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EXHIBIT 10.27(11)+
STOCKHOLDER AGREEMENT DATED OCTOBER 13, 1998
AMONG THE COMPANY, XXXXX XXXXXX,
XXXXXXX XXXXXXXX AND XXXXXX XXXXX
Exhibit 89
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STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "Agreement") is made and
entered into as of October 13, 1998 by and among SARATOGA BEVERAGE GROUP, INC.,
a Delaware corporation ("Saratoga"), XXXXXX XXXXX ("Bogen"), XXXXX XXXXXX
("Xxxxxx") and XXXXXXX XXXXXXXX ("Xxxxxxxx").
WHEREAS, The Fresh Juice Company, Inc., Saratoga, 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 Saratoga (the
"Merger"); and
WHEREAS, each of Prever and Xxxxxxxx currently owns the number
of shares of Class A common stock, $.01 par value per share, of Saratoga ("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 A 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
parties hereto is desired by the parties hereto in connection with the Merger.
NOW, THEREFORE, 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 the date (i) after the
Effective Date (as defined in the Merger Agreement) that Bogen directly owns
less than 400,000 shares of Class A Common Stock, (ii) of the termination of the
Merger Agreement by any party thereto pursuant to the terms thereof, (iii) Bogen
is convicted of a felony or a misdemeanor involving moral turpitude, dishonesty,
theft or unethical business conduct, or (iv) Bogen breaches his fiduciary
duties, in a material fashion, to Saratoga or its stockholders.
2. Covenant of the Saratoga Stockholders. Until such time as this Agreement is
terminated in accordance with Section 1,
A. each Saratoga Stockholder, in his or her capacity as such, agrees to
vote all of his or her Saratoga Securities then owned by such Saratoga
Stockholder, to the extent that any of the following matters are
submitted to the stockholders of Saratoga, and to take all other
actions reasonably necessary (in his or her capacity as a Saratoga
Stockholder) to elect, re-elect and prevent any proposed removal of,
Bogen as a member of Saratoga's Board of Directors; and
(b) Prever, in her capacity as a member of Saratoga's Board of
Directors, agrees to all take all actions reasonably necessary to nominate,
elect, re-elect and prevent any proposed removal of, Bogen as a member of
Saratoga's Board of Directors.
3. Disposition of Saratoga Securities. Subject to applicable law, nothing
contained herein shall, directly or indirectly, prohibit or limit the offer for
sale, sale, assignment, transfer, pledge, encumbrance, or other disposition of
any Saratoga Securities now owned or hereafter acquired, beneficially or of
record, by the Saratoga Stockholders or Bogen.
Exhibit 90
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4. Representations and Warranties of the Saratoga Stockholders. Each Saratoga
Stockholder represents and warrants to Bogen 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 A
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 Bogen. Bogen represents and warrants to the
Saratoga Stockholders that he 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 Bogen enforceable against Bogen in accordance
with its terms.
7. Saratoga Proxy.
A. Each Saratoga Stockholder hereby irrevocably makes, constitutes and
appoints Bogen 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 then owned by such Saratoga
Stockholder for the election of Bogen as a director of Saratoga as set
forth in Section 2 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 (then
owned by such Saratoga Stockholder) with respect to such matter. 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 then owned by such Saratoga Stockholder in accordance
with Section 2 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
Exhibit 91
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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; subject to the right of such Saratoga Stockholders to sell
or otherwise dispose of his or her Saratoga Securities (as described in Section
3). 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 (other than the sale or other disposition of his or her
Saratoga Securities by such Saratoga Stockholder, as described in Section 3),
Bogen 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.
8. Further Assurances. 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.
9. 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.
10. 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.
11. 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.
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 permitted 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 permitted
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
Exhibit 92
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IN WITNESS WHEREOF, the parties 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.
SARATOGA BEVERAGE GROUP, INC.
/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Pesident and Chief Executive Officer
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
Exhibit 93
