<PAGE>
As filed with the Securities and Exchange Commission on August 7, 1998
Registration No. 33-65356
- - -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
SARATOGA BEVERAGE GROUP, INC.
(Formerly Saratoga Spring Water Company)
(Exact name of issuer as specified in its charter)
Delaware 14-0176119
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
11 Geyser Road
Saratoga Springs, New York 12866
(Address of Principal Executive Offices) (Zip Code)
----------------------
AMENDED AND RESTATED
SARATOGA BEVERAGE GROUP, INC. 1993 STOCK OPTION PLAN
(Full title of the plan)
----------------------
Robin Prever
President and Chief Executive Officer
Saratoga Beverage Group, Inc.
11 Geyser Road
Saratoga Springs, New York 12866
(516) 584-6363
Copies to:
Charles I. Weissman, Esq.
Swidler Berlin Shereff Friedman, LLP
919 Third Avenue
New York, New York 10022
(212) 758-9500
(Name, address & telephone number
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Amount Maximum Maximum
Securities to be Offering Price Aggregate Amount of
to be Registered Registered(1)(2) Per Share(3) Offering Price(3) Registration Fee
- - -------------------------------- --------------------- ----------------- --------------------- --------------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $.01 per share 150,000 shares $2.97 $445,500 $131.42
================================ ===================== ================== ===================== =====================
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement also covers such
additional securities as may become issuable to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) The securities registered hereby represent an addition to the 466,000
shares of the Registrant's Class A Common Stock issuable under the
Saratoga Beverage Group, Inc. 1993 Stock Option Plan which were registered
previously on Form S-8 (File No. 33-65356, filed on July 1, 1993).
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The Proposed Maximum Offering Price per share
represents the average of the bid and asked prices reported on the Nasdaq
Stock Market on August 4, 1998.
<PAGE>
EXPLANATORY NOTE
The contents of the Registration Statement on Form S-8 (File
No. 33-65356, filed on July 1, 1993), which is amended by this Post-Effective
Amendment No. 1 to Registration Statement on Form S-8, are hereby incorporated
herein by reference, except as expressly set forth in Item 8 below.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 8. Exhibits
The following exhibits are filed as part of this registration
statement:
Exhibit Number Description
- - -------------- -----------
4.1 Amended and Restated Saratoga Beverage Group, Inc. 1993
Stock Option Plan.
5.1 Opinion of Swidler Berlin Shereff Friedman, LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Swidler Berlin Shereff Friedman, LLP (included
in Exhibit 5.1).
24 Power of Attorney (included in signature page to this
registration statement).
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Saratoga Springs, State of New York, on this
18th day of July, 1998.
SARATOGA BEVERAGE GROUP, INC.
By: /s/ Robin Prever
-------------------------------
Robin Prever
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
whose signature appears below constitutes and appoints Robin Prever and Gayle
Henderson, and each of them (with full power of each of them to act alone), his
or her true and lawful attorneys-in-fact, with full power of substitution and
resubstitution for him or her and on his or her behalf, and in his or her name,
place and stead, in any and all capacities to execute and sign any and all
amendments or post-effective amendments to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, hereby ratifying and confirming all that said
attorneys-in-fact or any of them or their or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof and the
Registrant hereby confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robin Prever President, Chief Executive Officer and July 18, 1998
- - ------------------------ Chairman of the Board
Robin Prever
/s/ Gayle Henderson Chief Financial Officer July 17, 1998
- - ------------------------
Gayle Henderson
/s/ Warren Lichtenstein Director July 18, 1998
- - ------------------------
Warren Lichtenstein
/s/ John A. Morabito Director July 18, 1998
- - ------------------------
John A. Morabito
/s/ Leonard Tobaroff Director July 18, 1998
- - ------------------------
Leonard Toboroff
</TABLE>
II-3
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
-------------
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 Amended and Restated Saratoga Beverage Group, Inc.
1993 Stock Option Plan.
5.1 Opinion of Swidler Berlin Shereff Friedman, LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
<PAGE>
(as amended and restated
to January 1, 1998)
SARATOGA SPRING WATER COMPANY
1993 STOCK OPTION PLAN
1. Purpose. The purposes of the Plan are to ensure the retention
of existing executive personnel, key employees and consultants of the Company,
to attract and retain new executive personnel, key employees and consultants
and to provide additional incentive by permitting such individuals to
participate in the ownership of the Company. The criteria to be utilized by the
Committee in granting awards pursuant to the Plan will be consistent with these
purposes. An additional purpose of the Plan is to build a proprietary interest
among the Company's Non-Employee Directors and thereby secure for the Company's
stockholders the benefits associated with common stock ownership by those who
will oversee the Company's future growth and success. To accomplish such
purposes, the Plan provides that the Company may grant Incentive Stock Options,
Nonqualified Stock Options, or Stock Appreciation Rights.
