SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)
SARATOGA BEVERAGE GROUP, INC.
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(Name of issuer)
COMMON STOCK
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(Title of class of securities)
803436 10 4
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(CUSIP number)
ROBERT FRIEDMAN, ESQ.
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
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(Name, address and telephone number of person
authorized to receive notices and communications)
February 12, 1998
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
/ /.
Note. Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
(Continued on following pages)
(Page 1 of 9 Pages)
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CUSIP No. 803436 10 4 13D Page 2 of 9 Pages
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================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Carl T. Wolf
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0 shares
OWNED BY
EACH
REPORTING
PERSON WITH
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8 SHARED VOTING POWER
353,000 shares
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9 SOLE DISPOSITIVE POWER
0 shares
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10 SHARED DISPOSITIVE POWER
353,000 shares
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
353,000 shares
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.3%
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14 TYPE OF REPORTING PERSON*
IN
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CUSIP No. 803436 10 4 13D Page 3 of 9 Pages
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Marion Wolf
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0 shares
OWNED BY
EACH
REPORTING
PERSON WITH
-----------------------------------------------------------------
8 SHARED VOTING POWER
353,000 shares
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0 shares
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
353,000 shares
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
353,000 shares
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.3%
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14 TYPE OF REPORTING PERSON*
IN
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CUSIP No. 803436 10 4 13D Page 4 of 9 Pages
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The following constitutes the Schedule 13D filed by the undersigned
(the "Schedule 13D").
ITEM 1. SECURITY AND ISSUER.
This Statement relates to the Class A Common Stock, $0.01 par
value per share ("Common Stock"), of Saratoga Beverage Group, Inc. (the
"Issuer"). The principal executive offices of the Issuer are located at 11
Geyser Road, Saratoga Springs, New York 12866.
ITEM 2. IDENTITY AND BACKGROUND.
(a) This statement is filed by Carl T. Wolf and Marion
Wolf (collectively, the "Reporting Persons").
(b) The principal residence of the Reporting Persons is 627
Inwood Lane, South Orange, New Jersey 07079.
(c) The principal occupation of the Reporting Persons is as
private investors. Carl T. Wolf is also a Director and Co- Chairman of the Board
of the Issuer.
(d) The Reporting Persons have not, during the last five
years, been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) The Reporting Persons have not, during the last five
years, been party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
(f) The Reporting Persons are citizens of the United States of
America.
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CUSIP No. 803436 10 4 13D Page 5 of 9 Pages
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ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On February 11, 1998, the Reporting Persons acquired 5,000
shares of Common Stock in an open market purchase at a price of $3.0625 per
share.
On February 12, 1998, Carl T. Wolf entered into a Securities
Purchase Agreement with the Issuer (the "Issuer Securities Purchase Agreement")
whereby Carl T. Wolf purchased 150,000 shares of Common Stock at a price of
$2.25 per share. These shares are to be issued to Carl T. Wolf and his wife,
Marian Wolf. In addition, Carl T. Wolf entered into an Option Agreement with the
Issuer and was granted options to purchase an additional 200,000 shares of
Common Stock at a price of $2.875 per share. The options are exercisable in
installments of 100,000 shares on each of February 4, 1998 and February 4, 1999.
On February 12, 1998, Carl T. Wolf entered into a Securities
Purchase Agreement with Anthony Malatino whereby Carl T. Wolf purchased from
Anthony Malatino 83,000 shares of Common Stock at a price of $3.00 per share.
These shares are to be issued to Carl T. Wolf and his wife, Marian Wolf.
On February 12, 1998, the Reporting Persons acquired 15,000
shares of Common Stock in an open market purchase at a price of $3.0625 per
share.
All of the shares acquired in the foregoing transactions are
being held jointly by the Reporting Persons. The aggregate purchase price for
all the transactions listed in Item 3 was $647,750. The funds for the purchases
came from the personal funds of the Reporting Persons.
ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Persons purchased the shares of Common Stock for
investment purposes. The Reporting Persons have no present plans or proposals
which would relate to or result in any of the matters set forth in subparagraphs
(a) - (j) of Item 4 of Schedule 13D. The Reporting Persons would, however,
consider the purchase of additional shares from the Issuer if they were to
become available.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The aggregate percentage of Common Stock reported to be
owned by the Reporting Persons is based upon 2,657,039 shares, which is the
total number of shares of Common Stock outstanding as of February 12, 1998 as
represented by the Issuer in the Issuer Securities Purchase Agreement, plus the
shares issued to Carl T. Wolf and all currently exercisable options granted to
Carl T. Wolf pursuant to such agreement.
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CUSIP No. 803436 10 4 13D Page 6 of 9 Pages
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As of the close of business on February 19, 1998, the
Reporting Persons beneficially own 353,000 shares of Common Stock, constituting
approximately 13.3% of the shares outstanding.
(b) The Reporting Persons have the shared power to vote and
dispose of the shares reported in this Schedule 13D.
(c) Other than as set forth in "Item 3. Source and Amount of
Funds on Other Consideration," there have been no other transactions in shares
of Common Stock of the Issuer by the Reporting Person.
(d) No person other than the Reporting Persons are known to
have the right to receive, or the power to direct the receipt of dividends from,
or proceeds from the sale of, such shares of Common Stock.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
There are no contracts, arrangements or understandings between
the Reporting Person and any other Person with respect to the securities of the
Issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
(a) Securities Purchase Agreement by and between Saratoga
Beverage Group, Inc. and Carl T. Wolf dated February
12, 1998.
(b) Option Agreement by and between Saratoga Beverage
Group, Inc. and Carl T. Wolf dated February 12, 1998.
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CUSIP No. 803436 10 4 13D Page 7 of 9 Pages
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(c) Securities Purchase Agreement by and between Anthony
Malatino and Carl T. Wolf dated February 12, 1998.
(d) Joint Filing Agreement
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CUSIP No. 803436 10 4 13D Page 8 of 9 Pages
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SIGNATURES
After reasonable inquiry and to the best of his knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 20, 1998 Carl T. Wolf
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Carl T. Wolf
Dated: February 20, 1998 Marion Wolf
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Marion Wolf
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CUSIP No. 803436 10 4 13D Page 9 of 9 Pages
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EXHIBIT INDEX
EXHIBIT
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1. Securities Purchase Agreement by and between Saratoga
Beverage Group, Inc. and Carl T. Wolf dated February 12,
1998.
2. Option Agreement by and between Saratoga Beverage Group, Inc.
and Carl T. Wolf dated February 12, 1998.
3. Securities Purchase Agreement by and between Anthony Malatino
and Carl T. Wolf dated February 12, 1998.
4. Joint Filing Agreement
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of February 12, 1998 by and between Saratoga Beverage Group,
Inc., a Delaware corporation (the "Company"), and Carl T. Wolf, a resident of
South Orange, New Jersey (the "Purchaser").
