<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
TODHUNTER INTERNATIONAL, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
889050100
(CUSIP Number)
GODFREY D. BAIN
ANGOSTURA LIMITED
CORNER EASTERN MAIN ROAD & TRINITY AVENUE
LAVENTILLE, TRINIDAD & TOBAGO
(868) 623-2101, EXT. 120
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
OLIVER EDWARDS, ESQ.
HOLLAND & KNIGHT LLP
195 BROADWAY
NEW YORK, NEW YORK 10007
JULY 21, 1999
(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
to 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
[ ].
*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 the 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).
EXHIBIT INDEX ON PAGE 8
<PAGE> 2
SCHEDULE 13D
<TABLE>
<CAPTION>
CUSIP NO. 889050100 PAGE 2 OF 8 PAGES
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<S> <C>
1 NAME OF REPORTING PERSON
Angostura Limited
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
N/A
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC; BK
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 PLACE OF ORGANIZATION
Trinidad & Tobago
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7 SOLE VOTING POWER
NUMBER OF 1,000,000
SHARES 8 SHARED VOTING POWER
BENEFICIALLY NONE
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 1,000,000
REPORTING 10 SHARED DISPOSITIVE POWER
PERSON NONE
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000 shares of common stock, $0.01 par value
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.6%
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14 TYPE OF REPORTING PERSON
CO
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</TABLE>
<PAGE> 3
Item 1. Security and Issuer.
The name of the subject company is Todhunter International, Inc.
("Todhunter"), a Delaware corporation, with principal offices at 222 Lakeview
Avenue, Suite 1500, West Palm Beach, Florida 33401. This statement relates to
Todhunter's common stock, par value $0.01 per share (the "Common Stock").
Item 2. Identity and Background.
(a)-(c); (f). Angostura Limited (the "Company") is a corporation
organized under the laws of Trinidad & Tobago with principal offices at Corner
Eastern Main Road & Trinity Avenue, Laventille, Trinidad & Tobago. The Company's
principal business is the production and marketing of aromatic bitters and bulk
spirits.
The Company is wholly owned by Angostura Holdings Ltd. ("Holdings"), a
company organized under the laws of Trinidad & Tobago with principal offices at
Corner Eastern Main Road & Trinity Avenue, Laventille, Trinidad & Tobago.
Holdings is a holding company of companies with businesses similar to the
business of the Company. Holdings is controlled by CL Financial Limited ("CL
Financial"), a company organized under the laws of the Trinidad & Tobago with
principal offices at 29 St. Vincent Street, Port of Spain, Trinidad & Tobago. CL
Financial is a holding company of a diversified group of businesses. CL
Financial is controlled by Dalco Capital Management Company Limited ("Dalco"), a
company organized under the laws of Trinidad & Tobago with principal offices at
24 Collens Road, Maraval, Trinidad & Tobago. Dalco is an investment company
which is wholly owned by Mr. Lawrence A. Duprey, a Director of the Company and
Holdings and Director and Executive Officer (Chairman) of CL Financial.
Set forth in Schedule A attached hereto is certain information with
respect to the members of the Board of Directors and the executive officers of
the Company, Holdings, CL Financial and Dalco.
(d) and (e). During the last five years, neither the Company, Holdings,
CL Financial or Dalco, any of their respective directors or executive officers,
any person controlling the Company, Holdings, CL Financial or Dalco, nor any
director or executive officer of any person controlling the Company, Holdings,
CL Financial or Dalco has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or was a party to a civil proceeding
before a judicial or administrative body of competent jurisdiction as a result
of which any person was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, United States Federal or State securities laws or found to be in violation
of such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The Company acquired 1,000,000 shares (the "Shares") of the Common
Stock for total consideration of $10,000,000. The Company paid $3,000,000 from
its working capital and used $7,000,000 obtained by the Company from the
proceeds of the sale of commercial paper of the Company and Holdings to Citibank
Trinidad & Tobago Ltd., a company organized under the laws of Trinidad and
Tobago. A copy of the commercial paper instrument of the Company and Holdings is
included herein as Exhibit 1.
Item 4. Purpose of Transaction.
The Company acquired the Shares for investment purposes.
(a). The Company may, from time to time, acquire additional shares of
the Common Stock. Although there have been discussions between the Company and
Todhunter for the purchase of approximately 650,000 additional shares of the
Common Stock by the Company, there are no agreements in place at this time.
<PAGE> 4
(d). The Company purchased the Shares from A. Kenneth Pincourt, Jr.,
the Chairman and Chief Executive Officer of Todhunter, pursuant to that certain
Stock Purchase Agreement, dated July 21, 1999, between the Company and Mr.
Pincourt, a copy of which is included herein as Exhibit 2 (the "Stock Purchase
Agreement"). Pursuant to the Stock Purchase Agreement, Mr. Pincourt has agreed
to nominate and use his best efforts to cause to be elected two individuals
designated by the Company for election to the board of directors of Todhunter.
(b), (c), (e) - (j). None.
Item 5. Interest in Securities of the Issuer.
(a)-(c). The Company owns, in the aggregate, 1,000,000 shares of the
Common Stock. This accounts for 20.6% of the issued and outstanding shares of
the Common Stock.
Holdings, CL Financial and Dalco disclaim beneficial ownership of the
Shares. Neither Holdings, CL Financial, Dalco nor any of their respective
directors or executive officers (i) beneficially owns or has a right to acquire
any shares of the Common Stock, or (ii) has otherwise effected any transaction
in the Common Stock during the past 60 days.
(d). None.
(e). Not applicable.
Item 6. Contracts, Arrangements, Understandings of Relationships with
Respect to Securities of the Issuer.