2. Definitions. For purposes of this Plan:
a. "Agreement" means the written agreement evidencing the grant
of an Option and Stock Appreciation Rights, if applicable, and setting forth
the terms and conditions thereof.
b. "Board" means the Board of Directors of the Company.
c. "Cause" means, unless otherwise defined in the particular
Agreement evidencing the grant of an Option (i) the willful neglect or refusal
to perform the Optionee's duties or responsibilities or the willful taking of
actions which materially impair the Optionee's ability to perform the
Optionee's duties or responsibilities which continues after being brought to
the attention of the Optionee (other than any such failure resulting from the
Optionee's incapacity due to physical or mental illness) or (ii) the willful
act or failure to act by the Optionee which is materially injurious to the
Company which is brought to the attention of the Optionee in writing nor more
than thirty (30) days from the date of its discovery by the Company or the
Board.
d. "Change in Capitalization" means any increase, reduction, or
change or exchange of Shares for a different number or kind of shares or other
securities of the Company by reason of a reclassification, recapitalization,
merger, consolidation, reorganization, issuance of warrants or rights, stock
dividend, stock split or reverse stock split, combination or exchange of
shares, repurchase of shares, change in corporate structure or otherwise.
e. "Change in Control" means one of the following events:
i. any "person" (as defined in Section (d) and
14(d) of the Exchange Act), other than the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of
the Company, or any corporation owned, directly or
<PAGE>
indirectly, by the stockholders of the Company, in substantially the
same proportions as their ownership of stock of the Company, acquires
"beneficial ownership" (as defined in Rule 13d-3 under the Exchange
Act) of securities representing more than 50% of the combined voting
power of the Company; or (ii) during any period of not more than two
consecutive years, individuals who at the beginning of such period
constitute the Board and any new director (other than a director
designated by a person who has entered into an agreement with the
Company to effect a transaction described in subsections 2(e)(i),
2(e)(iii) or 2(e)(iv)) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for a
reason to constitute a majority thereof; or (iii) the stockholders of
the Company approve a merger other than (x) a merger which would
result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity),
in combination which the ownership of any trustee or ocher fiduciary
holding securities under an employee benefit plan of the Company, at
least 50% of the combined voting power of all classes of stock of the
Company or such surviving entity outstanding immediately after such
merger or (y) a merger effected to implement a recapitalization of the
Company (or similar transaction) in which no person acquires more than
50% of the combined voting power of the Company's then outstanding
securities; or (iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or a sale of all or substantially
all of the assets of the Company.
f. "Code" means the Internal Revenue Code of 1986, as amended.
g. "Committee" means the Compensation Committee of the Board or
such other committee appointed by the Board to administer the Plan and to
perform the functions set forth herein; provided that, the composition of such
committee shall at all times satisfy the provisions of Rule 16b-3.
h. "Company" means Saratoga Spring Water Company, a Delaware
corporation.
i. "Disability" means the inability, due to illness or injury,
to engage in any gainful occupation for which the individual is suited by
education, training or experience, which condition continues for at least six
(6) months.
j. "Eligible Person" means any employee, officer or member of
the Board of, and consultants and advisors to, the Company, who has been
designated by the Committee as eligible to receive Options or Stock
Appreciation Rights subject to the conditions set forth herein.
k. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2
<PAGE>
l. "Fair Market Value" per Share as of a particular date means
the last reported sale price of the Shares regular way on such day or, in case
no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way on such day, in either case on the
principal national securities exchange on which the Shares are listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the NASDAQ National Market System or, if the Shares are
not listed or admitted to trading on any national securities exchange or quoted
on such National Market System, the average of the closing bid and asked prices
in the over-the-counter market. If the Shares are not listed or admitted to
trading on any national securities exchange, quoted on such National Market
System or listed in any list of bid and asked prices in the over-the-counter
market, "Fair Market Value" shall mean the value of the Shares as determined in
good faith by the Board.
m. "Incentive Stock Option" means an Option within the meaning
of Section 422 of the Code.
n. "Non-Employee Director" means a member of the Board who is
not an employee of the Company.
o. "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
p. "Option" means an Incentive Stock Option, a Nonqualified
Stock Option, or either or both of them, as the context requires.
q. "Optionee" means a person to whom an Option or Stock
Appreciation Right has been granted under the Plan.
r. "Parent" means any corporation in an unbroken chain of
corporations ending with the Company, if each of the corporations other than
the Company owns stock possessing 50% or more of the total combined voting
power of all classes of stock of one of the other corporations in such chain.
s. "Plan" means the Saratoga Springs Mineral Water Company, Inc.
1993 Stock Option, as amended from time to time.
t. "Public Offering" means the underwritten initial public
offering of Shares by the Company.
u. "Rule 16b-3" means Rule 16b-3, as from time to time in
effect, promulgated by the Securities and Exchange Commission under Section 16
of the Exchange Act, including any successor to such Rule.
v. "Securities Act" means the Securities Act of 1933, as
amended.
