UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(AMENDMENT NO. 2*)
Under the Securities Exchange Act of 1934
Saratoga Beverage Group, Inc.
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(Name of Issuer)
Common Stock, $.01 par value
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(Title of Class of Securities)
803436 10 4
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(CUSIP Number)
Steven Wolosky, Esq.
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue
New York, NY 10022
(212) 753-7200
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(Name, Address and Telephone Number
of Person Authorized to
Receive Notices and Communications)
January 5, 2000
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
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If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d- 1(g), check the
following box.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent. *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 ("Act") 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 29 Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
STEEL PARTNERS II, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION
DELAWARE
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 506,258
OWNED BY ---------------------------------------------------------------
EACH
REPORTING
PERSON WITH
8 SHARED VOTING POWER
-0-
---------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
506,258
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
506,258
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 803436 10 4 13D Page 3 of 29 Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
WARREN LICHTENSTEIN
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION
USA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 552,512
OWNED BY
EACH ---------------------------------------------------------------
REPORTING
PERSON WITH
8 SHARED VOTING POWER
- 0 -
---------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
552,512
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
552,512
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 803436 10 4 13D Page 4 of 29 Pages
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SCHEDULE 13D
AMENDMENT NO. 2
The following constitutes Amendment No. 2 to the Schedule 13D previously filed
by the undersigned. This Amendment No. 2 amends and supplements the Schedule 13D
as specifically set forth herein.
Item 3. Source and Amount of Funds or Other Consideration.
--------------------------------------------------
Item 3 is hereby supplemented as follows:
The aggregate purchase price of $219,705 for the 46,254 shares of
Common Stock owned by Mr. Lichtenstein was paid by the cashless exercise of
certain options held by Mr. Lichtenstein.
Item 4. Purpose of the Transaction.
---------------------------
Item 4 is hereby supplemented as follows:
The Issuer entered into a Stock Purchase Agreement and Agreement and
Plan of Merger dated as of January 5, 2000 (the "Merger Agreement") with NCP-SBG
Recapitalization Corp. and NCP-SBG, L.P., both of which are affiliates of North
Castle Partners, L.L.C. On the closing of the transactions contemplated by the
Merger Agreement, NCP-SBG Recapitalization Corp. will merge with and into the
Issuer (the "Merger") and the Issuer shall continue as the surviving corporation
(the "Surviving Corporation"). The stockholders of the Issuer (other than
certain stockholders of the Issuer, including directors and officers of the
Issuer, who have agreed to roll over a portion of their shares of the Common
Stock into the Surviving Corporation, such stockholders to be referred to herein
as the "Continuing Stockholders") will receive $6.00 per share in cash without
interest in connection with the Merger for each share of Common Stock they hold.
According to the Issuer's public announcement respecting the Merger,
consummation of the transactions contemplated by the Merger Agreement is subject
to several conditions, including, among others, the consummation of certain debt
financings, the approval of the Merger by the Issuer's stockholders, the
expiration or termination of the waiting period under the Hart-Scott Rodino laws
and the absence of material adverse changes to the business of the Issuer.
Based on the belief of Mr. Lichtenstein that the Merger should increase
the value of the Issuer to its stockholders, Mr. Lichtenstein exercised 95,500
options to purchase shares of the Issuer's Common Stock as of January 5, 2000.
As a result of the cashless exercise of the options, Mr. Lichtenstein increased
his beneficial ownership of the Issuer's Common Stock by 46,254 shares.
Additionally , each of the Reporting Persons has also agreed to roll over a
portion of their aggregate shares of the Issuer's Common Stock in connection
with the Merger. In connection with and as a condition to the execution and
delivery of the Merger Agreement each of the Reporting Persons and NCP-SBG, L.P.
signed Voting Agreements each dated as of January 5, 2000 which, among other
things, appoint NCP-SBG, L.P. as each of the Reporting Person's irrevocable
proxy to vote all of the Reporting Persons' shares of the Issuer's Common Stock
in favor of the transactions contemplated by the Merger Agreement.
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CUSIP No. 803436 10 4 13D Page 5 of 29 Pages
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Item 5. Interest in Securities of the Issuer.
-------------------------------------
Items 5(a), 5(b) and 5(c) are hereby amended and restated in their
entirety as follows:
(a) The aggregate percentage of Common Stock reported to be owned by
the Reporting Persons is based on 5,508,348 shares, which is the total number of
shares of Common Stock outstanding as of January 4, 2000 as represented by the
Issuer in the Merger Agreement.
As of the close of business on January 5, 2000, Steel Partners II
beneficially owns 506,258 shares of Common Stock, constituting approximately
9.2% of the shares outstanding and Mr. Lichtenstein beneficially owns 552,512
shares of Common Stock, constituting approximately 10.0% of the shares
outstanding. Mr. Lichtenstein has sole voting and dispositive power with respect
to the 506,258 shares of Common Stock owned by Steel Partners II by virtue of
his authority to vote and dispose of such shares. All of the shares of Common
Stock beneficially owned by Steel Partners II were acquired in open-market
transactions. Mr. Lichtenstein acquired 46,254 shares of Common Stock held in
his name through the cashless exercise of stock options on January 5, 2000
granted by the Issuer.
(b) Pursuant to the Voting Agreements, the Reporting Persons each
appointed NCP-SBG, L.P. as their irrevocable proxy to vote each share of the
Common Stock held by them, at any annual, special or adjourned meeting of the
stockholders of the Issuer (i) in favor of the adoption of the Merger Agreement
, (ii) against any proposal or offer from any other person relating to the
acquisition or purchase of all or substantially all of the assets of, or any
equity interest in, the Issuer or any of its subsidiaries or any
recapitalization, business combination or similar transaction with the Issuer or
any of its subsidiaries (an "Acquisition Proposal") and (iii) in favor of any
other matter necessary to the consummation of the transactions contemplated by
the Merger Agreement. The proxy granted in the Voting Agreements is irrevocable
until the Voting Agreements terminate.
