EXHIBIT G
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SARATOGA BEVERAGE GROUP, INC.
STOCKHOLDERS AGREEMENT
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Dated as of January 5, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I
GOVERNANCE AND MANAGEMENT OF THE COMPANY
Section 1.1. Board of Directors ..................................................... G-1
Section 1.2. Governance ............................................................. G-2
Section 1.3. Indemnification of Directors and Officers .............................. G-2
ARTICLE II
RESTRICTIONS ON TRANSFER
Section 2.1. Restrictions on Transfer ............................................... G-2
Section 2.2. Transfers After Second Anniversary of Closing Public Offering, Change of
Control or Exit Event .................................................. G-3
Section 2.3. Tag-Along Rights ....................................................... G-3
Section 2.4. Take-Along Rights ...................................................... G-3
Section 2.5. Transfer of Covered Securities to Affiliate of NCP-SBG ................. G-4
Section 2.6. Hold Back Agreements ................................................... G-4
ARTICLE III
OTHER AGREEMENTS
Section 3.1. Right of First Refusal ................................................. G-5
Section 3.2. Issuance of Additional Shares of Equity Securities ..................... G-6
Section 3.3. Future Acquisitions .................................................... G-6
ARTICLE IV
DEFINITIONS
Section 4.1. Definitions; Construction .............................................. G-6
ARTICLE V
MISCELLANEOUS
Section 5.1. Notices ................................................................ G-8
Section 5.2. Remedies ............................................................... G-8
Section 5.3. Governing Law, etc. .................................................... G-9
Section 5.4. Binding Effect ......................................................... G-10
Section 5.5. Assignment ............................................................. G-10
Section 5.6. No Third Party Beneficiaries ........................................... G-10
Section 5.7. Amendment; Waivers, etc. ............................................... G-10
Section 5.8. Legend on Stock Certificates ........................................... G-10
Section 5.9. Entire Agreement ....................................................... G-11
Section 5.10. Severability ........................................................... G-11
Section 5.11. Headings; Counterparts ................................................. G-11
Section 5.12. Subsequent Stockholders ................................................ G-11
Section 5.13. Reports ................................................................ G-11
Section 5.14. Certain Agreements ..................................................... G-11
Section 5.15. Effectiveness .......................................................... G-11
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STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of January 5, 2000,
among Saratoga Beverage Group, Inc., a Delaware corporation (the "Company"),
NCP-SBG, L.P., a Delaware limited partnership ("NCP-SBG"), and the Persons
listed on the signature pages hereto, and each other person who is, or becomes,
a party to this Agreement pursuant to Section 5.12 hereof (collectively, with
NCP-SBG and the Persons listed on the signature pages hereto, the
"Stockholders"). Capitalized terms used herein without definition shall have
the meanings indicated in Article IV.
WHEREAS, upon the terms and subject to the conditions of the Stock
Purchase Agreement and Agreement and Plan of Merger, dated as of the date
hereof (the "Recapitalization Agreement"), among the Company, NCP-SBG and
NCP-SBG Recapitalization Corp., NCP-SBG will acquire shares (the "Purchased
Shares") of common stock, par value $0.01 per share (the "Common Stock"), of
the Company;
WHEREAS, the parties hereto wish to set forth certain rights and
obligations that shall attach to the ownership of Common Stock held by the
Stockholders; and
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Recapitalization Agreement that the parties hereto enter
into this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
GOVERNANCE AND MANAGEMENT OF THE COMPANY
Section 1.1. Board of Directors. (a) Composition. Subject to the
provisions of this Agreement, the Board of Directors of the Company (the
"Board") will consist initially of seven members: (i) four members nominated by
NCP-SBG, and (ii) three members nominated by ▇▇▇▇▇ ▇▇▇▇▇▇. Subject to the
provisions of this Agreement, each Stockholder entitled to vote shall vote
their shares of Common Stock so as to effect the provisions of this Section
1.1(a).
(b) Nominees. NCP-SBG shall nominate all persons for election to the
Board, except that, for so long as she is the Chief Executive Officer of the
Company, (i) ▇▇▇▇▇ ▇▇▇▇▇▇ shall be entitled to nominate three directors,
provided that if ▇▇▇▇▇ ▇▇▇▇▇▇ is no longer the Chief Executive Officer of the
Company, then so long as the Rollover Stockholders collectively own at least 5%
of the outstanding Common Stock of the Company, such Rollover Stockholders
collectively shall be entitled to nominate one director. Each Stockholder
entitled to vote shall vote their shares of Common Stock so as to elect such
nominees to the Board.
