<PAGE>
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF
THE SECURITIES EXCHANGE ACT OF 1934
[X] Filed by the Registrant
[ ] Filed by a Party other than the Registrant
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only
(as permitted by Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or
Section 240.14a-12
SARATOGA BEVERAGE GROUP, INC.
- --------------------------------------------------------------------------------
(NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
- --------------------------------------------------------------------------------
(NAME OF PERSON(S) FILING PROXY STATEMENT, IF OTHER THAN THE REGISTRANT)
Payment of Filing Fee (Check the appropriate box):
[ ] No fee required
[X] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11
1) Title of each class of securities to which transaction applies:
Class A Common Stock, $.01 par value per share
Class B Common Stock, $.01 par value per share
----------------------------------------------------------------------------
2) Aggregate number of securities to which transaction applies:
5,433,173
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3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was determined):
The filing fee was determined based upon (a) 4,910,218 issued and
outstanding shares of Class A common stock, par value $.01 per share, which
does not include 550,000 shares which will be rolled over into the
surviving corporation, and 522,955 issued and outstanding shares of Class B
common stock, par value $.01 per share (together, the "Shares"), of
Saratoga Beverage Group, Inc. as of January 14, 2000, and (b) the merger
consideration of $6.00 per Share (the "Merger Consideration"), plus
$3,590,345 payable to holders of options and warrants to purchase Shares in
exchange for the cancellation of such options and warrants. The payment of
the filing fee, calculated in accordance with Regulation 240.0-11 under the
Securities Exchange Act of 1934, as amended, equals one-fiftieth of one
percent of the value of the Shares (and options and warrants to purchase
Shares) for which the Merger Consideration will be paid.
----------------------------------------------------------------------------
4) Proposed maximum aggregate value of transaction:
$36,189,383
----------------------------------------------------------------------------
5) Total fee paid:
$7,237.88
----------------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials
[X] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
$7,237.88
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2) Form, Schedule or Registration Statement No.:
Schedule 13E-3
-------------------------------------------------------------------------
3) Filing Parties:
Saratoga Beverage Group, Inc. and other filing parties
-------------------------------------------------------------------------
4) Date filed:
January 21, 2000
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<PAGE>
SARATOGA BEVERAGE GROUP, INC.
1000 AMERICAN SUPERIOR BOULEVARD,
WINTER HAVEN, FLORIDA 33884
April 17, 2000
Dear Stockholder:
You are cordially invited to attend a special meeting of stockholders,
including any adjournment or postponement of the special meeting, of Saratoga
Beverage Group, Inc. to be held on May 15, 2000 at 11:00 a.m., New York Time,
at the offices of Swidler Berlin Shereff Friedman, LLP, located at The Chrysler
Building, 405 Lexington Avenue, New York, New York 10174.
At the special meeting, you will be asked to consider and vote upon a
proposal to approve and adopt a Stock Purchase Agreement and Agreement and Plan
of Merger, dated as of January 5, 2000, by and among Saratoga, NCP-SBG, L.P., a
Delaware limited partnership (the "Purchaser"), and NCP-SBG Recapitalization
Corp., a Delaware corporation ("MergerCo"), which were organized to effect the
merger and related transactions at the direction of North Castle Partners,
L.L.C., providing for the merger of MergerCo with and into Saratoga, with
Saratoga continuing as the surviving corporation. A copy of the merger
agreement is attached as Annex A to, and a description of the merger agreement
is included in, the accompanying Proxy Statement.
Pursuant to the merger agreement, all holders of shares of Class A common
stock, $.01 par value per share, and Class B common stock, $.01 par value per
share, of Saratoga will be entitled to receive $6.00 in cash in exchange for
each outstanding share of Class A common stock and Class B common stock held by
them at the effective time of the merger, except for (i) certain other
stockholders, including the Chief Executive Officer and certain directors of
Saratoga, who will convert a minimum of 550,000 and a maximum of 700,000 of
their shares of Class A common stock into shares of common stock of the
surviving corporation and continue to be stockholders of Saratoga (such
continuing stockholders, the "Continuing Stockholders"), (ii) shares held by
Saratoga as treasury stock, and (iii) dissenting stockholders who have
perfected their rights in accordance with Delaware law. Please see Annex C to
the Proxy Statement for the text of Section 262 of the Delaware General
Corporation Law which governs the rights of dissenting stockholders of
corporations incorporated in Delaware. The receipt of cash for Class A common
stock and Class B common stock pursuant to the merger will be a taxable
transaction to Saratoga's stockholders for federal income tax purposes under
the Internal Revenue Code of 1986, as amended, and may also be a taxable
transaction under applicable state, local, foreign and other tax laws.
Pursuant to Delaware law, the affirmative vote of holders of at least a
majority of the voting power of Saratoga entitled to vote is required to
approve and adopt the merger agreement. Under the terms of the certificate of
incorporation of Saratoga, each share of Class A common stock is entitled to
one vote and each share of Class B common stock is entitled to five votes and
the classes vote together as a single class. The Continuing Stockholders hold
an aggregate of 1,877,262 shares of Class A common stock and 522,955 shares of
Class B common stock, representing approximately 58.65% of the outstanding
voting power of Saratoga. In connection with the execution of the merger
agreement, each Continuing Stockholder entered into a voting agreement with the
Purchaser and appointed the Purchaser as his, her or its irrevocable proxy to
vote all of his, her or its shares in favor of the approval and adoption of the
merger agreement. The voting agreements are subject to certain terms and
conditions and terminate upon termination of the merger agreement, including
termination of the merger agreement in connection with the acceptance by
Saratoga of a company superior proposal, as defined in the merger agreement.
Accordingly, unless the merger agreement is terminated in accordance with its
terms, the adoption of the merger agreement by Saratoga's stockholders is
expected to occur irrespective of whether or the manner in which Saratoga's
other stockholders vote their shares of Class A common stock.
<PAGE>
Since the Continuing Stockholders include members of Saratoga's board, the
Saratoga board has appointed a special committee of the board, comprised of two
non-employee directors of Saratoga who are not Continuing Stockholders, but who
will receive cash in exchange for their stock options upon consummation of the
merger, to negotiate the proposed merger, to consider the fairness of the
proposed merger to Saratoga and its stockholders, other than the Continuing
Stockholders, and to recommend to the board whether to proceed with the
proposed merger. In connection with its review and consideration of the
proposed merger, the special committee retained Schroder & Co. Inc. to act as
its financial advisor. On January 5, 2000, Schroders delivered its oral
opinion, which was subsequently confirmed in writing, to the special committee
to the effect that, as of the date of its opinion, the merger consideration of
$6.00 in cash per share of common stock to be received in the merger by
Saratoga's stockholders other than the Continuing Stockholders, is fair to
those stockholders from a financial point of view. A copy of Schroders' opinion
is attached as Annex B to, and a description of its opinion is included in, the
accompanying Proxy Statement.
The special committee has unanimously approved the merger as being fair to
and in the best interests of Saratoga and its stockholders, other than the
Continuing Stockholders, and, upon the recommendation of the special committee,
the board has also unanimously approved the merger as being fair to and in the
best interests of Saratoga and its stockholders, other than the Continuing
Stockholders. The board recommends that you vote FOR approval and adoption of
the merger agreement.
Attached is a Notice of Special Meeting of Stockholders and a Proxy
Statement containing a discussion of the background of, reasons for and terms
of the merger. We urge you to read this material carefully. Whether or not you
plan to attend the special meeting, we ask that you sign and return the
enclosed proxy as promptly as possible. If you attend the special meeting, your
proxy may be revoked if you elect to vote in person. Your prompt cooperation
will be greatly appreciated.
Very truly yours,
Robin Prever
President and Chief Executive Officer
YOUR VOTE IS IMPORTANT. PLEASE MARK, SIGN, DATE AND RETURN THE ENCLOSED PROXY
CARD PROMPTLY, WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING.
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON
MAY 15, 2000
To the Stockholders of Saratoga Beverage Group, Inc.:
Notice is hereby given that a special meeting of stockholders, including
any adjournment or postponement of the special meeting, of Saratoga Beverage
Group, Inc. will be held on May 15, 2000 at 11:00 a.m., New York Time, at the
offices of Swidler Berlin Shereff Friedman, LLP, located at The Chrysler
Building, 405 Lexington Avenue, New York, New York 10174 for the following
purposes:
1. To consider and vote upon a proposal to approve and adopt a Stock
Purchase Agreement and Agreement and Plan of Merger, dated as of January 5,
2000, by and among Saratoga, NCP-SBG, L.P., a Delaware limited partnership (the
"Purchaser"), and NCP-SBG Recapitalization Corp., a Delaware corporation
("MergerCo"), which were organized to effect the merger and related
transactions at the direction of North Castle Partners, L.L.C., pursuant to
which MergerCo will be merged with and into Saratoga, with Saratoga continuing
as the surviving corporation. Pursuant to the merger, each share of Class A
common stock, $.01 par value per share, and Class B common stock, $.01 par
value per share, of Saratoga issued and outstanding immediately prior to the
effective time of the merger (other than (i) shares held by Saratoga as
treasury stock, (ii) a minimum of 550,000 and a maximum of 700,000 shares of
Class A common stock owned by certain stockholders, including the Chief
Executive Officer and certain directors of Saratoga, who will convert a minimum
of 550,000 and a maximum of 700,000 of their shares of Class A common stock
into shares of common stock of the surviving corporation, and (iii) shares as
to which dissenters' rights have been validly perfected), will be converted
into the right to receive $6.00 in cash, without interest. A copy of the merger
agreement is included in the attached Proxy Statement as Annex A thereto and is
incorporated in this notice by reference.
2. To transact any other business as may properly come before the special
meeting. Management is not aware of any other business.
Any stockholder who does not wish to accept the merger consideration of
$6.00 per share and who properly demands appraisal under Delaware law will have
the right to have the fair value of his or her shares determined by the
Delaware Chancery Court. A copy of the relevant provisions of Delaware law are
included in the attached Proxy Statement as Annex C thereto. This appraisal
right is subject to a number of restrictions and technical requirements
described in the attached Proxy Statement.
Only stockholders of record as of the close of business on April 11, 2000
will be entitled to notice of the special meeting and to vote at the special
meeting. Any stockholder will be able to examine a list of holders of record,
for any purpose related to the special meeting, during the 10-day period before
the special meeting. The list will be available at Saratoga's corporate
headquarters located at 1000 American Superior Boulevard, Winter Haven, Florida
33884. Approval and adoption of the merger agreement requires the affirmative
vote by at least a majority of the voting power represented by the shares
entitled to vote at the special meeting.
Certain stockholders of Saratoga holding an aggregate of 1,877,262 shares
of Class A common stock and 522,955 shares of Class B common stock representing
approximately 58.65% of the outstanding voting power of Saratoga will convert a
minimum of 550,000 and a maximum of 700,000 of their shares of Class A common
stock into shares of common stock of the surviving corporation and continue to
be stockholders of Saratoga (such continuing stockholders, the "Continuing
Stockholders"). In connection with the execution of the merger agreement, each
Continuing Stockholder entered into a voting agreement with the Purchaser and
appointed the Purchaser as his, her or its irrevocable proxy to vote all of
his, her or its shares in favor of the approval and adoption of the merger
agreement. The voting agreements are subject to certain terms and conditions
and terminate upon termination of the merger agreement, including termination
of the
<PAGE>
merger agreement in connection with the acceptance by Saratoga of a company
superior proposal, as defined in the merger agreement. Accordingly, unless the
merger agreement is terminated in accordance with its terms, the adoption of
the merger agreement by Saratoga's stockholders is expected to occur
irrespective of whether or the manner in which Saratoga's other stockholders
vote their shares of Class A common stock.
By Order of the Board of Directors,
Irene Fonzi
Secretary
Saratoga Springs, New York
April 17, 2000
PLEASE DO NOT SEND IN ANY STOCK CERTIFICATES AT THIS TIME. UPON APPROVAL
OF THE MERGER, YOU WILL BE SENT INSTRUCTIONS REGARDING THE PROCEDURES TO
EXCHANGE YOUR EXISTING CERTIFICATES EVIDENCING COMMON STOCK OF SARATOGA FOR THE
CONSIDERATION TO BE PAID.
EACH STOCKHOLDER IS URGED TO COMPLETE, SIGN AND RETURN THE ENCLOSED PROXY
CARD IN THE ENVELOPE PROVIDED, WHICH REQUIRES NO POSTAGE IF MAILED IN THE
UNITED STATES. IF A STOCKHOLDER DECIDES TO ATTEND THE SPECIAL MEETING, HE OR
SHE MAY, IF SO DESIRED, REVOKE THE PROXY AND VOTE THE SHARES IN PERSON.
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
---------------------
PROXY STATEMENT
---------------------
FOR SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 15, 2000
INTRODUCTION
The enclosed proxy is solicited by and on behalf of the board of directors
of Saratoga Beverage Group, Inc. for use at the special meeting of stockholders
to be held on May 15, 2000 at 11:00 a.m., New York Time, at the offices of
Swidler Berlin Shereff Friedman, LLP, located at The Chrysler Building, 405
Lexington Avenue, New York, New York 10174 and any postponement or adjournment
of the special meeting. The matters to be considered and acted upon at the
special meeting are described in the foregoing notice of special meeting of
stockholders and this document. This document and the related form of proxy are
being mailed on or about April 17, 2000 to all stockholders of record on April
11, 2000. Shares of Saratoga's Class A common stock, $.01 par value, and Class
B common stock, $.01 per share, represented by proxies, will be voted as
described in this document or as otherwise specified by the stockholder. Any
proxy given by a stockholder may be revoked by the stockholder at any time,
prior to the voting of the proxy, by delivering a written notice to the
Secretary of Saratoga, by executing and delivering a later-dated proxy or by
attending the special meeting and voting in person.
At the special meeting, holders of the Class A common stock and Class B
common stock on April 11, 2000 will consider and vote upon the approval and
adoption of a Stock Purchase Agreement and Agreement and Plan of Merger, dated
as of January 5, 2000, by and among Saratoga, NCP-SBG, L.P., a Delaware limited
partnership (the "Purchaser"), and NCP-SBG Recapitalization Corp., a Delaware
corporation ("MergerCo"). The merger agreement provides, subject to the
approval of the stockholders of Saratoga at the special meeting and subject to
the satisfaction or waiver of certain other conditions, that:
o MergerCo will be merged with and into Saratoga, with Saratoga continuing as
the surviving corporation of the merger;
o each share of Class A common stock and Class B common stock that is
outstanding at the effective time of the merger, excluding:
-- a minimum of 550,000 and a maximum of 700,000 shares of Class A common
stock held by certain other stockholders, including the Chief Executive
Officer and certain directors of Saratoga, who will convert a minimum of
550,000 and a maximum of 700,000 of their shares of Class A common stock
into shares of common stock of the surviving corporation and will
continue to be stockholders of Saratoga (such continuing stockholders,
the "Continuing Stockholders" and the shares of such Continuing
Stockholders that will not be converted into the right to receive $6.00
per share in cash, without interest, the "Rollover Stock"),
-- shares held by Saratoga as treasury stock, and
-- shares as to which dissenters' rights are perfected in accordance with
Delaware law,
will be converted into the right to receive $6.00 per share in cash, without
interest, subject to applicable back-up withholding taxes;
o each share of Rollover Stock will be converted into the right to receive one
share of common stock of Saratoga as the corporation surviving the merger;
and
<PAGE>
o each existing option and warrant, whether vested or unvested, to purchase
shares of Class A common stock shall be canceled or repurchased for an
amount equal to the excess, if any, of $6.00 per share of Class A common
stock purchasable under each option and warrant over the exercise price
with respect to each share.
Pursuant to Delaware law, the affirmative vote of holders of at least a
majority of the voting power of Saratoga entitled to vote is required to
approve and adopt the merger agreement. Under the terms of the certificate of
incorporation of Saratoga, each share of Class A common stock is entitled to
one vote and each share of Class B common stock is entitled to five votes and
the classes vote together as a single class. The Continuing Stockholders hold
an aggregate of 1,877,262 shares of Class A common stock and 522,955 shares of
Class B common stock, representing approximately 58.65% of the outstanding
voting power of Saratoga. The identities of the Continuing Stockholders and the
number of shares of common stock they own that are Rollover Stock is set forth
in "The Merger-Interests of Certain Person in the Merger." In connection with
the execution of the merger agreement, each Continuing Stockholder entered into
a voting agreement with the Purchaser and appointed the Purchaser as his, her
or its irrevocable proxy to vote all of his, her or its shares in favor of the
merger agreement. The voting agreements are subject to certain terms and
conditions and terminate upon termination of the merger agreement, including
termination of the merger agreement in connection with the acceptance by
Saratoga of a company superior proposal, as defined in the merger agreement.
Accordingly, unless the merger agreement is terminated in accordance with its
terms, the adoption of the merger agreement by Saratoga's stockholders is
expected to occur irrespective of whether or the manner in which Saratoga's
other stockholders vote their shares of Class A common stock.
Since the Continuing Stockholders include members of Saratoga's board, the
Saratoga board appointed a special committee of the board, comprised of two
non-employee directors of Saratoga who are not Continuing Stockholders, but who
will receive cash in exchange for their stock options upon consummation of the
merger, negotiate the proposed merger, to consider the fairness of the proposed
merger to Saratoga and its stockholders, other than the Continuing
Stockholders, and to recommend to the board whether to proceed with the
proposed merger. Based upon the unanimous recommendation of the special
committee, the board unanimously approved the merger agreement as being
advisable, fair to, and in the best interests of, Saratoga and holders of the
Class A common stock, other than the Continuing Stockholders, and is
recommending to Saratoga's stockholders that they approve and adopt the merger
agreement.
All shares of Class A common stock and Class B common stock represented by
properly executed proxies received prior to or at the special meeting and not
revoked will be voted in accordance with the instructions indicated in those
proxies. If no instructions are indicated, the proxies will be voted FOR the
adoption of the merger agreement and in the discretion of the persons named in
the proxy with respect to any other matters as may properly come before the
special meeting. A stockholder may revoke his or her proxy at any time prior to
its use by delivering to the Secretary of Saratoga a signed notice of
revocation or a later-dated and signed proxy or by attending the special
meeting and voting in person.
The persons named as proxies in the enclosed proxy are Robin Prever,
President and Chief Executive Officer of Saratoga, and Irene Fonzi, Secretary
of Saratoga. The costs of preparing, assembling and mailing the proxy, this
document and the other material enclosed and all clerical and other expenses of
solicitation will be borne by Saratoga. In addition to the solicitation of
proxies by use of the mails, directors, officers and employees of Saratoga,
without receiving additional compensation, may solicit proxies by telephone,
telecopier or personal interview. Saratoga also will request brokerage houses
and other custodians, nominees and fiduciaries to forward soliciting material
to the beneficial owners of Class A common stock and Class B common stock held
of record by those custodians and will reimburse those custodians for their
expenses in forwarding soliciting materials.
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SEC NOR HAS
THE SEC PASSED UPON THE FAIRNESS OR MERITS OF THIS TRANSACTION NOR UPON THE
ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
ii
<PAGE>
The board knows of no additional matters that will be presented for
consideration at the special meeting. Execution of the accompanying proxy,
however, confers on the designated proxy holders discretionary authority to
vote the shares of Class A common stock and Class B common stock covered by the
proxy in accordance with their best judgment on any other business that may
properly come before, and all matters incident to the conduct of, the special
meeting, or any adjournments or postponements of the special meeting.
Shares of Saratoga's Class A common stock are presently traded
over-the-counter on the NASDAQ SmallCap Market System under the symbol "TOGA".
On December 16, 1999, the last trading day preceding the public announcement of
a possible transaction by Saratoga with an unidentified investor, the closing
price of the Class A common stock on the NASDAQ SmallCap Market System was
$4.9688 per share. On April 13, 2000, the last trading day preceding the
mailing of this Proxy Statement, the closing price of the Class A common stock
on the NASDAQ SmallCap Market System was $5.50 per share.
The date of this document is April 17, 2000.
iii
<PAGE>
AVAILABLE INFORMATION
Saratoga, the Purchaser and MergerCo, among others, have filed with the
SEC a Rule 13e-3 Transaction Statement on Schedule 13E-3 under the Exchange Act
with respect to the merger. This document does not contain all of the
information set forth in the Schedule 13E-3 and its exhibits, certain parts of
which are omitted in accordance with the rules and regulations of the SEC.
