RESTATED VOTING, STANDSTILL AND PROXY AGREEMENT
This Restated Voting, Standstill and Proxy Agreement (the
"Agreement") is made and entered into as of October 13, 1998 by and among THE
FRESH JUICE COMPANY, INC., a Delaware corporation (the "Company"), the
stockholders of the Company whose names and addresses are set forth on the
signature pages hereto (the "Company Stockholders"), SARATOGA BEVERAGE GROUP,
INC., a Delaware corporation ("Saratoga"), and the stockholders of Saratoga
whose names and addresses are set forth on the signature pages hereto (the
"Saratoga Stockholders").
WHEREAS, the Company, the Company Stockholders and Saratoga
previously entered into a voting, standstill and proxy agreement, dated as of
August 14, 1998 (the "First Agreement"); and
WHEREAS, the parties hereto have determined to amend the
terms of the First Agreement; and
WHEREAS, the Company, Saratoga and Rowale Corp., a
wholly-owned subsidiary of Saratoga ("Sub"), entered into, as of the date
hereof, a Restated Agreement and Plan of Merger (the "Merger Agreement"; terms
used herein and not otherwise defined are used herein as defined in the Merger
Agreement), pursuant to which Sub will merge with and into the Company (the
"Merger") and each share of common stock, $.01 par value per share, of the
Company ("Company Common Stock") would be converted into the right to receive
cash and shares of Class A common stock, $.01 par value per share, of Saratoga
("Class A Common Stock"); and
WHEREAS, each of the Company Stockholders owns the number of
shares of Company Common Stock set forth opposite his name on Schedule A
annexed hereto (collectively, the "Company Securities" and, with respect to the
Company Securities owned by a specific Company Stockholder, the "Company
Stockholder's Securities"); and
WHEREAS, each of the Saratoga Stockholders owns the number of
shares of Class A Common Stock and shares of Class B common stock, $.01 par
value per share, of Saratoga ("Class B Common Stock") set forth opposite his or
her name on Schedule B annexed hereto (collectively, the "Saratoga Securities"
and, with respect to the Saratoga Securities owned by a specific Saratoga
Stockholder, the "Saratoga Stockholder's Securities"); and
WHEREAS, execution and delivery of this Agreement by the
Company Stockholders and by the Saratoga Stockholders is a condition to the
execution and delivery of the Merger Agreement by Saratoga and Sub, and by the
Company, respectively.
NOW, THEREFORE, in order to induce Saratoga, Sub and the
Company to enter into the Merger Agreement and in consideration of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Term. This Agreement (except for Section 3(e) hereof)
shall expire on the earlier of (i) the Effective Date (as defined in the Merger
Agreement) or (ii) the termination of the Merger Agreement by any party thereto
pursuant to the terms thereof.
2. Covenants of the Saratoga Stockholders.
(a) Each Saratoga Stockholder agrees to vote all of
his or her Saratoga Securities for the approval of the issuance of
shares of Class A Common Stock in the Merger.
(b) Except in accordance with the provisions of this
Agreement or as expressly set forth in the Merger Agreement, each
Saratoga Stockholder agrees, until the termination of this Agreement,
not to:
(i) sell, transfer, pledge, assign or
otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale,
transfer, pledge, assignment or other disposition of, any
Saratoga Securities; or
(ii) deposit any Saratoga Securities into a
voting trust, enter into a voting agreement or otherwise
grant any voting rights to any other person or entity with
respect to any such securities.
(c) Until such time as this Agreement is terminated,
each Saratoga Stockholder agrees to take any actions as reasonably
requested by the Company or Saratoga, within his or her power, as are
necessary or appropriate to enable Saratoga and Sub to satisfy the
conditions precedent set forth in the Merger Agreement to the
Company's obligations to consummate the Merger, and to use her
reasonable efforts to cause Saratoga and Sub to satisfy such
conditions precedent; provided, however, that such Saratoga
Stockholder shall not be required to pay any moneys or incur any
liability in connection with the foregoing.
3. Covenants of the Company Stockholders.
(a) Each Company Stockholder agrees to vote all of
his currently owned shares of Company Common Stock for the approval of
the Merger, the Merger Agreement (in the form executed as of the date
hereof, with such changes thereto as the parties to the Merger
Agreement may agree prior to such changes), and the transactions
contemplated therein.