(c) Removal and Replacement of Nominees. Any director nominated by a party
hereto may be removed at any time, with or without cause, by such party, and
each Stockholder entitled to vote thereon shall vote their shares of Common
Stock as may be required to effect such removal, including voting its shares
for such removal. In addition, at such time as ▇▇▇▇▇ ▇▇▇▇▇▇ is no longer Chief
Executive Officer of the Company, the Stockholders shall vote their shares of
Common Stock to remove at least two directors nominated by ▇▇▇▇▇ ▇▇▇▇▇▇ if such
directors shall not have resigned. At any time a vacancy shall be created on
the Board as a result of the death, disability, retirement, resignation or
removal of a director nominated by a party hereto, with or without cause, then
such party shall have the right to nominate a replacement for any director
nominated by it in accordance with Sections 1.1(b), and each Stockholder
entitled to vote shall vote their shares of Common Stock so as to elect such
replacement.
(d) Fees and Expenses. The Company will cause each non-employee director
of the Board to be reimbursed for all reasonable out-of-pocket costs and
expenses incurred by him or her in connection with serving as a director. No
director nominated by NCP-SBG who is an officer or employee of North Castle
Partners II, L.L.C. ("NCP") or any Affiliate thereof (other than any portfolio
company
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controlled by NCP or controlled by any other private investment fund under
common control with NCP) shall be entitled to any fee with respect to his or
her service as a director of the Board at any time at which NCP is providing
consulting services to the Company and its subsidiaries pursuant to the
Consulting Agreement, dated as of the date hereof by and between the Company
and NCP.
(e) Chairperson. The Chairperson of the Board shall be designated by
NCP-SBG from among the directors of the Company.
Section 1.2. Governance. (a) Charter and Bylaws. The provisions of the
Company's Certificate of Incorporation and Bylaws will be consistent with the
terms of this Agreement.
(b) Board Approval. All actions requiring the approval of the Board shall
be approved (A) at a meeting of the Board, by a majority of the total number of
directors then fixed as constituting the whole board, or (B) without a meeting
by the unanimous written consent of all the members of the Board, in each case
except as required by law.
Section 1.3. Indemnification of Directors and Officers. The Bylaws shall
provide for indemnification of the directors and officers of the Company to the
greatest extent permitted by applicable law.
ARTICLE II
RESTRICTIONS ON TRANSFER
Section 2.1. Restrictions on Transfer. (a) Until the first to occur of (w)
a Public Offering, (x) a Change of Control, (y) the second anniversary of the
Closing under the Recapitalization Agreement (the "Closing"), and (z) an Exit
Event, no Stockholder other than NCP-SBG and its Affiliates may, without the
consent of NCP-SBG (which consent may not be unreasonably withheld), sell,
transfer, pledge, encumber or otherwise dispose of any Covered Security or any
interest therein to any Person except as follows:
(i) to any Family Member of such Stockholder upon the death of such
Stockholder, provided that such Family Member delivers to the Company a
certificate of the transferee, to the effect that the transferee is a
Family Member of the transferor;
(ii) to any Family Member other than upon the death of such
Stockholder, provided that such Family Member delivers to the Company a
certificate of the transferee, to the effect that the transferee is a
Family Member of the transferor;
(iii) to the Company or NCP-SBG or any of its Affiliates or designees;
(iv) pursuant to Sections 2.3 and 2.4; or
(v) in connection with a transaction that results in a Change of
Control;
provided that, in the case of a transfer with NCP-SBG's consent or pursuant to
clauses (i) or (ii) above, (A) the transferor delivers to the Company an
opinion of counsel, which opinion and counsel shall be reasonably satisfactory
to the Company, to the effect that the transfer is not a Prohibited Transfer,
and (B) the transferee becomes a party to this Agreement in the manner provided
in Section 5.12.
(b) Each Stockholder shall give the Company and the other Stockholders
prompt notice of any actual transfer of any Covered Security. Any sale,
transfer, pledge, encumbrance or other disposition of any Covered Security
other than as permitted by this Agreement shall be void ab initio and of no
effect.
(c) Notwithstanding anything contained herein to the contrary, each
Rollover Stockholder may, without the consent of NCP-SBG, sell or transfer any
Covered Security to another Rollover Stockholder, subject to compliance with
applicable laws and contractual agreements and delivery to the Company of an
opinion of counsel, which opinion and counsel shall be reasonably satisfactory
to the Company, to the effect that the transfer is not a Prohibited Transfer.
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(d) Notwithstanding the provisions of Section 2.1(a), ▇▇. ▇▇▇ may pledge
or encumber his Covered Securities or grant a security interest therein without
the consent of NCP-SGB, provided, that any subsequent sale, transfer or other
disposition pursuant to such pledge, encumbrance or security interest shall
require the consent of NCP-SBG.
Section 2.2. Transfers After Second Anniversary of Closing Public
Offering, Change of Control or Exit Event. (a) Following the first to occur of
the second anniversary of the Closing, an initial Public Offering, a Change of
Control and an Exit Event, and subject to Article III, any Stockholder may
transfer Covered Securities to any Person, subject to compliance with
applicable laws and contractual agreements.