During the term of the Voting Agreements, the Reporting Persons each
have agreed, except pursuant to the terms of the Merger Agreement and Voting
Agreement, not to (A) sell, tender, pledge or otherwise dispose of shares of the
Common Stock, (B) deposit such shares into a voting agreement or arrangement, or
grant any proxy or power of attorney with respect to such shares or (C) enter
into any instrument or arrangement with respect to the direct or indirect
acquisition or sale, assignment, transfer or other disposition of such shares.
The Voting Agreements also provide that the Reporting Persons shall not,
directly or indirectly, solicit, initiate or encourage the submission of an
Acquisition Proposal by any person.
The Voting Agreements terminate upon the earlier of (i) the termination
of the Merger Agreement, in accordance with its terms, for any reason and (ii)
the consummation of the Merger.
(c) Schedule A annexed hereto lists all transactions in the Issuer's
Common Stock in the last sixty days by the Reporting Persons.
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CUSIP No. 803436 10 4 13D Page 6 of 29 Pages
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Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
-----------------------------------------------------------------------
to Securities of Issuer.
------------------------
Item 6 is hereby supplemented as follows:
The descriptions of the Voting Agreements provided in Item 5 above are
hereby incorporated herein. The preceding summary of the same is not intended to
be complete and is qualified in its entirety by reference to the full text of
the same, copies of which are incorporated herein by reference.
Item 7. Materials to be Filed as Exhibits.
----------------------------------
Item 7 is hereby supplemented as follows:
Exhibit 3 Voting Agreement dated as of January 5, 2000 among
NCP-SBG, L.P. and Steel Partners II, L.P.
Exhibit 4 Voting Agreement dated as of January 5, 2000 among
NCP-SBG, L.P. and Warren G. Lichtenstein.
SIGNATURES
----------
After reasonable inquiry and to the best of his knowledge and
belief, each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: January 17, 2000 STEEL PARTNERS II, L.P.
By: Steel Partners, L.L.C., General Partner
By: /s/ Warren G. Lichtenstein
------------------------------------------
Warren G. Lichtenstein,
Chief Executive Officer
/s/ Warren G. Lichtenstein
---------------------------------------------
Warren G. Lichtenstein
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CUSIP No. 803436 10 4 13D Page 7 of 29 Pages
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SCHEDULE A
Transactions in the Common Stock
Within the Past 60 Days
Warren G. Lichtenstein
Shares of Common
Stock Purchased Price Per Share Date of Purchases
--------------- --------------- -----------------
46,254 Cashless Exercise Price January 5, 2000
of Stock Options at $4.75
per share
There were no transactions for Steel Partners II, L.P. within the past
60 days of the filing of this Amendment No. 2 of Schedule 13D.
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CUSIP No. 803436 10 4 13D Page 8 of 29 Pages
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EXHIBIT INDEX
Exhibit 3 Voting Agreement dated as of January 5, 2000 among NCP-SBG, L.P.
and Steel Partners II, L.P.
Exhibit 4 Voting Agreement dated as of January 5, 2000 among NCP-SBG, L.P.
and Warren G. Lichtenstein.
<PAGE>
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CUSIP No. 803436 10 4 13D Page 9 of 29 Pages
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EXHIBIT 3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 5, 2000 (this
"Agreement"), among NCP-SBG, L.P., a Delaware limited partnership ("Purchaser"),
and Steel Partners II, L.P. ("Stockholder"). Capitalized terms used herein
without definition shall have the meanings set forth in the Merger Agreement (as
defined herein).
WHEREAS, as of the date hereof, Stockholder owns or controls
506,258 shares of Class A Common Stock, par value $.01 per share (the "Class A
Company Common Stock"), of Saratoga Beverage Group, Inc., a Delaware corporation
(the "Company") and no shares of Class B Common Stock, par value $0.01 per share
of the Company (the "Class B Common Stock") (all such shares of Class A Common
Stock and Class B Common Stock and any shares of Class A Common Stock or Class B
Common Stock of which ownership (either beneficially or of record) or control is
hereafter acquired by the Stockholder prior to the termination of this Agreement
being referred to herein as the "Shares");
WHEREAS, Purchaser, NCP-SBG Recapitalization Corp., a Delaware
corporation ("MergerCo"), and the Company are entering into a Stock Purchase
Agreement and Agreement and Plan of Merger, dated as of even date herewith (as
the same may be amended from time to time, the "Merger Agreement"), which
provides, upon the terms and subject to the conditions thereof, for the merger
of MergerCo with and into the Company (the "Merger"); and
WHEREAS, as a condition to the willingness of Purchaser and
MergerCo to enter into the Merger Agreement, Purchaser and MergerCo have
required that the Stockholder agree, and, in order to induce Purchaser and
MergerCo to enter into the Merger Agreement, the Stockholder has agreed, subject
to the terms and conditions hereof, to vote all Shares he or it then owns or
controls at the time of the Special Meeting in favor of the adoption of the
Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements and covenants set forth herein and in the Merger Agreement,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
Section 1.1 Transfer of Shares. (a) During the term of this
Agreement, the Stockholder shall not (i) take any action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect
or have the effect of preventing or disabling Stockholder from performing its
obligations under this Agreement, or (ii) except pursuant to the terms of the
Merger Agreement and this Agreement (A) sell, tender, pledge or otherwise
dispose of any of the Shares, (B) deposit the Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Shares or
grant any proxy or power of attorney with respect thereto or (C) enter into any
instrument or arrangement with respect to the direct or indirect acquisition or
sale, assignment, transfer or other disposition of any Shares; provided,
however, that the Stockholder shall have the right to transfer Shares by gift to
any
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CUSIP No. 803436 10 4 13D Page 10 of 29 Pages
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Person directly or indirectly controlled by the Stockholder or through the laws
of descent, provided, further that such transferee agrees in writing to become a
party to this Agreement.
