EXHIBIT 3
SUPPORT AND EXCHANGE AGREEMENT
THIS SUPPORT AND EXCHANGE AGREEMENT, dated as of _______, 2002 (this
"Agreement"), is by and among Levy Acquisition Co., a Florida corporation
("Purchaser"), and each of the parties listed on Exhibit A hereto (each in his,
her or its individual capacity, a "Stockholder," and, collectively, the
"Stockholders").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Purchaser and Oriole Homes Corp., a Florida corporation (the
"Company"), are entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), which provides for, upon the terms and
subject to the conditions set forth therein, the merger of Purchaser with and
into the Company (the "Merger") pursuant to which all of the issued and
outstanding shares of the common stock of the Company, par value $.10 per share
(the "Shares"), not beneficially owned by the Purchaser or any of its
affiliates, would be converted into the right to receive $4.90 per share in
cash;
WHEREAS, as of the date hereof, each Stockholder beneficially owns the
number of Shares set forth beside such Stockholder's name on Exhibit A (all such
Shares together with any additional Shares which may hereafter be acquired by
such Stockholder prior to the termination of this Agreement, whether upon the
exercise of options or by means of purchase, dividend, distribution or
otherwise, being referred to herein as the "Owned Shares");
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Purchaser has required that the Stockholders enter into this
Agreement; and
WHEREAS, in order to induce Purchaser to enter into the Merger
Agreement, each Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Purchaser and each Stockholder hereby agree as follows:
ARTICLE I
VOTING OF SHARES;
OTHER COVENANTS OF THE STOCKHOLDER
SECTION 1.1. Voting of Shares. From the date hereof until termination
of this Agreement pursuant to Section 4.2 hereof (the "Term"), at any meeting of
the stockholders of the Company, however called, each Stockholder shall vote the
Owned Shares (i) in favor of the Merger and the Merger Agreement (as amended
from time to
time, provided that no such amendment will (a) decrease the amount or change the
form of Merger Consideration, (b) permit the consummation of the Merger to occur
prior to January 15, 2003 or (c) otherwise amend the terms of the Merger
Agreement in any respect that is adverse to the holders of Shares other than the
Purchaser and its affiliates), (ii) against any acquisition proposal and against
any proposal for action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or which is
reasonably likely to result in any of the conditions of the Company's
obligations under the Merger Agreement, not being fulfilled, or any other action
which could reasonably be expected to impede, interfere with, delay, postpone or
materially adversely affect the transactions contemplated by the Merger
Agreement or the likelihood of such transactions being consummated and (iii) in
favor of any other matter necessary for consummation of the transactions
contemplated by the Merger Agreement. The foregoing obligations shall also apply
to any action to be taken by written consent of Company stockholders without a
meeting.
SECTION 1.2. No Inconsistent Arrangements. Except as contemplated by
this Agreement and the Merger Agreement, each Stockholder shall not during the
Term (i) transfer (which term shall include, without limitation, any sale,
assignment, gift, pledge, hypothecation or other disposition), or consent to any
transfer of, any or all of the Owned Shares or any interest therein, or create
or permit to exist any Encumbrance (as defined in Section 2.3 hereof) on such
Owned Shares, (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Owned Shares or
any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to the Owned Shares, (iv) deposit the Owned
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to the Owned Shares, or (v) take any other action that would in any way
restrict, limit or interfere with the performance of its obligations hereunder
or the transactions contemplated hereby or by the Merger Agreement; provided,
however, the foregoing shall not prohibit Xxxxxx X. XxXxxxxxxx, Xx. from
transferring 100,000 or less Owned Shares, to a single charitable organization;
provided that such transfer shall occur after the record date for the
Stockholders' Meeting, as such term is defined in Section 3.1(d) of the Merger
Agreement.
SECTION 1.3. Stop Transfer. The Stockholders shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Owned Shares, unless such
transfer is made in compliance with this Agreement.
SECTION 1.4. No Solicitation. During the Term, the Stockholders shall
not, nor shall any Stockholder permit or authorize any of its partners,
employees, agents or representatives (collectively, the "Representatives") to,
take any action which a Company representative would be prohibited from taking
by the terms of the Merger Agreement with respect to a Competing Transaction.
Each Stockholder will promptly notify Purchaser of the existence of any
proposal, discussion, negotiation or inquiry received by such Stockholder with
respect to a Competing Transaction and will immediately
communicate to Purchaser the terms of any proposal, discussion, negotiation or
inquiry with respect to a Competing Transaction which it may receive (and will
promptly provide to Purchaser copies of any written materials received by it in
connection with such proposal, discussion, negotiation or inquiry) and the
identity of the Person making such proposal or inquiry or engaging in such
discussion or negotiation.
