EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 5, 2000, by and between SARATOGA
BEVERAGE GROUP, INC., a Delaware corporation (the "Company"), and XXXXX XXXXXX
(the "Executive").
WHEREAS, the Executive has been employed by the Company since April 1992
and currently serves as President and Chief Executive Officer of the Company
pursuant to an employment agreement dated as of January 28, 1999 (the "Prior
Employment Agreement");
WHEREAS, NCP-SBG, L.P., a Delaware limited partnership, NCP-SBG
Recapitalization Corp., a Delaware corporation and the Company have entered
into a Stock Purchase Agreement and Agreement and Plan of Merger, dated as of
the date hereof (as the same may be amended from time to time, the "Merger
Agreement");
WHEREAS, it has been agreed between North Castle Partners, LLC ("NCP") and
the Executive that she will be the Chief Executive Officer of all refrigerated
beverage and water businesses acquired by Company, or NCP, their respective
affiliates, and subsidiaries; and such agreement was material to the Executive
entering into this Agreement; and
WHEREAS, the Company, desires that following the "Closing Date" (as
defined in the Merger Agreement) the Executive continue to serve as the Chief
Executive Officer and President of the Company, and the Executive desires to
continue such employment, upon the terms set forth in this agreement (the
"Agreement");
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the Company and
the Executive hereby agree as follows:
1. Employment. The Company hereby agrees to continue to employ the
Executive, and the Executive hereby accepts continued employment with the
Company, upon the terms and subject to the conditions set forth herein.
2. Term. This Agreement shall become effective upon, and is conditioned
upon the occurrence of, the Commencement Date. Unless the Executive's
employment shall earlier terminate pursuant to Section 9, the Company shall
employ the Executive for a term commencing on the Closing Date (the
"Commencement Date") and ending on the third (3rd) anniversary of the
Commencement Date (the "Initial Term"). Effective upon the expiration of the
Initial Term, the Executive's employment shall automatically be extended, upon
the same terms and conditions, for an additional one year period (the
"Additional Term") unless, not later than six (6) months prior to the end of
the Initial Term, either party hereto shall have notified the other party
hereto in writing that such extension shall not take effect. The period during
which the Executive is employed pursuant to this Agreement is referred to as
the "Employment Period."
3. Position. During the Employment Period, the Executive shall serve as
Chief Executive Officer and President of the Company.
4. Duties and Reporting Relationship. (a) During the Employment Period,
the Executive shall use her skills and render services to the best of her
abilities in performing her duties hereunder. The Executive shall report to,
and be subject to supervision by, the Board of Directors of the Company (the
"Company Board"). The Executive shall devote substantially all of her business
time and attention to the business and affairs of the Company consistent with
her position with the Company. This Agreement shall not be construed as
preventing the Executive from engaging in charitable and community affairs,
giving attention to her outside investment interests or serving a member of the
board of directors of another entity, provided that such activities do not
interfere with the regular performance of her duties and responsibilities under
this Agreement.
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(b) Executive has entered into this Agreement in part based upon the
agreement between the parties that the Executive shall, immediately upon
acquisition or as promptly as practicable, become the Chief Executive Officer
for any and all acquisitions made by NCP, the Company's immediate and ultimate
parent companies, or their respective affiliates, of businesses in the
refrigerated beverage and/or water business.
5. Compensation. (a) Base Salary. The Executive's base salary ("Salary")
hereunder shall initially be $220,000 per calendar year, payable in accordance
with the Company's customary payroll practices, but in no event less frequently
than semi-monthly. Commencing on the first anniversary of this Agreement, the
Executive's Salary shall be reviewed by the Compensation Committee of the
Company Board (the "Compensation Committee") and may be adjusted from time to
time as the Compensation Committee, in its sole and absolute discretion, shall
determine; provided that, the Executive's Salary shall not at any time be less
than $220,000 per calendar year.