3
<PAGE>
w. "Shares" means shares of the Class A Common Stock, par value
$.01 per share, of the Company (including any new, additional or different
stock or securities resulting from a Change in Capitalization).
x. "Stock Appreciation Right" means a right to receive all or
some portion of the increase in the value of Shares as provided in Section 7
hereof.
y. "Subsidiary" means any corporation in an unbroken chain of
corporations, beginning with the Company, if each of the corporations other
than the last corporation in the unbroken chain owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
z. "Ten-Percent Stockholder" means an Eligible Person, who, at
the time an Incentive Stock Option is to be granted to such Eligible Person,
owns (within the meaning of Section 422(b)(6) of the Code) stock possessing
more than ten percent (10%) of the total combined voting power of all classes
of stock of the Company, a Parent or a Subsidiary within the meaning of
Sections 422(e) and 422(f), respectively, of the Code.
3. Administration.
a. The Plan shall be administered by the Committee which shall
hold meetings at such times as may be necessary for the proper administration
of the Plan. The Committee shall keep minutes of its meetings. A majority of
the Committee shall constitute a quorum and a majority of a quorum may
authorize any action. Any decision reduced to writing and signed by a majority
of the members of the Committee shall be fully effective as if it had been made
at a meeting duly held. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith with respect
to the Plan, Options, or Stock Appreciation Rights and all members of the
Committee shall be fully indemnified by the Company with respect to any such
action, determination or interpretation. The Company shall pay all expenses
incurred in the administration of the Plan.
b. Subject to the express terms and conditions set forth herein,
the Committee shall have the power from time to time:
i. to determine those Eligible Persons to whom
Options shall be granted under the Plan and the number of
Nonqualified Options, Stock Appreciation Rights and/or Incentive
Stock Options to be granted to each Eligible Person and to
prescribe the terms and conditions (which need not be identical)
of each Option and Stock Appreciation Right, including the
purchase price per Share of each Option;
ii. to construe and interpret the Plan and the
Options and Stock Appreciation Rights granted hereunder and to
establish, amend and revoke rules and regulations for the
administration of the Plan, including, but not limited to,
correcting any defect or supplying any omission, or reconciling
any inconsistency in the Plan or in any Agreement, in the manner
and to the extent it shall deem necessary or advisable to make
the Plan fully effective, and all decisions and determinations
by the Committee in the
4
<PAGE>
exercise of this power shall be final and binding upon the
Company and the Optionees, as the case may be;
iii. to determine the duration and purposes for
leaves of absence which may be granted to an Optionee without
constituting a termination of employment or service for purposes
of the Plan; and
iv. generally, to exercise such powers and to
perform such acts as are deemed necessary or advisable to
promote the best interests of the Company with respect to the
Plan.
4. Stock Subject to Plan.
a. The maximum number of Shares that may be issued or
transferred pursuant to Options or Stock Appreciation Rights is 616,000 (or the
number and kind of shares of stock or other securities which are substituted
for those Shares or to which those Shares are adjusted upon a Change in
Capitalization), and the Company shall reserve for the purposes of the Plan,
out of its authorized but unissued Shares or out of Shares held in the
Company's treasury, or partly out of each, such number of Shares as shall be
determined by the Board.
b. Whenever an outstanding Option or portion thereof expires, is
canceled or is otherwise terminated (other than by exercise of the Option or
any related Stock Appreciation Right), the Shares allocable to the unexercised
portion of such Option may again be the subject of Options and Stock
Appreciation Rights hereunder.
5. Eligibility. Subject to the provisions of the Plan, the
Committee shall have full and final authority to select those Eligible Persons
who will receive Options and Stock Appreciation Rights.
6. Options. The Committee may grant Options in accordance with
the Plan, the terms and conditions of which shall be set forth in an Agreement.
Each Option and Agreement shall be subject to the following conditions:
a. Purchase Price. The purchase price or the manner in which the
purchase price is to be determined for Shares under each Option shall be
determined by the Compensation Committee and set forth in the Agreement;
provided, that, the purchase price per Share under an Incentive Option shall
not be less than 100% of the Fair Market Value of a Share at the time the
Option is granted, or 110% of the Fair Market Value of a Share at the time the
Option is granted in the case of an Incentive Stock Option granted to a
Ten-Percent Stockholder. To the extent that, as of the date of grant, the
aggregate Fair Market Value of the Shares for which Incentive Stock Options
become exercisable for the first time by an Optionee during any calendar year
exceeds $100,000, the portion of such Option which is in excess of the $100,000
limitation will be treated as a Nonqualified Stock Option.
b. Duration. Options granted hereunder shall be for such term as
the Committee shall determine, provided that (i) no Incentive Stock Option
shall be
5
<PAGE>
exercisable after the expiration of ten (10) years from the date it is granted
(five (5) years in the case of an Incentive Stock Option granted to a
Ten-Percent Stockholder) and (ii) no Nonqualified Stock Option shall be
exercisable after the expiration of ten (10) years and one (1) day from the
date it is granted. The Committee may, subsequent to the granting of any
Option, extend the term thereof but in no event shall the term as so extended
exceed the maximum term provided for in the preceding sentence.
