the Condition of Blair, except in the Ordinary Course of Business or as
specifically contemplated hereby.
(i) Related Parties. Except as set forth on the Blair Disclosure
---------------
Schedule, no officer, director or employee of Blair or any Blair Stockholder or
any person who would be an heir or descendant of an officer, director or any
Blair Stockholder if he were not now living, (a) has any direct or indirect
interest in (i) any entity which does business with Blair or (ii) any property,
asset or right which is used by Blair in the conduct of its business; or (b) has
any contractual relationship with Blair, including without limitation as debtor
or creditor, other than a relationship arising from the status of officer,
director, employee or Blair Stockholder.
(j) Brokers' Fees. None of Blair, the Blair Stockholders, or any
-------------
of Blair's officers, directors or employees, has any liability or obligation to
pay any fees or commissions to, or has employed, any broker, finder, or agent
with respect to the transactions contemplated by this Agreement.
(k) Taxes.
-----
(i) Any federal, state, local and foreign tax returns
required to be filed by or on behalf of Blair have been timely filed or requests
for extensions have been timely filed, granted and have not expired, for periods
ending on or before December 31 1993, and all such returns filed are true,
complete and accurate in all material respects. Blair has timely paid or caused
to be paid all taxes shown to be due on such tax -returns. There is no audit
examination, deficiency or refund litigation or matter in controversy with
respect to any taxes currently pending or involving Blair. All material tax,
interest, additions, and penalties due with respect to completed and settled
examinations or concluded litigation have been paid, accrued or provided for.
(ii) Blair has not executed an extension or waiver of any
statute of limitations on the assessment or collection of any material tax due
that is currently in effect.
(iii) Adequate provision for any federal, state, local or
foreign taxes due or to become due for Blair for any period or periods through
and including December 31, 1993, has been made and is reflected on the December
31, 1993 financial statements included in the Blair Financial Statements.
(iv) All taxes which Blair is required by law to withhold or
to collect for payment have been duly withheld and collected, and have been paid
to the proper governmental entity or are being withheld by Blair, the failure of
which would have a material adverse effect on the Condition of Blair.
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 41 of 110 Pages
- ---------------------- ---------------------
(v) There are no liens for taxes of any kind on any
assets of Blair.
(vi) All tax elections or consents which Blair has made
are set forth on the Blair Disclosure Schedule.
(vii) No asset of Blair is an asset which Blair is
required to treat as owned by another party pursuant to former Section 168(f)(8)
of the Internal Revenue Code.
(viii) Blair has not agreed to make and is not required to
make adjustments as a result of a change of accounting under Section 481 of the
Internal Revenue Code.
(ix) Blair has not participated in international boycott
within the meaning of Section 999 of the Internal Revenue Code.
(x) Blair is not a party to any agreement, plan or
arrangement which would result in the payment of an "excess parachute payment"
under Section 280G of the Internal Revenue Code.
(xi) Blair is not (and has not been during any relevant
period) a United States real property holding corporation under Section 897 of
the Internal Revenue Code.
(xii) Blair does not have (and has not had) a "permanent
establishment" in any foreign country.
(xiii) Except as set forth on the Blair Disclosure
Schedule, Blair is not a partner in any partnership or any other venture which
would be treated as a partnership for tax purposes under the Internal Revenue
Code.
(xiv) Blair has always been subject to the provisions of
Subchapter S of the Internal Revenue Code.
(l) Properties. Except as set forth on the Blair Disclosure
----------
Schedule, Blair has good and transferable title, free and clear of all Security
Interests, defaults or equities of whatever character to all of the respective
properties and assets, tangible or intangible, reflected in Blair's balance
sheet as of December 31, 1993 included in the Blair Financial Statements, except
for liens disclosed on such Financial Statements. Blair does not, and did not,
during any of the periods included in the Blair Financial Statements, own any
real property in whole or in part. All buildings, and all fixtures, equipment
and
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 42 of 110 Pages
- ---------------------- ---------------------
other property and assets which are material to its business and which are held
under leases or subleases by Blair are held under valid instruments enforceable
in accordance with their respective terms (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceedings may be brought). Blair has
performed all the obligations required to be performed by it prior to the date
hereof under such leases and subleases, and possesses and quietly enjoys the
premises thereunder. All buildings, structures and appurtenances located on
such premises leased or subleased are in good operating condition and in a state
of good repair, and are adequate and suitable for the purposes for which they
are being used. No condemnation proceeding is pending or, to the Knowledge of
Blair or the Blair Stockholders, threatened which would preclude or impair the
use of any such property by Blair for the purposes for which it is currently
used. In the opinion of Blair's Management, the policies of fire, theft,
liability and other insurance maintained with respect to the assets or
businesses of Blair provide adequate coverage against loss, and the fidelity
bonds in effect as to which Blair is named insured are believed by management of
Blair to be sufficient. Substantially all of Blair's equipment in regular use
has been well maintained and is in good and serviceable condition, reasonable
wear and tear excepted.
(m) Contracts. Blair is not a party to, nor is any asset owned
---------
by it bound by or subject to, any distributor's or franchise or agency
agreement, any joint venture or partnership agreement, any indenture, mortgage,
deed of trust or lease, any agreement not entered into in the Ordinary Course of
Business, oral or written, or any other agreement, understanding, contract or
commitment, oral or written, including those for the provision of goods or
services, or the purchase of supplies, which is material to or materially
affects the business or assets of Blair (collectively, "Contracts"), except such
Contracts listed on the Blair Disclosure Schedule, copies of which agreements
have been furnished to Todhunter. All such Contracts are valid, binding and
enforceable on and against Blair and, to its and the Blair Stockholders'
Knowledge, against the other parties thereto, in accordance with their terms
(except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and except that
the availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceedings
may be brought).
(n) Material Contract Defaults. Blair is not, has not received
--------------------------
any written notice and Blair and the Blair Stockholders do not have any
Knowledge that any other party is in default in any material respect under any
Contract to which it is a party or by which its assets, businesses or operations
may be bound or affected or under which it or its assets, businesses or
operations receives benefits, there has not occurred any event that with the
lapse of time or the giving of notice or both would constitute such a default
and neither Blair nor any Blair Stockholder has received notice that any party
to any Contract intends to
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 43 of 110 Pages
- ---------------------- ---------------------
cancel or terminate any Contract or to exercise or not exercise any options
under any Contract.
(o) Compliance with Laws; Permits; Consents. Blair is not
---------------------------------------
conducting or carrying on its business or affairs in violation of any foreign,
federal, state or local law, statute, ordinance, rule, regulation or court or
administrative order or process which violations, taken together, could have in
adverse effect on the Condition of Blair. The Blair Disclosure Schedule lists
all governmental licenses, permits, authorizations and approvals obtained by or
issued to Blair (collectively, "Permits") and such Permits comprise all Permits
issued by any governmental authority used or necessary in connection with the
operation of the business of Blair. All such Permits have been duly and validly
issued, are in full force and effect, and all rights and entitlements thereunder
are vested in Blair. Blair has not committed any act or failed to act in a
manner or under circumstances which could result in the revocation or suspension
of any such Permits or in any other disciplinary action relating thereto. No one
has claimed and Blair has not received any notice that it has committed any such
act or failed to so act. The consummation of the transactions provided for in
this Agreement will not impair or adversely affect any of the rights, powers or
privileges granted pursuant to any such Permits. All such Permits are renewable
by their terms or in the Ordinary Course of Business without the need to comply
with any special qualification procedures or to pay any amounts other than
routine filing fees.
(p) Insurance. The Blair Disclosure Schedule lists all policies
---------
of fire, liability or other form of insurance held by or applicable to Blair
("Insurance Policies"), including for each policy the name of the insured, the
beneficiary(s), the assignee(s), policy numbers, premiums, expiration dates, the
risks insured against, coverage limits, deductible amounts, all outstanding
claims thereunder, and whether the terms of such policy provide for
retrospective premium adjustments. All Insurance Policies are in full force and
effect in accordance with their terms, no notice of cancellation has been
received, and there is no existing default or event which, with the giving of
notice or lapse of time or both, would constitute a default thereunder. The
Insurance Policies will not terminate upon the Merger. In the opinion of Blair's
management, such policies are in amounts which are adequate in relation to the
business and assets of Blair. All premiums to date have been paid in full. Blair
has not been refused any insurance, nor has its coverage been limited, by any
insurance carrier to which it has applied for insurance or with which it has
carried insurance during the past five years. The Blair Disclosure Schedule also
contains a true and complete description of all outstanding bonds and other
surety arrangements issued or entered into in connection with the business of
Blair.
(q) Trademarks, Trade Names and Know-How. The Blair Disclosure
------------------------------------
Schedule sets forth a true and complete list of all United States and foreign
patents, patent rights, copyrights, trademarks, service marks, trade names,
trade secrets and proprietary know-how (either registered, applied for, or
common law) owned by, registered
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 44 of 110 Pages
- ---------------------- ---------------------
in the name of, licensed to, or used in the business of Blair, (the "Intangible
Assets"). Such list includes a summary description of each such item and
specifies, where applicable, the date granted or applied for, the expiration
date and the current status thereof. There is no restriction affecting Blair's
use of any of the Intangible Assets, and no license has been granted with
respect thereto. Each of the Intangible Assets is valid and in good standing,
is not currently being challenged, is not involved in any pending or, to the
Knowledge of Blair or the Blair Stockholders, threatened administrative or
judicial proceeding, and does not conflict with any rights of any other person,
firm or corporation. Blair's respective rights in and to the Intangible Assets
are sufficient and adequate in all respects to permit Blair to carry on its
business, and the operations of Blair do not involve any infringement of any
proprietary right of any other person, firm or corporation.
(r) Employee Benefit Plans.
----------------------
(i) The Blair Disclosure Schedule lists every pension,
retirement, profit-sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus or other incentive plan, any other
written or unwritten employee program, arrangement, agreement or understanding,
whether arrived at through collective bargaining or otherwise, any medical,
vision, dental or other health plan, any life insurance plan, any golden
parachute or other executive compensation plan, or any other employee benefit
plan or fringe benefit plan, including, without limitation, any "employee
benefit plan," as that term is defined in Section 3(3) of the Employment
Retirement Income Security Act of 1974, as amended ("ERISA") (a "Benefit Plan"
or, collectively, "Benefit Plans"), currently or expected to be adopted,
maintained by, sponsored in whole or in part by, or contributed to by Blair or
any ERISA Affiliate (as hereinafter defined) thereof for the benefit of its
employees, retirees, dependents, spouses, directors, independent contractors or
other beneficiaries and under which any of its employees, retirees, dependents,
spouses, directors, independent contractors or other beneficiaries are eligible
to participate (collectively, the "Benefit Plans"). Any of the Benefit Plans
which is an "employee pension benefit plan," as that term is defined in Section
3(2) of ERISA, or an "employee welfare benefit plan," as that term is defined in
Section 3(1) of ERISA, is referred to herein as an 'ERISA Plan.' No Benefit Plan
is or has been a multi-employer plan within the meaning of Section 3(37) and
Section 4001(a)(3) of ERISA. For purposes of this Section 3(r), the term "ERISA
Affiliate" means each trade or business (whether or not incorporated) which
together with Blair is treated as a single employer under Section 414(b), (c),
(m) or (o) of the Internal Revenue Code.
(ii) Attached to the Blair Disclosure Schedule are the
following documents: true, correct and complete copies of all written Benefit
Plans and descriptions of all unwritten Benefit Plans listed in the Blair
Disclosure Schedule and all trust agreements or other funding arrangements,
including insurance contracts, all amendments thereto and, where applicable,
with respect to any such plans or plan amendments, all
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 45 of 110 Pages
- ---------------------- ---------------------
determination letters, rulings, opinion letters, information letters, or
advisory opinions issued by the Internal Revenue Service or the United States
Department of Labor after December 31, 1974, annual reports or returns, audited
or unaudited financial statements, actuarial valuations, and summary annual
reports for the most recent three plan years, the most recent summary plan
descriptions and any material modifications thereto.
(iii) All the Benefit Plans and the related trusts are in
compliance with, and have been administered in compliance with, the provisions
of ERISA, the provisions of the Internal Revenue Code and all other applicable
laws, rules and regulations and collective bargaining agreements. Any required
governmental approvals for the Benefit Plans have been obtained, including, but
not limited to, favorable determination letters on the Qualification of the
ERISA Plans and tax exemption of related trusts, as applicable, under the
Internal Revenue Code, and all such governmental approvals continue in full
force and effect. Neither Blair nor any administrator or fiduciary of any
Benefit Plan or agent or delegate of any of the foregoing has engaged in any
transaction or acted or failed to act in any manner which could subject Blair,
Todhunter or any affiliate thereof to any direct or indirect liability for a
breach of any fiduciary, co-fiduciary or other duty under ERISA. To the
knowledge of Blair's management after due inquiry, no oral or written
representation or communication with respect to any aspect of the Benefit Plans
has been made to employees of Blair prior to the Effective Time which is not in
accordance with the written or otherwise pre-existing terms and provisions of
such Benefit Plans in effect at the time of such communication. There are no
unresolved claims, other than routine benefit claims, or disputes under the
terms of, or in connection with, the Blair Benefit Plans and no action, legal or
otherwise, has been commenced with respect to any claim under the terms of, or
in connection with, the Blair Benefit Plans.
(iv) No "party in interest" (as defined in Section 3(14) of
ERISA) or "disqualified person" (as defined in Section 4975(e)(2) of the
Internal Revenue Code) of any Blair Benefit Plan has engaged in any "prohibited
transaction" (within the meaning of Section 4975(c) of the Internal Revenue Code
or Section 406 of ERISA). There has been no (A) "reportable event" (as defined
in Section 4043 of ERISA), or event described in Section 4062(e) or Section
4063(a) of ERISA, or (B) termination or partial termination, withdrawal or
partial withdrawal with respect to any of the ERISA Plans which: (1) Blair
maintains or contributes to or has maintained or contributed to or was required
to maintain or contribute to for the benefit of employees of Blair; or (2) which
has been maintained or contributed to or was required to be maintained or
contributed to by any member of a controlled group of trades or business as
defined in ERISA Section 4001(a)(14) which has, since January 1, 1975, included
Blair.
(v) For any given ERISA Plan, all assets of such plan are
carried at their fair market value, to the extent required by the plan document
and applicable law, and the fair market value of such plan's assets equals or
exceeds the present value of all
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 46 of 110 Pages
- ---------------------- ---------------------
benefits (whether vested or not) accrued to date by all present or former
participants in such plan. No Blair Benefit Plan is subject to the rules of the
Pension Benefit Guaranty Corporation.
(vi) As of the Effective Time, Blair will not have any
material current or future liability under any Blair Benefit Plan that was not
and should have been reflected in the Blair Financial Statements.
(vii) No Blair Benefit Plan provides for welfare benefits
(as defined in ERISA Section 3(1)) to employees after retirement.
(viii) There is no requirement that Todhunter or its
affiliates make any contributions to any Blair Benefit Plan attributable to any
period ending on or before the date of Closing, and each Blair Benefit Plan may
be terminated by Blair in its sole discretion on or after the Closing Date
without liability of any kind or description. arising from either such
termination or any action attributable to Blair.
(ix) The execution of, or performance of the
transactions contemplated by, this Agreement will not create, accelerate or
increase any obligations under the Blair Benefit Plans, and will not require or
cause to be payable any payment which is or would be an "excess parachute
payment" under Section 280G of the Internal Revenue Code.
(s) Legal Proceedings. There are no actions, suits or
-----------------
proceedings instituted or pending or, to the Knowledge of Blair or the Blair
Stockholders, threatened (Or unasserted but considered probable of assertion and
which if asserted would have at least a reasonable probability of an unfavorable
outcome) against Blair, or against any property, asset, interest or right of
Blair, that might have, either individually or in the aggregate, an adverse
effect on the Condition of Blair.