(b) Opinion of Counsel. An additional condition to any transfer pursuant
to Sections 2.2(a) shall be that, except with respect to a transfer of the type
described in Section 2.1(a)(iii) or a transfer made pursuant to a registered
public offering, the transferee must deliver to the Company an opinion of
counsel, which opinion and counsel shall be reasonably satisfactory to the
Company, to the effect that such transfer is not required to be registered
under the Securities Act.
Section 2.3. Tag-Along Rights. If prior to a Public Offering any of
NCP-SBG or its Affiliates desire to transfer in excess of 10% of the maximum
amount of Common Stock ever owned in the aggregate by NCP-SBG and its
Affiliates (the "Tag-Along Minimum"), to a Person who is not an Affiliate of
NCP-SBG (a "Tag-Along Buyer"), on a cumulative basis, in one or a series of
transactions, then NCP-SBG shall deliver written notice (a "Tag-Along Notice")
to the Company and the other Stockholders, which notice shall state (i) the
name and address of the Tag-Along Buyer, (ii) the per share amount (the
"Tag-Along Price") and form of consideration NCP-SBG proposes to receive for
its shares of Common Stock, and (iii) the number of shares of Common Stock
NCP-SBG proposes to sell (the "Tag-Along Shares") and shall be accompanied by
drafts of purchase and sale documentation (the "Tag-Along Purchase Agreement")
setting forth the terms and conditions of payment of such consideration and all
other material terms and conditions of such transfer (the "Tag-Along Terms").
During the 15 Business Day period following receipt of such notice by the
Company and the other Stockholders, the other Stockholders shall have the right
(a "Tag-Along Right"), exercised by delivery of a written notice to NCP-SBG and
the Company, to participate in such sale to the Tag- Along Buyer on and subject
to the same price, terms and conditions offered to NCP-SBG, on a pro rata basis
determined as the quotient obtained by dividing (A) the number of shares of
Common Stock then held by each Stockholder so electing to sell (each such
Person, an "Accepting Stockholder") by (B) the aggregate number of shares of
Common Stock then held by NCP-SBG and Affiliates and by all of the Accepting
Stockholders who are transferring shares to the Tag-Along Buyer. If the
Tag-Along Right shall not have been exercised prior to the expiration of the 15
Business Day period, then at any time during the 90 days following the
expiration of the 15 Business Day period, subject to extension for not more
than an additional 60 days to the extent reasonably required to comply with
applicable laws in connection with such sale, NCP-SBG and its Affiliates may
sell the Tag-Along Shares to the Tag-Along Buyer at the Tag-Along Price and on
the Tag-Along Terms. Upon request from NCP-SBG, the Company will provide
NCP-SBG with a Stockholder List.
Section 2.4. Take-Along Rights. (a) Take-Along Notice. If NCP-SBG intends
to effect a sale or transfer (a "Take-Along Sale") of all or substantially all
of its shares of Common Stock to a Person who is not an Affiliate (a
"Take-Along Buyer") prior to a Public Offering and elects to exercise its
rights under this Section 2.4, then NCP-SBG shall deliver written notice (a
"Take-Along Notice") to the Company and the other Stockholders, which notice
shall (i) state (w) that NCP-SBG wishes to exercise its rights under this
Section 2.4 with respect to such transfer, (x) the name and address of the
Take-Along Buyer and (y) the per share amount and form of consideration NCP-SBG
proposes to receive for its shares of Common Stock, (ii) be accompanied by
drafts of purchase and sale documentation setting forth the terms and
conditions of payment of such consideration and all other material terms and
conditions of such transfer (the "Take-Along Purchase Agreement"), (iii)
contain an offer (the "Take-Along Offer") by the Take-Along Buyer to purchase
from the other Stockholders all of their shares of Common Stock, on and subject
to the same price, terms and conditions offered
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to NCP-SBG and (iv) state the anticipated time and place of the closing of such
transfer (a "Take-Along Closing"), which (subject to such terms and conditions)
shall occur not fewer than 15 nor more than 90 days after the date such
Take-Along Notice is delivered, provided that if such Take-Along Closing shall
not occur prior to the expiration of such 90-day period, NCP-SBG shall be
entitled to deliver additional Take-Along Notices with respect to such
Take-Along Offer. Upon the request of NCP-SBG, the Company shall provide
NCP-SBG with a Stockholder List.