The Company may, from time to time, acquire additional shares of the
Common Stock. Although there have been discussions between the Company and
Todhunter for the purchase of approximately 650,000 additional shares of the
Common Stock by the Company, there are no agreements in place at this time.
Item 7. Material to be Filed As Exhibits.
<TABLE>
<CAPTION>
Exhibit. Description.
- -------- ------------
<S> <C>
1. Commercial Paper Instrument of the Company and Holdings
2. Stock Purchase Agreement
</TABLE>
<PAGE> 5
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.
Dated: July 29, 1999 Angostura Limited
By: /s/ Godfrey D. Bain
-----------------------------------------------
Name: Godfrey D. Bain
Title: Executive Director of Finance; Member,
Board of Directors
<PAGE> 6
SCHEDULE A
MEMBERS OF THE BOARD OF DIRECTORS AND
THE EXECUTIVE OFFICERS OF THE COMPANY, HOLDINGS, CL FINANCIAL AND DALCO
Set forth below are the names and present principal occupations or
employment of each member of the Board of Directors and the executive officers
of the Company, Holdings, CL Financial and Dalco and the name, principal
business and address of any corporation or organization in which such employment
is conducted. Unless otherwise indicated, the business address of each of the
following persons is the address of the principal executive offices of the
Company and Holdings. Unless otherwise indicated, each of the following persons
is a citizen of Trinidad & Tobago.
BOARD OF DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY AND HOLDINGS
Thomas A. Gatcliffe Chairman.
Keith I. McLachlan Chief Executive Officer. Citizen of Great
Britain.
Godfrey D. Bain Group Executive Director - Finance.
Patrick B. Patel Group Executive Director - Production.
Clive F. Cook Retired chemist for the Company.
Nicholas K. Inniss Retired economist for the Company.
Martin G. Daly Attorney at law. Business address: 115A
Abercromby Street, Port of Spain, Trinidad &
Tobago.
Wendell Motley Economist, Credit Suisse First Boston, New
York, New York.
Louis A. Monteil Group Executive Director. Business address:
29 St. Vincent Street, Port of Spain,
Trinidad & Tobago. Director and Executive
Officer (Group Finance Director) of CL
Financial. Also, Director Colonial Life
Insurance Company (Trinidad) Limited.
Lawrence A. Duprey Director and Executive Officer (Chairman) of
CL Financial. Business address: 29 St.
Vincent Street, Port of Spain, Trinidad &
Tobago. Also, Director, Dalco and Chairman,
Colonial Life Insurance Company (Trinidad)
Limited.
Geoffrey W. A. Smith Retired chartered accountant. Citizen of
Great Britain.
Wilfred S. Knox Retired.
EXECUTIVE OFFICERS OF THE COMPANY AND HOLDINGS (WHO ARE NOT ALSO DIRECTORS)
Kevin M. Kenny Group Executive Manager - Marketing.
Gerard E. Pinard Group Executive Manager - Human Resources.
<PAGE> 7
BOARD OF DIRECTORS AND EXECUTIVE OFFICERS OF CL FINANCIAL
Lawrence A. Duprey Executive Officer (Chairman) of CL
Financial. Business address: 29 St. Vincent
Street, Port of Spain, Trinidad & Tobago.
Also, Director, the Company, Holdings and
Dalco and Chairman, Colonial Life Insurance
Company (Trinidad) Limited.
Andrew C. Musaib-Ali Managing Director, Colonial Life Insurance
Company (Trinidad) Limited. Business
address: 43 Ascot Road, Goodwood Par, Point
Cumana, Trinidad & Tobago.
Peter E. Salvary Corporate Secretary, CL Financial. Director,
Colonial Life Insurance Company (Trinidad)
Limited. Business address: 29 St. Vincent
Street, Port of Spain, Trinidad & Tobago.
Louis A. Monteil Executive Officer (Group Finance Director)
of CL Financial. Business address: 29 St.
Vincent Street, Port of Spain, Trinidad &
Tobago. Also, Director of the Company and
Holdings and Director Colonial Life
Insurance Company (Trinidad) Limited.
Neil M. Jones Director, Colonial Life Insurance Company
(Trinidad) Limited. Business address: 16
Butu Road, Valsayn Park South, Valsayn,
Trinidad & Tobago.
John B.C. Martin Chartered Accountant. Business address: 11
Idlewild Road, Knightsbridge, Cascade,
Trinidad & Tobago.
Michael A. Fifi Managing Director, Home Construction
Limited. Business address: 1 Bergerac
Heights, Bergerac, Maraval, Trinidad &
Tobago.
Kersten Coombs Managing Director, Clico Energy Company
Limited. Business address: 102 Par 3 Lane,
Fairways, Maraval, Trinidad & Tobago.
Roger Duprey Accountant. Business address: 39 Sandown
Road, Goodwood Park, Point Cumana, Trinidad
& Tobago.
Bhoendradatt Tewarie Executive Director, UWI Institute of
Business. Business address: 7 Home Farms,
Chin Chin Road, Cunupia, Trinidad & Tobago.
EXECUTIVE OFFICERS OF CL FINANCIAL (WHO ARE NOT ALSO DIRECTORS)
Gita Sakal Corporate Legal Officer.
BOARD OF DIRECTORS AND EXECUTIVE OFFICERS OF DALCO
Lawrence A. Duprey Business address: 29 St. Vincent Street,
Port of Spain, Trinidad & Tobago. Also,
Director, the Company, Holdings, CL
Financial and Chairman, Colonial Life
Insurance Company (Trinidad) Limited.
Hilda Duprey Retired. Principal address: 24 Collens Road,
Maraval, Trinidad & Tobago.