(t) Absence of Certain Changes or Events. Since December 31,
------------------------------------
1993, the business of Blair has been operated only in the Ordinary Course of
Business and since such date there has not been, occurred or arisen: (i) any
damage, destruction, loss or casualty whether or not covered by insurance which
has had or might have an adverse affect on the Condition of Blair; (ii) any
declaration, setting aside or payment of any dividend or distribution (whether
in cash, stock or property) in respect of the Blair Shares or any redemption or
other acquisition of the Blair Shares by Blair or any split, combination or
reclassification of Blair Shares declared or made; (iii) any extraordinary
losses required by GAAP to be disclosed as such that have been suffered and not
adequately reserved against, whether or not in the Ordinary Course of Business;
(iv) any material assets sold (other than in the Ordinary Course of Business),
mortgaged, pledged or subjected to any lien, charge or other encumbrance; (v)
any agreement to do any of the foregoing; (vi) any issuance, sale or other
disposition of any stock, stock options, bonds, notes or other securities of
Blair; or
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 47 of 110 Pages
- ---------------------- ---------------------
(vii) any other event, development or condition of any character including any
change in results of operations, financial condition, method of accounting or
accounting practices, nature of business, or manner of conducting the business
of Blair that has had, or is reasonably likely to have, a material adverse
effect on the Condition of Blair.
(u) Reports. Since January 1, 1991, Blair has filed all reports
-------
and statements, together with any amendments required to be made with respect
thereto, that it was required to file with any Regulatory Authority. Each such
report and statement, including any financial statements, exhibits and schedules
thereto, at the time of filing thereof complied with the laws and rules and
regulations applicable to it and did not contain any untrue statement of
material fact or omit to state any material fact necessary in order to make the
statements made, in the light of the circumstances under which they were made,
not false or misleading.
(v) Blair Stockholder Approval. Each Blair Stockholder,
--------------------------
contemporaneously with executing this Agreement, has executed and delivered to
Blair the Unanimous Written Consent of Blair Stockholders approving this
Agreement and the transactions contemplated hereby, in the form attached hereto
as Exhibit C.
(w) Statements True and Correct. No representation or warranty
---------------------------
made by Blair or the Blair Stockholders in this Agreement nor any written
statement or certificate included in an Exhibit or Schedule by Blair or the
Blair Stockholders in connection with this Agreement nor any written statement
or certificate to be furnished by Blair or the Blair Stockholders to Todhunter
pursuant to this Agreement, contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements made, in the
light of the circumstances under which they were made, not misleading. All
documents that Blair is responsible for filing with any Regulatory Authority in
connection with the Merger will comply as to form in all material respects with
the provisions of applicable law.
(x) Environmental Matters. Blair is not and has not been in
---------------------
violation of any law, regulation or ordinance (including without limitation, any
law or regulation relating to pollution or protection of the environment
("Environmental Laws") and laws, regulations or ordinances related to building,
health code, zoning, land use or similar matters) relating to its properties or
facilities which violation could have an adverse effect on the Condition of
Blair. All premises leased by Blair (and any real property it has owned) are not
and have not been polluted or contaminated, nor have they ever been the subject
of environmental clean-up or remediation. Such properties do not contain any
Hazardous Material (as defined below), nor has any Hazardous Material been
discharged or spilled thereon. Blair has not owned or operated a petroleum or
hazardous waste landfill or any petroleum or other hazardous waste treatment,
storage or disposal facility. There are no past or present events, conditions,
circumstances, activities, practices, incidents, actions or plans of Blair, or
its predecessors, either collectively, individually or severally, which may
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 48 of 110 Pages
- ---------------------- ---------------------
interfere with or prevent continued compliance, or which may give rise to any
common law or legal liability, or otherwise form the basis of any claim, action,
suit, proceeding, hearing, or investigation, based on or related to the
disposal, storage, handling, manufacture, processing, distribution, use,
treatment, or transport, or the emission, discharge, release or threatened
release into the environment, of any pollutant or waste, whether or not by Blair
or affecting its properties. There are no proceedings affecting any of such
properties pending or, to the best of Blair's and the Blair's Stockholders'
Knowledge, threatened which could have an adverse effect on the present or
future use of any such property for the purposes for which it was acquired or
the purpose for which it is used. All premises leased by Blair (and any real
property it has owned) are not and have not been on any federal or state
"Superfund" list and is not on EPA's Comprehensive Response, Compensation and
Liability Information System ("CERCLIS") list or on any analogous state
environmental agency list. Neither Blair nor any Blair Stockholder has received
any notice from any governmental agency or other party seeking any information
or alleging any liability with regard to real property occupied or used by Blair
now or at any time or with regard to any off-site environmental conditions. No
premises leased by Blair (and no real property it has owned) are subject to a
lien under any Environmental Laws.
For purposes of this Agreement, "Hazardous Material" means any
flammable, explosive or radioactive material, or any hazardous or toxic waste,
substance or material, including substances defined as "hazardous substances,"
"hazardous materials," "solid waste" or "toxic substances" under any applicable
laws relating to hazardous or toxic materials and substances, air pollution
(including noise and odors), water pollution, liquid and solid waste,
pesticides, drinking water, community and employee health, environmental land
use management, stormwater, sediment control, nuisances, radiation, wetlands,
endangered species, environmental permitting and petroleum products, and may
include, but not be limited to, the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended; the Toxic Substance Control Act; the Clean Water
Act; the National Environmental Policy Act, as amended; the Solid Waste Disposal
Act, as amended; the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, as amended; the Clean Air Act, as amended; the
Emergency Planning and Community Right-to-Know Act, as amended; the Occupational
Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; [insert
applicable New York Statutes]; Hazardous Materials Transportation Act, as
amended; and all rules and regulations promulgated pursuant to such federal,
state, and county and foreign laws and ordinances.
(y) Labor Matters. Except as set forth in the Blair Disclosure
-------------
Schedule, Blair is not a party to, or bound by, any collective bargaining
agreement, contract or other agreement or understanding with a labor union or
labor organization, nor is it the subject of any material proceeding asserting
that it has committed an unfair labor practice or seeking to compel it to
bargain with any labor organization as to wages or conditions of
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 49 of 110 Pages
- ---------------------- ---------------------
employment nor is there any strike or other labor dispute involving it pending
or, to its or the Blair Stockholders' Knowledge, threatened, any of which would
have an adverse effect on the Condition of Blair.
(z) Investment Intent. Each Blair Stockholder (i) agrees that
-----------------
the Blair Stockholder will hold the Todhunter Shares to be received hereunder
for investment for the Blair Stockholder's own account and not with a view to
the sale or distribution of any part thereof and that the Blair Stockholder has
no present intention of selling, granting participation in, or otherwise
distributing the same; (ii) acknowledges that the Todhunter Shares will be
issued to the Blair Stockholders without registration under the Securities Act
or any similar state law in reliance upon exemptions from registration available
under the Securities Act and applicable state law; (iii) acknowledges that any
transfer after issuance of the Todhunter Shares will be limited and agrees that
the Todhunter Shares may not be offered or sold without registration under the
Securities Act and applicable state law unless an opinion of counsel acceptable
to Todhunter is provided indicating such registration is not required for such
offer or sale; (iv) agrees that a legend indicating lack of registration and
limitations on transfer will be affixed to the certificates evidencing the
Todhunter Shares; and (v) acknowledges that the Blair Stockholder is in
"accredited investor" as defined in rules promulgated by the SEC under the
Securities Act, that the Blair Stockholder has such knowledge and experience in
financial and business matters that the Blair Stockholder is capable of
evaluating the merits and risks of an investment in the Todhunter Shares and
that Todhunter has made available to the Blair Stockholder the opportunity to
ask questions and receive answers concerning Todhunter and the Todhunter Shares.
(aa) Inventories. The inventories of Blair reflected on the
-----------
latest balance sheet of Blair included in the Blair Financial Statements, or
acquired by Blair after the date thereof and before the Closing Date, are
carried at not in excess of the lower of cost or net realizable value, and,
except as set forth on the Blair Disclosure Schedule, do not include any
inventory, in amounts exceeding common industry standards, which is obsolete,
surplus or not usable or saleable in the lawful and Ordinary Course of Business
of Blair, in each case net of reserves provided therefor on such balance sheets.
As used herein, "obsolete inventory" is inventory which, at the balance sheet
date, was not usable or saleable, because of legal restrictions, failure to meet
specifications, loss of market, damage, physical deterioration or for any other
cause; and "surplus inventory" is inventory that, at the balance sheet date,
exceeded known or anticipated requirements in the reasonable business judgment
of Blair.
(bb) Customers and Suppliers. The Blair Disclosure Schedule sets
-----------------------
forth a complete and correct list of (i) all customers whose purchases exceeded
5% of the aggregate net sales of Blair during Blair's last full fiscal year, and
(ii) the ten largest suppliers by dollar volume of Blair and the aggregate
dollar volume of purchases (broken down by principal categories) by Blair from
such suppliers for such fiscal year. To the best
<PAGE>
SCHEDULE 13D
- ---------------------- ---------------------
CUSIP No. 0008890501 Page 50 of 110 Pages
- ---------------------- ---------------------
of Blair's and the Blair Stockholders' Knowledge, none of such customers or
suppliers has, or intends to terminate or change significantly its relationship
with Blair on or after December 31, 1993, and there exists no present condition
or state of facts or circumstances that would materially adversely affect Blair
or prevent Blair from conducting Blair's business after the consummation of the
transaction contemplated by this Agreement in substantially the same manner in
which it has heretofore been conducted. Blair has not granted any unusual
credit, trade-in, free return or other sales terms to customers or others.
(cc) No Other Agreements to Sell Blair. Neither Blair nor any
---------------------------------
Blair Stockholder has any legal obligation, absolute or contingent, to any other
person to sell substantially all the assets of Blair, to sell a majority of the
capital stock of Blair or to effect any merger, consolidation or other
reorganization of Blair or to enter into any agreement with respect thereto.
(dd) Projections. The projections, forecasts and plans received
-----------
by Todhunter from Blair were prepared in good faith for the internal use of
Blair and on the basis of reasonable assumptions. After appropriate inquiry of
the officers of Blair, Blair and the Blair Stockholders do not have reason to
believe that such projections, forecasts and plans are not reasonably
achievable.
(ee) Propriety of Past Payments. No funds or assets of Blair
--------------------------
have been used for illegal purposes; no unrecorded funds or assets of Blair have
been established for any purpose; no accumulation or use of Blair's corporate
funds or assets has been made without being properly accounted for in the books
and records of Blair; all payments by or on behalf of Blair have been duly and
properly recorded and accounted for in its books and records; no false or
artificial entry has been made in the books and records of Blair for any reason;
no payment has been made by or on behalf of Blair with the understanding that
any part of such payment is to be used for any purpose other than that described
in the documents supporting such payment; and Blair has not made, directly or
indirectly, any illegal contributions to any political party or candidate,
either domestic or foreign.
4. Representations and Warranties of Todhunter and Merger Sub.
----------------------------------------------------------
Todhunter (which, for purposes of this Article 4 shall also mean and refer to
Merger Sub, unless the context requires otherwise) represents and warrants to
Blair and the Blair Stockholders that the statements contained in this Article 4
are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement through this
Article 4), except as set forth in the disclosure schedule prepared by Todhunter
and attached to this Agreement as Exhibit D (the "Todhunter Disclosure
Schedule") or the Schedules attached hereto. The Todhunter Disclosure Schedule
will be arranged in paragraphs corresponding to the numbered and lettered
paragraphs contained in Article 4.
<PAGE>
SCHEDULE 13D
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CUSIP No. 0008890501 Page 51 of 110 Pages
- -------------------- --------------------
(a) Organization, Qualification, and Corporate Power. Todhunter
------------------------------------------------
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Delaware. Merger Sub is duly organized, validly
existing, and in good standing under the laws of the State of New York. Each
Subsidiary of Todhunter, other than Merger Sub, is a corporation duly organized,
validly existing, and in good standing under the laws of its jurisdiction of
incorporation. Each of Todhunter and its Subsidiaries is duly authorized to
conduct business and is in good standing under the laws of each jurisdiction in
which the nature of its business or the ownership or leasing of its properties
requires such qualification except where the lack of such qualification would
not have a material adverse effect on its Condition. Each of Todhunter and its
Subsidiaries has full corporate power and authority to carry on the businesses
in which it is engaged and to own and use the properties owned and used by it.
True and complete copies of the Certificate of Incorporation and the Bylaws of
each of Todhunter and Merger Sub are attached hereto as Schedule 4(a).
-------------
Todhunter and each of its Subsidiaries has in effect all federal, state, local
and foreign governmental, regulatory and other authorizations, permits and
licenses necessary for it to own or lease its properties and assets and to carry
on its business as now conducted, the absence of which would have a material
adverse effect on the Condition of Todhunter and its Subsidiaries on a
consolidated basis.
(b) Capitalization. The authorized capital stock of Todhunter
--------------
consists of 10,000,000 Todhunter Shares, of which 4,612,250 Todhunter Shares are
issued and outstanding on the date of this Agreement, and 2,500,000 Preferred
Shares, none of which are issued and outstanding on the date hereof. There are
no other classes of capital stock of Todhunter authorized. Todhunter holds no
Todhunter Shares as treasury stock. All of the issued and outstanding Todhunter
Shares have been duly authorized and are validly issued, fully paid and
nonassessable. None of the outstanding Todhunter Shares has been issued in
violation of any preemptive rights of the current or past stockholders of
Todhunter. The authorized capital stock of Merger Sub consists of 100 Merger
Sub Shares, of which 100 Merger Sub Shares are issued and outstanding on the
date of this Agreement. There are no other classes of capital stock of Merger
Sub authorized. Merger Sub holds no Merger Sub Shares as treasury stock.
Except as set forth on the Todhunter Disclosure Schedule, there are no
outstanding or authorized options, warrants, rights, contracts, calls, puts,
rights to subscribe, conversion rights, or other agreements or commitments to
which Todhunter or any Todhunter Subsidiary is a party or which are binding upon
Todhunter or any Todhunter Subsidiary providing for the issuance, disposition,
or acquisition of any of the capital stock of Todhunter or any Todhunter
Subsidiary. There are no outstanding or authorized stock appreciation, phantom
stock or similar rights with respect to Todhunter or any Subsidiary of
Todhunter.
(c) Todhunter Subsidiaries. Each Todhunter Subsidiary is
----------------------
disclosed on the Todhunter Disclosure Schedule. Except as set forth on the
Todhunter Disclosure Schedule, all shares of the issued and outstanding capital
stock of each Todhunter Subsidiary
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 52 of 110 Pages
- -------------------- --------------------
are owned by Todhunter or a Todhunter Subsidiary. The outstanding shares of
capital stock or other equity interests of each Todhunter Subsidiary have been
duly authorized and are validly issued, fully paid and nonassessable. All
shares of capital stock or other equity interests of each Todhunter Subsidiary
owned by Todhunter or any of its Subsidiaries are set forth in the Todhunter
Disclosure Schedule and are owned by such entity, either directly or indirectly,
free and clear of all liens, encumbrances or claims. None of the outstanding
shares of the capital stock of any Todhunter Subsidiary has been issued in
violation of any preemptive rights of the current or past stockholders of such
Todhunter Subsidiary. Except for shares of capital stock owned by Todhunter or
any Todhunter Subsidiary, there are no shares of capital stock of any Todhunter
Subsidiary outstanding.
(d) Authorization of Transaction. Each of Todhunter and Merger
----------------------------
Sub has full power and authority (including full corporate power and authority)
to execute and deliver this Agreement and to perform its obligations hereunder;
provided that Todhunter, by virtue of its execution of the Written Consent of
Sole Shareholder of Merger Sub attached as Exhibit E to this Agreement, approves
the Merger in its capacity as the sole shareholder of Merger Sub. Subject to the
foregoing sentence, (i) this Agreement has been duly executed and delivered by
Todhunter and Merger Sub and constitutes the valid and binding agreement of
Todhunter and Merger Sub, enforceable against them in accordance with its terms,
subject to applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally, general equitable principles and the discretion of
courts in granting equitable remedies, (ii) the performance by Todhunter and
Merger Sub of their obligations hereunder and the consummation of the Merger and
the other transactions provided for herein have been duly and validly authorized
by all necessary corporate action on the part of Todhunter and Merger Sub, and
(iii) the Board of Directors of Todhunter and Merger Sub have approved the
execution, delivery and performance of this Agreement and the consummation of
the Merger and the other transactions provided for herein. Other than in
connection with the New York Act, none of Todhunter or any of its Subsidiaries
needs to give any notice to, make any filing with, or obtain any authorization,
consent or approval of any government or governmental agency in order for the
Parties to consummate the transactions contemplated by this Agreement, except
where the failure to give notice, to file, or to obtain any authorization,
consent, or approval would not have a material adverse effect on the Condition
of Todhunter and its Subsidiaries on a consolidated basis.
