EX-99.(D)(5) 16 a2024691zex-99_d5.txt EXHIBIT 99(D)(5) 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") and (ii) [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, 2 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 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. [INTENTIONALLY LEFT BLANK] 3 6. [INTENTIONALLY LEFT BLANK] 7. 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. 441 Courtney Drive East Mississauga, Ontario L5T 2V3 Canada ATTN: Jonathan Bamberger With a copy to: Brown, Todd & Heyburn PLLC 400 West Market Street, 32nd Floor Louisville, KY 40202-3363 USA ATTN: Jay Middleton Tannon Fax: (502) 581-1087 4 Goodman Phillips & Vineberg 250 Yonge Street, Suite 2400 Toronto, ON M5B 2M6 Canada ATTN: David Matlow Fax: (416) 979-1234 If to the Company: R.H. Phillips, Inc. 26386 Country Road 12A Esparto, California 95627 USA ATTN: John Giguiere Fax: (530) 662-9267 with a copy to: Farella Brawn & Martel LLP 235 Montgomery Street, 30th Floor San Francisco, CA 94104 USA ATTN: Frank Farella Fax: (415) 954-4480 with a copy to: [Shareholder] ----------------- ----------------- 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. 5 (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] 6 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: -------------------------------- By: -------------------------------- Name: -------------------------------- Title: -------------------------------- HOLD CO.: VINCOR HOLDINGS, INC. By: -------------------------------- Name: -------------------------------- Title: -------------------------------- PURCHASER: TOAST ACQUISITION COMPANY, INC. By: -------------------------------- Name: -------------------------------- Title: -------------------------------- SHAREHOLDER: -------------------------------------- [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 Dale, 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 ----------- ------------- R. Ken Coit and Donna Coit 321,746 David Gemmer 306,336 Lane Giguiere 65,688 Victor L. Motto 22,000 R.H. Phillips Vineyards, Inc. 714,103 RHP Vineyards, Inc. 865,773
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