WHEREAS, the Company is desirous of selling, and the Purchaser is
desirous of acquiring, 150,000 shares of the Company's Class A common stock,
$.01 par value per share (the "Class A Common Stock"), for a per share purchase
price of $2.25 per share of Class A Common Stock (in the aggregate, the
"Purchase Price");
WHEREAS, on February 4, 1998, the Board of Directors appointed the
Purchaser to be a director of the Company and, as such, to act as co-Chairman of
the Board pursuant to which the Purchaser shall spend approximately 15% of his
business time;
WHEREAS, on February 4, 1998, in connection with the Purchaser's
appointment as a director, the Purchaser waived his right to receive options
under the Company's 1993 Stock Option Plan (the "1993 Plan") and was granted
options (the "Options") outside of the 1993 Plan to purchase an aggregate of
200,000 shares of Class A Common Stock at a per share purchase price of $2.875;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Purchaser hereby agree as follows:
1. PURCHASE AND SALE.
1.1 PURCHASE AND SALE OF SECURITIES.
(a) The Company agrees to sell to the Purchaser, and upon and
subject to the terms and conditions hereof and, in reliance upon the
representations and warranties of the Company, the Purchaser agrees to purchase
from the Company, the Shares for the Purchase Price.
(b) The Purchaser hereby acknowledges receipt of the Option, a
copy of which is annexed hereto as Exhibit A.
1.2 CLOSING. The sale of the Shares by the Company to the Purchase
shall take place at a closing (the "Closing"), to be held simultaneously with
the execution of this Agreement (the "Closing Date"). On the Closing Date, the
Company shall deliver to the Purchaser the Shares, free and clear of any pledge,
lien, security interest, mortgage, charge, adverse claim of ownership or use, or
other encumbrance of any kind (each, an "Encumbrances"), against payment of the
Purchase Price. The Company shall cause a certificate evidencing the Shares to
be issued to the Purchaser as soon as practicable after the Closing.
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Purchaser as follows:
2.1 Organization and Qualification. The Company is a corporation duly
incorporated, organized, validly existing and in good standing under the laws of
the State of Delaware, and the Company has the requisite corporate power and
authority to own its properties and CARRY ON ITS BUSINESS as now being
conducted. The Company is duly qualified as a foreign corporation to do
business, and is in good standing, in each other jurisdiction where the
character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary, except to the extent that any
such failure so to qualify is not reasonably likely, individually or in the
aggregate, to have a change in, or effect on, the business of the Company, as it
is currently conducted, that is or is reasonably likely to be materially adverse
to the business, prospects, property, condition (financial or otherwise) or
operations of the Company (a "Material Adverse Effect").
2.2 AUTHORIZED CAPITAL. The authorized capital stock of the Company
consists of 50,000,000 shares of Class A Common Stock, 2,000,000 shares of the
Company's Class B common stock, $.01 par value per share ("Class B Common
Stock") and 5,000,000 shares of preferred stock, $.01 par value, of the Company.
As of February 9, 1998, 2,407,039 shares of Class A Common Stock, 562,055 shares
of Class B Common Stock and no shares of preferred stock of the Company were
issued and outstanding. As of February 9, 1998, options and warrants exercisable
to purchase 670,841 and 167,680 shares of Class A Common Stock, respectively,
were outstanding, and a promissory note convertible into 428,571 shares of Class
A Common Stock was outstanding.
2.3 AUTHORITY. The Company has all necessary corporate power and
authority to enter into this Agreement and the Option, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby and
thereby. The Company has taken all necessary corporate action to appoint the
Purchaser, effective February 4, 1998, as a director of the Company and, as
such, as co-Chairman of the Board. The Company has taken all necessary corporate
action to authorize the execution, delivery and performance by it of this
Agreement, the Option and all other documents or instruments required to
consummate the transactions contemplated hereby and thereby. This Agreement and
the Option have been duly executed and delivered by the Company and, assuming
due authorization, execution and delivery of this Agreement by the Purchaser,
this Agreement and the Option constitute the legal, valid and binding obligation
of the Company enforceable against the Company in accordance with their
respective terms, subject to the effect of any applicable bankruptcy,
reorganization, insolvency (including, without limitation, all laws relating to
fraudulent transfers), moratorium or similar laws affecting creditors' rights
and remedies generally, subject, as to enforceability, to the effect of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and subject to the effect of applicable
securities laws as to rights to indemnification.
2.4 CONSENTS: COMPLIANCE.
(a) Other than in connection with or in compliance with the rules
of the Nasdaq SmallCap Market applicable to the listing of shares of Class A
Common Stock, the execution and delivery of this Agreement by the Company do
not, and the performance of this Agreement by the Company will not, require any
consent, approval, authorization or other action by, or filing with or
notification to, any governmental or regulatory authority, except where failure
to obtain such consent,
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approval, authorization or action, or to make such filing or notification, would
not prevent the Company from performing any of its material obligations under
this Agreement and would not have a Material Adverse Effect.
(b) The execution, delivery and performance of this Agreement by
the Company do not (i) conflict with or violate the charter or by-laws of the
Company, or (ii) except as would not prevent the Company from performing any of
its material obligations under this Agreement and would not have a Material
Adverse Effect, (A) conflict with or violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable to the
Company, or (B) result in any breach of, or constitute a default (or event which
with the giving of notice or lapse of time, or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of any Encumbrance on any of the
assets or properties of the Company pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument relating to such assets or properties to which the Company is a party
or by which any of such assets or properties is bound.
2.5 COMMISSION FILINGS. The Company has filed all required forms,
reports and other documents with the Securities and Exchange Commission (the
"Commission") for periods from and after January 1, 1996 (collectively, the
"Commission Filings"), each of which has complied in all material respects with
all applicable requirements of the Securities Act of 1933, as AMENDED (THE
"SECURITIES Act"), and the Securities Exchange Act of 1934, as amended. The
Company has heretofore made available to the Purchaser all of the Commission
Filings, including the Company's Annual Report on Form 10-KSB for the year ended
December 31, 1996, and the Company's Quarterly Reports on Form 10-QSB for the
quarterly periods ended March 31, 1997, June 30, 1997 and September 30, 1997. As
of their respective dates, the Commission Filings (including all exhibits and
schedules thereto and documents incorporated by reference therein) did not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading. The audited consolidated financial
statements and unaudited consolidated interim financial statements of the
Company and its subsidiaries included or incorporated by reference in such
Commission Filings have been prepared in accordance with general accepted
accounting principles in the United States consistently applied ("GAAP") (except
as may be indicated in the notes thereto or, in the case of the unaudited
statements, as permitted by Form 10-QSB), complied as of their respective dates
in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission with respect thereto, and
fairly present the consolidated financial position of the Company and its
subsidiaries as of the dates thereof and the consolidated income and retained
earnings and sources and applications of funds for the periods then ended
(subject, in the case of any unaudited interim financial statements, to the
absence of footnotes required by GAAP and normal year-end adjustments). Since
September 30, 1997, except as described in the Commission Filings, there has not
been any event which has had or would BE EXPECTED TO HAVE a Material Adverse
Effect.