Saratoga is subject to the informational requirements of the Exchange Act and,
accordingly, files reports, documents and other information with the SEC.
The Schedule 13E-3 and its exhibits, as well as any reports, proxy
statements and other information filed by Saratoga, can be inspected and copied
at the public reference facilities maintained by the SEC at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's Regional Offices
at
o Suite 1300, Seven World Trade Center, New York, New York 10048,
o Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, and
o Suite 500 East, Tishman Building, 5757 Wilshire Boulevard, Los Angeles,
California 90036.
Copies of those materials also can be obtained at prescribed rates from
the Public Reference Section of the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The SEC maintains an Internet site on the World Wide
Web at "http://www.sec.gov" which contains reports, proxy and information
statements and other information regarding issuers that file electronically
with the SEC.
Shares of Saratoga's Class A common stock are presently traded
over-the-counter on the NASDAQ SmallCap Market System under the symbol "TOGA".
Reports and other information concerning Saratoga can also be inspected at the
offices of the National Association of Securities Dealers, Inc., Reports
Section, 1735 K Street, N.W., Washington, D.C. 20006.
Except as otherwise indicated in this document, all information appearing
in this document concerning Saratoga has been supplied by Saratoga, and all
information appearing in this document concerning the Purchaser and MergerCo
has been supplied by North Castle Partners, L.L.C., which is the manager of
North Capital Partners II, L.P., a private equity fund that controls Purchaser
and MergerCo, or is based upon publicly available documents on file with the
SEC and other public records. Saratoga assumes no responsibility for the
accuracy or completeness of the information furnished by North Castle or
contained in those documents and records other than those provided by Saratoga
or for any failure of North Castle to disclose events that may have occurred
and may affect the significance or accuracy of that information and that are
unknown to Saratoga. Likewise, North Castle assumes no responsibility for the
accuracy or completeness of the information furnished by Saratoga or contained
in those documents and records other than those provided by North Castle or for
any failure by Saratoga to disclose events that may have occurred and that may
affect the significance or accuracy of that information and that are unknown to
North Castle.
NO PERSONS HAVE BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS DOCUMENT IN CONNECTION WITH
THE SOLICITATION OF PROXIES MADE BY THIS DOCUMENT, AND, IF GIVEN OR MADE, THE
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY SARATOGA OR ANY OTHER PERSON.
iv
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Saratoga has incorporated certain important business and financial
information that is not included in or delivered with this document, including
any exhibits that are specifically incorporated by reference into that
information. The information that is not included in or delivered with this
document, including exhibits, is available without charge upon written or oral
request to Saratoga Beverage Group, Inc., 1000 American Superior Boulevard,
Winter Haven, Florida 33884, telephone (863) 299-6915, Attention: Secretary.
The following documents filed by Saratoga with the SEC (File No.
33-62038NY) are hereby incorporated by reference into this document and made a
part hereof, and are being furnished simultaneously with this document:
-- Saratoga's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999
-- Saratoga's Annual Report on Form 10-KSB/A for the fiscal year ended
December 31, 1999
-- Saratoga's Current Report on Form 8-K with an event date of January 6,
2000
-- the annexes to this document, including the merger agreement attached
hereto as Annex A
All documents and reports filed by Saratoga pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this document and
prior to the date of the Saratoga special meeting shall be deemed to be
incorporated by reference in this document and to be a part hereof from the
dates of filing of those documents or reports. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this document to the extent
that a statement contained herein or in any other subsequently filed document
which also is deemed to be incorporated by reference herein modifies or
supersedes that statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this document.
v
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
INTRODUCTION ....................................................................... i
AVAILABLE INFORMATION .............................................................. iv
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE .................................... v
SUMMARY ............................................................................ 1
Overview .......................................................................... 1
Saratoga .......................................................................... 1
The Purchaser and MergerCo ........................................................ 1
The Special Meeting ............................................................... 2
Time, Date and Place of Meeting ................................................... 2
Matters to be Considered .......................................................... 2
Record Date; Voting Rights; Vote Required ......................................... 2
Security Ownership of Management; Voting Agreements ............................... 2
Recommendation of the Special Committee and the Board of Directors ................ 2
Opinion of Financial Advisor to the Special Committee ............................. 3
The Merger ........................................................................ 3
Effective Time of the Merger ...................................................... 3
Merger Consideration .............................................................. 3
Conditions to the Consummation of the Merger ...................................... 3
Termination of the Merger Agreement ............................................... 3
Termination Fee ................................................................... 3
Merger Financing .................................................................. 4
Appraisal Rights .................................................................. 4
Interests of Certain Persons in the Merger ........................................ 4
Certain Effects of the Transaction ................................................ 4
Plans for Saratoga After the Merger; Conduct of the Business of Saratoga if the
Merger is not Consummated ....................................................... 4
Material Federal Income Tax Consequences .......................................... 5
Accounting Treatment of the Merger ................................................ 5
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA .................................... 6
SPECIAL FACTORS .................................................................... 9
Background of the Merger .......................................................... 9
Certain Effects of the Merger ..................................................... 15
Recommendations of the Special Committee and the Board of Directors ............... 16
Reasons of Saratoga for the Merger; Fairness of the Merger ........................ 16
Reasons of the Continuing Stockholders for the Merger; Fairness of the Merger ..... 21
Reasons of the Purchaser for the Merger; Fairness of the Merger ................... 22
Opinion of Financial Advisor to the Special Committee ............................. 24
Plans for Saratoga after the Merger; Conduct of the Business of Saratoga if the
Merger is not Consummated ....................................................... 41
PRICE OF CLASS A COMMON STOCK ...................................................... 43
SARATOGA ........................................................................... 44
General ........................................................................... 44
Products .......................................................................... 44
Marketing and Sales ............................................................... 45
Distribution ...................................................................... 46
Competition ....................................................................... 46
Production ........................................................................ 46
</TABLE>
vi
<PAGE>
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Suppliers ........................................................ 46
Major Customers .................................................. 46
Trademarks ....................................................... 47
Government Regulation ............................................ 47
Seasonality ...................................................... 47
Employees ........................................................ 47
Properties ....................................................... 47
Legal Proceedings ................................................ 48
The Year 2000 Issue .............................................. 48
Risk ............................................................. 49
THE SPECIAL MEETING ............................................... 49
Time Date and Place of Meeting ................................... 49
Matters to be Considered ......................................... 49
Required Votes ................................................... 49
Voting and Revocation of Proxies ................................. 50
Record Date; Stock Entitled to Vote; Quorum ...................... 50
Appraisal Rights ................................................. 51
Solicitation of Proxies .......................................... 51
THE MERGER ........................................................ 52
Overview ......................................................... 52
Voting Agreements ................................................ 52
Material Federal Income Tax Consequences ......................... 52
Accounting Treatment of the Merger ............................... 53
Interests of Certain Persons in the Merger ....................... 53
Option Information ............................................... 55
Robin Prever Employment Agreement ................................ 56
Robin Prever Non-Competition Agreement ........................... 57
Stockholders Agreement ........................................... 57
Consulting Agreement ............................................. 57
Registration Rights Agreement .................................... 58
Merger Financing ................................................. 58
CERTAIN PROVISIONS OF THE MERGER AGREEMENT ........................ 62
The Merger ....................................................... 62
Merger Consideration ............................................. 62
Surrender and Payment ............................................ 63
The Surviving Corporation ........................................ 64
Representations and Warranties ................................... 64
Certain Pre-Closing Covenants .................................... 65
Access and Information ........................................... 66
Agreement Not to Solicit Takeover Proposals ...................... 66
Indemnification and Insurance .................................... 67
Commercially Reasonable Efforts; Certain Filings ................. 67
Conditions to the Consummation of the Merger ..................... 67
Termination ...................................................... 69
Termination Fee .................................................. 70
Amendment and Waiver ............................................. 71
ESTIMATED FEES AND EXPENSES ....................................... 71
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL DATA ......... 72
</TABLE>
vii
<PAGE>
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT ........................................................................... 78
PURCHASES OF COMMON STOCK BY, AND OTHER TRANSACTIONS WITH,
CERTAIN PERSONS ...................................................................... 80
REGULATORY CONSIDERATIONS ............................................................. 81
Antitrust ............................................................................ 81
THE PURCHASER AND MERGERCO ............................................................ 81
DISSENTING STOCKHOLDERS' RIGHTS ....................................................... 82
INDEPENDENT AUDITORS .................................................................. 85
FUTURE STOCKHOLDER PROPOSALS .......................................................... 85
ANNEXES
ANNEX A -- Stock Purchase Agreement and Agreement and Plan of Merger (including
Exhibit A -- Form of Certificate of Incorporation and Exhibit B -- Form of By-laws)
ANNEX B -- Opinion of Schroder & Co. Inc.
ANNEX C -- Rights of Dissenting Stockholders under the DGCL
ANNEX D -- Form of Voting Agreements and Schedule of Parties to the Voting Agreements
ENCLOSURES
- -- Saratoga's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999
- -- Saratoga's Annual Report on Form 10-KSB/A for the fiscal year ended December 31, 1999
- -- Saratoga's Current Report on Form 8-K with an event date of January 6, 2000
</TABLE>
viii
<PAGE>
SUMMARY
The following summary is intended only to highlight certain information
contained elsewhere in this document. This summary is not intended to be
complete and is qualified in its entirety by the more detailed information
contained elsewhere in this document, the annexes and the documents otherwise
referred to in this document. Stockholders are urged to review this entire
document carefully, including the annexes and those other documents.
OVERVIEW
Saratoga is furnishing this document to allow its stockholders to consider
and vote upon a proposal to approve and adopt the merger agreement with the
Purchaser and MergerCo. Pursuant to the merger agreement, MergerCo will be
merged with and into Saratoga with Saratoga as the surviving corporation.
Stockholders of Saratoga, other than the Continuing Stockholders, who do not
dissent from the merger as described in this document will receive $6.00 per
share in cash, without interest, for each share of common stock that they own
at the effective time of the merger.
As described in this document, two non-employee directors of Saratoga who
are not Continuing Stockholders were constituted as a special committee to
negotiate the terms of the merger agreement. In connection with the execution
of the merger agreement, both the board and the special committee determined
that the merger, the merger agreement and the transactions contemplated by the
merger agreement, including but not limited to the voting agreements described
in this document, were advisable, fair to, and in the best interests of,
holders of the Class A and Class B common stock, other than the Continuing
Stockholders.
SARATOGA
Saratoga Beverage Group, Inc., formerly the Saratoga Spring Water Company,
was founded in 1872. Saratoga manufactures, markets and distributes fresh
squeezed and frozen fresh squeezed citrus juices, fresh fruit smoothies, which
are blends of juices and purees, and other non-carbonated beverages marketed
under the labels "Fresh Pik't," "the Fresh Juice Company," "Hansen's Juices,"
"The Ultimate Juice" and "Just Pik't," and produces sparkling and
non-carbonated spring water products including Saratoga Splash.
Saratoga's principal executive offices are located at 1000 American
Superior Boulevard, Winter Haven, Florida 33884 and its telephone number is
(863) 299-6915. Until January 2000, Saratoga's principal executive offices were
located at 11 Geyser Road, Saratoga Springs, New York 12866 and its telephone
number was (518) 584-6363.
THE PURCHASER AND MERGERCO
The Purchaser is a newly formed Delaware limited partnership and MergerCo
is a newly formed Delaware corporation, both organized at the direction of
North Castle in connection with the transactions contemplated by the merger
agreement. The Purchaser and MergerCo were formed for the purpose of effecting
the transactions contemplated by the merger agreement and are not expected to
have significant assets or liabilities other than in connection with the
transactions contemplated by the merger agreement or to engage in any
activities other than those incident to their formations and the transactions
contemplated by the merger agreement and, in the case of the Purchaser, actions
contemplated by the voting agreements. The authorized capital stock of MergerCo
consists of 1,000 shares of common stock, par value $0.01 per share, all of
which shares have been issued and are held by the Purchaser.
The principal executive offices of the Purchaser and MergerCo are c/o
North Castle Partners, L.L.C., 60 Arch Street, Greenwich, Connecticut 06830.
1
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THE SPECIAL MEETING
TIME, DATE AND PLACE OF MEETING (SEE PAGE 49)
The special meeting will be held at the offices of Swidler Berlin Shereff
Friedman, LLP, located at The Chrysler Building, 405 Lexington Avenue, New
York, New York 10174, on May 15, 2000, starting at 11:00 a.m., local time.
MATTERS TO BE CONSIDERED (SEE PAGE 49)
The special meeting has been called for the holders of the Class A common
stock and Class B common stock to consider and vote upon:
o a proposal to approve and adopt the merger agreement; and
o other matters as may properly come before the special meeting.
RECORD DATE; VOTING RIGHTS; VOTE REQUIRED (SEE PAGES 49 and 50)
Holders of record of Class A common stock and Class B common stock at the
close of business on April 11, 2000, which is the record date, have the right
to receive notice of and to vote at the special meeting. At the special meeting
each share of Class A common stock is entitled to one vote and each share of
Class B common stock is entitled to five votes, and the classes vote together
as a single class, on each matter presented to the stockholders for a vote. As
of the record date, 5,043,744 shares of Class A common stock and 522,955 shares
of Class B common stock were outstanding and held of record by 1,835 holders
and two holders, respectively. The affirmative vote of the holders of a
majority of the voting power of Saratoga represented by the Class A common
stock and Class B common stock, voting as a single class, is required to
approve and adopt the merger agreement.
VOTING AGREEMENTS (SEE PAGE 52)
The Continuing Stockholders, including certain executive officers and
directors of Saratoga, hold an aggregate of 1,877,262 shares of Class A common
stock and 522,955 shares of Class B common stock, representing approximately
58.65% of the outstanding voting power of Saratoga. In connection with the
execution of the merger agreement, each Continuing Stockholder entered into a
voting agreement with the Purchaser and appointed the Purchaser as his, her or
its irrevocable proxy to vote all of his, her or its shares in favor of the
merger agreement. The voting agreements are subject to certain terms and
conditions and terminate upon termination of the merger agreement, including
termination of the merger agreement in connection with the acceptance by
Saratoga of a company superior proposal, as defined in the merger agreement.
Accordingly, unless the merger agreement is terminated in accordance with its
terms, the adoption of the merger agreement by Saratoga's stockholders is
expected to occur irrespective of whether or the manner in which Saratoga's
other stockholders vote their shares of Class A common stock.
RECOMMENDATION OF THE SPECIAL COMMITTEE AND THE BOARD OF DIRECTORS (SEE PAGE 16)
Because the Continuing Stockholders include members of the board, the
board established the special committee to act on behalf of stockholders other
than the Continuing Stockholders for purposes of negotiating the price and
other terms of the transaction with the Purchaser and MergerCo and evaluating
the fairness of the merger, the merger agreement and the transactions
contemplated by the merger agreement. The special committee is composed solely
of non-employee directors who are not Continuing Stockholders. The members of
the special committee will cease to be directors of Saratoga upon completion of
the merger. On January 5, 2000, the merger agreement and the transactions
contemplated by the merger agreement, including but not limited to the voting
agreements, were unanimously approved by the board based upon the unanimous
recommendation of the special committee of the board.
2
<PAGE>
The board of directors of Saratoga, based upon the unanimous
recommendation of the special committee, believes that the merger agreement and
the transactions contemplated by the merger agreement, including the merger,
are advisable, fair to and in the best interests of Saratoga stockholders,
other than the Continuing Stockholders, and unanimously recommends that you
vote FOR adoption of the merger agreement.
OPINION OF FINANCIAL ADVISOR TO THE SPECIAL COMMITTEE (SEE PAGE 24)
Schroder & Co. Inc. has served as financial advisor to the special
committee in connection with the merger. Schroders has rendered its opinion to
the special committee and the board that, as of the date of its opinion, the
consideration to be received pursuant to the merger by the stockholders, other
than the Continuing Stockholders, was fair from a financial point of view to
those holders. Schroders delivered its opinion orally to the special committee
at its meeting on January 5, 2000 and subsequently confirmed that opinion in
writing. A copy of Schroders' opinion is attached to this document as Annex B.
Schroders' opinion should be read in its entirety with respect to assumptions
made, matters considered, and limitations on the review undertaken by Schroders
in rendering its opinion.
THE MERGER
The merger agreement is attached as Annex A to this document. Saratoga
encourages you to read it, as it is the legal document governing the merger.
EFFECTIVE TIME OF THE MERGER
Pursuant to the merger agreement, MergerCo will be merged with and into
Saratoga, with Saratoga as the surviving corporation. The merger will become
effective when the certificate of merger is duly filed with the Secretary of
State of the State of Delaware or at a later time which is specified in the
certificate of merger.
MERGER CONSIDERATION (SEE PAGE 62)
At the effective time of the merger, each share of Class A common stock
and Class B common stock (other than Rollover Stock, shares held in treasury
and shares as to which appraisal rights have been validly perfected) will be
converted into the right to receive $6.00 per share in cash, without interest,
and each share of Rollover Stock will be converted into the right to receive
one share of common stock of the company surviving the merger.
CONDITIONS TO THE CONSUMMATION OF THE MERGER (SEE PAGE 67)
The obligations of the parties to the merger agreement to consummate the
merger are subject to the satisfaction or waiver of a number of conditions,
including Saratoga's stockholders adopting the merger agreement, Saratoga
obtaining adequate debt financing, the expiration or termination of the waiting
period under the Hart-Scott-Rodino Improvements Act of 1976, as amended, and
the absence of material adverse changes, as defined in the merger agreement, to
the business of Saratoga since January 5, 2000.
TERMINATION OF THE MERGER AGREEMENT (SEE PAGE 69)
Either the Purchaser or Saratoga may terminate the merger agreement under
certain circumstances, including if the merger has not been completed by May
31, 2000.
TERMINATION FEE (SEE PAGE 70)
If the merger agreement is terminated under certain circumstances,
Saratoga will pay North Castle Partners, L.L.C. a termination fee of $1.2
million and reimburse North Castle Partners, L.L.C. for the fees and expenses
incurred by MergerCo and Purchaser in connection with the merger agreement and
the consummation of the transactions contemplated in the merger agreement in an
amount not to exceed $300,000.
3
<PAGE>
MERGER FINANCING (SEE PAGE 58)
The total amount of cash required to consummate the transactions
contemplated by the merger agreement, including payment of related fees and
expenses, is estimated to be approximately $60.66 million. The merger will be
financed from a combination of borrowings by Saratoga as the company surviving
the merger under senior credit facilities and the issuance by Saratoga of
senior subordinated notes and an equity investment in Saratoga by the
Purchaser. MergerCo has received commitment letters to provide the senior
credit facilities and to purchase the senior subordinated notes. The debt
financing commitments are subject to customary conditions, including the
absence of any material adverse change in the business, assets, operations or
financial condition of Saratoga and its subsidiaries since December 31, 1998.
The equity investment by the Purchaser is subject to the same conditions as the
merger, including Saratoga obtaining a minimum of $22.5 million of debt
financing.
APPRAISAL RIGHTS (SEE PAGE 51)
If the merger is consummated, under applicable Delaware law, holders of
Class A common stock who follow the appropriate procedures, including filing a
written demand for appraisal with Saratoga prior to the special meeting, and
who do not vote in favor of the merger will be entitled to receive payment of
the fair value of their shares of common stock as appraised by the Delaware
Chancery Court. Under certain circumstances, a holder may forfeit the right to
appraisal, in which case the holder's shares will be treated as if they had
been converted, as of the effective time, into the right to receive the merger
consideration, without interest.
INTERESTS OF CERTAIN PERSONS IN THE MERGER (SEE PAGE 53)
Certain directors and executive officers of Saratoga had at the time the
merger agreement was negotiated and executed, and currently have, interests,
described in this document, that present them with direct conflicts of interest
in connection with the merger, including the fact that several of those persons
are Continuing Stockholders. The special committee and the board were and are
aware of the conflicts described in this document and considered them in
addition to the other matters described in this document.
CERTAIN EFFECTS OF THE TRANSACTION (SEE PAGE 15)
Following the merger, stockholders other than Continuing Stockholders will
cease to have any ownership interest in Saratoga or rights as holders of
shares. Stockholders other than Continuing Stockholders will no longer benefit
from any increases in the value of Saratoga and will no longer bear the risk of
any decreases in value of Saratoga. Following the merger, the Continuing
Stockholders will hold approximately 10%, and, after the stock purchase by the
Purchaser, the Purchaser will hold 90%, of the common stock of Saratoga as the
company surviving the merger.
