EXHIBIT B
VOTING, STANDSTILL AND PROXY AGREEMENT
This Voting, Standstill and Proxy Agreement (the "Agreement")
is made and entered into as of August 14, 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"), and SARATOGA BEVERAGE GROUP, INC., a Delaware
corporation ("Saratoga").
WHEREAS, the Company, Saratoga and Rowale Corp., a
wholly-owned subsidiary of Saratoga ("Sub"), entered into, as of the date
hereof, an 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
$3.35 in cash; and
WHEREAS, each of the Company Stockholders owns the number of
shares of Company Common Stock set forth opposite his, her or its 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, execution and delivery of this Agreement by the
Company 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 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 Company Stockholders.
(a) Each Company Stockholder agrees to vote all of
his, her or its 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, her or its
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 cash in accordance with Section 1.05(c) 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, her or its 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, her or its 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) The provisions of this Section 2 are subject to
the terms of that certain Option Agreement dated March 16, 1998 by and
between Xxxxxx Xxxxx and Saratoga.
3. 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.
4. 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;
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(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 its
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.
5. 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.
6. 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 2(a) hereof (subject to Section 15 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, her or its shares in accordance with Section 2(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
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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 2(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.
(d) The provisions of this Section 6 are subject to
the terms of that certain Option Agreement dated March 16, 1998 by and
between Xxxxxx Xxxxx and Saratoga.
7. Further Assurances. Subject to the proviso set forth
in Sections 2(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.
8. 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.
9. 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.
10. 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 Stockholders, in each case to:
The address set forth on the signature pages hereto.
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To the Company:
The Fresh Juice Company, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Bourne, Xxxx & Xxxxxx
000 Xxxxxxxxxxx Xxxxxx
P.O. Box 690
Summit, New Jersey 07902-0690
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
To Saratoga:
Saratoga Beverage Group, Inc.
00 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
11. 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.
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12. 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.
13. 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.
14. 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.
15. 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.
[SIGNATURES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, the Company, the Company Stockholders and
Saratoga 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/ Xxxxxx Xxxxx
-----------------------------
/s/ Xxxxxx Xxxxx
-----------------------------
/s/ Xxxxxxx Xxxxx
-----------------------------
/s/ Xxxxxxx Xxxxxxxxxx
-----------------------------
/s/ Xxxxx Xxxxx
-----------------------------
/s/ Xxxxxx Xxxxx
-----------------------------
c/o The Fresh Juice Company, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Telephone: (973)
Fax: (000) 000-0000
SARATOGA BEVERAGE GROUP, INC.
/s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: President and Chief Executive Officer
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SCHEDULE A
NUMBER OF SHARES OF
NAME COMPANY CAPITAL STOCK^^
---- -----------------------
Xxxxxx Xxxxx 1,361,248*
Xxxxxx Xxxxx 1,232,708
Xxxxxx Xxxxx 442,248
Xxxxx Xxxxx 307,500
Xxxxxxx Xxxxxxxxxx 77,667**
Xxxxxxx Xxxxx 17,226***
-------------
3,438,597 shares
6,467,731 total shares
53%
All above based on 10KSB for 11-30-97 and review of subsequent Form 4s and 5s.
* includes shares subject to option held by Saratoga
** 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
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