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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
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
AUGUST 12, 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 [ ].
EXHIBIT INDEX ON PAGE 5
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SCHEDULE 13D
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CUSIP NO. 889050100 PAGE 2 OF 5 PAGES
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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 1,650,220
SHARES ------------------------------------------------------
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH NONE
REPORTING ------------------------------------------------------
PERSON
WITH 9 SOLE DISPOSITIVE POWER
1,650,220
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10 SHARED DISPOSITIVE POWER
NONE
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,650,220 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)
30.0%
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14 TYPE OF REPORTING PERSON
CO
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This Amendment No. 1 amends and supplements the Statement on Schedule
13D (the "Schedule 13D") originally filed with the Commission on July 30, 1999
by Angostura Limited (the "Company"). The items of the Schedule 13D referred to
below are amended and supplemented by the addition of the information indicated:
Item 3. Source and Amount of Funds or Other Consideration.
On August 12, 1999, the Company acquired 650,220 newly issued shares of
the common stock (the "Common Stock"), par value $0.01 per share, of Todhunter
International, Inc. ("Todhunter") from Todhunter for total consideration of
$6,502,200. The Company paid for such shares of the Common Stock with certain of
the proceeds obtained by the Company from the sale of commercial paper issued by
the Company and Angostura Holdings Limited ("Holdings") and purchased by
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 3.
Item 4. Purpose of Transaction.
The Company has acquired the shares of Todhunter for investment
purposes.
Item 5. Interest in Securities of the Issuer.
(a)-(c). The Company owns, in the aggregate, 1,650,220 shares of the
Common Stock. This accounts for 30.0% of the issued and outstanding shares of
the Common Stock.
On August 12, 1999, the Company purchased 650,220 shares of the Common
Stock from Todhunter pursuant to that certain Stock Purchase Agreement, dated as
of August 10, 1999, between the Company and Todhunter, a copy of which is
included herein as Exhibit 4. On July 21, 1999, the Company purchased 1,000,000
shares of the Common Stock 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.
Holdings, CL Financial Limited ("CL Financial") and Dalco Capital
Management Company Limited ("Dalco") disclaim beneficial ownership of the
1,650,220 shares of the Common Stock owned by the Company. 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.
Item 7. Material to be Filed As Exhibits.
Exhibit. Description.
1. Commercial Paper Instrument of the Company and Holdings*
2. Stock Purchase Agreement*
3. Commercial Paper Instrument of the Company and Holdings**
4. Stock Purchase Agreement (Todhunter)**
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* Previously filed.
** Filed herewith.
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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: August 12, 1999 Angostura Limited
By: /s/ Godfrey D. Bain
Name: Godfrey D. Bain
Title: Executive Director
of Finance; Member,
Board of Directors
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EXHIBIT INDEX
Exhibit
1. Commercial Paper Instrument of the Company and Holdings*
2. Stock Purchase Agreement*
3. Commercial Paper Instrument of the Company and Holdings**
4. Stock Purchase Agreement (Todhunter)**
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* Previously filed.
** Filed herewith.
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EXHIBIT 3
THIS INSTRUMENT is dated the 30th day of July, 1999 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 Boards of Directors passed on the 9th day of
July, 1999 created US$9,500,000.00 Fixed Rate Unsecured Commercial Paper (the
"Notes") to be constituted by this Instrument
NOW THIS DEED witnesses and it is hereby declared as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Instrument, unless the context otherwise requires:
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are generally open for business in Trinidad and Tobago and New York.
"CERTIFICATE" means a certificate for Notes issued in accordance with
Clause 6 and in the form or substantially in the form set out in the Schedule.
"CHARGE OF SHARES" means a charge over the shares made by each of the
Issuers in favour of the Noteholders to secure the Secured Liabilities.
"DIRECTORS" means the Board of Directors of each of the Issuers for the
time being.
"DOLLARS" "US$" 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 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.
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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 Fixed Rate Secured Commercial Paper of the Issuers
constituted by this Instrument is the aggregate principal amount not exceeding
US$9,500,000.00 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 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).
"SECURED LIABILITIES" means all the moneys obligations and liabilities
whatsoever whether for principal interest or otherwise in whatever currency
which may now or at any time in the future be due or owing by the Issuers to the
Noteholders under the terms of this instrument or the Charge of Shares.