(b) Stop Transfer. The Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer is
made in compliance with this Agreement.
Section 1.2 Voting of Shares; Further Assurances. (a) The
Stockholder, with respect to all Shares, does hereby irrevocably (until the
termination hereof in accordance with Section 5.12) constitute and appoint
NCP-SBG with full power of substitution, as his or its true and lawful attorney
and proxy, for and in his or its name, place and stead, to vote each of such
Shares as his or its proxy, at any annual, special or adjourned meeting of the
stockholders of the Company (including the right to sign his or its name, as
stockholder, to any consent, certificate or other document relating to the
Company that may be permitted or required by applicable Law) (i) in favor of the
adoption of the Merger Agreement, (ii) against any transaction pursuant to an
Acquisition Proposal (as defined herein) or any other action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or which
could result in any of the conditions to the Company's obligations under the
Merger Agreement not being fulfilled or could impede, interfere with, delay or
materially adversely affect the Merger or the transactions contemplated hereby
or by the Merger Agreement and (iii) in favor of any other matter necessary to
the consummation of the transactions contemplated by the Merger Agreement. THE
STOCKHOLDER ACKNOWLEDGES THAT PURCHASER AND MERGERCO ARE ENTERING INTO THE
MERGER AGREEMENT IN RELIANCE UPON THIS AGREEMENT AND INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION HEREOF IN ACCORDANCE WITH SECTION 5.12) AND
COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH
OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH RESPECT TO
THE SHARES. NOTWITHSTANDING THE FOREGOING, THIS PROXY SHALL BE AUTOMATICALLY
REVOKED WITHOUT ANY FURTHER ACTION ON THE PART OF ANY STOCKHOLDER OR PURCHASER
UPON THE TERMINATION HEREOF IN ACCORDANCE WITH SECTION 5.12. The Stockholder
further agrees to cause all Shares controlled or owned by him beneficially and
of record to be voted in accordance with the foregoing. The Stockholder hereby
acknowledges both receipt of a copy of the Merger Agreement and that such
Stockholder understands the contents thereof.
(b) The Stockholder shall perform such further acts and
execute such further documents and instruments as may reasonably be required to
vest in Purchaser the power to carry out the provisions of this Agreement;
provided, however, the Stockholder shall not be required to pay any
monies or incur any liability in connection with the foregoing.
(c) The Stockholder shall take all such other actions as such
other actions as shall be reasonably requested by Purchaser in order to assist
in, and shall cooperate with Purchaser in connection with, the consummation of
the transactions contemplated by the Merger Agreement; provided, however, the
Stockholder shall not be required to pay any monies or incur any liability in
connection with the foregoing.
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CUSIP No. 803436 10 4 13D Page 11 of 29 Pages
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Section 1.3 Waiver of Appraisal Rights and Dissenter's Rights.
The Stockholder hereby waives any rights of appraisal or rights to dissent that
Stockholder may have under applicable Law in connection with the Merger.
Section 1.4 Certain Events. The Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any Person to which legal or beneficial ownership of such Shares
shall pass, whether by operation of Law or otherwise, including, without
limitation, the Stockholder's heirs, guardians, administrators or successors or
as a result of any divorce.
ARTICLE II
NON-SOLICITATION
Section 2.1 Acquisition Proposals. The Stockholder shall not,
directly or indirectly, through any representative, agent or otherwise, solicit,
initiate or encourage the submission of any proposal or offer from any Person
relating to any acquisition or purchase of all or substantially all of the
assets of, or any equity interest in, the Company or any of its Subsidiaries or
any recapitalization, business combination or similar transaction with the
Company or any of its Subsidiaries (any communication with respect to the
foregoing being an "Acquisition Proposal") or enter into any agreement with
respect to, or sell, transfer or otherwise dispose of any shares of Company
Common Stock pursuant to, any Acquisition Proposal. The Stockholder will
immediately cease all existing activities, discussions and negotiations with any
parties conducted heretofore with respect to any Acquisition Proposal. From and
after the execution of this Agreement, the Stockholder shall as promptly as
practicable advise Purchaser in writing of the receipt, directly or indirectly,
of any inquiries, discussions, negotiations or proposals relating to an
Acquisition Proposal that the Stockholder receives (including the material terms
thereof and the identity of the other party or parties involved) and furnish to
Purchaser within two Business Days of such receipt an accurate description of
all material terms (including any changes or adjustments to such terms as a
result of negotiations or otherwise) of any such written proposal in addition to
any information provided to any third party relating thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Purchaser as
follows:
Section 3.1 Authorization. The Stockholder has the legal
capacity, power and authority to enter into, and perform all of his or its
obligations under, this Agreement. This Agreement has been duly executed and
delivered by the Stockholder and constitutes the legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms.
Section 3.2 No Conflict; Consents. (a) Neither the execution
and delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will result in (with or without notice or lapse of time or
both) (i) any breach, violation or default under any agreement or instrument to
which the Stockholder is a party or by which the Stockholder or his or its
properties or
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CUSIP No. 803436 10 4 13D Page 12 of 29 Pages
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assets are bound, (ii) the violation of any Law applicable to or affecting the
Stockholder of any of his or its properties or assets, or (iii) the creation of
any Lien on the Stockholder or his or its properties or assets, except the
encumbrances and proxies on the shares created hereby. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which
the Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by the Stockholder of the
transactions contemplated by this Agreement. If such Stockholder is married and
such Stockholder's Shares constitute community property or otherwise require
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, such Stockholder's spouse,
enforceable against such person in accordance with its terms.
(b) No Governmental Approval of any Governmental Authority is
necessary for the execution, delivery or performance by it of this Agreement or
the consummation of the transactions contemplated hereby, except for applicable
requirements, if any, of the Exchange Act and the HSR Act.
