SUPPORT AGREEMENT
This is a SUPPORT AGREEMENT (this "Agreement"), dated as of August 25,
2000, by and among (i) Vincor International Inc., a corporation validly existing
under the laws of Canada ("Parent"), Vincor Holdings, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("Hold Co.") and Toast
Acquisition Company, Inc., a California corporation and a wholly owned
subsidiary of Hold Co. (the "Purchaser"); (ii) X.X. Xxxxxxxx, Inc., a California
corporation (the "Company"), and (iii) [Key Shareholder] ("Shareholder").
RECITALS
A. Concurrent with the execution and delivery of this Agreement, the
Company, Parent, Hold Co. and Purchaser are entering into an Agreement and Plan
of Merger (the "Merger Agreement"); and pursuant to the Merger Agreement,
Purchaser shall make a tender offer on the terms and conditions set forth in the
Merger Agreement (the "Offer") for any and all outstanding shares of common
stock, options and warrants of the Company.
B. Pursuant to the Offer, Purchaser shall offer to purchase all of the
Company's common stock, no par value (the "Shares"), at Seven Dollars ($7.00)
per share (the "Offer Price") net to the seller in cash, plus the "in the money"
amount for all the Company's outstanding options and warrants, to be followed by
a merger (the "Merger") of Purchaser with and into the Company.
C. As of the date hereof, Shareholder is the beneficial owner of [Shares]
Shares (the "Owned Shares").
D. Subject to the terms of this Agreement, Shareholder desires to
facilitate and support the transactions contemplated by the Merger Agreement and
the Offer.
E. The Purchaser desires to purchase all the Owned Shares and any Shares
acquired after the date hereof and prior to the termination of the Offer,
whether upon the exercise of options, conversion of convertible securities or
otherwise (collectively with the Owned Shares, the "Tendered Shares").
F. Capitalized terms used but not defined herein have the meanings set
forth in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. AGREEMENT TO TENDER.
(a) TENDER. Shareholder hereby agrees to tender (or cause the record
owner of such Shares to tender), pursuant to and in accordance with the terms
of the Offer, no later than three (3) business days prior to the Expiration
Date, the Tender Shares and not to withdraw such
Tender Shares, except following termination of this Agreement pursuant to
Section 2 hereof. Shareholder hereby acknowledges and agrees that Purchaser's
obligation to accept for payment and pay for the Tender Shares is subject to the
terms and conditions of the Offer. Shareholder hereby authorizes the Company to
permit Parent, Hold Co. and Purchaser to publish and disclose in the Offer
Documents and, if approval of the Company's shareholders is required under
applicable law, the Proxy Statement (including all documents and schedules filed
with the Securities and Exchange Commission) Shareholder's identity and
ownership of the Tender Shares and the nature of Shareholder's commitments,
arrangements and understandings under this Agreement.
(b) VOTING. Shareholder hereby agrees that, while this Agreement is in
effect, at any meeting of the Company's shareholders, however called (or in any
written consent in lieu thereof), other than in connection with the Offer or the
Merger, Shareholder shall not vote the Tender Shares in favor of any other
recapitalization, merger, consolidation or other business combination involving
the Company, or acquisition of any capital stock (other than upon exercise of
the options and warrants which are outstanding as of the date hereof) or any
portion of the assets (except for acquisition of assets in the ordinary course
of business consistent with past practice) of the Company, or any combination of
the foregoing (a "Competing Transaction").
(c) NO INCONSISTENT ARRANGEMENTS. Shareholder hereby covenants and
agrees that, except as contemplated by this Agreement, Shareholder shall not
(i) transfer (which term shall include, without limitation, any sale, gift,
pledge or other disposition), or consent to any transfer of, any or all of
the Tender Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of
any or all of the Tender Shares or any interest therein, (iii) grant any
proxy, power-of-attorney or other authorization in or with respect to the
Tender Shares, other than those that are intended to facilitate or which do
not impede or impair Shareholder's compliance with the terms of this
Agreement, (iv) deposit the Tender Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Tender Shares or (v)
otherwise restrict, limit or interfere with the performance of Shareholder's
obligations hereunder or the transactions contemplated hereby or by the
Merger Agreement. With prior written consent of Purchaser, the Shareholder
may transfer the Tender Shares to his/her heirs, devisees or otherwise in any
inter vivos transfer; provided, however, that each such transferee shall take
the Tender Shares subject to the terms and conditions of this Agreement and
shall so agree in writing prior to such transfer.
