1
EXHIBIT 9.1(11)
RESTATED VOTING, STANDSTILL AND PROXY AGREEMENT
DATED AS OF OCTOBER 13, 1998
Exhibit 2
2
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:
Exhibit 3
3
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.
Exhibit 4
4
(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.
Exhibit 5
5
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
Exhibit 6
6
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
Exhibit 7
7
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.
Exhibit 8
8
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.
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 or to the Saratoga Stockholders:
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.
Exhibit 9
9
Facsimile No.: (000) 000-0000
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/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: Chief Executive Officer
SARATOGA BEVERAGE GROUP, INC.
/s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: President and Chief Executive Officer
Exhibit 10
10
/s/ Xxxxxx Xxxxx
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/s/ Xxxxxx Xxxxx
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/s/ Xxxxxxx Xxxxx
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/s/ Xxxxxxx Xxxxxxxxxx
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/s/ Xxxxx Xxxxxx
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/s/ Xxxxxxx Xxxxxxxx
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/s/ Xxxxxx Xxxxxxxxxxxx
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Stockholders
Exhibit 11
11
SCHEDULE A
NUMBER OF SHARES OF
NAME COMPANY CAPITAL STOCK
---- ---------------------
Xxxxxx Xxxxx 1,361,248
Xxxxxx Xxxxx 1,232,708
Xxxxxxx Xxxxxxxxxx 77,667*
Xxxxxxx Xxxxx 17,266**
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
Exhibit 12
12
SCHEDULE B
NAME NUMBER OF SARATOGA SECURITIES
---- -----------------------------
Xxxxx Xxxxxx 20,345 shares of Class A Common Stock
167,960 shares of Class B Common Stock
Xxxxxxx Xxxxxxxx 51,000 shares of Class A Common Stock
354,995 shares of Class B Common Stock
Xxxxxx Xxxxxxxxxxxx 300,000 shares of Class A Common Stock
Exhibit 13