(e) Noncontravention. Except as set forth on the Todhunter Disclosure
----------------
Schedule, neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (i) subject to the
receipt of any approvals contemplated in Section 4(d) above, violate any
statute, regulation, rule, judgment, order, decree, stipulation, injunction,
charge, or other restriction of any government, governmental agency, or court to
which any of Todhunter and its Subsidiaries is subject or any provision of the
Certificate of Incorporation or Bylaws of any of Todhunter and its Subsidiaries
or (ii) with the passing of time or the giving of notice or both, conflict with,
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 53 of 110 Pages
- -------------------- --------------------
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any contract, lease, sublease, license, franchise,
permit, indenture, agreement or mortgage for borrowed money, instrument of
indebtedness, Security Interest, or other obligation to which any of Todhunter
and its Subsidiaries is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security Interest upon any
of its assets) except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, failure to give notice,
or Security Interest would not have a material adverse effect on the Condition
of Todhunter and its Subsidiaries on a consolidated basis.
(f) No Prior Activities. Merger Sub has no assets, other than
-------------------
capital contributed upon issuance of its common stock to Todhunter. Except for
obligations or liabilities incurred in connection with its incorporation or
organization or the negotiation and consummation of this Agreement and the
transactions contemplated hereby, Merger Sub has not incurred any obligations or
liabilities, and has not engaged in any business or activities of any type or
kind whatsoever or entered into any agreements or arrangements with any person
or entity.
(g) SEC Filings. All registration statements or reports filed by
-----------
Todhunter with the SEC are, and all such statements or reports to be filed will
be, true and complete in all material respects, and do not or will not contain
any untrue statement of a material fact or omit to state a material fad
necessary in order to make the statements included therein not misleading in
light of the circumstances under which they were made.
(h) Brokers' Fees. None of Todhunter and its Subsidiaries, or
-------------any of their officers, directors or employees,
has any liability or obligation to pay any fees or commissions to, or has
employed, any broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
(i) Statements True and Correct. No representation or warranty
---------------------------
made by Todhunter in this Agreement nor any written statement or certificate
included in an Exhibit or Schedule by Todhunter in connection with this
Agreement nor any written statement or certificate to be furnished by Todhunter
to Blair pursuant to this Agreement, contains any untrue statement of material
fact or omits to state a material fact necessary to make the statements made, in
the light of the circumstances under which they were made, not misleading.
(j) Todhunter Approval. Contemporaneously herewith, Todhunter
------------------
has executed the Written Consent of Sole Shareholder of Merger Sub, approving
the transactions contemplated hereby, in the Form attached hereto as Exhibit E.
<PAGE>
SCHEDULE 13D
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CUSIP No. 0008890501 Page 54 of 110 Pages
- -------------------- --------------------
(k) Status of Todhunter Shares. The Todhunter Shares to be
--------------------------
issued to the Blair Stockholders in connection with the transactions
contemplated hereby have been validly authorized, and, when issued, will be duly
issued, fully paid and non-assessable.
5. Covenants. The Parties agree as follows with respect to the
---------
period from and after the execution of this Agreement until the earlier of (a)
the consummation of the transactions contemplated by this Agreement or (b)
termination of this Agreement; or such later date or period as set forth in the
terms of the respective Covenants below:
(a) Delivery of Financial Information. Within thirty (30) days
---------------------------------
after the date hereof Blair shall deliver to Todhunter its unaudited financial
statements for the fiscal quarter ended March 31, 1994 and, within thirty (45)
days after the end of each calendar month beginning after the date of this
Agreement, Blair shall deliver to Todhunter copies of its unaudited consolidated
balance sheets and consolidated statements of income, changes in stockholders'
equity and cash flows (including related notes and schedules) for the preceding
fiscal month. All such financial statements will be prepared in accordance with
the books and records of Blair, will be complete and accurate in all material
respects, will present fairly the consolidated financial position and the
consolidated results of operations, changes in stockholders' equity and cash
flows of Blair as of and for the periods indicated, and will be prepared in
accordance with GAAP, subject to normal recurring year-end adjustments and the
absence of certain footnote information in the unaudited statements.
(b) Governmental Matters. Each of the Parties will take any
--------------------
additional action (and cause each of its Subsidiaries to take any additional
action) that may be necessary, proper, or advisable in connection with any other
notice to, filings with, and authorizations, consents, and approvals of
governments and governmental agencies that it may be required to give, make or
obtain.
(c) Conduct of Business Prior to the Effective Time. During the
-----------------------------------------------
period from the date of this Agreement to the Effective Time, except as set
forth in the Blair Disclosure Schedule and except as expressly contemplated or
permitted by this Agreement, Blair shall (i) conduct its business in, and only
in, the usual, regular and ordinary course consistent with past practices, (ii)
use its reasonable best efforts to maintain and preserve intact its business
organization, employees and advantageous business relationships and retain the
services of its officers and key employees, and (iii) take no action which would
materially adversely affect or delay the ability of any Party to obtain any
necessary approvals of any governmental authority required for the transactions
contemplated hereby or to perform its covenants and agreements under this
Agreement.
(d) Forbearance. During the period from the date of this
-----------
Agreement to the Effective Time, except as set forth in the Blair Disclosure
Schedule or
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 55 of 110 Pages
- -------------------- --------------------
except as expressly contemplated or permitted by this Agreement, Blair shall
not, without the prior written consent of Todhunter:
(i) incur any indebtedness for borrowed money (other than
short-term indebtedness incurred to refinance short-term indebtedness), assume,
guarantee, endorse or otherwise as an accommodation become responsible for the
obligations of any other individual, corporation or other entity, or make any
loan or advance other than in the Ordinary Course of Business;
(ii) adjust, split, combine or reclassify any capital stock;
make, declare or pay any dividend or make any other distribution on, or directly
or indirectly redeem, purchase or otherwise acquire, any shares of its capital
stock or any securities or obligations convertible into or exchangeable for any
shares of its capital stock, or grant any stock appreciation rights or grant any
individual, corporation or other entity any right to acquire any shares of its
capital stock;
(iii) sell, transfer, mortgage, encumber or otherwise dispose
(other than in the Ordinary Course of Business) of any of its properties or
assets to any individual, corporation or other entity, or cancel, release or
assign any indebtedness to any such person or any claims held by any such
person;
(iv) make any loans to or material investment in, either by
purchase of stock or securities, contributions to capital, property transfers,
or purchase of property or assets, any other individual, corporation or other
entity;
(v) enter into or terminate any material contract or
agreement, or make any change in any of its material leases or contracts, other
than renewals of contracts and leases without material adverse changes of terms;
(vi) increase the compensation or fringe benefits of any of its
employees or pay any pension or retirement allowance not required by any
existing plan or agreement to any such employees, or become a party to, amend or
commit itself to any pension, retirement, profit-sharing or welfare benefit plan
or agreement or employment agreement with or for the benefit of any employee;
(vii) amend its Certificate of Incorporation or its bylaws or
any other governing document;
(viii) enter into any new material line of business;
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 56 of 110 Pages
- -------------------- --------------------
(ix) incur or commit to any capital expenditure or any
obligations or liabilities in connection therewith other thin capital
expenditures and obligations or liabilities incurred or committed to in the
Ordinary Course of Business;
(x) change its methods of accounting in effect at December 31,
1993 or its fiscal year; or
(xi) agree to, or make any commitment to, take any of the actions
prohibited by this Section 5(d).
(e) Issuance of Securities. Except as set forth in the Blair
----------------------
Disclosure Schedule or as contemplated by this Agreement, Blair shall not issue,
deliver or sell, or authorize or propose the issuance, delivery or sale of, any
shares of its capital stock of any class, any voting debt or any securities
convertible into or exercisable for or any rights, warrants or options to
acquire, any such shares or voting debt, or enter into any agreement with
respect to any of the foregoing.
(f) No Acquisitions. Other than acquisitions which may be mutually
---------------
agreed to by Blair and Todhunter, Blair shall not acquire or agree to acquire,
by merging or consolidation with or by purchasing a substantial equity interest
in or a substantial portion of the assets of or by any other manner any business
or any corporation, partnership, association or other business organization or
division thereof or otherwise acquire or agree to acquire any assets in each
case which are material, individually or in the aggregate, to Blair.
(g) Other Actions. No Party shall or shall permit any of its
-------------
Subsidiaries to take any action that is intended to result in any of its
representations and warranties set forth in this Agreement being or becoming
untrue in any material respect, or in any of the conditions set forth in this
Agreement not being satisfied or in a violation of any provision of this
Agreement (unless such action is required by applicable law) which would
adversely affect the ability of any of them to consummate the transactions
contemplated hereby.
(h) Tax-Free Reorganization Treatment. No Party shall take or cause
---------------------------------
to be taken any action, whether before or at any time after the Effective Time,
which would disqualify the Merger as a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code.
(i) Full Access. Blair will permit representatives of Todhunter to
-----------
have full access at all reasonable times, and in a manner so as not to interfere
with the normal business operations of Blair to all premises, properties, books,
records, contracts, tax records, and documents of or pertaining to Blair. Blair
agrees to furnish Todhunter and its
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 57 of 110 Pages
- -------------------- --------------------
advisers with such financial operating data and other information with respect
to its business, properties and employees as Todhunter shall, from time to time,
reasonably request. No investigation by Todhunter shall affect the
representations and warranties of Blair and the Blair Stockholders to this
Agreement, and each such representation and warranty shall survive any such
investigation. Todhunter will treat and hold as such any Confidential
Information it receives from Blair in the course of the reviews contemplated by
this Section 5(i), will not use any of the Confidential Information except in
connection with this Agreement, and, if this Agreement is terminated for any
reason whatsoever, agrees to return to Blair all tangible embodiments (and all
copies) thereof which are in its possession; provided, however, that this
sentence shall not apply to any information (i) which, at the time of disclosure
by Blair, is available publicly, (ii) which, after disclosure by Blair, becomes
available publicly through no fault of Todhunter, or (iii) which Todhunter knew
prior to disclosure. In addition, Blair shall not be required to provide access
to or disclose information which would violate or prejudice the rights of any
customer or other person, jeopardize its attorney-client privilege, or would
contravene any law, rule, regulation, order or decree.
(j) Notice of Material Adverse Developments. Blair will give
---------------------------------------
prompt written notice to Todhunter, and Todhunter will give prompt written
notice to Blair and the Blair Stockholders, of any material adverse development
affecting the assets, liabilities, business, financial condition, operations,
results of operations, or future prospects of such Party and its Subsidiaries
taken as a whole. Blair will give prompt written notice to Todhunter, and
Todhunter will give prompt written notice to Blair and the Blair Stockholders of
any such material adverse development affecting the ability of such Party to
consummate the transactions contemplated by this Agreement. Any such notices
shall be accompanied by copies of any and all pertinent documents,
correspondence and similar papers relevant to a complete understanding of such
material adverse development.
(k) Exclusivity. Except as specifically permitted or
-----------
contemplated by this Agreement, Blair and the Blair Stockholders will not
solicit, initiate, or encourage the submission of any proposal or offer from any
person (other than Todhunter) relating to any (i) liquidation, dissolution, or
recapitalization, (ii) merger or consolidation, (iii) acquisition or purchase of
securities or assets; or (iv) similar transaction or business combination
involving Blair or its assets, provided, however, that Blair and its directors
and officers will remain free to participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or participate in, or
facilitate in any other manner any effort or attempt by any person to do or seek
any of the foregoing to the extent their fiduciary duties may require. Blair
shall notify Todhunter immediately if any person (other than Todhunter) makes
any proposal, offer, inquiry, or contact with respect to any of the foregoing.
(l) Filings with the State Offices. Upon the terms and subject
------------------------------
to the conditions of this Agreement, Merger Sub and Blair shall execute and file
the Certificate
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 58 of 110 Pages
- -------------------- --------------------
of Merger with the Secretary of State of the State of New York in connection
with the Closing.
(m) Press Releases. Except as otherwise provided in Section
--------------
8(b), Blair and Todhunter shall consult with each other as to the form and
substance of any press release or other public disclosure related to this
Agreement, the Merger or any other transaction contemplated hereby.
(n) Current Information. During the period from the date of this
-------------------
Agreement to the Effective Time, each of Blair and Todhunter shall, and shall
cause its representatives to, confer on a regular and frequent basis with
representatives of the other. Each of Blair and Todhunter shall promptly notify
the other of (i) any material change in its business or operations, (ii) any
complaints, investigations or hearings (or communications indicating that the
same may be contemplated) of any Regulatory Authority, (iii) the institution or
the threat of litigation involving such Party, or (iv) any event or condition
that might be reasonably expected to cause any of their representations and
warranties set forth herein not to be true and correct as of the Effective Time;
and in each case shall keep the other fully informed with respect thereto.
(o) Miscellaneous Agreements and Consents. Subject to the terms
-------------------------------------
and conditions of this Agreement, each of the Parties hereto agrees to use its
respective 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 under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement as expeditiously as reasonably practicable,
including, without limitation, using their respective reasonable best efforts to
lift or rescind any injunction or restraining order or other order adversely
affecting the ability of the Parties to consummate the transactions contemplated
hereby. Each Party shall use its reasonable best efforts to obtain consents of
all third parties, including any governmental authorities, necessary or, in the
reasonable opinion of any Party, desirable for the consummation of the
transactions contemplated by this Agreement. In case at anytime after the
Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of Blair shall be
deemed to have been granted authority in the name of Merger Sub to take all such
necessary or desirable action.
(p) Indemnification.
---------------
(i) Subject to the limitations set forth below, each of the
Blair Stockholders shall indemnify and hold harmless Todhunter and, after the
Closing, Blair, as well as their affiliates, successors and assigns, against and
in respect of any and all direct or indirect damages, claims, losses,
liabilities and reasonable expenses (including, without limitation, legal,
accounting, and other expenses) (collectively, "Damages") suffered by Todhunter
or Blair, or their successors and assigns, which may arise out of or be in
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 59 of 110 Pages
- -------------------- --------------------
respect of: (i) any breach or violation of this Agreement by any of the Blair
Stockholders or Blair, (ii) any falsity, inaccuracy or misrepresentations with
respect to the representations, warranties or covenants made in this Agreement
by Blair or any of the Blair Stockholders, or (iii) any inaccuracy or
misrepresentation in the Blair Disclosure Schedule or in any certificate,
document or instrument delivered at or prior to the Closing by or on behalf of
Blair or the Blair Stockholders, in accordance with the provisions of this
Agreement. Subject to the limitations set forth below, Todhunter shall
indemnify and hold harmless the Blair Stockholders against and in respect of any
and all Damages suffered by the Blair Stockholders which may arise out of or be
in respect of: (i) any breach or violation of this Agreement by Todhunter or
Merger Sub, (ii) any falsity, inaccuracy or misrepresentations with respect to
the representations, warranties and covenants made in this Agreement by
Todhunter or Merger Sub, or (iii) any inaccuracy or misrepresentation in the
Todhunter Disclosure Schedule or in any certificate, document or instrument
delivered at or prior to the Closing by or on behalf of Todhunter or Merger Sub,
in accordance with the provisions of this Agreement.
(ii) Upon obtaining knowledge thereof, each party seeking
indemnity hereunder (the "Indemnified Party") shall promptly notify each party
from whom indemnity is sought hereunder (the "Indemnifying Party"), in writing,
of any facts or circumstances which may give rise to a right of indemnification
hereunder ("Notice of Claim"). The Notice of Claim shall specify the nature and
details of such facts and circumstances (including any amount claimed) which may
give rise to such right of indemnification. No Indemnifying Party shall be
obligated to indemnify an Indemnified Party for the increased amount of any
claim or other matter which would otherwise have been payable to the extent such
increase results from a failure to reasonably and promptly provide a Notice of
Claim.