(b) Annual Bonus. The Compensation Committee shall set goals on an annual
basis (by March 1 of each fiscal year for such fiscal year) for the Executive's
performance as an officer of the Company, and shall cause the Company to pay to
her an annual bonus in addition to the Salary based on the achievement by the
Executive of such goals; provided, however, that the Executive shall receive a
bonus with respect to the first year following the Commencement Date of not
less than 50% of her Salary. In the event that the Executive's employment is
terminated by the Company without Cause (as defined in Section 9(b)) or by the
Executive for Good Reason (as defined in Section 9(c) excluding Section
9(c)(iv)), the Company shall pay to the Executive either (i) if prior to the
first anniversary of the Commencement Date, the target annual bonus payable in
respect of the fiscal year in which such termination of employment occurs (but
no less than 50% of her Salary); or (ii) if on or after the first anniversary
of the Commencement Date, the target annual bonus payable in respect of the
fiscal year in which such termination of employment occurs (but no less than
preceding year's annual bonus), provided that, if such termination occurs
within the first six months of such fiscal year, such payment shall be prorated
by the number of months of Executive's employment during such period over the
total number of months in such period; in either case such amount shall be paid
as soon as practicable, but in no event more than 30 days following the Date of
Termination.
(c) Initial Option Grant. The Executive shall be granted stock options
(the "Options") to purchase shares of the recapitalized common stock of the
Company, $.01 par value (the "Common Stock") that represent 2% of the Company's
full diluted equity as of the Commencement Date. The Options shall be
non-qualified stock options and shall be issued pursuant to, and in accordance
with, a stock incentive plan (the "Plan") to be adopted by the Company (a
summary of the terms of which has been previously delivered to the Executive)
on the Commencement Date which will be evidenced by one or more stock option
agreements to be entered into by the Executive and Company pursuant to the Plan
as finally adopted. Each Option shall be exercisable at a price equal to the
fair market value of the Common Stock of the Company on the date of grant. The
Options granted pursuant to this Section 5(c) shall vest in four equal portions
at the date of grant and on each of the first, second and third anniversaries
thereof, subject to the Executive's continued employment through the applicable
vesting date. The Executive's vested Options shall be exercisable for a period
of ten (10) years from the date of grant. Upon the termination of the
Executive's employment for Cause (as defined below) or other than for Good
Reason (as defined below), any unvested Options shall lapse. Upon the
termination of the Executive's employment pursuant to Section 9, the Executive
shall have one (1) year from the Date of Termination to exercise any vested
Options.
(d) Additional Option Grant. On the first anniversary of the Commencement
Date (or as soon thereafter as practicable), the Executive shall be granted
stock options to purchase shares of Common Stock that represent 1% of the
Company's fully diluted equity at the time of grant, and will be subject to the
same vesting and other provisions as the grant of Options described in the
preceding paragraph.
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6. Vacation, Holidays and Sick Leave. During the Employment Period, the
Executive shall be entitled to paid vacation, paid holidays and sick leave in
accordance with the Company's standard policies for its senior executive
officers, which policies shall provide the Executive with benefits no less
favorable than those provided to any other senior executive officer of the
Company. Such vacation may be taken, in the Executive's discretion, at such
time or times as are not inconsistent with the reasonable business needs of the
Company. The Executive shall also be entitled to all paid holidays given by the
Company to its senior executive officers.
7. Business Expenses. The Company recognizes that the Executive will incur
expenses in connection with her duties hereunder and the business of the
Company. The Company agrees to provide the Executive with a corporate American
Express Card in order to pay such expenses and to otherwise reimburse the
Executive for all such expenses paid or incurred by her (and/or, if requested
by the Executive, to advance the Executive amounts required to cover such
expenses) in connection with her employment upon timely submission by the
Executive of receipts and other documentation as required by the Internal
Revenue Code and in conformance with the Company's normal policies and
procedures.