SECTION 1.5. Exchange of Shares. Upon the consummation of the Merger,
the Stockholders will exchange all of their Owned Shares for the Merger
Consideration in accordance with the terms and conditions set forth in the
Merger Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants (severally but not
jointly) to Purchaser as follows:
SECTION 2.1. Due Authorization, etc. Such Stockholder has all requisite
power and authority to execute, deliver and perform this Agreement, to appoint
Purchaser as its Proxy and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of such Stockholder. This Agreement has been duly
executed and delivered by or on behalf of such Stockholder and constitutes a
legal, valid and binding obligation of such Stockholder, enforceable against
such Stockholder in accordance with its terms.
SECTION 2.2. No Conflicts; Required Filings and Consents.
(a) Except as would not materially impair or delay the ability of such
Stockholder to consummate the transactions contemplated hereby, the execution
and delivery of this Agreement by such Stockholder does not, and the performance
of this Agreement by such Stockholder will not, (i) subject to the filings
referred to in Section 2.2(b), conflict with or violate any law applicable to
such Stockholder or by which such Stockholder or any of such Stockholder's
assets is bound or affected or (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, acceleration or
cancellation of, or result in the creation of an Encumbrance on any assets of
such Stockholder, including, without limitation, Owned Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Stockholder is a party
or by which such Stockholder or any of such Stockholder's assets is bound or
affected.
(b) Except as would not materially impair or delay the ability of such
Stockholder to consummate the transactions contemplated hereby, the execution
and delivery of this Agreement by such Stockholder does not, and the performance
of this Agreement by such Stockholder will not, require any consent, approval,
authorization or permit of, or filing
with or notification to, any governmental or regulatory authority (other than
any necessary filing under or with respect to the HSR Act, the Exchange Act, the
Securities Act, the American Stock Exchange or other securities or blue sky
law).
SECTION 2.3. Title to Shares. Except as disclosed to Purchaser in
writing by such Stockholder, such Stockholder is beneficial owner of the Owned
Shares, free and clear of any pledge, lien, security interest, mortgage, charge,
claim, equity, option, proxy, voting restriction, voting trust or agreement,
understanding, arrangement, right of first refusal, limitation on disposition,
adverse claim of ownership or use or encumbrance of any kind ("Encumbrances"),
except for Encumbrances or proxies arising pursuant to this Agreement. As of the
date hereof, the Shares listed on Exhibit A beside such Stockholder's name under
the caption "Number of Shares" are the only Shares owned of record or
beneficially by such Stockholder.
SECTION 2.4. No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder. Such Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby or by the Merger Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Stockholder as follows:
SECTION 3.1. Due Organization, Authorization, etc. Purchaser is duly
organized, validly existing and in good standing under the laws of their
jurisdiction of incorporation. Purchaser has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Purchaser has
been duly authorized by all necessary corporate action on the part of Purchaser.
This Agreement has been duly executed and delivered by Purchaser and constitutes
a legal, valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms.
SECTION 3.2. Investment Intent. Purchaser will be acquiring the Owned
Shares pursuant to the Exchange for its own account and not with a view to
distribution or resale in any manner which would be in violation of the
Securities Act.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Definitions. Terms used but not otherwise defined in this
Agreement have the meanings ascribed to such terms in the Merger Agreement.
SECTION 4.2. Termination. This Agreement shall terminate and be of no
further force and effect upon the earlier of (i) the written mutual consent of
the parties hereto, (ii) automatically and without any required action of the
parties hereto upon the termination of the Merger Agreement prior to the
Effective Time in accordance with its terms or (iii) the Effective Time. No such
termination of this Agreement shall relieve any party hereto from any liability
for any breach of this Agreement prior to termination.
SECTION 4.3. Further Assurance. From time to time, at another party's
request and without additional consideration, each party hereto shall execute
and deliver such additional documents and take all such further action as may be
reasonably necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
SECTION 4.4. Certain Events. Each Stockholder agrees that this
Agreement and the Stockholder's obligations hereunder shall attach to the Owned
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of the Owned Shares shall pass, whether by operation of law
or otherwise. Notwithstanding any transfer of the Owned Shares, the transferor
shall remain liable for the performance of all its obligations under this
Agreement.
