AMENDED AND RESTATED STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered
into as of the 4th day of February, 1998, and amended and restated as of April
17, 1998, by and between Saratoga Beverage Group, Inc. (the "Company"), a
Delaware corporation, and Xxxx X. Xxxx (the "Optionee"), residing at 000 Xxxxxx
Xxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000.
The Board of Directors (the "Board") of the Company adopted on
February 4, 1998 (the "Grant Date") a resolution granting the Optionee a stock
option (the "Option") to purchase 200,000 shares (the "Shares") of the Company's
Class A common stock, par value $.01 per share (the "Common Stock"), for the
price, on the terms and subject to the conditions set forth in this Agreement.
The Option was not granted under the Company's 1993 Stock Option Plan. In
connection with the grant of the Option, the Optionee waived his rights to
receive stock options under the Company's 1993 Stock Option Plan.
On April 17, 1998, the Company and the Optionee entered into a
letter agreement whereby the Optionee and the Company agreed (i) to reduce the
number of Shares subject to the Option from 200,000 to 75,000, all of which
shall be vested immediately, (ii) to change the Expiration Date (as hereinafter
defined) to February 3, 2003 from February 3, 2008, (iii) to delete the
requirement that the Optionee continue to be a director in order to exercise the
Option and to delete references to the Optionee continuing as a director of the
Company and (iv) to change the requirements for Piggyback Registration (as
hereinafter defined). This Agreement reflects the above changes.
The Option is not intended to satisfy the requirements for an
incentive stock option (an "ISO") under Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"). The Company makes no representations or
warranties as to the income, estate or other tax consequences to the Optionee of
the grant or exercise of the Option or the sale or other disposition of the
Shares acquired pursuant to the exercise thereof.
1. (a) The price at which the Optionee shall have the right to
purchase the 75,000 Shares under this Agreement is $2.875 per Share, subject to
adjustment as provided in Paragraph 4 below.
(b) The entire Option shall be exercisable immediately. In no
event shall any Shares be purchasable under this Agreement after February 3,
2003 (the "Expiration Date").
2. [Intentionally deleted]
3. (a) Subject to Section 422 of the Code, neither the Option nor
any right under the Option shall be assignable, alienable, saleable or
transferable by the Optionee otherwise than by will or by the laws of descent
and distribution or pursuant to a qualified domestic relations order as defined
in the Code or Title I of the Employee Retirement Income Security Act, or the
rules thereunder; PROVIDED, HOWEVER, that, if so determined by the Board or a
committee thereof, the Optionee may, in the manner established by the Board or a
committee thereof in its sole discretion, designate a beneficiary or
beneficiaries to exercise the rights of the Optionee, and to receive any
property distributable, with respect to any Option upon the death of the
Optionee.
(b) The Option shall not be pledged, alienated, attached, or
otherwise encumbered or transferred in any manner except to the extent that the
Option may be exercised by an executor or administrator or beneficiary as
provided in subparagraph 3(a) above, and any purported pledge, alienation,
attachment, encumbrance, or transfer thereof shall be void and unenforceable
against the Company. The Option may be exercised, during the lifetime of the
Optionee, only by the Optionee or his duly appointed guardian or legal
representative.
4. (a) In the event that the Board or a committee thereof shall
determine that the outstanding shares of Common Stock are affected by any (i)
subdivision or consolidation of shares, (ii) dividend or other distribution
(whether in the form of cash, Shares, other securities, or other property) or
(iii) recapitalization or other capital adjustment of the Company, such that an
adjustment is determined to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
hereunder, then the Board or a committee thereof shall, in such manner as it may
deem necessary to prevent dilution or enlargement of the benefits or potential
benefits intended to be made hereunder, adjust any or all of (x) the number and
type of Shares which may be subject to the Option, (y) the number and type of
Shares subject to the unexercised portion of the Option, and (z) the exercise
price per Share with respect to the Option; PROVIDED, HOWEVER, that the exercise
price per Share shall not be adjusted below the par value per Share of the
Common Stock. In computing any adjustment under this paragraph, any fractional
share shall be eliminated.
(b) In the event of the dissolution or liquidation of the
Company, or in the event of a Change in Control (as defined in the Company's
1983 Stock Option Plan), the Optionee shall have the right, immediately prior to
the record date for the determination of stockholders entitled to participate in
such dissolution, liquidation or Change in Control, to exercise the Option, in
whole or in part, without regard to any installment provisions contained in
subparagraph 1(b). In such event, the Company will mail or cause to be mailed to
the Optionee a notice specifying the date of such dissolution, liquidation or
Change in Control. Such notice shall be mailed at least ten (10) days prior to
the date therein specified to the address of the Optionee specified on page 1 of
this Agreement or to such other address as the Optionee delivers or transmits by
registered or certified mail to the Secretary of the Company at its principal
office.