(b) Conditions to Take-Along. Upon delivery of a Take-Along Notice, each
of the other Stockholders shall transfer all of its shares of Common Stock
pursuant to the Take-Along Offer, as such offer may be modified from time to
time, if NCP-SBG transfers all of its shares of Common Stock to the Take-Along
Buyer at the Take-Along Closing and if all shares of Common Stock held by
NCP-SBG and the other Stockholders are sold to the Take-Along Buyer at the same
price, and on the same terms and conditions. No Stockholder other than NCP-SBG
and its Affiliates shall be obligated to make any representation or warranty to
the Take-Along Buyer with respect to, or agree to indemnify the Take-Along
Buyer against, any matter other than (i) title to such Stockholder's shares of
Common Stock to be sold pursuant to the Take-Along Offer and (ii) authority and
legal capacity of such Stockholder to sell such shares or incur any
out-of-pocket costs in connection with such transaction other than such
Stockholder's pro rata share of any transaction expenses payable in connection
with the Take-Along Closing. Within five Business Days prior to the closing
contemplated by the Take-Along Notice, each of the other Stockholders shall (i)
deliver or cause to be delivered to NCP-SBG or an agent acting on its behalf
certificates representing such other Stockholder's shares of Common Stock, duly
endorsed for transfer or accompanied by duly executed stock powers, and (ii)
execute and deliver to NCP-SBG or an agent acting on its behalf a limited power
of attorney and a letter of transmittal and custody agreement in favor of
NCP-SBG or an agent acting on its behalf, and in form and substance reasonably
satisfactory to NCP-SBG, appointing NCP-SBG or an agent acting on its behalf as
the true and lawful attorney-in-fact and custodian for such other Stockholder
with respect to the Take-Along Purchase Agreement and the transactions
contemplated thereby, with full power of substitution, and authorizing NCP-SBG
or such agent to execute and deliver a purchase and sale agreement
substantially in the form of the Take-Along Purchase Agreement and otherwise in
accordance with the terms of this Section 2.4 and to take such actions as
NCP-SBG may reasonably deem necessary or appropriate to effect the sale and
transfer of the shares of Common Stock to the Take-Along Buyer, upon receipt of
the purchase price therefor set forth in the Take-Along Notice at the
Take-Along Closing, free and clear of any Liens, options and voting agreements,
together with all other documents delivered with such Notice and required to be
executed in connection with the sale thereof pursuant to the Take-Along Offer.
NCP-SBG or such agent shall hold such shares and other documents in trust for
such other Stockholder for release against payment to such Stockholder of such
Stockholder's net proceeds in accordance with the contemplated transaction. If,
within 15 days after delivery of such shares and other documents to NCP-SBG or
an agent acting on its behalf, NCP-SBG or such agent has not completed the sale
of all of the shares of Common Stock owned by NCP-SBG and the other
Stockholders to the Take-Along Buyer and another Take-Along Notice with respect
to such Take-Along Offer has not been sent to the other Stockholders, NCP-SBG
or such agent shall return to each other Stockholder all certificates
representing the shares and all other documents that such other Stockholder
delivered in connection with such sale. Promptly after the Take-Along Closing,
NCP-SBG or an agent acting on its behalf shall furnish such other evidence of
the completion and time of completion of such sale and the terms thereof as may
reasonably be requested by any of the other Stockholders.
Section 2.5. Transfer of Covered Securities to Affiliate of NCP-SBG. In
the event that any Covered Securities are transferred to any Affiliate of
NCP-SBG, such transfer to such Affiliate shall be of no effect and shall be
void ab initio unless such Affiliate agrees in writing to become a party to
this Agreement.
Section 2.6. Hold Back Agreements. If and whenever the Company proposes to
register any of its equity securities under the Securities Act, whether or not
for its own account (other than pursuant to a Special Registration), or is
required to use its reasonable best efforts to effect the registration of
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any Registrable Securities (as such term is defined in the Registration Rights
Agreement, dated as of the date hereof, by and between the Company, NCP-SBG and
the other parties thereto (the "Registration Rights Agreement")) under the
Securities Act pursuant to Sections 3.1 or 3.2 of the Registration Rights
Agreement, each party hereto, if required by the managing underwriter in an
underwritten offering, agrees not to effect (other than pursuant to such
registration) any public sale or distribution, including, but not limited to,
any sale pursuant to Rule 144 or Rule 144A, of any Registrable Securities, any
other equity securities of the Company or any securities convertible into or
exchangeable or exercisable for any equity securities of the Company for 90
days (or 180 days, if the managing underwriter so requires) after, and during
the 20 days prior to, the effective date of such registration, to the extent
timely notified in writing by the Company or the managing underwriter, and the
Company agrees to cause each holder of any Equity Security, or of any security
convertible into or exchangeable or exercisable for any Equity Security, of the
Company purchased from the Company at any time other than in a Public Offering
to enter into a similar agreement with the Company. The Company further agrees
not to effect (other than pursuant to such registration or pursuant to a
Special Registration) any public sale or distribution, or to file any
registration statement (other than such registration or a Special Registration)
covering any, of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the 20 days prior to,
and for 90 days (or 180 days, if the managing underwriter so requires) after,
the effective date of such registration if required by the managing
underwriter.
