EXHIBIT 10.28
SARATOGA BEVERAGE GROUP, INC.
00 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxx Xxxx 00000
December 2, 1998
Xxxxxx X. Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
Re: Consulting Agreement
Dear Xxxxx:
Pursuant to the proposed transaction (the "Transaction")
between The Fresh Juice Company, Inc. ("Fresh Juice") and Saratoga Beverage
Group, Inc. ("Saratoga"), wherein a newly formed, wholly owned subsidiary of
Saratoga will merge (the "Merger") with and into Fresh Juice, you hereby agree
as follows:
Effective as of and subject to the date of consummation of
the Merger (the "Closing Date"), you hereby agree to become a full-time
consultant to Saratoga and Fresh Juice during the one year period following the
Closing Date in exchange for the sum of $300,000, payable monthly in arrears
over said one year period. Full time is defined for purposes of this letter as
not more than 1,000 hours in total. You shall perform such consulting services
as reasonably requested by the President/Chief Executive Officer of Saratoga or
the Board of Directors of Saratoga. This consulting relationship may be
terminated for cause (defined as (i) conviction of a felony or crime involving
moral turpitude, or (ii) wilful malfeasance or willful refusal to perform
consulting services reasonably requested, or (iii) death or disability, which
would prevent you from being a full-time consultant). In the event of a
termination of the consulting relationship by Saratoga other than for cause,
Saratoga shall remain obligated to pay the full balance due and owing on the
$300,000 consulting fee at the time of termination. You shall not be required
to perform consulting services outside of the Newark facility or at your home
on Staten Island, except that you agree that reasonable out-of-state travel may
be required (consistent with your past two years' employment). Any business
travel shall include reimbursement for travel and lodging (consistent with your
past two years' employment).
Effective as of and subject to the Closing Date, you hereby
agree to comply with the terms set forth on Exhibit A annexed hereto from and
after the first anniversary of the Closing Date until the second anniversary of
the Closing Date. You hereby acknowledge that your agreement to comply with the
terms set forth on Exhibit A annexed hereto is a crucial term of the consulting
relationship and, but for such agreement, Saratoga would not have entered into
the consulting relationship described in this letter agreement.
Xxxxxx X. Xxxxx
December 2, 1998
Page 2
Kindly indicate your acceptance of the foregoing by signing
in the space provided below.
Very truly yours,
SARATOGA BEVERAGE GROUP, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
President and Chief Executive Officer
Accepted and agreed to as of
December 2, 1998
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
December 2, 1998
Page 3
EXHIBIT A
1. Confidentiality. In view of the fact that your work as a
consultant to Saratoga and Fresh Juice and their respective subsidiaries and
affiliates will bring you into close contact with many confidential affairs of
Saratoga and Fresh Juice and their respective affiliates, including the names
of Saratoga's and Fresh Juice's customers and suppliers, matters of a business
nature such as information about costs, profits, markets, sales, other
information not readily available to the public, and plans for future
developments (hereinafter collectively "Confidential Matters"), you agree (i)
to keep secret all Confidential Matters of Saratoga and Fresh Juice and their
respective subsidiaries and affiliates, and not to disclose such Confidential
Matters to anyone outside of Saratoga or Fresh Juice (other than Saratoga's or
Fresh Juice's customers or potential customers and Saratoga's and Fresh Juice's
vendors or suppliers or potential vendors or suppliers), either during or after
your consultancy with Saratoga and Fresh Juice, except with Saratoga's written
consent at each time as to any Confidential Matter which is to be disclosed,
and (ii) to deliver promptly to Saratoga on termination of your consultancy, or
at any time Saratoga may so request, all memoranda, notes, records, reports,
lists or other documents (and all copies thereof) and materials relating to
Saratoga's and Fresh Juice's and their respective subsidiaries' and affiliates'
business which you may then possess or have under your control.