SECTION 4.5. Specific Performance. Each Stockholder acknowledges that
if such Stockholder fails to perform any of its obligations under this Agreement
immediate and irreparable harm or injury would be caused to Purchaser for which
money damages would not be an adequate remedy. In such event, each Stockholder
agrees that Purchaser shall have the right, in addition to any other rights it
may have, to specific performance of this Agreement. Accordingly, if Purchaser
should institute an action or proceeding seeking specific enforcement of the
provisions hereof, each Stockholder hereby waives the claim or defense that
Purchaser has an adequate remedy at law and hereby agrees not to assert in any
such action or proceeding the claim or defense that such a remedy at law exists.
Each Stockholder further agrees to waive any requirements for the securing or
posting of any bond in connection with obtaining any such equitable relief.
SECTION 4.6. Notice. All notices, requests, claims demands and other
communications under this Agreement shall be in writing and shall be deemed
given upon due receipt if delivered personally or sent by overnight courier or
facsimile (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) If to Purchaser: Levy Acquisition Co.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxx
(b) If to a Stockholder: To the appropriate address shown on
Exhibit A.
SECTION 4.7. Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.8. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the maximum extent
possible.
SECTION 4.9. Entire Agreement; No Third-Party Beneficiaries. This
Agreement, together with the letter agreement dated as of August ____, 2002 (the
"Letter Agreement"), constitutes the entire agreement, and supersedes all other
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter of this Agreement and the Letter Agreement,
and neither this Agreement nor the Letter Agreement is intended to confer upon
any person, other than the parties hereto, any rights or remedies.
SECTION 4.10. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise by any of the parties;
provided, however, that Purchaser may assign, in its sole discretion, its rights
and obligations hereunder to any direct or indirect wholly-owned subsidiary of
Purchaser, but no such assignment shall relieve Purchaser of its obligations
hereunder if such assignee does not perform such obligations.
SECTION 4.11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof. Each of the parties hereto (a) hereby irrevocably and
unconditionally consents to submit to the personal jurisdiction of the courts of
the State of Florida and of the United States of America located in the State of
Florida in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) shall not
object to or attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, and (c) shall not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any other court.
SECTION 4.12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 4.13. Amendment. This Agreement may not be amended except by
an instrument in writing signed by the parties hereto.
SECTION 4.14. Waiver. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
SECTION 4.15. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 4.16. Obligations. The obligations of the Stockholders under
this Agreement are several but not joint.
IN WITNESS WHEREOF, Purchaser and the Stockholders have caused this
Agreement to be executed as of the date first written above.
LEVY ACQUISITION CO.
By: __________________________
Name:_________________________
Title:________________________
_______________________________
Xxxxxx X. XxXxxxxxxx, Xx.
XXXXXXXXXX FAMILY FUND
By:____________________________
Name: Xxxxxx X. XxXxxxxxxx, Xx.
Title: General Partner
XXXXXX X. XXXXXXX, XXXXX X. XXXX, XXXXXX X.
XXXXXXXXXX, XX. AS TRUSTEES FOR LOEB XXXXXX
HORNBLOWER PROFIT SHARING TRADING FOR
ACCOUNT OF XXXXXX X. XXXXXXXXXX, XX.
By:____________________________
Name: Xxxxxx X. XxXxxxxxxx, Xx.
Title: Trustee
_______________________________
Xxxxxx Xxxxxx
_______________________________
Xxxxxx X. Xxxx
XXXX ARBITRAGE MANAGEMENT, INC.
By:____________________________
Name: Xxxxxx X. Xxx
Title: President
LOEB ARBITRAGE FUND
By: Loeb Arbitrage Management, Inc.,
General Partner
By:____________________________
Name: Xxxxxx X. Xxx
Title: President
LOEB PARTNERS CORPORATION
By:____________________________
Name: Xxxxxx X. Xxx
Title: Executive Vice President
EXHIBIT A
Number of Class A Shares Number of Class B Shares
Name & Address of Shareholder Beneficially Owned Beneficially Owned
Xxxxxx X. XxXxxxxxxx, Xx. 137,700 672,400
00 Xxxxxxxx
Xxx Xxxx, XX 00000
XxXxxxxxx Family Fund 12,500 34,900
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Loeb Partners Corporation 600 25,395
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Loeb Arbitrage Fund 8,600 194,305
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Loeb Arbitrage Management, Inc. ---- ----
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxx 500 19,600
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx 400 28,500
00 Xxxxxxxx
Xxx Xxxx, XX 00000
TOTAL 160,300 975,100
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