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
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<S> <C>
1. Commercial Paper Instrument of the Company and Holdings
2. Stock Purchase Agreement
</TABLE>
<PAGE> 1
EXHIBIT 1
THIS INSTRUMENT is dated
and made by
ANGOSTURA HOLDINGS LIMITED (registered in Trinidad and Tobago under number
A-719(c)) whose registered office is at Corner Eastern Main Road and Trinity
Avenue. Laventille and ANGOSTURA LIMITED (registered in Trinidad and Tobago
under number A-40(c)) whose registered office is at Corner Eastern Main Road
and Trinity Avenue. Laventille (the 'Issuers').
WHEREAS
the Issuers have pursuant to their respective Articles of Continuance and by
resolutions of their respective Board of Directors passed on the 9th day of
July, 1999 created US$7,000,000.00 Fixed Rate Unsecured Commercial Paper
('Notes') to be constituted by this Instrument.
NOW THIS DEED witnesses and it is hereby declared as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Instrument, unless the context otherwise requires:
'Business Day' means a day (other than a Saturday or Sunday) on which banks
are generally open for business in Trinidad and Tobago and New York.
'Certificate' means a certificate for Notes issued in accordance with
Clause 6 and in the form or substantially in the form set out in the
Schedule.
'Directors' means the Board of Directors of each of the Issuers for the
time being.
'Dollars' 'US$' and '$' mean the lawful currency of the United States of
America for the time being.
'Extraordinary Resolution' means a resolution passed by a majority
consisting of not less than three-fourths of the Noteholders present and
voting upon a show of hands at a meeting of the Noteholders or if a poll
is demanded (by the Chairman of the meeting or by Noteholders holding not
less than 10 per cent of the nominal amount of the Notes for the time being
outstanding) by a majority consisting of not less than 75 per cent of the
votes given on such poll.
'Interest Payment Date' has the meaning set out in Clause 3.
3
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'LIBOR' means the offered rate for US dollar deposits which appears on the
Reuters Screen LIBO Page at 11:00 a.m., New York time on the applicable
Interest Determination Date for six months. If more than one such rate
appears, the offered rate shall be the arithmetic average (rounded upward,
if necessary, to 1/16th of 1%) of such offered rates.
'NET WORTH' means total assets less total liabilities.
'NOTES' means the US$7,000,000.00 Fixed Rate Unsecured Commercial Paper of
the Issuers constituted by this Instrument or as the case may be the amount
thereof for the time being issued and outstanding
'NOTEHOLDERS' means the several persons for the time being entered in the
Register as holders of the Notes
'REGISTER' means the register of the Noteholders kept by the issuers
pursuant to Clause 9
'REUTERS SCREEN LIBO PAGE' means the display of LIBOR of major banks for
interbank US dollar deposits designated as page "LIBO" on the Reuters
Monitor Money Rates Service (or such other page as may replace the LIBO
page for the purpose of displaying such LIBOR for interbank US dollar
deposits).
1.2 INTERPRETATION
(a) In this Instrument, unless otherwise expressly provided, any reference
to:
any statutory provision shall include a reference to such provision as from
time to time re-enacted amended extended or replaced;
a Clause or a Schedule is a reference to a clause of or a schedule to this
Instrument; and
'redemption' includes purchase and repayment and the words 'redeem' or
'redeemed' shall be construed accordingly.
(b) Save where the context otherwise requires, in this Instrument words
importing the singular number shall include the plural and vice versa
and words importing one gender shall include the other gender.
(c) Heading in this Instrument are for ease of reference only and shall
not affect its interpretation.
(d) Save as expressly provided in this Instrument, words and expressions
defined in the Companies Act 1985 shall bear the same respective
meanings in this Instrument.
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2. AMOUNT AND STATUS OF NOTES
2.1 The principal amount of the Notes is limited to US$7,000,000.00. The Notes
shall be issued in denominations and integral multiples of $100,000.00 in
nominal amount, subject to and with the benefit of the provisions of this
Instrument. All the obligations and covenants contained in this Instrument shall
be binding on the Issuers and the Noteholders and all persons claiming through
them.
2.2 The Notes shall rank pari passu as unsecured obligations of the Issuers.
3 INTEREST
The Notes will carry interest at the rate of LIBOR plus three per cent per
annum. Such interest will accrue from day to day. Interest will be payable by
monthly instalments in arrear on the 19th day in each month except that the
first payment of interest will be made on the 19th day of August in respect of
the period from the date of the first issue of the Notes.
4 REDEMPTION OF NOTES
4.1 All Notes not previously redeemed or purchased by either of the Issuers
under any of the provisions of this Instrument will be repaid at par together
with accrued interest on 19th August, 1999 plus 180 days.
4.2 The Issuers shall be entitled, upon giving not less than 14 days' prior
notice in writing to the Noteholders, to redeem at any time at par the whole or
any part of the Notes for the time being outstanding and on the expiry of the
notice the Notes in respect of which it has been given shall be so redeemed. If
the Issuers shall redeem part only of the Notes, there shall be redeemed out of
the holding of each Noteholder that proportion (as near as may be without
involving any fraction of $1) of his holding of Notes which the total amount of
the Notes then being redeemed bears to the total amount of Notes then in issue.
4.3 Either of the Issuers may at any time purchase any Notes by tender
(available to all Noteholders alike) or by private treaty or otherwise at any
price agreed between the Noteholder and the Issuers.
4.4 As and when the Notes or any part of the Notes are redeemed under the
provisions of this Instrument, the Issuers shall pay to the Noteholders the full
principal amount of the Notes to be repaid together with any accrued interest on
such Notes.
5 ACCELERATED REPAYMENT
5.1 The Notes shall become immediately repayable at par together with any
accrued interest (after deduction of tax).