(b) Each Company Stockholder, in his capacity as
such, further agrees to convert, at the Closing, all in-the-money
options and warrants to purchase shares of Company Common Stock into
the cash and shares of Class A Common Stock in accordance with Section
1.05(d) of the Merger Agreement.
(c) Except in accordance with the provisions of this
Agreement or as expressly set forth in the Merger Agreement, each
Company Stockholder agrees, until the termination of this Agreement,
not to:
(i) sell, transfer, pledge, assign or
otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale,
transfer, pledge, assignment or other disposition of, any
Company Securities; or
(ii) deposit any Company Securities into a
voting trust, enter into a voting agreement or otherwise
grant any voting rights to any other person or entity with
respect to any Company Securities.
(d) Until such time as this Agreement is terminated,
each Company Stockholder agrees to take any actions as reasonably
requested by the Company or Saratoga, within his power as are
necessary or appropriate to enable the Company to satisfy the
conditions precedent set forth in the Merger Agreement to Saratoga's
obligations to consummate the Merger, and to use his best efforts to
cause the Company to satisfy such conditions precedent; provided,
however, that such Company Stockholder shall not be required to pay
any moneys or incur any liability in connection with the foregoing.
(e) In addition, for a period commencing on the date
of this Agreement and ending on the earlier to occur of (i) the third
anniversary of the Effective Date or (ii) the termination of the
Merger Agreement by any party thereto pursuant to the terms thereof,
each Company Stockholder hereby agrees that, without the prior written
consent of Saratoga, he will not, directly or indirectly, through one
or more intermediaries or otherwise, participate in any transaction in
which one or more parties have done or seek to do any of the
following: (i) purchase or acquire, or agree to purchase or acquire,
any shares of capital stock or other securities of Saratoga; (ii)
solicit, or encourage any other person to solicit, proxies or consents
of stockholders of Saratoga, or become a "participant" or otherwise
engage in any "solicitation" (as such terms are defined under
Regulation 14A of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), with respect to any matter in opposition to the
recommendation of a majority of the members of the Board of Directors
of Saratoga then in office; (iii) acquire or affect, or seek to
acquire or affect, control of Saratoga, or influence or seek to
influence the management of Saratoga, or directly or indirectly
participate in or encourage the formation of any group seeking to
influence management or to displace or modify the composition of the
Board of Directors of Saratoga; (iv) join a partnership, limited
partnership, syndicate or other group within the meaning of Section
13(d) of the Exchange Act for the purpose of acquiring, holding or
disposing of any shares of capital stock or other securities of
Saratoga; (v) initiate, propose or otherwise solicit stockholders for
the approval of one or more stockholder proposals with respect to
Saratoga, as described in Rule 14a-8 under the Exchange Act,
irrespective of whether Rule 14a-8 under the Exchange Act is
applicable; or (vi) seek to modify the terms of this paragraph.
4. Representations and Warranties of the Saratoga
Stockholders. Each Saratoga Stockholder represents and warrants to the Company
as follows:
(a) the Saratoga Stockholder owns such Saratoga
Securities of record or beneficially free and clear of any lien,
security interest, encumbrance or other adverse claim;
(b) such Saratoga Stockholder's Securities set forth
on Schedule B hereto are the only securities of Saratoga owned of
record or beneficially by such Saratoga Stockholder or in which such
Saratoga Stockholder has any interest; and
(c) such Saratoga Stockholder has the right, power
and authority to execute and deliver this Agreement and to perform his
or her obligations hereunder; such execution, delivery and performance
will not violate any applicable law, rule or regulation or any
outstanding agreement or instrument to which such Saratoga Stockholder
is a party; and this Agreement constitutes a legal, valid and binding
agreement on the part of such Saratoga Stockholder enforceable against
such Saratoga Stockholder in accordance with its terms.
5. Representations and Warranties of Saratoga. Saratoga
represents and warrants to the Company that the execution and delivery of this
Agreement by Saratoga and the performance by it of its obligations hereunder
have been duly authorized by all necessary corporate action, do not violate the
terms of its Certificate of Incorporation, its By-Laws, any law, rule or
regulation or any outstanding agreement or instrument to which it is a party or
is bound or subject to, and this Agreement constitutes a legal, valid and
binding agreement on its part.