c. Non-transferability. No Option granted hereunder shall be
transferable by the Optionee to whom granted otherwise than by will or the laws
of descent and distribution, and an Option may be exercised during the lifetime
of such Optionee only by the Optionee or such Optionee's guardian or legal
representative. The terms of such Option shall be binding upon the
beneficiaries, executors, administrators, heirs and successors of the Optionee.
d. Vesting. Subject to Section 6(e) hereof, unless otherwise set
forth in the Agreement, each Option shall become exercisable as to 33-1/3
percent of the Shares covered by the Option on the first anniversary of the
date the Option was granted and as to an additional 33-1/3 percent of the
Shares covered by the Option on each of the following two (2) anniversaries of
such date of grant. To the extent not exercised, installments shall accumulate
and be exercisable, in whole or in part, at any time after becoming
exercisable, but not later than the date the Option expires. The Committee may
accelerate the exercisability of any Option or portion thereof at the time of
the grant of such Option or at any subsequent time.
e. Accelerated Vesting. Notwithstanding the provisions of
subsection (d) above, unless otherwise set forth in the Agreement, each Option
granted to an Optionee shall become immediately exercisable in full upon the
occurrence of a Change in Control.
f. Termination of Employment /Service. In the event that an
Optionee ceases employment with or service to the Company, any outstanding
Options held by such Optionee shall, unless the Agreement evidencing such
Option provides otherwise, terminate as follows:
i. If the Optionee's termination of employment or
service is due to his death, Disability or retirement, the Option (to
the extent exercisable at the time of the Optionee's termination of
employment) shall be exercisable for a period of one (1) year
following such termination, and shall thereafter terminate;
ii. If the Optionee's termination of employment or
service is by the Company for Cause, the Option shall terminate on the
date of the Optionee's termination of employment or service; and
iii. If the Optionee's termination of employment
or service is for any other reason, the Option (to the extent
exercisable at the time of the Optionee's termination of employment or
service) shall be exercisable for a period of ninety (90) days
following such termination, and shall thereafter terminate.
6
<PAGE>
Notwithstanding the foregoing, the Committee may provide, either
at the time an Option is granted or thereafter, that the Option may be
exercised after the periods provided for in this Section 6(f), but in no event
beyond the term of the Option.
g. Method of Exercise. The exercise of an option shall be made
only by a written notice delivered to the Secretary of the Company at the
Company's principal executive office, specifying the number of whole Shares to
be purchased and accompanied by payment therefor and otherwise in accordance
with the Agreement pursuant to which the Option was granted. The purchase price
for any Shares purchased pursuant to the exercise of an Option shall be paid in
full upon such exercise in cash, by check, or, at the discretion of the
Committee and upon such terms and conditions as the Committee shall approve, by
transferring Shares to the Company or by any other means that the Committee
determines (including, but not limited to, a cashless exercise procedure
established by the Company). Any Shares transferred to the Company as payment
of the purchase price under an Option shall be valued at their Fair Market
Value on the day preceding the date of exercise of such Option. If requested by
the Committee, the Optionee shall deliver the Agreement evidencing the Option
and the Agreement evidencing any related Stock Appreciation Right to the
Secretary of the Company who shall endorse thereon a notation of such exercise
and return such Agreement, to the Optionee. Not less than 100 Shares may be
purchased at any time upon the exercise of an Option unless the number of
Shares so purchased constitutes the total number of Shares then purchasable
under the Option.
h. Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless and until
(i) the Option shall have been exercised pursuant to the terms thereof, (ii)
the Company shall have issued and delivered the Shares to the Optionee, and
(iii) the Optionee's name shall have been entered as a stockholder of record on
the books of the Company. Thereupon, the Optionee shall have full voting,
dividend and other ownership rights with respect to such Shares.
7. Stock Appreciation Rights. The Committee may, in its discretion in
connection with the grant of an Option, grant Stock Appreciation Rights in
accordance with the Plan, the terms and conditions of which shall be set forth
in an Agreement. A Stock Appreciation Right shall cover the same shares covered
by the Option (or such lesser number of shares as the Committee may determine)
and shall, except as provided in this Section 7, be subject to the same terms
and conditions as the related Option.
a. Stock Appreciation Rights Related to an Option.
i. Time of Grant. A Stock Appreciation Right may
be granted either at the time of grant, or at any time
thereafter during the term of the Option; provided, however,
that Stock Appreciation Rights related to Incentive Stock
Options may only be granted at the time of grant of the Option.
ii. Payment. A Stock Appreciation Right shall
entitle the holder thereof, upon exercise of the Stock
Appreciation Right or any portion thereof, to receive payment of
an amount computed pursuant to Section 7(a)(iv).
