SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)(1)
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)
April 24, 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 7 Pages)
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 803436 10 4 13D Page 2 of 7 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*
00
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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 75,000 shares
OWNED BY
EACH
REPORTING
PERSON WITH
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8 SHARED VOTING POWER
20,000 shares
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9 SOLE DISPOSITIVE POWER
75,000 shares
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10 SHARED DISPOSITIVE POWER
20,000 shares
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
95,000 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)
3.2%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 803436 10 4 13D Page 3 of 7 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*
00
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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
20,000 shares
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9 SOLE DISPOSITIVE POWER
0 shares
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10 SHARED DISPOSITIVE POWER
20,000 shares
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
20,000 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)
.7%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
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CUSIP No. 803436 10 4 13D Page 4 of 7 Pages
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The following constitutes Amendment No. 1 the Schedule 13D filed by the
undersigned (the "Schedule 13D").
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On February 25, 1998, Carl T. Wolf entered into a Securities Purchase
Agreement with the Issuer whereby Carl T. Wolf purchased 25,000 shares of Common
Stock at a price of $2.25 per share.
On April 24, 1998, Carl T. Wolf entered into a Letter Agreement with
the Issuer, dated April 17, 1998 (the "Letter Agreement"), whereby Carl T. Wolf
sold to the Issuer 150,000 shares of Common Stock at a price of $2.25 per share.
In addition, Carl T. Wolf entered into an Amended and Restated Option Agreement
dated as of April 17, 1998 with the Issuer whereby Carl T. Wolf agreed to, among
other things, reduce the number of shares of Common Stock subject to options
from 200,000 to 75,000, all of which shall be vested immediately.
On April 24, 1998, Carl T. Wolf entered into a Securities Purchase
Agreement dated April 16, 1998 with Anthony Malatino whereby Carl T. Wolf and
Anthony Malatino agreed to terminate and rescind the sale of 83,000 shares of
Common Stock at a price of $3.00 per share from Anthony Malatino to Carl T.
Wolf, as contemplated in the Securities Purchase Agreement dated February 12,
1998.
On April 24, 1998, the Reporting Persons entered into a Securities
Purchase Agreement with Steel Partners II, L.P. dated April 17, 1998 whereby the
Reporting Persons sold to Steel 25,000 shares of Common Stock at a price of
$2.25 per share.
All of the shares purchased and/or disposed of in the foregoing
transactions were being held jointly by the Reporting Persons.
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 2,979,139 shares, which is the total number
of shares of Common Stock outstanding as of March 4, 1998 as represented by the
Issuer in the Issuer Form 10-KSB for the fiscal year ended December 31, 1997.
As of the close of business on April 24, 1998, Carl T. Wolf
beneficially owned 95,000 shares of Common Stock, constituting approximately
3.2% of the shares outstanding. As of the close of business on April 24, 1998,
Marion Wolf beneficially owned 20,000
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CUSIP No. 803436 10 4 13D Page 5 of 7 Pages
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shares of Common Stock, constituting approximately .7% of the shares
outstanding.
(b) The Reporting Persons have shared voting and dispositive power as
to 20,000 of the shares reported in this Schedule 13D. Carl T. Wolf has the sole
power to vote and dispose of 75,000 of the shares reported in this Schedule 13D.
(c) The following table sets forth a description of all transactions in
shares of Common Stock of the Issuer by the Reporting Persons effected in the
last sixty days:
Number of
Shares Purchase
Purchase Date Purchased Price
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2/25/98 25,000 $2.25
Number of Sale
Sale Date Shares Sold Price
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4/24/98 150,000 $2.25
4/24/98 83,000 $3.00
4/24/98 25,000 $2.25
(d) No persons 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) As of April 24, 1998, the Reporting Persons ceased to be the
beneficial owners of more than five percent of the Common Stock 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 as of February 25, 1998.
(b) Letter Agreement by and between Saratoga Beverage Group, Inc.
and Carl T. Wolf dated April 17, 1998.
(c) Amended and Restated Option Agreement by and between Saratoga
Beverage Group, Inc. and Carl T. Wolf dated as of April 17,
1998.