5. The Option shall be exercised when written notice of such
exercise, signed by the person entitled to exercise the Option, has been
delivered or transmitted by registered or certified mail, to the Secretary of
the Company at its principal office. Said written notice shall specify the
number of Shares purchasable under the Option which such person then wishes to
purchase and shall be accompanied by such documentation, if any, as may be
required by the Company as provided in Paragraph 7 below and be accompanied by
payment of the aggregate Option price. Such payment of the aggregate Option
price shall be, without limitation, in the form of (i) cash, Shares, outstanding
Options or other consideration, or any combination thereof, having a Fair Market
Value on the exercise date equal to the exercise price of the Option or portion
thereof being exercised or (ii) a broker-assisted cashless exercise program
established by the Board or a committee thereof. Delivery of said notice and
such documentation shall constitute an irrevocable election to purchase the
Shares specified in said notice and the date on which the Company receives said
notice and documentation shall, subject to the provisions of Paragraph 7, be the
date as of which the Shares so purchased shall be deemed to have been issued.
The person entitled to exercise the Option shall not have the right or status as
a holder of the Shares to which such exercise relates prior to receipt by the
Company of such payment, notice and documentation. For purposes of this
Agreement, "Fair Market Value" shall mean, with respect to Shares or other
securities, (i) the closing price per Share of the Shares on the principal
exchange on which the Shares are then trading, if any, on such date, or, if the
Shares were not traded on such date, then on the next preceding trading day
during which a sale occurred; or (ii) if the Shares are not traded on an
exchange but are quoted on Nasdaq or a successor quotation system, (1) the last
sales price (if the Shares are then listed on the Nasdaq National Market) or (2)
the mean between the closing representative bid and asked prices (in all other
cases) for the Shares on such date as reported by Nasdaq or such successor
quotation system; or (iii) if the Shares are not publicly traded on an exchange
and not quoted on Nasdaq or a successor quotation system, the mean between the
closing bid and asked prices for the Shares on such date as determined in good
faith by the Committee; or (iv) if the Shares are not publicly traded, the fair
market value established by the Committee acting in good faith.
6. (a) In combination with or in substitution for cash withholding
or any other legal method of satisfying federal and state withholding tax
liability, the Optionee may elect to have Shares withheld by the Company in
order to satisfy federal and state withholding tax liability (a "share
withholding election"); PROVIDED, HOWEVER, that (i) the Board or a committee
thereof shall not have revoked its advance approval of the Optionee's share
withholding election; and (ii) the share withholding election is made on or
prior to the date on which the amount of withholding tax liability is determined
(the "Tax Date"). If the Optionee elects within thirty (30) days of the date of
exercise to be subject to withholding tax on the exercise date pursuant to the
provisions of Section 83(b) of the Code, then the share withholding election may
be made during such thirty (30) day period. Notwithstanding the foregoing, the
Optionee may make a share withholding election only if the following additional
conditions are met: (i) the share withholding election is made no sooner than
six (6) months after the date of grant of the Option; and (ii) the share
withholding election is made (x) at least six (6) months prior to the Tax Date,
or (y) during the period beginning on the third business day following the date
of release of the Company's quarterly or annual financial results and ending on
the twelfth business day following such date.
(b) A share withholding election shall be deemed made when
written notice of such election, signed by the Optionee, has been delivered or
transmitted by registered or certified mail to the Secretary of the Company at
its principal office. Delivery of such notice shall constitute an irrevocable
election to have Shares withheld.
(c) If the Optionee has made a share withholding election
pursuant to this Section 6; and (i) within thirty (30) days of the date of
exercise of the Option, the Optionee elects pursuant to the provisions of
Section 83(b) of the Code to be subject to withholding tax on the date of
exercise of the Option, then the Optionee will be unconditionally obligated to
immediately tender back to the Company the number of Shares having an aggregate
Fair Market Value equal to the amount of tax required to be withheld plus cash
for any fractional amount, together with written notice to the Company informing
the Company of the Optionee's election pursuant to Section 83(b) of the Code; or
(ii) if the Optionee has not made an election pursuant to the provisions of
Section 83(b) of the Code, then on the Tax Date, such Optionee will be
unconditionally obligated to tender back to the Company the number of Shares
having an aggregate Fair Market Value equal to the amount of tax required to be
withheld plus cash for any fractional amount.
7. The Board or a committee thereof may require as a condition to
the right to exercise the Option hereunder that the Company receive from the
person exercising the Option, representations, warranties and agreements, at the
time of any such exercise, to the effect that the Shares are being purchased for
investment only and without any present intention to sell or otherwise
distribute such Shares and that the Shares will not be disposed of in
transactions which, in the opinion of counsel to the Company, would violate the
registration provisions of the Securities Act of 1933, as then amended (the
"Securities Act"), and the rules and regulations thereunder. The certificate
issued to evidence such Shares shall bear appropriate legends summarizing such
restrictions on the disposition thereof.
