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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
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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
▇▇▇▇▇▇ ▇▇▇▇▇ 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;
(b) such Company Stockholder's Securities set forth on
Schedule A
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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 Agreement
as if such lack of
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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
▇▇▇▇▇▇ ▇▇▇▇▇ 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.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bourne, ▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 690
Summit, New Jersey 07902-0690
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Saratoga:
Saratoga Beverage Group, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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.
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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.
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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.
______________________________________
Name:
Title:
______________________________________
[Name]
c/o The Fresh Juice Company, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (973)
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SARATOGA BEVERAGE GROUP, INC.
______________________________________
Name:
Title:
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SCHEDULE A
NUMBER OF SHARES OF
NAME COMPANY CAPITAL STOCK
---- -----------------------
▇▇▇▇▇▇ ▇▇▇▇▇ 1,361,248*
▇▇▇▇▇▇ ▇▇▇▇▇ 1,232,708
▇▇▇▇▇▇ ▇▇▇▇▇ 442,248
▇▇▇▇▇ ▇▇▇▇▇ 307,500
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 77,667**
▇▇▇▇▇▇▇ ▇▇▇▇▇ 21,919***
---------
3,443,290 shares
6,467,731 total shares
53.23799%
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 subject to comfirmation-may
be between 17,000 and 22,000 shares
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