Section 3.3 Title to Shares. Schedule A sets forth the number
and class of Shares with respect to which the Stockholder is either (i) the
record holder and beneficial owner; (ii) the general partner of a limited
partnership that is the record holder, and whose beneficiaries are the
beneficial owners; or (iii) the beneficial owner but not the record holder. The
Stockholder has (i) sole power of dis-position; (ii) sole voting power and (iii)
sole power to demand appraisal rights, in each case with respect to all of the
Shares and with no restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. The -Shares and the
certificates representing the Shares are now and at all times during the term
hereof will be held by the Stock-holder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all Liens, proxies, voting trusts
or agreements, understandings, arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder and
except for the Stockholder Agreement, dated as of October 13, 1998, by and among
the Company, Steven Bogen, Robin Prever and Anthony Malatino and the
Stockholders' Agreement, as of October 22, 1998 between Robin Prever and Anthony
Malatino.
Section 3.4 No Brokers. No broker, investment banker,
financial adviser or other Person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
such
Stockholder.
Section 3.5 Stockholders Agreement. The Stockholder hereby
covenants and agrees that, as of the Effective Time, he or it will enter into a
Stockholders Agreement substantially in the form set forth in Exhibit A hereto.
Section 3.6 Merger Agreement Consideration. The Stockholder
hereby acknowledges and agrees that (i) the consideration to be received by such
Stockholder pursuant to the Merger Agreement is different in form and kind than
the consideration to be received by certain other stockholders of the Company,
(ii) subject to the terms and conditions of the Merger Agreement, each Cashed
Out Share (as defined in the Merger Agreement) held by it will be converted
pursuant to the Merger Agreement into the right to receive, without interest,
cash in the amount of the Per Share Merger Consideration (as defined in the
Merger Agreement) and each Rollover Share (as defined in the Merger
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CUSIP No. 803436 10 4 13D Page 13 of 29 Pages
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Agreement) held by it will be converted pursuant to the Merger Agreement into
the right to receive a number of shares of Surviving Corporation Common Stock
(as defined in the Merger Agreement) equal to the quotient of (x) the Per Share
Merger Consideration divided by (y) the Per Share Amount (as defined in the
Merger Agreement), and (iii) such consideration is equal in value to the
consideration to be received by such other stockholders. The Stockholder hereby
waives any and all claims against the Company and the other parties to the
Merger Agreement with respect to the adequacy of the consideration received by
any Stockholder thereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
Purchaser hereby represent and warrant to the Stockholder as
follows:
Section 4.1 Due Organization; Authorization. Purchaser is duly
organized and validly existing under the laws of the State of Delaware.
Purchaser has all necessary limited partnership power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Purchaser have been duly authorized by all
necessary limited partnership action on the part of Purchaser. This Agreement
has been duly executed and delivered by Purchaser and constitutes the legal,
valid and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms.
Section 4.2 No Conflict; Consents. (a) Neither the execution
and delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will result in (with or without notice or lapse of time or
both) (i) any breach, violation or default under (x) any provision of the
Organizational Documents of Purchaser, (y) any Law applicable to or affecting
Purchaser or any of its properties or assets, or (z) any agreement or instrument
to which Purchaser is a party or by which Purchaser or any of its properties or
assets are bound, or (ii) the creation of any Lien on Purchaser or its
properties or assets.
(b) No Governmental Approval of any Governmental Authority is
necessary for the execution, delivery or performance by it of this Agreement or
the consummation of the transactions contemplated hereby, except for applicable
requirements, if any, of the Exchange Act and the HSR
Act.
Section 4.3 No Brokers. No broker, investment banker,
financial adviser or other Person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission from the Stockholder in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of NCP-SBG or its Affiliates.
<PAGE>
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CUSIP No. 803436 10 4 13D Page 14 of 29 Pages
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ARTICLE V
GENERAL PROVISIONS
Section 5.1 Notices. All notices, requests, demands, waivers
and other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by telecopy or
telegram, as follows:
(a) if to Purchaser to it:
c/o North Castle Partners, L.L.C.
60 Arch Street
Greenwich, Connecticut 06830
Facsimile: (203) 618-1860
Telephone: (203) 862-3250
Attention: Peter J. Shabecoff
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Facsimile: (212) 909-6836
Telephone: (212) 909-6000
Attention: Franci J. Blassberg, Esq.
(b) If to Stockholder to the address set forth on the
signature page hereto with a copy to:
Bourne Noll & Kenyon
382 Springfield Avenue
Summit, NJ 07902-0690
Facsimile: (908) 277-6808
Telephone: (908) 277-2200
Attention: John F. Kuntz, Esq.
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other
communications shall be deemed to have been received (w) if by personal delivery
on the day after such delivery, (x) if by certified or registered mail, on the
seventh Business Day after the mailing thereof, (y) if by next-day or overnight
mail or delivery, on the day delivered, (z) if by telecopy or telegram, on the
next day following the day on which such telecopy or telegram was sent, provided
that a copy is also sent by certified or registered mail.
<PAGE>
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CUSIP No. 803436 10 4 13D Page 15 of 29 Pages
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Section 5.2 Severability. If any provision, including any
phrase, sentence, clause, section or subsection, of this Agreement is invalid,
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering such provision in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision herein contained invalid, inoperative, or unenforceable to any extent
whatsoever.
Section 5.3 Entire Agreement. This Agreement constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Section 5.4 Assignment. Except in connection with a transfer
of Shares otherwise permitted hereunder, this Agreement shall not be assignable
or otherwise transferable by any party hereto without the prior written consent
of parties hereto, and any purported assignment or other transfer without such
consent shall be void and unenforceable; provided that Purchaser may assign this
Agreement or any of its rights and obligations hereunder to any of its
Affiliates or any other Person to whom it has validly assigned its rights under
the Merger Agreement.
Section 5.5 Amendment, Waivers, etc. No amendment,
modification or discharge of this Agreement, and no waiver hereunder, shall be
valid or binding unless set forth in writing and duly executed by the party
against whom enforcement of the amendment, modification, discharge or waiver is
sought. Any such waiver shall constitute a waiver only with respect to the
specific matter described in such writing and shall in no way impair the rights
of the party granting such waiver in any other respect or at any other time.