2.6 EXTENT OF OFFERING. Subject in part to the truth and accuracy of
the Purchaser's representations set forth in Article 3 of this Agreement, the
offer, sale and issuance of the Shares as contemplated by this Agreement are
exempt from the registration requirements of the Securities Act and of each
state where the Shares are offered or sold, and neither the Company nor, to the
best of the Company's knowledge, any agent acting on its behalf, will take any
action hereafter that would cause the loss of such exemption.
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2.7 ABSENCE OF LITIGATION. No claim, action, proceeding or
investigation is pending, or to the best knowledge of the Company, threatened,
which seeks to delay or prevent the consummation of the transactions
contemplated hereby or which would be reasonably likely to adversely affect or
restrict the Company's ability to consummate the transactions contemplated
hereby.
2.8 NO OTHER REPRESENTATIONS. Except as set forth in this Agreement and
the Option, the Company is not making any representation, warranty, covenant or
agreement, oral or written, with respect to the matters contained herein and
therein.
2.9 NO BROKERS. The Company has not entered into any contract,
arrangement or understanding with any individual, corporation, partnership,
joint venture, person, trust, estate, association or other entity (each, a
"Person") which could result in the obligation of any Person to pay any finder's
fees, brokerage or agent's commissions or other like payments in connection with
this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants to the Company as follows:
3.1 AUTHORITY. The Purchaser has all necessary power and authority to
enter into this Agreement, to carry out the Purchaser's obligations hereunder
and thereunder and to consummate the transactions contemplated hereby. The
Purchaser has taken all necessary action to authorize the execution, delivery
and performance by the Purchaser of this Agreement and all other documents or
instruments required to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Purchaser and, assuming
due authorization, execution and delivery by the Company, this Agreement
constitutes a legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency (including, without
limitation, all laws relating to fraudulent transfers), moratorium or similar
laws affecting creditors' rights and remedies generally, subject, as to
enforceability, to the effect of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and subject to the effect of applicable securities laws as to rights of
indemnification.
3.2 CONSENTS AND APPROVALS: NO CONFLICT.
(a) The execution and delivery of this Agreement do not, and the
performance of this Agreement by the Purchaser will not, require any consent,
approval, authorization or other action by, or filing with or notification to,
any governmental or regulatory authority, except where failure to obtain such
consent, approval, authorization or action, or to make such filing or
notification, would not prevent the Purchaser from performing any of its
material obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement by
the Purchaser do not, except as would not have a material adverse effect on the
ability of the Purchaser to consummate the transactions contemplated by this
Agreement, conflict with or violate any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award applicable to the
Purchaser.
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3.3 ABSENCE OF LITIGATION. No claim, action, proceeding or
investigation is pending, or to the best knowledge of the Purchaser, threatened,
which seeks to delay or prevent the consummation of the transactions
contemplated hereby or which would be reasonably likely to adversely affect or
restrict the Purchaser's ability to consummate the transactions contemplated
hereby.
3.4 INVESTMENT PURPOSE: PRIVATE PLACEMENT.
(a) The Purchaser made his or its decision to purchase the Shares
based solely on (i) an analysis of the representations and warranties of the
Company set forth in this Agreement and (ii) a review of the Commission Filings
(which the Purchaser hereby acknowledges having received and reviewed).
(b) The Purchaser has sufficient knowledge and experience in
financial and business matters to be capable of evaluating the merits and risks
of an unregistered, non-liquid, high-risk investment such as an investment in
the Company's securities and has evaluated the merits and risks of such an
investment. The Purchaser's overall commitment to investments which are not
readily marketable is not disproportionate to the Purchaser's net worth, and the
Purchaser's acquisition of the Shares will not cause such overall commitment to
become excessive.
(c) THE PURCHASER IS ACQUIRING THE SHARES SOLELY FOR THE PURPOSE OF
INVESTMENT and not with a view to, or for offer or sale in connection with, any
distribution thereof in violation of the Securities Act. The Purchaser
acknowledges that the Shares are not registered under the Securities Act and
that the Shares may not be transferred or sold except pursuant to the
registration provisions of the Securities Act or pursuant to an applicable
exemption therefrom and subject to state securities laws and regulations, as
applicable. The Purchaser agrees that the following legend shall be placed on
any certificate or other instrument evidencing the Shares:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). NO SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION OF THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE OR ANY
INTEREST HEREIN MAY BE MADE UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR UNLESS SARATOGA BEVERAGE
GROUP, INC. HAS RECEIVED A SATISFACTORY OPINION OF COUNSEL THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION DOES NOT REQUIRE
REGISTRATION UNDER THE ACT."
The Company and any transfer agent acting on its behalf may maintain on the
Company's register appropriate "stop transfer" notations.
(d) The Purchaser further understands that the offer and sale of
the Shares have not been approved or disapproved by the Commission, or any other
federal or state office or agency.
(e) The Purchaser acknowledges that an investment in the Shares
involves a great deal of risk. The Purchaser is able to (i) bear the economic
risk of the investment in the Company, (ii) afford a complete loss of such
investment, and (iii) hold indefinitely the Shares. In reaching an informed
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decision to invest in the Company, the Purchaser has obtained sufficient to
evaluate the merits and risks of an investment in the securities of the Company.
In that connection, representatives of the Company have (x) fully and
satisfactorily answered any questions which the Purchaser desired to ask
concerning the Company, and (y) furnished the Purchaser with any additional
information or documents requested to verify the accuracy of or supplement any
information previously delivered to or discussed with the Purchaser.
(f) The Purchaser has not construed the contents of the Agreement
or any additional agreement with respect to the proposed investment in the
Shares or any prior or subsequent communications from the Company, or any of its
officers, employees or representatives, as investment, tax or legal advice or as
information necessarily applicable to such Purchaser's particular financial
situation. The Purchaser has consulted his own financial advisor, tax advisor,
legal counsel and accountant, as necessary or desirable, as to matters
concerning his investment in the Shares.
3.5 ACCREDITED INVESTOR. The Purchaser is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act.
3.6 NO OTHER REPRESENTATIONS. Except as set forth in this Agreement,
the Purchaser is not making any representation, warranty, covenant or agreement,
oral or written, with respect to the matters contained herein and therein.
3.7 NO BROKERS. The Purchaser has not entered into any contract,
arrangement or understanding with any Person which could result in the
obligation of any Person to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with this Agreement.