8. (a) The Company shall, in connection with its presently
contemplated registration statement on Form S-8 under the Securities Act, cause
to register all 75,000 Shares which are the subject of the Option (the
"Piggyback Registration"), which Piggyback Registration shall be effected prior
to July 15, 1998.
(b) The Optionee may not participate in any registration
initiated as a Piggyback Registration which is underwritten for the benefit of
the Company unless the Optionee (i) agrees to sell his Shares on the basis
provided in any underwriting agreements approved by the Company; (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting agreements and which are customary with industry practice; and
(iii) agrees that if an underwriter advises the Company in writing that the
number of shares proposed to be sold by the Company and/or the Optionee is
greater than the number of shares of Common Stock which the underwriter believes
is feasible to sell at that time, at the price and in the terms approved by the
Company, then the underwriter may exclude some or all of the Shares from such
Piggyback Registration. The Company shall advise the Optionee of the limitation,
and that the number of shares of Shares to be offered by the Optionee will be
reduced to the number recommended by the underwriter.
(c) In any registration initiated as a Piggyback Registration,
whether or not the registration statement becomes effective, the Company will
pay or cause to be paid all costs, fees and expenses in connection therewith,
including, without limitation, the Company's legal and accounting fees, printing
expenses and "blue sky" fees and expenses, except that the Company shall not pay
for (i) underwriting discounts and commissions, (ii) state transfer taxes, (iii)
brokerage commissions, (iv) fees and expenses of counsel and accountants for the
Optionee and (v) blue sky fees and expenses in jurisdictions where the Company
is not currently registered or qualified.
(d) To the extent not inconsistent with applicable law, the
Optionee agrees not to effect any public sale or distribution of Common Stock,
including a sale pursuant to Rule 144 or in reliance on any other exemption from
registration under the Securities Act, during the fourteen (14) days prior to,
and during the ninety (90) days beginning on, the effective date of a
registration statement that includes Shares (except as part of such
registration), but only if and to the extent requested in writing (with
reasonable prior written notice) by the underwriter(s) in the case of an
underwritten public offering by the Company of securities similar to the Shares.
(e) The Company and the Optionee agree to indemnify and hold
harmless each other (and, in the case of the Company, its directors and officers
and each person who controls the Company (within the meaning of the Securities
Act)) against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) (collectively, "Losses") arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
any registration statement with respect to a Piggyback Registration, any
amendment or supplement thereto, any prospectus or preliminary prospectus or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
PROVIDED, HOWEVER, that the Optionee shall not be indemnified for Losses insofar
as such Losses arise out of or are based upon any such untrue statement or
omission based upon information furnished in writing to the Company by or on
behalf of the Optionee (in his individual capacity) expressly for use therein;
PROVIDED FURTHER, HOWEVER, that in the event the prospectus shall have been
amended or supplemented and copies thereof, as so amended or supplemented, shall
have been furnished to the Optionee prior to the confirmation of any sales of
Registrable Securities, such indemnity with respect to the prospectus shall not
inure to the benefit of the Optionee if the person asserting such Loss did not,
at or prior to the confirmation of the sale of the Registrable Securities to
such person, receive a copy of the prospectus, as so amended or supplemented,
and the untrue statement or omission of a material fact contained in the
prospectus was corrected in the prospectus, as so amended or supplemented.
9. The Option shall be exercisable in accordance with the terms
hereof even if (i) any ISO to purchase Common Stock in the Company, in any
parent or subsidiary of the Company or in any predecessor corporation of such
corporations, was granted to the Optionee and (ii) such previously granted ISO
remains outstanding. For purposes of this Paragraph, an ISO shall be treated as
outstanding until such option is exercised in full or expires by reason of lapse
of time.
10. All certificates for Shares delivered pursuant to any Option or
the exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Board or a committee thereof may deem advisable under the
rules, regulations, and other restrictions of the Securities and Exchange
Commission, any stock exchange upon which such Shares or other securities are
then listed, and any applicable federal or state securities laws, and the Board
or a committee thereof may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
11. This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware and applicable federal law. Subject to
subparagraph 3(a) hereof, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors or assigns, as the case may be.
IN WITNESS WHEREOF, the parties have witnessed this Agreement to be
duly executed and delivered as of the date first above written.
SARATOGA BEVERAGE GROUP, INC.
/s/ Xxxx X. Xxxx By: /s/ Xxxxx Xxxxxx
------------------------- -------------------------------------
Xxxx X. Xxxx Xxxxx Xxxxxx
President and Chief Executive Officer
