ALICO SEPARATION AGREEMENT
THIS ALICO SEPARATION AGREEMENT (the "Separation Agreement") is
made and entered into this 27th day of December, 2001, by and among B.H.G.,
INC., a Florida corporation ("BHG"), XXX XXXX XXXXXXX, INC., a Florida
corporation ("Xxxxxxx Corp"), XXX XXXX XXXXXXX INVESTMENTS, INC., a Nevada
corporation ("BHG Investments"), Xxx Xxxx Xxxxxxx, III, individually ("Xxxxxxx
III") and as Trustee of the Xxx Xxxx Xxxxxxx Inter Vivos Trust #1 pursuant to
that certain Xxx Xxxx Xxxxxxx, Jr. Revocable Inter Vivos Trust #1
Agreement dated May 11, 1978, as amended by the First Amendment thereto dated
April 3,0, 1985, and by the Second Amendment thereto dated January 30, 1990
(the "Trust") and the Four Sisters Protectorate ("Four Sisters Protectorate"),
acting on behalf of those shareholders of BHG (the "Protectorate
Shareholders") who are parties to, and pursuant to the authority granted
to the Four Sisters Protectorate under, that certain Shareholder and Voting
Agreement dated August 22, 1998, as amended by an Addendum to Shareholder and
Voting Agreement dated effective as of October 1, 1998, and by a Second
Addendum to Shareholder and Voting Agreement dated effective as of January 6,
2000 (collectively, the "FSP Agreement"), copies of which have been provided
to all of the other parties hereto.
R E C I T A L S:
A. BHG and Xxxxxxx Corp, a 99.7% owned subsidiary of BHG, are primarily
engaged in agricultural related businesses including citrus production,
harvesting and marketing; commercial cattle ranching and sales; and fertilizer
production and sales. In addition, BHG Investments, which is a wholly owned
subsidiary of Xxxxxxx Corp, owns 3,493,777 shares of the One Dollar ($1.00)
par value common stock (the "Alico Shares") of Alico, Inc., a Florida
corporation ("Alico"). The Alico Shares represent approximately 49.71 % of
the issued and outstanding shares of Alico.
B. On March 29, 2001, Xxxxxxx III and the Four Sisters Protectorate,
acting on behalf of the Protectorate Shareholders, entered into a Settlement
Agreement ("Settlement Agreement") to resolve ongoing litigation between them.
C. The parties thereafter amplified the Settlement Agreement by entering
into an Addendum to Settlement Agreement and Plan of Corporate
Reorganization and Separation of B.H.G., Inc. and Xxx Xxxx Xxxxxxx, Inc.
executed the same date as this Agreement (the "BHG Corporate Separation
Agreement") in which the parties have set forth the terms of a
separation of certain businesses of BHG and Xxxxxxx Corp pursuant to a
corporate split off transaction. Included among the assets to be separated
under the BHG Corporate Separation Agreement are the Alico Shares. The parties
wish to set forth the terms of their agreement with respect to Alico and the
Alico Shares in this Separation Agreement, which also amplifies the
Settlement Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below and for other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged by all parties, it is agreed
as follows:
1. Recitals and Definitions.
a. Recitals. The statements of facts set forth in Paragraphs A through
C of the Recitals above are true and correct and are incorporated herein and
made a part hereof.
b. Definitions. The following terms, which are used but not defined
elsewhere in this Separation Agreement, shall have the meanings set forth
below:
(1)"Affiliate" means the following: a party ("first party") will
be deemed to be an Affiliate of another party ("second party") if the
first party directly or indirectly owns or controls the second party, or if
the first party is, directly or indirectly, owned by or under common control
with the second party. For purposes of the preceding sentence, "control"
shall mean ownership (direct or indirect) of a majority of the voting
interests in such entity.
(2)"Corporate Split-Off" means the series of transactions described in
Subparagraphs 3.c. through and including 31 below.
(3)"Four Sisters Protectorate" means the following persons
who were appointed by the Protectorate Shareholders pursuant to the FSP
Agreement: Xxxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xx., Xxxxx Xxxx Xxxxxxxxx,
Xxxx X. Xxxxxxxxx, Xxxx Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxxx X.
Xxxxxxxx, Xxxxx X. Xxxxxxxx and X.X. Xxxxxxxxx. Any consent or decision by
the Four Sisters Protectorate provided for or contemplated under this
Separation Agreement shall be made by not less than five (5) members of
the Four Sisters Protectorate, except that the execution of this Separation
Agreement and any amendment hereto must be approved by seven (7) members
of the Four Sisters Protectorate pursuant to the FSP Agreement.
(4)"GAAP" means generally accepted accounting principles, consistently
applied.
(5)"Person" means an individual, partnership, limited partnership,
limited liability company, limited liability partnership, corporation,
trust, estate, and any other association or form of legal entity.
(6)"Protectorate Shareholders" means the following: (i) those Persons
who are parties and/or signors to the FSP Agreement (collectively,
the "FSP Agreement Parties"); (ii) the spouse and lineal descendants of
the FSP Agreement Parties who own any interest in shares of BHG at the
time of the Closing; (iii) any partnership, trust, corporation or other
entity formed or established by any of the FSP Agreement Parties which
hold any interest in shares of BHG at Closing; and (iv) when the Trust is
reformed by distributing its assets to new "family branch trusts," such term
shall also include all of the family branch trusts and the trustees thereof
(in their fiduciary capacities) created for Xxxxxxxx X. Xxxxxx, Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxx Xxxx X. Xxxxxxx and their lineal
descendants.
2. Closing. The consummation of the transactions contemplated in
Paragraph 3 below (the "Closing") shall occur at the same place and time
("Closing Date")as, and shall be conditional upon the occurrence of, the
closing of the transactions described in the BHG Corporate Separation
Agreement.
3. Method of Achieving Corporate Separation. The procedures to be
followed in connection with the division of BHG and Xxxxxxx Corp, as they
pertain to Alico and the Alico Shares, are as follows:
a. Formation of Four Sisters Family Corporation. On or prior to the
Closing Date, Xxxxxxx Corp shall form a new corporation under the laws of the
State of Florida to be known as "Four Sisters Family Corporation" ("Newco").
The Articles of Incorporation, Bylaws and other organizational documents of
Newco shall be in such form as the attorneys for the Four Sisters
Protectorate determine to be appropriate in their sole discretion, and
shall authorize the issuance of 500,000 shares of ten cent ($.10) par
value, Class A non-voting common stock and 100,000 shares of ten cent ($.10)
par value, Class B voting common stock. All costs associated with the formation
of Newco shall be charged to, and paid by, Newco.
b. Issuance of Stock of Newco. On or prior to the Closing Date,
Xxxxxxx Corp shall assign and contribute to Newco one hundred percent (100%)
of the membership interests of Alico LLC by appropriate Assignments of
Membership Interests in form and content satisfactory to counsel for the Four
Sisters Protectorate, together with certain other assets identified in the BHG
Corporate Separation Agreement, free and clear of any and all liens, security
interests, options, claims or other restrictions or encumbrances, in exchange
or 212,985.4567 shares of ten cent ($.10) par value, Class A common stock of
Newco and 20,258.6188 shares of ten cent ($.10) par value, Class B
common stock of Newco (but the number of Class A and Class B shares are subject
to change as provided in Subparagraph 3.c. below). The cost of issuing such
shares, including all Florida documentary stamps payable thereon, shall be
charged to, and paid by, Newco at the Closing.