ARTICLE III
OTHER AGREEMENTS
Section 3.1. Right of First Refusal. Prior to an initial Public Offering,
if any Stockholder other than NCP-SBG and its Affiliates (a "Selling Holder")
desires to transfer any Covered Securities pursuant to Section 2.1(a) following
an offer (which offer must be in writing, be irrevocable by its terms for at
least 30 Business Days and be a bona fide offer) from any prospective purchaser
to purchase all or any part of such Covered Securities owned by such Selling
Holder, such Selling Holder shall give notice (the "Notice of Offer") in
writing to the Company and to NCP-SBG (i) designating the number of shares of
Covered Securities that such Selling Holder proposes to sell (the "Offered
Shares"), (ii) identifying the prospective purchaser thereof (the "Potential
Purchaser") and its address and (iii) specifying the price (the "Offer Price")
and terms (the "Offer Terms") upon which such Selling Holder desires to sell
the same. During the 20 Business Day period following receipt of such notice by
the Company and NCP-SBG (the "Refusal Period"), such Selling Holder shall not
be permitted to accept such offer, but may submit a new Notice of Offer in
respect of any revised offer in accordance with and subject to this Section
2.3. During the first ten Business Days of the Refusal Period, the Company
shall have the right to purchase from the Selling Holder at the Offer Price and
on the Offer Terms all, any portion of the Offered Shares. If the Company shall
not have exercised such right with respect to all Covered Securities after ten
Business Days, NCP- SBG or any Affiliate or designee of NCP-SBG, including any
pooled investment vehicle organized by the managing member of NCP-SBG or by any
of its Affiliates, shall have the same right of first refusal with respect to
any such remaining Covered Securities for the remainder of the Refusal Period.
The rights provided hereunder shall be exercised by written notice to the
Selling Holder and the Company or NCP-SBG, as the case may be, given at any
time during the Refusal Period. If such right is exercised, the Company or
NCP-SBG (or its Affiliate or designee), as the case may be, shall deliver to
the Selling Holder payment of the Offer Price in accordance with the Offer
Terms, against delivery of appropriately endorsed certificates or other
instruments representing the Offered Shares, provided that the Company and
NCP-SBG shall not be required to consummate such purchase on fewer than 20
Business Days from the date of acceptance of the offer. If the Company and
NCP-SBG fail, in the aggregate, to exercise their right of first refusal for
all of the Offered Shares during the Refusal Period, then they shall have no
right to purchase any Offered Shares, and the Selling Holder may, for a period
of up to 120 days, sell to the Potential Purchaser the Offered Shares at the
Offer Price and on the Offer Terms.
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Section 3.2. Issuance of Additional Shares of Equity Securities. In the
case of the proposed sale or issuance of, or the proposed granting by the
Company of, any equity securities of the Company, or any securities convertible
into equity securities of the Company, to NCP-SBG or any of its Affiliates
following the Effective Time, the Rollover Stockholders shall have the right,
exercisable within 20 Business Days after the Company has given notice, which
notice shall include copies of all material documents setting forth the terms
and conditions of the proposed sale, issuance or grant, to the Rollover
Stockholders of such proposed sale, issuance or grant, to purchase their
respective pro rata share (based on such Stockholder's percentage ownership of
the common stock of the Company) of the equity securities (or securities
convertible into equity securities) proposed to be issued or granted on the
same terms as such equity securities (or securities convertible into equity
securities) are offered to NCP-SGB or its Affiliates.
Section 3.3. Future Acquisitions. The Company and NCP-SBG agree, and
NCP-SPG agrees to cause its Affiliates and the respective officers and
directors of such Affiliates, to pursue all future acquisitions, mergers and
recapitalizations involving businesses in the refrigerated juice industry
(other than minority investments by NCP-SGB or any of its affiliates) through
(i) the Company, with such entities to be acquired, owned and operated by the
Company, or (ii) any other company, provided that the Rollover Stockholders
shall have had an opportunity to exchange their respective shares of common
stock of the Company for shares of common stock of an equivalent value in such
other company in connection with any such transaction which results in the
Company not being the top-tier holding company for investments by NCP-SGB in
the refrigerated juice industry.
ARTICLE IV
DEFINITIONS
Section 4.1. Definitions; Construction. Whenever used in this Agreement,
the following terms shall have the respective meanings given to them below or
in the Sections indicated below:
Affiliate: of a Person means a Person that directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first Person, including but not limited to a
Subsidiary of the first Person, a Person of which the first Person is a
Subsidiary, or another Subsidiary of a Person of which the first Person is
also a Subsidiary. "Control" (including the terms "controlled by" and
"under common control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of the management policies of
a person, whether through the ownership of voting securities, by contract
or credit arrangement, as trustee or executor, or otherwise. With respect
to NCP-SBG, the term Affiliate explicitly includes the Fund, NCP II
Co-Investment Fund, L.P., any other investment vehicle now or in the future
managed by North Castle Partners, L.L.C. and any Person with coinvestment
rights with respect to investments made by the Fund.