7
<PAGE>
iii. Exercise. A Stock Appreciation Right shall
be exercisable at such time or times and only to the extent that
the related Option is exercisable, and will not be transferable
except to the extent the related Option may be transferable. A
Stock Appreciation Right granted in connection with an Incentive
Stock Option shall be exercisable only if the Fair Market Value
of a Share on the date of exercise exceeds the purchase price
specified in the related Incentive Stock Option.
iv. Amount Payable. Upon the exercise of a Stock
Appreciation Right, the Optionee shall be entitled to receive an
amount determined by multiplying (A) the excess of the Fair
Market Value of a Share on the date of exercise of such Stock
Appreciation Right over the per Share purchase price under the
related Option, by (B) the number of Shares as to which such
Stock Appreciation Right is being exercised. Notwithstanding the
foregoing, the Committee may limit in any manner the amount
payable with respect to any Stock Appreciation Right by
including such a limit at the time it is granted.
v. Treatment of Related Options and Stock
Appreciation Rights Upon Exercise. Upon the exercise of a Stock
Appreciation Right, the related Option shall be automatically
cancelled to the extent of the number of Shares as to which the
Stock Appreciation Right is exercised and upon the exercise of
an Option granted in connection with a Stock Appreciation Right,
the Stock Appreciation Right shall be automatically cancelled to
the extent of the number of Shares as to which the Option is
exercised or surrendered.
b. Method of Exercise. Stock Appreciation Rights shall be
exercised by an Optionee only by a written notice delivered in person or by
mail to the Secretary of the Company at the Company's principal executive
office, specifying the number of Shares with respect to which the Stock
Appreciation Right is being exercised. If requested by the Committee, the
Grantee shall deliver the Agreement evidencing the Stock Appreciation Right
being exercised and the Agreement evidencing any related Option to the
Secretary of the Company who shall endorse thereon a notation of such exercise
and return such Agreements to the Grantee.
c. Form of Payment. Payment of the amount determined under
Section 7(a)(iv), may be made solely in whole Shares in a number determined
based upon their Fair Market Value on the date of exercise of the Stock
Appreciation Right or, alternatively, at the sole discretion of the Committee,
solely in cash, or in a combination of cash and Shares as the Committee deems
advisable. In the event that a Stock Appreciation Right is exercised within the
sixty-day period following a Change in Control, any amount payable shall be
solely in cash. If the Committee decides to make full payment in Shares, and
the amount payable results in a fractional Share, payment for the fractional
Share will be made in cash. Notwithstanding the foregoing, to the extent
required by Rule 16b-3 of the Exchange Act no payment in the form of cash may
be made upon the exercise of a Stock Appreciation Right pursuant to Section
7(a)(iv) to an officer of the Company who is subject to Section 16(b) of the
Exchange Act, unless the exercise of such Stock Appreciation Right is made
during the period beginning on the third
8
<PAGE>
business day and ending on the twelfth business day following the date of
release for publication of the Company's quarterly or annual statements of
earnings.
8. Loans.
a. The Company may make loans to an Optionee in connection with
the exercise of an Option, subject to the following terms and conditions and
such other terms and conditions not inconsistent with the Plan including the
rate of interest, if any, as the Committee shall impose from time to time.
b. No loan made under the Plan shall exceed the sum of (i) the
aggregate purchase price payable pursuant to the Option with respect to which
the loans made, plus (ii) the amount of the reasonably estimated income taxes
payable by the Optionee with respect to the exercise of the Option reduced by
(iii) the aggregate par value of the Shares being acquired pursuant to exercise
of the Option. In no event may any such loan exceed the Fair Market Value, at
the date of exercise, of the Shares received pursuant to such exercise.
c. No loan shall have an initial term exceeding ten (10) years;
provided, that loans under the Plan shall be renewable at the discretion of the
Committee; and provided, further, that the indebtedness under each loan shall
become due and payable as the case may be, on a date no later than (i) one (1)
year after termination of the Optionee's employment or service due to death,
retirement or Disability, or (ii) the date of termination of the Optionee's
employment or service for any reason other than death, retirement or
Disability.
d. Loans under the Plan may be satisfied by an Optionee, as
determined by the Committee, in cash or, with the consent of the Committee, in
whole or in part by the transfer to the Company of Shares whose Fair Market
Value on the date of such payment is equal to part or all of the outstanding
balance of such loan.
e. A loan shall be secured by a pledge of Shares with a Fair
Market Value of not less than the principal amount of the loan. After any
repayment of a loan, pledged Shares no longer required as security may be
released to the Optionee.
f. Every loan shall meet all applicable laws, regulations and
rules of the Federal Reserve Board and any other governmental agency having
jurisdiction.
9. Adjustment upon Changes in Capitalization.
a. In the event of a Change in Capitalization, the Committee
shall conclusively determine the appropriate adjustments, if any, to the
maximum number and class of shares of stock with respect to which Options and
Stock Appreciation Rights may be granted under the Plan, the number and class
of shares of stock as to which Options and Stock Appreciation Rights have been
granted under the Plan, and the purchase price therefor, if applicable.