(iii) If the claim or demand set forth in the Notice of Claim
relates to a claim or demand asserted by a third party (a "Third Party Claim"),
the Indemnifying Parties shall have the right to employ counsel acceptable to
the Indemnified Parties to defend any such claim or demand, and the Indemnified
Parties shall have the right to participate in the defense of any such Third
Party Claim. The Indemnifying Parties shall notify the Indemnified Parties, in
writing, within fifteen (15) days after the Date of the Notice of Claim (is
hereinafter defined), of their decision to defend in good faith any Third Party
Claim. So long as the Indemnifying Parties are defending in good faith any such
Third Party Claim, the Indemnified Parties shall not settle or compromise such
Third Party Claim. The Indemnified Parties shall make available to the
Indemnifying Parties or their representatives all records and other materials
reasonably required by them for their use in contesting any Third Party Claim
and shall cooperate with the Indemnifying Parties in connection therewith. If
the Indemnifying Parties do not so elect to defend any such Third Party Claim,
the Indemnified Parties shall have no obligation to do so.
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 60 of 110 Pages
- -------------------- --------------------
(iv) As soon as is reasonably practicable after the Date of the
Notice of Claim, the Indemnified Parties and the Indemnifying Parties shall
endeavor to agree upon the amount, if any, to which the Indemnified Parties are
entitled under this Section 5(p). In the event the Indemnifying Parties and the
Indemnified Parties are unable to reach agreement upon the right of the
Indemnified Parties to indemnification hereunder, or upon the amount of any such
indemnification hereunder, either the Indemnified Parties or the Indemnifying
Parties may submit such dispute for resolution in accordance with Section 8(p)
hereof.
(v) Recovery by the Indemnified Parties hereunder shall be as
follows:
(a) To the extent that Todhunter or, after the Closing, Blair, their
affiliates, successors or assigns are Indemnified Parties, the Escrow Agent
shall deliver to Todhunter, Blair, or their affiliates, successors or assigns,
as the case may be, together with stock transfer powers duly endorsed in blank,
certificates representing the number of Todhunter Shares as shall equal the
quotient obtained by dividing (i) the amount of any indemnification obligation
of the Blair Stockholders, as established pursuant to subsection (iv) above (the
"Blair Stockholders' Indemnification Amount") by (ii) the average of the closing
sales prices for Todhunter Shares on the NASDAQ National Market for the ten
trading days immediately preceding the determination of the Blair Stockholders'
Indemnification Amount pursuant to Section 5(p)(iv) or 8(p) (the
"Indemnification Share Price"). If the number of Todhunter Shares determined
pursuant to the foregoing sentence (the "Indemnification Share Component") shall
exceed the number of Todhunter Shares held by the Escrow Agent, the Escrow Agent
shall deliver to Todhunter, Blair, or their affiliates, successors or assigns,
as the case may be, all certificates representing Todhunter Shares, together
with all stock transfer powers held by the Escrow Agent, and the Escrow Agent
shall pay, from any cash or other assets held pursuant to the Escrow Agreement,
to Todhunter, Blair, or their affiliates, successors or assigns, as the case may
be, the amount (the "Indemnification Cash Component") that is equal to (i) the
Blair Stockholders' Indemnification Amount less (ii)(a) the Todhunter Shares to
be delivered to Todhunter, Blair, or their successors or assigns, as the case
may be, by the Escrow Agent pursuant to this subsection with respect to such
Blair Stockholders' Indemnification Amount multiplied by (b) the Indemnification
Share Price, or if the Indemnification Cash Component exceeds the cash or other
assets held pursuant to the Escrow Agreement, such amount as is equal to all
such cash or other assets as are held by the Escrow Agent. To the extent the
Indemnification Cash Component exceeds the amount of cash or other assets held
by the Escrow Agent no Blair Stockholder shall have any liability to pay such
excess to Todhunter, Blair or their affiliates, successors or assigns, subject
only to the Core Blair Stockholders' obligations in respect of tax indemnity
pursuant to Section 5(p)(vi) below.
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 61 of 110 Pages
- -------------------- --------------------
(b) To the extent that the Blair Stockholders are Indemnified Parties,
Todhunter shall pay the indemnification obligation of Todhunter to the Blair
Stockholders within thirty (30) days after either Todhunter and the Blair
Stockholders reach agreement on the amount of any such indemnification
obligation or any such indemnification obligation is determined pursuant to
subsection (iv) or Section 8(p) hereof.
(vi) Notwithstanding anything to the contrary set forth in this
Agreement, no party shall have any liability or obligation, and the Indemnified
Parties shall have no rights, with respect to indemnification or otherwise under
this Agreement, (a) in respect of Damages until the aggregate amount of Damages
of Todhunter, and after the Closing, Blair, their affiliates, successors and
assigns, on the one hand, or of the Blair Stockholders, on the other hand, shall
exceed $100,000 (the "basket amount") and thereafter, only to the extent the
amount of such aggregate Damages exceeds the basket amount and is less than or
equal to $4,000,000; and (b) in respect of Damages in any amount pursuant to
this Agreement on or after the date which is two (2) years after the Closing
Date, except in respect of (i) claims or other matters for which the Date of the
Notice of Claim is prior to such date, and (ii) claims or other matters arising
hereunder under Section 3(k), if the Date of the Notice of Claim in respect
thereof is within sixty (60) days after the expiration of the limitations period
in which the appropriate authority can bring a claim with respect to such
matters; provided, however, that if the Escrow Agreement shall have been
terminated, and any Todhunter Shares or cash or other assets (other than those
previously released to Todhunter in accordance with the provisions hereof)
released from escrow to the Blair Stockholders (any such shares, "Released
Shares," and together with any such cash or other assets, "Released
Consideration"), the Core Blair Stockholders shall pay any such Blair
Stockholders' Indemnification Amount for matters arising with respect to Section
3(k) hereof to Todhunter, Blair, their affiliates, successors or assigns within
forty five (45) days of the demand therefor by causing to be transferred to
Todhunter the number of Released Shares issued pursuant to this Agreement as
shall equal the quotient obtained by dividing (i) the amount of such Blair
Stockholders' Indemnification Amount by (ii) the higher of (x) the Todhunter
Closing Date Share Price or (y) the average of the closing sales prices for
Todhunter Shares on the NASDAQ National Market for the ten trading days
immediately preceding the termination of the Escrow Agreement, and, to the
extent they do not cause to be transferred such number of Released Shares to
Todhunter within such period, they shall pay Todhunter, within such period, the
balance of such Blair Stockholders' Indemnification Amount in cash, up to, but
not exceeding, the value of the Released Consideration. The term "Date of the
Notice of Claim" as used herein shall mean the date the notice is deemed
delivered pursuant to Section 8(h) hereof.
(vii) The amount of any recovery by the Indemnified Parties
pursuant to this Section (p) shall be net of any foreign, federal, state and/or
local income tax benefits accruing to the Indemnified Parties as a result of the
state of facts which entitled the Indemnified Parties to a recovery pursuant to
this Section (p).
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 62 of 110 Pages
- -------------------- --------------------
(q) Blair's Identity. The Parties agree and acknowledge that a
----------------
significant part of the consideration to be paid to the Blair Stockholders is
contingent upon the Net Income of Blair, as calculated hereunder, in the period
following the Closing and prior to payment of the Additional Todhunter Share
Component to the Blair Stockholders (the "earn-out period"). Todhunter
covenants for the benefit of the Blair Stockholders that it shall maintain
Blair's economic identify within the consolidated Todhunter group during the
earn-out period and that it shall also act in good faith to recognize the
continuing interest of the Blair Stockholders in Blair's performance on a
notional "standalone" basis. The foregoing shall not be deemed to limit
Todhunter's ability to engage in any transaction constituting in Early Payment
Event.
(r) Incidental Registration Rights. Until the earlier of
------------------------------
September 30, 2002, or the earlier sale by the Blair Stockholders of the
Todhunter Shares issued to them hereunder, if Todhunter shall determine to
proceed with the actual preparation and filing of a registration statement under
the Securities Act in connection with the proposed offer and sale for cash of
any of its securities by it or any of its security holders (other than a Form S-
8 or similar registration statement), Todhunter will give written notice of its
determination to the Stockholders' Committee. Upon the written request of the
Stockholders' Committee given within 30 days after receipt of any such notice
from Todhunter, Todhunter will, except as herein provided, cause all such
Todhunter Shares issued pursuant hereto requested to be included in such
registration statement all to the extent requisite to permit the sale or other
disposition by the prospective seller or sellers of the Todhunter Shares to be
so registered, provided; however, that nothing herein shall prevent Todhunter
from, at any time, abandoning or delaying any registration. If any registration
pursuant to this Section shall be underwritten in whole or in part, Todhunter
may require that the Todhunter Shares requested for inclusion pursuant to this
Section 2 be included in the underwriting on the same terms and conditions as
the securities otherwise being sold through the underwriters. In the event that,
in the good faith judgment of the managing underwriter of such public offering,
the inclusion of all of the Todhunter Shares originally covered by a request for
registration would materially adversely interfere with the distribution of the
shares of stock offered by Todhunter, the number of Todhunter Shares issued
pursuant hereto and otherwise to be included in the underwritten public offering
may be reduced pro rata (by number of shares) among the holders thereof
requesting such registration. In connection with, and as a condition to, any
such registration, the holders of Todhunter Shares included in such registration
shall enter into an indemnification agreement, in form and substance
satisfactory to Todhunter, relating to such registration. All federal and state
registration fees and fees of the National Association of Securities Dealers,
Inc. relating to any such registration of such Todhunter Shares shall be borne
by the participating holders of Todhunter Shares. All other expenses relating to
such registration will be borne by Todhunter.
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 63 of 110 Pages
- -------------------- --------------------
(s) Disclosure Schedules and Exhibits. The Parties will
---------------------------------
complete and deliver to each other Party the Disclosure Schedules and Exhibits
to this Agreement to be prepared by such Party, by no later than May 2, 1994.
6. Conditions to Obligation to Close.
---------------------------------
(a) Conditions to Obligation of Todhunter and Merger Sub. The
----------------------------------------------------
obligations of Todhunter and Merger Sub to consummate the transactions to be
performed by them in connection with the Merger are subject to satisfaction of
the following conditions:
(i) Todhunter shall have obtained, or shall have obtained for
Blair effective at the Closing, financing in an amount sufficient to consummate
the transactions contemplated by this Agreement, including to satisfy the
conditions of Section 6(a)(iii) and 6(b)(i) below, on such terms and conditions
reasonable and customary for transactions of this type and satisfactory to
Todhunter;
(ii) The audited financial statements of Blair for the year
ended December 31, 1993, shall show that, as at such year-end, the Blair
Stockholders shall have reduced loans to Blair, or shall have caused loans to
Blair to be reduced, by an amount equal to $1 million, and that as of December
31, 1993 Blair had positive stockholders' equity.
(iii) Todhunter or Blair shall, at the Closing, have obtained
at least $7,500,000 of proceeds from the financing contemplated by Section
6(a)(i), and an aggregate of $4,000,000 of such amount shall have been paid by
Todhunter or Blair to Charmer Industries, Inc., Susan Merinoff and the Merinoff
Family Partnership (collectively, the "Merinoff/Charmer Creditors") in reduction
of Blair's indebtedness to the Merinoff/Charmer Creditors and $3,500,000 of such
amount shall have been paid by Todhunter or Blair to Chemical Bank in repayment
of Blair's existing indebtedness to Chemical Bank.
(iv) Charmer Industries, Inc. shall have entered into an
agreement with Blair, in form and substance reasonably satisfactory to Todhunter
(i) to modify the payment terms in respect of indebtedness of Blair to Charmer
Industries, Inc. remaining after the payments contemplated by Section 6(a)(iii),
by establishing, as sole recourse therefor, (x) a non-interest bearing credit
for future purchases of inventory by Charmer Industries, Inc. from Blair, such
credit to be exercisable beginning thirty (30) days after the Closing Date, at
the rate of $125,000 per month, or (y) the earlier cash prepayment of such
credit upon the closing of any public offering by Todhunter of its common stock
(other than pursuant to a Form S-8 or similar registration statement) or the
occurrence of an Early Payment Event, and (ii) for Charmer Industries, Inc. and
its affiliates to continue to act as a distributor of such of Blair's products
as Blair and Charmer Industries shall agree is
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 64 of 110 Pages
- -------------------- --------------------
appropriate; such Agreement shall, by its terms, become effective one business
day immediately following the Closing;
(v) Peter Baronoff shall have entered into an employment
agreement with Blair in form and substance satisfactory to Todhunter;
(vi) Blair and its Subsidiaries shall have procured all of the
third party consents specified in Section 5(b) above;
(vii) the representations and warranties set forth in Article 3
above shall be true and correct at and as of the Closing Date;
(viii) Blair shall have performed and complied with all of its
covenants hereunder through the Closing;
(ix) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction wherein an unfavorable judgment,
order, decree, stipulation, injunction, or charge could (A) prevent consummation
of any of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) materially adversely affect the right of Todhunter to own,
operate, or control substantially all of the assets and operations of the
Surviving Corporation and its Subsidiaries (and no such judgment, order, decree,
stipulation, injunction, or charge shall be in effect);
(x) Blair shall have delivered to Todhunter a certificate
(without qualification as to knowledge or materiality or otherwise) to the
effect that each of the conditions specified above in Section 6(a)(ii), (vi),
(vii), (viii) and (ix) is satisfied in all respects;
(xi) the Parties shall have received all authorizations,
consents, approvals of governments and governmental agencies set forth in the
Disclosure Schedule;
(xii) Todhunter shall have received from counsel to Blair,
Baer, Marks & Upham, an opinion, in form and substance reasonably satisfactory
to Todhunter, with respect to such matters as are reasonably requested by
Todhunter with respect to Blair, the Blair Stockholders and the transactions
contemplated hereby, addressed to Todhunter and dated as of the Closing Date;
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 65 of 110 Pages
- -------------------- --------------------
(xiii) Todhunter shall have received the resignations, effective
as of the Closing, of each director and officer of Blair other than those
designated as directors or officers by Todhunter;
(xiv) all actions to be taken by Blair in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to
Todhunter and its counsel;
(xv) any regulatory approvals necessary to the consummation
of the Merger shall have been obtained;
(xvi) The Parties and the Escrow Agent shall have executed
and delivered the Escrow Agreement; and
(xvii) Todhunter shall have completed its due diligence
investigation of the assets and the financial, operating and business affairs
and prospects of Blair and Todhunter is satisfied, in its sole discretion, with
its findings; provided, however, that if this Agreement has not been earlier
terminated pursuant to Article 7 hereof, this condition will be deemed to be
satisfied on the later of (i) May 31, 1994 or (ii) five (5) business days
following the receipt by Todhunter of the audited financial statements of Blair
for the year ended December 31, 1993.
Todhunter may waive, on its behalf and on behalf of the Merger Sub, any
condition specified in this Section 6(a) if it executes a writing so stating at
or prior to the Closing.
(b) Conditions to Obligation of Blair. The obligation of Blair to
---------------------------------
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) Todhunter or Blair shall, at the Closing, have obtained at
least $7,500,000 of proceeds from the financing contemplated by Section 6(a)(i),
and an aggregate of $4,000,000 of such amount shall have been paid by Todhunter
or Blair to the Merinoff/Charmer Creditors in reduction of Blair's indebtedness
to the Merinoff/Charmer Creditors and $3,500,000 of such amount shall have been
paid by Todhunter or Blair to Chemical Bank in repayment of Blair's existing
indebtedness to Chemical Bank.
