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EXHIBIT 99(b)
SARATOGA BEVERAGE GROUP, INC.
00 XXXXXX XXXX
XXXXXXXX XXXXXXX, XXX XXXX 00000
March 29, 1998
The Fresh Juice Company, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Re: Proposed Acquisition of The Fresh Juice Company, Inc. by
Saratoga Beverage Group, Inc. (the "Acquisition")
Ladies and Gentlemen:
This letter agreement shall confirm our agreement with respect to
several aspects of the proposed Acquisition of The Fresh Juice Company, Inc.
("you" or the "Company") by Saratoga Beverage Group, Inc. (the "Buyer") at a
purchase price of not less than $3.75 per share payable in cash. The Company
acknowledges and agrees that the Buyer will expend significant time, expense and
effort in negotiating, analyzing, documenting and completing the Acquisition.
Accordingly, you agree that during the Exclusivity Period (as hereinafter
defined), except to the extent that the performance by the Company's directors
of their fiduciary duties otherwise requires, neither the Company, any of its
subsidiaries nor any of their respective directors, officers, employees,
representatives, agents and advisors or other persons controlled by the Company
shall solicit or hold discussions or negotiations with, or assist or provide any
information to, any person, entity, or group (other than the Buyer and its
affiliates and representatives) concerning any merger, business combination,
disposition of a significant portion of its assets, or acquisition of a
significant portion of its capital stock or similar transaction involving the
Company; provided, however, that the Board of Directors of the Company may
furnish or cause to be furnished such information to, and may participate in
such discussions or negotiations with, persons or entities who have made a bona
fide proposal if the Board of Directors of the Company believes, in good faith,
after consultation with its financial and legal advisors, that such bona fide
proposal represents a transaction which is more favorable to the Company's
stockholders from a financial point of view and is subject only to reasonable
conditions of closing which shall include financing terms reasonably
satisfactory to the Company and, in the opinion of counsel to the Board of
Directors of the Company, the fiduciary duty of
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the Board of Directors under applicable law requires it to furnish or cause to
be furnished such information and/or participate in such discussions or
negotiations (a "Superior Offer"). The Company will promptly communicate to the
Buyer the terms of any proposal, discussion, negotiation, or inquiry relating to
a merger or disposition of a significant portion of its capital stock or assets
or similar transaction involving the Company and the identity of the party
making such proposal or inquiry, which it may receive with respect to any such
transaction. As used herein, Exclusivity Period shall mean the period commencing
on the date hereof and ending on the earlier of (i) April 25, 1998 and (ii) the
Buyer notifying you in writing that negotiations toward the Acquisition are
terminated.
In addition, you agree that in the event that (A) we enter into a
definitive purchase agreement with respect to the Acquisition, and the
Acquisition is not consummated for reasons other than as a result of (i) the
Buyer being unable to obtain financing, or (ii) any failure on the part of Buyer
to comply with its obligations set forth in the definitive purchase agreement or
(B) a Superior Offer is accepted by the Company within three (3) months after
the termination of the Exclusivity Period, the Company shall pay the Buyer an
amount equal to $750,000 inclusive of out-of-pocket expenses in connection with
the Acquisition. Notwithstanding anything to the contrary contained herein, in
the event that the Acquisition is not consummated because the Company is unable
to obtain a fairness opinion from its investment banker and a Superior Offer is
not accepted in accordance with the terms outlined in (B) above, then the
Company's only obligation hereunder shall be to reimburse the Buyer for its
documented, out-of-pocket expenses in connection with the Acquisition, not to
exceed $250,000.
You agree that any breach or threatened breach of the covenants
contained in the first paragraph of this letter agreement would irreparably
injure the Buyer. Accordingly, you hereby agree that, in such event, the Buyer
shall be entitled, without the necessity of proving damages, and notwithstanding
any election by the Buyer to claim damages, to obtain a temporary and/or
permanent injunction to restrain any such breach or threatened breach or to
obtain specific performance of any such provisions, all without prejudice to any
and all other remedies which the Buyer may have at law or in equity.
The prevailing party in any action to enforce its rights under this
letter agreement, whether through the institution of legal proceedings or
otherwise, shall be entitled to the reimbursement of all fees and expenses
(including reasonable fees of counsel) incurred by such prevailing party in
connection with such action.
You hereby represent and warrant that (i) all necessary action has
been taken to authorize the execution of this letter agreement, (ii) the person
executing this letter agreement has been duly authorized to do so, and (iii)
upon execution, this letter agreement shall be the legal, valid and binding
obligation of the Company, binding against it in accordance with its terms.
This letter agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
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This letter agreement may be executed in counterparts each of which
shall be deemed an original, but all of which together constitute one and the
same instrument.
SARATOGA BEVERAGE GROUP, INC.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
Acknowledged and Agreed:
THE FRESH JUICE COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President of Sales and Administration
Dated: March 30, 1998
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