9
<PAGE>
b. Any such adjustment in the Shares or other securities subject
to outstanding Incentive Stock Options (including any adjustments in the
purchase price) shall be made in such manner as not to constitute a
modification as defined by Section 424(h)(3) of the Code and only to the extent
otherwise permitted by Sections 422 and 424 of the Code.
10. Non-Employee Director Options. Notwithstanding any of the
other provisions of the Plan to the contrary, the provisions of this Section 10
shall apply only to grants of Options to Non-Employee Directors. Except as set
forth in this Section 10, the other provisions of the Plan shall apply to
grants of Options to Non-Employee Directors to the extent not inconsistent with
this Section. For purposes of interpreting Section 6 of the Plan, a Non-
Employee Director's service as a member of the Board shall be deemed to be
employment with the Company.
a. General. Non-Employee Directors shall receive Non-Qualified
Stock Options in accordance with this Section 10. The purchase price per Share
purchasable under Options granted to Non-Employee Directors shall be the Fair
Market Value of a Share on the date of grant; provided that, with respect to
Options granted under Section 10(b) hereof, the Fair Market Value shall be the
purchase price per Share pursuant to the Public Offering. No Agreement with any
Non-Employee Director may alter the provisions of this Section and no Option
granted to a Non-Employee Director may be subject to a discretionary
acceleration of exercisability.
b. Options Upon Public Offering. Upon the consumption of the
Public Offering, each Non-Employee Director as of such date shall be granted
automatically, without action by the Committee, an Option (the "IPO Option") to
purchase 2,000 Shares.
c. Grants to New Non-Employee Directors. Each Non-Employee
Director who, after consummation of the Public Offering, is elected to the
Board for the first time by the stockholders of the Company at any special or
annual meeting of stockholders, will, at the time such director is elected and
duly qualified, be granted automatically, without action by the Committee, an
Option (the "Initial Option") to purchase 2,000 Shares.
d. Grants to Continuing Directors. On the date of each annual
meeting of stockholders subsequent to January l, 1994, each continuing
Non-Employee Director (i.e., a director not being elected by stockholders for
the first time) will be granted automatically, without action by the Committee,
an Option (the "Annual Option") to purchase 1,000 Shares.
e. Vesting. Each IPO Option and each Initial Option shall be
exercisable as to 33-l/3 percent of the Shares covered by the Option on the
date each such Option is granted and as to an additional 33-l/3 percent of the
Shares covered by each such Option on each of the following two anniversaries
of such dates of grant. Each Annual Option shall be exercisable as to 50
percent of the Shares covered by the Annual Option on the date the Option is
granted and as to an additional 50 percent of the Shares covered by such Option
on the following anniversary of such date of grant. Notwithstanding the
foregoing, each IPO Option, Initial Option and Annual Option shall be
immediately exercisable in full upon a Change in Control. To the extent not
exercised, installments shall accumulate and be exercisable, in whole or in
part,
10
<PAGE>
at any time after becoming exercisable, but not later than the date the Option
expires. Sections 6(d), 6(e) and 6(f) hereof shall not apply to Options granted
to Non-Employee Directors.
f. Duration. Subject to the immediately following sentence, each
Option granted to a Non-Employee Director shall be for a term of 10 years and 1
day. Upon the cessation of a Non-Employee Director's membership on the Board
for any reason, Options granted to such Non-Employee Director shall expire upon
the earlier of (i) three (3) months from the date of such cessation of Board
membership or (ii) expiration of the term of the Option. The Committee may not
provide for an extended exercise period beyond the periods set forth in this
Section.
11. Release of Financial Information. A copy of the Company's annual
report to stockholders shall be delivered to each Optionee if and at the time
any such report is distributed to the Company's stockholders. Upon request by
any Optionee, the Company shall furnish to such Optionee a copy of its most
recent annual report and each quarterly report and current report filed under
the Exchange Act since the end of the Company's prior fiscal year.
12. Termination and Amendment of the Plan. The Plan shall terminate on
the day preceding the tenth anniversary of its effective date, except with
respect to Options and Stock Appreciation Rights outstanding on such date, and
no Options or Stock Appreciation Rights may be granted thereafter. The Board
may sooner terminate or amend the Plan at any time, and from time to time;
provided that, except as provided in Section 9 hereof, no amendment shall be
effective unless approved by the stockholders of the Company where stockholder
approval of such amendment is required (a) to comply with Rule 16b-3 under the
Exchange Act or (b) to comply with any other law, regulation or stock exchange
rule. Notwithstanding anything in this Section 12 to the contrary, Section 10
shall not be amended more than once in any six-month period, other than to
comport with changes in the Code, the Employee Retirement Income Security Act
of 1974, as amended, or the rules or regulations thereunder.
Except as provided in Section 9 hereof, rights and obligations under
any Option granted before any amendment of the Plan shall not be adversely
altered or impaired by such amendment, except with the consent of the Optionee.