6. Representations and Warranties of the Company
Stockholders. Each Company Stockholder represents and warrants to Saratoga as
follows:
(a) such Company Stockholder owns such Company
Stockholder's Securities of record or beneficially free and clear of
any lien, security interest, encumbrance or other adverse claim;
(b) such Company Stockholder's Securities set forth
on Schedule A hereto are the only securities of the Company owned of
record or beneficially by such Company Stockholder or in which such
Company Stockholder has any interest, and, except as set forth on
Schedule A, such Company Stockholder has no right to acquire any other
securities of the Company; and
(c) such Company Stockholder has the right, power
and authority to execute and deliver this Agreement and to perform his
obligations hereunder; such execution, delivery and performance will
not violate any applicable law, rule or regulation or any outstanding
agreement or instrument to which such Company Stockholder is a party;
and this Agreement constitutes a legal, valid and binding agreement on
the part of such Company Stockholder enforceable against such Company
Stockholder in accordance with its terms.
7. Representations and Warranties of the Company. The Company
represents and warrants to Saratoga that the execution and delivery of this
Agreement by the Company and the performance by it of its obligations hereunder
have been duly authorized by all necessary corporate action, do not violate the
terms of its Articles of Incorporation, its By-Laws, any law, rule or
regulation or any outstanding agreement or instrument to which it is a party or
is bound or subject to, and this Agreement constitutes a legal, valid and
binding agreement on its part.
8. Saratoga Proxy.
(a) Each Saratoga Stockholder hereby irrevocably
makes, constitutes and appoints the Company to act as such Saratoga
Stockholder's true and lawful proxy and attorney-in-fact in the name
and on behalf of such Saratoga Stockholder, with full power to appoint
a substitute or substitutes to vote all of his or her Saratoga
Securities for the approval of the issuance of the shares of Class A
Common Stock as set forth in Section 2(a) hereof (subject to Section
18 hereof). By giving this proxy, each such Saratoga Stockholder
hereby revokes any other proxy granted by such Saratoga Stockholder to
vote any of such Saratoga Stockholder's Securities with respect to
such matters. This proxy, and the power of attorney and all authority
contained herein, shall become effective as to any Saratoga
Stockholder only upon the failure of such Saratoga Stockholder to vote
or consent with respect to his or her shares in accordance with
Section 2(a) hereof, following notice to such Saratoga Stockholder to
that effect.
(b) All power and authority hereby conferred is
coupled with an interest and is irrevocable, shall not be terminated
by any act of such Saratoga Stockholder or by operation of law, by
lack of appropriate power or authority, or by the occurrence of any
other event or events and shall be binding upon all beneficiaries,
heirs at law, legatees, distributees, successors, assigns and legal
representatives of such Saratoga Stockholder. If after the execution
of this Agreement any Saratoga Stockholder shall cease to have
appropriate power or authority, or if any other such event or events
shall occur, the Company is nevertheless authorized and directed to
vote the Saratoga Securities in accordance with the terms of this
Agreement as if such lack of appropriate power or authority or other
event or events had not occurred and regardless of notice thereof.
(c) Each Saratoga Stockholder agrees to use all good
faith efforts to cause any record owner of Saratoga Securities of
which such Saratoga Stockholder is the beneficial owner to grant to
the Company a proxy of the same effect as that contained herein.
Subject to the proviso set forth in Section 2(c) hereof, each Saratoga
Stockholder shall perform such further acts and execute such further
documents as may be required to vest in the Company the power to vote
the Saratoga Stockholder's Securities during the term of the proxy
granted herein.
9. Company Proxy.
(a) Each Company Stockholder hereby irrevocably
makes, constitutes and appoints Saratoga to act as such Company
Stockholder's true and lawful proxy and attorney-in-fact in the name
and on behalf of such Company Stockholder to vote all of his, her or
its shares of Company Common Stock for the approval of the Merger, the
Merger Agreement and the transactions contemplated therein as set
forth in Section 3(a) hereof (subject to Section 18 hereof). By giving
this proxy, each such holder of Company Common Stock hereby revokes
any other proxy granted by such Company Stockholder to vote any of
such Company Stockholder's Securities with respect to such matters.