(ii) Charmer Industries, Inc. shall have entered into an
agreement with Blair, in form and substance reasonably satisfactory to Todhunter
(i) to modify the payment terms in respect of indebtedness of Blair to Charmer
Industries, Inc. remaining after the payments contemplated by Section 6(a)(iii),
by establishing, as sole recourse therefor, (x) a non-interest bearing credit
for future purchases of inventory by
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 66 of 110 Pages
- -------------------- --------------------
Charmer Industries, Inc. from Blair, such credit to be exercisable beginning
thirty (30) days after the Closing Date, at the rate of $125,000 per month, or
(y) the earlier cash prepayment of such credit upon the closing of any public
offering by Todhunter of its common stock (other than pursuant to a Form S-8 or
similar registration statement) or the occurrence of an Early Payment Event, and
(ii) for Charmer Industries, Inc. and its affiliates to continue to act as a
distributor of such of Blair's products as Blair and Charmer Industries shall
agree is appropriate; such Agreement shall, by its terms, become effective one
business day immediately following the Closing;
(iii) the representations and warranties set forth in Article
4 above shall be true and correct at and as of the Closing Date;
(iv) each of Todhunter and Merger Sub shall have performed and
complied with all of its covenants hereunder through the Closing;
(v) Todhunter and Merger Sub shall have procured all of the third
party consents specified in Section 5(b) above, including but not limited to all
necessary consents and approvals of governmental authorities;
(vi) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction wherein an unfavorable judgment, order,
decree, stipulation, injunction, or charge could (A) prevent consummation of any
of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) materially adversely affect the right of Todhunter to own,
operate, or control substantially all of the assets and operations of the
Surviving Corporation and its Subsidiaries (and no such judgment, order, decree,
stipulation, injunction or charge shall be in effect);
(vii) Todhunter shall have delivered to Blair a certificate
(without qualification as to knowledge or materiality or otherwise) to the
effect that each of the conditions specified in Section 6(b)(i)-(vi) is
satisfied in all respects;
(viii) the Parties shall have received all authorizations,
consents, and approvals of governments and governmental agencies set forth in
the Blair Disclosure Schedule;
(ix) Blair shall have received from counsel to Todhunter, Gunster,
Yoakley & Stewart, P.A., an opinion, in form and substance satisfactory to
Blair, with respect to the matters as are reasonably requested by Blair with
respect to Todhunter, Merger Sub and the transactions contemplated hereby,
including, without limitation, the
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 67 of 110 Pages
- -------------------- --------------------
qualification of the Merger under Section 368 of the Internal Revenue Code,
addressed to Blair and the Blair Stockholders and dated as of the Closing Date;
(x) all actions to be taken by Todhunter and Merger Sub in
connection with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents require to effect the
transactions contemplated hereby will be reasonably satisfactory in form and
substance to Blair and its counsel;
(xi) The Parties and the Escrow Agent shall have executed
and delivered the Escrow Agreement; and
(xii) any other regulatory approvals necessary to the
consummation of the Merger shall have been obtained.
Blair may waive, on its behalf and on behalf of the Blair Stockholders, any
condition specified in this Section 6(b) if it executes a writing so stating at
or prior to the Closing.
7. Termination.
-----------
(a) Termination of Agreement. Either Blair or Todhunter may
------------------------
terminate this Agreement with the prior authorization of its board of directors
as provided below (the Blair Stockholders may not terminate the Agreement):
(i) Blair and Todhunter may terminate this Agreement by
mutual written consent at any time prior to the Effective Time;
(ii) Todhunter may terminate this Agreement by giving
written notice to Blair and the Stockholders' Committee at any time prior to the
Effective Time in the event Blair or the Blair Stockholders are in breach, and
Blair may terminate this Agreement by giving written notice to Todhunter and
Merger Sub at any time prior to the Effective Time in the event Todhunter or
Merger Sub is in breach, of any representation, warranty, or covenant contained
in this Agreement in any respect. Each Party shall have the right to cure any
such breach, if such breach is capable of being cured, within fifteen (15) days
of receipt of written notice (receipt by the Stockholders' Committee, in the
case of the Blair Stockholders) of such breach or within any such longer period
mutually agreed to in writing by the Parties hereto ("Cure Period"); provided,
however, that in no event shall the Cure Period extend beyond June 15, 1994;
(iii) if a material adverse development shall have occurred
affecting the assets, liabilities, business, financial condition, operations,
results of operations or future prospects of Blair or Todhunter, either of Blair
or Todhunter may terminate this agreement by giving written notice to all other
Parties; and
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 68 of 110 Pages
- -------------------- ---------------------
(iv) Either Blair or Todhunter may terminate this Agreement
by giving written notice to the other Parties at any time after June 15, 1994 if
the Effective Time has not yet then occurred and such termination was approved
by vote of a majority of such Party's Board of Directors.
(v) Todhunter may terminate this Agreement by giving
written notice to Blair and the Stockholders' Committee at any time prior to the
later of (i) May 31, 1994 or (ii) five business days following the receipt by
Todhunter of the audited financial statements of Blair for the year ended
December 31, 1993, if, in Todhunter's sole discretion, it is not satisfied with
its findings in connection with its due diligence investigation of the assets
and the financial, operating and business affairs and prospects of Blair. If
Todhunter does not terminate this Agreement pursuant to this subsection, the
parties shall proceed in good faith to satisfy the conditions to consummation of
the transactions contemplated hereby. The forgoing shall not be deemed to limit
any Party's right to require satisfaction of any condition to its obligations
hereunder or to limit its rights to terminate this Agreement.
(b) Effect of Termination. If either Blair or Todhunter terminates
---------------------
this Agreement pursuant to Section 7(a) above, all obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach); provided, however, that
the confidentiality provisions contained in Section 5 above, the announcement
provisions in Section 8(b) below, and the expense provisions in Section 8(l)
below shall survive any such termination.
8. Miscellaneous.
-------------
(a) Survival. The representation and warranties set forth in
--------
Article 3 and in Sections 4(g) and (k) shall survive until two (2) years after
the Closing Date, and the representations and warranties set forth in Section
3(k)(Taxes) shall survive until the expiration of the relevant statute of
limitations applicable to such matters. Except as otherwise provided within the
Sections of this Agreement, none of the other representations, warranties, and
covenants of the Parties (other than the provisions in Section 2 above
concerning issuance of Todhunter Shares and the provisions in Section 5(p) above
concerning indemnification) will survive the Effective Time.
(b) Press Releases and Announcements. No Party shall issue any
--------------------------------
press release or announcement relating to the subject matter of this Agreement
without the prior written approval of Todhunter and Blair; provided, however,
that any Party may make any public disclosure it believes in good faith is
required by law or regulation in which case the disclosing Party will advise the
other Parties prior to making the disclosure).
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 69 of 110 Pages
- -------------------- --------------------
(c) No Third Party Beneficiaries. This Agreement shall not confer
----------------------------
any rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns; provided, however, that the
provisions in Section 5(p) above concerning insurance and indemnification are
intended for the benefit of the individuals specified and their respective legal
representatives.
(d) Entire Agreement. This Agreement (including the documents
----------------
referred to herein) constitutes the entire Agreement among the Parties and
supersedes any prior understandings, Agreements, or representations by or among
the Parties, written or oral, that may have related in any way to the subject
matter hereof.
(e) Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other Parties.
(f) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are
--------
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, consents and other
-------
communications required or permitted under this Agreement shall be in writing
(including telex and telegraphic communication) and shall be (as elected by the
person giving such notice) hand delivered by messenger or courier service,
telecommunicated, or mailed (airmail if international) by registered or
certified mail (postage prepaid), return receipt requested, addressed to:
If to Todhunter or Merger Sub: With a copy to:
Todhunter International, Inc. Gunster, Yoakley & Stewart, P.A.
Esperante Building - 15th Floor 777 S. Flager Drive, Suite 500 East
West Palm Beach, FL 33401 West Palm Beach, FL 33401
Attn: A. Kenneth Pincourt, Jr.,President Attn: Michael V. Mitrione, Esq.
If to Blair: With a copy to:
Blair Importers, Inc. Baer, Marks & Upham
121 South Service Road 805 Third Avenue
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 70 of 110 Pages
- -------------------- --------------------
Jericho, NY 11753 New York, NY 10022
Attn: Peter Baronoff, President Attn: Leon Finley, Esq.
and Jeffrey Cole, Esq.
If to the Blair Stockholders: With a copy to:
Charles Merinoff Baer, Marks & Upham
Charmer Industries 805 Third Avenue
19-50 48th Street New York, NY 10022
Astoria NY 11015 Attn: Leon Finley, Esq.
and Jeffrey Cole, Esq.
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date telecommunicated if by
telegraph; (c) on the date of transmission with confirmed answer back if by
telex, telefax or other telegraphic method; and (d) on the date upon which the
return receipt is signed or delivery is refused or the notice is designated by
the postal authorities as not deliverable, as the case may be, if mailed.
(i) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the internal laws of the State of Florida without regard to
principles of conflict of laws.
(j) Amendments and Waivers. The Parties may mutually amend any
----------------------
provision of this Agreement at any time prior to the Effective Time with, in the
case of Blair, Todhunter and Merger Sub, the prior authorization of their
respective boards of directors; provided, however, that any amendment will be
subject to the restrictions contained in the New York Act. No amendment of any
provision of this Agreement shall be valid unless the same shall be in writing
and signed by all of the Parties; provided, however, that the Blair Stockholders
may amend the provisions of Article 9 hereof to the extent such amendment would
not affect the rights of Todhunter or Merger Sub hereunder. No waiver by any
Party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is
------------
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 71 of 110 Pages
- ------------------- ---------------------
is invalid or unenforceable, the Parties agree that the court making the
termination of invalidity or unenforceability shall have the power to reduce the
scope, duration, or area of the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provisions with 2
term or provisions that is valid and enforceable and that comes Closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed.
(l) Expenses. Each Party shall bear its own expenses in connection
--------
with the negotiation and execution of this Agreement and the implementation and
effectiveness of the Merger; provided, however, that the allocation of expenses
of Blair or the Blair Stockholders among Blair and the Blair Stockholders shall
be reasonably approved by Todhunter; and provided, further, that Blair shall
assume and pay up to $40,000 of the legal expenses incurred by Blair or the
Blair Stockholders in connection with the negotiation, execution and closing of
this Agreement, and the remaining such legal expenses of Blair or the Blair
Stockholders shall be assumed and paid by the Blair Stockholders.
Notwithstanding the foregoing, if any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the successful or prevailing Party or parties shall be entitled to
recover reasonable attorneys' fees, sales and use taxes, court costs and all
expenses even if not taxable as court costs (including, without limitation, all
such fees, taxes, costs and expenses incident to arbitration, appellate,
bankruptcy and post-judgment proceedings), incurred in that action or
proceeding, in addition to any other relief to which such Party or Parties may
be entitled. Attorneys' fees shall include, without limitation, paralegal fees,
investigative fees, administrative costs, sales and use taxes and all other
reasonable charges billed by the attorney to the prevailing Party.
(m) Construction. The language used in this Agreement will be
------------
deemed to be the language chosen by the Parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any Party.
Any reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context otherwise requires.
(n) Incorporation of Exhibits and Schedules. The Exhibits and
---------------------------------------
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
(o) Remedies Cumulative. Except as otherwise expressly provided
-------------------
herein, no remedy herein conferred upon any party is intended to be exclusive of
any other remedy, and each and every such remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 72 of 110 Pages
- -------------------- --------------------
statute or otherwise. No single or partial exercise by any party of any right,
power or remedy hereunder shall preclude any other or further exercise thereof.
(p) Dispute Resolution.
------------------
(i) Any controversy or claim arising out of or relating
to this Agreement, or the alleged breach hereof, shall be finally settled by a
board of three (3) arbitrators in Miami, Florida administered by the American
Arbitration Association under its Commercial Arbitration Rules, and judgment on
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
(ii) In connection with such arbitration proceeding,
limited civil discovery shall be permitted for the production of documents and
the taking of depositions. All discovery shall be governed by the Federal Rules
of Civil Procedure and all issues pertaining to discovery shall be determined by
the arbitrators.
(iii) Each Party shall be responsible for its respective
costs incurred in the arbitration, except that costs and fees imposed by the
arbitrators for fees and expenses shall be borne equally by the Parties.
(iv) If such a dispute arises, and it cannot be settled
through negotiation, the Parties agree first to try in good faith to settle the
dispute by mediation in Miami, Florida administered by the American Arbitration
Association under its Commercial Mediation Rules before resorting to
arbitration, litigation or other dispute resolution procedure.
9. Stockholders' Committee.
-----------------------
(a) Appointment of Stockholders' Committee. Each Blair
--------------------------------------
Stockholder hereby irrevocably constitutes and appoints Peter Baronoff, Stephen
Meresman and Jeffrey M. Cole (collectively, the "Stockholders' Committee"), or
that person or persons from time to time designated by the Stockholders'
Committee as the agent(s) of the Stockholders' Committee (such person or persons
being referred to collectively herein as the "Designated Agent"), as such Blair
Stockholder's attorneys-in-fact and agents, to do all such acts and things as
agent (and not as principal) on its behalf and to exercise for and on behalf of
such Blair Stockholder all such rights, powers and privileges conferred by or
relating to this Agreement including its Schedules and Exhibits (collectively,
the "Agreement") as fully and completely as each Blair Stockholder could on its
own behalf. This power is irrevocable and coupled with an interest, and shall
not be affected by the death, incapacity, illness, dissolution or other
inability to act of any such Blair Stockholder. The Designated Agent shall have
all of the powers and authority of the Stockholders' Committee. All references
in
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 73 of 110 Pages
- -------------------- --------------------
this Agreement to the Stockholders' Committee shall be deemed to include the
Designated Agent.
(b) Authority. Each Blair Stockholder hereby irrevocably grants the
---------
Stockholders' Committee full power and authority:
(i) to execute and deliver, on behalf of such Blair
Stockholder, and to accept delivery of, on behalf of such Blair Stockholder,
such documents as may be deemed by the Stockholders' Committee, in their sole
discretion, to be appropriate to consummate this Agreement and each of the
contemplated transactions hereunder;
(ii) to endorse and to deliver on behalf of such Blair
Stockholder, certificates representing the Blair Shares to be transferred by
such Blair Stockholder at the Closing;
(iii) to acknowledge receipt at the Closing of the Initial
Todhunter Share Component, as payment for each Blair Share sold by such Blair
Stockholder at the Closing, as payment for such Blair Shares in accordance with
the terms of the Agreement, and to certify, on behalf of such Blair Stockholder,
as to the accuracy of such of the representations and warranties as given by
such Blair Stockholder under, or pursuant to the terms of, this Agreement;
(iv) to (i) dispute or refrain from disputing, on behalf of
such Blair Stockholder, any claim made by Todhunter under this Agreement; (ii)
negotiate and compromise, on behalf of such Blair Stockholder, any dispute that
may arise under, and to exercise or refrain from exercising any remedies
available under, this Agreement; and (iii) execute, on behalf of such Blair
Stockholder, any settlement agreement, release or other document with respect to
such dispute or remedy;
(v) to waive, on behalf of such Blair Stockholder, any
closing condition contained in Section 6(b) of this Agreement or elsewhere and
to give or agree to, on behalf of such Blair Stockholder, any and all consents,
waivers, amendments or modifications, deemed by the Stockholders' Committee, in
their sole discretion, to be necessary or appropriate, under this Agreement,
and, in each case, to execute and deliver any documents that may be necessary or
appropriate in connection therewith;
(vi) to execute, deliver and perform the Escrow Agreement, and
to enforce the rights of each Blair Stockholder thereunder;
(vii) to enforce, on behalf of such Blair Stockholder, any
claim against Todhunter arising under this Agreement;
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 74 of 110 Pages
- -------------------- --------------------
(viii) to deliver on behalf of each Blair Stockholder the tax
identification or social security number and such other information as is
reasonably required to enable Todhunter to satisfy its reporting requirements
under the Code and the regulations of the IRS promulgated thereunder;
(ix) to engage attorneys, accountants and agents at the
expense of Blair Stockholders;
(x) to amend this Agreement (other than this Article 9) and
(xi) to give such instructions and to take such action or
refrain from taking such action, on behalf of such Blair Stockholder, as the
Stockholders' Committee deems, in their sole discretion, necessary or
appropriate to carry out the provisions of this Agreement.