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CUSIP No. 803436 10 4 13D Page 6 of 7 Pages
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(d) Securities Purchase Agreement by and between Anthony Malatino
and Carl T. Wolf dated April 16, 1998.
(e) Securities Purchase Agreement between Carl T. Wolf and Marion
Wolf and Steel Partners II, L.P dated April 17, 1998.
<PAGE>
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CUSIP No. 803436 10 4 13D Page 7 of 7 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: April 27, 1998 /S/ CARL WOLF
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Carl T. Wolf
Dated: April 27, 1998 /S/ MARION WOLF
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Marion Wolf
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of February 25, 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, 25,000 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");
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. 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.
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.
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
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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, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. The Company has taken
all necessary corporate action to authorize the execution, delivery and
performance by it 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 Company and, assuming due authorization,
execution and delivery of this Agreement by the Purchaser, this Agreement
constitutes the legal, valid and binding obligation of the Company enforceable
against the Company 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.
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, 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
2
<PAGE>
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.
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,
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
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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.
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
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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
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. 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.
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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-1, 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 1(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 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)
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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 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 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.
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.
7
<PAGE>
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
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.
8
<PAGE>
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 sets 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 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.
9
<PAGE>
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
[Letterhead of Saratoga Beverage Group, Inc.]
April 17, 1998
Mr. Carl T. Wolf
627 Inwood Lane
South Orange, NJ 07079
Dear Carl:
This letter, when executed and returned by you, will constitute a
binding agreement between you and Saratoga Beverage Group, Inc. (the Company )
to resell certain of the shares of the Company s Class A Common Stock, par value
$0.01 per share (the Common Stock ), purchased under that certain Securities
Purchase Agreement dated as of February 12, 1998 between you and the Company
(the First Agreement ) and under that certain Securities Purchase Agreement
dated as of February 25, 1998 between you and the Company (the Second Agreement
); and to modify the Stock Option Agreement dated as of February 4, 1998 between
you and the Company (the Option Agreement ).
You have informed the Company that due to personal reasons you are
not able to serve as a director of the Company and co-chairman of the Board of
Directors (the Board ) of the Company. You and the Company therefore agree that
(i) you will submit to the Company your resignation from the
Board and as co-chairman thereof in the form of Exhibit A hereto;
(ii) you and Marion Wolf (who you have informed the Company is
a joint holder with you of all Common Stock held by you) will resell
to the Company 150,000 shares of the total of 175,000 shares of
Common Stock sold to you pursuant to the First Agreement and the
Second Agreement (the Shares ), for a cash purchase price of $2.25
per share (or a total purchase price of $337,500), which price will
be paid to you and Marion Wolf simultaneously with the execution
hereof;
(iii) the option to purchase 200,000 shares of Common Stock
which was granted to you pursuant to the Option Agreement will be
amended such that (A) that the number of shares subject to such
option is reduced to 75,000 shares, all of which shall be vested
immediately, (B) the Expiration Date (as defined in the Option
Agreement) is advanced to February 3, 2003, (C) the condition set
forth in the last sentence of Paragraph 1(b) that the Option granted
thereby will cease to be exercisable when you no longer serve as a
director of the Company shall be deleted and (D) Paragraph 8(a) will
be replaced in its entirety with the following: The Company shall,
in connection with its presently contemplated registration statement
on Form S-8 under the Securities Act, cause to register all the
75,000 Shares which are the subject of the Option (the Piggyback
Registration ), which Piggyback Registration shall be effected prior
to July 15, 1998. Such amendments detailed in the foregoing clauses
(A) through (D) shall not be considered as amending or modifying any
<PAGE>
Mr. Carl T. Wolf
April 17, 1998
Page Two
other terms of the Option Agreement (a copy of the amended and restated Option
Agreement is attached hereto as Exhibit B, which amended Option Agreement will
be executed by the parties simultaneously herewith).
In connection with the sale of the Shares pursuant to (ii) above,
you and Marion Wolf agree to deliver to the Company, against payment therefor,
certificates representing the Shares, duly endorsed for transfer. You and Marion
Wolf hereby represent and warrant to the Company that you remain the sole owners
of the Shares, free and clear of all liens, claims, and encumbrances.