As a result of the merger, Saratoga will be a privately held company and
there will be no public market for the common stock of Saratoga. In addition,
the Purchaser currently intends to cause Saratoga to terminate the registration
of the Class A common stock under the Exchange Act as soon after consummation
of the merger as the requirements for termination of registration are met.
After the registration is terminated, Saratoga will no longer be required to
file periodic reports with the SEC.
PLANS FOR SARATOGA AFTER THE MERGER; CONDUCT OF THE BUSINESS OF SARATOGA IF THE
MERGER IS NOT CONSUMMATED (SEE PAGE 41)
As contemplated by the stockholders agreement described in "The
Merger--Stockholders Agreement" and the employment agreement described in "The
Merger--Robin Prever Employment Agreement", North Castle and the Continuing
Stockholders intend for Saratoga to serve as the
4
<PAGE>
platform company to acquire other companies in the refrigerated juice industry
following the consummation of the merger. In this connection, affiliates of
North Castle have executed definitive agreements for the acquisitions of
California Day-Fresh Foods, Inc., Wiman Beverage Company, Inc., and M.H.
Zeigler and Sons, Inc. North Castle intends to assign the acquisition
agreements for these companies to Saratoga after the merger. If the merger is
not consummated, however, Saratoga will not acquire these Companies as it has
no contractual rights to do so, in addition to lacking the necessary financial
resources without the debt and equity financing that North Castle will arrange
and provide.
As contemplated by the merger agreement and the stockholders agreement,
the directors of Saratoga immediately following the merger will be the
directors of MergerCo at the time of the merger and thereafter four directors
will be nominated by the Purchaser and three will be nominated by Robin Prever,
as long as she is the Chief Executive Officer of Saratoga, or if Ms. Prever is
no longer Chief Executive Officer, then the Continuing Stockholders may
nominate one director so long as they own in the aggregate at least 5% of the
outstanding common stock of Saratoga.
Except as described above and elsewhere in this document, the changes to
the board of directors contemplated by the merger agreement and the
stockholders agreement, as well as the transactions set forth in the merger
agreement, including the financing of the merger, the Purchaser has no current
plans or proposals relating to any extraordinary corporate transactions
involving Saratoga or any of its subsidiaries, any sale or transfer or a
material amount of the assets of Saratoga or any of its subsidiaries, any
change in the present board of directors or management of Saratoga or any other
material change in Saratoga's present dividend rate or policy, indebtedness or
capitalization, corporate structure or business. The Purchaser currently
intends to cause Saratoga to terminate the registration of the Class A common
stock under the Exchange Act as soon after consummation of the merger as the
requirements for termination of registration are met. The Purchaser has no
plans, other than pursuant to the merger agreement, to acquire the shares of
Class A common stock held by the Continuing Stockholders of Saratoga.
If the merger is not consummated, then Saratoga will continue to operate
its business in the ordinary course.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES (SEE PAGE 52)
Stockholders, other than Continuing Stockholders, generally will recognize
capital gain or loss with respect to the disposition of shares of common stock
pursuant to the merger. See "The Merger--Material Federal Income Tax
Consequences."
EACH STOCKHOLDER IS URGED TO CONSULT HIS, HER OR ITS OWN TAX ADVISOR
CONCERNING THE FEDERAL INCOME, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES
OF THE MERGER.
ACCOUNTING TREATMENT OF THE MERGER (SEE PAGE 53)
Saratoga believes that the merger and the transactions will be accounted
for as a recapitalization under generally accepted accounting principles. As a
result, the transactions contemplated by the merger agreement will not affect
the historical basis of Saratoga's assets and liabilities.
5
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The selected historical consolidated financial data for the years ended
December 31, 1995, 1996 and 1997 are derived from Saratoga's audited historical
consolidated financial statements not included in this document. The selected
historical consolidated financial data of Saratoga as of and for the years
ended December 31, 1998 and 1999 are derived from and should be read in
conjunction with Saratoga's audited historical consolidated financial
statements incorporated by reference into this document and included with this
document.
In addition, the following selected supplemental historical consolidated
financial data should be read in conjunction with Saratoga's "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
incorporated by reference into this document and included with this document.
(The remainder of this page intentionally left blank.)
6
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------------------------------------
1995 1996 1997 1998 1999*
--------------- ------------- ------------- ------------- -------------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
REVENUE
Total revenue .................................... $ 3,265 $ 4,375 $ 6,271 $ 8,881 $ 50,741
Cost of goods sold, exclusive of
depreciation and amortization and
equipment lease expense ......................... 2,395 2,749 3,763 5,523 39,338
Selling, general and administrative
expense ......................................... 1,594 1,397 1,423 1,700 6,586
Depreciation, amortization and equipment
lease expense ................................... 339 442 405 566 1,323
----------- ---------- ---------- ---------- ----------
Operating (loss) income .......................... (1,063) (213) 680 1,092 3,494
OTHER INCOME (EXPENSE):
Interest income .................................. 21 5 52 169 56
Interest expense ................................. (1) (15) (47) (80) (1,835)
Net gain (loss) on disposal of equipment ......... (2) -- -- -- 14
Other income (expense) ........................... 121 75 127 (296) 138
----------- ---------- ---------- ---------- ----------
(Loss) income before minority interest and
income taxes .................................... (924) (148) 812 885 1,866
Provision for income taxes ....................... -- -- 8 18 105
----------- ---------- ---------- ---------- ----------
Net (loss) income ................................ $ (924) $ (148) $ 804 $ 867 $ 1,761
=========== ========== ========== ========== ==========
PER SHARE DATA
Net (loss) income per common share,
Basic ............................................ $ (0.35) $ (0.06) $ 0.28 $ 0.27 $ 0.34
=========== ========== ========== ========== ==========
Diluted .......................................... $ (0.35) $ (0.06) $ 0.25 $ 0.26 $ 0.32
=========== ========== ========== ========== ==========
Weighed average number of common
shares outstanding,
Basic ............................................ 2,626,179 2,626,651 2,924,589 3,166,327 5,175,114
=========== ========== ========== ========== ==========
Diluted .......................................... 2,626,179 2,626,651 3,380,440 3,669,180 5,697,615
=========== ========== ========== ========== ==========
</TABLE>
- ----------
* One Year Ended December 31, 1999 contains eleven months of activity for
The Fresh Juice Company, Inc. from the date of acquisition on January 29,
1999.
7
<PAGE>
BALANCE SHEET DATA
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------
1995 1996 1997 1998 1999
---------- ---------- --------- --------- -----------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Total assets ........................................ 2,990 2,630 5,705 7,499 41,347
Working capital ..................................... 255 387 2,513 2,403 8,484
Long term obligations ............................... -- 7 1,501 1,555 23,957
Stockholder's equity ................................ 2,176 2,015 2,914 4,390 11,990
Current ratio ....................................... 1.31 1.64 2.95 2.55 2.57
(Loss)/return on average assets ..................... (0.27) (0.05) 0.19 0.13 0.07
(Loss)/return on average shareholder equity ......... (0.34) (0.06) 0.33 0.24 0.21
Book value per share ................................ 0.80 0.74 0.98 1.39 2.17
</TABLE>
8
<PAGE>
SPECIAL FACTORS
BACKGROUND OF THE MERGER
The terms of the merger agreement are the result of negotiations between
representatives of Saratoga and representatives of the Purchaser, including
North Castle. The terms of the merger relating to the Continuing Stockholders
were negotiated by representatives of the Continuing Stockholders. The
following is a brief discussion of the events that led to the negotiation and
execution of the merger agreement.
In the summer of 1998, Saratoga was looking for a $5 million equity
infusion in order to acquire The Fresh Juice Company, Inc. A representative of
Schroders introduced Robin Prever, the President and Chief Executive Officer of
Saratoga, to Brent Knudsen, a principal of North Castle. North Castle was
introduced as a private equity firm that specialized in equity financing for
healthy living and aging businesses.
To date, North Castle has raised in excess of $425 million, which it is in
the process of investing, together with debt financing it organizes, in
majority and minority interests in businesses operating in the healthy living
and aging sector of the economy. North Castle believes that its financial
resources, coupled with general management expertise to which it has access,
can generate superior returns for its investors by acquiring and growing
businesses in such sector. Specifically, North Castle believes that the
refrigerated premium beverage industry in which Saratoga operates currently is
fragmented. It further believes that opportunities exist for an investor with
sufficient financial resources such as North Castle to purchase several
businesses in the industry, recapitalize such businesses and operate them with
a unified strategic focus in order to generate the returns that its investors
expect. North Castle believes that Saratoga, as it currently is operated, lacks
the scale of operations to achieve the eventual profitability of which it is
capable. North Castle is willing to sacrifice short-term returns from the
Saratoga business to acquire and develop multiple distribution, manufacturing
and sales operations currently not possessed by any single refrigerated premium
beverage company, that will generate the long-term returns North Castle
expects. In North Castle's view, the public markets to date have been incapable
of funding the required growth of Saratoga's business or been willing to defer
returns until such time as such growth can occur.
In implementing its strategy, North Castle reviewed opportunities to
invest in or acquire a suitable company in the refrigerated premium beverage
industry that could in turn serve as a platform to invest in other companies
operating in such industry. North Castle believed that Saratoga could provide
such a strategic platform and on September 17, 1998, North Castle executed a
confidentiality agreement with Saratoga.
On December 10, 1998, Ms. Prever met with Mr. Knudsen and discussed the
beverage industry in general, the possibility of an equity infusion by an
affiliate of North Castle, the strategy for the previously announced Fresh
Juice acquisition and Saratoga's financial performance through the third
quarter of 1998. Saratoga ultimately decided not to seek to raise additional
equity.
Thereafter, Ms. Prever and Mr. Knudsen spoke from time to time regarding
the beverage industry and the possibility of an equity infusion. At Mr.
Knudsen's suggestion, on March 25, 1999, representatives of North Castle and
Saratoga met to discuss Saratoga's business and the possibility of an equity
infusion. Mr. Knudsen and Charles Baird, also a principal of North Castle,
stated that North Castle was very interested in the "healthy beverage" business
and that North Castle would consider the possibility of a transaction between
an affiliate of North Castle and Saratoga. Saratoga's representatives stated
that selling equity at the then current share price of $2.19 was not
attractive, as it would be dilutive to the existing stockholders of Saratoga.
The possibility of a convertible equity infusion was discussed.
From March 25, 1999 through May 17, 1999, the board continued to be
frustrated with Saratoga's stock price. At a board meeting on May 17, 1999, the
board discussed the stock price and Saratoga's alternatives to maximize
stockholder value. The board believed that the then current share price of
approximately $2.30 did not adequately value Saratoga. In addition, the board
realized that Saratoga's
9
<PAGE>
low stock price would make it difficult to raise money in the capital markets
for acquisitions or other purposes without significant dilution, at a time when
the industry was undergoing rapid consolidation. The board believed that the
ongoing rapid consolidation of the beverage industry required Saratoga to
undertake a strategic transaction within the next 12 months. Since Saratoga had
just incurred approximately $22 million in debt in connection with the Fresh
Juice acquisition and was still in the process of integrating Fresh Juice into
its operations, the board did not believe that another acquisition was
realistic under Saratoga's then current capital structure. The board believed
that a strategic transaction with a third person was therefore advantageous to
Saratoga in two ways -- it would potentially cash out the public stockholders
at a fair price and it would allow Saratoga to participate in the consolidation
of the beverage industry. Ms. Prever noted that North Castle shared the
philosophy of the board regarding growth through a private vehicle. The board
concluded, given the desire of Saratoga to grow its business and the shared
philosophies of the board and North Castle, that further discussions with North
Castle were worth pursuing. In connection with such discussions, the board
noted that Saratoga had recently acquired Fresh Juice for approximately $21.8
million and that the purchase price represented an amount equal to
approximately 0.5x of Fresh Juice's sales and, at that time, an estimated
multiple of EBITDA of 7.6x. The board believed in the absence of formal advice
of an investment advisor, that any transaction based on a valuation of Saratoga
of 1.0x or greater of estimated 1999 sales or an EBITDA multiple of 10.0x or
more would represent a fair price to Saratoga's stockholders.
Although Saratoga had always entertained strategic alternatives with third
parties as evidenced by the recent deals with Hype Beverage Corporation, Triarc
Companies, Inc. and Fresh Juice, at that time, the board did not consider any
alternatives to the potential transaction with North Castle. Saratoga's large
amount of debt and low stock price precluded Saratoga from considering many
transactions including certain acquisitions, mergers and joint ventures. In
addition, North Castle was the only entity to make a formal offer to Saratoga
regarding a transaction.
On June 29, 1999, Ms. Prever, Mr. Knudsen and Mr. Baird met and North
Castle proposed a leveraged recapitalization of Saratoga, pursuant to which an
entity managed by North Castle would become the major stockholder of Saratoga.
The parties agreed that some of Saratoga's existing stockholders, including Ms.
Prever, would own a portion of the equity of the recapitalized company. In
addition, the parties agreed that Ms. Prever would remain as the chief
executive officer of the recapitalized company.
The following week, North Castle and its advisers visited Saratoga to
commence North Castle's due diligence investigation, which continued over the
next several weeks.
On August 10, 1999, North Castle made a presentation to the board of
directors of Saratoga explaining its investment philosophy. Shortly after the
meeting, North Castle proposed a leveraged recapitalization transaction of
Saratoga based on an enterprise value of $50 million, or approximately $4.66
per share, in which certain stockholders, including certain directors of
Saratoga, would convert a portion of their existing equity in Saratoga into
equity of the recapitalized company. Since North Castle's proposed structure
would result in certain directors retaining equity in the recapitalized
company, the board determined that it would be advisable to form a special
committee of independent directors to negotiate with North Castle. Because
Leonard Toboroff and William Colaianni would not own any equity in the
recapitalized company, they undertook to begin negotiations with North Castle.
In September 1999, North Castle was informed that its $4.66 offer was
inadequate. Messrs. Toboroff and Colaianni believed that the $4.66 offer was
inadequate because the offer did not meet the parameters (1.0x of Saratoga's
estimated 1999 sales or an EBITDA multiple of 10.0x or more) discussed by the
board at its May 17, 1999 meeting. Thereafter, North Castle proposed a
leveraged recapitalization in which stockholders other than the Continuing
Stockholders would receive approximately $5.35 per share in cash, based upon an
enterprise value of $55 million, provided that certain directors, members of
management and other identified stockholders agreed to convert shares
representing 25% of Saratoga's equity into equity of the surviving corporation.
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Discussions continued during the month of September between
representatives of North Castle and Mr. Toboroff and other representatives of
Saratoga. On September 21, 1999, Saratoga received a revised proposal from
North Castle in which the purchase price per share had been increased to $6.00
and the Continuing Stockholders would retain a smaller portion of the equity of
the surviving corporation.
On September 22, 1999, the board met to discuss the most recent proposal.
Based on the presentation by North Castle in August 1999 and the board's
valuation parameters, as outlined in the May 17, 1999 meeting, the board was
comfortable with a $6.00 offer. The $6.00 offer represented an enterprise value
of Saratoga of approximately $60 million, which was in excess of 1.0x
Saratoga's estimated 1999 sales and a multiple of Saratoga's EBITDA of more
than 10.0x which was what the board desired. At that meeting, the board
unanimously appointed a special committee consisting of Mr. Toboroff, as
chairman, and Mr. Colaianni to consider the fairness of the most recent
proposal to stockholders other than Continuing Stockholders, to negotiate the
most recent proposal with North Castle, and to recommend to the board whether
to proceed with the most recent proposal. The special committee was not
provided with any specific instructions or limitations concerning its
negotiations with North Castle, except that the board specifically stated that
it did not want Saratoga to be required to pay a termination fee if Saratoga
breached any representations or warranties contained in the merger agreement.
This limitation was the same limitation that had been negotiated in the merger
agreement between Fresh Juice and Saratoga. The special committee was
authorized to retain counsel and a financial adviser to assist in the
negotiations with North Castle. Although some of the directors were
apprehensive about exchanging stock in a public company for stock in a private
company, subject to negotiating definitive documentation acceptable to them,
they agreed to roll over a portion of their stock holdings solely because it
was a prerequisite for North Castle's participation.
On September 22, 1999, the special committee interviewed the New York law
firm of Swidler Berlin Shereff Friedman, LLP, in order to determine whether it
should retain that firm as its counsel in this matter. After discussing the
firm's experience in matters of this kind, Swidler Berlin raised the issue
that, as the members of the special committee knew, Swidler Berlin had
represented Saratoga extensively in the past, including in connection with the
acquisition of Fresh Juice. The special committee, after due deliberation,
concluded that it would nonetheless be appropriate and desirable to obtain the
benefits of the experience of Swidler Berlin, and accordingly retained Swidler
Berlin. The special committee also discussed the retention of a financial
advisor to assist the special committee. The special committee discussed
various advisors who might be appropriate to assist the special committee. The
special committee spoke with representatives of Schroders, with whom the
members were already familiar. The special committee noted that Schroders had
provided financial advice to Saratoga in connection with its acquisition of
Fresh Juice and was therefore intimately familiar with Saratoga and were aware
that Schroders had introduced North Castle to Saratoga. After due deliberation
and extensive negotiations of the Schroders engagement letter, the special
committee determined that it would be appropriate and desirable to obtain the
benefits of the experience of Schroders and, accordingly, retained Schroders.
The engagement letter with Schroders was executed on November 19, 1999.
Schroders was not given any specific instructions or limitations concerning
their engagement by the special committee.
On September 22, 1999, the special committee and its counsel negotiated
various points of a letter of intent with North Castle and Robin Prever, on
behalf of the eventual continuing stockholders, and a non-binding letter of
intent was signed by North Castle and Saratoga. The non-binding letter of
intent provided for, among other things:
o A purchase price per share of $6.00 based on an enterprise value of $58.5
million;
o Retention of a portion of the existing equity by the eventual continuing
stockholders;
o A 60-day no solicitation period;
o Completion of North Castle's due diligence;
o Customary conditions to the closing of the merger, including obtaining
necessary debt financing;
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o A termination fee customary for similar transactions;
o A new employment agreement and non-competition agreement with Robin Prever,
Saratoga's Chief Executive Officer;
o Execution of voting agreements by the eventual continuing stockholders; and
o Establishment of an option pool for the grant of options representing 10%
of the fully diluted equity to directors, officers and employees of
Saratoga following the merger.
The special committee negotiated the terms of the letter of intent solely on
behalf of the unaffiliated stockholders and not on behalf of the eventual
continuing stockholders.
On or about October 11, 1999, North Castle circulated a draft merger
agreement to the special committee.
In late November and early December 1999, Ms. Prever and Kim James,
Saratoga's Chief Financial Officer, along with representatives of North Castle,
met with representatives of Bank of America and Key Mezzanine Corp. concerning
the financing required to consummate the merger. Bank of America had provided
financing for Saratoga in connection with the Fresh Juice acquisition and was
familiar with Saratoga and its business. Saratoga's management therefore
believed that Bank of America would be a likely source of additional funds in
connection with the proposed transaction.
On November 17, 1999, the exclusivity period contained in the letter of
intent was extended to December 21, 1999.
Due to the increased volume in the trading of Class A Common Stock, on
December 17, 1999, Saratoga publicly announced, with the agreement of North
Castle, that it was in discussions with certain members of management and a
financial sponsor with respect to a going private transaction. The press
release stated that each holder, other than certain continuing stockholders, of
Class A common stock and Class B common stock would receive $6.00 per share in
the proposed transaction. Schroders, on behalf of the special committee, sent a
copy of the press release to 19 entities. The 19 entities included large
beverage companies and private equity firms either that specialize in micro-cap
leveraged buyouts or that own portfolio companies in the beverage industry
which Schroders deemed, based on its understanding of the industry, as having a
potential interest in Saratoga. During the week of December 20, 1999,
representatives of Saratoga and North Castle continued to negotiate the terms
of the merger agreement and representatives of the Continuing Stockholders and
North Castle negotiated the terms of the related agreements to the merger.