(c) Reliance. Each Blair Stockholder hereby agrees that:
--------
(i) In all matters in which action by the Stockholders'
Committee is permitted, a majority of the members of the Committee is authorized
to act on behalf of Blair Stockholders notwithstanding any dispute or
disagreement among the members of the Stockholders' Committee, or between any
Blair Stockholder and the Stockholders' Committee, and Todhunter shall be
entitled to, and shall rely on any and all action taken by the Stockholders'
Committee, a majority of the members thereof or the Designated Agent, under this
Agreement without any liability to, or obligation to inquire of, any of the
Blair Stockholders or the other members of the Stockholders' Committee,
notwithstanding any knowledge on the part of Todhunter of any such dispute or
disagreement;
(ii) notice to any member of the Stockholders' Committee,
delivered in the manner provided in Section 8(h), shall be deemed to be notice
to all of the members of the Stockholders' Committee and to all the Blair
Stockholders for the purposes of this Agreement;
(iii) the power and authority of the Stockholders' Committee,
as described in this Agreement, shall continue in force until all rights and
obligations of the Blair Stockholders under this Agreement shall have
terminated, expired or been fully performed;
(iv) subject to Section (e) below, a majority in interest of
the Blair Stockholders shall have the right, exercisable from time to time upon
written notice delivered to the Stockholders' Committee and Todhunter: to remove
any member or members of the Stockholders' Committee, with or without cause; to
appoint a Blair Stockholder, or such other person as may be agreed to by the
Blair Stockholders, to fill a
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 75 of 110 Pages
- -------------------- --------------------
vacancy caused by the death, resignation or removal of a member of the
Stockholders' Committee; and to appoint to fill the vacancies created thereby;
(v) subject to Section (e) below, if any member of the
Stockholders' Committee resigns or is removed or otherwise ceases to function in
his capacity as such for any reason whatsoever, and no successor is appointed
pursuant to subparagraph (iv) above within thirty (30) days, the Stockholders'
Committee shall consist solely of the remaining members of the Stockholders'
Committee. If, as a result of such resignation, removal or cessation, there are
no remaining members of the Stockholders' Committee and no successor is
appointed by a majority in interest of the Blair Stockholders within thirty (30)
days, then Todhunter shall have the right to appoint a Blair Stockholder to act
as the sole member of the Stockholders' Committee, to serve in the manner
described in this Agreement; and
(vi) there shall at no time be more than three (3) members
of the Stockholders' Committee.
(d) Actions by Blair Stockholders. Each Blair Stockholder agrees
-----------------------------
that, notwithstanding the foregoing, at the request of the Stockholders'
Committee, such Blair Stockholder shall take all actions necessary or advisable
to consummate the transactions contemplated hereunder (including, without
limitation, delivery of such Blair Stockholder's Blair Shares and acceptance of
the Todhunter Shares therefor) individually on such Blair Stockholder's own
behalf, and delivery of any other documents required of Blair Stockholders
pursuant to the terms hereof.
(e) Additional Baronoff Protective Provisions. Peter Baronoff, and
-----------------------------------------
his heirs, successors and lawful representatives shall have the right to
designate one (1) of the members of the Stockholders' Committee (the "Baronoff
Designee") (it being understood that Peter Baronoff himself is the initial
Baronoff Designee);
(f) Indemnification of Stockholders' Committee. Each Blair
------------------------------------------
Stockholder shall, severally indemnify each member of the Stockholders'
Committee against any claims or losses (except such as result from such member's
gross negligence or willful misconduct) that such member may suffer or incur in
connection with any action or omission of such member as a member of the
Stockholders' Committee. Each Blair Stockholder shall bear its pro rata portion
of such claims or losses. No member of the Stockholders' Committee shall be
liable to any Blair Stockholder with respect to any action or omission taken or
omitted to be taken by the Stockholders' Committee pursuant to this Article 9,
except for such member's gross negligence or willful misconduct.
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 76 of 110 Pages
- -------------------- --------------------
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first written above.
TODHUNTER INTERNATIONAL, INC.
By:/s/ A. Kenneth Pincourt, Jr.
---------------------------------------
A. Kenneth Pincourt, Jr.,
President
TODHUNTER ACQUISITION, INC.
By:/s/ A. Kenneth Pincourt, Jr.
---------------------------------------
A. Kenneth Pincourt, Jr.,
President
BLAIR IMPORTERS, LTD.
By:/s/ Peter Baronoff
----------------------------------------
Name: Peter Baronoff
Title: President
BLAIR STOCKHOLDERS:
/s/ Herman I. Merinoff /s/ Nancy Drucker Stone
- --------------------------- -------------------------
Herman I. Merinoff Nancy Drucker Stone
/s/ Patricia Drucker North /s/ Steven Drucker
- --------------------------- -------------------------
Patricia Drucker North Steven Drucker
/s/ Linda Merinoff /s/ Barbara Merinoff
- --------------------------- -------------------------
Linda Merinoff Barbara Merinoff
<PAGE>
SCHEDULE 13D
- ------------------- --------------------
CUSIP No. 0008890501 Page 77 of 110 Pages
- ------------------- --------------------
/s/ Charles Merinoff /s/ Charles Merinoff
- ----------------------------- ------------------------------------
Charles Merinoff, As Charles Merinoff, as Custodian for
Custodian for Brian David Jacob Paul Onufrychuk
Onufrychuk
/s/ Charles Merinoff /s/ Spencer Merinoff
- ------------------------------ ---------------------------------
Charles Merinoff, As Spencer Merinoff,
Custodian for Zachary
Onufrychuk
/s/ Spencer Merinoff /s/ Spencer Merinoff
- ------------------------------ ----------------------------------
Spencer Merinoff, As Spencer Merinoff, as Custodian for
Custodian for Leslie Merinoff Andrew Merinoff
Onufrychuk
/s/ Abby C. Crisses /s/ Stephen Meresman
- ------------------------------ -----------------------------------
Abby C. Crisses Stephen Meresman
/s/ Peter Baronoff /s/ Peter Baronoff
- ------------------------------ -----------------------------------
Peter Baronoff Peter Baronoff, As Custodian for
Shanna Rose Baronoff
/s/ Peter Baronoff /s/ Bruce Levine
- ------------------------------ ----------------------------------
Peter Baronoff, As Custodian Bruce Levine
for Jillian Ray Baronoff
/s/ Jack Battipaglia
- ------------------------------
Jack Battipaglia, Jr.
CHARLES MERINOFF TRUST CATHY ELLEN ONUFRYCHUK
FAMILY TRUST
By:/s/ Spencer Merinoff By:/s/ Charles Merinoff
- ------------------------------ -----------------------------------
Spencer Merinoff Charles Merinoff
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 78 of 110 Pages
- -------------------- --------------------
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Certificate of Merger
Exhibit B Blair Disclosure Schedule
Exhibit C Unanimous Written Consent of the Blair Stockholders
Exhibit D Todhunter Disclosure Schedule
Exhibit E Written Consent of Sole Shareholder of Merger Sub
Schedule 3(a) Certificate of Incorporation and Bylaws of Blair
Schedule 4(a) Certificate of Incorporation and Bylaws of Todhunter and of
Merger Sub
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 79 of 110 Pages
- -------------------- --------------------
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of April 29,
1994, by and among Todhunter International, Inc., Todhunter Acquisition, Inc.,
Blair Importers, Ltd. and the shareholders of Blair Importers, Ltd. All of such
parties are collectively referred to hereafter as the "Parties".
The Parties are parties to the Agreement and Plan of Merger, entered into
as of April 22, 1994 (together with all the Exhibits and Schedules thereto,
collectively, the "Agreement").
The Parties mutually desire to amend the Agreement to add 4 days to the
date previously established for the delivery by each party to the other of
Disclosure Schedules and Exhibits; and, further, to revise as set forth below
the obligation of Blair to provide unaudited financial statements in accordance
with the Agreement. Accordingly, the Parties hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined herein, terms defined
-----------
in the Agreement are used herein as defined therein.
Section 2. AMENDMENT. The Parties hereby agree to amend the Agreement as
---------
follows:
A. The date in Section 5(s) of the Agreement shall be amended to read
"May 6, 1994" rather than "May 2, 1994"; and
B. Notwithstanding the requirements of the first sentence of Section
5(a) of the Agreement, Blair's obligations in respect of
<PAGE>
SCHEDULE 13D
- ------------------- --------------------
CUSIP No. 0008890501 Page 80 of 110 Pages
- ------------------- --------------------
delivering unaudited financial statements of Blair to Todhunter shall be limited
to delivering to Todhunter, on or before May 9, 1994, its unaudited financial
statements for the four months ended April 30, 1994, including its unaudited
balance sheets and statements of income, changes in stockholders' equity and
cash flows (including related notes and schedules) for such fiscal period.
Section 3. MISCELLANEOUS. Except as herein provided, the Agreement shall
-------------
remain unchanged and in full force and effect. This First Amendment shall be
governed by, and construed in accordance with, the law of the State of Florida.
This First Amendment may be executed in counterparts.
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this First Amendment as of the date first written above.
TODHUNTER INTERNATIONAL, INC. TODHUNTER ACQUISITION, INC.
By: /s/ A. Kenneth Pincourt, Jr. By: /s/ A. Kenneth Pincourt, Jr.
----------------------------- ---------------------------------------
A. Kenneth Pincourt, Jr. A. Kenneth Pincourt, Jr.
President President
BLAIR IMPORTERS. LTD. BLAIR STOCKHOLDERS, By the
Stockholders Committee, pursuant to the
terms of Section 9(b)(x) of the Agreement
By: /s/ Peter Baronoff
----------------------------
Peter Baronoff
President
/s/ Peter Baronoff
------------------------------------------
Peter Baronoff
/s/ Stephen Meresman
------------------------------------------
Stephen Meresman
/s/ Jeffrey M. Cole
-------------------------------------------
Jeffrey M. Cole
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 81 of 110 Pages
- -------------------- --------------------
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of May 23, 1994,
by and among Todhunter International, Inc., Todhunter Acquisition, Inc., Blair
Importers, Ltd. and the shareholders of Blair Importers, Ltd. All of such
parties are collectively referred to hereafter as the "Parties".
The Parties are parties to the Agreement and Plan of Merger, entered into
as of April 22, 1994 (together with all the Exhibits and Schedules thereto,
collectively and as amended to date, the "Agreement").
The Parties mutually desire to amend the Agreement to add 14 days to the
date previously established as the date by which Todhunter was deemed to have
completed its due diligence with respect to Blair; and, further, to revise
accordingly certain other dates in the Agreement as set forth herein.
Accordingly, the Parties hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined herein, terms defined
-----------
in the Agreement are used herein as defined therein.
Section 2. AMENDMENTS. The Parties hereby agree to amend the Agreement as
----------
follows:
A. The date in Section 6(a)(xvii)(i) of the Agreement shall be
amended to read "June 15, 1994" rather than "May 31, 1994"; and
B. The date in Section 7(a)(ii) and in Section 7(a)(iv)
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 82 of 110 Pages
- -------------------- --------------------
shall be amended, in each case, to read "June 29, 1994" rather than "June 15,
1994".
Section 3. MISCELLANEOUS. Except as herein provided, the Agreement shall
-------------
remain unchanged and in full force and effect. This Second Amendment shall be
governed by, and construed in accordance with, the law of the State of Florida.
This Second Amendment may be executed in counterparts.
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this Second Amendment as of the date first written above.
TODHUNTER INTERNATIONAL, INC. TODHUNTER ACQUISITION, INC.
By: /s/ A. Kenneth Pincourt, Jr. By: /s/ A. Kenneth Pincourt, Jr.
----------------------------- -----------------------------
A. Kenneth Pincourt, Jr. A. Kenneth Pincourt, Jr.
President President
BLAIR IMPORTERS, LTD. BLAIR STOCKHOLDERS, By the
Stockholders Committee, pursuant to the
terms of Section 9(b)(x) of the Agreement
By:___________________________
Name:
Title: ____________________________________
Peter Baronoff
____________________________________
Stephen Meresman
____________________________________
Jeffrey M. Cole
<PAGE>
SCHEDULE 13D
- ------------------- -------------------
CUSIP No. 0008890501 Page 83 of 110 Pages
- ------------------- -------------------
THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of June 14, 1994,
by and among Todhunter International, Inc., Todhunter Acquisition, Inc., Blair
Importers, Ltd. and the shareholders of Blair Importers, Ltd. All of such
parties are collectively referred to hereafter as the "Parties".
The Parties are parties to the Agreement and Plan of Merger, entered into
as of April 22, 1994 (together with all the Exhibits and Schedules thereto,
collectively and as amended to date, the "Agreement").
The Parties mutually desire to amend the Agreement to add 7 days to the
date previously established as the date by which Todhunter was deemed to have
completed its due diligence with respect to Blair. Accordingly, the Parties
hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined herein, terms defined
-----------
in the Agreement are used herein as defined therein.
Section 2. AMENDMENTs. The Parties hereby agree to amend the Agreement as
----------
follows: The date in Section 6(a)(xvii)(i) of the Agreement shall be amended to
read "June 22, 1994" rather than "June 15, 1994".
Section 3. MISCELLANEOUS. Except as herein provided, the Agreement shall
-------------
remain unchanged and in full force and effect. This Third Amendment shall be
governed by, and construed in accordance
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 84 of 110 Pages
- -------------------- --------------------
with, the law of the State of Florida. This Third Amendment may be executed in
counterparts.
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this Third Amendment as of the date first written above.
TODHUNTER INTERNATIONAL, INC. TODHUNTER ACQUISITION, INC.
By: /s/ A. Kenneth Pincourt, Jr. By: /s/ A. Kenneth Pincourt, Jr.
----------------------------- -----------------------------
A. Kenneth Pincourt, Jr. A. Kenneth Pincourt, Jr.
President President
BLAIR IMPORTERS. LTD. BLAIR STOCKHOLDERS, By the
Stockholders Committee, pursuant to the terms
of Section 9(b)(x) of the Agreement
By: /s/ Peter Baronoff
----------------------------
Peter Baronoff
President /s/ Peter Baronoff
----------------------------------
Peter Baronoff
/s/ Stephen Meresman
----------------------------------
Stephen Meresman
/s/ Jeffrey M. Cole
-----------------------------------
Jeffrey M. Cole
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 85 of 110 Pages
- -------------------- --------------------
FOURTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FOURTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of June 17,
1994, by and among Todhunter International, Inc., Todhunter Acquisition, Inc.,
Blair Importers, Ltd. and the shareholders of Blair Importers, Ltd. All of such
parties are collectively referred to hereafter as the "Parties".
The Parties are parties to the Agreement and Plan of Merger, entered into
as of April 22, 1994 (together with all the Exhibits and schedules thereto,
collectively and as amended to date, the "Agreement").
The Parties mutually desire to amend the Agreement to add 7 days to the
date previously established as the date by which Todhunter was deemed to have
completed its due diligence with respect to Blair. Accordingly, the Parties
hereby agree as follows:
Section 1. Definitions. Except as otherwise defined herein, terms
-----------
defined in the Agreement are used herein as defined therein.
Section 2. Amendments. The Parties hereby agree to amend the Agreement
----------
as follows: The date in Section 6(a)(xvii)(i) of the Agreement shall be amended
to read "June 29, 1994" rather than "June 22, 1994".
Section 3. Miscellaneous. Except as herein provided, the Agreement
-------------
shall remain unchanged and in full force and effect. This Fourth Amendment
shall be governed by, and construed in accordance with, the law
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 86 of 110 Pages
- -------------------- --------------------
of the State of Florida. This Fourth Amendment may be executed in counterparts.
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this Fourth Amendment as of the date first written above.
<TABLE>
<S> <C>
TODHUNTER INTERNATIONAL, INC. TODHUNTER ACQUISITION, INC.
By:\s\A. Kenneth Pincourt, Jr. By:\s\A. Kenneth Pincourt, Jr.
---------------------------- -------------------------------
Name: A. Kenneth Pincourt, Jr. Name: A. Kenneth Pincourt, Jr.