Please indicate your agreement to the foregoing by signing and
returning to me a copy of this letter. Upon such execution and delivery and the
execution and delivery hereof by Marion Wolf, and delivery of all consideration
contemplated to be delivered hereunder, this will become and valid and binding
agreement among you, Marion Wolf and the Company.
Very truly yours,
/s/ Robin Prever
-------------------------------
Robin Prever, President
Accepted and agreed:
/s/ Carl T. Wolf
- ------------------------
Carl T. Wolf
/s/ Marion Wolf
- ------------------------
Marion Wolf
AMENDED AND RESTATED STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered
into as of the 4th day of February, 1998, and amended and restated as of April
17, 1998, by and between Saratoga Beverage Group, Inc. (the "Company"), a
Delaware corporation, and 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.
On April 17, 1998, the Company and the Optionee entered into a
letter agreement whereby the Optionee and the Company agreed (i) to reduce the
number of Shares subject to the Option from 200,000 to 75,000, all of which
shall be vested immediately, (ii) to change the Expiration Date (as hereinafter
defined) to February 3, 2003 from February 3, 2008, (iii) to delete the
requirement that the Optionee continue to be a director in order to exercise the
Option and to delete references to the Optionee continuing as a director of the
Company and (iv) to change the requirements for Piggyback Registration (as
hereinafter defined). This Agreement reflects the above changes.
The Option is not intended to satisfy the requirements for an
incentive stock option (an "ISO") under Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"). The Company makes no representations or
warranties as to the income, estate or other tax consequences to the Optionee of
the grant or exercise of the Option or the sale or other disposition of the
Shares acquired pursuant to the exercise thereof.
1. (a) The price at which the Optionee shall have the right to
purchase the 75,000 Shares under this Agreement is $2.875 per Share, subject to
adjustment as provided in Paragraph 4 below.
(b) The entire Option shall be exercisable immediately. In no
event shall any Shares be purchasable under this Agreement after February 3,
2003 (the "Expiration Date").
2. [Intentionally deleted]
3. (a) Subject to Section 422 of the Code, neither the Option nor
any right under the Option shall be assignable, alienable, saleable or
transferable by the Optionee otherwise than by will or by the laws of descent
and distribution or pursuant to a qualified domestic relations order as defined
in the Code or Title I of the Employee Retirement Income Security Act, or the
rules thereunder; PROVIDED, HOWEVER, that, if so determined by the Board or a
committee thereof, the Optionee may, in the manner established by the Board or a
committee thereof in its sole discretion, designate a beneficiary or
beneficiaries to exercise the rights of the Optionee, and to receive any
property distributable, with respect to any Option upon the death of the
Optionee.
<PAGE>
(b) The Option shall not be pledged, alienated, attached, or
otherwise encumbered or transferred in any manner except to the extent that the
Option may be exercised by an executor or administrator or beneficiary as
provided in subparagraph 3(a) above, and any purported pledge, alienation,
attachment, encumbrance, or transfer thereof shall be void and unenforceable
against the Company. The Option may be exercised, during the lifetime of the
Optionee, only by the Optionee or his duly appointed guardian or legal
representative.
4. (a) In the event that the Board or a committee thereof shall
determine that the outstanding shares of Common Stock are affected by any (i)
subdivision or consolidation of shares, (ii) dividend or other distribution
(whether in the form of cash, Shares, other securities, or other property) or
(iii) recapitalization or other capital adjustment of the Company, such that an
adjustment is determined to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
hereunder, then the Board or a committee thereof shall, in such manner as it may
deem necessary to prevent dilution or enlargement of the benefits or potential
benefits intended to be made hereunder, adjust any or all of (x) the number and
type of Shares which may be subject to the Option, (y) the number and type of
Shares subject to the unexercised portion of the Option, and (z) the exercise
price per Share with respect to the Option; PROVIDED, HOWEVER, that the exercise
price per Share shall not be adjusted below the par value per Share of the
Common Stock. In computing any adjustment under this paragraph, any fractional
share shall be eliminated.