8. Pension and Welfare Benefits; Perquisites. During the Employment
Period, the Executive shall be eligible to participate fully in all health
benefits, insurance programs, pension and retirement plans and other employee
and compensation arrangements (collectively, the "Employee Benefits") available
to officers of the Company generally, which Employee Benefits shall provide the
Executive with benefits no less favorable than those provided to any other
senior executive officer of the Company. During the Employment Period, the
Company shall pay, on a monthly basis, the Executive an automobile allowance of
$750 per month or, at the option of the Executive, shall provide the Executive
with the use of an automobile. During the Employment Period, the Company shall
pay, or reimburse the Executive, as the case may be, for the cost of first
class air travel by the Executive in connection with her duties hereunder,
provided that, such air travel is longer than three hours. In addition, during
the Employment Period, the Company shall provide the Executive with such other
perquisites as the Company Board shall deem appropriate. Nothing contained
herein shall be deemed a waiver by Executive of, or diminish or modify, any
vested rights which Executive may have or may hereafter acquire under any
employee benefit plan of the Company.
9. Termination of Employment. The Executive's employment hereunder may be
terminated without any breach of this Agreement only under the following
circumstances:
(a) Death or Disability. The Executive's employment hereunder shall
automatically terminate upon the death of the Executive. If, as a result of the
Executive's incapacity due to physical or mental illness, the Executive shall
have been absent from her duties with the Company for any six (6) consecutive
months or two hundred forty (240) days in any consecutive three hundred
sixty-five (365) day period, then the Company may terminate the Executive's
employment hereunder for "Disability."
(b) By the Company. The Company may terminate the Executive's employment
hereunder with or without Cause. For purposes of this Agreement, "Cause" shall
mean the Executive's conviction of a crime constituting a felony involving
fraud or dishonesty. Notwithstanding the foregoing, the Executive's employment
hereunder shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than 75% of the directors
constituting the Company Board (other than the Executive) (after written notice
to the Executive and a reasonable opportunity for the Executive, together with
the Executive's counsel, to be heard before the Company Board), finding that
the Executive should be terminated for Cause.
(c) Termination by the Executive. The Executive shall be entitled to
terminate her employment hereunder for Good Reason (as defined below) or any
other reason. For purposes of this Agreement, "Good Reason" shall mean, without
the Executive's express written consent, (i) the assignment to the Executive of
any duties inconsistent with, or any diminution of, the Executive's positions,
titles, offices, duties, responsibilities or status with the Company; (ii) the
relocation of the Company's principal executive offices to a location more than
fifty (50) miles from Saratoga Springs, New York or Boca
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Raton, Florida or the Company's requiring the Executive to be based anywhere
other than Saratoga Springs, New York or Boca Raton, Florida, except for
required travel on the Company's business to an extent substantially consistent
with the Executive's present business travel obligations; (iii) the failure by
the Company to pay on a timely basis to the Executive any portion of the
Executive's then current compensation; (iv) if the Executive perceives in her
sole judgment that there has been a dimunition in her duties, authority,
responsibilities, day to day control, reporting responsibilities, employee
relations, status, relationship with the Company Board or NCP; or interference
with the exercise of her business judgment; or a substantial increase without
her agreement, in her duties, responsibilities, or reporting requirements; or
(v) if there is a breach of the provisions of Section 4(b) hereof; then, in
each case after written notice delivered by the Executive to the Company within
90 days of the occurrence of such action setting forth in reasonable detail the
specifics of such action or actions giving rise to such Good Reason.
(d) Notice of Termination. Any purported termination of the Executive's
employment by the Company or by the Executive shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 18.
"Notice of Termination" shall mean a notice that shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
(e) Date of Termination. "Date of Termination" shall mean if the
Executive's employment is terminated because of death, the date of the
Executive's death, if the Executive's employment is terminated for Disability,
the date Notice of Termination is given, if the Executive's employment is
terminated for Cause, the date of delivery to the Executive of the resolution
of the Company Board referenced in Section 9(b) or if the Executive's
employment is terminated pursuant to Section 9(c) hereof or for any other
reason (other than death or Disability), the date specified in the Notice of
Termination (which, in the case of a termination for Good Reason shall not be
less than fifteen (15) days nor more than sixty (60) days from the date such
Notice of Termination is given, except if pursuant to Section 9(c)(iv) then
shall not be less than 60 days, and in the case of a termination for any other
reason shall not be less than thirty (30) days from the date such Notice of
Termination is given.)