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(a) if either of the Issuers fails to repay the principal amount of the Notes or
any part of it or to pay any interest thereon within 14 days after the due
date for such repayment or payment; or
(b) if either of the Issuers ceases or threatens to cease to carry on its
business or a substantial part of its business; or
(c) if either of the Issuers is, or is adjudicated or found to be, insolvent or
stops or suspends payment of its debts or is (or is deemed to be) unable to
or admits inability to pay its debts as they fall due or proposes or enters
into any composition or other arrangement for the benefit of its creditors
generally or proceedings are commenced in relation to the Issuers under any
law regulation or procedure relating to reconstruction or adjustment of
debts; or
(d) if any order is made by any competent court or any resolution is passed by
the either of the Issuers for the winding up or dissolution or for the
appointment of a liquidator of either of the Issuers (except for the purpose
of a solvent amalgamation or reconstruction previously approved by
Extraordinary Resolution of the Noteholders); or
(e) if an encumbrancer takes possession or a receiver or administrative receiver
or manager or sequestrator is appointed of the whole or any part of the
undertaking or assets of either of the Issuers or distress or other process
is levied or enforced upon any of the assets rights or revenues of either of
the Issuers and any such action is not lifted or discharged within 14 days;
or
(f) if any order is made by any competent court for the appointment of an
administrator in relation to either of the Issuers; or
(g) if either of the Issuers makes default on any guarantee or indemnity in
respect of which it is liable and any steps are taken to enforce the same;
or
(h) if any other loan notes or any loan stock or other indebtedness other than
trade debts arising in the ordinary course of business issued or owing by
either of the Issuers become repayable before its due date by reason of
either of the Issuers's default or is not paid when due; or
(i) if either of the Issuers advances loans to any subsidiary, associate or
affiliate; or
(j) if either of the Issuers purchases any assets from any subsidiary or
affiliate other than assets which are used by either of the Issuers in the
ordinary course of its business;
(k) if either of the Issuers allows the ratio of its total liabilities divided
by its Net Worth plus minority interests to exceed 0.62:1;
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(l) if either of the Issuers allows its debt service ratio to fall below
1:1.8;
(m) if either of the Issuers permits to subsist any encumbrance over all
or any part of its respective present or future undertaking assets
rights or revenues;
(n) if either of the Issuers incurs any indebtedness without consent of
the Noteholders such consent not to be unreasonably withheld; and
(o) if either of the Issuers acquires any business or shares of any
company other than businesses or companies involved in businesses
substantially similar to that of the respective Issuer.
5.2 The Issuers shall forthwith give notice to each Noteholder of the happening
of any event mentioned in clause 5.1 upon becoming aware of the same.
6 CERTIFICATES
6.1 The Issuers shall issue duly executed Certificates for each of the Notes.
The Certificates shall be in the form or substantially in the form set out in
the Schedule and the provisions of this Instrument shall be attached to each of
the Certificates.
6.2 Each Noteholder or the joint holders of any of the Notes shall be entitled
without charge to one Certificate for the total amount of Notes registered in
his name or their names or, if he or they desire, to several such Certificates
each for a part (being US$100,000.00 in nominal value of the Notes or an
integral multiple thereof) of the Notes so registered for every Certificate
beyond the first. Any Certificate in the names of joint holders of any of the
Notes shall be delivered to the first named of such joint holders in the
Register unless all such joint holders otherwise specify in writing.
6.3 If any Certificate is defaced worn out lost or destroyed the Issuers shall
issue a new Certificate on such terms (if any) as the Directors may require as
to indemnity and evidence of defacement wearing out loss or destruction. In the
case of defacement or wearing out, the defaced or worn out Certificate shall be
surrendered and cancelled before the new Certificate is issued. In the case of
loss or destruction, the person availing himself of the provisions of this
Clause shall also pay to the Company (if demanded) all expenses incidental to
the investigation of evidence of loss or destruction and the preparation of any
form of indemnity. There shall be entered in the Register particulars of the
issue of any new Certificate and any indemnity.
7 SURRENDER AND CANCELLATION
7.1 Notes shall only be redeemed against surrender of the relevant
Certificate(s) for cancellation in the case of full redemption and for the
enfacement of a memorandum of the amount and date of redemption in the case of
partial redemption.
7.2 All Notes redeemed by the Issuers under the provisions of this Instrument
shall be cancelled and shall not be re-issued.
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8 PLACE OF PAYMENT
The principal amount of the Notes or any part of the Notes and any accrued
interest will be payable at the registered office of the Issuers or at such
other place as the Issuers may from time to time appoint.
9 REGISTER OF NOTEHOLDERS
9.1 The Issuers shall at all times maintain a register at its registered
office or at such other place in Trinidad as it may from time to time decide in
which shall be entered the names and addresses of the holders for the time being
of the Notes together with the amounts of their respective holdings of Notes,
the dates upon which they were respectively registered as holders thereof, the
serial number of each Certificate issued and its date of issue.
9.2 Each Noteholder shall notify the Issuers of any change of his name or
address and the Company upon receiving such notification shall alter the
Register accordingly.
9.3 The Register shall at all times prescribed by law be open for inspection
by the Noteholders or any of them or in the case of a corporation by any person
authorised in writing by the Stockholder.
10 TITLE OF NOTEHOLDERS
10.1 The Issuers shall recognise the registered holder of any Notes as the sole
absolute owner thereof and as alone entitled to receive and give effectual
discharge for the monies comprised therein. The Issuers shall not be bound to
take notice or see to the of any trust whether express or implied or
constructive to which any Notes may be subject and shall not be affected by any
notice it may have whether express or constructive of the right title interest
or claim of any other persons to or in such Notes or monies.