(b) In the event of the dissolution or liquidation of the
Company, or in the event of a Change in Control (as defined in the Company's
1983 Stock Option Plan), the Optionee shall have the right, immediately prior to
the record date for the determination of stockholders entitled to participate in
such dissolution, liquidation or Change in Control, to exercise the Option, in
whole or in part, without regard to any installment provisions contained in
subparagraph 1(b). In such event, the Company will mail or cause to be mailed to
the Optionee a notice specifying the date of such dissolution, liquidation or
Change in Control. Such notice shall be mailed at least ten (10) days prior to
the date therein specified to the address of the Optionee specified on page 1 of
this Agreement or to such other address as the Optionee delivers or transmits by
registered or certified mail to the Secretary of the Company at its principal
office.
5. The Option shall be exercised when written notice of such
exercise, signed by the person entitled to exercise the Option, has been
delivered or transmitted by registered or certified mail, to the Secretary of
the Company at its principal office. Said written notice shall specify the
number of Shares purchasable under the Option which such person then wishes to
purchase and shall be accompanied by such documentation, if any, as may be
required by the Company as provided in Paragraph 7 below and be accompanied by
payment of the aggregate Option price. Such payment of the aggregate Option
price shall be, without limitation, in the form of (i) cash, Shares, outstanding
Options or other consideration, or any combination thereof, having a Fair Market
Value on the exercise date equal to the exercise price of the Option or portion
thereof being exercised or (ii) a broker-assisted cashless exercise program
established by the Board or a committee thereof. Delivery of said notice and
such documentation shall constitute an irrevocable election to purchase the
Shares specified in said notice and the date on which the Company receives said
notice and documentation shall, subject to the provisions of Paragraph 7, be the
date as of which the Shares so purchased shall be deemed to have been issued.
The person entitled to exercise the Option shall not have the right or status as
a holder of the Shares to which such exercise relates prior to receipt by the
Company of such payment, notice and documentation. For purposes of this
Agreement, "Fair Market Value" shall mean, with respect to Shares or other
<PAGE>
securities, (i) the closing price per Share of the Shares on the principal
exchange on which the Shares are then trading, if any, on such date, or, if the
Shares were not traded on such date, then on the next preceding trading day
during which a sale occurred; or (ii) if the Shares are not traded on an
exchange but are quoted on Nasdaq or a successor quotation system, (1) the last
sales price (if the Shares are then listed on the Nasdaq National Market) or (2)
the mean between the closing representative bid and asked prices (in all other
cases) for the Shares on such date as reported by Nasdaq or such successor
quotation system; or (iii) if the Shares are not publicly traded on an exchange
and not quoted on Nasdaq or a successor quotation system, the mean between the
closing bid and asked prices for the Shares on such date as determined in good
faith by the Committee; or (iv) if the Shares are not publicly traded, the fair
market value established by the Committee acting in good faith.
6. (a) In combination with or in substitution for cash withholding
or any other legal method of satisfying federal and state withholding tax
liability, the Optionee may elect to have Shares withheld by the Company in
order to satisfy federal and state withholding tax liability (a "share
withholding election"); PROVIDED, HOWEVER, that (i) the Board or a committee
thereof shall not have revoked its advance approval of the Optionee's share
withholding election; and (ii) the share withholding election is made on or
prior to the date on which the amount of withholding tax liability is determined
(the "Tax Date"). If the Optionee elects within thirty (30) days of the date of
exercise to be subject to withholding tax on the exercise date pursuant to the
provisions of Section 83(b) of the Code, then the share withholding election may
be made during such thirty (30) day period. Notwithstanding the foregoing, the
Optionee may make a share withholding election only if the following additional
conditions are met: (i) the share withholding election is made no sooner than
six (6) months after the date of grant of the Option; and (ii) the share
withholding election is made (x) at least six (6) months prior to the Tax Date,
or (y) during the period beginning on the third business day following the date
of release of the Company's quarterly or annual financial results and ending on
the twelfth business day following such date.
(b) A share withholding election shall be deemed made when
written notice of such election, signed by the Optionee, has been delivered or
transmitted by registered or certified mail to the Secretary of the Company at
its principal office. Delivery of such notice shall constitute an irrevocable
election to have Shares withheld.