On December 23, 1999, the special committee met with Schroders and Swidler
Berlin, at which time Schroders and the special committee reviewed the status
of the financing commitments. The special committee, through its advisers,
informed North Castle that Saratoga was not satisfied with the terms of the
proposed financing commitments for the proposed transaction. At that meeting,
Schroders indicated that, based upon its preliminary work to date, there was
nothing which led it to conclude that, subject to the strengthening of the
financing commitments and completing its due diligence and analysis, Schroders
would not be in a position to opine that the $6.00 merger consideration would
fall in the range of fairness.
A board meeting followed the special committee meeting. The members of the
special committee informed the board of the status of the negotiation of the
proposed merger agreement and the financing commitments. Following the meeting,
representatives of the special committee advised North Castle that Saratoga was
not prepared to execute the merger agreement due to, among other things, the
proposed financing commitment letters. In addition, the special committee
believed that allowing additional time to elapse prior to the execution of the
merger agreement would provide the members of the special committee additional
comfort that a superior transaction was unlikely to be forthcoming.
Also on December 23, 1999, the special committee was notified that
lawsuits had been filed against Saratoga and its directors, alleging, among
other things, that the $6.00 per share price to be paid in the proposed
transaction is "unfair and inadequate consideration." See "Saratoga--Legal
Proceedings."
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During the week of December 27, 1999, Swidler Berlin advised the special
committee that it would be advisable for it to retain Delaware counsel in light
of the fact that three lawsuits had been filed in Delaware courts in connection
with the proposed merger. The special committee determined to hire the
Wilmington firm of Young Conaway Stargatt & Taylor, LLP, which was known to
Swidler Berlin and which represented Mr. Toboroff in connection with litigation
unrelated to Saratoga. Young Conaway disclosed that the firm has served, and is
currently serving, as local Delaware counsel for Warren Lichtenstein, a
director of Saratoga, and Steel Partners, II, L.P., an affiliate of Mr.
Lichtenstein, in various unrelated matters. Young Conaway further disclosed
that it did not believe that the firm's representation of Mr. Lichtenstein and
Steel Partners in unrelated matters would preclude Young Conaway from providing
appropriate representation to the special committee. After due deliberation,
the special committee determined that it would be appropriate and desirable to
obtain the benefits of the experience of Young Conaway and, accordingly,
retained Young Conaway.
Between December 23, 1999 and January 5, 2000, representatives of the
special committee further negotiated the merger agreement with representatives
of North Castle. During that period, representatives of the special committee
spoke with each of the financing sources for North Castle. In addition, as a
result of the continuing negotiations, North Castle agreed, subject to certain
terms and conditions, to contribute up to an additional $10 million in equity
financing if the $22.5 million of debt financing required to consummate the
merger would not be available without North Castle's additional equity
financing.
On January 5, 2000, the special committee met with representatives of
Schroders and Swidler Berlin. A representative of Young Conaway also attended
the meeting. Swidler Berlin reviewed the material terms of the proposed merger
agreement with the special committee, including the identity and level of
participation of the Continuing Stockholders in the merger. Schroders reviewed
the current status of the financing commitments with the special committee. In
addition, Schroders presented its analysis of the transaction and delivered
orally its opinion, which was subsequently confirmed in writing, that the
merger was fair to the holders of Class A common stock, other than the
Continuing Stockholders, from a financial point of view. In addition,
representatives of Swidler Berlin and Young Conaway provided legal advice to
the special committee regarding their fiduciary duties under Delaware law.
Based in part on Schroders' opinion, the special committee unanimously
determined that the merger, the merger agreement and the transactions
contemplated by the merger agreement are advisable, fair to and in the best
interests of the stockholders other than the Continuing Stockholders, and
recommended that the board and the stockholders of Saratoga approve and adopt
the merger, the merger agreement and the transactions contemplated by the
merger agreement.
On January 5, 2000, the entire board held a telephone meeting which
followed the special committee meeting. The members of the special committee
informed the board that Schroders orally delivered its opinion, which was
subsequently confirmed in writing, that the merger was fair to the holders of
Class A common stock, other than the Continuing Stockholders, from a financial
point of view.
The board unanimously:
o determined that the merger, the merger agreement and the transactions
contemplated by the merger agreement, including but not limited to the
voting agreements, are advisable, fair to and in the best interests of the
stockholders other than the Continuing Stockholders;
o approved and authorized in all respects the merger, the merger agreement
and the transactions contemplated by the merger agreement and authorized
the execution and delivery of the merger agreement; and
o recommended that the stockholders of Saratoga approve and adopt the merger,
the merger agreement and the transactions contemplated by the merger
agreement.
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While the board did not make any specific inquiries into the matters
supporting the analyses and opinions of the special committee and Schroders,
the board approved the merger and believed that the $6.00 merger consideration
was fair because:
o the $6.00 offer would provide a valuation of Saratoga of approximately $60
million which was in excess of 1.0x Saratoga's estimated 1999 sales and a
multiple of Saratoga's EBITDA of more than 10.0x;
o Schroders, a nationally recognized investment bank, determined that the
merger consideration was fair to the stockholders of Saratoga, other than
the Continuing Stockholders, from a financial point of view;
o the board was involved in the acquisition of Fresh Juice which was a
comparable transaction to the merger and, therefore, was familiar with
valuations of publicly traded beverage companies; and
o certain members of the board would be Continuing Stockholders who would be
selling a majority of their Class A common stock and Class B common stock
for the merger consideration of $6.00 per share and therefore, the board
was comfortable that the merger consideration was a reasonable offer;
The board approved the merger at this time because:
o the board believed that the beverage industry was undergoing rapid
consolidation based upon discussions among industry participants and the
recent public announcements that Ocean Spray hired an investment banker to
explore strategic alternatives and Chiquita Brands, Inc. was considering a
sale of all or some of its assets, including California Day-Fresh Foods,
Inc.;
o although the board had always been receptive to any inquiries or expressions
of interest regarding a potential transaction with Saratoga, the board
discussed that the transaction with North Castle was the only viable
alternative for Saratoga;
o the merger consideration represented a premium to Saratoga's stock price and
the board did not believe that Saratoga's stock price would increase
materially for the foreseeable future based upon Saratoga's historical
stock prices and the fact that the market conditions for consumer products
companies and micro-cap companies were very weak at such time;
o the board reiterated that Saratoga's low stock price and large amount of
debt required the board to enter into a transaction, and North Castle was
the only suitor which made a formal offer at such time; and
o the board also discussed that the transaction with North Castle would be
beneficial to Saratoga's current stockholders and the fact that the
Continuing Stockholders could register their Rollover Stock in certain
circumstances after the merger if the surviving corporation would be taken
public by the Purchaser and the Continuing Stockholders at a future date
did not negatively impact the effects of the merger on the unaffiliated
stockholders.
The board did not contact or solicit any third party strategic acquirers
or potential buyers other than North Castle prior to the December 17, 1999
press release. In addition, Schroders was not engaged to solicit any third party
strategic acquirers or potential buyers.
The board's only meeting to assess the fairness of the merger from a
financial point of view occurred on January 5, 2000. It should be noted that
members of the board, as Continuing Stockholders or as members of the special
committee, were familiar with, and participated in the negotiation of, the
terms of the merger since September 1999. Therefore, the board had the
opportunity to assess the fairness of the merger for several months prior to
the execution of the merger agreement.
On January 5, 2000, Saratoga, the Purchaser and MergerCo executed the
merger agreement and Saratoga issued a press release announcing the execution
of the merger agreement.
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CERTAIN EFFECTS OF THE MERGER
If the merger agreement is approved by the stockholders and the other
conditions to the closing of the merger are either satisfied or waived,
MergerCo will merge with and into Saratoga, with Saratoga as the surviving
corporation. Upon the consummation of the merger, each share of common stock of
Saratoga issued and outstanding immediately prior to the effective time of the
merger, other than
o shares held by Saratoga as treasury stock;
o the Rollover Stock held by the Continuing Stockholders; and
o shares as to which dissenters' rights have been validly perfected;
will be converted into the right to receive $6.00 in cash, without interest,
and each share of Rollover Stock will each be converted into the right to
receive one share of common stock of Saratoga as the corporation surviving the
merger. Following the merger, the Continuing Stockholders will hold
approximately 10% and, after the stock purchase by the Purchaser, the Purchaser
will hold approximately 90%, of the common stock of Saratoga as the company
surviving the merger.
Accordingly, following the merger, the Purchaser will be entitled to
approximately 90% of the net earnings of Saratoga and approximately 90% of its
net book value (should Saratoga be liquidated for the book value of its assets,
less the book value of its liabilities). The Continuing Stockholders will be
entitled to 10% of such respective amounts. Based on Saratoga's audited
financial statements as of and for the year ended December 31, 1999, 90% of
Saratoga's net book value was equal to approximately $10,791,145 and 90% of
Saratoga's net earnings was equal to approximately $1,585,091. Based on
Saratoga's Unaudited Pro Forma Condensed Consolidated Financial Data as of and
for the year ended December 31, 1999, 90% of Saratoga's net book value would be
equal to approximately $2,584,000 and 90% of Saratoga's net losses would be
equal to approximately $352,000. Based on Saratoga's audited financial
statements as of and for the year ended December 31, 1999, 10% of Saratoga's
net book value was equal to approximately $1,199,016 and 10% of Saratoga's net
earnings was equal to approximately $176,121. Based on Saratoga's Unaudited Pro
Forma Condensed Consolidated Financial Data as of and for the year ended
December 31, 1999, 10% of Saratoga's net book value would be equal to
approximately $288,000 and 10% of Saratoga's net losses would be equal to
approximately $39,000.
Upon consummation of the merger, the certificate of incorporation and
bylaws attached to the merger agreement as Exhibit A and Exhibit B,
respectively, will be the certificate of incorporation and bylaws of the
surviving corporation until amended in accordance with applicable law and the
terms thereof. The directors of MergerCo immediately prior to the merger will
be the directors of Saratoga immediately after the merger. The officers of
Saratoga immediately prior to the merger will be the officers of Saratoga
immediately after the merger.
After the merger, stockholders other than the Continuing Stockholders,
which include the Chief Executive Officer and certain directors of Saratoga,
with respect to the Rollover Stock, will cease to have any ownership interest
in Saratoga or rights as holders of shares, and will no longer benefit from any
increases in the value of Saratoga or the payment of dividends on the Class A
common stock and will no longer bear the risk of any decreases in value of
Saratoga. The Purchaser, the Continuing Stockholders and any other security
holders of the surviving corporation will be the sole beneficiaries of any
future earnings and growth of Saratoga and will have the ability to benefit
from any divestitures, strategic acquisitions or other corporate opportunities
that may be pursued by Saratoga in the future.
As a result of the merger, Saratoga will be a privately held company and
there will be no public market for the Class A common stock. In addition, the
Purchaser currently intends to cause Saratoga to terminate the registration of
the Class A common stock under the Exchange Act as soon after consummation of
the merger as the requirements for termination of registration are met. After
the registration is terminated, Saratoga will no longer be required to file
periodic reports with the SEC. There will be no public market for the common
stock of Saratoga following the merger.
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Saratoga believes that it will benefit from the merger primarily from the
infusion of capital it will receive in the merger to operate its business which
it otherwise could not obtain without significant dilution. Saratoga believes
that the main detriment to it of the merger will be the loss of the ability to
raise money in the public capital markets and provide a public marketplace for
its stockholders to trade Saratoga's common stock.
Saratoga believes that the Continuing Stockholders will benefit from the
merger primarily from the combination of being able to monetize a majority of
their investment in Saratoga's common stock for a premium and maintaining a
combined 10% equity stake in the surviving corporation so they can participate
in the future growth of Saratoga. Saratoga believes that the main detriment of
the merger to the Continuing Stockholders will be the restriction on selling
their common stock in the surviving corporation in a public market as there is
no specific exit strategy for the Continuing Stockholders. Upon the closing of
the merger, the Continuing Stockholders' interest in the net book value and net
earnings of Saratoga will be reduced from approximately 40% to approximately
10%.
Saratoga believes that the stockholders of Saratoga, other than the
Continuing Stockholders, will benefit from the merger primarily from being able
to monetize their investment in Saratoga's common stock for a significant
premium. Saratoga believes that the main detriment of the merger to the
stockholders of Saratoga, other than the Continuing Stockholders, will be their
loss of the ability to participate in Saratoga's future growth.
A significant benefit to the Purchaser, and indirectly its beneficial
owners, of engaging in this transaction at this time is that the Purchaser is
acquiring a platform with which to acquire other companies in the refrigerated
juice industry. Additionally, the Purchaser, and indirectly its beneficial
owners, will participate in a significant portion of Saratoga's future growth,
both internally generated and through acquisitions. An attendant risk, and a
potential detriment to the Purchaser, and indirectly its beneficial owners, is
that the business plan for Saratoga going forward, including serving as a
platform for the acquisition of other companies in the refrigerated juice
industry, will not be successful, in which event the Purchaser, and indirectly
its beneficial owners, will bear most of the impact of a decrease in the value
of Saratoga.
Saratoga believes that the merger will not give rise to gain, loss or
other income to Saratoga. For information regarding certain tax consequences to
stockholders other than the Continuing Stockholders, see "The Merger--Material
Federal Income Tax Consequences."
RECOMMENDATIONS OF THE SPECIAL COMMITTEE AND THE BOARD OF DIRECTORS
On January 5, 2000, the special committee unanimously determined that the
merger, the merger agreement and the transactions contemplated by the merger
agreement are advisable, fair to and in the best interests of the stockholders,
other than the Continuing Stockholders, and recommended that the board and the
stockholders of Saratoga approve and adopt the merger, the merger agreement and
the transactions contemplated by the merger agreement.
On January 5, 2000, the board, on the unanimous recommendation of the
special committee, unanimously determined that the merger, the merger agreement
and the transactions contemplated by the merger agreement, including but not
limited to the voting agreements, are advisable, fair to and in the best
interests of the stockholders, other than the Continuing Stockholders, and
recommended that the stockholders of Saratoga approve and adopt the merger, the
merger agreement and the transactions contemplated by the merger agreement.
Prior to participating in the determinations and recommendations of the board,
the members of the board who were Continuing Stockholders identified their
level of participation in the merger and noted that as a result of these
participations they had a direct conflict of interest.
REASONS OF SARATOGA FOR THE MERGER; FAIRNESS OF THE MERGER
General. At a board meeting on May 17, 1999, the board discussed the stock
price and Saratoga's alternatives to maximize stockholder value. The board
believed that the then current share
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price of approximately $2.30 did not adequately value Saratoga. In addition,
the board realized that Saratoga's low stock price would make it difficult to
raise money in the capital markets for acquisitions or other purposes without
significant dilution, at a time when the industry was undergoing rapid
consolidation. The board believed that the ongoing rapid consolidation of the
beverage industry required Saratoga to undertake a strategic transaction within
the next 12 months. Based on the discussions during the May 17, 1999 board
meeting and subsequent discussions at meetings in the summer and fall of 1999,
the board at the January 5, 2000 meeting, on the unanimous recommendation of
the special committee, approved the merger, the merger agreement and the
transactions contemplated by the merger agreement, after taking into account
the following factors:
o Since Saratoga had incurred approximately $22 million in debt in connection
with the Fresh Juice acquisition and was still in the process of
integrating Fresh Juice into its operations, the board did not believe that
another acquisition was realistic under Saratoga's then current capital
structure.
o Schroders, on behalf of the special committee, sent a copy of the press
release disclosing the $6.00 offer to 19 entities, including large beverage
companies and private equity firms either that specialize in micro-cap
leveraged buyouts or that own portfolio companies in the beverage industry
which Schroders deemed, based on its understanding of the industry, as
having a potential interest in Saratoga.
o Schroders heard from only two interested parties, over the course of the
ensuing two weeks following the announcement, both of which declined to
pursue the matter further.
o No strategic alternatives were reasonably available to Saratoga, other than
the merger.
o The belief of the special committee that $6.00 was the best price reasonably
obtainable from others, $6.00 was the best offer from North Castle and the
merger was a better alternative than not making any deal and remaining a
public company.
Special Committee. In reaching its determinations referred to under
"Recommendations of the special committee and the Board of Directors," the
special committee considered the factors listed below, each of which, in the
view of the special committee, supported its determinations. The following
discussion of the factors considered by the special committee is not intended
to be exhaustive but summarizes the material factors considered:
o The special committee considered that the special committee, which consisted
of a majority of directors who are not employees of Saratoga or Continuing
Stockholders, retained Schroders to issue a fairness opinion with respect
to the stockholders of Saratoga, other than the Continuing Stockholders.
o The special committee considered that the merger was approved by a majority
of the directors of Saratoga who are not employees of Saratoga or
Continuing Stockholders.
o The special committee considered that, although the transaction was not
structured so that approval of at least a majority of the stockholders of
Saratoga, other than the Continuing Stockholders, was required, there were
adequate procedural safeguards in place including the formation of the
special committee and the special committee's retention of Schroders. In
addition, the members of the special committee considered that they were
cashing out their personal shares of common stock for $6.00 and the
Continuing Stockholders were cashing out a majority of their shares of
common stock for $6.00 per share.
o In its consideration of the merger, the special committee met formally with
Schroders on five occasions. On November 11, 1999, Schroders met at its
offices with the chairman of the special committee and discussed
outstanding issues related to the merger and timing of the fairness
opinion. On December 3, 1999 at the offices of the chairman of the special
committee, Schroders and the special committee discussed the timing of the
transaction; issues related to the lack of available financial information
for the one-month periods ended December 31, 1998 and January 31, 1999 for
Fresh Juice; the timing of the audit of Fresh Juice for its fiscal year
ending November 1998; outstanding tax considerations concerning Saratoga's
net operating loss; issues
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related to micro capitalization stocks and thinly traded stocks; and the
implications of the size of the break-up fee. On December 9, 1999 at the
offices of the chairman of the special committee, Schroders and the special
committee met to discuss the timing of the transaction and the fairness
opinion, Saratoga's management's forecasts and the break-up fee. On
December 23, 1999 at the offices of Swidler Berlin, Schroders and the
special committee discussed various aspects of the merger agreement, the
class-action lawsuits commenced since the announcement of the transaction,
the timing of the fairness opinion and the break-up fee. On January 5, 2000
at the offices of Swidler Berlin, Schroders rendered its fairness opinion
orally to the special committee. On all five occasions, members of the
special committee posed questions to Schroders to better understand the
issues related to the merger including the purchase price, financing and
break-up fee as well as Schroders' due diligence and financial advice.
Schroders discussed with the special committee the implications of the
terms of the transaction and the results of its financial analysis. In
addition, the special committee informed Schroders that $6.00 was an
important benchmark regarding the merger consideration because it
represented an enterprise value of Saratoga of approximately $60 million
which was in excess of 1.0x estimated 1999 sales and a multiple of
Saratoga's EBITDA of more than 10.0x.
o The special committee considered the historical market prices and recent
trading activity of the Class A common stock and the fact that the merger
consideration would enable the stockholders, other than the Continuing
Stockholders with respect to the Rollover Stock, to realize a premium over
the prices at which the Class A common stock has traded over the past two
years. The historical market prices of the Class A common stock for the
past two years were deemed relevant because they indicate the arm's-length
trading prices of the Class A common stock for that period as determined in
the open market. The merger consideration represents a 37.3%, 63.9% and
76.5% premium, respectively, over the average of the closing prices during
the 30, 60 and 90 business days, respectively, prior to the public
announcement. The special committee also considered the historical market
prices of the Class A common stock for the past five years. During that
time period, the market price of Class A common stock reached a level of
$6.00 or more only during the period from March 7, 1997 to March 17, 1997.