(d) NO SOLICITATION. Shareholder hereby agrees that Shareholder shall
not, and shall not permit or authorize any of Shareholder's Affiliates,
representatives or agents to, directly or indirectly, solicit, participate in
or initiate discussions or negotiations with, or provide or disclose any
information to, any Person (other than Parent, Hold Co., Purchaser or any of
their Affiliates or representatives) concerning any Competing Transaction or
enter into any agreement, arrangement or understanding requiring the Company
to abandon, terminate or fail to consummate the Merger or any other
transactions contemplated by the Merger Agreement. Shareholder shall promptly
cease any existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any Competing Transaction. Any action
taken by the Company or any member of the Board of Directors of the Company
including, if applicable,
Shareholder, acting solely in such capacity, in accordance with the provisions
of Section 6.08 of the Merger Agreement shall be deemed not to violate this
Section 1(d).
(e) BEST EFFORTS. Subject to the terms and conditions of this Agreement,
Shareholder shall use its best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to tender the Tender Shares
as contemplated by this Agreement.
(f) WAIVER OF APPRAISAL RIGHTS. Shareholder hereby waives any rights of
appraisal or rights to dissent from the Merger.
2. TERMINATION. This Agreement (other than Section 5 hereof) and
Shareholder's obligation to tender and vote the Tender Shares as provided herein
shall terminate on the Termination Date. As used herein, the term "Termination
Date" means the first to occur of (a) the Effective Time, (b) the termination of
the Merger Agreement, (c) the termination or withdrawal of the Offer by Parent
or Purchaser, (d) the receipt of written notice of termination of this Agreement
by the Parent to Shareholder, and (e) Purchaser's purchase of the Tender Shares
pursuant to the Offer. Nothing contained in this Section 2 shall relieve any
party from liability for any breach of this Agreement.
3. REPRESENTATIONS AND WARRANTIES. Shareholder hereby represents and
warrants that Shareholder has full power and authority to tender, sell, assign
and transfer the Tender Shares and that, when the same are accepted for payment
and paid for by Purchaser, Purchaser shall acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions, charges,
claims and encumbrances and the same shall not be subject to any adverse claim.
In addition, if this Agreement is not terminated, Shareholder shall promptly
remit and transfer to the Depositary (as defined in the Offer Documents) for the
account of Purchaser the whole of any non-cash dividend, distribution or right
issued to Shareholder on or after August 25, 2000, in respect of the Tender
Shares, accompanied by appropriate documentation of transfer.
4. FURTHER ASSURANCES. From time to time, at the request of the Company,
Parent or Purchaser and without further consideration, Shareholder shall execute
and deliver such additional documents and take all such further action as may be
reasonably necessary to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
5. TOPPING FEES. If for any reason the Agreement is terminated and within
two (2) years from the date of such termination, the Company (i) publicly or
otherwise announces a letter of intent or other agreement relating to entering
into a Competing Transaction, or (ii) consummates a Competing Transaction for a
price per share in excess of the Offer Price (such excess, the "Applicable
Premium"), the Shareholder shall within five (5) business days following the
consummation of the Competing Transaction pay to Parent in cash by wire transfer
in immediately available funds to an account designated by Parent an amount
calculated as follows: (a) the Applicable Premium, multiplied by (b) the number
of Tender Shares sold, multiplied by (c) fifty percent (50%). If the monetary
value of consideration in a Competing Transaction is not readily determinable,
Shareholder and the Parent shall attempt in good faith to establish such
monetary value, failing which monetary value shall be determined conclusively in
accordance with the Appraisal Procedure described in EXHIBIT A attached hereto.
If, in the transaction
pursuant to which consideration received by the Shareholder consisting of cash
or securities shall have been offered at the option of the seller, for the
purpose of ascertaining value for this Agreement, the seller shall be deemed to
have chosen cash in an amount per share equal to the cash that was so offered..
6. CONFIDENTIALITY. The provisions of this Section 6, only become effective
upon the Offer Purchase Closing and otherwise have no binding effect.
6.1 EMPLOYMENT RELATIONSHIP AND ACKNOWLEDGMENTS. Shareholder acknowledges
that:
(a) The Shareholder is also an employee of the Company and the
Company's employment of Shareholder creates a relationship of confidence and
trust between Shareholder and the Company.