10. Compensation During Disability, Death or Upon Termination. (a) During
any period that the Executive fails to perform her duties hereunder as a result
of incapacity due to physical or mental illness ("Disability Period"), the
Executive shall continue to receive her full Salary at the rate then in effect
for such period until her employment is terminated pursuant to Section 9(a)
hereof, provided that payments so made to the Executive during the Disability
Period shall be reduced by the sum of the amounts, if any, payable to the
Executive with respect to such period under disability benefit plans of the
Company or under the Social Security disability insurance program, and which
amounts were not previously applied to reduce any such payment.
(b) If the Executive's employment is terminated by her death or
Disability, the Company shall pay all amounts due to the Executive under
Section 5 through the Date of Termination plus all other amounts to which she
is entitled under any compensation or benefit plan or program of the Company,
in each case in accordance with Section 8, if applicable, at the time such
payments are due and the Company shall have no further obligation to the
Executive under this Agreement.
(c) If the Executive's employment shall be terminated by the Company for
Cause or by the Executive for other than Good Reason, the Company shall pay the
Executive her full Salary through the Date of Termination at the rate in effect
at the time Notice of Termination is given plus all other amounts to which she
is entitled under any compensation or benefit plan or program of the Company,
and the Company shall have no further obligation to the Executive under this
Agreement.
(d) If the Company shall terminate the Executive's employment other than
for Cause, or the Executive shall terminate her employment for Good Reason (or
death or Disability) then
(i) the Company shall pay the Executive her full Salary through the
Date of Termination at the rate in effect at the time Notice of Termination
is given plus all other unpaid amounts, if any, to which the Executive is
entitled as of the Date of Termination under any compensation or benefit
plan or program of the Company, at the time such payments are due;
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(ii) subject to Section 11, the Company shall pay the Executive an
amount equal to the Executive's Salary equal to the lesser of (A) 24 months
and (B) the expiration of the term of this Agreement (but in no
circumstances less than 12 months) payable in substantially equal monthly
installments during the period commencing with the month immediately
following the month in which the Date of Termination occurs and ending 12
months thereafter. Notwithstanding the foregoing, if the Executive
terminates her employment pursuant to Section 9(c)(iv) hereof, the Company
shall pay the Executive an amount equal to the Executive's Salary for 12
months in substantially equal installments during the period commencing on
the month immediately following the month in which the Date of Termination
occurs and ending 12 months thereafter. If the Executive terminates her
employment pursuant to Section 9(c)(v) the Company shall pay the Executive
an amount equal to the Executive's Salary for 36 months in substantially
equal installments during the period commencing with the month immediately
following the month in which the Date of Termination occurs and ending 12
months thereafter; if the Executive terminates her employement pursuant to
Section 9(c)(v) due to an acquisition not involving those identified at
Closing, then the provisions of Section 10(d)(ii)(A) and (B) above shall
apply;
(iii) the Executive shall be entitled to continue to receive her health
benefits for a period ending on the earlier of (x) 24 months or (y) the
expiration of the term of this Agreement but in no circumstances less than
12 months; and
(iv) the balance of Executive's stock options granted pursuant to
Section 5(c) shall immediately vest on the Date of Termination and the
stock options granted pursuant Section 5(d) shall be deemed granted if they
have not already been so, and fully vested as of the Date of Termination.
(e) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 10 by seeking other employment or
otherwise, and the amount of any payment or benefit provided for in this
Section 10 shall not be reduced by any compensation earned by the Executive as
the result of employment by another employer or by retirement benefits or
otherwise.
11. Release. In consideration of the payments to be made to the Executive
pursuant to Section 10(d)(ii) of this Agreement and as a condition to the
payment thereof, the Executive acknowledges that all such payments, if made in
accordance with the terms of this Agreement, shall constitute complete
satisfaction of all Salary obligations owed by the Company to the Executive.
The parties hereby agree that if this Section 11 becomes applicable they will
execute a mutually acceptable release to reflect the provisions of this
Section.