4. PIGGYBACK REGISTRATION.
4.1 PIGGYBACK REGISTRATION.
(a) If, at any time, the Company proposes to file a registration
statement on either Form S- I, Form S-2 or Form S-3 (or any successor forms)
under the Securities Act with respect to an offering for its own account or for
the account of others of any class of equity security, then the Company shall
give written notice of such proposed filing to the Purchaser at least
twenty-five (25) days before the anticipated filing date, and such notice shall
offer the Purchaser the opportunity to register such Shares (whether or not
vested under the installment provisions of subparagraph l(b) at such time) as
such Purchaser may request in writing to the Company within fifteen ( 15) days
after the date such Purchaser first received notice of such registration (a
"Piggyback Registration"); PROVIDED, HOWEVER, that the Company shall have no
obligation to register any Shares of the Purchaser pursuant to this Section 4.1
(a) unless the Purchaser shall request that 50% or more (or all outstanding
Shares, if less than 50% of the initial aggregate number of Shares) of the
initial aggregate number of Shares be registered.
(b) The Purchaser may not participate in any registration initiated
as a Piggyback Registration which is underwritten for the benefit of the Company
or its stockholders unless the Purchaser (i) agrees to sell his Shares on the
basis provided in any underwriting agreements approved by the Company; (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting agreements and which are customary with industry practice;
and (iii) agrees that if an underwriter
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advises the Company in writing that the number of shares proposed to be sold by
the Company and/or the Purchaser is greater than the number of shares of Class A
Common Stock which the underwriter believes is feasible to sell at that time, at
the price and under the terms approved by the Company, then the underwriter may
exclude some or all of the Shares from such Piggyback Registration to the extent
necessary to reduce the total number of shares of Class A Common Stock
recommended by the underwriter. Such reduction or limitation by the underwriter
shall be made in the manner set forth in the immediately following sentence. Any
reduction or limitation of Shares by the underwriter shall be made on a pro rata
basis in proportion to the relative number of Shares then held by the Purchaser
and the number of shares of Class A Common Stock requested to be underwritten on
behalf of the Company or its stockholders. The Company shall advise the
Purchaser of any such reduction or limitation, and that the number of shares of
Shares to be offered by the Purchaser will be reduced or limited to the number
calculated pursuant to the immediately preceding sentence.
(c) In any registration initiated as a Piggyback Registration,
whether or not the registration statement becomes effective, the Company will
pay or cause to be paid all costs, fees and expenses in connection therewith,
including, without limitation, the Company's legal and accounting fees, printing
expenses and "blue sky" fees and expenses, except that the Company shall not pay
for (i) underwriting discounts and commissions, (ii) state transfer taxes, (iii)
brokerage commissions, (iv) fees and expenses of counsel and accountants for the
Purchaser and (v) blue sky fees and expenses in jurisdictions where the Company
is not currently registered or qualified.
(d) To the extent not inconsistent with applicable law, the
Purchaser agrees not to effect any public sale or distribution of Class A Common
Stock, including a sale pursuant to Rule 144 or in reliance on any other
exemption from registration under the Securities Act, during the fourteen ( 14)
days prior to, and during the ninety (90) days beginning on, the effective date
of a registration statement that includes Shares (except as part of such
registration), but only if and to the extent requested in writing (with
reasonable prior written notice) by the underwriter(s) in the case of an
underwritten public offering by the Company of securities similar to the Shares.
(e) The Company and the Purchaser agree to indemnify and hold
harmless each other (and, in the case of the Company, its directors and of
ficers and each person who controls the Company (within the meaning of the
Securities Act)) against all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) (collectively, "Losses") arising
out of or based upon any untrue or alleged untrue statement of material fact
contained in any registration statement with respect to a Piggyback
Registration, any amendment or supplement thereto, any prospectus or preliminary
prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, PROVIDED, HOWEVER. that the Purchaser shall not be indemnified for
Losses insofar as such Losses arise out of or are based upon any such untrue
statement or omission based upon information furnished in writing to the Company
by or on behalf of the Purchaser (in his individual capacity) expressly for use
therein; PROVIDED FURTHER, HOWEVER, that in the event the prospectus shall have
been amended or supplemented and copies thereof, as so amended or supplemented,
shall have been furnished to the Purchaser prior to the confirmation of any
sales of registered Shares, such indemnity with respect to the prospectus shall
not inure to the benefit of the Purchaser if the person asserting such Loss did
not, at or prior to the confirmation of the sale of the registered Shares to
such person, receive a copy of the prospectus, as so amended or supplemented,
and the untrue statement or omission of a material fact contained in the
prospectus was corrected in the prospectus, as so amended or supplemented.
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5. TERMINATION AND WAIVER.
5.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing only by the written consent of the Company and the Purchaser.
5.2 WAIVER. At any time prior to the Closing, each of the parties
hereto may (a) extend the time for the performance of any of the obligations or
other acts of any other party hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto or (c) waive compliance with any of the agreements or conditions
contained herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party to be bound thereby. Any waiver of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or any other provision of this Agreement.
6. MISCELLANEOUS.
6.1 NOTICES. Any notice, demand, request, waiver, or other
communication under this Agreement shall be in writing (including facsimile or
similar writing) and shall be deemed to have been duly given (i) on the date of
service if personally served, (ii) on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail, registered, return
receipt requested, postage prepaid or (iii) on the date sent if sent by
facsimile, to the parties at the following addresses or facsimile numbers with a
copy sent by mail as aforesaid on the same date (or at such other address or
facsimile number for a party as shall be specified by like notice):
(a) if to the Company:
Saratoga Beverage Group, Inc.
11 Geyser Road
Saratoga Springs, New York 12866
Attention: Gayle Henderson
Fax No.: (518) 584-0380
with a copy to:
Shereff, Friedman, Hoffman & Goodman, LLP
919 Third Avenue
New York, New York 10022
Attention: Charles I. Weissman, Esq.
Fax No.: (212) 758-9526
(b) if to the Purchaser:
Carl T. Wolf
627 Inwood Lane
South Orange, New Jersey 07079
Fax No.: (973) 763-7888
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with a copy to:
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
Attention: Robert H. Friedman, Esq.
Fax No.: (212) 755-1467
6.2 EXPENSES. The Purchaser hereby agrees that all fees and expenses
incurred by the Purchaser in connection with this Agreement shall be borne by
the Purchaser, and the Company hereby agrees that all fees and expenses incurred
by the Company shall be borne by the company, In each case including without
limitation all fees and expenses of such party's counsel and accountants.
6.3 HEADINGS. Section headings contained in this Agreement are included
for convenience only and shall not affect the interpretation of any provisions
of this Agreement.
6.4 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of, this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
6.5 ENTIRE AGREEMENT. This Agreement and the Option set forth the
entire understanding and agreement of the parties with respect to their subject
matter and supersede any and all prior understandings, negotiations or
agreements among the parties hereto, both written and oral, with respect to such
subject matter.