10.2 If several persons are entered in the register as joint holders of any
Notes, the receipt of any one of such persons for any monies from time to time
payable in respect of such Notes shall be as effective a discharge to the
Issuers as if the person signing such receipt were the sole registered holder of
such Notes.
10.3 Every Noteholder shall be entitled to the principal amount of his Notes
and accrued interest (after deduction of tax) free from any equity set-off or
cross-claim on the part of the issuers against the original or any intermediate
holder of the Notes.
10.4 The Issuers shall recognise the executors and administrators of a sole
registered holder of a Note as the only person having any title or interest in
such Note on the death of such Noteholder. The Issuers shall recognise the
survivor or survivors of joint registered holders of a Note as the only person
or persons as having any title or interest in such Note on the death of one or
more of such joint registered holders.
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11 TRANSFER OF NOTES
11.1 The Notes are transferable in nominal amounts and integral multiples of
US$100,000.00.
11.2 A transfer of a Note must be by an instrument in writing which is signed by
or on behalf of the transferor. The transferor shall be deemed to remain the
owner of the Notes to be transferred until the name of the transferee is entered
in the Register in respect thereof.
11.3 Every instrument of transfer must be delivered to the registered office of
the Issuers or to such other place as the Issuers may appoint for registration
accompanied by the Certificate of the Notes to be transferred together with such
other evidence as the Directors or other officers of the Issuers authorized to
deal with the transfer may reasonably require to prove the title of the
transferor or his right to transfer the Notes.
11.4 The Issuers shall retain all instruments of transfer which are registered.
11.5 The Issuers shall not register the transfer of Notes in respect of which a
notice of redemption or repayment has been given.
12 TRANSMISSION OF NOTES
Any person entitled to a Note by reason of the death or bankruptcy of any
Noteholder or otherwise by operation of law may be registered as the holder
thereof upon such evidence of his title being produced as the Directors may
reasonably require. The Issuers may in their sole discretion retain any payments
on such a Note until the person entitled to be registered under this Clause has
been duly registered under the provisions of this Instrument.
13 ALTERATION OF THIS INSTRUMENT
The provisions of this Instrument and the conditions on which the Notes are held
may be altered abrogated or added to with the consent in writing of the Issuers
and an Extraordinary Resolution of Noteholders.
14 NOTICES
14.1 Any notice under or in respect of this Instrument shall be in writing but,
unless otherwise stated, may be made by telex, telecopier or letter providing
that a communication by telecopier is confirmed by letter posted on the same
day.
14.2 Any notice or demand for payment issued by any Noteholder hereunder shall
without prejudice to any other effective mode of making the same be deemed to
have been properly served on the Issuers if served on any one of the Directors
or on the Secretary of either of the Issuers or delivered or sent by letter post
telex or telecopier to the Issuers at its principal places of business. Any such
notice or demand sent by letter post shall be deemed to be served on the
addresses 96 hours after the time of posting
_______________________________________________________________________________
MMS & CO -- COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
<PAGE> 8
notwithstanding that it be undelivered or returned undelivered and in proving
such service it shall be sufficient to prove that the notice or demand was
properly addressed and posted. Any notice of demand sent by telex or telecopier
on a business day shall be deemed to have been served at the time of dispatch.
14.3 Each such communication, if made to the Noteholder by the Issuers, shall
be signed and dispatched by an authorised officer of either of the Issuers.
15. LAW
This Instrument shall be governed by and construed in accordance with the laws
of Trinidad and Tobago.
IN WITNESS whereof this Instrument has been executed and delivered as a deed on
the date first above written.
THE COMMON SEAL OF ANGOSTURA
HOLDINGS LIMITED was hereto
affixed by order and authority
of the Board of Directors
and in conformity with the
Bye-Laws of the Company in the
presence of the undermentioned
witness:
Signature /s/ Ryan Proudfoot
--------------------
Name Ryan Proudfoot
--------------------
Occupation Bank Officer
--------------------
Address 27 Regents Dr. West
--------------------
Regents Park
--------------------
THE COMMON SEAL OF ANGOSTURA
LIMITED was hereto affixed by order
and authority of the Board of
Directors and in conformity with
the Bye-Laws of the Company in the
presence of the undermentioned
witness:
Signature /s/ Ryan Proudfoot
--------------------
Name Ryan Proudfoot
--------------------
Occupation Bank Officer
--------------------
Address 27 Regents Dr. West
--------------------
Regents Park
-------------------- 10
- --------------------------------------------------------------------------------
MHS& CO - COMMERCIAL INSTRUMENT JULY 1999
CITIBANK/ANGOSTURA LIMITED EXECUTION COPY
<PAGE> 9
SCHEDULE
FORM OF COMMERCIAL PAPER CERTIFICATE
Angostura Holdings Limited
Angostura Limited
Certificate Nominal Amount of Commercial Paper
No [________] US$[________]
ISSUE of 8.6 per cent Unsecured Commercial Paper
Created and issued pursuant to each of the Issuers' Articles of
Continuance and Bye-Laws and a Resolution of its respective Board of
Directors passed on 9th day of July, 1999
THIS IS TO CERTIFY that [name of Noteholder] of [address] is/are the registered
holder(s) of [________] dollars of the Fixed Rate Unsecured Commercial Paper
('Notes') which Notes are constituted by an Instrument entered into by the
Issuers on and dated [________] and are issued subject to the provisions
contained in that Instrument.
Interest is payable at the rate of Libor Per 6 month period plus 3% by monthly
instalments in arrear on the 19th day of each month, commencing on the 19th day
of August, 1999.