(b) The Company has a proprietary interest in documents and information
applicable to its business or to the business of its clients and customers which
may be made known to Shareholder during the period of Shareholder's employment.
(c) "Confidential Information" means information, not generally known
in the wine production and distribution industry, disclosed to Shareholder,
or known by Shareholder, as a consequence of or through his employment by the
Company or its predecessors, about the Company's costs, pricing, marketing,
ideas, problems, developments, research records, technical data, processes,
products, plans for products or service improvement and development, business
and strategic plans, financial information, forecasts, customer records and
any other information which derives independent economic value, actual or
potential, and all other information of a trade secret or confidential nature.
(d) "Confidential Material" means any writing of any kind, obtained by
Shareholder as a consequence of or through his employment by the Company or its
predecessors, containing any Confidential Information and shall include, without
limiting the generality of the foregoing, customer lists, price lists, financial
data, operating instructions, forms and manuals, procedural instructions,
information on computer disks or computer print-outs, computer programs, any
physical property of the Company or any of its sources with which insurance is
placed, policyholders, expiration or renewal dates, inspection or credit reports
and data on insurance risks being written, catalogs, records, drawings,
blueprints, notes, notebooks, and all other materials of a trade secret or
confidential nature.
6.2 CONFIDENTIALITY AGREEMENT.
(i) RESTRICTED DISCLOSURE AND USE. Notwithstanding any other provision
of this Agreement, unless Shareholder shall first secure the written consent
of the Company's Board of Directors, and except for authorized use in
performance of Shareholder's duties on behalf of and for the benefit of the
Company, Shareholder shall not disclose to any others, or use, at any time,
in any way, or anywhere, either during or subsequent to employment with the
Company, any trade secret or other Confidential Information, whether or not of a
technical nature, or any Confidential Material.
(ii) RETURN OF MATERIALS UPON TERMINATION. Upon termination of
Shareholder's employment, Shareholder shall promptly deliver to the Company all
Confidential Material relating in any way to the Company's business which
Shareholder possesses or controls, whether made, written or obtained by
Shareholder or by others. Shareholder shall retain no copies of such materials,
either for Shareholder's own use or otherwise.
6.3 BINDING NATURE. Shareholder hereby expressly agrees that the covenants
in this Section 6 shall be binding upon Shareholder's heirs, successors and
legal representatives.
6.4 NON-DISCLOSURE OF INFORMATION TO SUBSEQUENT EMPLOYERS. If, following
termination or cessation of Shareholder's employment, Shareholder accepts other
employment or enters into a business relationship with any person, partnership,
corporation or other entity doing business of the kind then being performed by
the Company, Shareholder shall obtain from said second employer and shall
provide to the Company a written acknowledgment by the successor employer of its
notification of the terms of Section 6 of this Agreement. The provisions of this
Section 6 shall survive any termination of this Agreement.
6.5 SURVIVAL. The provisions of this Section 6 shall survive any
termination of this Agreement for the periods referenced above.
7. COVENANT NOT-TO-COMPETE. The provisions of this Section 7, only become
effective upon the Offer Purchase Closing and otherwise have no binding effect.
7.1 GENERAL. So long as Company is not in breach of this Agreement and
except as provided for in the Grape Purchase Agreement dated August 25, 2000 and
the passive investments allowed under Section 3 of the Shareholder's Employment
Agreement dated of the date hereof, for a period of five (5) years from the
Offer Purchase Closing (the "Restricted Period"), Shareholder shall not,
directly or indirectly, individually, in partnership or through a limited
liability company, corporation or other business entity, as proprietor, manager,
Shareholder, partner, member, stockholder, employee, independent contractor,
consultant or in any other capacity, engage in the manufacture or sale of wine,
or the growing or cultivation of grapes used in the manufacture or sale of wine
or otherwise compete with the Company or assist others to so compete, except
that after any termination of the Shareholder pursuant to Section 5, the
Shareholder may engage solely in the growing or cultivation of grapes used in
the manufacture or sale of wine. Except as otherwise stated herein, this
covenant-not-to-compete shall be limited to (1) the field(s) of Business (as
defined below) in which the Company is, at the Offer Purchase Closing, actively
engaged and intends to be actively engaged within the Restricted Period, and (2)
the geographical area and appellations listed on ANNEX C attached. For purposes
of this Section 7, the Business shall consist of the manufacture and sale of
wine in the $8.00 to $16.00 (subject to reasonable adjustment for inflation) per
bottle retail price range and the growing or cultivation of grapes used in the
manufacture and sale of wine in the $8.00 to $16.00 (subject to reasonable
adjustment for inflation) per bottle retail price range. Notwithstanding the
provisions of this Section 7.1, Shareholder may invest or become an
employee of a vineyard or winery provided that (A) any such investment or
employment is subsequent to Shareholder's termination, and (B) no more than
fifteen percent (15%) of the gross revenue from the vineyard's or winery's sale
of wine is derived from wines in the $8.00 to $16.00 (subject to reasonable
adjustment for inflation) per bottle retail price range.