"SHARES" means the common stock held by the Issuers in the undertaking
called Todhunter International, Inc. incorporated in accordance with the laws of
the State of Delaware United States of America with its principal place of
business situated at 222 Lakeview Avenue, Suite 1500, West Palm Beach, Florida,
33401, United States of America.
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
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"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) Headings 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 meetings meanings in this Instrument.
2. AMOUNT AND STATUS OF NOTES
2.1 The principal amount of the Notes is limited to US$9,500,000.00. 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 and shall be secured by the Charge of Shares
which the Issuers HERBY AGREES to issue and grant in favour of the Noteholders
within 45 days of the date hereof.
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 installments in arrear on the 30th day of each month except that the
first payment of interest will be made on the 30th day of August, 1999 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 30th July, 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
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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 Note or any part of the Notes are redeemed under the
provisions of the 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).
(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
(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 process 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 the 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
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(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 becomes repayable before
its due date by reason of either of the Issuers' 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;
(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;
(o) if either of the Issuers fails to execute in favour of the
Noteholders within 45 days of the date hereof a legal, valid,
binding and enforceable Charge of Shares; and
(p) 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 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
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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 Issuers (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.
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
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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 Issuers 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 provided that the Register may be
closed by the Issuers for not more than thirty days in any one year and during
such period the Issuers shall be under no obligation to register transfers of
the Notes.
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 execution 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 persons 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.
11 TRANSFER OF NOTES
11.1 The Notes are transferable in nominal amounts and integral multiples of
US$100,000.00.
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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 authorised 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 its 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
addressee 96 hours after the time of posting notwithstanding that it be
undelivered or returned undelivered and in proving such service it shall be
sufficient to prove that the notice
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on demand was properly addressed and posted. Any notice or demand sent by telex
or telecopier on a business day shall be deemed to have been served at the time
of despatch.
14.3 Each such communication, if made to the Noteholder by the Issuers, shall be
signed and despatched 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
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SCHEDULE
FORM OF COMMERCIAL PAPER CERTIFICATE
Angostura Holdings Limited
Angostura Limited
Certificate Nominal Amount of Commercial Paper
No [_____________] US$ [________________]
ISSUE of [____________] per cent Secured 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 the 9th day of July, 1999.
IT IS TO CERTIFY that [name of Noteholder] of [address] is/are the registered
holders(s) of [________________] dollars of the Fixed Rate Secured 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. Payment of the Notes is also secured by a Charge
of Shares.
Interest is payable at the rate of Libor Per 6 month period plus 3% by monthly
installments in arrear on the _________ day of ______________, each month.
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
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EXHIBIT 4
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made this 10th day of
August, 1999, between Todhunter International, Inc., a Delaware corporation (the
"Company"), and Angostura Limited, a Trinidad corporation (the "Investor").
W I T N E S S E T H:
WHEREAS, the Company desires to issue to Investor Six Hundred Fifty
Thousand Two Hundred Twenty (650,220) shares (the "Shares") of the common stock,
$0.01 par value (the "Common Stock"), of Company.
WHEREAS, the Company 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, the Company hereby sells to Investor, and Investor
hereby purchases the Shares. The Company hereby delivers to Investor a
certificate for the Shares registered in the name of Investor, receipt of which
is hereby acknowledged by Investor.
1.2 Purchase Price. The purchase price for the Shares is U.S.
Six Million Five Hundred Two Thousand Two Hundred Dollars (U.S. $6,502,200) (the
"Purchase Price"), which has been delivered to the Company in immediately
available funds, receipt of which is hereby acknowledged by the Company.
2. REPRESENTATIONS AND WARRANTIES BY THE COMPANY.
The Company represents and warrants as follows:
2.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. It has all necessary governmental approvals and permits and required
corporate power and authority to own its property and to carry on the business
presently conducted by it.
2.2 Free and Clear Transfer. The Shares are issued to Investor
free and clear of all liens, charges, security interests, equities, pledges,
options, claims, charges, restrictions and other encumbrances of every type
whatsoever, other than the securities law restriction referred to in Section
3.2(e) hereof.
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2.3 Corporate Matters. The Company has furnished to Investor
true and correct copies of the Company's Certificate of Incorporation and
By-Laws.