6.6 NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole
benefit of and binding upon the parties hereto and their permitted successors
and assigns and nothing herein, express or implied, is intended to or shall
confer upon any other Person any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
6.7 AMENDMENT. This Agreement may be amended or modified only by an
instrument in writing signed by the Company and the Purchaser.
6.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute one and the same agreement.
6.9 GENDER AND NUMBER. Whenever used in this Agreement, the singular
number shall include the plural, the plural the singular, and the use of any
gender shall be applicable to all genders.
6.10 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of New York, without
giving effect to the principles of conflict of laws
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thereof. The parties agree that any dispute arising out of or relating to this
Agreement shall be resolved by binding arbitration in the City of Albany, State
of New York, under the Commercial Arbitration Rules of the American Arbitration
Association. Each of the parties hereto consents, for itself and in respect of
its property, to the jurisdiction and venue of the City of Albany, State of New
York for purposes of this Section 6.10 and hereby irrevocably waives any
objection, including any objection to the laying of venue or based on the
grounds of FORUM NON CONVENIENS which it may now or hereafter have to the
bringing of any dispute in the City of Albany, State of New York, under the
Commercial Arbitration Rules of the American Arbitration Association, in respect
of this Agreement or any documents related thereto. Each of the parties hereto
waives personal service of any summons, complaint or other process, which may be
made by any other means permitted under New York law.
IN WITNESS WHEREOF, the Purchaser and the Company have caused this
Agreement to be executed as of the date first written above in their individual
capacities or by their respective representatives thereunto duly authorized, as
applicable.
SARATOGA BEVERAGE GROUP, INC.
By: /s/ Robin Prever
---------------------------
Robin Prever
Chief Executive Officer
/s/ Carl T. Wolf
-------------------------------
Carl T. Wolf
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered into
as of the 4th day of February, 1998, by and between Saratoga Beverage Group,
Inc. (the "Company"), a Delaware corporation, and Carl T. Wolf (the "Optionee"),
residing at 627 Inwood Lane, South Orange, New Jersey 07079.
The Board of Directors (the "Board") of the Company adopted on February
4, 1998 (the "Grant Date") a resolution granting the Optionee a stock option
(the "Option") to purchase 200,000 shares (the "Shares") of the Company's Class
A common stock, par value $.01 per share (the "Common Stock"), for the price, on
the terms and subject to the conditions set forth in this Agreement. The Option
was not granted under the Company's 1993 Stock Option Plan. In connection with
the grant of the Option, the Optionee waived his rights to receive stock options
under the Company's 1993 Stock Option Plan.
The Option is not intended to satisfy the requirements for an incentive
stock option (an "ISO") under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"). The Company makes no representations or warranties as
to the income, estate or other tax consequences to the Optionee of the grant or
exercise of the Option or the sale or other disposition of the Shares acquired
pursuant to the exercise thereof.
1. (a) The price at which the Optionee shall have the right to
purchase the Shares under this Agreement is $2.875 per Share, subject to
adjustment as provided in Paragraph 4 below.
(b) Unless the Option is previously terminated or accelerated
pursuant to this Agreement, the Option shall be exercisable in installments of
100,000 Shares on each of February 4, 1998 and February 4, 1999; PROVIDED,
HOWEVER. that the February 4, 1999 installment shall not be exercisable if the
Optionee is not serving as Chairman of the Board or co-Chairman of the Board on
such date. In no event shall any Shares be purchasable under this Agreement
after February 3, 2008 (the "Expiration Date"). The Option shall cease to be
exercisable three (3) months (or such longer period which may at such time be
provided for directors under the Company's 1993 Stock Option Plan) after the
date the Optionee no longer serves as a director of the Company.
2. Nothing contained herein shall be construed to confer on the
Optionee any right to continue as a director of the Company or to derogate from
any right of the Board or stockholders of the Company, free from liability, to
remove the Optionee as a director at any time, with or without cause.
3 (a) Subject to Section 422 of the Code, neither the Option nor any
right under the Option shall be assignable, alienable, saleable or transferable
by the Optionee otherwise than by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined in
the Code or Title I of the Employee Retirement Income Security Act, or the rules
thereunder; PROVIDED, HOWEVER, that, if so determined by the Board or a
committee thereof, the Optionee may, in the manner established by the Board or a
committee thereof in its sole discretion, designate a beneficiary or
beneficiaries to exercise the rights of the Optionee, and to receive any
property distributable, with respect to any Option upon the death of the
Optionee.
(b) The Option shall not be pledged, alienated, attached, or
otherwise encumbered or transferred in any manner except to the extent that the
Option may be exercised by an executor or
<PAGE>
administrator or beneficiary as provided in subparagraph 3(a) above, and any
purported pledge, alienation, attachment, encumbrance, or transfer thereof shall
be void and unenforceable against the Company. The Option may be exercised,
during the lifetime of the Optionee, only by the Optionee or his duly appointed
guardian or legal representative.
4 (a) In the event that the Board or a committee thereof shall
determine that the outstanding shares of Common Stock are affected by any (i)
subdivision or consolidation of shares, (ii) dividend or other distribution
(whether in the form of cash, Shares, other securities, or other property) or
(iii) recapitalization or other capital adjustment of the Company, such that an
adjustment is determined to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
hereunder, then the Board or a committee thereof shall, in such manner as it may
deem necessary to prevent dilution or enlargement of the benefits or potential
benefits intended to be made hereunder, adjust any or all of (x) the number and
type of Shares which may be subject to the Option, (y) the number and type of
Shares subject to the unexercised portion of the Option, and (z) the exercise
price per Share with respect to the Option; PROVIDED, HOWEVER, that the exercise
price per Share shall not be adjusted below the par value per Share of the
Common Stock. In computing any adjustment under this paragraph, any fractional
share shall be eliminated.
(b) In the event of the dissolution or liquidation of the Company,
or in the event of a Change in Control (as defined in the Company's 1983 Stock
Option Plan), the Optionee shall have the right, immediately prior to the record
date for the determination of stockholders entitled to participate in such
dissolution, liquidation or Change in Control, to exercise the Option, in whole
or in part, without regard to any installment provisions contained in
subparagraph I (b). In such event, the Company will mail or cause to be mailed
to the Optionee a notice specifying the date of such dissolution, liquidation or
Change in Control. Such notice shall be mailed at least ten ( 10) days prior to
the date therein specified to the address of the Optionee specified on page I of
this Agreement or to such other address as the Optionee delivers or transmits by
registered or certified mail to the Secretary of the Company at its principal
office.
