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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of
earliest event reported): March 31, 1998
THE FRESH JUICE COMPANY, INC.
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(Exact name of registrant as specified in charter)
Delaware 0-15320 11-2771046
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(State or other (Commission file (IRS employer
jurisdiction of number) identification no.)
incorporation)
280 Wilson Avenue, Newark, New Jersey 07105
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (973) 465-7100
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Item 5. Other Events.
The Fresh Juice Company Inc. (the "Registrant") announced on March
31, 1998 that it had entered into a letter agreement with Saratoga Beverage
Group, Inc. ("Saratoga") regarding a possible acquisition of the Registrant by
Saratoga at a cash purchase price of not less than $3.75 per share (the "Letter
Agreement"). The proposed transaction is subject to, among other things, due
diligence, financial contingencies and the negotiation and execution of a
definitive agreement.
In the letter agreement the Registrant has agreed to certain
"No-shop" provisions, subject to the fiduciary duties of the Registrant's board
of directors, through not later than April 25, 1998. The letter agreement
further provides for the payment to Saratoga by the Registrant of $750,000 in
the event the Registrant (i) enters into a definitive agreement and the
transaction is not consummated for reasons other than as a result of Saratoga
failing to obtain financing or complying with its obligations or (ii) accepts a
superior offer on or before a date not later than July 24, 1998. The letter
agreement also provides for a payment, in lieu of the $750,000 described above,
of not more than $250,000 based upon documented, out-of-pocket expenses of
Saratoga if the Registrant is unable to obtain a fairness opinion from its
investment banker with respect to the acquisition by Saratoga at $3.75 per share
and a superior offer is not accepted on or before a date not later than July 24,
1998.
Simultaneously with execution of the Letter Agreement, the
Registrant and Saratoga entered into a confidentiality agreement governing the
confidentiality of information exchanged by the Registrant and Saratoga in
pursuing the possible acquisition.
The Registrant has also been advised that Saratoga and Steven Smith,
a director,
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president and shareholder of the Registrant, have entered into an Option
Agreement dated March 16, 1998 and executed by Mr. Smith on March 18, 1998 (the
"Option Agreement") whereby Mr. Smith has granted to Saratoga the option to
purchase 825,000 shares of his common stock in the Registrant at $3.00 per
share. The Option Agreement provides for the consideration to be paid to Mr.
Smith to be increased under certain circumstances involving an acquisition of
the Registrant at a price in excess of $3.00 per share. Attached to this Current
Report as Exhibits and incorporated herein by reference are copies of: (a) the
News Release issued by the Registrant on March 31, 1998 regarding the
transactions described in this Current Report (the "News Release", Exhibit
99(a)); and (b) the Letter Agreement (Exhibit 99(b)). In addition, the
Registrant has been informed that a copy of the Option Agreement has been filed
as an exhibit to the Schedule 13D filed by Saratoga on March 30, 1998. The
descriptions of the terms of the Letter Agreement set forth in this Current
Report are qualified in their entirety by reference to the full text of the
Letter Agreement and the News Release.
Item 7. Financial Statements and Exhibits.
EXHIBIT NO. DESCRIPTION
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99(a) News Release dated March 31, 1998.
99(b) Letter Agreement dated March 29, 1998 and
executed by the Registrant on March 30, 1998.
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SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934,
THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED THEREUNTO DULY AUTHORIZED.
THE FRESH JUICE COMPANY, INC.
By: /s/ Steven M. Bogen
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Steven M. Bogen, Chief Executive Officer
Dated: April 2, 1998
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
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99(a) News Release dated March 31, 1998.
99(b) Letter Agreement dated March 29, 1998 and
executed by the Registrant on March 30, 1998.
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EXHIBIT 99(a)
Contact:
The Fresh Juice Company, Inc.
Steve Bogen - Chief Executive Officer
Jeffrey Heavirland - Vice President of Sales
and Administration
Telephone No. 626-812-6022
THE FRESH JUICE COMPANY, INC. ANNOUNCES LETTER
AGREEMENT WITH SARATOGA BEVERAGE GROUP, INC.
NEWARK, NEW JERSEY, MARCH 31, 1998 - THE FRESH JUICE COMPANY, INC.
(NASDAQ: FRSH) (the "Company") today announced it has entered into a letter
agreement with Saratoga Beverage Group, Inc. ("Saratoga") relating to a possible
acquisition of the Company by Saratoga at a cash purchase price of not less than
$3.75 per share. The proposed transaction is subject to, among other things, due
diligence, financial contingencies and the negotiation and execution of a
definitive agreement.
In the letter agreement the Company has agreed to certain "No-shop" provisions,
subject to the fiduciary duties of the Company's board of directors, through not
later than April 25, 1998. The letter agreement further provides for the payment
to Saratoga by the Company of $750,000 in the event the Company (i) enters into
a definitive agreement and the transaction is not consummated for reasons other
than as a result of Saratoga failing to obtain financing or complying with its
obligations or (ii) accepts a superior offer on or before a date not later than
July 24, 1998. The letter agreement also provides for a payment, in lieu of the
$750,000 described above, of not more than $250,000 based upon documented,
out-of-pocket expenses of Saratoga if the Company is unable to obtain a fairness
opinion from its investment banker with respect to the acquisition by Saratoga
at $3.75 per share and a superior offer is not accepted on or before a date not
later than July 24, 1998.
The Company has also been advised that Saratoga and Steven Smith, a director,
president and shareholder of the Company, have entered into an Option Agreement,
dated March 16, 1998 (the "Option Agreement") which was executed on March 18,
1998, pursuant to which Mr. Smith has granted to Saratoga the option to purchase
825,000 shares of his common stock of the Company at $3.00 per share. The Option
Agreement provides for the consideration to be paid to Mr. Smith to be increased
under certain circumstances involving an acquisition of the Company at a price
in excess of $3.00 per share.
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The Fresh Juice Company, Inc. manufactures, markets and distributes fresh
squeezed and frozen fresh squeezed citrus juices, fresh fruit smoothies (blends
of juices and purees) and other noncarbonated beverages to both food service and
retail customers. The Company has production and distribution facilities on both
the East Coast and West Coast. Marketed under the labels "Fresh Pik't", "The
Fresh Juice Company", "Hansen's", "Ultimate" and "Just Pik't", the Company's
products are premium, minimally processed fresh fruit juice products.
Saratoga's principal business is the bottling, marketing and distribution of
natural spring and mineral water products, and in the packaging of products for
others.
The Company further stated that additional information would be released
respecting these matters only upon a material change in status.
Cautionary Statement Regarding Forward-Looking Statements: Certain statements
contained herein regarding matters that are not historical facts are
forward-looking statements, including statements concerning Fresh Juice's
business strategy. Actual strategies and the timing and expected results thereof
may differ materially from those expressed or implied by such forward-looking
statements. Factors that could cause such differences include, but are not
limited to, those set forth in materials filed by Fresh Juice with the
Securities and Exchange Commission.
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EXHIBIT 99(b)
SARATOGA BEVERAGE GROUP, INC.
11 GEYSER ROAD
SARATOGA SPRINGS, NEW YORK 12866
March 29, 1998
The Fresh Juice Company, Inc.
280 Wilson Avenue
Newark, New Jersey 07105
Attention: Jeffrey Heavirland
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/ Robin Prever
Name: Robin Prever
Title: Chief Executive Officer
Acknowledged and Agreed:
THE FRESH JUICE COMPANY, INC.
By: /s/ Jeffrey Heavirland
Name: Jeffrey Heavirland
Title: Vice President of Sales and Administration
Dated: March 30, 1998
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