First Stage Spin-Off. On the Closing Date, and after completion of
the capitalization of Newco in accordance with the terms of Subparagraph 3.b.
above, 212,367.160 shares of Class A common stock of Newco and 20,199.808
shares of Class B common stock of Newco shall be distributed by Xxxxxxx Corp
to BHG and 618.2967 shares of Class A common stock of Newco and 58.8108 shares
of Class B common stock of Newco shall be distributed among the remaining
shareholders ("Minority Shareholders") of Xxxxxxx Corp in accordance with
Schedule 3.c. attached hereto. If any of the shares of Xxxxxxx Corp which
are issued and outstanding as of the date of this Separation Agreement are
redeemed by Xxxxxxx Corp from the Minority Shareholders prior to the Closing,
appropriate adjustment shall be made in the number of shares of
Newco which are distributed hereunder. All of such Class A and Class B
common stock of Newco shall be distributed in a corporate spin-off and
pursuant to the procedures approved in the Favorable Corporate Ruling (as
defined in Subparagraph 4.a. below) issued by the IRS to BHG with respect
to the transactions contemplated in this Agreement. All shares of Newco
common stock conveyed by Xxxxxxx Corp to BHG and to the Minority Shareholders
shall be fully paid and nonassessable; shall be free and clear of
any and all security interest, liens, claims option and restrictions;
and Xxxxxxx Corp shall convey good and marketable title to such shares
to each transferee.
d. Second Stage Split-Off. On the Closing Date, and only upon
completion of the steps described in Subparagraph 3.c. above and Paragraph
4 below, which are express conditions precedent, the newly reformed trusts
for the benefit of Xxxxxxxx X. Xxxxxx, Xxxxx Xxxx Xxxxxxxxx, Xxxxxxx X.
Xxxxxxxx, Xxxx Xxxx X. Xxxxxxx and their lineal descendants created pursuant
to the Petition for Reformation described in Subparagraph 4.b.(1) below (the
"Four Sisters' Sub-trusts") shall assign and convey to BHG 13,167.808 shares
of the Class B common stock of BHG, representing all of the Class B common
stock of BHG allocable to the Four Sisters' Sub-trusts, and the Protectorate
Shareholders shall assign and convey to BHG all of their shares of both
Class A and Class B common stock of BHG, consisting of 212,367.160 shares of
Class A common stock and 7,032 of Class B common stock. For each share (or
fraction thereof) of either Class A or Class B common stock of BHG
surrendered and conveyed by a Four Sisters' Sub-trust or by a Protectorate
Shareholder to BHG, such Four Sisters' Sub-trust or such Protectorate
Shareholder shall receive from BHG an equivalent share (or fraction
thereof, as the case may be) of Class A or Class B common stock of Newco, as
is applicable. All shares of stock conveyed to and from BHG shall be fully
paid and nonassessable; shall be free and clear of any and all securities
interests, liens, claims, options and restrictions; and BHG shall convey
good and marketable title to such shares to such transferee. The remaining
shares of BHG Class A and Class B common stock held by the trustee of the
newly reformed trusts created under the Petition for Reformation for the
benefit of Xxxxxxx III and his lineal descendants shall be unaffected
by this split-off and such trusts shall continue to hold the Class A and
Class B common stock of BHG previously held by them.
4. Conditions Precedent to Corporate Separation. The obligations of the
parties to consummate the transactions described in Subparagraphs 3.a. through
and including 3.d. above, shall be conditioned upon the satisfaction of all of
the following conditions on or before the Closing:
a. Receipt of Favorable Corporate Ruling from IRS. BHG shall have
received a private letter ruling from the IRS which holds that the
consummation of the transactions described in Paragraph 3 above will not
result in the recognition of taxable income by BHG and/or any of its
Affiliates (including Xxxxxxx Corp), or by any of the Protectorate
Shareholders for federal income tax purposes by reason of Sections
368(a)(1)(D) and 355 of the Code (a "Favorable Corporate Ruling").
The parties acknowledge that the IRS may require that some or all of
the steps described in Paragraph 3 above be modified as a condition to
the receipt of a Favorable Corporate Ruling. No such modification shall be
made without the consent of the parties, but the parties agree to be
flexible and not to unreasonably withhold their approval of any such
changes that are materially consistent with the terms of the Settlement
Agreement.
b. Receipt of Favorable Trust Ruling from IRS and Court Approval
for Reformation of Trust. Each of the following steps with respect to
the Trust shall be accomplished on or before the Closing:
(1) The Trust reformation shall have been approved in substantially
the same manner as contemplated in that certain Petition for
Reformation of Trust and Appointment of Trustee attached hereto as Exhibit
"A" and incorporated herein ("Petition for Reformation") pursuant to a
final decision of a court of competent jurisdiction.
(2) The Trust shall have received a private letter ruling from
the IRS which holds that the reformation of the Trust as described in
Subparagraph 4.b.(1) above will not result in the imposition of any federal
gift taxes upon the trustee of the Trust or any beneficiary of the Trust
who has joined in the request for a ruling ("Ruling Request Party") as a
result of such reformation; if such ruling contains a determination by the
IRS with respect to the generation skipping tax ("GST") consequences of
the reformation, such ruling shall not contain a determination by the IRS
that the proposed reformation will result in the imposition of any GST
taxes upon the trustee of the Trust, the Trust or upon any Ruling Request
Party as a result of such reformation; and, if such ruling contains a
determination by the IRS with respect to the income tax consequences of
the reformation, such ruling shall not hold that the Trustee of the
Trust or any Ruling Request Party is the "grantor" or "owner" (within the
meaning of sections 671 through 678 of the Code) of any portion of his or
her trust that is created from the division of the Trust as a result of
such reformation (collectively, a "Favorable Trust Ruling").
(3) In the event that the IRS rules that the limited power of
appointment set forth in the Petition for Trust Reformation results in
any adverse tax consequences to the Trustee, the Trust or any beneficiary
of the Trust then the creation of such limited power of appointment shall
be removed from said Petition for Trust Reformation.
c. Performance by BHG and Affiliates. The obligations of the
Protectorate Shareholders and the Four Sisters Protectorate to be
performed hereunder are subject to the satisfaction on or before the
Closing Date (unless an earlier date is specified herein or in the BHG
Corporation Separation Agreement) of the following conditions and
contingencies unless such conditions and contingencies are expressly
waived in writing by the Four Sisters Protectorate:
(1) Xxxxxxx III, BHG, Xxxxxxx Corp, BHG Investments and their
Affiliates shall have fully complied with, and performed, all of their
obligations and covenants under this Separation Agreement and under the
BHG Corporate Separation Agreement.
(2) No litigation, arbitration, mediation or other similar
proceeding shall have been commenced and be continuing, or shall have
been overtly threatened, in which any party seeks to: (i) enjoin the
consummation of the transactions contemplated in this Separation Agreement
and/or in the BHG Corporate Separation Agreement; or (ii) obtain substantial
damages in respect of the transactions contemplated in this Separation
Agreement or in the BHG Corporate Separation Agreement.