7.2 NON-SOLICITATION OF DISTRIBUTORS, BROKERS AND SUPPLIERS. For a period
of five (5) years following the Offer Purchase Closing, Shareholder shall not,
directly or indirectly, purchase any grapes from any of the Company's top ten
(10) grape suppliers or distribute wine through use of the Company's top ten
(10) U.S. distributors and brokers, as listed on Schedule B hereto.
Notwithstanding the foregoing, Shareholder may distribute wine through use of
the Company's U.S. distributors and brokers, if (i) such distribution is
subsequent to Shareholder's termination and (ii) the wine has a per bottle
retail price greater than $19.00 (subject to reasonable adjustment for
inflation).
7.3 NON-SOLICITATION OF EMPLOYEES. Following any termination of
Shareholder's employment with the Company, for a period of three (3) years from
the date of termination or for the balance remaining of the Term of this
Agreement, whichever is greater, Shareholder shall not, directly or indirectly,
approach or solicit any employee of the Company with a view to hiring such
employee for any other entity or persuading such employee to leave the
employment of Company.
7.4 FORMATION OF COMPETITIVE BUSINESS PROHIBITED. During his employment,
Shareholder shall neither plan nor organize any business activity or
undertaking, competitive with the business of the Company. Shareholder will not
combine or conspire with other Company Shareholders of the Company for the
purpose of organizing any such competitive business activity undertaking.
7.5 SURVIVAL. The provisions of this Section 7 shall survive any
termination of this Agreement for the periods referenced above.
7.6 ADVICE TO FUTURE EMPLOYERS. While any provision of this Section 7
remains in effect, if Shareholder seeks or is offered employment by any other
company, firm, or person, Shareholder shall provide a copy of this Section 7 to
the prospective employer prior to accepting employment with that prospective
employer.
8. ENFORCEMENT
Shareholder acknowledges that the restrictions contained in Sections 6 and
7, in view of the nature of the Business, are reasonable and necessary to
protect the legitimate business interests of the Company and that any violation
of Sections 6 or 7 would result in irreparable injury to the Company. Upon a
breach or a threatened breach by Shareholder of the Sections 6 or 7 of this
Agreement, the Company shall be entitled to an injunction restraining
Shareholder from the commission of such breach and to recover its attorneys'
fees, costs and expenses related to the breach or threatened breach. Nothing
herein contained shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened breach, including
the recovery of money damages.
The covenants and disclosures in Sections 6 and 7 will be construed as
independent of any other provisions in this Agreement, and the existence of any
claim or cause of action by Shareholder against the Company, whether predicated
on this Agreement or otherwise, will not constitute a defense to the Company's
enforcement of such covenants and agreements. If any provision of this
Agreement, including Section 6 and 7, is invalid in part or in whole, it will be
deemed to have been amended, whether as to time, area covered or otherwise, as
and to the extent required for its validity under applicable law and, as so
amended, will be enforceable. The parties will execute all documents necessary
to evidence such amendment.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; ASSIGNMENT. Except as otherwise set forth herein,
this Agreement (i) constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof and (ii) shall not be assigned by operation of law or
otherwise.
(b) AMENDMENTS. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by each of the parties hereto.
(c) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand
delivery, by telecopy or by nationally recognized courier service providing
proof of delivery. All communications hereunder shall be delivered to;
If to Parent or the Purchaser:
Vincor International Inc.