The Notes are transferable only in nominal amounts and integral multiples of
US$100,000.00. No transfer of any part of the Notes represented by this
Certificate will be registered unless accompanied by this Certificate. The Notes
are redeemable in accordance with the terms and conditions contained in the
Instrument a copy of which is attached to this Certificate.
Given under the Common Seal of each of the Issuers.
this day of
____________________
Director
____________________
Secretary
____________________
Director
____________________
Secretary
<PAGE> 1
EXHIBIT 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made this 21st day of
July, 1999, between A. Kenneth Pincourt, Jr. ("Seller") and Angostura Limited, a
Trinidad corporation (the "Investor").
W I T N E S S E T H:
WHEREAS, Seller desires to sell to Investor One Million (1,000,000)
shares (the "Shares") of the common stock, $0.01 par value (the "Common Stock"),
of Todhunter International, Inc., a Delaware corporation (the "Company").
WHEREAS, Seller desires to sell, and the Investor desires to purchase,
the Shares on the terms and conditions hereof; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, representations and warranties contained in this
Agreement, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. PURCHASE AND SALE OF SHARES
1.1 Sale of Shares. Subject to the terms and conditions set
forth in this Agreement, Seller hereby sells to Investor, and Investor hereby
purchases the Shares. Seller hereby delivers to Investor certificates for the
Shares accompanied by stock powers duly executed by Seller and in form
acceptable for transfer on the Company's books, receipt of which is hereby
acknowledged by Investor.
1.2 Purchase Price. The purchase price for the Shares is Ten
Million Dollars ($10,000,000) (the "Purchase Price"), which has been delivered
to Seller in immediately available funds, receipt of which is hereby
acknowledged by Seller.
2. REPRESENTATIONS AND WARRANTIES BY SELLER.
Seller represents and warrants as follows:
2.1 Free and Clear Transfer. The Shares are delivered to
Investor free and clear of all liens, charges, security interests, equities,
pledges, options, claims, charges, restrictions and other encumbrances of every
type whatsoever.
2.2 Corporate Matters. Seller has furnished to Investor true and
correct copies of the Company's Certificate of Incorporation and By-Laws.
<PAGE> 2
2.3 Capital. The Company has total authorized capital stock of
2,500,000 shares of preferred stock, par value $0.01 per share, of which none
are issued and outstanding and 10,000,000 shares of Common Stock, of which
4,850,514 shares are issued and outstanding, as of May 7, 1999. The Shares are
validly issued, fully paid and nonassessable.
2.4 Violations. The execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement, will not
result in or constitute any of the following: (a) a default, breach, violation,
termination, failure of condition, or an event that, with notice or lapse of
time or both, would be a default, breach, violation, termination, or failure of
condition of any provision of the Certificate of Incorporation or By-Laws of the
Company, or any provision of any agreement, instrument, or arrangement to which
the Company is a party, or by which the Company's property, including the
Shares, is bound; (b) an event that would accelerate the maturity of or result
in any "change of control" pursuant to the terms of any indebtedness or other
obligation of the Company, except the Loan Agreement of November 22, 1994, as
amended, among the Company, certain subsidiaries, and First Union National Bank
of Florida, as to which the consent of the lender has been obtained; (c) the
creation or imposition of any lien, pledge, option, security agreement, equity,
claim, charge, encumbrance or other restriction or limitation on any of the
Shares, or on any of the properties or other interests of the Company; or (d) a
violation of any provision of applicable law.
2.5 Power and Authority. Seller has the right, power, legal
capacity, and authority to enter into and perform his obligations under this
Agreement and to consummate the transactions contemplated hereby. No consent,
approval or authority of any nature, or other action, by any person or entity,
or any agency, bureau or department of any government, is required in connection
with the execution and delivery of this Agreement, and the consummation by
Seller of the transactions provided for herein, and assuming neither the
Investor nor any of its affiliates is required to file a notification as an
acquiring party under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, with respect to the transactions provided for herein, the Company is
not required to file a notification under such Act with respect to the
transaction provided for herein. This Agreement constitutes, and each document
or instrument to be executed by Seller, pursuant to the terms hereof upon its
execution and delivery will have been duly executed and delivered and will
constitute, the valid and legally binding obligations of Seller, enforceable in
accordance with their terms.
2.6 Absence of Certain Changes. To the best of Seller's
knowledge, since March 31, 1999, there has not been:
(a) any change in the condition, financial or
otherwise, of the Company, nor any change in its assets, liabilities, business
operations or prospects, other than changes in the ordinary course of business
which have not been in any case or in the aggregate materially adverse;
(b) any action by the Company outside the ordinary
course of business, not disclosed to Investor;
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<PAGE> 3
(c) any damage, destruction or loss of any of the
assets of the Company, not fully covered by insurance, materially adversely
affecting the business or prospects of the Company;
(d) a material default under the terms of any contract,
agreement, indenture or other instrument to which the Company is a party or by
which it is bound; or
(e) any event which (i) would result in a statement of
material fact ,made in any of (A) the Company's Forms 10-Q Quarterly Report for
the periods ending March 31, 1999 and December 31, 1998, as filed with the
Securities and Exchange Commission ("SEC"), (B) the Company's 1998 Form 10-K
Annual Report, as filed with the SEC in December 1998, and (C) the Company's
proxy statement relating to the Company's last annual meeting of stockholders,
as filed with the SEC in January 1999 being untrue as of the time of filing, or
which (ii) currently requires a filing to be made with the SEC under Section 13
of the 1934 Act, other than transactions with Investor or disclosed to Investor.