(3) All representations and warranties of BHG, Xxxxxxx Corp
and/or BHG Investments which are contained in this Separation Agreement and
in the BHG Corporate Separation Agreement shall be true, complete and correct,
and not misleading, as of the date when given and on the Closing Date as
though such representations and warranties were received at such time. In the
event any representations and warranties of BHG, Xxxxxxx Corp and/or BHG
Investments which are contained in this Separation Agreement or in the BHG
Corporate Separation Agreement are not true and correct as of the Closing
Date, then the Protectorate Shareholders and the Four Sisters Protectorate
may, at their option, waive the breach, or, in the case of a material breach,
refuse to close the transactions contemplated in this Separation Agreement
and in the BHG Corporate Separation Agreement, or the Protectorate
Shareholders shall be entitled to such other relief as the Court may
order pursuant to Subparagraph 9.h. below.
d. Performance by Protectorate Shareholders and Four Sisters
Protectorate. The obligations of BHG, Xxxxxxx Corp, BHG Investments and
Xxxxxxx III to be performed hereunder are subject to the satisfaction on
or before the Closing Date (unless an earlier date is specified herein) of
the following conditions and contingencies unless such conditions and
contingencies are expressly waived in writing by BHG, Xxxxxxx Corp, BHG
Investments and Xxxxxxx III:
(1) The Four Sisters Protectorate and the Protectorate
Shareholders shall have fully complied with, and performed, all of their
obligations under this Separation Agreement and the BHG Corporate Separation
Agreement.
(2) No litigation, arbitration, mediation or other similar
proceedings shall have been commenced and be continuing, or shall have been
overtly threatened, in which any party seeks to: (i) enjoin the consummation
of the transactions contemplated in this Separation Agreement or in the BHG
Corporate Separation Agreement; or (ii) obtain substantial damages in respect
of the transactions contemplated by this Separation Agreement and/or BHG
Corporate Separation Agreement.
(3) All representations and warranties of the Four Sisters
Protectorate and the Protectorate Shareholders which are contained in this
Separation Agreement and in the BHG Corporate Separation Agreement shall be
true, complete and correct, and not misleading, as of the date when given and
on the Closing Date as though such representations and warranties were
received at such time. In the event that any representations and warranties
of the Four Sisters Protectorate and/or the Protectorate Shareholders which
are contained in this Separation Agreement or in the BHG Corporate Separation
Agreement are not true and correct as of the Closing Date, then BHG, Xxxxxxx
Corp, BHG Investments and Xxxxxxx III may at their option waive the breach,
or, in the case of a material breach, refuse to close the transactions
contemplated in this Separation Agreement and in the BHG Corporate Separation
Agreement, or be entitled to such other relief as the Court may order pursuant
to Subparagraph 9.h. below.
e. Protectorate Shareholders. All of the Protectorate Shareholders (or,
if they are minors, their guardians or other legally appointed representatives)
shall have executed a joinder (which may be executed in counterparts) to this
Separation Agreement and to the BHG Corporate Separation Agreement agreeing
to be bound by the terms hereof and thereof, or, in the alternative, a final
order shall have been issued by a court of competent jurisdiction which
provides that the terms and conditions of the Settlement Agreement, as
modified by this Separation Agreement and the BHG Corporate Separation
Agreement, executed by the Four Sisters Protectorate on behalf of the
Protectorate Shareholders, are binding upon all of the Protectorate
Shareholders, and shall be performed by them. To the extent that any of
the Protectorate Shareholders is a partnership, corporation, or such
other entity, then any such joinder must be executed by all general
partners in the case of a partnership, or in the case of a corporation
or other such entity by an authorized officer, accompanied by a fully
executed incumbency certificate and a corporation resolution authorizing the
execution of such joinder. To the extent that any of the Protectorate
Shareholders is a trust, then any such joinder must be executed by all of
the trustees of such trust, accompanied by an affidavit attesting to the
authority of such trustee(s) for such execution, and an affidavit
affirmatively stating that a conflict of interest does not exist between
such trustee(s) and the beneficiaries of such trust.
f. Closing of BHG Transactions. The closing of the transactions
contemplated in Subparagraphs 3.a. through 3.d. above shall be contingent
upon, and shall take place simultaneously with, the closing of all of the
transactions contemplated in the BHG Corporate Separation Agreement.
5. Interim Management of Alico Shares. During the period commencing
on the date of this Separation Agreement and terminating upon the earlier
of: (i) the completion and closing of all of the transactions described
in Paragraph 3 above or (ii) the expiration of the term of this Separation
Agreement ("Interim Period"), Alico LLC shall be operated and managed in
accordance with the provisions set forth in this Paragraph 5.
After completion of the merger of BHG Investments with and into
Alico LLC (with Alico LLC being the surviving entity) under Subparagraph
7.b. below, Xxxxxxx Corp will be the sole member of Alico LLC. Xxxxxxx III,
BHG and Xxxxxxx Corp agree, on behalf of themselves and on behalf of Alico
LLC, that, to the extent within their control, they will cause and, to the
extent within the control of Alico, they will request the Board of Directors
of Alico, and/or they will vote the Alico Shares, to accomplish the following
during the Interim Period:
a. The current management personnel and board of directors will be
left intact.
b. Alico will be managed and operated in the normal course of
business and in accordance with prior practices.
x. Xxxxxxx III, BHG and Xxxxxxx Corp shall promptly notify the Four
Sisters Protectorate if Alico enters into any long term contracts or
commitments (i. e., with a duration in excess of one year). Such
notification shall be in writing and shall identify all of the parties
to such contract or commitment and shall also include a full description
of all material terms of such contract or commitment. In addition, neither
Alico nor its Affiliates will enter into any such long term contract or
commitment with Xxxxxxx III, Xxxxxxx N, BHG, Xxxxxxx Corp or their
Affiliates without the prior written consent of the Four Sisters
Protectorate.
d. The compensation (salary, bonuses and other forms of
remuneration) paid by Alico to Xxxxxxx III, Xxx Xxxx Xxxxxxx IV
("Xxxxxxx IV"), and any member of the immediate families of Xxxxxxx
III or Xxxxxxx IV may only be increased in the normal and customary
course of Alico's business and in a manner consistent with the prior
practices of Alico, and there shall be no extraordinary increases in
any such compensation. If the Closing occurs prior to the end of a
fiscal year of Alico, a reasonable, prorated bonus may be paid to
Xxxxxxx III and/or Xxxxxxx IV if approved by Alico's Board of Directors.
The compensation (as defined above) of W. Xxxxxxx Xxxxxx may be increased
in the normal course of Alico's business in a manner consistent with
the prior practice of Alico with respect to adjusting his compensation,
but Xxxxxxx III will neither participate in any vote in favor of, nor
encourage or speak in favor of, any extraordinary increases in such
compensation for W. Xxxxxxx Xxxxxx without the prior consent of the
Four Sisters Protectorate. The provisions of this Subparagraph 5.d.
shall apply notwithstanding any provisions to the contrary contained
in that certain Memorandum of Agreement dated July 27, 2001 among
the parties hereto (other than the Trust and BHG Investments).
e. No new or additional stock options, warrants or other rights to
purchase shares of Alico (i. e., other than pursuant to a plan or policy
for granting such options, warrants or rights already in place at Alico
on March 28, 2001) shall be granted to Xxxxxxx III, Xxxxxxx IV, members
of their immediate families, or any trust or family entity for the
benefit of, or affiliated with, any of the foregoing, and no stock of Alico
will be sold or transferred by Alico or its Affiliates to any of the
foregoing except pursuant to a plan or policy of Alico that was in place
on March 28, 2001, a summary of which as it pertains to Xxxxxxx III is
attached hereto as Exhibit "B." Any rights to acquire Alico stock in excess
of the amounts referred to in the preceding sentence shall be irrevocably
waived by Xxxxxxx III and Xxxxxxx IV. There shall also be no "golden
parachutes," unusual stock options or severance benefits granted or paid by
Alico or its Affiliates to Xxxxxxx III, Xxxxxxx IV or any member of their
immediate families; provided, however, that Xxxxxxx III may receive a
reasonable, prorated stock option as of the Closing Date if approved by
Alico's Board of Directors and if allowable under the Stock Option Plan of
Alico which was in place as of March 28, 2001.
