SECURITIES PURCHACE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of February 12, 1998 by and between Xxxxxxx Xxxxxxxx (the
"Seller") and Xxxx X. Xxxx (the "Purchaser").
WHEREAS, the Seller is desirous of selling, and the Purchaser is
desirous of acquiring, 83,000 shares of the Class A common stock, $.01 par value
per share (the "Class A Common Stock"), of Saratoga Beverage Group, Inc. (the
"Company") for a per share purchase price of $3.00 per share of Class A Common
Stock (in the aggregate, the "Purchase Price");
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Seller and the Purchaser hereby agree as follows:
1. PURCHASE AND SALE.
1.1 PURCHASE AND SALE OF SECURITIES. The Seller agrees to sell to the
Purchaser, and upon and subject to the terms and conditions hereof and, in
reliance upon the representations and warranties of the Seller, the Purchaser
agrees to purchase from the Seller, the Shares for the Purchase Price.
1.2 CLOSING. The sale of the Shares by the Seller to the Purchaser
shall take place at a closing (the "Closing"), to be held simultaneously with
the execution of this Agreement (the "Closing Date"). On the Closing Date, the
Seller shall deliver to the Purchaser the Shares, free and clear of any pledge,
lien, security interest, mortgage, charge, adverse claim of ownership or use, or
other encumbrance of any kind (each, an "Encumbrances"), against payment of the
Purchase Price. A certificate evidencing the Shares to be issued to the
Purchaser as soon as practicable after the Closing.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants to the Purchaser as follows:
2.1 OWNERSHIP OF THE SHARES. The Seller owns the Shares, free and clear
of any Encumbrances.
2.2 AUTHORITY. The Seller has all necessary power and authority to
enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Seller and, assuming due authorization, execution
and delivery of this Agreement by the Purchaser, this Agreement constitutes the
legal, valid and binding obligation of the Seller enforceable against the Seller
in accordance with its terms, subject to the effect of any applicable
bankruptcy, reorganization, insolvency (including, without limitation, all laws
relating to fraudulent transfers), moratorium or similar laws affecting
creditors' rights and remedies generally, subject, as to enforceability, to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and subject to
the effect of applicable securities laws as to rights to indemnification.
2.3 NO CONFLICT. The execution, delivery and performance of this
Agreement by the Seller do not, except as would not have a material adverse
effect on the ability of the Seller to consummate the transactions contemplated
by this Agreement, conflict with or violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable to the
Seller.
2.4 EXTENT OF OFFERING. Subject in part to the truth and accuracy of
the Purchaser's representations set forth in Article 3 of this Agreement, the
offer and sale of the Shares as contemplated by this Agreement are exempt from
the registration requirements of the Securities Act and of each state where the
Shares are offered or sold.
2.5 ABSENCE OF LITIGATION. No claim, action, proceeding or
investigation is pending, or to the best knowledge of the Seller, threatened,
which seeks to delay or prevent the consummation of the transactions
contemplated hereby or which would be reasonably likely to adversely affect or
restrict the Seller's ability to consummate the transactions contemplated
hereby.
2.6 NO OTHER REPRESENTATIONS. Except as set forth in this Agreement,
the Seller is not making any representation, warranty, covenant or agreement,
oral or written, with respect to the matters contained herein and therein.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants to the Seller as follows:
3.1 AUTHORITY. The Purchaser has all necessary power and authority to
enter into this Agreement, to carry out the Purchaser's obligations hereunder
and thereunder and to consummate the transactions contemplated hereby. The
Purchaser has taken all necessary action to authorize the execution, delivery
and performance by the Purchaser of this Agreement and all other documents or
instruments required to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Purchaser and, assuming
due authorization, execution and delivery by the Seller, this Agreement
constitutes a legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency (including, without
limitation, all laws relating to fraudulent transfers), moratorium or similar
laws affecting creditors' rights and remedies generally, subject, as to
enforceability, to the effect of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and subject to the effect of applicable securities laws as to rights of
indemnification.
3.2 NO CONFLICT. The execution, delivery and performance of this
Agreement by the Purchaser do not, except as would not have a material adverse
effect on the ability of the Purchaser to consummate the transactions
contemplated by this Agreement, conflict with or violate any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
applicable to the Purchaser.
3.3 ABSENCE OF LITIGATION. No claim, action, proceeding or
investigation is pending, or to the best knowledge of the Purchaser, threatened,
which seeks to delay or prevent the consummation of the transactions
contemplated hereby or which would be reasonably likely to adversely affect or
restrict the Purchaser's ability to consummate the transactions contemplated
hereby.
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3.4 INVESTMENT PURPOSE: PRIVATE PLACEMENT.
(a) The Purchaser made his or its decision to purchase the Shares
based solely on (i) an analysis of the representations and warranties of the
Seller set forth in this Agreement.