12. Representations and Warranties. (a) The Company represents and
warrants that this Agreement has been authorized by all necessary corporate
action of the Company and is a valid and binding agreement of the Company
enforceable against it in accordance with its terms.
(b) The Executive represents and warrants that she is not a party to any
agreement or instrument which would prevent her from entering into or
performing her duties in any way under this Agreement.
13. Successors; Binding Agreement. (a) The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
(b) This Agreement is a personal contract and the rights and interests of
the Executive hereunder may not be sold, transferred, assigned, pledged,
encumbered, or hypothecated by her, except as otherwise expressly permitted by
the provisions of this Agreement. This Agreement shall inure to the benefit of
and be enforceable by the Executive and her personal or legal representatives,
executors, administrators, successors, heirs, distributees, devises and
legatees. If the Executive should die while any amount would still be payable
to her hereunder had the Executive continued to live, all such amounts, unless
otherwise proved herein, shall be paid in accordance with the terms of this
Agreement to her devisee, legatee or other designee or, if there is not such
designee, to her estate.
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14. Restrictive Covenants. (a) Executive acknowledges and agrees that
Executive has had and will have a prominent role in the management of the
business, and the development of the goodwill, of the Company and will
establish and develop relations and contacts with the principal customers and
suppliers of the Company in the United States of America, all of which
constitute valuable goodwill of, and could be used by Executive to compete
unfairly with, the Company and that (i) in the course of her employment with
the Company, Executive will obtain confidential and proprietary information and
trade secrets concerning the business and operations of the Company in the
United States of America and the rest of the world that could be used to
compete unfairly with the Company; (ii) the covenants and restrictions
contained in this Section 14 are intended to protect the legitimate interests
of the Company in their respective goodwill, trade secrets and other
confidential and proprietary information; and (iii) Executive desires to be
bound by such covenants and restrictions.
(b) The Executive covenants and agrees that she will not any time during
and after the end of the Employment Period, directly or indirectly, use for her
own account, or disclose to any person, firm or corporation, other than
authorized officers, directors and employees of the Company or its
subsidiaries, Confidential Information (as hereinafter defined) of the Company,
except (i) while employed by the Company, in the business of and for the
benefit of the Company or (ii) when required to do so by a court of competent
jurisdiction, by any governmental agency having supervisory authority over the
business of the Company, or by any administrative body or legislative body
(including a committee thereof) with jurisdiction to order the Company to
divulge, disclose or make accessible such information. For purposes of this
Agreement, "Confidential Information" shall mean non-public information
concerning the Company's financial data, statistical data, strategic business
plans, product development (or other proprietary product data), customer,
supplier, distributor and bottler lists and other information, information
relating to practices, processes, methods, trade secrets, marketing plans and
other non-public, proprietary and confidential information of the Company;
provided, however, that Confidential Information shall not include any
information which (x) is known generally to the public other than as a result
of unauthorized disclosure by the Executive, (y) becomes available to the
Executive on a non-confidential basis from a source other than the Company or
(z) was available to the Executive on a non-confidential basis prior to its
disclosure to the Executive by the Company, whether such disclosure by the
Company was before or after the date of this Agreement. It is specifically
understood and agreed by the Executive that any Confidential Information
received by the Executive during her employment by the Company is deemed
Confidential Information for purposes of this Agreement. In the event that the
Executive's employment is terminated hereunder for any reason, she immediately
shall return to the Company all Confidential Information in her possession.
(c) The Executive covenants and agrees that during the Employment Period
and for a period of three (3) years following the Date of Termination, the
Executive shall not, directly or indirectly, own any interest in, operate,
join, control or participate as a partner, director, principal, officer, or
agent of, enter into the employment of, act as a consultant to, or perform any
services for any entity which has material operations which compete with any
refrigerated beverage and water business in which the Company or its immediate
affiliates is engaged, or in which any of the foregoing has documented plans to
become engaged of which Executive has knowledge at the time of the Executive's
termination of employment. Notwithstanding the foregoing, the Executive may be
employed by, or provide services to, an investment banking firm or consulting
firm that provides services to entities described in the previous sentence,
provided that the Executive does not personally represent or provide services
to such entities. Notwithstanding anything herein to the contrary, this Section
14 shall not prevent the Executive from acquiring as an investment securities
representing not more than five percent (5%) of the outstanding voting
securities of any publicly-held corporation.