(c) If the Optionee has made a share withholding election
pursuant to this Section 6; and (i) within thirty (30) days of the date of
exercise of the Option, the Optionee elects pursuant to the provisions of
Section 83(b) of the Code to be subject to withholding tax on the date of
exercise of the Option, then the Optionee will be unconditionally obligated to
immediately tender back to the Company the number of Shares having an aggregate
Fair Market Value equal to the amount of tax required to be withheld plus cash
for any fractional amount, together with written notice to the Company informing
the Company of the Optionee's election pursuant to Section 83(b) of the Code; or
(ii) if the Optionee has not made an election pursuant to the provisions of
Section 83(b) of the Code, then on the Tax Date, such Optionee will be
unconditionally obligated to tender back to the Company the number of Shares
having an aggregate Fair Market Value equal to the amount of tax required to be
withheld plus cash for any fractional amount.
7. The Board or a committee thereof may require as a condition to
the right to exercise the Option hereunder that the Company receive from the
person exercising the Option, representations, warranties and agreements, at the
time of any such exercise, to the effect that the Shares are being purchased for
investment only and without any present intention to sell or otherwise
distribute such Shares and that the Shares will not be disposed of in
transactions which, in the opinion of counsel to the Company, would violate the
registration provisions of the Securities Act of 1933, as then amended (the
"Securities Act"), and the rules and regulations thereunder. The certificate
issued to evidence such Shares shall bear appropriate legends summarizing such
restrictions on the disposition thereof.
8. (a) The Company shall, in connection with its presently
contemplated registration statement on Form S-8 under the Securities Act, cause
to register all 75,000 Shares which are the subject of the Option (the
"Piggyback Registration"), which Piggyback Registration shall be effected prior
to July 15, 1998.
(b) The Optionee may not participate in any registration
initiated as a Piggyback Registration which is underwritten for the benefit of
the Company unless the Optionee (i) agrees to sell his Shares on the basis
provided in any underwriting agreements approved by the Company; (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting agreements and which are customary with industry practice; and
(iii) agrees that if an underwriter advises the Company in writing that the
number of shares proposed to be sold by the Company and/or the Optionee is
greater than the number of shares of Common Stock which the underwriter believes
is feasible to sell at that time, at the price and in the terms approved by the
Company, then the underwriter may exclude some or all of the Shares from such
Piggyback Registration. The Company shall advise the Optionee of the limitation,
and that the number of shares of Shares to be offered by the Optionee will be
reduced to the number recommended by the underwriter.
<PAGE>
(c) In any registration initiated as a Piggyback Registration,
whether or not the registration statement becomes effective, the Company will
pay or cause to be paid all costs, fees and expenses in connection therewith,
including, without limitation, the Company's legal and accounting fees, printing
expenses and "blue sky" fees and expenses, except that the Company shall not pay
for (i) underwriting discounts and commissions, (ii) state transfer taxes, (iii)
brokerage commissions, (iv) fees and expenses of counsel and accountants for the
Optionee and (v) blue sky fees and expenses in jurisdictions where the Company
is not currently registered or qualified.
(d) To the extent not inconsistent with applicable law, the
Optionee agrees not to effect any public sale or distribution of Common Stock,
including a sale pursuant to Rule 144 or in reliance on any other exemption from
registration under the Securities Act, during the fourteen (14) days prior to,
and during the ninety (90) days beginning on, the effective date of a
registration statement that includes Shares (except as part of such
registration), but only if and to the extent requested in writing (with
reasonable prior written notice) by the underwriter(s) in the case of an
underwritten public offering by the Company of securities similar to the Shares.
(e) The Company and the Optionee agree to indemnify and hold
harmless each other (and, in the case of the Company, its directors and officers
and each person who controls the Company (within the meaning of the Securities
Act)) against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) (collectively, "Losses") arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
any registration statement with respect to a Piggyback Registration, any
amendment or supplement thereto, any prospectus or preliminary prospectus or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
PROVIDED, HOWEVER, that the Optionee shall not be indemnified for Losses insofar
as such Losses arise out of or are based upon any such untrue statement or
omission based upon information furnished in writing to the Company by or on
behalf of the Optionee (in his individual capacity) expressly for use therein;
PROVIDED FURTHER, HOWEVER, that in the event the prospectus shall have been
amended or supplemented and copies thereof, as so amended or supplemented, shall
have been furnished to the Optionee prior to the confirmation of any sales of
Registrable Securities, such indemnity with respect to the prospectus shall not
inure to the benefit of the Optionee if the person asserting such Loss did not,
at or prior to the confirmation of the sale of the Registrable Securities to
such person, receive a copy of the prospectus, as so amended or supplemented,
and the untrue statement or omission of a material fact contained in the
prospectus was corrected in the prospectus, as so amended or supplemented.