Xxxxxxx III will neither participate in any vote in favor of, nor
encourage or speak in favor of, any new or additional stock options,
warrants or other rights to purchase shares of Alico (i. e., other than
pursuant to a plan or policy for granting such options, warrants or rights
already in place at Alico on March 28, 2001) granted to W. Xxxxxxx Xxxxxx,
or with respect to the granting of any "golden parachute," unusual stock
options or other extraordinary compensation to W. Xxxxxxx Xxxxxx.
f. Subject to the continuing effectiveness of the Confidentiality
Agreement between Alico and the Four Sisters Protectorate, the Four
Sisters Protectorate shall be provided the same financial information
provided by Alico to its key management personnel and to its directors
(which shall be furnished simultaneously with the provision of such
information to such key management personnel and/or directors), and
not more than two representatives designated in writing by the Four
Sisters Protectorate shall have access, after reasonable prior notice,
to W. Xxxxxxx Xxxxxx, Xxxxxxx Xxxxx and other key management personnel
and consultants of Alico for the purpose of informing themselves of the
business operations and assets of Alico, and to assure continuity of
management.
Notwithstanding the foregoing, nothing contained in this Paragraph 5
shall be interpreted to require any person who is a director of Alico to
violate any fiduciary duty of such person to the shareholders of Alico as
a group or to take any action which competent counsel to such person
reasonably advises would be in violation of fiduciary duty or applicable
corporate or securities laws.
In addition to the foregoing, none of the Alico Shares (or any stock
received with respect to the Alico Shares such as, for example, Alico stock
received as a stock dividend or in conjunction with a stock split) or any
membership interests in Alico LLC shall be sold, pledged, restricted or
otherwise transferred except pursuant to the express terms of this
Separation Agreement.
The Alico Shares and, except as otherwise specifically provided to the
contrary below, any and all distributions (whether in the form of cash, stock
or other assets) with respect to the Alico Shares made by Alico from and after
March 29, 2001 shall be transferred to and retained in Alico LLC until the
Closing. Upon the earlier of (i) the Closing and immediately prior to the
"corporate spin-off" transaction described in Subparagraph 3.c. above, or
(ii) the "Dividend Distribution Date" (as hereinafter defined), BHG
Investments (or, if the merger described in Subparagraph 7.b. below has been
completed, then Alico LLC) shall distribute to Xxxxxxx Corp 40% of an
amount equal to any and all cash dividend distributions up to (but not in
excess of) an aggregate amount (i.e., inclusive of any and all distributions
made by Alico with respect to the Alico Shares from March 29, 2001 through the
earlier of the Closing Date or April 30, 2002) of One Dollar ($1.00) per share
made by Alico to BHG Investments or Alico LLC (as the case may be) with
respect to the Alico Shares during the period commencing March 29, 2001
and terminating on the earlier of (i) the Closing Date, or (ii) April 30,
2002. Any and all cash distributions made by Alico with respect to the Alico
Shares in excess of (1) the $1.00 per share limitation (applicable to
distributions made on or before the earlier of Closing or April 30, 2002),
and (2) the portion of such distributions distributable to Xxxxxxx Corp under
the preceding sentence, together with 100% of all cash distributions made by
Alico with respect to the Alico Shares after the earlier of April 30, 2002
or the Closing Date shall remain in Alico LLC and Xxxxxxx Corp shall not be
entitled to any distribution with respect thereto. For example, if Alico
paid a cash dividend of $1.50 per share on October 30, 2001 with respect to
the Alico shares (i.e., a total of $5,240,665.50 on the 3,493,777 Alico
shares comprising the "Alico Shares"), Xxxxxxx Corp would be entitled to
receive a distribution of $1,397,510.80 [i.e., 40% of (3,493,777
shares x $1.00 per share)] at the time provided above; the balance would
be retained by BHG Investments or Alico LLC (as the case may be).
Except with respect to the distributions to be made to Xxxxxxx Corp by
Alico LLC immediately following the merger pursuant to Subparagraph
3.b. above and to the amount to be distributed to Xxxxxxx Corp on the
earlier of the Closing Date or the Dividend Distribution Date described
herein, no distributions, loans or payments shall be made by either BHG
Investments or Alico LLC to or for the benefit of Xxxxxxx Corp, BHG or
their Affiliates and all other distributions made by Alico with respect to
the Alico Shares on or after March 29, 2001 shall remain in, and be the
property of, BHG Investments (before the merger with Alico LLC) and Alico
LLC (on and after the merger) both before and after the Closing. In addition
to the foregoing, the Alico Shares as well as any stock or other non-cash
assets received with respect to the Alico Shares and all other cash and
non-cash assets owned by Alico LLC after the merger referred to above (other
than the cash and other assets necessary to make the distributions to Xxxxxxx
Corp referred to above) shall be retained in BHG Investments (before the
merger) and Alico LLC (after the merger) free and clear from any and all
security interests, liens, claims and restrictions and shall be invested
in such "Permitted Investments" (as defined below) as may be designated in
writing by the Four Sisters Protectorate to Xxxxxxx Corp or, in the absence
of such a written designation, in a cash management account with a national
banking institution with offices in the State of Florida selected by BHG
Investments or Alico LLC (as the case may be).
For purposes of this Subparagraph 5.f., the "Dividend Distribution Date"
shall mean the earliest date upon which all of the following actions have
been completed:
(1) the execution of the BHG Corporate Separation Agreement
by all of the parties; and
(2) the delivery to counsel for the Four Sisters Protectorate by
Xxxxxxx III, Xxxxxxx IV and the other lineal descendants of Xxxxxxx III and
Xxxxxxx IV who are (or are deemed to be) beneficiaries of the Trust of
consents to the Petition for Reformation in such form as may be acceptable
to such counsel in the reasonable exercise of their discretion.
In addition, for purposes of this Subparagraph 5.f., "Permitted Investments"
means (i) securities unconditionally guaranteed as to principal and interest
by the full faith and credit of the U.S. Government; (ii) certificates of
deposit or time deposits of U.S. banks rated in either of the two highest
rating categories (without regard to any refinements within such rating
categories) by either Xxxxx'x or S&P; (iii) repurchase agreements with U.S.
banks meeting the rating requirements of (ii) above with respect to the
securities described in (i) above; and (iv) any cash management account
issued by a national banking institution with offices in the State of
Florida.