2. Agreement Not to Compete. During the period from the first
anniversary of the Closing Date until the second anniversary of the Closing
Date, you shall not (i) purchase an ownership interest of more than 5% of a
company or other entity which is at such time engaged in the juice beverage
industry and active in the same geographic area as Saratoga or Fresh Juice or
their respective subsidiaries or affiliates, is otherwise competitive with
Saratoga or Fresh Juice or their respective subsidiaries or affiliates, or is
attempting to enter such industry in such geographic area or to become
otherwise competitive; (ii) act as a consultant, officer, director or in any
other capacity, whose responsibilities are related to the juice beverage
industry in the same geographic area as Saratoga or Fresh Juice or their
respective subsidiaries or affiliates operate; or (iii) solicit in any way or
entice away from Saratoga or Fresh Juice or their respective subsidiaries or
affiliates (a) any clients or accounts of Saratoga or Fresh Juice or their
respective subsidiaries or affiliates which were active clients or accounts of
Saratoga or Fresh Juice or their respective subsidiaries or affiliates during
your consultancy with Saratoga and Fresh Juice, (b) any prospective client or
account of Saratoga or Fresh Juice or their respective subsidiaries or
affiliates which Saratoga or Fresh Juice or their respective subsidiaries or
affiliates was actively engaged in soliciting during your consultancy with
Saratoga and Fresh Juice, (c) any employee of Saratoga or Fresh Juice or their
respective subsidiaries or affiliates (unless such employee shall have been
either discharged by such entity or shall have otherwise ceased to have been
employed by such entity for a period of 365 days) or (d) any manufacturers or
suppliers of Saratoga or Fresh Juice or their respective subsidiaries or
affiliates, which were manufacturers or suppliers of Saratoga or Fresh Juice or
their respective subsidiaries or affiliates during your consultancy with
Saratoga and Fresh Juice. Notwithstanding the foregoing, however, if Saratoga
or Fresh Juice fail to make any payments due under the Consulting Agreement
dated December 2, 1998 (the "Letter Agreement") to which this Exhibit A is
annexed to you when due, the provisions of this Section 2 shall not apply.
Xxxxxx X. Xxxxx
December 2, 1998
Page 4
3. Remedies. You recognize that any breach of the covenants
set forth in Sections 1 and 2 of this Exhibit A would irreparably injure
Saratoga and Fresh Juice. Accordingly, you agree that any breach of the
covenants contained in Sections 1 and 2 of this Exhibit A will result in
forfeiture to Saratoga as liquidated damages of any and all amounts otherwise
payable to you under the Letter Agreement to which this Exhibit A is annexed as
of and from the date of such breach. Furthermore, Saratoga and Fresh Juice may,
in addition to pursuing its other remedies, obtain an injunction against you
from any court having jurisdiction over the matter, restraining any further
violation of this Exhibit A by you and no bond or other security shall be
required in connection with such injunction. In the event that you prevail in
any judicial proceeding relating to a breach by you under this Exhibit A, (i)
all sums determined to be due hereunder in such judicial proceeding shall be
due and payable in a lump sum (unless otherwise ordered by the court in which
such judicial proceeding is bought) and (ii) Saratoga and Fresh Juice shall be
liable for all fees and expenses, including attorneys' fees, incurred by you in
connection with any action taken to enforce this Exhibit A or obtain judgment
for a breach of this Exhibit A.
4. Reformation. If any of the covenants contained in Sections
1 or 2 of this Exhibit A, or any part thereof, are held to be unenforceable
because of the scope or duration of any such provision, the parties agree that
the body making such determination shall have the power to reduce the scope or
duration of such provision and, in its reduced form, said provision shall be
enforceable. If any of the covenants in Sections 1 or 2 of this Exhibit A, or
any part thereof, is hereafter construed to be invalid or unenforceable, the
same shall not affect the remainder of the covenants, which shall be given full
force and effect without regard to the invalid provisions.