Neither the waiver by any of the parties hereto of a breach of or a default
under any of the provisions of this Agreement, nor the failure by any of the
parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall be construed as
a waiver of any other breach or default of a similar nature, or as a waiver of
any of such provisions, rights or privileges hereunder. The rights and remedies
herein provided are cumulative and none is exclusive of any other, or of any
rights or remedies that any party may otherwise have at law or in equity.
Section 5.6 No Third Party Beneficiaries. Nothing in this
Agreement shall confer any rights upon any person or entity other than the
parties hereto and their respective heirs, successors and permitted assigns,
except that the parties hereto hereby agree that the Company is a third party
beneficiary of this Agreement.
Section 5.7 Specific Performance. The parties hereto agree
that irreparable harm would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
Section 5.8 Governing Law. (a) EXCEPT TO THE EXTENT THE LAWS
OF THE STATE OF DELAWARE MANDATORILY APPLY, THIS AGREEMENT SHALL BE GOVERNED IN
ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS RULES THEREOF TO THE EXTENT THAT THE APPLICATION OF THE
<PAGE>
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CUSIP No. 803436 10 4 13D Page 16 of 29 Pages
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LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE COUNTY OF
NEW YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE
PROVISIONS OF THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS AGREEMENT,
AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. EACH PARTY
HEREBY WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR
PROCEEDING FOR THE INTERPRETATION AND ENFORCEMENT HEREOF, OR ANY SUCH DOCUMENT
OR IN RESPECT OF ANY SUCH TRANSACTION, THAT SUCH ACTION, SUIT OR PROCEEDING MAY
NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURTS OR THAT THE VENUE THEREOF
MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE
ENFORCED IN OR BY SUCH COURTS. EACH PARTY HEREBY CONSENTS TO AND GRANTS ANY SUCH
COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER
OF ANY SUCH DISPUTE AND AGREE THAT THE MAILING OF PROCESS OR OTHER PAPERS IN
CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION
5.1 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND
SUFFICIENT SERVICE THEREOF.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OR ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.8(b).
Section 5.9 Headings; Counterparts. The headings contained in
this Agreement are for purposes of convenience only and shall not affect the
meaning or interpretation of this Agreement. This Agreement may be executed in
several counterparts, each of which shall be deemed an original and all of which
shall together constitute one and the same instrument.
Section 5.10 Capacity. Purchaser hereby acknowledges that the
Stockholder is entering into this Agreement solely in his or its capacity as a
record and beneficial owner of the Shares, and nothing contained herein shall
impose any obligation on the Stockholder in his or its capacity as a
<PAGE>
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CUSIP No. 803436 10 4 13D Page 17 of 29 Pages
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director, officer or employee of the Company or limit or restrict any actions
taken or to be taken by him or it in any such capacity.
Section 5.11 Definitions; Construction. For purposes of this
Agreement:
(i) "beneficially own" or "beneficial ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
deter-mined pursuant to Rule 13d-3 under the Exchange Act), including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same holder,
securities beneficially owned by a Person shall include securities beneficially
owned by all other Persons with whom such Person would constitute a "group" as
described in Section 13(d)(3) of the Exchange Act.
(ii) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
Section 5.12 Termination. Notwithstanding anything in this
Agreement to the contrary, the obligations of the Stockholder pursuant to this
Agreement shall terminate upon the earlier of (i) the termination of the Merger
Agreement, in accordance with its terms, for any reason and (ii) the
consummation of the Merger.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
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CUSIP No. 803436 10 4 13D Page 18 of 29 Pages
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
NCP-SBG, L.P.
By: NCP-SBG GP, L.LC.,
its General Partner
By: /s/ Peter J. Shabecoff
------------------------------------
Name: Peter J. Shabecoff
Title: Executive Vice President
STEEL PARTNERS II, L.P.
By: STEEL PARTNERS, L.L.C.,
its General Partner
By: /s/ Warren Lichtenstein
------------------------------------
Name: Warren Lichtenstein
Title: Managing Member
Address of Stockholder:
150 East 52nd Street, 21st Floor
New York, NY 10022
<PAGE>
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CUSIP No. 803436 10 4 13D Page 19 of 29 Pages
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Schedule A
Stockholder is the: Number of Shares of Number of Shares of
Class A Common Stock Class B
Common Stock
- --------------------------------------------------------------------------------
Record and beneficial owner 506,258 None
- --------------------------------------------------------------------------------
General partner of a limited None None
partnership that is the record
owner of, and whose
beneficiaries are the beneficial
owners of
- --------------------------------------------------------------------------------
Beneficial owner but not the None None
record holder
- --------------------------------------------------------------------------------
<PAGE>
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CUSIP No. 803436 10 4 13D Page 20 of 29 Pages
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Exhibit 4
VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 5, 2000 (this "Agreement"),
among NCP-SBG, L.P., a Delaware limited partnership ("Purchaser"), and Warren G.
Lichtenstein ("Stockholder"). Capitalized terms used herein without definition
shall have the meanings set forth in the Merger Agreement (as defined herein).