5. Representations and Warranties of BHG, Xxxxxxx Corp. BHG
Investments and Xxxxxxx III. BHG, Xxxxxxx Corp and BHG Investments make
the following representations and warranties set forth below to the
Four Sisters Protectorate, the Protectorate Shareholders, and
Newco, and each representation and warranty shall, except as otherwise
specifically contemplated in this Separation Agreement, be correct and
complete both as of the date of this Separation Agreement and as of the
Closing Date. For purposes of this Paragraph 6, any reference to the
"knowledge" or "best knowledge" of BHG, Xxxxxxx Corp or BHG Investments
shall, unless specifically provided to the contrary in a particular provision,
mean the actual knowledge of Xxxxxxx III (or, if Xxxxxxx III is deceased
or has been judicially declared incompetent, it shall mean the actual
knowledge of Xxxxxxx III, Xxxxxxx IV and Xxxxxx Xxxxxx), without there
being inferred or implied any duty on the part of Xxxxxxx III (and, if
applicable, Xxxxxxx IV and Xxxxxx Xxxxxx) to investigate to determine
facts beyond his actual knowledge. Furthermore, the term "actual
knowledge" shall not constitute a personal representation or
warranty of any type by Xxxxxxx III or, if applicable, Xxxxxxx IV or
Xxxxxx Xxxxxx.
a. Organization and Standing. Alico is a corporation duly organized,
validly existing and in good standing (i. e., its status is "active")
under the laws of the State of Florida. Alico is not qualified or licensed
to do business (and is not required to be so qualified or licensed) as a
foreign corporation in any other jurisdiction except such jurisdictions,
if any, in which the failure to be so qualified or licensed will not have
a material adverse effect on the conduct of its business or the ownership
or use of any of its properties or assets. Attached hereto as cumulative
Exhibit C are correct and complete copies of Alico's Articles of
Incorporation (including any and all amendments thereto) and Bylaws
(amended and restated to November 16, 1999) in effect as of the date of
this Separation Agreement. Article 9 of the Articles of Incorporation of
Alico, Inc. was duly and properly approved by the Board of Directors of
Alico at a meeting held on July 11, 1988 and subsequently duly and
properly approved by the shareholders of Alico at a meeting held on
December 27, 1988, and was further formalized by the filing of an
amendment to the Articles of Incorporation of Alico, Inc. with the
Secretary of State of the State of Florida on December 30, 1988.
Said Article 9 has not been amended or modified, and has been in full
force and effect, since December 30, 1988. Further, Article
XXIII of the Bylaws of Alico, Inc. was added to the Bylaws of Alico
by an amendment to the Bylaws duly and properly approved by the Board
of Directors of Alico at a meeting held on July 11, 1988, and has not
been amended or modified, and has been in full force and effect, since
July 11, 1988.
b. Corporate Power; Validity of Agreement; Consents. BHG, Xxxxxxx
Corp and BHG Investments have all requisite corporate powers and
authorities, including but not limited to, under their respective
Articles of Incorporation, Bylaws and under applicable law, to execute
and deliver this Separation Agreement, the BHG Corporate
Separation Agreement, and all of the agreements, instruments and
documents to be executed and delivered by them incident to the
consummation of the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Separation Agreement, and
the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action by BHG, Xxxxxxx Corp,
BHG Investments and, to the extent necessary, by any of their Affiliates.
This Separation Agreement has been duly executed and delivered by BHG,
Xxxxxxx Corp, BHG Investments, Xxxxxxx III and the Trust, and constitutes
the legal, valid and binding obligation of BHG, Xxxxxxx Corp, BHG
Investments, Xxxxxxx III and the Trust, legally enforceable against
them in accordance with its terms, except that such enforcement may
be subject to (a) bankruptcy, insolvency, reorganization or other laws now
or hereafter in effect affecting the enforcement of creditors' rights
generally, and (b) general principles of equity.
c. Capitalization: Stock Ownership. The authorized capital stock of
Alico consists of 1,000,000 shares of no par value preferred stock,
none of which is issued or outstanding, and 15,000,000 shares of One
Dollar ($1.00) par value common stock, of which 7,059,039 shares are
currently issued and outstanding. All of such issued shares have been
duly authorized and validly issued and are fully paid and nonassessable
and none of them were issued in violation of any preemptive or other
right. Except as specifically set forth in current filings with the
Securities and Exchange Commission ("SEC") or on Schedule 6.c.
attached hereto, Alico is not a party to or bound by any
contract, agreement, or arrangement to issue, sell or otherwise
dispose of or redeem, purchase or otherwise acquire any capital
stock or any other security of Alico or any other security exercisable
or exchangeable for or convertible into any capital stock or any
other security of Alico, and there is no outstanding option, warrant
or the right to subscribe for or to purchase, or contract, agreement or
arrangement with respect to, any capital stock or any other security of
Alico or any other security exercisable or convertible into any capital
stock or other security of Alico to which Alico or any of its Affiliates
are a party. BHG Investments owns all of the Alico Shares free and
clear of all security interests, liens, claims, charges, restrictions,
equities and encumbrances of any kind and has full power and legal
rights to sell, assign, transfer and deliver the same.
d. Compliance with the Law. To the best knowledge of Xxxxxxx Corp
and BHG, Alico has conducted its businesses in compliance with all
applicable laws, rules and regulations of any and all federal, state
or local governmental entities, agencies and regulatory bodies.
e. Contracts. Schedule 6.e. attached hereto sets forth a description
of each and every contract, lease or agreement or arrangement between
Alico and/or its Affiliates and BHG and/or any of its Affiliates; each
and every loan or obligation owed by Alico and/or its Affiliates to BHG
and/or any of its Affiliates; and each and every loan or obligation owed
by BHG and/or its Affiliates to Alico and/or its Affiliates.
f. Taxes. BHG and Xxxxxxx Corp make the following representations
and warranties with respect to tax matters relating to Alico:
(1) To the knowledge of BHG and Xxxxxxx Corp (but after inquiry of
Alico's chief financial officer and the CPAs of Alico), all Returns (as
hereinafter defined) required to be filed by or on behalf of Alico and its
Affiliates have been duly filed on a timely basis and such Returns are
true, complete and correct, and all Taxes reflected as due thereon have
been paid.
For purposes hereof, "Returns" shall mean all reports, estimates,
declarations of estimated tax, information statements and returns relating
to, or required to be filed in connection with, any Taxes (as hereinafter
defined), including information returns or reports with respect to backup
withholding and other payments to third parties.
The term "Taxes" shall mean all taxes, however denominated,
including any interest, penalties or other additions to tax that may become
payable in respect thereof, imposed by any federal, state, local or foreign
government or any agency or political subdivision of any such government,
which taxes shall include, without limiting the generality of the foregoing,
all income or profits taxes, real property gains taxes, payroll and employee
withholding taxes, unemployment insurance taxes, social security taxes,
sales and use taxes, ad valorem taxes, excise taxes, franchise taxes,
gross receipts taxes, business license taxes, occupational taxes,
real and personal property taxes, stamp taxes, environmental taxes,
transfer taxes, workers compensation, Pension Benefit Guarantee
Corporation premiums and other governmental charges, and other obligations
of the same or of a similar nature to any of the foregoing, which Alico
and its Affiliates are required to pay, withhold or collect.