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
ATTN: Xxxxxxxx Xxxxxxxxx
With a copy to:
Xxxxx, Xxxx & Xxxxxxx PLLC
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
XXX
ATTN: Xxx Xxxxxxxxx Tannon
Fax: (000) 000-0000
Xxxxxxx Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX X0X 0X0
Xxxxxx
ATTN: Xxxxx Xxxxxx
Fax: (000) 000-0000
If to the Company:
X.X. Xxxxxxxx, Inc.
00000 Xxxxxxx Xxxx 00X
Xxxxxxx, Xxxxxxxxxx 00000
XXX
ATTN: [Key Shareholder]
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
XXX
ATTN: Xxxxx Xxxxxxx
Fax: (000) 000-0000
If to the Shareholder:
[Key Shareholder]
00000 Xxxxxxx Xxxx 00X
Xxxxxxx, Xxxxxxxxxx 00000
XXX
Fax: (000) 000-0000
or, in any case, to such other address as the party to whom notice is given may
have previously furnished to the others in writing in the manner set forth
above.
(d) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to the
conflicts of laws thereof.
(e) SPECIFIC PERFORMANCE. Shareholder recognizes and acknowledges that a
breach by Shareholder of any covenants or agreements contained in this Agreement
shall cause the Company, Parent and Purchaser to sustain damages for which they
would not have an adequate remedy at law for money damages, and therefore
Shareholder agrees that in the event of any such breach the Company, Parent and
Purchaser shall be entitled to the remedy of specific performance of such
covenants and agreements and injunctive and other equitable relief in addition
to any other remedy to which they may be entitled, at law or in equity.
(f) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but both of which shall
constitute one and the same Agreement.
(g) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
(h) SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(i) PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
PARENT: VINCOR INTERNATIONAL INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
HOLD CO.: VINCOR HOLDINGS, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
PURCHASER: TOAST ACQUISITION COMPANY, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
COMPANY: X.X. XXXXXXXX, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
SHAREHOLDER: ---------------------------------------
[Key Shareholder]
NUMBER OF SHARES OWNED [Shares]
S-1
EXHIBIT A
APPRAISAL PROCEDURE
In determining the monetary value of any consideration paid to you (other
than cash) pursuant to a Restricted Disposition or a Minority Shareholder
Restricted Disposition, the following procedure shall apply:
If Shareholder and Parent cannot agree on such monetary value within a
period of ten (10) days after the applicable request or notice, Shareholder
and Parent shall each appoint one appraiser (each an "APPOINTED APPRAISER",
and collectively the "APPOINTED APPRAISERS") within five (5) days
thereafter (the "APPOINTMENT DATE"), which Appointed Appraisers shall
independently, within twenty (20) days of the Appointment Date (the
"DETERMINATION DATE"), determine the value of such consideration. If the
higher of the two values determined by the Appointed Appraisers is not at
least ten percent (10%) greater than the lower of such values, then the
value for purposes hereof shall be deemed to be the average of such values
determined by the Appointed Appraisers. If the higher of the two values
determined by the Appointed Appraisers is at least ten percent (10%)
greater then the lower of such values, the Appointed Appraisers shall
within five (5) days of the Determination Date appoint a third appraiser
(the "THIRD APPRAISER"), which Third Appraiser shall independently, within
fifteen (15) days of the Determination Xxxx, select one of the two values
as determined by the Appointed Appraisers as the value, and such selected
value shall be binding on the parties. If either Shareholder or Parent
fails to appoint an Appointed Appraiser by the Appointment Date, then the
Appointed Appraiser who has been appointed shall be the sole appraiser, and
the value determined by such Appointed Appraiser shall be the value for
purposes hereof and shall be binding on the parties. All appraisers
appointed pursuant hereto shall be qualified in valuing securities or other
property similar to the consideration being valued hereunder. No appraiser
shall be a shareholder or Affiliate of the Company, and the Third Appraiser
shall not be an Affiliate of either of the Appointed Appraisers. If a Third
Appraiser is required to determine the applicable monetary value hereunder,
the costs and expenses of all of the appraisers pursuant hereto shall be
borne by the party whose Appointed Appraiser's valuation was not selected
by the Third Appraiser. If no Third Appraiser is necessary pursuant hereto,
each party shall bear the costs and expenses of its Appointed Appraiser.
The following chart summarizes which shareholder executed this form Support
Agreement and the Number of Shares agreed to be tendered:
SHAREHOLDER NO. OF SHARES
------------- --------------
Xxxx Xxxxxxxx 154,308
Xxxx Xxxxxxxx 156,720