Board: as defined in Section 1.1(a).
Business Day: any day other than a Saturday, Sunday or other day on
which the commercial banks in New York City are authorized or required to
close.
Change of Control: means, with respect to the Company, the first to
occur after the Effective Time of the following events:
(1) the acquisition by any person, entity or group (as defined in
section 13(d) of the Exchange Act) (other than (w) the Company and its
subsidiaries, (x) any employee benefit plan of the Company or its
subsidiaries or (y) the Fund or any Affiliate or partner thereof),
through one transaction or a series of transactions of 50% or more of
the combined voting power of the then outstanding voting securities of
the Company;
(2) the merger or consolidation of the Company as a result of which
persons who were Stockholders of the Company immediately prior to such
merger or consolidation, do not, immediately thereafter, own, directly
or indirectly, more than 50% of the combined voting power entitled to
vote generally in the election of directors of the merged or
consolidated company;
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(3) the liquidation or dissolution of the Company (other than (x) a
dissolution occurring upon a merger or consolidation thereof (y) a
liquidation of the Company into its subsidiary or (z) a liquidation or
dissolution that is incident to a reorganization); and
(4) the sale, transfer or other disposition of all or substantially
all of the assets of the Company through one transaction or a series of
related transactions to one or more persons or entities that are not,
immediately prior to such sale, transfer or other disposition,
Affiliates of the Fund.
Closing: as defined in Section 2.1(a).
Covered Security: all of the shares of Common Stock and any other
security, option, warrant or other right that does or may allow the holder
thereof to receive Common Stock, owned from time to time by any of the
Stockholders.
Equity Security: means (i) any Common Stock or other voting securities,
(ii) any securities of the Company convertible into or exchangeable for
Common Stock or other voting securities or (iii) any options, rights or
warrants (or any similar securities) issued by the Company to acquire
common stock or other voting securities.
Exchange Act: as defined in Section 2.2(a).
Exit Event: any sale, transfer, merger or other transaction as a result
of which NCP-SBG and its Affiliates sell or otherwise dispose of all or
substantially all of their Common Stock, including in any dissolution or
liquidation of the Company.
Family Member: with respect to any Stockholder, (i) a spouse, sibling
or any lineal ancestor or descendant, (ii) a trust or trusts of which such
family members are the sole beneficiaries or charitable remainder trusts in
which such family members have an interest or (iii) a partnership or
limited liability company in which such family members are the only
partners or members, as the case may be.
Fund: North Castle Partners II, L.P.
NCP: as defined in Section 1.1(d).
Person: any natural person, firm, partnership, association,
corporation, company, trust, business trust, governmental authority or
other entity.
Prohibited Transfer: any transfer of a Covered Security to a Person
which (a) may not be effected without registering the securities involved
under the Securities Act, (b) would result in the assets of the Company
constituting Plan Assets as such term is defined in the Department of Labor
regulations promulgated under the Employee Retirement Income Security Act
of 1974, as amended, (c) would cause the Company to be, be controlled by or
under common control with an "investment company" for purposes of the
Investment Company Act of 1940, as amended, or (d) would require any
securities of the Company to be registered under the Exchange Act.
Public Offering: any underwritten sale of Common Stock to the public
pursuant to an effective registration statement under the Securities Act
after which at least 20% of the outstanding shares of Common Stock shall
have been registered under the Securities Act and such shares may be freely
traded.
Purchased Shares: as defined in the recitals to this Agreement.
Rollover Stockholders: shall be ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, Steel Partners II, L.P., ▇▇▇▇▇▇▇▇ ▇▇▇▇ Nominee Limited and ▇▇▇▇
▇▇▇▇▇▇.
Securities Act: the Securities Act of 1933, as amended.
Special Registration: the registration of shares of equity securities
and/or options or other rights in respect thereof to be offered solely to
directors, members of management, employees, consultants or sales agents,
distributors or similar representatives of the Company or its direct or
indirect subsidiaries, solely on Form S-8 or any successor form.
7
Stockholder: as defined in the introduction to this Agreement.
Stockholder List: at any applicable time, the list of the name and
addresses of the Stockholders at such time.
ARTICLE V
MISCELLANEOUS
Section 5.1. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by fax, with a copy
sent by (a), (b), or (c) above, or telegram, as follows:
(i) if to NCP-SBG:
NCP-SBG, L.P.
c/o North Castle Partners, L.L.C.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Company:
Saratoga Beverage Group, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ ▇-▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
(iii) if to any other Person who is a party, or to any Person who becomes a
party to this Agreement pursuant to Section 5.12 hereof, to the name
and address specified for such Person on the signature pages hereto or
in Schedule A hereto;
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (w) if by personal delivery on the day
after such delivery, (x) if by certified or registered mail, on the seventh
business day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered, (z) if by telecopy or telegram, on the next day
following the day on which such telecopy or telegram was sent, provided that a
copy is also sent by certified or registered mail.