(2) To the knowledge of BHG and Xxxxxxx Corp (but after
inquiry of Alico's chief financial officer and its CPAs), no audit of
any Returns of Alico or its Affiliates is presently in process, pending or
threatened; no deficiencies exist or have been asserted or are expected
to be asserted with respect to the taxes of Alico and its Affiliates; Alico
and its Affiliates are not parties to any action or proceeding for
assessment or collection of taxes, nor has such event been asserted or
threatened against Alico and its Affiliates; and no waiver or extension
of any statute of limitations is in effect with respect to Taxes or Returns
of Alico and its affiliates.
g. Financial Statements. Attached hereto as Exhibit "D" are correct
and complete copies of the consolidated financial statements of Alico and
its Affiliates for its fiscal years ending August 31, 2000 and August 31, 2001
which have been prepared and audited by KPMG LLP, Certified Public Accountants
(the "Financial Statements"). To the knowledge of BHG and Xxxxxxx Corp (but
after inquiry of Alico's chief financial officer and its CPAs), the Financial
Statements are complete and correct in all respects and fairly present the
information purported to be shown thereon and have been prepared in conformity
with GAAP applied on a basis consistent with that of the preceding periods;
since August 31, 2001, there has been no material adverse change in
the financial condition or results of operations of Alico and its Affiliates;
and in addition, since August 31, 2001, there have been no changes in
management compensation, employment agreements, employment benefits or
other compensation related changes that are required to be reported to the
SEC other than as reflected in current SEC filings (or, if any such changes
are not required to be reported until a date subsequent to the date
of this Separation Agreement, then any such changes will be properly reflected
thereafter in reports which will be timely filed with the SEC). As soon as
feasible after the issuance of the Financial Statements for Alico's fiscal
year ending August 31, 2002 and for each fiscal year thereafter during the
term of this Separation Agreement (the "Subsequent Financial Statements"),
and if the Closing has not occurred prior to August 31, 2002, BHG shall
deliver a copy of the applicable Subsequent Financial Statement to the
Four Sisters Protectorate and the representations and warranties set forth in
this Subparagraph 6(g) shall also apply (with appropriate changes in
references from "August 31, 2000" to the applicable fiscal year) to the
Subsequent Financial Statements.
h. No Distributions. As of the date of this Separation Agreement,
none of BHG Investments, BHG or any of their Affiliates has received any
dividend or other form of distribution with respect to the Alico Shares after
March 28, 2001, except for a cash dividend in the amount of $3,493,777
received by BHG Investments on October 26, 2001.
i. Regulatory Compliance. To the knowledge of BHG, Xxxxxxx Corp
and BHG Investments (but after inquiry of Alico's chief financial officer
and securities attorneys), Alico has filed all reports and statements
together with amendments required to be made with respect thereto that it
was required to file with: (i) the SEC, including but not limited to,
Form 10-K, Form 10-Q, Form 8-K, and proxy statements; and (ii) any
applicable state securities regulatory authorities; as of the effective dates,
each such report and document, including the financial statements, exhibits
and schedules thereto, complied in all material respects with all applicable
laws; and as of its respective date, each such report and document did not,
in any material respect, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances in which
they were made, not misleading.
j. Absence of Material Adverse Changes. Except as set forth on
Schedule 6.j. attached hereto, since August 31, 2000, to the knowledge of
BHG, Xxxxxxx Corp and BHG Investments (but after inquiry of Alico's chief
financial officer and its independent CPA firm) there has been no material
and adverse change in the business, assets or prospects of Alico or its
subsidiaries which has not been disclosed in an SEC filing and there has
been no increase in the compensation or benefits paid to the officers
or directors of Alico other than routine annual increases consistent
with prior practices.
k. Insurance Risks. A complete and true list of all insurance policies
written by Alico and its Affiliates including, but not limited to,
AgriInsurance Company, together with information concerning all corresponding
reinsurance arrangements related thereto is set forth in Schedule 6.k.
attached hereto. Alico and its Affiliates have no outstanding commitments
for the issuance of insurance except as has been disclosed on Schedule 61.
x. Xxxxxxx III Options. Exhibit B to this Separation Agreement sets
forth a full and accurate description of the following information relating
to any and all stock options, warrants or other rights to acquire stock of
Alico which were held by Xxxxxxx III in his capacity as an officer, director
or employee of Alico under all stock options or similar plans of Alico that
were in effect with respect to Alico's fiscal year ending August 31, 2000 or
August 31, 2001: (i) the number of shares of Alico stock that he had the
right to acquire under all such plans; (ii) the exercise price for such
shares of Alico stock; and (iii) the number of such shares of Alico stock
with respect to which Xxxxxxx III both exercised his options, warrants or
other rights and purchased such shares (whether during Alico's fiscal year
ending August 31, 2000 or thereafter).
m. Alico Management. Alico, Xxxxxxx III, BHG, BHG Investments and
Xxxxxxx Corp have complied with each and every one of the requirements and
restrictions as set forth in Subparagraphs 5.a., 5.b., 5.d. and 5.e. from
May 1, 2001 through and including the date of this Separation Agreement
(determined as if the covenants set forth in such Subparagraphs were
applicable during such period).
n. Florida Control Share and Affiliated Transactions Statutes. Alico
opted out of Florida's Control-Share Acquisition statute (the "Control
Share Acquisition Statute," which is currently cited as Section 607.0902
of the Florida Business Corporation Act) effective July 11, 1988 pursuant
to the provisions thereof, and is not, and has not at any time since
July 11, 1988 been, subject to the terms of the Control Share Acquisition
Statute. Alico opted out of Florida's Affiliated Transactions statute
(the "Affiliated Transactions Statute," which is currently cited as
Section 607.0901 of the Florida Business Corporation Act) effective
December 30, 1988 pursuant to the provisions thereof, and is not, and has
not at any time since December 30, 1988, been, subject to the terms
of the Affiliated Transactions Statute.
o. Control of Alico Shares. All decisions and powers with respect to
the voting, investment and/or disposition of, and all other incidents of
ownership related to, the Alico Shares have been wholly controlled and
exercised by, or under the direct or indirect control of, either Xxx Xxxx
Xxxxxxx, Jr. or Xxx Xxxx Xxxxxxx III, or a combination thereof, at all
times since May 11, 1978. Prior to the date of this Separation Agreement,
none of the members of the Four Sisters Protectorate or the Protectorate
Shareholders has had, either directly or indirectly, or as part of a group,
any control or influence whatsoever over or with respect to the voting,
investment and/or disposition of, or any other incidents of ownership
related to, the Alico Shares.
p. Alico Shares. The Alico Shares consist of 3,493,777 shares of One
Dollar ($1.00) par value common stock of Alico and represent approximately
49.71% of the issued and outstanding shares of Alico. The Alico Shares are
owned by BHG Investments, free and clear of any and all security interests,
claims, liens, options or other agreements to buy or sell such Alico
Shares (other than this Separation Agreement).
7. Covenants. The following covenants shall apply throughout the term of
this Separation Agreement (in the case of Subparagraph 7.a., b., d.
and e. only) or for such other period as may be set forth below:
a. Formation of Alico Holding, LLC. A limited liability company to
be known as "Alico Holding, LLC" shall be formed promptly after the date of
execution of this Separation Agreement by Xxxxxxx Corp under the laws of the
State of Nevada ("Alico LLC"). One hundred percent (100%) of the membership
interests of Alico LLC shall be held by Xxxxxxx Corp until the Closing and
Xxxxxxx Corp agrees not to file an election to have Alico LLC treated as a
corporation for federal income tax purposes.