Title: President Title: President
BLAIR IMPORTERS, LTD. BLAIR STOCKHOLDERS, By the
Stockholders Committee, pursuant
to the terms of Section 9(b)(x) of
the Agreement
By:\s\Peter Baronoff
-------------------------------
Name: Peter Baronoff
Title: President \s\Peter Baronoff
--------------------------------------
\s\Stephen Meresman
--------------------------------------
\s\Jeffrey M. Cole
--------------------------------------
</TABLE>
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 87 of 110 Pages
- -------------------- --------------------
FIFTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIFTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of June 28, 1994,
by and among Todhunter International, Inc., Todhunter Acquisition, Inc., Blair
Importers, Ltd. and the shareholders of Blair Importers, Ltd. All of such
parties are collectively referred to hereafter as the "Parties".
The Parties are parties to the Agreement and Plan of Merger, entered into
as of April 22, 1994 (together with all the Exhibits and Schedules thereto,
collectively and as amended to date, the "Agreement").
The Parties mutually desire to amend the Agreement to add 6 days to the
date previously established as the date by which Todhunter was deemed to have
completed its due diligence with respect to Blair; and, further, to revise
accordingly certain other dates in the Agreement as set forth herein.
Accordingly, the Parties hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined herein, terms defined
-----------
in the Agreement are used herein as defined therein.
Section 2. AMENDMENTs. The Parties hereby agree to amend the Agreement as
----------
follows:
A. The date in Section 6(a)(xvii)(i) of the Agreement shall be
amended to read "July 5, 1994" rather than "June 29, 1994"; and
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 88 of 110 Pages
- -------------------- --------------------
B. The date in Section 7(a)(ii) and in Section 7(a)(iv) shall be
amended, in each case, to read "July 5, 1994" rather than "June 29, 1994".
Section 3. MISCELLANEOUS. Except as herein provided, the Agreement shall
-------------
remain unchanged and in full force and effect. This Fifth Amendment shall be
governed by, and construed in accordance with, the law of the State of Florida.
This Fifth Amendment may be executed in counterparts.
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this Fifth Amendment as of the date first written above.
TODHUNTER INTERNATIONAL, INC. TODHUNTER ACQUISITION, INC.
By: /s/ Joseph A. Loveland, Jr. By: /s/ Joseph Al Loveland, Jr.
---------------------------- ----------------------------
Joseph A. Loveland, Jr. Joseph A. Loveland, Jr.
Vice President Vice President
BLAIR IMPORTERS. LTD. BLAIR STOCKHOLDERS, By the
Stockholders Committee, pursuant to
the terms of Section 9(b)(x) of the
Agreement
By: /s/ Peter Baronoff
----------------------------
Peter Baronoff
President /s/ Peter Baronoff
-------------------
Peter Baronoff
/s/ Stephen Meresman
---------------------
Stephen Meresman
/s/ Jeffrey M. Cole
--------------------
Jeffrey M. Cole
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 89 of 110 Pages
- -------------------- --------------------
SIXTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER
SIXTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of July 5, 1994,
by and among Todhunter International, Inc., Todhunter Acquisition, Inc., Blair
Importers, Ltd. and the shareholders of Blair Importers, Ltd. All of such
parties are collectively referred to hereafter as the "Parties".
The Parties are parties to the Agreement and Plan of Merger, entered into
as of April 22, 1994 (together with all the Exhibits and Schedules thereto,
collectively and as amended to date, the "Agreement").
The Parties mutually desire to amend the Agreement to add 3 days to the
date previously established as the date by which Todhunter was deemed to have
completed its due diligence with respect to Blair; and, further, to revise
accordingly certain other dates in the Agreement as set forth herein.
Accordingly, the Parties hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined herein, terms defined
-----------
in the Agreement are used herein as defined therein.
Section 2. AMENDMENTs. The Parties hereby agree to amend the Agreement as
----------
follows:
A. The date in Section 6(a)(xvii)(i) of the Agreement shall be
amended to read "July 8, 1994" rather than "July 5, 1994"; and
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 90 of 110 Pages
- -------------------- --------------------
B. The date in Section 7(a)(ii) and in Section 7(a)(iv) shall be
amended, in each case, to read "July 8, 1994" rather than "July 5, 1994".
Section 3. MISCELLANEOUS. Except as herein provided, the Agreement shall
-------------
remain unchanged and in full force and effect. This Sixth Amendment shall be
governed by, and construed in accordance with, the law of the State of Florida.
This Sixth Amendment may be executed in counterparts.
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this Sixth Amendment as of the date first written above.
TODHUNTER INTERNATIONAL, INC. TODHUNTER ACQUISITION, INC.
By: /s/ A. Kenneth Pincourt, Jr. By: /s/ A. Kenneth Pincourt, Jr.
----------------------------- -----------------------------
A. Kenneth Pincourt, Jr. A. Kenneth Pincourt, Jr.
President President
BLAIR IMPORTERS. LTD. BLAIR STOCKHOLDERS, By the
Stockholders Committee, pursuant to
the terms of Section 9(b)(x) of the
Agreement
By: /s/ Peter Baronoff
----------------------------
Peter Baronoff
President /s/ Peter Baronoff
-------------------
Peter Baronoff
/s/ Stephen Meresman
---------------------
Stephen Meresman
/s/ Jeffrey M. Cole
--------------------
Jeffrey M. Cole
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 91 of 110 Pages
- -------------------- --------------------
SEVENTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER
SEVENTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of July 7,
1994, by and among Todhunter International, Inc., Todhunter Acquisition, Inc.,
Blair Importers, Ltd. and the shareholders of Blair Importers, Ltd. All of such
parties are collectively referred to hereafter as the "Parties".
The Parties are parties to the Agreement and Plan of Merger, entered into
as of April 22, 1994 (together with all the Exhibits and Schedules thereto,
collectively and as amended to date, the "Agreement").
The Parties mutually desire to amend the Agreement to add 17 days to the
date previously established as the date by which Todhunter was deemed to have
completed its due diligence with respect to Blair; and, further, to revise
accordingly certain other dates in the Agreement as set forth herein.
Accordingly, the Parties hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined herein, terms defined
-----------
in the Agreement are used herein as defined therein.
Section 2. AMENDMENTS. The Parties hereby agree to amend the Agreement as
----------
follows:
A. The date in Section 6(a)(xvii)(i) of the Agreement shall be
amended to read "July 25, 1994" rather than "July 8, 1994"; and
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 92 of 110 Pages
- -------------------- --------------------
B. The date in Section 7(a)(ii) and in Section 7(a)(iv) shall be
amended, in each case, to read "July 25, 1994" rather than "July 8, 1994".
Section 3. MISCELLANEOUS. Except as herein provided, the Agreement shall
-------------
remain unchanged and in full force and effect. This Seventh Amendment shall be
governed by, and construed in accordance with, the law of the State of Florida.
This Seventh Amendment may be executed in counterparts.
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this Seventh Amendment as of the date first written above.
TODHUNTER INTERNATIONAL, INC. TODHUNTER ACQUISITION, INC.
By: /s/ A. Kenneth Pincourt, Jr. By: /s/ A. Kenneth Pincourt, Jr.
----------------------------- -----------------------------
A. Kenneth Pincourt, Jr. A. Kenneth Pincourt, Jr.
President President
BLAIR IMPORTERS. LTD. BLAIR STOCKHOLDERS, By the
Stockholders Committee, pursuant to
the terms of Section 9(b)(x) of the
Agreement
By: /s/ Peter Baronoff
----------------------------
Peter Baronoff
President /s/ Peter Baronoff
-------------------
Peter Baronoff
/s/ Stephen Meresman
---------------------
Stephen Meresman
/s/ Jeffrey M. Cole
--------------------
Jeffrey M. Cole
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 93 of 110 Pages
- -------------------- --------------------
EIGHTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER
EIGHTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of July 22,
1994, by and among Todhunter International, Inc., Todhunter Acquisition, Inc.,
Blair Importers, Ltd. and the shareholders of Blair Importers, Ltd. All of such
parties are collectively referred to hereafter as the "Parties".
The Parties are parties to the Agreement and Plan of Merger, entered into
as of April 22, 1994 (together with all the Exhibits and Schedules thereto,
collectively and as amended to date, the "Agreement").
The Parties mutually desire to amend the Agreement to add 11 days to the
date previously established as the date by which Todhunter was deemed to have
completed its due diligence with respect to Blair; and, further, to revise
accordingly certain other dates in the Agreement as set forth herein.
Accordingly, the Parties hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined herein, terms defined
-----------
in the Agreement are used herein as defined therein.
Section 2. AMENDMENTS. The Parties hereby agree to amend the Agreement as
----------
follows:
A. The date in Section 6(a)(xvii)(i) of the Agreement shall be
amended to read "August 5, 1994" rather than "July 25, 1994"; and
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 94 of 110 Pages
- -------------------- --------------------
B. The date in Section 7(a)(ii) and in Section 7(a)(iv) shall be
amended, in each case, to read "August 5, 1994" rather than "July 25, 1994".
Section 3. MISCELLANEOUS. Except as herein provided, the Agreement shall
-------------
remain unchanged and in full force and effect. This Eighth Amendment shall be
governed by, and construed in accordance with, the law of the State of Florida.
This Eighth Amendment may be executed in counterparts.
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this Eighth Amendment as of the date first written above.
TODHUNTER INTERNATIONAL, INC. TODHUNTER ACQUISITION, INC.
By: /s/ A. Kenneth Pincourt, Jr. By: /s/ A. Kenneth Pincourt, Jr.
----------------------------- -----------------------------
A. Kenneth Pincourt, Jr. A. Kenneth Pincourt, Jr.
President President
BLAIR IMPORTERS. LTD. BLAIR STOCKHOLDERS, By the
Stockholders Committee, pursuant to
the terms of Section 9(b)(x) of the
Agreement
By: /s/ Peter Baronoff
----------------------------
Peter Baronoff
President /s/ Peter Baronoff
-------------------
Peter Baronoff
/s/ Stephen Meresman
---------------------
Stephen Meresman
/s/ Jeffrey M. Cole
--------------------
Jeffrey M. Cole
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 95 of 110 Pages
- -------------------- --------------------
NINTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER
NINTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of July 29, 1994,
by and among Todhunter International, Inc., Todhunter Acquisition, Inc., Blair
Importers, Ltd. and the shareholders of Blair Importers, Ltd. All of such
parties are collectively referred to hereafter as the "Parties."
The Parties are parties to the Agreement and Plan of Merger, entered into
as of April 22, 1994 (together with all the Exhibits and Schedules thereto,
collectively and as amended to date, the "Agreement").
The Parties mutually desire to amend the Agreement to reflect the
obligation of the Blair Stockholders to make additional contributions of paid-
in-capital, and to amend the conditions precedent to the Agreement and to
reflect certain other agreements. Accordingly, the Parties hereby agree as
follows:
Section 1. Definitions. Except as otherwise defined herein, terms
-----------
defined in the Agreement are used herein as defined therein.
Section 2. Amendments. The Parties hereby agree to amend the Agreement
----------
as follows:
A. Section 5(a) of the Agreement shall be amended by adding the
following new paragraph at the end of such section:
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 96 of 110 Pages
- -------------------- --------------------
Additionally, the Blair Stockholders, on behalf of Blair, shall deliver to
Todhunter, within 45 days of the Closing, a copy of Blair's audited balance
sheet and statement of income, changes in stockholder's equity, and cash
flows for the period commencing January 1, 1994, and ending on the date of
the Closing (including related notes and schedules).
B. The cross-reference in Section 6(a)(i) of the Agreement to
"Section 6(b)(iii)" shall be amended to read "Section 6(b)(i)";
C. Section 6(a)(ii) of the Agreement shall be amended by adding the
following additional term to the end of such Section 6(a)(ii):
"The Blair Stockholders shall provide Todhunter with evidence satisfactory
to Todhunter that, at a point in time after April 22, 1994, but prior to
the Closing, the Blair Stockholders contributed to Blair an amount equal to
$410,000, as additional paid-in-capital, corresponding to a $410,000
decrease in the amounts due from Blair to Charmer Industries, Inc. (and to
be reimbursed to Charmer pro rata by the Blair Stockholders)."
D. Section 6(i)(iii) and Section 6(b)(i) of the Agreement shall each
be deleted and replaced, in each case, with the following revised provision:
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 97 of 110 Pages
- -------------------- --------------------
"(A) Todhunter or Blair shall, at the Closing, have obtained at least
$4,200,000 of net proceeds from the financing contemplated by Section
6(a)(i); (B) an aggregate amount equal to (i) $1,800,000, less (ii) the
amount by which the net proceeds to Todhunter or Blair from the financing
contemplated by Section 6(a)(i) is less than $5,000,000 (the "Loan
Shortfall") shall have been paid by Todhunter or Blair to Charmer
Industries, Inc., Susan Merinoff and the Merinoff Family Limited
Partnership (the "Merinoff/Charmer Creditors") in reduction of Blair's
indebtedness to the Merinoff/Charmer Creditors; (C) $3,500,000 shall have
been paid by Todhunter or Blair to Chemical Bank in repayment of Blair's
existing indebtedness to Chemical Bank; and (D) the Blair Stockholders
shall have made a $1 million loan to Blair (the "Blair Stockholder Loan")
at a point in time after April 22, 1994, but prior to the Closing."
E. Section 6(a)(iv) and Section 6(b)(ii) of the Agreement shall each
be deleted and replaced, in each case, with the following new provision:
"The indebtedness of Blair to Charmer Industries, Inc., remaining
after the payments contemplated by Sections 6(a)(iii) and 6(b)(i), and the
indebtedness of Blair
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 98 of 110 Pages
- -------------------- --------------------
to the Blair Stockholders in respect of the Blair Stockholder Loan, shall
not exceed $4.2 million plus (i) the Loan Shortfall, and (ii) cash advances
by Charmer Industries, Inc. to Blair after July 25, 1994 (the "July
Advances"), not exceeding $200,000, and shall be documented, collectively,
in the form of the Guaranteed Subordinated Note Agreement attached as
Exhibit F to the Ninth Amendment to this Agreement (adjusted to reflect the
principal amount of such indebtedness outstanding on the date of execution
thereof, but not to exceed $4.2 million plus (i) the Loan Shortfall, and
(ii) the July Advances, not to exceed $200,000) and each of Blair,
Todhunter, Charmer Industries, Inc., and the Stockholders Committee, as
indicated, shall have executed and delivered to the other such Guaranteed
Subordinated Note Agreement."
Section 3. Miscellaneous. Except as herein provided, the Agreement
-------------
shall remain unchanged and in full force and effect. This Ninth Amendment shall
be governed by, and construed in accordance with, the law of the State of
Florida. This Ninth Amendment may be executed in counterparts.
<PAGE>
SCHEDULE 13D
- -------------------- --------------------
CUSIP No. 0008890501 Page 99 of 110 Pages
- -------------------- --------------------
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this Ninth Amendment as of the date first written above.
TODHUNTER INTERNATIONAL, INC. TODHUNTER ACQUISITION, INC.
By:/s/ A. Kenneth Pincourt, Jr. By:/s/ A. Kenneth Pincourt, Jr.
---------------------------- --------------------------------
A.Kenneth Pincourt, Jr. A. Kenneth Pincourt, Jr.
President President
BLAIR IMPORTERS, LTD. BLAIR STOCKHOLDERS, by the
Stockholders Committee, pursuant to
the terms of Section 9(b)(x) of the
Agreement
By:/s/ Peter Baronoff
-----------------------------
Peter Baronoff
President /s/ Peter Baronoff
------------------------------------
Peter Baronoff
/s/ Stephen Meresman
------------------------------------
Stephen Meresman
/s/ Jeffrey M. Cole
------------------------------------
Jeffrey M. Cole
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 100 of 110 Pages
- -------------------- ---------------------
EXHIBIT 3
ESCROW AGREEMENT
----------------
THIS ESCROW AGREEMENT (this "Agreement"), made as of this 5th day of
August, 1994 by and among TODHUNTER INTERNATIONAL, INC. ("TI"), a Delaware
corporation, BLAIR IMPORTERS, LTD. ("Blair"), a New York corporation, and the
persons who, prior to the Closing referred to below, are the shareholders of
Blair (the "Shareholders"), by their SHAREHOLDERS' COMMITTEE, duly appointed
(the "Shareholders' Committee"), and FIRST UNION NATIONAL BANK OF FLORIDA, a
national banking association (the "Escrow Agent").