Section 5.2. Remedies. Each Stockholder acknowledges that the other
Stockholders and the Company would be irreparably damaged in the event of a
breach or a threatened breach by such Stockholder or the Company of any of its
obligations under this Agreement (including without limitation the covenants
set forth in Section 3.3) and the Company and each Stockholder agrees that, in
the event of a breach or a threatened breach by the Company or such Stockholder
of any such
8
obligation, each of the other Stockholders and the Company shall, in addition
to any other rights and remedies available to them in respect of such breach,
be entitled to an injunction from a court of competent jurisdiction (without
any requirement to post bond) granting them specific performance by such
Stockholder of its obligations under this Agreement (including without
limitation the covenants set forth in Section 3.3). In the event that any
Stockholder or the Company shall file suit to enforce the covenants contained
in this Agreement (including without limitation the covenants set forth in
Section 3.3) (or obtain any other remedy in respect of any breach thereof), the
prevailing party in the suit shall be entitled to recover, in addition to all
other damages to which it may be entitled, the costs incurred by such party in
conducting the suit, including reasonable attorney's fees and expenses.
Section 5.3. Governing Law, etc. (a) THIS AGREEMENT SHALL BE GOVERNED IN
ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAWS RULES THEREOF TO THE EXTENT ANY SUCH RULES WOULD REQUIRE OR PERMIT THE
APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION, EXCEPT TO THE EXTENT THAT
THE CORPORATE LAW OF THE STATE OF INCORPORATION OF THE COMPANY SPECIFICALLY AND
MANDATORILY APPLIES. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF
THE UNITED STATES OF AMERICA LOCATED IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF
THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS AGREEMENT, AND IN
RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. EACH PARTY HERETO
HEREBY WAIVES, AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR
PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT
OR IN RESPECT OF ANY SUCH TRANSACTION, THAT IT IS NOT SUBJECT TO SUCH
JURISDICTION, THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT
MAINTAINABLE IN SUCH COURTS, THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR
THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH
COURTS. EACH PARTY HERETO HEREBY CONSENTS TO AND GRANTS ANY SUCH COURT
JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY
SUCH DISPUTE AND AGREES THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION
WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 5.1 OR IN
SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT
SERVICE THEREOF.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (1)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (2) SUCH PARTY UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (3) SUCH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (4) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 5.3(b).
9
Section 5.4. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns.
Section 5.5. Assignment. This Agreement shall not be assignable or
otherwise transferable by any party hereto without the prior written consent of
the Company, NCP-SBG, and any purported assignment or other transfer without
such consent shall be void and unenforceable; provided that NCP-SBG may assign
this Agreement or any of their rights and obligations hereunder to any of their
respective Affiliates or any other Person.
Section 5.6. No Third Party Beneficiaries. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto and
their respective heirs, successors and permitted assigns.
Section 5.7. Amendment; Waivers, etc. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by NCP-SBG and the party against
whom enforcement of the amendment, modification, discharge or waiver is sought.
Any such waiver shall constitute a waiver only with respect to the specific
matter described in such writing and shall in no way impair the rights of the
party granting such waiver in any other respect or at any other time. Neither
the waiver by any of the parties hereto of a breach of or a default under any
of the provisions of this Agreement, nor the failure by any of the parties, on
one or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of
any other breach or default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder. The rights and remedies herein
provided are cumulative and none is exclusive of any other, or of any rights or
remedies that any party may otherwise have at law or in equity.
Section 5.8. Legend on Stock Certificates. A copy of this Agreement shall
be filed with the Secretary of the Company and kept with the records of the
Company. Each certificate representing Covered Securities which are subject to
this Agreement shall be endorsed with a legend substantially to the following
effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF (EACH, A "TRANSFER")
UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR UNLESS SUCH TRANSFER IS (A) EXEMPT FROM REGISTRATION OR
IS OTHERWISE IN COMPLIANCE WITH THE ACT AND SUCH LAWS IN THE OPINION OF
COUNSEL TO THE STOCKHOLDER, WHICH COUNSEL MUST BE, AND THE FORM AND
SUBSTANCE OF WHICH OPINION ARE, REASONABLY SATISFACTORY TO THE ISSUER AND
(B) IN COMPLIANCE WITH THE STOCKHOLDERS AGREEMENT OF THE ISSUER, DATED AS
OF JANUARY 5, 2000 AND ANY AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS THERETO
(THE "STOCKHOLDERS AGREEMENT").