The Articles of Organization and the Operating Agreement of Alico LLC
shall be modified immediately prior to the Closing in such manner as
requested by the attorneys for the Four Sisters Protectorate. All costs
associated with the formation of Alico LLC shall be charged to, and paid by,
the Four Sisters Protectorate at the Closing.
b. Merger of Xxx Xxxx Xxxxxxx Investments, Inc. with Alico LLC.
Promptly after the date of this Separation Agreement, BHG Investments shall be
merged with and into Alico LLC, and all assets and liabilities of BHG
Investments (which, after the merger, will become assets of Alico LLC) other
than stock of Alico, Inc. ("Alico") and other than any monies or properties
distributed by Alico with respect to the Alico Shares on or after March 29,
2001, shall be distributed to, and assumed by, Xxxxxxx Corp immediately
following the merger. No debt or liabilities of any kind of BHG, Xxxxxxx
Corp, BHG Investments or any of their Affiliates shall remain with Alico LLC,
and BHG and Xxxxxxx Corp shall indemnify and hold Alico LLC, Newco and the
Protectorate Shareholders harmless therefrom. For purposes of the preceding
sentence and for all purposes under this Separation Agreement, any "deferred
tax liability," as that term is defined for GAAP purposes, which is
attributable solely to the difference in treatment of a particular item for
GAAP and federal income tax accounting purposes with respect to an asset to
be transferred under this Separation Agreement from Xxxxxxx Corp or one of
its Affiliates to Newco, Alico LLC or Ranch LLC, will not be considered to
be a "debt or liability."
c. Agreement not to attend Alico shareholder meetings. Xxxxxxx III
covenants and agrees that for a period commencing on the Closing Date and
continuing until the second anniversary thereof, he will neither attend any
regular or special meeting of the shareholders of Alico nor will he issue any
written communication to the shareholders of Alico with respect to any matters
expected to come before the shareholders of Alico at any such meeting.
d. No amendment to Articles of Incorporation or Bylaws of Alico.
Xxxxxxx III, BHG Investments, Xxxxxxx Corp and BHG covenant and agree that
they will exercise their voting power over the Alico Shares and otherwise
take such steps as may be necessary to insure that no amendment to the
Articles of Incorporation or Bylaws of Alico shall be made during the term
of this Separation Agreement without the prior written consent of the Four
Sisters Protectorate, which consent shall not be unreasonably withheld;
provided, however, that the Four Sisters Protectorate may withhold its
consent, with or without reason, to any changes to Article 9 of the
Articles of Incorporation of Alico (Affiliated Transactions - i.e., the
provision pursuant to which Alico "elects out" of the "Affiliated
Transaction" restrictions contained in what is now Section 607.0901,
Florida Statutes 2001) and to any changes to Article XXIII (Control-Share
Acquisitions - i.e., the article pursuant to which Alico elects out of the
restrictions on "Control-Share Acquisitions" contained in what is now
Section 607.0902, Florida Statutes 2001) of the bylaws of Alico.
e. Alico Shares. Neither BHG Investments nor Alico LLC (as well as
BHG, Xxxxxxx Corp and their Affiliates) shall sell, exchange, transfer,
grant a security interest in, nor suffer a claim or lien against,
the Alico Shares, and none of the foregoing shall enter into any contract
to sell, exchange or otherwise transfer the Alico Shares except pursuant
to this Separation Agreement.
8. Survival of Representations and Warranties. All representations,
warranties and covenants set forth in this Separation Agreement and in
any certificate or agreement delivered in connection herewith shall
survive the Closing Date and be binding upon and inure to the benefit
of the parties hereto and their successors, assigns and legal
representatives, except that the representations and warranties
(but not the covenants) shall only survive for a period of
two (2) years following the Closing Date.
9. Miscellaneous.
a. Governing Law. This Separation Agreement and all transactions
contemplated hereunder shall be governed by, and construed and enforced
in accordance with, the laws of the State of Florida.
b. Entire Agreement. This Separation Agreement (including all
exhibits and schedules hereto), together with the BHG Corporate Separation
Agreement (and all exhibits and schedules thereto), constitute the full and
entire understanding and agreement among the parties with regard to the
subject matter hereof and thereof and supercede all prior negotiations,
understandings and representations, both written and oral, if any, made
by and among such parties.
c. Notices. All notices or other communications or deliveries which
may be required or desired to be given under the terms of this Separation
Agreement shall be in writing and shall be deemed to have been duly given if
personally delivered, or if sent by facsimile transmission, overnight courier
(e.g., Federal Express), or if mailed by United States certified mail, return
receipt requested, postage prepaid, addressed to the respective parties at
the addresses set forth below:
If to Xxxxxxx III, BHG, Xxxxxxx Corp or BHG Investments:
Xxx Xxxx Xxxxxxx, Inc.
c/o Xxx Xxxx Xxxxxxx, III
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
With a copy to the following counsel:
Xxxxxxxx & Xxxxx, P.A.
c/o X.X. Xxxxx, Xx.
000 Xxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
If to the Protectorate Shareholders and/or to the Four Sisters Protectorate,
to the parties, with copies to their respective attorneys, as set forth in
Schedule 9.c.
Any notice so given, delivered or made by facsimile transmission shall be
deemed to have been duly given, delivered or made on the date of receipt
of such facsimile transmission by the recipient thereof as established
either by (i) the date and time of receipt imprinted on the copy of
the notice received by the recipient, or (ii) the machine-generated date
and time of receipt by the recipient confirmed by the transmission and receipt
confirmation generated by the facsimile transmission equipment of the sender;
provided, however, that notices sent by facsimile transmission and received
after 5:00 p.m. local time (of the recipient) on a business day or on a
Saturday, Sunday or legal holiday in the state where such notice is received
shall be deemed to have been received on the next business day. Any notice so
given, delivered or made by mail shall be deemed to have been duly given,
delivered or made two (2) days after the date the same is deposited in the
United States mail in the manner specified above unless the two (2) day
period ends on a Saturday, Sunday or legal holiday in the state where such
notice is delivered, in which event the notice shall be deemed given,
delivered or made on the first business day following the expiration of said
two (2) day period. Any notice delivered by overnight courier shall be
deemed to have been duly given, delivered or made on the first day following
the date the same is delivered to the overnight courier as established by the
receipted xxxx of lading unless such day is a Saturday, Sunday or legal
holiday in the state where such notice is received, in which event the
notice shall be deemed given, delivered or made on the first business day
thereafter. Any notice which is given, delivered or made by any manner other
than facsimile transmission, United States certified mail or overnight
courier shall be deemed to have been duly given, delivered or made upon
actual receipt of the same by the party to whom the same is to be given,
delivered or made. Any party may change the address to which notices are
sent to such party by written notice to the other parties specifying said
change of address.