WHEREAS, as of the date hereof, Stockholder owns or controls 552,512
shares of Class A Common Stock, par value $.01 per share (the "Class A Company
Common Stock"), of Saratoga Beverage Group, Inc., a Delaware corporation (the
"Company") and no shares of Class B Common Stock, par value $0.01 per share of
the Company (the "Class B Common Stock") (all such shares of Class A Common
Stock and Class B Common Stock and any shares of Class A Common Stock or Class B
Common Stock of which ownership (either beneficially or of record) or control is
hereafter acquired by the Stockholder prior to the termination of this Agreement
being referred to herein as the "Shares");
WHEREAS, Purchaser, NCP-SBG Recapitalization Corp., a Delaware
corporation ("MergerCo"), and the Company are entering into a Stock Purchase
Agreement and Agreement and Plan of Merger, dated as of even date herewith (as
the same may be amended from time to time, the "Merger Agreement"), which
provides, upon the terms and subject to the conditions thereof, for the merger
of MergerCo with and into the Company (the "Merger"); and
WHEREAS, as a condition to the willingness of Purchaser and MergerCo
to enter into the Merger Agreement, Purchaser and MergerCo have required that
the Stockholder agree, and, in order to induce Purchaser and MergerCo to enter
into the Merger Agreement, the Stockholder has agreed, subject to the terms and
conditions hereof, to vote all Shares he or it then owns or controls at the time
of the Special Meeting in favor of the adoption of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
Section 1.1 Transfer of Shares. (a) During the term of this
Agreement, the Stockholder shall not (i) take any action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect
or have the effect of preventing or disabling Stockholder from performing its
obligations under this Agreement, or (ii) except pursuant to the terms of the
Merger Agreement and this Agreement (A) sell, tender, pledge or otherwise
dispose of any of the Shares, (B) deposit the Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Shares or
grant any proxy or power of attorney with respect thereto or (C) enter into any
instrument or arrangement with respect to the direct or indirect acquisition or
sale, assignment, transfer or other disposition of any Shares; provided,
however, that the Stockholder shall have the right to transfer Shares by gift to
any
<PAGE>
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CUSIP No. 803436 10 4 13D Page 21 of 29 Pages
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Person directly or indirectly controlled by the Stockholder or through the laws
of descent, provided, further that such transferee agrees in writing to become a
party to this Agreement.
(b) Stop Transfer. The Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer is
made in compliance with this Agreement.
Section 1.2 Voting of Shares; Further Assurances. (a) The
Stockholder, with respect to all Shares, does hereby irrevocably (until the
termination hereof in accordance with Section 5.12) constitute and appoint
NCP-SBG with full power of substitution, as his or its true and lawful attorney
and proxy, for and in his or its name, place and stead, to vote each of such
Shares as his or its proxy, at any annual, special or adjourned meeting of the
stockholders of the Company (including the right to sign his or its name, as
stockholder, to any consent, certificate or other document relating to the
Company that may be permitted or required by applicable Law) (i) in favor of the
adoption of the Merger Agreement, (ii) against any transaction pursuant to an
Acquisition Proposal (as defined herein) or any other action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or which
could result in any of the conditions to the Company's obligations under the
Merger Agreement not being fulfilled or could impede, interfere with, delay or
materially adversely affect the Merger or the transactions contemplated hereby
or by the Merger Agreement and (iii) in favor of any other matter necessary to
the consummation of the transactions contemplated by the Merger Agreement. THE
STOCKHOLDER ACKNOWLEDGES THAT PURCHASER AND MERGERCO ARE ENTERING INTO THE
MERGER AGREEMENT IN RELIANCE UPON THIS AGREEMENT AND INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION HEREOF IN ACCORDANCE WITH SECTION 5.12) AND
COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH
OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH RESPECT TO
THE SHARES. NOTWITHSTANDING THE FOREGOING, THIS PROXY SHALL BE AUTOMATICALLY
REVOKED WITHOUT ANY FURTHER ACTION ON THE PART OF ANY STOCKHOLDER OR PURCHASER
UPON THE TERMINATION HEREOF IN ACCORDANCE WITH SECTION 5.12. The Stockholder
further agrees to cause all Shares controlled or owned by him beneficially and
of record to be voted in accordance with the foregoing. The Stockholder hereby
acknowledges both receipt of a copy of the Merger Agreement and that such
Stockholder understands the contents thereof.
(b) The Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Purchaser the power to carry out the provisions of this Agreement; provided,
however, the Stockholder shall not be required to pay any monies or incur
any liability in connection with the foregoing.
(c) The Stockholder shall take all such other actions as such other
actions as shall be reasonably requested by Purchaser in order to assist in, and
shall cooperate with Purchaser in connection with, the consummation of the
transactions contemplated by the Merger Agreement; provided, however, the
Stockholder shall not be required to pay any monies or incur any liability in
connection with the foregoing.
<PAGE>
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CUSIP No. 803436 10 4 13D Page 22 of 29 Pages
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Section 1.3 Waiver of Appraisal Rights and Dissenter's Rights. The
Stockholder hereby waives any rights of appraisal or rights to dissent that
Stockholder may have under applicable Law in connection with the Merger.
Section 1.4 Certain Events. The Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any Person to which legal or beneficial ownership of such Shares
shall pass, whether by operation of Law or otherwise, including, without
limitation, the Stockholder's heirs, guardians, administrators or successors or
as a result of any divorce.