However, for most of that five-year period, the Class A common stock traded
at a price of below $4.00. The special committee did not place much
emphasis on the fact that the Class A common stock traded at a price of
$6.00 or more for the period from June 24, 1993 to April 12, 1994 since the
board did not consider that information relevant.
o The special committee considered the oral opinion, subsequently confirmed in
writing, of Schroders to the effect that, as of the date of Schroders'
opinion, the merger consideration of $6.00 in cash per share of common
stock to be received by the stockholders, other than the Continuing
Stockholders, in the merger was fair to those stockholders from a financial
point of view, and also considered the analysis underlying Schroders'
opinion. A copy of Schroders' opinion, setting forth the assumptions made,
matters considered and limitations on the review undertaken in connection
with its opinion, is attached as Annex B to this document and should be
read carefully in its entirety.
o The special committee considered Schroders analyses as an accurate
reflection of Saratoga's value and expressly adopted such analyses as an
appropriate criteria for judging the fairness of the consideration and the
merger because Schroders is an internationally recognized investment
banking firm with experience in the valuation of businesses and their
securities in connection with mergers and other transactions. In addition,
the special committee was aware of the extensive experience of Schroders'
consumer products group in providing corporate finance and advisory
services to companies in the consumer products industry as Schroders was
involved in Saratoga's acquisition of Fresh Juice. The special committee
also considered that Schroders' opinion was based upon, among other things:
o Schroders' review of financial and stock market data of Saratoga in
comparison with similar data for other publicly held companies in
businesses similar to Saratoga; and
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o to the extent publicly available, the financial terms of the other
business combination and other transactions that have recently been
effected including Saratoga's acquisition of Fresh Juice.
o The merger consideration of $6.00 was at the higher end of many of the
valuation analyses that Schroders performed. To the extent certain
valuation methods yielded an amount greater then $6.00, the special
committee viewed Schroders' analyses as a whole and concluded that the
$6.00 per share price was fair to the holders of the Class A common stock,
other than the Continuing Stockholders. In addition, the special committee
determined that it was a fair price because the $6.00 offer was announced
publicly and no other offers were received. The special committee
considered that $6.00 was the best price reasonably obtainable from others,
$6.00 was the best offer from North Castle and the merger was a better
alternative than not making any deal and remaining a public company.
o The special committee considered that there were no other proposals which
were comparable to North Castle's proposal, notwithstanding the December
17, 1999 announcement.
o The special committee considered that although no auction occurred,
Schroders distributed, during the week of December 17, 1999, the press
release announcing the proposed merger to 19 potential acquirors.
o The special committee considered that Schroders heard from only two
interested parties, over the course of the ensuing two weeks following the
announcement, both of which declined to pursue the matter further. The
first party was a private equity firm that stated that the $6.00 per share
offer price was higher than the price it would be willing to offer and thus
did not make an offer. The other party was a juice manufacturer that
indicated that its intention was to wait and see if the deal would be
consummated at the $6.00 per share offer price.
o The special committee considered that Saratoga did not execute a definitive
agreement until approximately three weeks after Saratoga issued its press
release, which allowed ample time for interested suitors to make a
proposal.
o The special committee considered that the merger agreement does not preclude
Saratoga's acceptance of a superior proposal, even though the break-up fee
and reimbursement of costs and expenses would have to be paid.
o The special committee considered information with respect to the financial
condition, results of operations, business and prospects of Saratoga,
including the financial projections supplied to Schroders and the inherent
uncertainties and contingencies associated with those financial
projections, the size of Saratoga as compared to the remaining companies in
the retail beverage industry, and the economic and market conditions
affecting Saratoga.
o The special committee considered that Saratoga's net book value was
materially lower than the merger consideration. However, neither the
special committee nor Schroders specifically calculated Saratoga's
liquidation value because the special committee and Schroders believed that
it was more appropriate to value Saratoga as a going concern. In addition,
neither the special committee nor Schroders determined a multiple with
which to calculate a total selling price for Saratoga based on net book
value because they believed that net book value was not an appropriate
valuation metric for Saratoga, in particular, given its high level of debt
relative to its total capitalization. Moreover, net book value is not a
relevant multiple in valuing publicly traded beverage businesses where the
market incorporates future expected financial performance into its
valuation of the business as opposed to using historical cost as measured
by net book value. The special committee attributed very little weight to
the consideration of Saratoga's net book value and liquidation value in
reaching its determination that the merger is fair.
o The special committee also considered the likelihood of the consummation of
the proposed transaction, the proposed structure of and financing for the
transaction and anticipated closing
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date, and the impact on Saratoga of a delay or further uncertainty both
with respect to the market for the Class A common stock and the fiduciary
obligations of the special committee to the stockholders other than the
Continuing Stockholders.
o The special committee also considered the fact that consummation of the
merger would preclude the stockholders, other than the Continuing
Stockholders with respect to the Rollover Stock, from having the
opportunity to participate in the future growth prospects of Saratoga. In
addition, the special committee recognized that the Purchaser and the
Continuing Stockholders will have the opportunity to benefit from any
increases in the value of Saratoga following the merger. Accordingly, in
reaching its conclusion to approve the merger agreement, the special
committee considered management's projections of future sales and earnings
of Saratoga and determined that the future prospects of Saratoga are
adequately reflected in the merger consideration.
o The special committee also considered the fact that the merger would afford
the stockholders, other than the Continuing Stockholders with respect to
the Rollover Stock, an opportunity to dispose of their Class A common stock
at fair value and achieve liquidity without the possible diminution of
value resulting from the lack of an active trading market.
o In addition to the above, the special committee discussed and considered
whether there were alternatives to the merger and determined that there
were no alternatives other than for Saratoga to remain a publicly traded
entity. The special committee preferred the merger to Saratoga remaining a
publicly traded entity since the merger afforded the stockholders, other
than the Continuing Stockholders with respect to the Rollover Stock,
liquidity for their Class A common stock at fair value without the possible
diminution of value resulting from the lack of an active trading market.
The special committee assigned very little weight to the fact that the
Continuing Stockholders could register their Rollover Stock in certain
circumstances after the merger if the surviving corporation would be taken
public by the Purchaser and the Continuing Stockholders at a future date.
In view of the various factors considered by the special committee in
connection with its evaluation of the merger and the merger consideration, the
special committee did not find it necessary to quantify or otherwise attempt to
assign relative importance to the specific factors considered in making its
determination, nor did it evaluate whether these factors were of equal
importance. However, based upon these factors, the evaluation of all the
relevant information provided to them by the special committee's financial
advisor and taking into account the existing trading ranges for the Class A
common stock, the special committee determined that the merger, including the
merger consideration, was fair from a financial point of view, to the
stockholders, other than the Continuing Stockholders. In considering the
factors described above, individual members of the special committee may have
given different weights to different factors. None of the factors considered by
the special committee led the special committee to believe that the merger
would be unfair to stockholders other than the Continuing Stockholders.
Board of Directors. In reaching its determinations referred to under
"--Recommendations of the Special Committee and the Board of Directors," the
board considered the following factors:
o the determinations and recommendations of the special committee;
o the factors referred to above as having been taken into account by the
special committee; and
o the fact that the merger consideration and the terms and conditions of the
merger agreement were the result of negotiations between the special
committee and its representatives, on the one hand, and representatives of
the Purchaser, on the other hand.
In view of the wide variety of factors considered by the members of the
board in connection with the evaluation of the merger and the complexity of
these matters, the board did not consider it practicable to, nor did it attempt
to, quantify, rank or otherwise assign relative weights to the specific factors
it considered in reaching its decision. The board also relied on the experience
and expertise of the financial advisors of the special committee for
quantitative analysis of the financial terms of the
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merger. To that end, the board has expressly adopted Schroders analyses
contained in Schroders' presentation to the special committee. The board
conducted a discussion of, among other things, the factors described above,
including asking questions of Saratoga's management and legal and financial
advisors, and reached the conclusion that the merger was advisable and in the
best interests of Saratoga, the stockholders other than the Continuing
Stockholders, and Saratoga's other constituencies. In considering the factors
described above, individual members of the board may have given different
weight to different factors. None of the factors considered by the board led
the board to believe that the merger would be unfair to stockholders other than
the Continuing Stockholders.
The board determined that the merger was procedurally fair even though the
terms of the merger did not require approval of a majority of the unaffiliated
stockholders and the Continuing Stockholders have entered into voting
agreements that effectively assure approval and adoption of the merger
agreement:
o the special committee consisted entirely of non-management, non-affiliated
independent directors appointed to represent the interests of the
noncontinuing stockholders;
o the special committee retained and was advised by legal counsel separate
from legal counsel representing North Castle and/or the Continuing
Stockholders with respect to the merger;
o the special committee retained Schroders as its independent financial
advisor to assist it in evaluating a potential transaction with the
Purchaser and received advice from Schroders;
o the special committee engaged in deliberations in evaluating the merger and
alternatives to the merger;
o the special committee negotiated the terms of the merger agreement solely on
behalf of the unaffiliated stockholders and the Continuing Stockholders
were represented by separate legal counsel;
o the $6.00 per share price and the other terms and conditions of the merger
agreement resulted from active bargaining between the special committee and
its representatives, on the one hand, and representatives of the Purchaser,
on the other hand; and
o the $6.00 per share price was announced publicly on December 17, 1999 and no
higher offers were received prior to the execution of the merger agreement
on January 5, 2000 or thereafter. No other offers were received despite the
fact that Schroders sent the press release to 19 other entities and the
board has always been receptive to inquiries and expressions of interest
regarding potential transactions.
REASONS OF THE CONTINUING STOCKHOLDERS FOR THE MERGER; FAIRNESS OF THE MERGER
The Continuing Stockholders, some of whom are members of the board, have
advised Saratoga that they considered the same factors which formed the basis
of the determinations of the board described above, and that based upon those
factors, each of the Continuing Stockholders has a reasonable belief that the
merger agreement and related agreements and the transactions contemplated
thereby are fair to the stockholders of Saratoga other than the Continuing
Stockholders. While the Continuing Stockholders could not rely on the
Schroders' analysis in making their individual determinations to roll over
equity into the surviving corporation, the Continuing Stockholders have advised
Saratoga that they adopted Schroders' analyses in determining the fairness of
the transactions to the stockholders other than the Continuing Stockholders.
The Continuing Stockholders determined that the merger was procedurally
fair even though the terms of the merger did not require approval of the
majority of the stockholders other than the Continuing Stockholders and the
Continuing Stockholders have entered into voting agreements that effectively
assure approval and adoption of the merger agreement for reasons similar to
those disclosed by the board as follows:
o a special committee of the board was appointed consisting entirely of
non-management, non-affiliated independent directors to represent the
interests of the stockholders other than the Continuing Stockholders;
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o the special committee retained and was advised by legal counsel separate
from legal counsel representing North Castle and/or the Continuing
Stockholders with respect to the merger;
o the special committee retained Schroders as its independent financial
advisor to assist it in evaluating a potential transaction with the
Purchaser and received advice from Schroders and an opinion to the effect
that the merger consideration of $6.00 in cash per share to be received in
the merger by Saratoga's stockholders, other than the Continuing
Stockholders, is fair to those stockholders from a financial point of view;
o the special committee engaged in deliberations in evaluating the merger and
alternatives to the merger;
o the special committee negotiated the terms of the merger agreement solely on
behalf of the stockholders other than the Continuing Stockholders and the
Continuing Stockholders were represented by separate legal counsel;
o the $6.00 per share price and the other terms and conditions of the merger
agreement resulted from active bargaining between the special committee and
its representatives, on the one hand, and representatives of the Purchaser,
on the other hand; and
o the $6.00 per share price was announced publicly on December 17, 1999 and it
was reported by Saratoga that no higher offers were received prior to the
execution of the merger agreement on January 5, 2000 or thereafter.
The Continuing Stockholders have agreed to this transaction due in large
part because a majority of their shares of Saratoga common stock will be cashed
out at $6.00 per share which is a premium to the market price. Each of the
Continuing Stockholders, except for Ms. Prever, has expressed a preference to
have all of their shares of Saratoga common stock cashed out at the $6.00 per
share price in the transaction. In spite of that preference, the Continuing
Stockholders have each agreed to roll over a portion of their equity in the
surviving corporation in order to satisfy the Purchaser's condition to the
transaction. While the roll over of shares into the surviving corporation by
the Continuing Stockholders may have the incidental effect of allowing the
Continuing Stockholders to benefit from any future growth of Saratoga, the
Continuing Stockholders will only retain a minority ownership interest in a
private company with no immediate source of liquidity and no definitive
short-term plan for liquidation of their minority interest.
REASONS OF THE PURCHASER FOR THE MERGER; FAIRNESS OF THE MERGER
The Purchaser has advised Saratoga that it believes that the merger
agreement and related agreements and the transactions contemplated thereby are
fair to the unaffiliated stockholders of Saratoga for the reasons discussed
below. The Purchaser has advised Saratoga that it did not find it practicable
to, and did not, quantify or otherwise attach relative weights to the factors
it considered.
o The Purchaser believes that the merger consideration of $6.00 per share is
fair to the unaffiliated stockholders of Saratoga because it significantly
exceeds the market price of the Saratoga Class A common shares of
approximately $5.00 per share immediately preceding the announcement of the
proposed transaction, as well as the historic market price range of such
shares over the past three years of approximately $2.00 to $3.50 per share.
o The aggregate merger consideration significantly exceeds the net book value
of Saratoga (as determined by subtracting total liabilities from total
assets as stated on Saratoga's publically available financial statements).
o The merger consideration the Purchaser has agreed to pay significantly
exceeds the merger consideration it offered to pay initially, an amount it
also believes would have been fair based on Saratoga's historic stock
price.
o The Purchaser is not aware of any firm offer from another party in the past
18 months for the outstanding shares of Saratoga that approaches the value
of the merger consideration the Purchaser has agreed to pay.
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The Purchaser believes that the proposed transaction is fair procedurally
to the unaffiliated stockholders for the following reasons:
o The Purchaser negotiated the merger agreement with a special committee,
comprised entirely of directors who are not employees of Saratoga and who
will not retain any equity in Saratoga following the merger.
o The special committee, with the assistance of its financial and legal
advisors, negotiated the merger agreement solely on behalf of the
non-Continuing Stockholders on an arm's length basis, pursuant to which
negotiations the Purchaser made several concessions for the benefit of the
unaffiliated stockholders that it was not prepared to offer prior to
entering into such negotiations, including significantly increasing its
offer twice.
o The special committee retained Schroders, a recognized investment bank, to
prepare a report concerning the fairness of the transaction from a
financial point of view to the unaffiliated security holders and to advise
the special committee, and Schroders delivered such a fairness opinion.
o The transaction proposed by the Purchaser was unanimously approved by the
board of directors of Saratoga, including directors who are not employees
of Saratoga.
o The Purchaser believes that the proposed transaction is fair to the
unaffiliated stockholders, notwithstanding that the consummation of such
transaction is not conditioned upon their approval and the fact that
Continuing Stockholders have entered into voting agreements that
effectively assure approval and adoption of the merger agreement. The
Purchaser believes that Saratoga offers a unique opportunity for North
Castle to implement its strategic growth plan in the refrigerated premium
beverage industry. The Purchaser believes its strategic vision offers the
best opportunity for Saratoga stockholders to maximize the value of their
holdings. In order to obtain necessary financing and to execute its
strategy successfully, the Purchaser was required to achieve a high degree
of certainty that the transaction contemplated with Saratoga would be
consummated in a timely fashion. In addition, the Purchaser required the
participation of some of the Continuing Stockholders in the ongoing
operation of Saratoga for several reasons, including (i) the operational
expertise certain of such stockholders will bring to Saratoga and other
acquired businesses on a going-forward basis, (ii) that the residual equity
stake held by such stockholders in Saratoga ensures that their management
interests are more closely aligned with North Castle's interests and (iii)
the retained equity of such stockholders in Saratoga reduces the amount of
equity financing the Purchaser otherwise would have been required to
contribute to consummate the contemplated transaction. Each of these
factors, combined with the increased certainty of the consummation of the
contemplated transaction, permitted the Purchaser to increase its offer of
the merger consideration to the unaffiliated stockholders. Therefore, as a
condition to signing the merger agreement with Saratoga, the Purchaser
required each of the Continuing Stockholders to enter into a voting
agreement with it. For these reasons, the Purchaser believes that the
proposed transaction is fair to the unaffiliated stockholders,
notwithstanding that the consummation of such transaction is not
conditioned upon their approval and the Continuing Stockholders have
entered into voting agreements that effectively assure approval and
adoption of the merger agreement.
The Purchaser did not prepare extensive valuations of the Saratoga
business and did not prepare any valuations of the business based on net book
value, liquidation value and going concern value, for the following reasons:
o The Purchaser views its acquisition as strategic. The Purchaser anticipates
significantly transforming the Saratoga business with capital infusions to
which Saratoga does not have access. Thus, the Purchaser did not perform,
and viewed as of little significance, valuation methods that are based on
the historical costs of Saratoga's assets or the historical performance of
Saratoga's business such as net book value, liquidation value and going
concern value.
o The Purchaser's principal concern when considering the merger was whether
the estimated cash flows from the existing Saratoga business would support
the Purchaser's planned capital expansion for Saratoga. Although the
Purchaser did not perform a detailed EBITDA analysis in determining whether
or not to acquire the Saratoga business, it determined, based on
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its experience in other acquisitions and conversations with its financing
sources, that the approximate implied EBITDA multiple derived from the
agreed $6.00 per share merger consideration would support the Purchaser's
planned capital expansion.
o While the Purchaser could not rely on the Schroders' analysis in making its
determination to acquire the Saratoga business, the Purchaser has adopted
Schroders' analysis in determining the fairness of the transactions to the
stockholders other than the Continuing Stockholders.
OPINION OF FINANCIAL ADVISOR TO THE SPECIAL COMMITTEE
Schroders has acted as financial advisor to the special committee of
Saratoga. The special committee requested that Schroders evaluate the fairness
of the cash consideration to be received in the merger by the holders of common
stock of Saratoga, other than the Continuing Stockholders, from a financial
point of view.
On January 5, 2000, Schroders rendered its oral opinion, which was later
confirmed by its written opinion dated January 5, 2000, to the special
committee of Saratoga that, as of the date of the opinion, the cash
consideration to be received in the merger by the holders of common stock of
Saratoga, other than the Continuing Stockholders, was fair from a financial
point of view.
Schroders is an internationally recognized investment banking firm with
experience in the valuation of businesses and their securities in connection
with mergers; acquisitions; sales and distributions of listed and unlisted
securities; private placements; and valuations for corporate and other
purposes.
The extensive experience of Schroders' consumer products investment
banking group in providing corporate finance and advisory services to companies
in the consumer products industry was a significant factor in the special
committee's decision to select Schroders to be its financial advisor for the
merger.
A copy of Schroders' written opinion, which sets forth the assumptions
made, matters considered and limitations on the scope of the review undertaken
by Schroders, is attached as Annex B to this document, and is incorporated by
reference into this document. The Schroders' opinion was provided at the
request of the special committee and is directed only to the fairness, from a
financial point of view, of the consideration to be received in the merger by
common stockholders of Saratoga, other than the Continuing Stockholders. THE
SUMMARY OF SCHRODERS' OPINION SET FORTH IN THIS PROXY STATEMENT DOES NOT
PURPORT TO BE COMPLETE AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE
FULL TEXT OF THE SCHRODERS' OPINION ATTACHED AS ANNEX B HERETO. Saratoga
stockholders should read the Schroders' opinion carefully and in its entirety.
In reading the discussion of the fairness opinion set forth below, Saratoga
stockholders should be aware that Schroders' opinion:
o was provided to the special committee for its use and benefit;
o did not address Saratoga's underlying business decision to effect the
merger;
o did not constitute a recommendation to the special committee in connection
with the merger;
o indicates that Schroders did not actively participate in the negotiation of
the merger consideration; and
o does not constitute a recommendation to any Saratoga stockholder as to how
to vote in connection with the merger proposal.
Although Schroders evaluated the fairness, from a financial point of view,
of the consideration to be received in the merger by the stockholders of
Saratoga, other than the Continuing Stockholders, the consideration itself was
determined by representatives of the Purchaser and the special committee
through arm's length negotiations. Schroders has consented to the references to
Schroders and the Schroders' opinion in this document and to the attachment of
the Schroders' opinion to this document as an appendix.
A copy of the Schroders financial analysis discussed below has been filed
as an Exhibit to the Schedule 13E-3 filed with the SEC with respect to the
merger, may be inspected and copied, and obtained by mail, from the SEC as set
forth in "Available Information" and will be made available for inspection and
copying at the principal executive offices of Saratoga at 1000 American
Superior
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Boulevard, Winter Haven, Florida 33884 during regular business hours by any
interested stockholder of Saratoga or his or her representative who has been so
designated in writing upon written request and the expense of the requesting
stockholders.