5. The Option shall be exercised when written notice of such exercise,
signed by the person entitled to exercise the Option, has been delivered or
transmitted by registered or certified mail, to the Secretary of the Company at
its principal office. Said written notice shall specify the number of Shares
purchasable under the Option which such person then wishes to purchase and shall
be accompanied by such documentation, if any, as may be required by the Company
as provided in Paragraph 7 below and be accompanied by payment of the aggregate
Option price. Such payment of the aggregate Option price shall be, without
limitation, in the form of (i) cash, Shares, outstanding Options or other
consideration, or any combination thereof, having a Fair Market Value on the
exercise date equal to the exercise price of the Option or portion thereof being
exercised or (ii) a broker-assisted cashless exercise program established by the
Board or a committee thereof. Delivery of said notice and such documentation
shall constitute an irrevocable election to purchase the Shares specified in
said notice and the date on which the Company receives said notice and
documentation shall, subject to the provisions of Paragraph 7, be the date as of
which the Shares so purchased shall be deemed to have been issued. The person
entitled to exercise the Option shall not have the right or status as a holder
of the Shares to which such exercise relates prior to receipt by the Company of
such payment, notice and documentation. For purposes of this AGREEMENT, "Fair
Market Value" shall mean, with respect to Shares or other securities, (i) the
closing price PER SHARE of the Shares on the principal exchange on which the
Shares are then trading, if any, on such date, or, if the Shares were not traded
on such date, then on the next preceding trading day during which a sale
occurred; or (ii) if the Shares are not traded on an exchange but are quoted on
Nasdaq or a successor quotation system, ( I ) the last sales price (if the
Shares are then listed on the Nasdaq National Market) or (2) the mean between
the
2
<PAGE>
closing representative bid and asked prices (in all other cases) for the Shares
on such date as reported by Nasdaq or such successor quotation system; or (iii)
if the Shares are not publicly traded on an exchange and not quoted on Nasdaq or
a successor quotation system, the mean between the closing bid and asked prices
for the Shares on such date as determined in good faith by the Committee; or
(iv) if the Shares are not publicly traded, the fair market value established by
the Committee acting in good faith.
6. (a) In combination with or in substitution for cash withholding or
any other legal method OF SATISFYING FEDERAL and state withholding tax
liability, the Optionee may elect to have Shares withheld by the Company in
order to satisfy federal and state withholding tax liability (a "share
withholding election"); PROVIDED, HOWEVER, that (i) the Board or a committee
thereof shall not have revoked its advance approval of the Optionee's share
withholding election; and (ii) the share withholding election is made on or
prior to the date on which the amount of withholding tax liability is determined
(the "Tax Date"). If the Optionee elects within thirty (30) days of the date of
exercise to be subject to withholding tax on the exercise date pursuant to the
provisions of Section 83(b) of the Code, then the share withholding election may
be made during such thirty (30) day period. Notwithstanding the foregoing, the
Optionee may make a share withholding election only if the following additional
conditions are met: (i) the share withholding election is made no sooner than
six (6) months after the date of grant of the Option; and (ii) the share
withholding election is made (x) at least six (6) months prior to the Tax Date,
or (y) during the period beginning on the third business day following the date
of release of the Company's quarterly or annual financial results and ending on
the twelfth business day following such date.
(b) A share withholding election shall be deemed made when written
notice of such election, signed by the Optionee, has been delivered or
transmitted by registered or certified mail to the Secretary of the Company at
its principal office. Delivery of such notice shall constitute an irrevocable
election to have Shares withheld.
(c) If the Optionee has made a share withholding election pursuant
to this Section 6; and (i) within thirty (30) days of the date of exercise of
the Option, the Optionee elects pursuant to the provisions of Section 83(b) of
the Code to be subject to withholding tax on the date of exercise of the Option,
then the Optionee will be unconditionally obligated to immediately tender back
to the Company the number of Shares having an aggregate Fair Market Value equal
to the amount of tax required to be withheld plus cash for any fractional
amount, together with written notice to the Company informing the Company of the
Optionee's election pursuant to Section 83(b) of the Code; or (ii) if the
Optionee has not made an election pursuant to the provisions of Section 83(b) of
the Code, then on the Tax Date, such Optionee will be unconditionally obligated
to tender back to the Company the number of Shares having an aggregate Fair
Market Value equal to the amount of tax required to be withheld plus cash for
any fractional amount.
7. The Board or a committee thereof may require as a condition to the
right to exercise the Option hereunder that the Company receive from the person
exercising the Option, representations, warranties and agreements, at the time
of any such exercise, to the effect that the Shares are being purchased for
investment only and without any present intention to sell or otherwise
distribute such Shares and that the Shares will not be disposed of in
transactions which, in the opinion of counsel to the Company, would violate the
registration provisions of the Securities Act of 1933, as then amended (the
"Securities Act"), and the rules and regulations thereunder. The certificate
issued to evidence such Shares shall bear appropriate legends summarizing such
restrictions on the disposition thereof.
8. (a) If, at any time, the Company proposes to file a registration
statement on Form S-8 under the Securities Act with respect to an offering for
its own account or for the account of others of any
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<PAGE>
class of equity security, then the Company shall give written notice of such
proposed filing to the Optionee at least twenty-five (25) days before the
anticipated filing date, and such notice shall offer the Optionee the
opportunity to register such Shares (whether or not vested under the installment
provisions of subparagraph I (b) at such time) as such Optionee may request in
writing to the Company within fifteen ( 15) days after the date such Optionee
first received notice of such registration (a "Piggyback Registration");
PROVIDED. HOWEVER, that the Company shall have no obligation to register any
Shares of the Optionee pursuant to this Section 8(a) unless the Optionee shall
request that 50% or more (or all outstanding Shares, if less than 50% of the
initial aggregate number of Shares) of the initial aggregate number of Shares be
registered.
(b) The Optionee may not participate in any registration initiated
as a Piggyback Registration which is underwritten for the benefit of the Company
unless the Optionee (i) agrees to sell his Shares on the basis provided in any
underwriting agreements approved by the Company; (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
agreements and which are customary with industry practice; and (iii) agrees that
if an underwriter advises the Company in writing that the number of shares
proposed to be sold by the Company and/or the Optionee is greater than the
number of shares of Common Stock which the underwriter believes is feasible to
sell at that time, at the price and in the terms approved by the Company, then
the underwriter may exclude some or all of the Shares from such Piggyback
Registration. The Company shall advise the Optionee of the limitation, and that
the number of shares of Shares to be offered by the Optionee will be reduced to
the number recommended by the underwriter.
(c) In any registration initiated as a Piggyback Registration,
whether or not the registration statement becomes effective, the Company will
pay or cause to be paid all costs, fees and expenses in connection therewith,
including, without limitation, the Company's legal and accounting fees, printing
expenses and "blue sky" fees and expenses, except that the Company shall not pay
for (i) underwriting discounts and commissions, (ii) state transfer taxes, (iii)
brokerage commissions, (iv) fees and expenses of counsel and accountants for the
Optionee and (v) blue sky fees and expenses in jurisdictions where the Company
is not currently registered or qualified.