13. Non-Exclusivity of the Plan. The adoption of the Plan by the Board
shall not be construed as amending, modifying or rescinding any previously
approved incentive arrangement or as creating any limitations on the power of
the Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either applicable generally or
only in specific cases.
14. Limitation of Liability. As illustrative of the limitations of
liability of the Company, but not intended to be exhaustive thereof, notching
in the Plan shall be construed to:
a. give any person any right to be granted an Option or Stock
Appreciation Right other than at the sole discretion of the Committee;
11
<PAGE>
b. give any person any rights whatsoever with respect to Shares
except as specifically provided in the Plan;
c. limit in any way the right of the Company to terminate the
employment or service of any person at any time; or
d. be evidence of any agreement or understanding, expressed or
implied, that the Company will employ any person in any particular position, at
any particular rate of compensation or for any particular period of time.
15. Regulations and Other Approvals; Governing Law.
a. This Plan and the rights of all persons claiming hereunder
shall be construed and determined in accordance with the laws of the State of
Delaware without giving effect to the choice of law principles thereof.
b. The obligation of the Company to sell or deliver Shares with
respect to Options granted under the Plan shall be subject to all applicable
laws, rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
c. Any provisions of the Plan inconsistent with Rule 16b-3 under
the Exchange Act shall be inoperative and shall not affect the validity of the
Plan.
d. Except as otherwise provided in Section 12, the Board may
make such changes as may be necessary or appropriate to comply with the rules
and regulations of any government authority or to obtain for Optionees granted
Incentive Stock Options, the tax benefits under the applicable provisions of
the Code and regulations promulgated thereunder.
e. Each Option and Stock Appreciation Right is subject to the
requirement that, if at any time the Committee determines, in its absolute
discretion, that the listing, registration or qualification of Shares issuable
pursuant to the Plan is required by any securities exchange or under any state
or federal law, or the consent or approval of any governmental regulatory body
is necessary or desirable as a condition of, or in connection with, the grant
of an Option or Stock Appreciation Right or the issuance of Shares, no Options
or Stock Appreciation Rights shall be granted or payment made or Shares issued,
in whole or in part, unless listing, registration, qualification, consent or
approval has been effected or obtained free of any conditions as acceptable to
the Committee.
f. In the event that the disposition of Shares acquired pursuant
to the Plan is not covered by a then current registration statement under the
Securities Act and is not otherwise exempt from such registration, such Shares
shall be restricted against transfer to the extent required by the Securities
Act or regulations thereunder, and the Committee may require an Optionee
receiving Shares pursuant to the Plan, as a condition precedent to receipt of
such Shares, to represent to the Company in writing that the Shares acquired by
such Optionee are acquired for investment only and not with a view to
distribution.
12
<PAGE>
16. Miscellaneous.
a. Multiple Agreements. The terms of each Option or Stock
Appreciation Right may differ from other Options or Stock Appreciation Rights
granted under the Plan at the same time, or at any other time. The Committee
may also grant more than one Option or Stock Appreciation Right to a given
Optionee during the term of the Plan, either in addition to, or in substitution
for, one or more Options or Stock Appreciation Rights previously granted to
that Optionee. The grant of multiple Options or Stock Appreciation Rights may
be evidenced by a single Agreement or multiple Agreements, as determined by the
Committee.
b. Withholding of Taxes. The Company shall have the right to
reduce from any payment of cash to any Optionee an amount equal to the federal,
state and local income taxes and other amounts required by law to be withheld
with respect to any Option or Stock Appreciation Right. Notwithstanding
anything to the contrary contained herein, if an Optionee is entitled to
receive Shares upon exercise of an Option or Stock Appreciation Right, the
Company shall have the right to require such Optionee, prior to the delivery of
such Shares, to pay to the Company the amount of any federal, state or local
income taxes and other amounts which the Company is required by law to
withhold. The Agreement evidencing any Incentive Stock Options granted under
this Plan shall provide that if the Optionee makes a disposition, within the
meaning of Section 424(c) of the Code and regulations promulgated thereunder,
of any Share or Shares issued to such Optionee pursuant to such Optionee's
exercise of the Incentive Stock Option, and such disposition occurs within the
two-year period commencing on the day after the date of grant of such Option or
within the one-year period commencing on the day after the date of transfer of
the Share or Shares to the Optionee pursuant to the exercise of such Option
such Optionee shall, within ten (10) days of such disposition, notify the
Company thereof and thereafter immediately deliver to the Company any amount of
federal, state or local income taxes and other amounts which the Company
informs the Optionee the Company is required to withhold.
c. Designation of Beneficiary. Each Optionee may, with the
consent of the Committee, designate a person or persons to receive in the event
of such Optionee's death, any Option or Stock Appreciation Right or any amount
of Shares payable pursuant thereto, to which such Optionee would then be
entitled. Such designation will be made upon forms supplied by and delivered to
the Company and may be revoked or changed in writing. In the event of the death
of an Optionee and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such Optionee's death, the Company shall
deliver such Options, Stock Appreciation Rights and/or amounts payable to the
executor or administrator of the estate of the Optionee, or if no such executor
or administrator has been appointed (to the knowledge of the Company), the
Company, in its discretion, may deliver such Options, Stock Appreciation Rights
and/or amounts payable to the spouse or to any one or more dependents or
relatives of the Optionee, or if no spouse, dependent or relative is known to
the Company, then to such other person as the Company may designate.