In arriving at the Schroders' opinion, Schroders reviewed the merger
agreement and related documents, with particular emphasis placed on the sources
of required financing in order to complete the transaction, certain commitment
letters related to the financing for the transaction, and publicly available
business and financial information relating to Saratoga. Schroders also
reviewed other information relating to Saratoga, including financial forecasts
provided to, or discussed with, Schroders by Saratoga, and held discussions
with the management of Saratoga to discuss the business and prospects of
Saratoga. The financial forecasts provided to Schroders by Saratoga management
included, but are not, limited to the following and are set forth in their
entirety below:
o a detailed income statement for the years 1999E to 2004E;
o a breakdown of the components used to derive the last twelve months ("LTM")
income statement;
o a detailed schedule of Saratoga's 1999 estimated fiscal year end income
statement pro forma for the Fresh Juice acquisition;
o assumptions regarding growth projections, margins and working capital
projections for the years 1999E to 2004E;
o a forecasted depreciation and amortization schedule, including capital
expenditures, for the years 1999E to 2004E; and
o a schedule of the outstanding options and warrants including detailed
information of the respective exercise prices.
Schroders did not materially increase or deduct from the final
calculations provided by management. However, Schroders recognized the
limitations of these figures with respect to the use of management estimates
for historical and projected financial performance and the use of unaudited
financial figures in its analysis.
Certain Projected Financial Data
Saratoga does not, as a matter of course, make public forecasts or
projections as to future sales, earnings or other income statement data, cash
flows or balance sheet and financial position information. However, in order to
aid the evaluation of Saratoga by the special committee and Schroders'
assessment of the fairness, from a financial point of view, of the
consideration of $6.00 per share in cash payable to the stockholders, other
than the Continuing Stockholders, pursuant to the merger agreement, Saratoga,
in December 1999, furnished the special committee and Schroders with certain
projections prepared by Saratoga's management.
The following projections are included in this document solely because the
projections were made available to such parties. The projections do not reflect
any of the effects of the merger or other changes that may in the future be
deemed appropriate concerning Saratoga and its assets, business, operations,
properties, policies, corporate structure, capitalization and management in
light of the circumstances then existing. Saratoga has not updated the
projections to reflect changes that have occurred since their preparation. The
projections were not prepared with a view toward public disclosure or
compliance with published guidelines of the SEC or the American Institute of
Certified Public Accountants regarding forward-looking information or generally
accepted accounting principles. Neither Saratoga's independent auditors, nor
any other independent accountants, have compiled, examined or performed any
procedures with respect to the prospective financial information contained in
the projections, nor have they expressed any opinion or given any form of
assurance on such information or its achievability, and assume no
responsibility for, and disclaim any association with, such prospective
financial information. Furthermore, the projections necessarily make numerous
assumptions, some (but not all) of which are set forth below and many of which
are beyond the
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control of Saratoga and may prove not to have been, or may no longer be,
accurate. Additionally, this information, except as otherwise indicated, does
not reflect revised prospects for Saratoga's businesses, changes in general
business and economic conditions, or any other transaction or event that has
occurred or that may occur and that was not anticipated at the time such
information was prepared. Accordingly, such information is not necessarily
indicative of current values or future performance, which may be significantly
more favorable or less favorable than as set forth below, and should not be
regarded as a representation that they will be achieved.
THE PROJECTIONS ARE NOT GUARANTEES OF PERFORMANCE. THEY INVOLVE RISKS,
UNCERTAINTIES AND ASSUMPTIONS. THE FUTURE RESULTS AND STOCKHOLDER VALUE OF
SARATOGA MAY MATERIALLY DIFFER FROM THOSE EXPRESSED IN THE PROJECTIONS. MANY OF
THE FACTORS THAT WILL DETERMINE THESE RESULTS AND VALUES ARE BEYOND SARATOGA'S
ABILITY TO CONTROL OR PREDICT. STOCKHOLDERS ARE CAUTIONED NOT TO PLACE UNDUE
RELIANCE ON THE PROJECTIONS. THE PROJECTIONS REFLECT NUMEROUS ASSUMPTIONS, ALL
MADE BY MANAGEMENT OF SARATOGA AS OF NOVEMBER 1999, WITH RESPECT TO INDUSTRY
PERFORMANCE, GENERAL BUSINESS, ECONOMIC, MARKET AND FINANCIAL CONDITIONS AND
OTHER MATTERS, ALL OF WHICH ARE DIFFICULT TO PREDICT AND MANY OF WHICH ARE
BEYOND THE SARATOGA'S CONTROL. THERE CAN BE NO ASSURANCE THAT THE PROJECTIONS
WILL BE REALIZED OR THAT SARATOGA'S FUTURE FINANCIAL RESULTS WILL NOT
MATERIALLY VARY FROM THE PROJECTIONS. SARATOGA DOES NOT INTEND TO UPDATE OR
REVISE THE PROJECTIONS.
The projections included in this document have been prepared by Saratoga
based upon management's estimates of the total market for its services and
Saratoga's own performance through 2004. The financial projections were subject
to and prepared on the basis of estimates, limitations, qualifications and
assumptions, and involved judgments with respect to, among other things, future
economic, competitive and financial and market conditions and future business
decisions which may not be realized and are inherently subject to significant
business, economic, competitive uncertainties, all of which are difficult to
predict and many of which are beyond Saratoga's control. The projected results
for calendar 1999 set forth in the projections were based upon actual results
through the third quarter of 1999 and management forecasts for the remainder of
the year. The projections do not reflect any material changes to the business
of Saratoga that have not been disclosed elsewhere in this document.
In developing financial projections, management considered numerous
economic, industry, market and financial conditions on the date of the
projections that are beyond the control of Saratoga. These projections are
subject to numerous assumptions, risks, and uncertainties that could change
rapidly. The increased likelihood of changes in underlying factors and
assumptions was considered as the timeframe projected expanded. In addition,
Saratoga relied on historical financial data available for Fresh Juice which
had certain limitations explained below.
The following are the economic, industry, market and financial conditions
Saratoga considered:
Economic Data:
o Published industry data indicated that demand for orange juice has grown at
an annual rate of approximately 3% annually.
o Published industry data indicated that the bottled water business has grown
at an annual rate of approximately 6% annually.
o Fresh squeezed orange juice, smoothies, and bottled water are considered
premium beverage products. Purchases of premium products are more
discretionary and can be impacted by significant economic changes that are
beyond the control of Saratoga. Revenues, margins and expenses were
forecast based on current economic and consumption trends.
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Market Data:
o Saratoga believes that there is an expanding niche in the market for fresh
squeezed juices and juice beverages as consumers demand healthier, better
tasting products. Saratoga projected an increase in food service business
and organic fruit business and retail sales of these products.
o Saratoga plans to leverage its bi-coastal production capabilities and
develop additional food service business on a national basis. Currently,
food service companies value higher quality juices and the ability to
provide service on a national basis. Saratoga projected a significant
revenue increase in FY2000 from this increase in food service business and
the organic fruit business increase noted below.
o Demand for organic products, including juice, continues to grow. Saratoga
has arranged to process organic juice in FY2000, which Saratoga believes
will significantly increase sales in FY2000.
Revenues:
Revenues were projected by Saratoga's operating divisions: Saratoga Spring
Water business, New York juice business that distributes juice, smoothies and
water in the New York metro area, the Florida/East Coast juice business, and
the California/West Coast juice business that incorporates the Hansen's Juice
business. Other revenue includes intercompany sales of juice between production
facilities and the entity making the third party sales.
Spring Water business revenues were projected to increase 6% annually, in
line with industry trends. Spring Water business was projected to remain
constant as a share of total company revenues. The New York juice business was
projected to increase significantly in FY2000 due to an increase of food
service business and the addition of a retail organic juice product. This
growth was decreased in subsequent years as Saratoga filled its market share of
the niche for these products. The Florida juice business was projected to
increase significantly in FY2000 primarily due to the processing and sale of
organic juices. Additional revenue increases were projected in the food service
business segment. In the years following FY2000, Saratoga projected a leveling
of revenue growth to a level slightly higher than industry average. The
California juice business was projected to grow 15% annually based on
historical market rates of growth for smoothie products and juices on the West
Coast.
Margins:
Raw materials including citrus fruit and various fruit puree are
agricultural products and subject to dramatic fluctuations due to weather and
climate changes beyond Saratoga's control. Over the last six months, the prices
for citrus fruit have fluctuated 30% to 40% due to changes in the crop sizes.
The constant margin projections reflect an adjustment of selling prices in line
with raw material costs.
Expenses:
In order to support the sales growth, expenses are projected to increase
15% in FY2000. This projection includes marketing support programs and sales
staffing necessary to grow the business. This projection also includes the
financial and administrative staff necessary to support growing the business.
Balance Sheet:
Income statement projections are a basis for the working capital
projections. Accounts receivable terms are essentially 30 days. Inventory was
projected as turning each month, consistent with prior years' trends. Saratoga
produces primarily fresh juice products which cannot be inventoried for long
periods. Prepaid expenses were projected as a constant 6.4%, consistent with
historical periods. With respect to fixed assets, Saratoga projected capital
expenditures of $1.0 million annually to sustain existing fixed assets. In
FY1999, $1.8 million in capital was spent and the incremental spending related
primarily to installation of systems that are Year 2000 compliant and a new
juice finisher in Florida to replace aged equipment and improve operating
efficiencies. Capital expenditures were projected in FY2001 to upgrade fruit
processing machinery in order to replace aging equipment.
27
<PAGE>
Historical Financial Information:
Prior to the acquisition, Fresh Juice outsourced a significant portion of
its SEC reporting, accounting, tax preparation and systems. Detailed sales
information by customer business segment and selling unit was tracked
inconsistently. Cost of goods sold was reported in total, while costing by
individual unit of sale was not tracked. Saratoga has implemented systems to
report this operating data, and the associated expenses have been projected. A
limitation of this projection was the inability to refer to historical product
and customer sales trends as a basis to determine future projections.
INCOME STATEMENT
($ IN THOUSANDS)
<TABLE>
<CAPTION>
PROJECTED-YEAR ENDING DECEMBER 31,
-------------------------------------------------------------------------------------------
LTM 1999E(1) 2000E 2001E 2002E 2003E 2004E
------------ ------------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
REVENUE
Water Business .................. -- 9,722 10,305 10,920 11,629 12,763 13,331
New York Juice Business ......... -- 12,500 15,500 17,000 18,600 20,000 21,500
FL/East Juice Business .......... -- 21,583 35,849 39,416 42,231 43,263 44,108
CA/West Juice Business .......... -- 13,911 15,733 16,693 17,527 18,404 19,324
Plug: Fresh Juice ............... -- 3,200 -- -- -- -- --
Other ........................... -- (7,388) (10,834) (12,604) (13,498) (14,165) (14,739)
-- ------ ------- ------- ------- ------- -------
TOTAL NET REVENUES ............... $ 52,200 $ 53,528 $ 66,554 $ 71,424 $ 76,489 $ 80,266 $ 83,523
Revenue Growth ................... 2.5% 24.3% 7.3% 7.1% 4.9% 4.1%
COST OF GOODS SOLD ............... (39,640) (40,682) (50,581) (54,282) (58,132) (61,002) (63,478)
--------- -------- -------- -------- -------- -------- --------
GROSS PROFIT ..................... 12,560 12,847 15,973 17,142 18,357 19,264 20,046
Gross Margin ..................... 24.1% 24.0% 24.0% 24.0% 24.0% 24.0% 24.0%
OPERATING EXPENSES, EXCL. DEPR.
SG&A ............................ (9,411) (7,789) (8,985) (9,464) (9,944) (10,435) (10,858)
Corporate Expenses .............. 0 0 0 0 0 0 0
--------- -------- -------- -------- -------- -------- --------
TOTAL OPERATING EXPENSES ......... (9,411) (7,789) (8,985) (9,464) (9,944) (10,435) (10,858)
EBITDA (ADJUSTED) ................ $ 3,148 $ 5,058 $ 6,988 $ 7,678 $ 8,414 $ 8,829 $ 9,188
========= ======== ======== ======== ======== ======== ========
EBITDA Margin .................... 6.0% 9.4% 10.5% 10.8% 11.0% 11.0% 11.0%
EBITDA Growth .................... 60.6% 38.2% 9.9% 9.6% 4.9% 4.1%
Depreciation ..................... 1,551 863 946 1,221 1,471 1,571 1,671
Amortization ..................... 0 650 700 700 700 700 700
--------- -------- -------- -------- -------- -------- --------
EBIT ............................. $ 1,597 $ 3,544 $ 5,342 $ 5,757 $ 6,243 $ 6,558 $ 6,816
========= ======== ======== ======== ======== ======== ========
EBIT Margin ...................... 3.1% 6.6% 8.0% 8.1% 8.2% 8.2% 8.2%
ASSUMPTIONS
REVENUE GROWTH
Water Business .................. n/a 9.5% 6.0% 6.0% 6.5% 9.8% 4.4%
New York Juice Business ......... n/a n/a 24.0% 9.7% 9.4% 7.5% 7.5%
FL/East Juice Business .......... n/a n/a 66.1% 9.9% 7.1% 2.4% 2.0%
CA/West Juice Business .......... n/a n/a 13.1% 6.1% 5.0% 5.0% 5.0%
Other ........................... 12.8% 14.0% 15.0% 15.0% 15.0% 15.0%
SHARE OF REVENUE
Water Business .................. n/a 18.2% 15.5% 15.3% 15.2% 15.9% 16.0%
New York Juice Business ......... n/a 23.4% 23.3% 23.8% 24.3% 24.9% 25.7%
FL/East Juice Business .......... n/a 40.3% 53.9% 55.2% 55.2% 53.9% 52.8%
CA/West Juice Business .......... n/a 26.0% 23.6% 23.4% 22.9% 22.9% 23.1%
Other ........................... n/a (13.8%) (16.3%) (17.6%) (17.6%) (17.6%) (17.6%)
</TABLE>
- ----------
Notes:
(1) 1999E includes unaudited numbers for The Fresh Juice Company for the
month ending January 29, 1999. These numbers are management's best
estimates for the month of January, 1999.
28
<PAGE>
LAST TWELVE MONTH INCOME STATEMENT
($ IN THOUSANDS)
<TABLE>
<CAPTION>
COMBINED
9 MONTHS: 9/30/99
-------------------------------
TOGA FRSH
FY1998A FY1998A TOGA FRSH (1)
ENDING ENDING COMBINED 9 MO. 1 MO. PF
12/31/98 11/30/98 FY1998A 9/30/99A 1/31/99A ADJ
----------- ------------ ------------- ------------ ----------- ------
<S> <C> <C> <C> <C> <C> <C>
Revenue, Net ...... $ 8,881 $ 37,606 $ 46,488 $ 38,522 $ 3,200 --
Cost of Goods ..... (5,523) (26,931) $ (32,454) (29,232) (2,432) --
--------- ---------- --------- ---------- --------- ----
Gross Profit ...... 3,358 10,676 14,034 9,289 768 --
SG&A .............. (1,934) (8,789) (10,723) (5,871) (592) --
Depreciation and
Amortization ..... (436) (1,345) (1,780) (1,101) (82) --
--------- ---------- --------- ---------- --------- ----
EBIT .............. 989 542 1,530 2,318 94 --
Interest Income/
(Expense) ........ 89 (351) (262) (1,156) (19) --
Other (a) ......... 0 0 0 51 0 --
--------- ---------- --------- ---------- --------- ----
Pre-tax Income .... 1,078 191 1,268 1,213 75 --
Tax Expense, Net (18) (86) (104) (90) 0 --
--------- ---------- --------- ---------- --------- ----
Net Income ........ $ 1,060 $ 105 $ 1,165 $ 1,123 n/a --
========= ========== ========= ========== ========= ====
EBIT .............. 989 542 $ 1,530 $ 2,318 $ 94 --
Depreciation and
Amortization ..... 436 1,345 1,780 1,101 82 --
--------- ---------- --------- ---------- --------- ----
EBITDA ............ $ 1,424 $ 1,887 $ 3,311 $ 3,419 $ 176 --
========= ========== ========= ========== ========= ====
<CAPTION>
COMBINED
9 MONTHS: 1998
------------------------
TOGA FRSH
9 MO. 9 MO. PF COMBINED
9/30/98A 8/31/98A 12 MONTHS 1999E
----------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenue, Net ...... $ 7,360 $ 28,650 $ 52,200 53,528
Cost of Goods ..... (4,470) (20,008) $ (39,640) (40,682)
--------- ---------- --------- -------
Gross Profit ...... 2,890 8,642 12,560 12,847
SG&A .............. (1,345) (6,429) $ (9,411) (7,789)
Depreciation and
Amortization ..... (420) (992) $ (1,551) (1,513)
--------- ---------- --------- -------
EBIT .............. 1,125 1,220 1,597 3,544
Interest Income/
(Expense) ........ 69 (327) $ (1,179) (1,800)
Other (a) ......... 90 38 $ (76) 0
--------- ---------- --------- -------
Pre-tax Income .... 1,284 931 341 1,744
Tax Expense, Net (18) (415) $ 238 0
--------- ---------- --------- -------
Net Income ........ $ 1,266 $ 516 $ 580 1,744
========= ========== ========= =======
EBIT .............. $ 1,125 $ 1,220 1,597 3,544
Depreciation and
Amortization ..... 420 992 1,551 1,513
--------- ---------- --------- -------
EBITDA ............ $ 1,545 $ 2,212 $ 3,148 $ 5,058
========= ========== ========= ==========
</TABLE>
- ----------
Notes:
(1) Figures for the 1-month period ending January 29, 1999 are unaudited and
represent managements best estimates for the period.
(a) TOGA FY1998A excludes provision for loss on notes receivable of $400,000.
29
<PAGE>
1999E CALCULATION
($ IN THOUSANDS)
<TABLE>
<CAPTION>
FRSH ADJUSTED
1999E 1-MONTH 1/31/99 1999E
----------- ----------------- ------------
<S> <C> <C> <C>
REVENUE
Water Business .................. $ 9,722 -- $ 9,722
New York Juice Business ......... 12,500 -- $ 12,500
FL/East Juice Business .......... 21,583 $ 21,583
CA/West Juice Business .......... 13,911 -- $ 13,911
Plug: Fresh Juice ............... -- 3,200 $ 3,200
Other ........................... (7,388) -- $ (7,388)
--------- ----- ---------
TOTAL NET REVENUES ............... $ 50,328 3,200 $ 53,528
Revenue Growth
Cost of Goods Sold ............... (38,250) (2,432) (40,682)
--------- ------ ---------
GROSS PROFIT ..................... 12,079 768 12,847
Gross Margin ..................... 24.0% 24.0% 24.0%
OPERATING EXPENSES, EXCL. DEPR.