ARTICLE II
NON-SOLICITATION
Section 2.1 Acquisition Proposals. The Stockholder shall not,
directly or indirectly, through any representative, agent or otherwise, solicit,
initiate or encourage the submission of any proposal or offer from any Person
relating to any acquisition or purchase of all or substantially all of the
assets of, or any equity interest in, the Company or any of its Subsidiaries or
any recapitalization, business combination or similar transaction with the
Company or any of its Subsidiaries (any communication with respect to the
foregoing being an "Acquisition Proposal") or enter into any agreement with
respect to, or sell, transfer or otherwise dispose of any shares of Company
Common Stock pursuant to, any Acquisition Proposal. The Stockholder will
immediately cease all existing activities, discussions and negotiations with any
parties conducted heretofore with respect to any Acquisition Proposal. From and
after the execution of this Agreement, the Stockholder shall as promptly as
practicable advise Purchaser in writing of the receipt, directly or indirectly,
of any inquiries, discussions, negotiations or proposals relating to an
Acquisition Proposal that the Stockholder receives (including the material terms
thereof and the identity of the other party or parties involved) and furnish to
Purchaser within two Business Days of such receipt an accurate description of
all material terms (including any changes or adjustments to such terms as a
result of negotiations or otherwise) of any such written proposal in addition to
any information provided to any third party relating thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Purchaser as
follows:
Section 3.1 Authorization. The Stockholder has the legal capacity,
power and authority to enter into, and perform all of his or its obligations
under, this Agreement. This Agreement has been duly executed and delivered by
the Stockholder and constitutes the legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
Section 3.2 No Conflict; Consents. (a) Neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will result in (with or without notice or lapse of time or
both) (i) any breach, violation or default under any agreement or instrument to
which
<PAGE>
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CUSIP No. 803436 10 4 13D Page 23 of 29 Pages
- ----------------------------- ----------------------------
the Stockholder is a party or by which the Stockholder or his or its properties
or assets are bound, (ii) the violation of any Law applicable to or affecting
the Stockholder of any of his or its properties or assets, or (iii) the creation
of any Lien on the Stockholder or his or its properties or assets, except the
encumbrances and proxies on the shares created hereby. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which
the Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by the Stockholder of the
transactions contemplated by this Agreement. If such Stockholder is married and
such Stockholder's Shares constitute community property or otherwise require
spousal or other approval for this Agreement to be legal, valid and binding,
this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, such Stockholder's spouse,
enforceable against such person in accordance with its terms.
(b) No Governmental Approval of any Governmental Authority is
necessary for the execution, delivery or performance by it of this Agreement or
the consummation of the transactions contemplated hereby, except for applicable
requirements, if any, of the Exchange Act and the HSR Act.
Section 3.3 Title to Shares. Schedule A sets forth the number and
class of Shares with respect to which the Stockholder is either (i) the record
holder and beneficial owner; (ii) the general partner of a limited partnership
that is the record holder, and whose beneficiaries are the beneficial owners; or
(iii) the beneficial owner but not the record holder. The Stockholder has (i)
sole power of disposition; (ii) sole voting power and (iii) sole power to demand
appraisal rights, in each case with respect to all of the Shares and with no
restrictions on such rights, subject to applicable federal securities laws and
the terms of this Agreement. The Shares and the certificates representing the
Shares are now and at all times during the term hereof will be held by the
Stock-holder, or by a nominee or custodian for the benefit of such Stockholder,
free and clear of all Liens, proxies, voting trusts or agreements,
understandings, arrangements or any other encumbrances whatsoever, except for
any such encumbrances or proxies arising hereunder and except for the
Stockholder Agreement, dated as of October 13, 1998, by and among the Company,
Steven Bogen, Robin Prever and Anthony Malatino and the Stockholders' Agreement,
as of October 22, 1998 between Robin Prever and Anthony Malatino.
Section 3.4 No Brokers. No broker, investment banker, financial
adviser or other Person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder.
Section 3.5 Stockholders Agreement. The Stockholder hereby covenants
and agrees that, as of the Effective Time, he or it will enter into a
Stockholders Agreement substantially in the form set forth in Exhibit A hereto.
Section 3.6 Merger Agreement Consideration. The Stockholder hereby
acknowledges and agrees that (i) the consideration to be received by such
Stockholder pursuant to the Merger Agreement is different in form and kind than
the consideration to be received by certain other stockholders of the Company,
(ii) subject to the terms and conditions of the Merger Agreement, each Cashed
Out Share (as defined in the Merger Agreement) held by it will be converted
pursuant to the Merger Agreement into the right to receive, without interest,
cash in the amount of the Per Share Merger Consideration (as defined in the
Merger Agreement) and each Rollover Share (as defined in the Merger Agreement)
held
<PAGE>
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CUSIP No. 803436 10 4 13D Page 24 of 29 Pages
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by it will be converted pursuant to the Merger Agreement into the right to
receive a number of shares of Surviving Corporation Common Stock (as defined in
the Merger Agreement) equal to the quotient of (x) the Per Share Merger
Consideration divided by (y) the Per Share Amount (as defined in the Merger
Agreement), and (iii) such consideration is equal in value to the consideration
to be received by such other stockholders. The Stockholder hereby waives any and
all claims against the Company and the other parties to the Merger Agreement
with respect to the adequacy of the consideration received by any Stockholder
thereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
Purchaser hereby represent and warrant to the Stockholder as follows:
Section 4.1 Due Organization; Authorization. Purchaser is duly
organized and validly existing under the laws of the State of Delaware.
Purchaser has all necessary limited partnership power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Purchaser have been duly authorized by all
necessary limited partnership action on the part of Purchaser. This Agreement
has been duly executed and delivered by Purchaser and constitutes the legal,
valid and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms.
Section 4.2 No Conflict; Consents. (a) Neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will result in (with or without notice or lapse of time or
both) (i) any breach, violation or default under (x) any provision of the
Organizational Documents of Purchaser, (y) any Law applicable to or affecting
Purchaser or any of its properties or assets, or (z) any agreement or instrument
to which Purchaser is a party or by which Purchaser or any of its properties or
assets are bound, or (ii) the creation of any Lien on Purchaser or its
properties or assets.
(b) No Governmental Approval of any Governmental Authority is
necessary for the execution, delivery or performance by it of this Agreement or
the consummation of the transactions contemplated hereby, except for applicable
requirements, if any, of the Exchange Act and the HSR Act.
Section 4.3 No Brokers. No broker, investment banker, financial
adviser or other Person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission from the Stockholder in connection
with the transactions contemplated hereby based upon arrangements made by or on
behalf of NCP-SBG or its Affiliates.
<PAGE>
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CUSIP No. 803436 10 4 13D Page 25 of 29 Pages
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ARTICLE V
GENERAL PROVISIONS
Section 5.1 Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by telecopy or
telegram, as follows:
(a) if to Purchaser to it:
c/o North Castle Partners, L.L.C.