(d) The Executive and the Company agree that the covenant of
non-competition is a reasonable covenant under the circumstances, and further
agree that if, in the opinion of any court of competent jurisdiction such
covenants are not reasonable in any respect, such court shall have the right,
power and authority to excise or modify such provision or provisions of these
covenants as to the court shall appear not reasonable and to enforce the
remainder of these covenants as so amended.
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(e) The Executive covenants and agrees that during the Employment Period
and for a period of three (3) years following the Date of Termination, the
Executive shall not directly or indirectly engage in any conduct or make any
statement, whether in commercial or noncommercial speech, disparaging or
criticizing in any way the Company or any subsidiary or affiliate thereof, or
any products or services offered by any of these, or engage in any other
conduct or make any other statement that could be reasonably expected to impair
the goodwill of the Company or any subsidiary or affiliate thereof, the
reputation of the products of the Company or any subsidiary or affiliate
thereof or the marketing of such products, in each case except to the extent
required by law, and then only after consultation with the Company to the
extent possible.
(f) The Executive acknowledges and agrees that a breach of the covenants
contained in this Section 14 may cause irreparable injury to the Company for
which adequate remedies are not available at law. Accordingly, the Executive
agrees that the Company, in addition to pursuing any other remedies it may have
in law or in equity, may seek to obtain an injunction against the Executive
from any court having jurisdiction over the matter, restraining any further
violation of this Section 14.
15. Entire Agreement. This Agreement contains all the understandings
between the parties hereto pertaining to the matters referred to herein, and
supersedes all undertakings and agreements (including the Prior Employment
Agreement), whether oral or in writing, previously entered into by them with
respect thereto. The Executive represents that, in executing this Agreement,
she does not rely and has not relied upon any representation or statement not
set forth herein made by the Company with regard to the subject matter, bases
or effect of this Agreement or otherwise.
16. Amendment or Modification, Waiver. No provision of this Agreement may
be amended or waived unless such amendment or waiver is agreed to in writing,
signed by the Executive and by a duly authorized officer of the Company. The
Executive's or the Company's failure to insist upon strict compliance with any
provision of, or to assert any right under, this Agreement shall not be deemed
to be a waiver of such provision or right or of any other provisions of or
right under this Agreement.
17. Indemnification; Legal Fees. The Company shall indemnify the Executive
and hold her harmless from any cost, expense or liability arising out of or
relating to any acts, failure to act, or any decisions made by her, in the
course of performing services hereunder, within the scope of her employment
hereunder, in accordance with the Company's charter and by-laws including, but
not limited to, any criminal action or proceeding provided that she had no
reasonable cause to believe her conduct was unlawful. Except as provided for
the next sentence, the Company shall bear, or reimburse the Executive for, all
reasonable legal fees, expenses, costs, judgments, fines, penalties, and
amounts paid in settlement incurred by her in connection with entering into
this Agreement. If either party institutes any action or proceedings to enforce
any rights the party has under this Agreement or for any other judicial remedy,
the prevailing party shall be entitled to reimbursement from the other party
for its costs and expenses incurred thereby, including but not limited to,
reasonable attorneys' fees and disbursements.
18. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered personally or sent
by facsimile transmission, overnight courier, or certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally or sent by facsimile transmission (provided that a
confirmation copy is sent by overnight courier), one day after deposit with an
overnight courier, or if mailed, five (5) days after the date of deposit in the
United States mails, as follows:
If to the Company, to:
Saratoga Beverage Group, Inc.
00 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Chief Operating Officer
Fax No.: (000) 000-0000
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with copies to:
North Castle Partners, L.L.C.
00 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
If to the Executive, to:
Xxxxx Xxxxxx
c/o Saratoga Beverage Group, Inc.