2.7 Intellectual Property. To the best of Seller's knowledge,
the Company owns all right, title and interest in and to, or has a valid license
to use, all the material Intellectual Property used by the Company in connection
with its business as currently conducted and there are no material conflicts
with or infringements of any Intellectual Property by any third party. The
Company's business as currently conducted does not conflict with or infringe any
proprietary right of any third party. There is no claim, suit, action or
proceeding pending or threatened against the Company: (a) alleging any such
conflict or infringement with any third party's proprietary rights; or (b)
challenging the Company's ownership or use of, or the validity or enforceability
of, any Intellectual Property. Neither a former or present employee, officer or
director of the Company, nor any agent or outside contractor of the Company,
holds any right, title or interest, directly or indirectly, in whole or in part,
in or to any Intellectual Property.
For purposes of this Agreement, "Intellectual Property" shall
mean all of the following owned by the Company or used exclusively in the
business of the Company: (i) trademarks and service marks (registered and
unregistered) and trade names, and all goodwill associated therewith; (ii)
patents, patentable inventions and computer programs; (iii) trade secrets; (iv)
copyrights in all works, including software programs; and (v) domain names.
2.8 Loss of Favorable Tax Treatment. To the best of Seller's
knowledge, there is no proposed or pending legislation, ruling of any court or
taxing authority or governmental regulation which could result in the loss of
the Company's U.S. Virgin Islands subsidiary's 90% exemption from income
taxation.
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<PAGE> 4
3. INVESTOR'S REPRESENTATIONS AND WARRANTIES
The Investor represents and warrants the following:
3.1 Power and Authority. The Investor has the right, power,
legal capacity and authority to enter into and perform its respective
obligations under this Agreement, and to consummate the transactions
contemplated hereby to be consummated by the Investor. No consent, approval or
authority of any nature, or other action, by any person or entity, or any
agency, bureau or department or any government or any subdivision thereof, is
required in connection with the execution and delivery of this Agreement by the
Investor, and the consummation by the Investor of the transactions provided for
herein, and neither the Investor nor any of its affiliates is required to file a
notification as an acquiring party under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, with respect to the transactions provided
for herein. This Agreement constitutes, and each document or instrument to be
executed by the Investor, pursuant to the terms hereof upon its execution and
delivery, will have been duly executed and delivered and will constitute, the
valid and legally binding respective obligations of the person executing each of
such documents and instruments, enforceable in accordance with its terms. The
execution and delivery of this Agreement by the Investor has been duly
authorized by all necessary action.
3.2 Securities Law.
(a) Neither Seller, the Company, nor any person acting
on its behalf, has offered or sold any Common Stock, including the Shares, to
Investor by means of any form of general solicitation or general advertising,
including communications published in any newspaper, magazine or similar medium.
(b) Investor is acquiring the Shares for its own
account and not on behalf of other persons. Investor has not been organized for
the specific purpose of acquiring the Shares. The Shares are being acquired with
the intent of holding them for investment and without the intent of
participating directly or indirectly in a distribution thereof.
(c) The Shares purchased hereby will not be sold
without registration under the Securities Act of 1933, as amended, and
applicable state securities law or receipt by the Company of an opinion of
counsel reasonably satisfactory to counsel for the Company that the proposed
sale is exempt thereunder. Investor consents to a legend being placed on the
certificates for the Shares stating that the Shares have not been registered
under such laws and referring to such restrictions on transferability and sale,
and Investor consents to a stop transfer order with the Company's transfer agent
that such Shares shall not be transferred on the books of the Company without
compliance with such requirements. Investor agrees to indemnify and hold the
Company, its officers, directors and controlling persons, harmless against any
loss, liability, damage or obligation (including, without limitation, attorney's
fees) arising out of a breach of any representation
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<PAGE> 5
or agreement contained herein, all of which shall survive delivery of this
Agreement and the purchase of the Shares.
Investor is furnishing to the Company a letter executed by Investor reciting the
substance of this Section 3.2.
4. INDEMNITIES
4.1 Indemnification. Seller hereby agrees to indemnify, defend,
and hold harmless the Investor against and in respect of, and reimburse Investor
for and against, any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies, including
interest, penalties, and reasonable attorneys' fees and expenses (even if
incident to appeals), which, at any time, arise, result from, or relate to any
breach, misrepresentation, or violation of, or failure by Seller to perform,
satisfy or comply with, any of Seller's representations, warranties, covenants,
or agreements in this Agreement or in any schedule, certificate, exhibit, or
other instrument furnished or to be furnished by Seller under this Agreement.
4.2 Indemnification Procedures. In connection with any matters
giving rise to any claims made for indemnification under Section 4.1, Seller
shall choose counsel therefor, subject to approval of the Investor, which
approval shall not be unreasonably withheld, and Seller shall pay all fees and
expenses of such counsel. The Investor may elect, at its sole expense, any
additional counsel to consult and participate with counsel selected by Seller,
provided Seller's counsel shall control all legal actions, except such actions
in which the Investor reasonably determines that its interests are adverse to
Seller; provided further that Seller shall pay the reasonable fees and expenses
of such additional counsel in the event that the Investor reasonably determines
that Seller and the Investor may have adverse interests in respect of a claim.
The Investor shall notify Seller of the existence of any claim, demand or other
matter to which Seller's indemnification obligations would apply, and shall give
Seller a reasonable opportunity to defend the same at its own expense. If Seller
shall within a reasonable time after this notice fail to defend, the Investor
shall have the right, but not the obligation, to undertake and control the
defense of, and to compromise or settle the claim or other matter on behalf, for
the account, and at the risk and expense, of Seller.
4.3 Indemnification Limitation. The liability of Seller with
respect to the indemnification of Investor set forth herein shall be limited to
claims made by Investor in writing within two years from the date hereof, except
that any claim by Investor shall be limited to the Purchase Price paid by
Investor.