This proxy, and the power of attorney and all authority contained
herein, shall become effective as to any Company Stockholder only upon
the failure of such Company
Stockholder to vote or consent with respect to his shares in
accordance with Section 3(a) hereof, following notice to such Company
Stockholder to that effect.
(b) All power and authority hereby conferred is
coupled with an interest and is irrevocable, shall not be terminated
by any act of such Company Stockholder or by operation of law, by lack
of appropriate power or authority, or by the occurrence of any other
event or events and shall be binding upon all beneficiaries, heirs at
law, legatees, distributees, successors, assigns and legal
representatives of such Company Stockholder. If after the execution of
this Agreement any Company Stockholder shall cease to have appropriate
power or authority, or if any other such event or events shall occur,
Saratoga is nevertheless authorized and directed to vote the Company
Securities in accordance with the terms of this Agreement as if such
lack of appropriate power or authority or other event or events had
not occurred and regardless of notice thereof.
(c) Each Company Stockholder agrees to use all good
faith efforts to cause any record owner of Company Securities of which
such Company Stockholder is the beneficial owner to grant to Saratoga
a proxy of the same effect as that contained herein. Subject to the
proviso set forth in Section 3(d) hereof, each Company Stockholder
shall perform such further acts and execute such further documents as
may be required to vest in Saratoga the power to vote the Company
Stockholder's Securities during the term of the proxy granted herein.
10. Further Assurances. Subject to the provisos set forth in
Sections 2(d) and 3(d) hereof, each party hereto shall perform such further
acts and execute such further documents as may reasonably be required to carry
out the provisions of this Agreement.
11. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party hereto
(whether by operation of law or otherwise) without the prior written consent of
the other parties hereto.
12. Specific Performance. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof, this being in addition to any
other remedy to which they are entitled at law or in equity.
13. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed duly given when
delivered in person or by telecopier, cable, telex or telegram or three (3)
days after mailed by certified mail, postage prepaid, addressed as follows:
To the Company or to the Company Stockholders:
The Fresh Juice Company, Inc.
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bourne, ▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 690
Summit, New Jersey 07902-0690
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Saratoga or to the Saratoga Stockholders:
Saratoga Beverage Group, Inc.
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Attention: Chief Executive Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
14. Effect of Invalidity. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
15. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
16. Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the Delaware without
giving effect to the conflicts of laws principles thereof.
17. Binding Effect: Benefits. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their
respective heirs, legal representatives, successors and assigns. Nothing in
this Agreement, expressed or implied, is intended to or shall confer on any
person other than the parties hereto and their respective heirs, legal
representatives and successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
18. Merger Agreement Amendments. No amendment to the Merger
Agreement after the date hereof shall alter or affect the rights granted to the
Company and Saratoga hereunder.
19. Supersession. This Agreement supersedes and replaces the
First Agreement with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Company, the Company Stockholders, Saratoga
and the Saratoga Stockholders have executed this Agreement or caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as the case may be, as of the date first above written.
THE FRESH JUICE COMPANY, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
SARATOGA BEVERAGE GROUP, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Executive Officer
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Stockholders
SCHEDULE A
NUMBER OF SHARES OF
NAME COMPANY CAPITAL STOCK^^
---- -----------------------
▇▇▇▇▇▇ ▇▇▇▇▇ 1,361,248
▇▇▇▇▇▇ ▇▇▇▇▇ 1,232,708
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 77,667*
▇▇▇▇▇▇▇ ▇▇▇▇▇ 17,266**
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2,688,889 shares
6,467,731 total shares
41.6%
All above based on 10-KSB for 11-30-97 and review of subsequent Form 4s and 5s.
* 237,857 options and warrants backed out of 10-KSB 11-30-97 numbers
** 50,000 options out of 10-KSB 11/30/97 numbers
SCHEDULE B
NAME NUMBER OF SARATOGA SECURITIES
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▇▇▇▇▇ ▇▇▇▇▇▇ 20,345 shares of Class A Common Stock
167,960 shares of Class B Common Stock
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 51,000 shares of Class A Common Stock
345,995 shares of Class B Common Stock
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ 300,000 shares of Class A Common Stock
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