0000 Xxxxxxxx Xxxxxxxx Xxxx.
Xxxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxx, McClosky, Smith, Xxxxxxxx & Xxxxxxx, P.A.
000 X. Xxxxxxx Xxxx.
Xx. Xxxxxxxxxx, XX. 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Any notice delivered personally or by courier under this Section 18 shall
be deemed given on the date delivered and any notice sent by telecopy or
registered or certified in postage prepaid, return receipt requested, shall be
deemed given on the date telecopied or mailed.
19. Condition Precedent. This Agreement shall be of no force and effect if
the Merger (as defined in the Merger Agreement) does not become effective and
shall automatically expire if the Merger Agreement is terminated.
20. Severability. If any court of competent jurisdiction shall at any time
determine that, but for the provisions of this paragraph, any part of this
Agreement is illegal, void as against public policy or otherwise unenforceable,
the relevant part will automatically be amended to the extent necessary to make
it sufficiently narrow in scope, time and geographic area to be legally
enforceable. All other terms will remain in full force and effect. Further, if
the Executive raises any question as to the enforceability of any part of the
terms of this Agreement, including, without limitation, the covenants contained
in Section 14, the Executive specifically agrees that she will comply fully
with this Agreement unless and until the entry of an award to the contrary.
21. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
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22. Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED IN ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT,
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES THEREOF TO THE EXTENT THAT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH PARTY HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE COUNTY OF NEW
YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS
OF THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS AGREEMENT, AND IN
RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. EACH PARTY HEREBY
WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING
FOR THE INTERPRETATION AND ENFORCEMENT HEREOF, OR ANY SUCH DOCUMENT OR IN
RESPECT OF ANY SUCH TRANSACTION, THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT
BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURTS OR THAT THE VENUE THEREOF MAY
NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE
ENFORCED IN OR BY SUCH COURTS. EACH PARTY HEREBY CONSENTS TO AND GRANTS ANY
SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT
MATTER OF ANY SUCH DISPUTE AND AGREE THAT THE MAILING OF PROCESS OR OTHER
PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED
IN SECTION 18 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE
VALID AND SUFFICIENT SERVICE THEREOF.
23. Arbitration. Any dispute, controversy, or question arising under, out
of, or relating to this Agreement (or the breach thereof) or, Executive's
employment with the Company or termination thereof, shall be referred for
arbitration to be held in Albany, New York (or such other place as the parties
and the arbitrator shall agree) to a neutral arbitrator selected by the
Executive and the Company and this shall be the exclusive and sole means for
resolving such dispute (other than for injunctive relief under this Agreement).
The arbitration shall be conducted in accordance with the Employment
Arbitration Rules (the "Rules") of the American Arbitration Association (the
"AAA") in effect at the time of the arbitration, except that the arbitrator
shall be selected by alternatively striking from a list of five arbitrators
supplied by the AAA, and the decision of the arbitrator shall be governed by
the rule of law. Such right to submit a dispute arising hereunder to
arbitration and the decision of the neutral arbitrator shall be final,
conclusive and binding on all parties and interested persons and no action at
law or in equity shall be instituted or, if instituted, further prosecuted by
either party other than to enforce the award of the neutral arbitrator. The
arbitrator shall take submissions and hear testimony, if necessary, and shall
render a written decision as promptly as possible. The arbitrator may require
discovery for good cause shown. Each party shall bear its own costs and
expenses incurred in connection with any such arbitration; provided that the
arbitrator shall be entitled to award to the prevailing party reimbursement of
its reasonable legal costs and expenses (including with respect to the
arbitrator and the AAA).
24. Headings. All descriptive headings of sections and paragraphs in this
Agreement are intended solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading of any section or
paragraph.
25. Withholdings. All payments to the Executive under this Agreement shall
be reduced by all applicable withholding required by federal, state or local
law.
26. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx
SARATOGA BEVERAGE GROUP, INC.
By: /s/ Xxx Xxxxx
----------------------------------------
Name: Xxx Xxxxx
Title: Chief Financial Officer
10