SG&A ............................ (7,197) (592) (7,789)
Corporate Expenses .............. 0 0 0
--------- ------ ---------
TOTAL OPERATING EXPENSES ......... (7,197) (592) (7,789)
EBITDA (ADJUSTED) ................ $ 4,882 $ 176 $ 5,058
========= ======== =========
EBITDA Margin .................... 9.7% 5.5% 9.4%
EBITDA Growth
Depreciation ..................... (781) (82) (863)
Amortization ..................... (650) 0 (650)
--------- -------- ---------
EBIT ............................. $ 3,451 $ 94 $ 3,544
========= ======== =========
EBIT Margin ...................... 6.9% 2.9% 6.6%
</TABLE>
30
<PAGE>
MANAGEMENT ASSUMPTIONS
($ IN THOUSANDS)
<TABLE>
<CAPTION>
PROJECTED-YEAR ENDING DECEMBER 31,
----------------------------------------------------------------------
LTM 1999E 2000E 2001E 2002E 2003E 2004E
--------- --------- ---------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT
Revenue Growth ......................... -- 2.5% 24.3% 7.3% 7.1% 4.9% 4.1%
Water Business ......................... -- n/a 6.0% 6.0% 6.5% 9.8% 4.4%
New York Juice Business ................ -- n/a 24.0% 9.7% 9.4% 7.5% 7.5%
FL/East Juice Business ................. -- n/a 66.1% 9.9% 7.1% 2.4% 2.0%
CA/West Juice Business ................. -- n/a 13.1% 6.1% 5.0% 5.0% 5.0%
Other .................................. -- 12.8% 14.0% 15.0% 15.0% 15.0% 15.0%
Gross Margin ........................... NM 24.0% 24.0% 24.0% 24.0% 24.0% 24.0%
SG&A, % of Revenues .................... NM 14.3% 13.5% 13.3% 13.0% 13.0% 13.0%
Goodwill ............................... 550 600 600 600 600 600
Tax Rate ............................... 38.0% 38.0% 38.0% 38.0% 38.0% 38.0% 38.0%
BALANCE SHEET
Accounts Receivable Turnover
(Times) ............................... 10.0x 10.0x 10.0x 10.0x 10.0x 10.0x 10.0x
Accounts Receivable Turnover (Days)..... 36.1 32.5 32.5 32.0 32.0 32.0 32.0
Inventory Turnover (Days) .............. 32.5 32.5 32.0 32.0 32.0 32.0 32.0
Prepaid Expenses, % of SG&A ............ 6.4% 6.4% 6.4% 6.4% 6.4% 6.4% 6.4%
Accounts Payable Turnover (Times) ...... 6.7x 6.7x 6.7x 6.7x 6.7x 6.7x 6.7x
Accounts Payable Turnover (Days) ....... 54.0 45.0 45.0 45.0 45.0 45.0 45.0
</TABLE>
31
<PAGE>
DEPRECIATION & AMORTIZATION SCHEDULE
($ IN THOUSANDS)
<TABLE>
<CAPTION>
CAPITAL EXPENDITURES
- -----------------------------------------------------------
YEAR AMOUNT TERM
- --------------------------------- ------------- -----------
<S> <C> <C>
1999 1800 10
2000 1500 10
2001 4000 10
2002 1000 10
2003 1000 10
2004 1000 10
AMOUNT TERM
------- -----
Existing PP&E 7,326.8 10.6
TOTAL DEPRECIATION
Goodwill Amortization
Amortization of Intangibles
TOTAL AMORTIZATION
DEFERRED FINANCING AMORTIZATION
<CAPTION>
PROJECTED-YEAR ENDING DECEMBER 31,
-------------------------------------------------------------------------
YEAR 1999 2000 2001 2002 2003 2004
- --------------------------------- ---------- ---------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
1999 90.0 180.0 180.0 180.0 180.0 180.0
2000 75.0 150.0 150.0 150.0 150.0
2001 200.0 400.0 400.0 400.0
2002 50.0 100.0 100.0
2003 50.0 100.0
2004 50.0
--------
90.0 255.0 530.0 780.0 880.0 980.0
Existing PP&E 691.2 691.2 691.2 691.2 691.2 691.2
------ ------ -------- -------- -------- --------
TOTAL DEPRECIATION $ 781.2 $ 946.2 $ 1,221.2 $ 1,471.2 $ 1,571.2 $ 1,671.2
======= ======= ========= ========= ========= =========
Goodwill Amortization 550.0 600.0 600.0 600.0 600.0 600.0
Amortization of Intangibles 100.0 100.0 100.0 100.0 100.0 100.0
------- ------- --------- --------- --------- ---------
TOTAL AMORTIZATION $ 650.0 $ 700.0 $ 700.0 $ 700.0 $ 700.0 $ 700.0
======= ======= ========= ========= ========= =========
DEFERRED FINANCING 135.3 147.6 147.6 147.6 147.6 147.6
AMORTIZATION
</TABLE>
32
<PAGE>
DILUTED SHARES ANALYSIS
($ IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
OPTIONS & WARRANTS
---------------------------------------------------------------------------------------------------------------
DILUTED SHS DILUTED SHS CASH PROCEEDS
SHARES VESTED UNVESTED EX PRICE CURRENT PRICE DEAL PRICE FULL VESTING
--------------- --------------- ----------- ---------- --------------- ------------- --------------
<S> <C> <C> <C> <C> <C> <C> <C>
WARRANTS 30,000 0 30,000 3.50 0 12,500 105,000
OPTIONS 505 505 0 0.94 405 426 473
4,000 4,000 0 1.75 2,526 2,833 7,000
17,633 12,966 4,667 2.00 7,507 11,755 35,266
423 423 0 2.13 234 273 899
20,000 10,000 10,000 2.16 5,461 12,813 43,120
10,501 10,501 0 2.19 5,664 6,672 22,976
1,000 0 1,000 2.20 0 633 2,203
340,000 305,000 35,000 2.25 160,526 212,500 765,000
10,000 10,000 0 2.31 5,131 6,145 23,130
350,000 50,000 300,000 2.44 24,337 207,783 853,300
313,000 16,000 297,000 2.50 7,579 182,583 782,500
10,000 10,000 0 2.59 4,539 5,677 25,940
20,000 20,000 0 2.75 8,421 10,833 55,000
5,000 5,000 0 2.81 2,039 2,656 14,063
79,000 79,000 0 2.88 31,184 41,146 227,125
23,950 20,450 3,500 3.00 7,534 11,975 71,850
2,000 0 2,000 3.06 0 979 6,126
25,668 25,668 0 3.25 8,106 11,765 83,421
5,000 5,000 0 3.13 1,711 2,396 15,625
50,000 50,000 0 3.50 13,158 20,833 175,000
4,000 4,000 0 4.75 0 833 19,000
100 100 0 4.63 3 23 463
3,270 3,270 0 5.00 0 545 16,350
1,000 1,000 0 8.75 0 0 0
------- ------- ------- ---- ------- ------- -------
1,326,050 642,883 683,167 296,064 766,578 3,350,830
CONVERTIBLE DEBT
-----------------------------------------------
PRINCIPAL CONVERSION SHARES
------------ ----------- -------
$1,500,000 $ 3.50 428,571
</TABLE>
- ----------
Note: Schedule excludes 25,000 options to be issued on January 3rd, 2000, to
Board members per the 1998 Stock Option Plan
33
<PAGE>
Schroders also considered financial and stock market data of Saratoga and
compared the data with similar data for other publicly held companies in
businesses similar to Saratoga and considered, to the extent publicly
available, the financial terms of other business combinations and other
transactions that have recently been effected including Saratoga's acquisition
of Fresh Juice. Schroders also considered other information, financial studies,
analysis and investigations and financial, economic and market criteria that
Schroders deemed relevant.
In Schroder's review and analysis and in formulating the Schroders'
opinion, Schroders:
o relied upon and assumed the accuracy and completeness of all financial and
other information supplied or otherwise made available to it by Saratoga,
including management estimates of financial performance for certain periods
of time where audits and back-up financial information was not available;
o relied upon Saratoga's assurance that it was not aware of any information or
facts that would make the information provided to Schroders incomplete or
misleading;
o did not attempt to independently verify any of this information;
o did not undertake an independent appraisal of the assets or liabilities,
contingent or otherwise, of Saratoga, nor was Schroders furnished with any
appraisals;
o with respect to the projected financial information referred to above, was
advised by Saratoga, and Schroders assumed, without independent
investigation, that the information was reasonably prepared and reflected
the best estimates and judgements of the expected future financial
performance of Saratoga;
o expressed no opinion with respect to the projected financial statements; and
o did not, and was not requested by the special committee to, actively solicit
third party indications of possible acquisition of Saratoga.
Schroders' opinion was necessarily based on financial, economic, market
and other conditions as they existed and could be evaluated by Schroders on the
date of those conditions. Schroders disclaimed any undertaking or obligation to
advise any person of any change in any fact or matter affecting Schroders'
opinion which may come or be brought to its attention after the date of the
Schroders' opinion unless specifically requested by the special committee to do
so.
Schroders' opinion does not constitute a recommendation as to any action
the special committee, or any stockholder of Saratoga, should take in
connection with the merger agreement or any aspect of the merger agreement or
alternatives to the merger agreement.
In rendering Schroders' opinion, Schroders was not engaged as an agent or
fiduciary of Saratoga's stockholders or any other third party. The Schroders'
opinion related solely to the fairness, from a financial point of view, of
consideration to be paid to the common stockholders, other than the Continuing
Stockholders, of Saratoga in the transaction. In its opinion, Schroders
expressed no opinion, as to the structure, terms or effects of any other aspect
of the transaction contemplated by, or provisions of, the merger agreement or
any of the agreements or instruments delivered pursuant to the merger
agreement.
In performing its analysis, Schroders made numerous assumptions with
respect to industry performance, general business, economic, market and
financial conditions and other matters, many of which are beyond the control of
Schroders and Saratoga. No company, transaction or business used in the
analysis as a comparison is identical to Saratoga or the proposed transaction,
nor is an evaluation of the results of the analysis entirely mathematical. Any
estimates contained in the analysis performed by Schroders is not necessarily
indicative of actual values or future results, which may be significantly more
or less favorable than suggested by this analysis. Additionally, estimates of
the value of businesses or securities do not purport to be appraisals or
reflect the prices at which such businesses or securities may actually be sold.
Accordingly, these analyses and estimates are inherently subject to substantial
uncertainty.
34
<PAGE>
The following is a summary of the material valuation, financial and
comparative analyses considered by Schroders in connection with the rendering
of the Schroders' opinion and was provided by Schroders for inclusion in this
document.
Implied Share Price
<TABLE>
<CAPTION>
VALUATION METHODOLOGY IMPLIED SARATOGA SHARE PRICE
--------------------- ----------------------------
<S> <C>
DCF Valuation .................................. $3.50 - $5.52
Select M&A Transactions ........................ $2.55 - $7.33
Other Relevant M&A Transactions ................ $5.54 - $8.95
Premiums Analysis on M&A Transactions .......... $3.66 - $6.43
Publicly Traded Beverage Companies ............. $0.45 - $5.96
</TABLE>
In establishing the range of equity values per share resulting from
application of each of the analyses, Schroders made qualitative judgments as to
the meaningfulness of the valuation measurements. The judgments were based upon
the number and similarity of comparable companies and transactions, as well as
the predictability and volatility of future earnings when assessing the
relative significance of the discounted cash flow analysis described below. The
relative appropriateness of certain other valuation measurements was also taken
into account in making such judgments.
Limitations of Last Twelve Months ("LTM") Financial Results
Saratoga acquired Fresh Juice on January 29, 1999, one month after
Saratoga's fiscal year ended December 31, 1998, and two months after Fresh
Juice's fiscal year ended November 30, 1998. Fresh Juice did not file a 10-K
for its fiscal year end November 30, 1998, and last filed a 10-Q with the SEC
for the nine month period ending August 31, 1998. Withum, Smith & Brown
completed an audit of Fresh Juice for the twelve-month period ending November
30, 1998, on November 22, 1999. The management of Fresh Juice did not prepare
financial statements of Fresh Juice for the two month period following November
30, 1998, which included December 1998 and January 1999. Due to this
limitation, the management of Saratoga used the following information in its
analysis of the LTM figures:
o Saratoga's 10-K for the period ending December 31, 1998;
o Saratoga's 10-Q for the nine-month period ending September 30, 1999,
including the financial statements for the nine-month period ending
September 30, 1998;
o Fresh Juice's audited financials for the 12-month period ending November 30,
1998;
o Fresh Juice's 10-Q for the nine-month period ending August 31, 1998; and
o The management of Saratoga's estimates of financial performance of Fresh
Juice for the one-month period ending January 31, 1999.
Schroders recognized the limitations of these figures with respect to the
differing year ends, the use of management estimates for historical and
projected financial performance and the use of unaudited financial figures in
its analysis.
Discounted Cash Flow Analysis
Schroders estimated the present value of the five-year stream of the
projected free cash flows of Saratoga. Free cash flows are defined as after-tax
operating profit, plus depreciation and amortization, less capital
expenditures, less changes in working capital. All projections were provided by
management and reviewed by Schroders. A range of exit multiples of 6.0x, 7.0x
and 8.0x were applied to projected 2004 EBITDA, and then discounted to January
1, 2000, using the range of cost of capital of 11.0%, 12.0% and 13.0%, to
calculate the present value of a range of terminal values.
A range of enterprise values for Saratoga was determined by adding (i) the
present value of the projected free cash flows of Saratoga, (ii) the present
value of Saratoga's net operating losses, and (iii)
35
<PAGE>
the present value of the estimated terminal value of Saratoga. The discounted
cash flow analysis resulted in a range of enterprise values of $41.7 million
and $56.0 million and, based on the fully diluted number of shares of Saratoga
outstanding and accounting for assumed debt and cash reserves, a range of
equity values of $3.50 and $5.52 per share.
<TABLE>
<CAPTION>
ENTERPRISE VALUE (IN THOUSANDS)
DISCOUNT RATES
------------------------------------
2004 EXIT
EBITDA MULTIPLE 11.0% 12.0% 13.0%
- ----------------- ---------- ---------- ----------
<S> <C> <C> <C>
6.0x ............ $45,096 $43,338 $41,668
------- ------- -------
7.0x ............ 50,548 48,552 46,655
------- ------- -------
8.0x ............ 56,001 53,765 51,642
------- ------- -------
</TABLE>
<TABLE>
<CAPTION>
EQUITY VALUE PER SHARE
DISCOUNT RATES
------------------------------------
2004 EXIT
EBITDA MULTIPLE 11.0% 12.0% 13.0%
- ----------------- ---------- ---------- ----------
<S> <C> <C> <C>
6.0x ............ $ 3.99 $ 3.74 $ 3.50
------- ------- -------
7.0x ............ 4.75 4.47 4.21
------- ------- -------
8.0x ............ 5.52 5.21 4.91
------- ------- -------
</TABLE>
Relevant Transaction Analysis
Schroders reviewed and analyzed the publicly available financial terms of
eight selected merger and acquisition transactions in the beverage industry,
which, in Schroders' judgment, were reasonably relevant to the merger, and
compared the financial terms of these transactions to those of the merger. The
selected transactions involve companies within the same industry as Saratoga,
the specialty beverage industry. The eight transactions included:
o Suntory Water Group's acquisition of Great Pines Water Company (effective
4/99)
o Group Danone's acquisition of AquaPenn Spring Water (effective 10/98);
o PepsiCo's acquisition of Tropicana (effective 6/98);
o Northland Cranberries' acquisition of Minot Food Packers (effective 5/97);
o Triarc's acquisition of Cable Car Beverage (effective 6/97);
o Triarc's acquisition of Snapple Beverage (effective 3/97);
o Triarc's acquisition of Mistic Beverage (effective 3/95); and
o Cadbury Schweppes' acquisition of Crush International (effective 8/89).
Schroders reviewed the prices paid in these transactions and analyzed
various operating and financial information and imputed valuation multiples and
ratios. Schroders calculated multiples of enterprise value, defined as the
purchase price of equity, plus debt assumed, less cash and cash equivalents,
less cash proceeds from the conversion of options and warrants, to the target's
LTM revenues, EBITDA and EBIT; as well as price (defined as the purchase price
of equity) to target's LTM earnings. All multiples were based on financial
information available at the time of the relevant transaction. Schroders'
analysis of the relevant acquisitions indicate, based on 1999 expected EBITDA
of $5.058 million and 1999 expected net income of $1.744 million, an implied
range of enterprise values of $56.1 million and $80.3 million, and equity
values of $5.54 and $8.95 per share.
36
<PAGE>
<TABLE>
<CAPTION>
MULTIPLE IMPLIED IMPLIED IMPLIED
RANGE FOR SARATOGA SARATOGA SARATOGA
RELEVANT MEDIAN ENTERPRISE EQUITY PER SHARE
($ IN MILLIONS, EXCEPT PER SHARE AMOUNTS) TRANSACTIONS MULTIPLE VALUE VALUE VALUE
- --------------------------------------------------- --------------- ---------- ------------ ---------- ----------
<S> <C> <C> <C> <C> <C>
LTM Revenues ...................................... 0.5x - 3.1x 1.5x $ 80.3 $ 63.4 $ 8.95
LTM EBITDA ........................................ 6.0x - 17.3x 11.1x 56.1 39.3 5.54
LTM EBIT .......................................... 14.2x - 33.5x 16.1x 56.9 40.0 5.65
LTM Net Income .................................... 24.2x - 42.8x 25.8x 61.8 45.0 6.35
Average Valuation Based on Median Multiples ....... $ 63.8 $ 46.9 $ 6.62
</TABLE>
- ----------
Note: Implied values based on 1999 expected EBITDA of $5.058 million and 1999
expected net income of $1.744 million.
The range of values from this analysis resulted in certain implied values
per share for Saratoga which were greater than the $6.00 per share offered by
North Castle. The high end of the valuation range of $8.95 per share is based
on the median Enterprise Value to Revenue multiple. This multiple is not a
heavily weighted statistic in this valuation methodology, nor in the industry,
due to the fact that it neglects the differences in cost structure, and
therefore earnings, among the businesses considered and the fact that the range
of multiples reflected in a group of transactions results in implied valuations
which can vary significantly. The implied value of Saratoga of $6.35 per share
based on net income, or P/E multiples, should also be considered in light of
the fact that many of the beverage businesses report net losses resulting in a
small range of multiples to determine an implied value for Saratoga. In this
analysis, only three of the eight transactions considered had targets with
positive net earnings.
Select M&A Transactions
Schroders also considered the implied valuation for Saratoga based on
three of the above mentioned transactions considered, independently, which, in
Schroders' judgment, were relevant to the merger, and represented comparable
valuation benchmarks for the Transaction. These transactions included:
o Saratoga Beverage Group's acquisition of The Fresh Juice Company;
o Northland Cranberries' acquisition of Minot Food Packers;
o Triarc's acquisition of Cable Car Beverage
After analyzing the publicly available information concerning these
transactions, Schroders generated implied valuation multiples.
Saratoga Beverage Group's Acquisition of The Fresh Juice Company
Schroders delivered an opinion on June 29, 1998 as to the fairness of
Saratoga's acquisition of Fresh Juice. At that time, the transaction was valued
at $29.6 million, or 6.9x trailing EBITDA, based on LTM EBITDA of $4.2 million.
LTM EBITDA through February 28, 1998, was calculated using financial statements
contained in Fresh Juice's 10-K for the period ending November 30, 1997, and
10-Q for the six month periods ending February 28, 1998 and 1997.
Saratoga later received an adjustment in effective purchase price to $24.4
million based upon an understanding that FY 1998 EBITDA was at least $3.2
million, which implied an EBITDA multiple for the transaction of 7.6x.
Audited financial figures for Fresh Juice's fiscal year ended November 30,
1998 show an EBITDA figure of $1.9 million, implying a multiple paid for the
business of 12.5x, considering a transaction value of $23.7 million based on
Saratoga's share price at closing. The audit was completed on November 22,
1999. The transaction was completed on January 29, 1999.
At the time the merger agreement was signed, the implied enterprise value
offered for Fresh Juice was $24.4 million, or 7.6x what Saratoga believed to be
LTM EBITDA of $3.2 million for the twelve month period ending November 30,
1998.
37
<PAGE>
The following is a summary of the implied multiples offered and paid:
<TABLE>
<CAPTION>
ENTERPRISE LTM IMPLIED
DATE VALUE ($M) EBITDA ($M) EV/EBITDA
- ------------------------------ ------------ ------------- ----------
<S> <C> <C> <C>
LTM 2/98 ..................... $ 29.6 $ 4.2 6.9x
LTM 11/98: Estimated ......... 24.4 3.2 7.6x
LTM 11/98: Actual ............ 23.7 1.9 12.5x
</TABLE>
Based on 1999 expected EBITDA of $5.058 million, the implied enterprise, equity
and per share values, assuming each of the EBITDA multiples considered, are as
follows:
<TABLE>
<CAPTION>
IMPLIED
IMPLIED SARATOGA IMPLIED
LTM EBITDA SARATOGA EQUITY SARATOGA PER
DATE MULTIPLE EV ($M) VALUE ($M) SHARE VALUE
- --------------------------- ------------ ---------- ------------ -------------
<S> <C> <C> <C> <C>
LTM 2/98 .................. 6.9x $ 34.9 $ 18.1 $ 2.55
LTM 11/98: Est ............ 7.6x 38.4 21.6 3.05
LTM 11/98: Actual ......... 12.5x 63.2 46.4 6.54
</TABLE>
- ----------
Note: EV is defined as Enterprise Value
Northland Cranberries Acquisition of Minot Food Packers
Schroders considered the acquisition of Minot Food Packers by Northland
Cranberries as relevant given that both Minot and Saratoga derive a large
percentage of total revenues from sales of unbranded products to institutional
customers.
Triarc's Acquisition of Cable Car Beverage
Schroders considered the acquisition of Cable Car Beverage by Triarc as a
relevant transaction in the specialty beverage industry, the same industry in
which Saratoga operates. Cable Car is the owner of such brands as Stewart's
line of soft drinks, JAVA COLA, Aspen Mountain Spring Water, Aspen Flavored
Water and San Francisco Seltzer.