60 Arch Street
Greenwich, Connecticut 06830
Facsimile: (203) 618-1860
Telephone: (203) 862-3250
Attention: Peter J. Shabecoff
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Facsimile: (212) 909-6836
Telephone: (212) 909-6000
Attention: Franci J. Blassberg, Esq.
(b) If to Stockholder to the address set forth on the signature page
hereto with a copy to:
Bourne Noll & Kenyon
382 Springfield Avenue
Summit, NJ 07902-0690
Facsimile: (908) 277-6808
Telephone: (908) 277-2200
Attention: John F. Kuntz, Esq.
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (w) if by personal delivery on the day
after such delivery, (x) if by certified or registered mail, on the seventh
Business Day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered, (z) if by telecopy or telegram, on the next day
following the day on which such telecopy or telegram was sent, provided that a
copy is also sent by certified or registered mail.
<PAGE>
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CUSIP No. 803436 10 4 13D Page 26 of 29 Pages
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Section 5.2 Severability. If any provision, including any phrase,
sentence, clause, section or subsection, of this Agreement is invalid,
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering such provision in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision herein contained invalid, inoperative, or unenforceable to any extent
whatsoever.
Section 5.3 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.
Section 5.4 Assignment. Except in connection with a transfer of
Shares otherwise permitted hereunder, this Agreement shall not be assignable or
otherwise transferable by any party hereto without the prior written consent of
parties hereto, and any purported assignment or other transfer without such
consent shall be void and unenforceable; provided that Purchaser may assign this
Agreement or any of its rights and obligations hereunder to any of its
Affiliates or any other Person to whom it has validly assigned its rights under
the Merger Agreement.
Section 5.5 Amendment, Waivers, etc. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought. Any
such waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time. Neither the
waiver by any of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any of the parties, on one or
more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of any
other breach or default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder. The rights and remedies herein
provided are cumulative and none is exclusive of any other, or of any rights or
remedies that any party may otherwise have at law or in equity.
Section 5.6 No Third Party Beneficiaries. Nothing in this Agreement
shall confer any rights upon any person or entity other than the parties hereto
and their respective heirs, successors and permitted assigns, except that the
parties hereto hereby agree that the Company is a third party
beneficiary of this Agreement.
Section 5.7 Specific Performance. The parties hereto agree that
irreparable harm would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 5.8 Governing Law. (a) EXCEPT TO THE EXTENT THE LAWS OF THE
STATE OF DELAWARE MANDATORILY APPLY, THIS AGREEMENT SHALL BE GOVERNED IN ALL
RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
RULES THEREOF TO THE EXTENT THAT THE APPLICATION OF THE
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CUSIP No. 803436 10 4 13D Page 27 of 29 Pages
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LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE COUNTY OF
NEW YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE
PROVISIONS OF THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS AGREEMENT,
AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. EACH PARTY
HEREBY WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR
PROCEEDING FOR THE INTERPRETATION AND ENFORCEMENT HEREOF, OR ANY SUCH DOCUMENT
OR IN RESPECT OF ANY SUCH TRANSACTION, THAT SUCH ACTION, SUIT OR PROCEEDING MAY
NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURTS OR THAT THE VENUE THEREOF
MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE
ENFORCED IN OR BY SUCH COURTS. EACH PARTY HEREBY CONSENTS TO AND GRANTS ANY SUCH
COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER
OF ANY SUCH DISPUTE AND AGREE THAT THE MAILING OF PROCESS OR OTHER PAPERS IN
CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION
5.1 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND
SUFFICIENT SERVICE THEREOF.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OR ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES --- THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 5.8(b).
Section 5.9 Headings; Counterparts. The headings contained in this
Agreement are for purposes of convenience only and shall not affect the meaning
or interpretation of this Agreement. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
Section 5.10 Capacity. Purchaser hereby acknowledges that the
Stockholder is entering into this Agreement solely in his or its capacity as a
record and beneficial owner of the Shares, and nothing contained herein shall
impose any obligation on the Stockholder in his or its capacity as a director,
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CUSIP No. 803436 10 4 13D Page 28 of 29 Pages
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officer or employee of the Company or limit or restrict any actions taken or to
be taken by him or it in any such capacity.
Section 5.11 Definitions; Construction. For purposes of this
Agreement:
(i) "beneficially own" or "beneficial ownership" with respect to any
securities shall mean - having "beneficial ownership" of such securities (as
deter-mined pursuant to Rule 13d-3 under the Exchange Act), including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same holder,
securities beneficially owned by a Person shall include securities beneficially
owned by all other Persons with whom such Person would constitute a "group" as
described in Section 13(d)(3) of the Ex-change Act.
(ii) In the event of a stock dividend or distribution, or any change in
the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
Section 5.12 Termination. Notwithstanding anything in this Agreement
to the contrary, the obligations of the Stockholder pursuant to this Agreement
shall terminate upon the earlier of (i) the termination of the Merger Agreement,
in accordance with its terms, for any reason and (ii) the consummation of the
Merger.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
NCP-SBG, L.P.
By: NCP-SBG GP, L.LC.,
its General Partner
By: /s/ Peter J. Shabecoff
-----------------------------------------
Name: Peter J. Shabecoff
Title: Executive Vice President
/s/ Warren G. Lichtenstein
--------------------------------------------
WARREN G. LICHTENSTEIN
Address of Stockholder:
c/o Steel Partners, L.L.C.
150 East 52nd Street, 21st Floor
New York, NY 10022
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CUSIP No. 803436 10 4 13D Page 29 of 29 Pages
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Schedule A
Stockholder is the: Number of Shares of Number of Shares of
Class A Common Stock Class B Common Stock
- --------------------------------------------------------------------------------
Record and beneficial owner 46,254 None
- --------------------------------------------------------------------------------
General partner of a limited 506,258 None
partnership that is the
record
owner of, and whose
beneficiaries are the
beneficial owners of
- --------------------------------------------------------------------------------
Beneficial owner but not the None None
record holder
- --------------------------------------------------------------------------------