(b) The Purchaser has sufficient knowledge and experience in
financial and business matters to be capable of evaluating the merits and risks
of an unregistered, non-liquid, high-risk investment such as an investment in
the Company's securities and has evaluated the merits and risks of such an
investment. The Purchaser's overall commitment to investments which are not
readily marketable is not disproportionate to the Purchaser's net worth, and the
Purchaser's acquisition of the Shares will not cause such overall commitment to
become excessive.
(c) The Purchaser is acquiring the Shares solely for the purpose of
investment and not with a view to, or for offer or sale in connection with, any
distribution thereof in violation of the Securities Act. The Purchaser
acknowledges that the Shares are not registered under the Securities Act and
that the Shares may not be transferred or sold except pursuant to the
registration provisions of the Securities Act or pursuant to an applicable
exemption therefrom and subject to state securities laws and regulations, as
applicable. The Purchaser agrees that the following legend shall be placed on
any certificate or other instrument evidencing the Shares:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). NO SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION OF THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE OR ANY
INTEREST HEREIN MAY BE MADE UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR UNLESS SARATOGA BEVERAGE
GROUP, INC. HAS RECEIVED A SATISFACTORY OPINION OF COUNSEL THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION DOES NOT REQUIRE
REGISTRATION UNDER THE ACT."
(d) The Purchaser further understands that the offer and sale of
the Shares have not been approved or disapproved by the Commission, or any other
federal or state office or agency.
(e) The Purchaser acknowledges that an investment in the Shares
involves a great deal of risk. The Purchaser is able to (i) bear the economic
risk of the investment in the Company, (ii) afford a complete loss of such
investment, and (iii) hold indefinitely the Shares. In reaching an informed
decision to invest in the Company, the Purchaser has obtained sufficient
information to evaluate the merits and risks of an investment in the securities
of the Company.
(f) The Purchaser has not construed the contents of the Agreement
or any additional agreement with respect to the proposed investment in the
Shares or any prior or subsequent communications from the Company, or any of its
officers, employees or representatives, as investment, tax or legal advice or as
information necessarily applicable to such Purchaser's particular financial
situation. The Purchaser has consulted his own financial advisor, tax advisor,
legal counsel and accountant, as necessary or desirable, as to matters
concerning his investment in the Shares.
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3.5 ACCREDITED INVESTOR. The Purchaser is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act.
3.6 NO OTHER REPRESENTATIONS. Except as set forth in this Agreement,
the Purchaser is not making any representation, warranty, covenant or agreement,
oral or written, with respect to the matters contained herein and therein.
3.7 NO BROKERS. The Purchaser has not entered into any contract,
arrangement OR understanding with any Person which could result in the
obligation of any Person to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with this Agreement.
4. TERMINATION AND WAIVER.
4.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing only by the written consent of the Seller and the Purchaser.
4.2 WAIVER. At any time prior to the Closing, each of the parties
hereto may (a) extend the time for the performance of any of the obligations or
other acts of any other party hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto or (c) waive compliance with any of the agreements or conditions
contained herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party to be bound thereby. Any waiver of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or any other provision of this Agreement.
5. MISCELLANEOUS.
5.1 EXPENSES. The Purchaser hereby agrees that all fees and expenses
incurred by the Purchaser in connection with this Agreement shall be borne by
the Purchaser, and the Seller hereby agrees that all fees and expenses incurred
by the Seller shall be borne by the Seller, in each case including without
limitation all fees and expenses of such party's counsel and accountants.
5.2 HEADINGS. Section headings contained in this Agreement are included
for convenience only and shall not affect the interpretation of any provisions
of this Agreement.
5.3 ENTIRE AGREEMENT. This Agreement set forth the entire understanding
and agreement of the parties with respect to their subject matter and supersede
any and all prior understandings, negotiations or agreements among the parties
hereto, both written and oral, with respect to such subject matter.
5.4 NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole
benefit of and binding upon the parties hereto and their permitted successors
and assigns and nothing herein, express or implied, is intended to or shall
confer upon any other Person any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
5.5 AMENDMENT. This Agreement may be amended or modified only by an
instrument in writing signed by the Seller and the Purchaser.
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5.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute one and the same agreement.
5.7 GENDER AND NUMBER. Whenever used in this Agreement, the singular
number shall include the plural, the plural the singular, and the use of any
gender shall be applicable to all genders.
5.8 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of New York, without
giving effect to the principles of conflict of laws thereof. The parties agree
that any dispute arising out of or relating to this Agreement shall be resolved
by binding arbitration in the City of Albany, State of New York, under the
Commercial Arbitration Rules of the American Arbitration Association. Each of
the parties hereto consents, for itself and in respect of its property, to the
jurisdiction and venue of the City of Albany, State of New York for purposes of
this Section 5.8 and hereby irrevocably waives any objection, including any
objection to the laying of venue or based on the grounds of FORUM NON CONVENIENS
which it may now or hereafter have to the bringing of any dispute in the City of
Albany, State of New York, under the Commercial Arbitration RULES OF THE
American Arbitration Association, in respect of this Agreement or any documents
related thereto. Each of the parties hereto waives personal service of any
summons, complaint or other process, which may be made by any other means
permitted under New York law.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed as of the date first written above.
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