(d) To the extent not inconsistent with applicable law, the
Optionee agrees not to effect any public sale or distribution of Common Stock,
including a sale pursuant to Rule 144 or in reliance on any other exemption from
registration under the Securities Act, during the fourteen ( 14) days prior to,
and during the ninety (90) days beginning on, the effective date of a
registration statement that includes Shares (except as part of such
registration), but only if and to the extent requested in writing (with
reasonable prior written notice) by the underwriter(s) in the case of an
underwritten public offering by the Company of securities similar to the Shares.
(e) The Company and the Optionee agree to indemnify and hold
harmless each other (and, in the case of the Company, its directors and officers
and each person who controls the Company (within the meaning of the Securities
Act)) against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) (collectively, "Losses") arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
any registration statement with respect to a Piggyback Registration, any
amendment or supplement thereto, any prospectus or preliminary prospectus or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
PROVIDED, HOWEVER, that the Optionee shall not be indemnified for Losses insofar
as such Losses arise out of or are based upon any such untrue statement or
omission based upon information furnished in writing to the Company by or on
behalf of the Optionee (in his individual capacity) expressly for use therein;
PROVIDED FURTHER, HOWEVER, that in the event the prospectus shall have
4
<PAGE>
been amended or supplemented and copies thereof, as so amended or supplemented,
shall have been furnished to the Optionee prior to the confirmation of any sales
of Registrable Securities, such indemnity with respect to the prospectus shall
not inure to the benefit of the Optionee if the person asserting such Loss did
not, at or prior to the confirmation of the sale of the Registrable Securities
to such person, receive a copy of the prospectus, as so amended or supplemented,
and the untrue statement or omission of a material fact contained in the
prospectus was corrected in the prospectus, as so amended or supplemented.
9. The Option shall be exercisable in accordance with the terms hereof
even if (i) any ISO to purchase Common Stock in the Company, in any parent or
subsidiary of the Company or in any predecessor corporation of such
corporations, was granted to the Optionee and (ii) such previously granted ISO
remains outstanding. For purposes of this Paragraph, an ISO shall be treated as
outstanding until such option is exercised in full or expires by reason of lapse
of time.
10. All certificates for Shares delivered pursuant to any Option or the
exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Board or a committee thereof may deem advisable under the
rules, regulations, and other restrictions of the Securities and Exchange
Commission, any stock exchange upon which such Shares or other securities are
then listed, and any applicable federal or state securities laws, and the Board
or a committee thereof may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
11. This Agreement shall be construed and enforced in accordance with
the laws of the State of Delaware and applicable federal law. Subject to
subparagraph 3(a) hereof, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors or assigns, as the case may be.
IN WITNESS WHEREOF, the parties have witnessed this Agreement to be
duly executed and delivered as of the date first above written.
SARATOGA BEVERAGE GROUP, INC.
/s/ Carl T. Wolf By: /s/ Robin Prever
- ---------------- ---------------------------------
Carl T. Wolf Robin Prever
President and Chief Executive Officer
5
SECURITIES PURCHACE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of February 12, 1998 by and between Anthony Malatino (the
"Seller") and Carl T. Wolf (the "Purchaser").
WHEREAS, the Seller is desirous of selling, and the Purchaser is
desirous of acquiring, 83,000 shares of the Class A common stock, $.01 par value
per share (the "Class A Common Stock"), of Saratoga Beverage Group, Inc. (the
"Company") for a per share purchase price of $3.00 per share of Class A Common
Stock (in the aggregate, the "Purchase Price");
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Seller and the Purchaser hereby agree as follows:
1. PURCHASE AND SALE.
1.1 PURCHASE AND SALE OF SECURITIES. The Seller agrees to sell to the
Purchaser, and upon and subject to the terms and conditions hereof and, in
reliance upon the representations and warranties of the Seller, the Purchaser
agrees to purchase from the Seller, the Shares for the Purchase Price.
1.2 CLOSING. The sale of the Shares by the Seller to the Purchaser
shall take place at a closing (the "Closing"), to be held simultaneously with
the execution of this Agreement (the "Closing Date"). On the Closing Date, the
Seller shall deliver to the Purchaser the Shares, free and clear of any pledge,
lien, security interest, mortgage, charge, adverse claim of ownership or use, or
other encumbrance of any kind (each, an "Encumbrances"), against payment of the
Purchase Price. A certificate evidencing the Shares to be issued to the
Purchaser as soon as practicable after the Closing.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants to the Purchaser as follows:
2.1 OWNERSHIP OF THE SHARES. The Seller owns the Shares, free and clear
of any Encumbrances.
2.2 AUTHORITY. The Seller has all necessary power and authority to
enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Seller and, assuming due authorization, execution
and delivery of this Agreement by the Purchaser, this Agreement constitutes the
legal, valid and binding obligation of the Seller enforceable against the Seller
in accordance with its terms, subject to the effect of any applicable
bankruptcy, reorganization, insolvency (including, without limitation, all laws
relating to fraudulent transfers), moratorium or similar laws affecting
creditors' rights and remedies generally, subject, as to enforceability, to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and subject to
the effect of applicable securities laws as to rights to indemnification.
<PAGE>
2.3 NO CONFLICT. The execution, delivery and performance of this
Agreement by the Seller do not, except as would not have a material adverse
effect on the ability of the Seller to consummate the transactions contemplated
by this Agreement, conflict with or violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable to the
Seller.
2.4 EXTENT OF OFFERING. Subject in part to the truth and accuracy of
the Purchaser's representations set forth in Article 3 of this Agreement, the
offer and sale of the Shares as contemplated by this Agreement are exempt from
the registration requirements of the Securities Act and of each state where the
Shares are offered or sold.
2.5 ABSENCE OF LITIGATION. No claim, action, proceeding or
investigation is pending, or to the best knowledge of the Seller, threatened,
which seeks to delay or prevent the consummation of the transactions
contemplated hereby or which would be reasonably likely to adversely affect or
restrict the Seller's ability to consummate the transactions contemplated
hereby.
2.6 NO OTHER REPRESENTATIONS. Except as set forth in this Agreement,
the Seller is not making any representation, warranty, covenant or agreement,
oral or written, with respect to the matters contained herein and therein.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants to the Seller as follows:
3.1 AUTHORITY. The Purchaser has all necessary power and authority to
enter into this Agreement, to carry out the Purchaser's obligations hereunder
and thereunder and to consummate the transactions contemplated hereby. The
Purchaser has taken all necessary action to authorize the execution, delivery
and performance by the Purchaser of this Agreement and all other documents or
instruments required to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Purchaser and, assuming
due authorization, execution and delivery by the Seller, this Agreement
constitutes a legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency (including, without
limitation, all laws relating to fraudulent transfers), moratorium or similar
laws affecting creditors' rights and remedies generally, subject, as to
enforceability, to the effect of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and subject to the effect of applicable securities laws as to rights of
indemnification.