17. Effective Date. The effective date of the Plan is the date the
Public Offering is consummated.
13
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August 5, 1998
Saratoga Beverage Group, Inc.
11 Geyser Road
Saratoga Springs, New York 12866
Ladies and Gentlemen:
On the date hereof, Saratoga Beverage Group, Inc., a Delaware
corporation (the "Company"), intends to transmit for filing with the Securities
and Exchange Commission a Registration Statement on Form S-8 (the "Registration
Statement") relating to 150,000 shares (the "Shares") of Class A common stock,
par value $.01 per share, of the Company ("Common Stock"), that may be issued
from time to time upon the exercise of options granted pursuant to the Amended
and Restated Saratoga Beverage Group, Inc. 1993 Stock Option Plan (the "Amended
1993 Plan"), which shares of Common Stock are in addition to 466,000 shares of
Common Stock previously registered with respect to the Amended 1993 Plan. This
opinion is an exhibit to the Registration Statement.
We have acted as counsel to the Company with respect to certain
corporate and securities matters and, in such capacity, we are familiar with
the various corporate and other proceedings taken by or on behalf of the
Company with respect to the proposed offer and sale of the Shares as
contemplated by the Registration Statement. However, we are not general counsel
to the Company and would not ordinarily be familiar with or aware of matters
relating to the Company unless they are brought to our attention by
representatives of the Company. We have examined copies of the Company's
Certificate of Incorporation, its by-laws as presently in effect, minutes of
meetings of its directors, stockholders and committees and such other documents
and instruments relating to the Company and the proposed offering of the Shares
as we have deemed necessary under the circumstances, in each case signed,
certified or otherwise proven to our satisfaction to be genuine. In our
examination of all such agreements, documents, certificates and instruments, we
have assumed the genuineness of all signatures and the authenticity of all
agreements, documents, certificates and instruments submitted to us as
originals and the conformity with the originals of all agreements, instruments,
documents and certificates submitted to us as copies. Insofar as this opinion
relates to securities to be issued in the future, we have assumed that all
applicable laws, rules and regulations in effect at the time of such issuance
are the same as such laws, rules and regulations in effect as of the date
hereof.
We note that we are members of the Bar of the State of New York
and that we are not admitted to the Bar in the State of Delaware. To the extent
that the opinions expressed herein involve the law of the State of Delaware,
such opinions are based solely upon our reading of the Delaware General
Corporation Law as reported by Corporation Service Company Legal and Financial
Services, without any investigation of the legal decisions or other statutory
provisions in effect in such state that may relate to the opinions expressed
herein.
Based on the foregoing, and subject to and in reliance on the
accuracy and completeness of the information relevant thereto provided to us,
it is our opinion that the Shares to be issued upon the exercise of options
granted pursuant to the Amended 1993 Plan have been duly authorized and
(subject to the effectiveness of the Registration Statement and compliance with
applicable state securities laws),
<PAGE>
Saratoga Beverage Group, Inc.
August 5, 1998
Page 2
when issued in accordance with the terms of the Amended 1993 Plan and any
option agreements executed pursuant thereto, will be legally and validly
issued, fully paid and non-assessable.
It should be understood that nothing in this opinion is intended
to apply to any disposition of any Shares which any participant in the Amended
1993 Plan might propose to make.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and as an exhibit to any filing made by the Company
under the securities or "Blue Sky" laws of any state.
This opinion is furnished to you in connection with the filing of
the Registration Statement, and is not to be used, circulated, quoted or
otherwise relied upon for any other purpose, except as expressly provided in
the preceding paragraph, without our express written consent, and no party
other than you is entitled to rely on it. This opinion is rendered to you as of
the date hereof and we undertake no obligation to advise you of any change,
whether legal or factual, after the date hereof.
Very truly yours,
/s/ SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
SBSF, LLP:CIW:GA:AMF
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Saratoga Beverage Group, Inc. and Subsidiary on Post-Effective Amendment No. 1
to From S-8 (Amended and Restated Saratoga Beverage Group, Inc. 1993 Stock
Option Plan) of our report dated February 20, 1998, on our audits of the
consolidated financial statements of Saratoga Beverage Group, Inc. and
Subsidiary as of December 31, 1997 and 1996, and for the years ended December
31, 1997 and 1996, which report is included in the Company's 1997 Annual Report
on Form 10-KSB.
/s/PricewaterhouseCoopers LLP
Albany, New York
August 3, 1998