<PAGE>
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
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated this 16th day of April, 1998
between Anthony Malatino, with an address at 32 Loudonwood East, Loudonville, NY
12211 (the Seller ) and Carl T. Wolf, with an address of 627 Inwood Lane, South
Orange, NJ 07079 (the Purchaser ).
WHEREAS, the Seller is the holder of 83,000 shares of Class B Common
Stock, par value $0.01 per share, of Saratoga Beverage Group, Inc. (the Shares
); and
WHEREAS, the Seller and the Purchaser contemplated that the Seller
would sell the Shares to the Purchaser, pursuant to a Securities Purchase
Agreement dated February 12, 1998 between the Seller and the Purchaser (the
Agreement); and
WHEREAS, in contemplation of such sale, the Purchaser paid the
Seller consideration of $249,000 pursuant to the Agreement; and
WHEREAS, notwithstanding the payment of such consideration the sale
of the Shares contemplated by the Agreement has not been consummated; and
WHEREAS, the Seller and the Purchaser have mutually determined that
they wish to rescind the sale of the Shares and to terminate the Agreement;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. The Seller and the Purchaser agree to terminate the Agreement and
rescind the contemplated purchase by the Purchaser of the Shares pursuant to the
Agreement, such rescission to occur as of February 12, 1998, the date the
Agreement was executed and delivered and partial consideration was paid to the
Seller.
2. All proceeds received by the Seller from the Purchaser in
contemplation of such sale (which the parties acknowledge is $249,000) will be
returned without interest simultaneously with the execution hereof.
3. In connection with the rescission of the contemplated purchase of
the Shares, the Seller and the Purchaser acknowledge that neither the 83,000
shares which were to have purchased pursuant to the Agreement, nor any other
shares that may have been contemplated to be purchased by the Purchaser from the
Seller, have been delivered; and that the sale contemplated by the Agreement has
not been consummated.
4. The Seller and the Purchaser agree that they will treat such
contemplated sale for all purposes as not having occurred.
<PAGE>
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals as of the date first above written.
/s/ Carl T. Wolf
------------------------------
Carl T. Wolf
/s/ Anthony Malatino
------------------------------
Anthony Malatino
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated this 17th day of April, 1998
between Carl T. Wolf and Marion Wolf, with an address of 627 Inwood Lane, South
Orange, NJ 07079 (collectively, the Sellers ) and Steel Partners II, L.P., a
Delaware limited partnership with its address at 750 Lexington Avenue, New York,
NY 10022 (the Purchaser ).
WHEREAS, the Sellers are holders of 25,000 shares of Class A Common
Stock, par value $0.01 per share, of Saratoga Beverage Group, Inc. (the Shares
); and
WHEREAS, the Sellers desire to sell, and the Purchaser desires to
purchase, the Shares;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. The Sellers, jointly and severally, hereby agree to sell the
Shares to the Purchaser for a cash purchase price of $2.25 per share (or a total
purchase price of $56,250), which price will be paid to the Sellers.
2. The Sellers agree to deliver to the Purchaser, against payment
therefor, certificates representing the Shares, duly endorsed for transfer. The
Sellers hereby represent and warrant to the Purchaser that they are the sole
owners of the Shares, free and clear of all liens, claims, and encumbrances.
3. The Purchaser acknowledges that it has been informed that the
Shares have not been registered under the Securities Act of 1933, as amended, or
under the securities laws of any state, and may not be transferred in the
absence of such registration or an exemption from the requirements thereof.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals as of the date first above written.
/s/ Carl T. Wolf
-----------------------------
Carl T. Wolf
/s/ Marion Wolf
-----------------------------
Marion Wolf
Steel Partners II, L.P.
By: Steel Partners, LLC
By:/s/ Warren Lichtenstein
--------------------------
Warren Lichtenstein
Managing Member