2.4 Capital. The Company has total authorized capital stock of
2,500,000 shares of preferred stock, par value $0.01 per share (the "Preferred
Stock"), 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, and upon receipt of the Purchase Price as
provided herein, will be fully paid and nonassessable and accepted for listing
on the American Stock Exchange, subject to official notice of issuance. The
Shares are not subject to any preemptive rights. Except for the Company's
Employee Stock Option Plan, under which 1,400,000 shares of Common Stock are
reserved for issuance, there are no outstanding options, warrants, privileges or
other arrangements, preemptive, contractual or otherwise, to acquire any shares
of Common Stock or Preferred Stock of the Company.
2.5 Authorization. The Board of Directors of the Company has
approved this Agreement and the transactions contemplated hereby, and has
authorized the execution of this Agreement by its appropriate officers.
2.6 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.
2.7 Power and Authority. The Company has the right, power, legal
capacity, and authority to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby to be
consummated by the Company. 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 by the Company, and the consummation by the Company of the
transactions provided for herein, and assuming neither the Investor nor any of
its affiliates is required to file a notification under the Hart- Scott-Rodino
Antitrust Improvements Act of 1976, as amended, with respect to the transaction
provided for herein, the Company is not required to file a notification as an
acquiring party under such Act with respect to the transaction provided for
herein. This
<PAGE> 3
Agreement constitutes, and each document or instrument to be executed by the
Company, 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 each of the persons executing each of such
documents and instruments, enforceable in accordance with their respective
terms.
2.8 Compliance with Law. The Company is in compliance with all
applicable statutes, ordinances, administrative interpretations, rulings and
regulations. Without limiting the foregoing, the Company has all required
licenses, permits, certificates and authorizations needed for the conduct of the
business as now being conducted. The Company has not received any notice, not
heretofore complied with, from any governmental authority that any of its
properties, equipment or business procedures or practices fails to comply with
any applicable law or regulation.
2.9 Litigation; Products Liability.
(a) There are no material actions, suits or proceedings
pending, and there are no investigations pending, or threatened to which the
Company is or will be a party, or which relate, directly or indirectly, to the
operations, properties, prospects or condition of the business of the Company,
before or by any federal, state, municipal or other governmental department or
commission or court or arbitrator. The Company does not know or have reasonable
grounds to know of any basis for any such action, proceeding or investigation in
the future.
(b) To the best of the Company's knowledge, there has
not been any accident, happening or event which is caused or allegedly caused by
any alleged hazard or alleged defect in manufacture, design, materials or
workmanship, including, without limitation, any alleged failure to warn of any
breach of express or implied warranties or representations with respect to, or
any such accident, happening or event otherwise involving a product of the
Company manufactured, produced, distributed or sold by or on behalf of, the
Company which is likely to result in a claim or loss that would have a material
adverse effect on the Company.
2.10 SEC Filings. There has been delivered to Investor :
(a) the Company's 1998 Form 10-K Annual Report (the
"Form 10-K"), as filed with the Securities and Exchange Commission ("SEC") in
December 1998 pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), containing consolidated balance sheets of the Company at September
30, 1998 and related consolidated Statements of Operations, Statements of
Stockholders Equity and Statements of Cash Flows for the three years then ended
(collectively, the "Audited Financial Statements"), as audited by McGladrey &
Pullen, LLP, independent certified public accountants;
(b) the Company's Forms 10-Q Quarterly Report (the
"Forms 10-Q") for the periods ending March 31, 1999 and December 31, 1998, as
filed with the SEC; and
(c) the Company's proxy statement relating to the
Company's last
<PAGE> 4
annual meeting of its Stockholders (the "Proxy Statement," and together with the
Form 10-K and the Forms 10-Q, the "SEC Filings") filed with the SEC in January
1999.
Neither this Agreement nor the SEC Filings nor any other filing
made by the Company pursuant to Section 13 of the 1934 Act since September 30,
1998 contains or will contain any untrue statement of material fact, or omits or
will omit stating any material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading. The Company has made all filings required to be made by it
with the SEC under Section 13 of the 1934 Act since September 30, 1998.
2.11 Financial Statements. The Audited Financial Statements are
true and complete, have been prepared in accordance with U.S. generally accepted
accounting principles consistently applied throughout the periods indicated, and
fairly present the financial condition on a consolidated basis of the Company,
its assets and liabilities, and the results of its operations as at the
respective dates and for the respective periods indicated. As of March 31, 1999,
the Company had no material liabilities, contingent or otherwise, except as
reflected or reserved against in the unaudited March 31, 1999 balance sheet
contained in the Form 10-Q for the period ended March 31, 1999.