W I T N E S S E T H :
-------------------
WHEREAS, TI, Blair and the Shareholders are parties to that certain
Agreement and Plan of Merger dated as of April 22, 1994 (as amended, the "Merger
Agreement") pursuant to which TI has agreed to purchase all of the capital stock
of Blair from the Shareholders; and
WHEREAS, pursuant to Section 5(p) of the Merger Agreement, the
Shareholders have agreed to indemnify TI for certain potential Damages (as such
term is defined in the Merger Agreement), and to secure this obligation of the
Shareholders, the parties to the Merger Agreement have agreed that the
Shareholders will place certain shares of TI Common Stock (the "Escrow Shares"),
along with a cash fund (the "Escrow Funds" and together with the Escrowed
Shares, the "Escrow Amount") in escrow with Escrow Agent to be used for payment
of any eligible Damages, pursuant to the terms of Section 5(p) of the Merger
Agreement;
WHEREAS, Escrow Agent is willing to hold the Escrow Amount in escrow
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
hereby agree as follows:
1. Receipt. Concurrently with the Closing, as defined under the
-------
Merger Agreement, or, in the case of the Escrow Shares, as promptly thereafter
as the same shall have been issued by TI's transfer agent, TI shall deliver to
the Shareholders, and the Shareholders shall deliver to Escrow Agent the Escrow
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 101 of 110 Pages
- -------------------- ---------------------
Amount. The exact contents of the Escrow Amount on the date hereof are as set
forth on Exhibit A attached hereto. Receipt of the portion of the Escrow Amount
as described on Exhibit A by the Escrow Agent is hereby acknowledged by the
Escrow Agent's execution hereof.
2. (a) Deposit. Escrow Agent shall promptly deposit and maintain
-------
the Escrow Funds in an escrow deposit account (the "Bank Account") to be
established internally in a commercial demand deposit account with no interest
paid and no bank fees charged at Escrow Agent's bank by Escrow Agent bearing
interest at such rate or rates as is paid by Escrow Agent on deposits of similar
funds maintained from time to time by Escrow Agent's commercial depositors. TI
and the Shareholders hereby acknowledge that the Escrow Funds as so deposited
shall accrue interest in the Bank Account for the benefit of the Shareholders
subject to joint notice as provided in (S) 3(a) that such funds are to be
disbursed to TI. The Shareholders shall be responsible for the payment of all
taxes relating to such interest. Without limiting the generality of any other
provision of this Escrow Agreement, (a) except for the maintenance of the Escrow
Funds in a demand deposit account as provided herein, Escrow Agent shall have no
responsibility to make any investment of all or any portion of the Escrow Funds
and neither TI nor any of the Shareholders shall be entitled to direct the
Escrow Agent to make any investment thereof, and (b) except for its agreement to
hold and distribute the Escrow Shares as provided herein, the Escrow Agent
assumes no responsibility with respect to the Escrow Shares, or any of them,
including, without limitation, any duty to vote, provide any consent or to
exercise any rights or options with respect to any of the Escrow Shares.
(b) The Escrow Agent shall place into a secure location and hold there
the Escrow Shares and shall provide to the Shareholders' Committee and to TI a
receipt for all Escrow Shares as they are received.
3. (a) Release from Escrow. Upon receipt of an original written
-------------------
notice executed jointly by TI and the Shareholders' Committee instructing the
Escrow Agent to pay to TI eligible Damages as designated mutually by TI and the
Shareholders' Committee in such notice (such notice to be in form and substance
satisfactory to the Escrow Agent), Escrow Agent shall pay to TI such designated
amount, in Escrow Funds and/or Escrow Shares, as so instructed. It is
understood and agreed that the certificates evidencing the Escrow Shares may not
from time to time represent the proper number of shares to be distributed to the
parties as provided herein. In such event, the joint notice shall provide that
Escrow Agent is to deliver
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 102 of 110 Pages
- -------------------- ---------------------
the certificate evidencing the Escrow Shares to TI's transfer agent identified
in such notice for reissuance in denominations which are sufficient to
distribute the proper numbers of shares to the parties as directed by such
notice. The Escrow Agent shall have no responsibility whatsoever with respect
to any such Escrow Shares, or the certificates evidencing the same, sent to TI's
transfer agent as directed by such joint notice; provided, however, that the
Escrow Agent agrees to hold any such Escrow Shares returned to it, on the terms
of, and subject to further distribution as provided in, this Escrow Agreement.
Escrow Agent shall continue to make such payments against each such notice until
the earliest of (i) 24 months from the date hereof (the "Termination Date") or
(ii) the expenditure of the entire Escrow Amount pursuant to this Section 3,
whereupon the Escrow Agent shall have no further responsibility under this
Escrow Agreement.
4. Balance. TI and the Shareholders agree that any Escrow Shares or
-------
Escrow Funds remaining in the Escrow Amount on the Termination Date shall be
delivered/paid-over promptly by Escrow Agent to the Shareholders, in accordance
with written instructions from the Shareholders' Committee except to the extent
that any such Escrow Amount items are the subject of then outstanding claims or
disputes.
5. Disputes. In the event of any dispute among TI and the
--------
Shareholders, or any of them, with respect to this Escrow Agreement and/or all
or any portion of the Escrow Amount, Escrow Agent shall not be required to, and
shall not, comply with any notices, claims or demands from TI and the
Shareholders, or any of them, as long as any such dispute may continue, and
Escrow Agent shall make no delivery, disbursement or other disposition of all or
any portion of the Escrow Amount (other than to the registry of a court of
competent jurisdiction or as otherwise may be directed by a court of competent
jurisdiction) until it has received joint instructions signed by TI and the
Shareholders' Committee or a final order, decree or judgment from a court of
competent jurisdiction or a final written decision in an arbitral proceeding
directing disposition of the Escrow Amount. Escrow Agent shall not be deemed to
have knowledge of any such dispute unless and until it shall have received
notice in writing thereof from TI and/or any of the Shareholders.
6. Interest Included. Any and all interest accrued on the Escrow
-----------------
Funds shall be included in the Escrow Amount, and all references to the Escrow
Amount herein shall be deemed to include such interest.
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 103 of 110 Pages
- -------------------- ---------------------
7. Notices. All notices to be given or permitted to be given under
-------
this Escrow Agreement shall be in writing, and shall be delivered personally by
hand, telecopied (except for any notice pursuant to (S) 3(a)), or mailed (by
registered or certified mail, postage prepaid) to the addresses set forth below.
Notices to Escrow Agent shall be sent to:
----------------------------------------
First Union National Bank of Florida
Corporate Trust Department
200 South Biscayne Boulevard, 14th Floor
Miami, FL 33131
Attn: Isabel de Lara, Corporate Trust Officer
Telecopier: 305-789-4678
Notices to the Shareholders shall be sent to:
--------------------------------------------
Charles Merinoff/Shareholders' Committee
Charmer Industries
19-50 48th Street
Astoria, NY 11015
Notices to TI shall be sent to:
------------------------------
Todhunter International, Inc.
Esperante Building - 15th Floor
West Palm Beach, FL 33401
Attn: A. Kenneth Pincourt, Jr., President
Each such notice will be effective (i) if by telecopier, when such telecopy is
confirmed as received, or (ii) if by any other specified means, when delivered
to the correct address.
8. Duties. Escrow Agent undertakes to perform only such duties as
------
are expressly set forth herein and no implied duties or obligations shall be
read into this Agreement against Escrow Agent.
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 104 of 110 Pages
- -------------------- ---------------------
9. Reliance. Escrow Agent may act in reliance on any writing or
--------
instrument or signature which it, in good faith, believes to be genuine, may
assume the validity and accuracy of any statement or assertion contained in such
a writing or instrument and may assume that any person purporting to give any
writing, notice, advice or instruction in connection with the provisions hereof
has been duly authorized to do so. Escrow Agent shall not be liable in any
manner for the sufficiency or correctness as to form, manner and execution, or
validity of any instrument deposited pursuant to this Agreement, nor as to the
identity, authority, or right of any person executing the same; and its duties
hereunder shall be limited to the safekeeping of the certificates, moneys,
instruments or other documents received by it as such escrow holder, and for the
disposition of the same in accordance with the terms of this Agreement.
10. Indemnification. TI and the Shareholders hereby agree, jointly
---------------
and severally, with right of contribution, to indemnify Escrow Agent and hold it
harmless from any and all claims, liabilities, losses, actions, suits or
proceedings at law or in equity, or any other expense, fees, or charges of any
character or nature, which it may incur or with which it may be threatened by
reason of its acting as escrow agent under this Agreement; and in connection
therewith, to indemnify Escrow Agent against any and all expenses, including
attorneys' fees and the cost of defending any action, suit or proceeding or
resisting any claim. The Escrow Agent shall be vested with a lien on all
property deposited hereunder, for indemnification, for attorneys' fees, court
costs, in any suit, interpleader or otherwise, or any other expense, fees or
charges of any character or nature, which may be incurred by the Escrow Agent
hereunder, or otherwise in respect hereof, with the right of the Escrow Agent,
regardless of the instructions aforesaid, to hold such property until and unless
such additional expenses, fees and charges shall be fully paid.
11. Right to Interplead. (a) If any two parties shall be in
-------------------
disagreement about the interpretation of this Agreement, or about the rights and
obligations of, or the property held by, or of any action contemplated by,
Escrow Agent hereunder, Escrow Agent may, at its sole discretion, file an action
in interpleader to resolve the said disagreement. Escrow Agent shall be
indemnified for all costs, including reasonable attorney's fees, in connection
with the aforesaid interpleader action, and shall be fully protected in
suspending all or a part of its activities under this Agreement until a final
judgement in the interpleader action is received. In the event of disagreement
about the interpretation of this Agreement or about the rights and obligations
or the propriety of any action contemplated by the
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 105 of 110 Pages
- -------------------- ---------------------
Escrow Agent hereunder, the Escrow Agent may, at its sole discretion, file an
action in interpleader to resolve the said disagreement.
(b) The Escrow Agent shall be, and hereby is, jointly and severally,
with right of equal contribution, indemnified by TI and the Shareholders for all
of the charges and costs, including reasonable attorney's fees in connection
with the aforesaid interpleader.
12. Rights to Counsel. Escrow Agent may consult with counsel of its
-----------------
own choice and shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance with
the opinion of such counsel. Escrow Agent shall otherwise not be liable for any
mistakes of fact or error judgement, or for any acts or omissions of any kind
unless caused by its willful misconduct or gross negligence.
13. Resignation. Escrow Agent may resign upon thirty (30) days'
-----------
written notice to the parties in this Agreement. If a successor Escrow Agent is
not appointed by the parties within this thirty day period, Escrow Agent may
petition the Circuit Court of Dade County, Florida to name a successor.
14. Fees. TI and the Shareholders hereby, jointly and severally, with
----
right of equal contribution, agree to pay Escrow Agent's compensation for the
services to be rendered hereunder according to the fee schedule attached as
Exhibit B hereto and to pay reasonable compensation for all additional services
of Escrow Agent which are requested by the parties and performed by Escrow
Agent.
15. General. (a) The right created by this Agreement shall inure to
-------
the benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of Escrow Agent and all parties to this Agreement.
(b) This Agreement will be governed by, and construed in accordance
with the substantive laws of the State of Florida, without regard to the
principles of conflicts of law thereunder.
(c) This Escrow Agreement shall be binding upon all of the parties
hereto and may not be modified or amended orally, but only by a writing signed
by all parties hereto.
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 106 of 110 Pages
- -------------------- ---------------------
(d) This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Escrow Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
TODHUNTER INTERNATIONAL, INC.
By\s\A. Kenneth Pincourt
------------------------------------
A. Kenneth Pincourt
President
BLAIR IMPORTERS, LTD.
By\s\Peter Baronoff
------------------------------------
Peter Baronoff
President
BLAIR SHAREHOLDER'S COMMITTEE
[pursuant to the terms of Section 9(b)(x) of the
Merger Agreement]
By\s\Peter Baronoff
------------------------------------
Peter Baronoff
By\s\ Stephen Meresman
-----------------------------------
Stephen Meresman
By\s\Jeffrey M. Cole
-----------------------------------
Jeffrey M. Cole
FIRST UNION NATIONAL BANK OF
FLORIDA, as Escrow Agent
By\s\Eric C. Lalloo
-----------------------------------
Eric C. Lalloo
Vice President
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 107 of 110 Pages
- -------------------- ---------------------
EXHIBIT 4
Agreement Pursuant to Rule 13d-1(f)(1) of the Securities Exchange Act
of 1934, as amended, with respect to Schedule 13D filings.
----------------------------------------------------------
The undersigned acknowledge and agree that, with respect to the securities
of Todhunter International, Inc. held by each of the undersigned, that the
undersigned are required to file the information required by Schedule 13D under
the Securities and Exchange Act of 1934 (the "Act") with respect to such
---
securities. Accordingly, pursuant to Rule 13D(1)(f)(1) of the Act, the
undersigned acknowledge and agree that with respect to such Schedule 13D and any
amendment thereto, such Schedule 13D and any amendment thereto shall be deemed
filed on behalf of each of them, and for such purpose each of the undersigned
appoints Herman Merinoff, with power of substitution, to execute and file, in
the name and on behalf of the undersigned, any and all such Schedules 13D and
further amendments thereto.
Dated: October 28, 1998
/s/ Herman Merinoff
-------------------
Herman Merinoff
MERINOFF FAMILY CO., LLC
By:/s/ Spencer Merinoff
--------------------
Spencer Merinoff
Manager
/s/ Linda Merinoff
------------------
Linda Merinoff
/s/ Barbara Merinoff
--------------------
Barbara Merinoff
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 108 of 110 Pages
- -------------------- ---------------------
/s/ Spencer Merinoff
----------------------------------------
Spencer Merinoff
/s/ Charles Merinoff
----------------------------------------
Charles Merinoff,
as custodian for Brian Onufrychuk
/s/ Charles Merinoff
----------------------------------------
Charles Merinoff,
as custodian for Jacob Onufrychuk
/s/ Charles Merinoff
----------------------------------------
Charles Merinoff,
as custodian for Zachary Onufrychuk
/s/ Spencer Merinoff
----------------------------------------
Spencer Merinoff,
as custodian for Leslie Merinoff
/s/ Spencer Merinoff
----------------------------------------
Spencer Merinoff,
as custodian for Andrew Merinoff
CHARLES MERINOFF TRUST
By:/s/ Spencer Merinoff
-------------------------------------
Spencer Merinoff
Co-Trustee
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 109 of 110 Pages
- -------------------- ---------------------
By:/s/ Cathy Ellen Onufrychuk
-------------------------------------
Cathy Ellen Onufrychuk
Co-Trustee
CATHY ELLEN ONUFRYCHUK
FAMILY TRUST
By:/s/ Spencer Merinoff
-------------------------------------
Spencer Merinoff
Co-Trustee
By:/s/ Charles Merinoff
-------------------------------------
Charles Merinoff
Co-Trustee
/s/ Patricia North
----------------------------------------
Patricia North
/s/ Nancy Stone
----------------------------------------
Nancy Stone
/s/ Steven Drucker
----------------------------------------
Steven Drucker
/s/ Peter Baronoff
----------------------------------------
Peter Baronoff
<PAGE>
SCHEDULE 13D
- -------------------- ---------------------
CUSIP No. 0008890501 Page 110 of 110 Pages
- -------------------- ---------------------
/s/ Peter Baronoff
----------------------------------------
Peter Baronoff, as custodian
for Shanna Baronoff
/s/ Peter Baronoff
----------------------------------------
Peter Baronoff, as custodian
for Jillian Baronoff
/s/ Abby Crisses
----------------------------------------
Abby Crisses
/s/ Stephen Meresman
----------------------------------------
Stephen Meresman
/s/ Bruce Levine
----------------------------------------
Bruce Levine
/s/ Jack Battipaglia
----------------------------------------
Jack Battipaglia