5. DIRECTOR COVENANT
Seller hereby covenants to nominate and use its best efforts to
cause to be elected to the Board of Directors of the Company two individuals
designated by the Investor as soon as is practicable and in no event later than
the earlier of the opening of any vacancy on the Board of
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<PAGE> 6
Directors or the next election of directors by the Company's shareholders,
provided that the Investor owns at least 1,000,000 shares of Common Stock (or
the equivalent thereof after any stock splits, stock dividends or other
recapitalizations).
6. COSTS
6.1 Brokers. Each of the parties represents and warrants that
such party has dealt with no broker or finder in connection with any of the
transactions contemplated by this Agreement, and, insofar as such party knows,
no broker or other person is entitled to any commission or finder's fee in
connection with any of these transactions. The parties each agree to indemnify
and hold harmless one another against any loss, liability, damage, cost, claim
or expense incurred by reason of any brokerage commission or finder's fee
alleged to be payable because of any act, omission or statement of the
indemnifying party.
6.2 Costs of Preparing and Closing. Each party shall pay all its
own costs and expenses incurred or to be incurred by it, in negotiating and
preparing this Agreement and in closing and carrying out the transactions
contemplated by this Agreement.
7. MISCELLANEOUS.
7.1 Press Releases. Neither party will make any press release or
other public announcement concerning the transaction described in this Agreement
without first consulting with the other party, except as otherwise required by
law.
7.2 Amendments. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a writing signed by
the party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
7.3 Further Assurances. The parties hereby agree from time to
time to execute and deliver such further and other transfers, assignments and
documents and do all matters and things which may be convenient or necessary to
more effectively and completely carry out the intentions of this Agreement.
7.4 Parties in Interest. All covenants and agreements contained
in this Agreement shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto and thereto whether so expressed or
not.
7.5 Headings; Definitions. The headings contained in this
Agreement are for convenience of reference only, are not to be considered a part
hereof and shall not limit or otherwise affect in any way the meaning or
interpretation of this Agreement. For purposes of this Agreement,
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<PAGE> 7
the term "person" shall include without limitation any corporation, partnership,
estate, trust, association, branch, bureau, subdivision, individual, government
instrumentality and other entity.
7.6 Survival. All covenants, agreements, representations and
warranties made herein or otherwise made in writing by any party pursuant hereto
shall survive the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby.
7.7 Waivers. The failure or delay of any party at any time to
require performance by another party of any provision of this Agreement, even if
known, shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder. Any waiver by any
party of any breach of any provision of this Agreement should not be construed
as a waiver of any continuing or succeeding breach of such provision, a waiver
of the provision itself, or a waiver of any right, power or remedy under this
Agreement. No notice to or demand on any party in any case shall, of itself,
entitle such party to any other or further notice or demand in similar or other
circumstances.
7.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Confirmation of execution
by telefax or telex of a facsimile signature page shall be binding upon any
party to confirming.
7.9 Governing Law. This Agreement and all transactions
contemplated by this Agreement shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of Florida without regard to
principles of conflicts of laws. Investor appoints and designates Angostura
International Limited, a Delaware corporation (whose address is 20 Commerce
Drive, Cranford, New Jersey 07016, Attn: President), as Investor's true and
lawful attorney-in-fact and duly authorized agent for service of legal process,
with respect to this Agreement and the transactions contemplated hereby, and
agrees that service of such process upon such party shall constitute personal
service of such process upon Investor.
7.10 No Construction Against Draftsmen. The parties acknowledge
that this is a negotiated Agreement, and that in no event shall the terms hereof
be construed against either party on the basis that such party, or its counsel,
drafted this Agreement.
7.11 Notices. All notices and other communications provided for
hereunder shall be in writing and shall be deemed to have been given or made if
delivered (including by recognized delivery service), or mailed certified mail,
return receipt requested, postage prepaid, or by facsimile (receipt confirmed):
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<PAGE> 8
To Seller: With a copy to:
A. Kenneth Pincourt, Jr. Gunster, Yoakley, Valdes-Fauli &
c/o Todhunter International, Inc. Stewart, P.A.
222 Lakeview Avenue 777 S. Flagler Drive
Suite 1500 Suite 500-East Tower
West Palm Beach, FL 33401 West Palm Beach, FL 33401
Fax: (561) 655-9718 Attn: Steven J. Serling, Esq.
Fax: (561) 655-5677
To the Investor: With a copy to:
Angostura Limited Haight Gardner Holland & Knight
Corner Easter Main Road and 195 Broadway
Trinity Avenue New York, NY 10007
Laventille, Trinidad, West Indies Attn: Oliver Edwards, Esq.
Attn: Secretary Fax: (212) 385-9010
Fax: (868) 623-0788
or to such other address as the party to receive the notice shall advise by due
notice hereunder. Notices shall be effective upon the earlier of receipt or five
(5) days after mailing.
7.12 Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties with respect to the subject matter
hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and among such parties.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed it on the day and year first written.
/s/ A. Kenneth Pincourt, Jr.
----------------------------
A. Kenneth Pincourt, Jr.
ANGOSTURA LIMITED
By: /s/ Thomas A. Gatcliffe
-----------------------------
Name: Thomas A. Gatcliffe
Title: Chairman
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<PAGE> 9
ANGOSTURA INTERNATIONAL LIMITED, a Delaware corporation, accepts its
appointment under Section 7.9 of the above Agreement and agrees to act in
accordance therewith.
ANGOSTURA INTERNATIONAL LIMITED
By: /s/ Tyler B. Phillips
---------------------------
Name: Tyler B. Phillips
Title: President
9