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH IN (I) A STOCKHOLDERS AGREEMENT AND (II)
A REGISTRATION RIGHTS AGREEMENT, COPIES OF WHICH ARE AVAILABLE FOR
INSPECTION AT THE OFFICES OF THE COMPANY. NO TRANSFER OF SUCH SECURITIES
WILL BE MADE ON THE BOOKS OF THE COMPANY, AND SUCH TRANSFER SHALL BE
VOIDABLE, UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF
SUCH AGREEMENTS.
Any stock certificate issued at any time in exchange or substitution for a
certificate bearing such legend (except a new certificate issued upon the
completion of a public distribution of securities of the Company represented
thereby or otherwise if the holder of the Shares represented by such
certificate
10
shall have delivered to the Company an opinion of counsel, which opinion and
counsel shall be reasonably satisfactory to the Company, that the Act permits
such certificate to be issued without such legend or with a legend modified as
set forth in such opinion) shall also bear such legend. The provisions of this
Agreement shall be binding upon, and shall inure to the benefit of, the
Stockholders and all subsequent holders of Covered Securities who acquired the
same directly or indirectly from a Stockholder in a transaction or series of
transactions not involving any Public Offering. The Company agrees that it will
not transfer on its books any certificate representing Covered Securities in
violation of the provisions of this Agreement.
Section 5.9. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.
Section 5.10. Severability. If any provision, including any phrase,
sentence, clause, section or subsection, of this Agreement is invalid,
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering such provision in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision herein contained invalid, inoperative, or unenforceable to any extent
whatsoever.
Section 5.11. Headings; Counterparts. The headings contained in this
Agreement are for purposes of convenience only and shall not affect the meaning
or interpretation of this Agreement. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
Section 5.12. Subsequent Stockholders. Each of the parties hereto agrees
that in order for any Person who after the date of this Agreement is offered
shares of Common Stock or securities exercisable for or convertible into shares
of Common Stock (or any interest therein) to become a party to this Agreement,
both the Company and such Person must execute Schedule A hereto and duly
executed copies thereof must be delivered to NCP-SBG in accordance with Section
5.1. The Company shall maintain a register of all parties to this Agreement
which shall be available for review by any party hereto. Any transfer of
Covered Securities (or any interest therein) to a transferee required hereby to
become a party to this Agreement shall be of no effect and shall be void ab
initio unless such transferee becomes a party to this Agreement as provided in
the previous sentence.
Section 5.13. Reports. Within 60 days after the end of each fiscal
quarter, the Company shall furnish to each Stockholder an unaudited financial
report prepared in accordance with generally accepted accounting principles
applied on a consistent basis setting forth as of the end of such fiscal
quarter, a balance sheet of the Company and an income statement and a cash flow
statement for the Company for such fiscal quarter.
Section 5.14. Certain Agreements. The Stockholders party to that certain
Stockholders' Agreement, dated as of October 13, 1998, by and among the
Company, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and that certain
Stockholders' Agreement, dated as of October 22, 1998, between ▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, agree to terminate or cause to be terminated, as of the
Effective Time, such stockholders' agreements.
Section 5.15. Effectiveness. The effectiveness of this Agreement is
conditioned upon the occurrence of the Effective Time as contemplated by the
Recapitalization Agreement. If the Effective Time does not occur, or the
Recapitalization Agreement is terminated in accordance with its terms, this
Agreement shall be of no force or effect.
11
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
SARATOGA BEVERAGE GROUP, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
NCP-SBG, L.P.
By: NCP-SBG, GP, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
------------------------------------- A-1703
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Address: c/o Morgan ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------- ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
STEEL PARTNERS II, L.P. Address: c/o Steel Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
By: STEEL PARTNERS, L.L.C., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Member
[Signature page for Stockholders Agreement]
12
PERSHING SECURITIES LIMITED Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇
#▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Dock
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
/s/ Christiane ▇▇▇ ▇▇▇▇▇▇▇▇ England
By: ----------------------------------
Name: Christiane ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Compliance Officer
Address: ▇/▇ ▇▇▇▇▇▇▇ ▇▇
/▇/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇
---------------------------------- Birsfelden, Switzerland 4127
▇▇▇▇ ▇▇▇▇▇▇
[Signature page for Stockholders Agreement]
13
STOCKHOLDERS AGREEMENT
SCHEDULE A
Reference is made to the Stockholders Agreement, dated January , 2000,
between Saratoga Beverage Group, Inc., NCP-SBG, L.P., and the other parties
thereto (the "Stockholders Agreement"). The undersigned agrees, by execution
hereof, to become a party to, and to be subject to the rights and obligations
under, the Stockholders Agreement.
----------------------------------------
Name:
Title:
Address:
Date:
SARATOGA BEVERAGE GROUP, INC.
By:
---------------------------
Name:
Title:
14