3.2 NO CONFLICT. The execution, delivery and performance of this
Agreement by the Purchaser do not, except as would not have a material adverse
effect on the ability of the Purchaser to consummate the transactions
contemplated by this Agreement, conflict with or violate any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
applicable to the Purchaser.
3.3 ABSENCE OF LITIGATION. No claim, action, proceeding or
investigation is pending, or to the best knowledge of the Purchaser, threatened,
which seeks to delay or prevent the consummation of the transactions
contemplated hereby or which would be reasonably likely to adversely affect or
restrict the Purchaser's ability to consummate the transactions contemplated
hereby.
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3.4 INVESTMENT PURPOSE: PRIVATE PLACEMENT.
(a) The Purchaser made his or its decision to purchase the Shares
based solely on (i) an analysis of the representations and warranties of the
Seller set forth in this Agreement.
(b) The Purchaser has sufficient knowledge and experience in
financial and business matters to be capable of evaluating the merits and risks
of an unregistered, non-liquid, high-risk investment such as an investment in
the Company's securities and has evaluated the merits and risks of such an
investment. The Purchaser's overall commitment to investments which are not
readily marketable is not disproportionate to the Purchaser's net worth, and the
Purchaser's acquisition of the Shares will not cause such overall commitment to
become excessive.
(c) The Purchaser is acquiring the Shares solely for the purpose of
investment and not with a view to, or for offer or sale in connection with, any
distribution thereof in violation of the Securities Act. The Purchaser
acknowledges that the Shares are not registered under the Securities Act and
that the Shares may not be transferred or sold except pursuant to the
registration provisions of the Securities Act or pursuant to an applicable
exemption therefrom and subject to state securities laws and regulations, as
applicable. The Purchaser agrees that the following legend shall be placed on
any certificate or other instrument evidencing the Shares:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). NO SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION OF THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE OR ANY
INTEREST HEREIN MAY BE MADE UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR UNLESS SARATOGA BEVERAGE
GROUP, INC. HAS RECEIVED A SATISFACTORY OPINION OF COUNSEL THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION DOES NOT REQUIRE
REGISTRATION UNDER THE ACT."
(d) The Purchaser further understands that the offer and sale of
the Shares have not been approved or disapproved by the Commission, or any other
federal or state office or agency.
(e) The Purchaser acknowledges that an investment in the Shares
involves a great deal of risk. The Purchaser is able to (i) bear the economic
risk of the investment in the Company, (ii) afford a complete loss of such
investment, and (iii) hold indefinitely the Shares. In reaching an informed
decision to invest in the Company, the Purchaser has obtained sufficient
information to evaluate the merits and risks of an investment in the securities
of the Company.
(f) The Purchaser has not construed the contents of the Agreement
or any additional agreement with respect to the proposed investment in the
Shares or any prior or subsequent communications from the Company, or any of its
officers, employees or representatives, as investment, tax or legal advice or as
information necessarily applicable to such Purchaser's particular financial
situation. The Purchaser has consulted his own financial advisor, tax advisor,
legal counsel and accountant, as necessary or desirable, as to matters
concerning his investment in the Shares.
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3.5 ACCREDITED INVESTOR. The Purchaser is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act.
3.6 NO OTHER REPRESENTATIONS. Except as set forth in this Agreement,
the Purchaser is not making any representation, warranty, covenant or agreement,
oral or written, with respect to the matters contained herein and therein.
3.7 NO BROKERS. The Purchaser has not entered into any contract,
arrangement OR understanding with any Person which could result in the
obligation of any Person to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with this Agreement.
4. TERMINATION AND WAIVER.
4.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing only by the written consent of the Seller and the Purchaser.
4.2 WAIVER. At any time prior to the Closing, each of the parties
hereto may (a) extend the time for the performance of any of the obligations or
other acts of any other party hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto or (c) waive compliance with any of the agreements or conditions
contained herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party to be bound thereby. Any waiver of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or any other provision of this Agreement.
5. MISCELLANEOUS.
5.1 EXPENSES. The Purchaser hereby agrees that all fees and expenses
incurred by the Purchaser in connection with this Agreement shall be borne by
the Purchaser, and the Seller hereby agrees that all fees and expenses incurred
by the Seller shall be borne by the Seller, in each case including without
limitation all fees and expenses of such party's counsel and accountants.
5.2 HEADINGS. Section headings contained in this Agreement are included
for convenience only and shall not affect the interpretation of any provisions
of this Agreement.
5.3 ENTIRE AGREEMENT. This Agreement set forth the entire understanding
and agreement of the parties with respect to their subject matter and supersede
any and all prior understandings, negotiations or agreements among the parties
hereto, both written and oral, with respect to such subject matter.
5.4 NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole
benefit of and binding upon the parties hereto and their permitted successors
and assigns and nothing herein, express or implied, is intended to or shall
confer upon any other Person any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
5.5 AMENDMENT. This Agreement may be amended or modified only by an
instrument in writing signed by the Seller and the Purchaser.
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5.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute one and the same agreement.
5.7 GENDER AND NUMBER. Whenever used in this Agreement, the singular
number shall include the plural, the plural the singular, and the use of any
gender shall be applicable to all genders.
5.8 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of New York, without
giving effect to the principles of conflict of laws thereof. The parties agree
that any dispute arising out of or relating to this Agreement shall be resolved
by binding arbitration in the City of Albany, State of New York, under the
Commercial Arbitration Rules of the American Arbitration Association. Each of
the parties hereto consents, for itself and in respect of its property, to the
jurisdiction and venue of the City of Albany, State of New York for purposes of
this Section 5.8 and hereby irrevocably waives any objection, including any
objection to the laying of venue or based on the grounds of FORUM NON CONVENIENS
which it may now or hereafter have to the bringing of any dispute in the City of
Albany, State of New York, under the Commercial Arbitration RULES OF THE
American Arbitration Association, in respect of this Agreement or any documents
related thereto. Each of the parties hereto waives personal service of any
summons, complaint or other process, which may be made by any other means
permitted under New York law.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed as of the date first written above.
/s/ Anthony Malatino
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Anthony Malatino
/s/ Carl T. Wolf
----------------------------------
Carl T. Wolf
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) of Regulation 13D-G of the
Securities Exchange Act of 1934, the persons or entities below agree to the
joint filing on behalf of each of them of this Statement on Schedule 13D
(including any and all amendments thereto) with respect to the Common Stock of
Saratoga Beverage Group, Inc., and further agree that this Joint Filing
Agreement be included as an Exhibit to such joint filing. In evidence thereof,
the undersigned, being duly authorized, hereby execute this Agreement.
/s/ Carl T. Wolf
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CARL T. WOLF
/s/ Marion Wolf
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MARION WOLF