2.12 Absence of Certain Changes. 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;
(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 the SEC Filings 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.
2.13 Intellectual Property. 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
<PAGE> 5
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.
2.14 Loss of Favorable Tax Treatment. To the best of the
Company'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.
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 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
<PAGE> 6
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) Investor is an accredited investor, as that term is
defined in Regulation D under the Securities Act of 1933, as amended (the "1933
Act"). Investor has not, in making the investment, utilized a purchaser
representative, as that term is defined in Regulation D.
(d) There has been direct communication between
Investor and the Company so that Investor has had the opportunity to ask
questions of, and receive answers from, the Company or any person acting on its
behalf concerning the terms and conditions of the transactions contemplated by
this Agreement, and has had the opportunity to obtain any additional information
necessary to verify the accuracy of any information furnished to Investor by the
Company. Investor has inspected or acknowledges that it is entitled to inspect
the Company's books and records and any other relevant documents.
(e) The Shares purchased hereby will not be sold
without registration under the 1933 Act 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. If Investor
proposes to sell under Rule 144 of the General Rules and Regulations under the
1933 Act, the Company agrees to do whatever is reasonably necessary to ensure
that "current public information" is available regarding the Company within the
meaning of paragraph (c) of Rule 144. Investor consents to a legend being placed
on the certificates for the Shares stating that the securities 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 or
agreement contained herein, all of which shall survive delivery of this
Agreement and the purchase of the Shares.
4. INDEMNITIES
4.1 Indemnification. The Company 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
<PAGE> 7
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 the
Company to perform, satisfy or comply with, any of Company's representations,
warranties, covenants, or agreements in this Agreement or in any schedule,
certificate, exhibit, or other instrument furnished or to be furnished by the
Company under this Agreement.
4.2 Indemnification Procedures. In connection with any matters
giving rise to any claims made for indemnification under Section 4.1, the
Company shall choose counsel therefor, subject to approval of the Investor,
which approval shall not be unreasonably withheld, and the Company 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 the
Company, provided the Company's counsel shall control all legal actions, except
such actions in which the Investor reasonably determines that its interests are
adverse to the Company; provided further that the Company shall pay the
reasonable fees and expenses of such additional counsel in the event that the
Investor reasonably determines that the Company and the Investor may have
adverse interests in respect of a claim. The Investor shall notify the Company
of the existence of any claim, demand or other matter to which the Company's
indemnification obligations would apply, and shall give the Company a reasonable
opportunity to defend the same at its own expense. If the Company 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 the Company.
4.3 Indemnification Limitation. The liability of the Company
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 claims related to liability of the Company for federal or
state income taxes shall continue to survive until the end of any applicable
statute of limitation.
5. COSTS
5.1 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.
5.2 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.
6. MISCELLANEOUS.
<PAGE> 8
6.1 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.
6.2 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.
6.3 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.
6.4 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.
6.5 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, the term
"person" shall include without limitation any corporation, partnership, estate,
trust, association, branch, bureau, subdivision, individual, governmental
instrumentality and other entity.
6.6 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.
6.7 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.
6.8 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.
<PAGE> 9
6.9 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,
and agrees that service of such process with respect to this Agreement and the
transactions contemplated hereby, upon such party shall constitute personal
service of such process upon Investor.
6.10 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.
6.11 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):
<TABLE>
<CAPTION>
To the Company: With a copy to:
<S> <C>
Todhunter International, Inc. Gunster, Yoakley, Valdes-Fauli & 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
Attn: A. Kenneth Pincourt, Jr., Pres. Attn: Steven J. Serling, Esq.
Fax: (561) 655-9718 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
</TABLE>
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.
6.12 Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties with respect to the subject matter
hereof, and supersedes all
<PAGE> 10
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.
TODHUNTER INTERNATIONAL, INC.,
By: // Jay S. Maltby //
Jay S. Maltby
President and Chief Operating
Officer
ANGOSTURA LIMITED
By: // Thomas A. Gatcliffe //
Thomas A. Gatcliffe
Chairman
ANGOSTURA INTERNATIONAL LIMITED, a Delaware corporation, accepts its
appointment under Section 6.9 of the above Agreement and agrees to act in
accordance therewith.
ANGOSTURA INTERNATIONAL LIMITED
By: // Tyler B. Phillips //
Tyler B. Phillips
President