Counsel for a party identified as such pursuant to this Subparagraph 9.c.
may give or receive notice for such party.
d. Cooperation. All parties agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such
other actions as may be necessary or desirable in order to expeditiously
consummate or implement the transactions contemplated by this Agreement,
e. Telecopy Execution/Counterparts. A facsimile, telecopy or other
reproduction of this Separation Agreement may be executed by the parties
(in counterparts or otherwise) and, when so executed, shall be considered
valid, binding and effective for all purposes. At the request of any party,
the parties hereto agree to execute an original of this Separation Agreement,
as well as any facsimile, telecopy or other reproduction. This Separation
Agreement may be executed in a number of identical counterparts. If so
executed, each of such counterparts is to be deemed an original for all
purposes and all such counterparts shall, collectively, constitute one
agreement, but, in making proof of this Separation Agreement, it shall
not be necessary to produce or account for more of such counterparts than
are required to show that each party hereto executed at least one such
counterpart.
f. Attorneys' Fees. In the event any litigation, arbitration or other
legal action or proceeding is brought between or among the parties hereto
to enforce any provision of this Separation Agreement or because of an
alleged. dispute, breach, default or misrepresentation in connection with
any provision of this Separation Agreement, the prevailing party will be
entitled to an award of judgment for all reasonable attorneys' fees
and costs incurred by reason of such proceeding, even if incident to
appellate, bankruptcy, post judgment or alternative dispute resolution
proceedings, and payments owed to arbitrators to the extent such costs
have been billed to, and paid by, the prevailing party.
g. Specific Performance. Each of the parties acknowledges that the
parties will be irreparably damaged (and damages at law would be an
inadequate remedy) if this Separation Agreement is not specifically enforced.
Therefore, in the event of a breach or threatened breach by any party of any
provision of this Separation Agreement, the other parties shall be entitled,
in addition to all other rights and remedies, to specific performance of
this Separation Agreement and to injunctions restraining such breach,
without being required to show any actual damage or to post any bond or other
security, unless the court adjudicating the motion for equitable relief
otherwise requires a bond, in which case the parties agree that a bond in the
amount of $1,000 is sufficient and appropriate.
h. Venue, Retained Jurisdiction of Polk County Circuit Court. This
Separation Agreement has been entered into ancillary to the Settlement
Agreement which was entered into in order to settle litigation among the
parties hereto. The parties acknowledge that the Polk County Circuit Court
has retained jurisdiction over the parties regarding the subject matter of
such litigation, including the Settlement Agreement, the Memorandum
Agreement, the BHG Separation Agreement and this Separation Agreement.
Accordingly, if any disputes arise with respect to the satisfaction of
the conditions precedent to Closing or any other matters pending Closing,
the parties understand and agree that such matter shall be submitted to the
Polk County Circuit Court for resolution. The resolution of such disputed
matter shall be a condition precedent to the Closing of the transactions
contemplated herein and in the BHG Separation Agreement. In the event that
any disputes arise with respect to the rights and obligations of the parties
under this Separation Agreement after Closing, the parties hereto,
irrevocably consent to the exclusive jurisdiction of the state courts located
in Polk County, Florida and any and all such actions between or among them,
whether arising hereunder or otherwise.
i. Term of Agreement. The term of this Separation Agreement shall
commence upon execution by all of the parties hereto and shall terminate
at such time as a court of competent jurisdiction enters a final decision
(i.e., all appeal rights have expired) setting aside the Settlement Agreement
as amplified by the BHG Corporate Separation Agreement and this Separation
Agreement.
j. Successors and Assigns. The covenants herein contained shall
bind, and the benefits and advantages hereof shall enure to, the
respective heirs, personal representatives, successors and assigns of
the parties hereto.
k. Modification/Waiver. Except as otherwise expressly provided in
this Separation Agreement, no modification, termination or amendment of
this Separation Agreement may be made except by written agreement executed
by all parties to this Separation Agreement. No failure by any party to
insist upon the strict performance of any covenant, duty, agreement,
term or condition of this Separation Agreement, or to exercise any right
or remedy upon a breach of this Separation Agreement, shall constitute
a waiver of any such breach or of such covenant, duty, agreement, term or
condition. Any party hereto, may, but shall be under no obligation to, waive
any of its rights or remedies or any conditions to its obligations hereunder,
or any duty, obligation, covenant or agreement of any other party hereto;
provided, however, that such waiver must be effected by written instrument
signed by the waiving party.
l. Gender/Singular and Plural Usages. Whenever in this Separation
Agreement the singular is used, the same shall include the plural, and vice
versa, and wherever in this Separation Agreement a specific gender is used
(e.g., the masculine gender), the same shall be deemed to include all other
genders (e.g., the feminine and neuter genders).
m. Paragraph Headings. The captions, headings and paragraph
numbers appearing in this Separation Agreement are inserted as a convenience
only and in no way define, limit, construe or describe the scope or intent
of such paragraphs nor in any way affect the interpretation thereof; they
shall be ignored in construing or interpreting any and all provisions of
this Separation Agreement.
n. Time. Time is of the essence in connection with this Separation
Agreement and each provision hereof. Whenever this Separation Agreement
requires that something be done within a period of days, such period shall
(unless specifically provided to the contrary in this Separation Agreement):
(i) not include the day from which period it commences; (ii) include the day
upon which such period expires; expire at 5:00 p.m. local time on the date
which such thing is to be done; (iv) if six (6) days or more, be construed
to mean calendar days; provided that if the final day of such period falls
on a Saturday, Sunday or legal holiday in the state where such thing is to
done, such period shall extend to the first business day thereafter; and
(v) if less than six (6) days, be construed to exclude any Saturday, Sunday
or legal holiday.
o. Construction. All parties to this Separation Agreement having
participated fully and equally in the negotiation and preparation hereof,
this Separation Agreement shall not be more strictly construed or any
ambiguities within this Separation Agreement resolved against any party
hereto. Whenever the words "includes" or "including" are used in this
Separation Agreement, the same shall not be construed to restrict or
limit any of the language, terms or definitions used in association therewith.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
BHG
B.H.G., INC., a Florida corporation
By: /s/ Xxx Xxxx Xxxxxxx III
XXXXXXX CORP
XXX XXXX XXXXXXX, INC., a Florida
corporation
By: /s/ Xxx Xxxx Xxxxxxx III
BHG INVESTMENTS
XXX XXXX XXXXXXX INVESTMENTS, INC.,
a Nevada corporation
By: /s/ Xxx Xxxx Xxxxxxx III
XXXXXXX III
/s/ Xxx Xxxx Xxxxxxx III
Xxx Xxxx Xxxxxxx, III TRUST
/s/ Xxx Xxxx Xxxxxxx III
Xxx Xxxx Xxxxxxx, III, Trustee of The
Xxx Xxxx Xxxxxxx, Jr. Inter Vivos
Trust #1
FOUR SISTERS PROTECTORATE
(on behalf of the Protectorate
Shareholders)
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Chairman of
Four Sisters Protectorate
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Esq., Attorney for
Four Sisters Protectorate
EXHIBITS AND SCHEDULES TO ALICO SEPARATION AGREEMENT
EXHIBITS
DESCRIPTION
A Petition for Reformation
B Summary of Alico Stock Options of Xxxxxxx III
C Copies of Articles of Incorporation of Alico
(with all amendments thereto) and Bylaws of Alico
(amended and restated through 11/16/99)
D Alico Financial Statements
SCHEDULES
DESCRIPTION
3.c. Issuance of Newco Stock Under First Stage Spin-Off
6.c. Alico agreements to sell or purchase its stock
6.e. Agreements between Alico and BHG or any of BHG's affiliates
6.j. Adverse changes to financial condition since 8/31/00
6.k. Insurance schedule
9.c. Names and addresses of Protectorate Shareholders and their attorneys