Schroders' analysis of each of these transactions indicates, based on 1999
expected EBITDA of $5.058 million and 1999 expected net income of $1.744
million, a range of enterprise values of $34.9 million and $68.8 million, and
equity values of $2.55 and $7.33 per share.
The following is a summary of the valuations implied by each of these
transactions considered independently:
<TABLE>
<CAPTION>
AVERAGE IMPLIED VALUES
TRAILING TRAILING ----------------------------------
EBITDA EARNINGS EV EQUITY PER
ACQUIRER/TARGET MULTIPLE MULTIPLE ($M) ($M) SHARE
- ---------------------------------------------------- ---------- --------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Saratoga Beverage Group/The Fresh Juice Co.(1) ..... 7.6x n/a $ 38.4 $ 21.6 $ 3.05
Northland Cranberries/Minot Food Packers ........... 11.1x n/a 56.1 39.3 5.54
Triarc/ Cable Car Beverage(2) ...................... 13.6x 24.2x 63.9 47.1 6.64
</TABLE>
- ----------
Note: Implied values based on 1999 expected EBITDA of $5.058 million, and 1999
expected net income of $1.744 million
(1) Implied values assuming EBITDA multiple management believed it was paying
7.6x for the acquisition of Fresh Juice
(2) EV, Equity and per share values represent an average of the implied
values based on the trailing EBITDA multiple and trailing earnings
multiple
38
<PAGE>
Schroders recognized that some of the multiples implied by these
transactions resulted in implied per share values for Saratoga that are greater
than the $6.00 per share offered by North Castle. Specifically, the EBITDA
multiple reflected in Triarc's acquisition of Cable Car of 13.6x resulted in an
implied value for Saratoga of $7.33 per share. The higher multiple paid in
Triarc's acquisition of Cable Car is reflective of the premium paid by a
strategic acquirer for several established brands, as compared to a financial
buyers' acquisition of a developing brand as seen in the transaction with
Saratoga and North Castle. Similarly, the actual EBITDA multiple paid in
Saratoga's acquisition of Fresh Juice of 12.5x resulted in an implied per share
value for Saratoga of $6.54. Schroders placed more weight on what Saratoga
believed it was paying for Fresh Juice, or 7.6x 1998 estimated EBITDA which
resulted in an implied per share value of $3.05 per share, as opposed to the
EBITDA multiple of 12.5x based on actual 1998 EBITDA, which was not determined
until well after the closing of the Fresh Juice acquisition.
Premiums Analysis
Schroders conducted a comparison of the equity premium offered in the
merger, to average equity premiums paid in a large sample of publicly reported
transactions completed over a five year period, valued between $10 million and
$50 million in equity value. Schroders attempted to include all publicly
reported transactions within the relevant valuation range. The average premiums
paid were based on the share prices of the target one day, one week, and four
weeks prior to the announcement date. The analysis resulted in a range of
equity values of $3.66 and $6.43 per share. The following is a summary of the
implied per share valuation for Saratoga based on average equity premiums paid,
and Saratoga's share prices relative to the announcement by Saratoga of a
potential going private transaction on December 17, 1999:
<TABLE>
<CAPTION>
PERIOD PRIOR TO ANNOUNCEMENT
NUMBER ------------------------------------
TRANSACTIONS BY VALUE OF DEALS 1 DAY 1 WEEK 4 WEEKS
- -------------------------------------------- --------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Between $10 -- $50 million.................. 237 29.3 % 35.6 % 39.8 %
Saratoga Share Price (on 12/17/99) ......... $ 4.97 $ 3.44 $ 2.62
Implied Saratoga Value ..................... $ 6.43 $ 4.66 $ 3.66
</TABLE>
Schroders considered that there was a substantial increase in the stock
price immediately prior to the announcement on December 17, 1999, and the
resulting effect on the implied Saratoga valuation of $6.43 based on the
premium paid one day prior to the announcement.
Select Comparable Companies Analysis
Schroders compared certain operating, financial, trading and valuation
information for Saratoga to certain publicly available operating, financial,
trading and valuation information for seven selected beverage companies
operating in the specialty beverage industry, which, in Schroders' judgement,
were comparable to Saratoga for purposes of this analysis. In determining the
appropriate comparable companies, Schroders considered a variety of factors,
including market capitalization, business focus and end-markets, revenues,
EBITDA and EBIT.
These companies included:
o COTT Corporation
o Clearly Canadian Beverage
o Triarc Companies
o National Beverage
o Hansen Natural
o Odwalla, Inc
o Vermont Pure
39
<PAGE>
Schroders calculated multiples of enterprise value, 1999 estimated EBITDA
and 2000 estimated EBITDA for the comparable companies. Schroders also
calculated multiples of enterprise value to LTM revenues, 1999 estimated
revenues and 2000 estimated revenues for the comparable companies; and
multiples of price to LTM earnings and 1999 estimated earnings, (estimated 2000
earnings data were not available for most of the publicly traded comparable
companies in this group,) for the comparable companies. Schroders applied the
range of multiples and the mean multiple from this analysis to Saratoga's
financial results to determine implied values for Saratoga. Schroders' analysis
was based on closing stock prices as of January 4, 2000. The analysis resulted
in a range of enterprise values of $20.0 million and $59.1 million, and equity
values of $0.45 and $5.96 per share. The results of this analysis are set forth
below:
<TABLE>
<CAPTION>
MULTIPLE TO:
($ IN MILLIONS, EXCEPT PER SHARE DATA) ---------------------------------------------------------------
LTM 1999E 2000E
REVENUES REVENUES REVENUES
------------------- ------------------- -------------------
<S> <C> <C> <C>
Range .................................... 0.4x-1.4 x 0.4x-0.7 x 0.3x-0.6 x
Mean ..................................... 0.7 x 0.6 x 0.5 x
Implied Saratoga EV ...................... $ 38.0 $ 30.3 $ 30.1
Implied Saratoga Equity Value ............ $ 21.2 $ 13.5 $ 13.3
Implied Saratoga Per Share Value ......... $ 2.99 $ 1.90 $ 1.87
</TABLE>
<TABLE>
<CAPTION>
MULTIPLE TO:
($ IN MILLIONS, EXCEPT PER SHARE DATA) ---------------------------------------------------------------
LTM 1999E 2000E
EBITDA EBITDA EBITDA
------------------- ------------------- -------------------
<S> <C> <C> <C>
Range .................................... 4.3x-8.8 x 5.0x-6.9 x 5.8x-7.3 x
Mean ..................................... 6.4 x 6.0 x 6.6 x
Implied Saratoga EV ...................... $ 20.0 $ 30.1 $ 45.8
Implied Saratoga Equity Value ............ $ 3.2 $ 13.2 $ 28.9
Implied Saratoga Per Share Value ......... $ 0.45 $ 1.87 $ 4.08
</TABLE>
<TABLE>
<CAPTION>
MULTIPLE TO:
($ IN MILLIONS, EXCEPT PER SHARE DATA) -----------------------------------------------------------
LTM 1999E 2000E
INCOME NET INCOME NET INCOME
--------------------- --------------------- -----------
<S> <C> <C> <C>
Range .................................... 6.6x-45.2 x 9.4x-38.0 x N/A
Mean ..................................... 18.5 x 24.2 x N/A
Implied Saratoga EV ...................... $ 27.6 $ 59.1 N/A
Implied Saratoga Equity Value ............ $ 10.7 $ 42.3 N/A
Implied Saratoga Per Share Value ......... $ 1.51 $ 5.96 N/A
</TABLE>
Schroders noted that none of the comparable companies considered is
identical to Saratoga and that, accordingly, any analysis of comparable
companies necessarily involved complex consideration and judgments concerning
differences in financial and operating characteristics and other factors that
would necessarily affect the relative trading value of Saratoga versus the
companies to which Saratoga was being compared.
Schroders did not use multiples or other valuation measures related to net
book value to calculate an implied purchase price for Saratoga. The valuation
methodologies employed by Schroders are representative of the forward looking
value of Saratoga as reflected in the equity markets, as opposed to the
historical cost valuation implied by valuation measures using net book value.
The preparation of a fairness opinion is a complex process involving
various determinations as to the most appropriate and relevant quantitative and
qualitative methods of financial analysis and the application of those methods
to the particular circumstances. In arriving at its opinion, Schroders
considered the results of all its analyses as a whole and did not attribute any
particular weight to any analysis or factor considered by it. Subject to the
matters set forth in the Schroders' opinion, the judgments made by Schroders as
to its analyses and the factors considered by it caused Schroders to
40
<PAGE>
be of the opinion, as of the date of the Schroders' opinion, that the
consideration to be paid by North Castle was fair, from a financial point of
view, to Saratoga's stockholders, other than the Continuing Stockholders.
Schroders' analyses must be considered as a whole and considering any portion
of such analyses and of the factors considered, without considering all
analyses and factors, could create a misleading or incomplete view of the
process underlying the Schroders' opinion.
Any estimates contained in Schroders' analyses are not necessarily
indicative of actual values or predictive of future results or values, which
may be significantly more or less favorable than those contained in such
analyses. Estimated values do not purport to be appraisals or to reflect the
prices at which businesses or companies may be sold in the future, and such
estimates are inherently subject to uncertainty.
Schroders, in the past, has performed financial advisory services for
Saratoga. Schroders acted as financial advisor to Saratoga in connection with
its acquisition of Fresh Juice, for which Schroders received aggregate
compensation of approximately $100,000. Schroders may provide investment
banking or financial advisory services for Saratoga in the future.
Engagement Letter
Pursuant to a letter agreement dated November 19, 1999, Saratoga has
agreed to pay to Schroders a fee of $500,000, $75,000 of which is contingent
upon and payable in cash upon the issuance and delivery of Schroders' opinion
to the special committee of Saratoga and $425,000 of which is contingent upon
and payable in cash upon the consummation of the merger or an alternative
transaction. Saratoga will pay an additional fee equal to 10% of the aggregate
consideration involved in the merger or an alternative transaction in excess of
$58.5 million upon the closing of the merger or an alternative transaction.
Saratoga has also agreed to reimburse Schroders for its reasonable
out-of-pocket expenses, including reasonable fees and expenses of legal
counsel. In addition, Saratoga has agreed to indemnify Schroders against
certain expenses and liabilities in connection with its engagement. Schroders'
fee was not conditioned upon the conclusion reached by Schroders as to the
fairness of the consideration.
In the ordinary course of Schroders' business, Schroders may trade in the
equity securities of Saratoga for its own account and for the accounts of its
customers and, accordingly, may at any time hold a long or short position in
such securities.
PLANS FOR SARATOGA AFTER THE MERGER; CONDUCT OF THE BUSINESS OF SARATOGA IF THE
MERGER IS NOT
CONSUMMATED
As contemplated by the stockholders agreement described in "The
Merger--Stockholders Agreement" and the employment agreement described in "The
Merger--Robin Prever Employment Agreement", North Castle and the Continuing
Stockholders intend for Saratoga to serve as the platform company to acquire
other companies in the refrigerated juice industry following the consummation
of the merger. In this connection, affiliates of North Castle have executed
definitive agreements for the acquisitions of California Day-Fresh Foods, Inc.,
Wiman Beverage Company, Inc., and M.H. Zeigler and Sons, Inc. North Castle
intends to assign the acquisition agreements for these companies to Saratoga
after the merger. If the merger is not consummated, however, Saratoga will not
acquire these companies as it has no contractual right to do so, in addition to
lacking the necessary financial resources without the debt and equity financing
that North Castle will arrange and provide.
As contemplated by the merger agreement and the stockholders agreement,
the directors of Saratoga immediately following the merger will be the
directors of MergerCo at the time of the merger and thereafter four directors
will be nominated by the Purchaser and three will be nominated by Robin Prever,
as long as she is the Chief Executive Officer of Saratoga, or if Ms. Prever is
no longer Chief Executive Officer, then by the Continuing Stockholders as long
as they own in the aggregate at least 5% of the outstanding common stock of
Saratoga.
Except as described above and elsewhere in this document, the changes to
the board of directors contemplated by the merger agreement and the
stockholders agreement, as well as the transactions set
41
<PAGE>
forth in the merger agreement, including the financing of the merger, the
Purchaser has no current plans or proposals relating to any extraordinary
corporate transactions involving Saratoga or any of its subsidiaries, any sale
or transfer or a material amount of the assets of Saratoga or any of its
subsidiaries, any change in the present board of directors or management of
Saratoga or any other material change in Saratoga's present dividend rate or
policy, indebtedness or capitalization, corporate structure or business. The
Purchaser currently intends to cause Saratoga to terminate the registration of
the Class A common stock under the Exchange Act as soon after consummation of
the merger as the requirements for termination of registration are met. The
Purchaser has no plans, other than pursuant to the merger agreement, to acquire
the shares of Class A common stock held by the stockholders of Saratoga.
If the merger is not consummated, then Saratoga currently plans to
continue to work to enhance stockholder value by continuing to integrate Fresh
Juice, including continuing cost reduction programs and pursuing synergies
between the premium bottled water market and fresh juices and beverages.
42
<PAGE>
PRICE OF CLASS A COMMON STOCK
The Class A common stock is traded over-the-counter on the Nasdaq SmallCap
Market under the symbol "TOGA". The table below sets forth the range of the
high and low bid and asked sales prices for the Class A common stock as
reported by the Nasdaq SmallCap Market for the periods indicated.
<TABLE>
<CAPTION>
HIGH LOW
------------ ------------
1998
- ----
<S> <C> <C>
First quarter ............................ $ 3.8750 $ 2.0625
Second quarter ........................... 3.5625 2.7500
Third quarter ............................ 3.2500 2.1250
Fourth quarter ........................... 2.7500 1.6250
1999
- ----
First quarter ............................ $ 3.0000 $ 2.0000
Second quarter ........................... 2.8750 2.0625
Third quarter ............................ 3.6875 2.1875
Fourth quarter ........................... 6.2500 2.5000
2000
- ----
First quarter ............................ $ 5.8125 $ 4.6250
Second quarter (through April 13)......... $ 5.9844 $ 5.3750
</TABLE>
On December 16, 1999, the last trading day before the public announcement
by Saratoga of a potential going-private transaction in which the shares of the
public would be acquired for $6.00 per share, the closing price of the Class A
common stock was $4.9688 per share.
On January 5, 2000, the last trading day before the public announcement of
the execution of the merger agreement, the closing price of the Class A common
stock was $4.8125 per share.
On April 13, 2000, the closing price of the Class A common stock was
$5.50 per share.
On April 11, 2000, there were approximately 1,835 record holders of
Class A common stock and two record holders of Class B common stock.
Stockholders should obtain current market price quotations for the Class A
common stock in connection with voting their shares.
Since its inception in April 1992, Saratoga has not paid any cash
dividends on its capital stock. Saratoga anticipates that its future earnings,
if any, will be retained for use in the business or for other corporate
purposes, and it is not anticipated that any cash dividends on the common stock
will be paid in the foreseeable future. In addition, payments of dividends on
the Class A common stock are restricted by Saratoga's Bank of America credit
facility.
43
<PAGE>
SARATOGA
GENERAL
Saratoga manufactures, markets and distributes fresh squeezed and frozen
fresh squeezed citrus juices, fresh squeezed organic juices, fresh fruit
smoothies, which are blends of juices and puree, and other non-carbonated
beverages marketed under the labels "Fresh Pik't," "the Fresh Juice Company,"
"Hansen's Juices," "The Ultimate Juice" and "Just Pik't."
The majority of the juice produced by Saratoga is fresh squeezed orange
juice. The only ingredient used to produce "Just Pik't," "Fresh Pik't,"
"Florida Pik't," "The Ultimate Juice," and "Hansen's Juices," orange and
grapefruit juices is fresh citrus fruit. Similarly, "Hansen's Juices" and "Just
Pik't" smoothies are made with a blend of orange juice, apple juice, bananas,
berries and other fruit puree. Saratoga is one of the only national fresh juice
companies, with bi-coastal facilities in California and Florida.
Saratoga is also engaged in the bottling, marketing and distribution of
spring and mineral water products and in packaging products for others, also
known as co-packing. Saratoga's product line currently includes:
o sparkling spring water;
o sparkling essence-flavored spring water products;
o non-carbonated spring water; and
o non-carbonated spring water with flavors.
All of Saratoga's water products are marketed as premium domestic bottled
water primarily under the proprietary brand name "Saratoga." The Saratoga brand
name has been in existence for 127 years.
Saratoga had been owned over the years by Anheuser-Busch and Evian Waters
of France, a division of BSN, S.A. Since that time, Saratoga has undertaken the
task of rebuilding a distribution network and customer base for the Saratoga
brand beverage products.
Since the end of the 1980s, the bottled water industry has experienced
rapid growth. The industry is divided into non-carbonated water and sparkling,
or carbonated, water. Saratoga believes that non-carbonated water is becoming
an alternative for municipal tap water and that it is perceived by consumers as
a healthy and refreshing beverage alternative to soft drinks, coffee and other
beverages. Saratoga also believes that sparkling water is perceived as a
healthy and refreshing beverage alternative to beer, liquor and wine. Saratoga
anticipates that sales in the bottled water industry will continue to grow as
consumer trends involving increased health and fitness consciousness, alcohol
moderation, and caffeine and sodium avoidance continue to develop and grow.
Saratoga believes that it is well-positioned to take advantage of the
anticipated future growth of the bottled water industry.
PRODUCTS
Saratoga is the largest national producer of fresh squeezed orange juice.
The fresh squeezed juices are marketed under the label "The Ultimate Juice".
Saratoga also produces a fresh squeezed frozen juice (Just Pik't) and a fruit
smoothie line on the west coast marketed under the Hansen's name as a licensee
pursuant to the Hansen Trust Agreement. On September 27, 1999 the Fresh Juice
Company of California, Inc., a subsidiary of Saratoga, entered into an
agreement to discontinue use of the "Hansen's" trademark over the next five
years. This agreement was a settlement of an arbitration involving Hansen
Beverage Company, the Hansen's Trust, Hansen's Juices, Inc., the Fresh Smoothie
Company, Hansen's Juice Creations, and The Fresh Juice Company of California,
Inc., related to use of the "Hansen's" trademark. Saratoga received an initial
payment of $343,750 and has recorded a discounted note receivable in the amount
of $373,472 payable over three years. In May 1999, Saratoga launched a new
smoothie line on the east coast called "Saratoga Smoothie's" and a vitamin
enhanced line, "Fruit for Thought". Saratoga intends to develop this national
brand on the west coast over the next five years.
44
<PAGE>
The Fresh Juice product line includes fresh squeezed and frozen fresh
squeezed citrus juices, organic fresh squeezed juices, fresh fruit smoothies,
vitamin and herb fortified smoothies, and other non-carbonated beverages. The
juices are sold in a variety of sizes ranging from 8 ounces to one gallon.
Smoothies are sold primarily in 16 ounce sizes.
The main product lines sold under the Saratoga label include the following
various types of bottled water:
o sparkling spring water;
o sparkling essence-flavored spring water; and
o natural non-carbonated spring water.
Saratoga's bottled water is sold in both PET recyclable bottles in sizes
from one-half liter to 5 gallon, and cobalt glass bottles in 12 ounce and 28
ounce sizes.
Saratoga also markets a line of flavored spring water beverages under the
name Saratoga Splash.
Saratoga Splash is a non-carbonated fruit flavored spring water product.
It currently is available in the following six flavors:
o Lemon Frost;
o Orange Twist;
o Strawberry Mist;
o Blueberry Burst;
o Grapes Galore; and
o Raspberry Rush.
Saratoga recently commenced operations in the home and office 5 gallon
business.
On June 30, 1997, Saratoga entered into an agreement with Mistic Brands,
Inc. that granted Saratoga the non-exclusive right to use the formulations and
the exclusive right to use the graphic designs utilized by Mistic in connection
with beverages sold under the Saratoga Splash trademark pursuant to the
original agreement. Saratoga pays Mistic a royalty for cases sold under the
Saratoga Splash trademark.
MARKETING AND SALES
Saratoga markets its products as fresh squeezed, pasteurized and frozen
juice, smoothies and "premium" domestic bottled water. Saratoga believes that
the proprietary Saratoga brand name, which has existed for over 125 years and
its upscale packaging connotes a premium image. The majority of juice produced
is fresh squeezed orange juice from fresh citrus fruit. Fresh squeezed,
pasteurized and frozen juices are marketed under the brand names "Ultimate",
"Just Pik't", "Fresh Pik't" and "Hansen's Juices".
Saratoga and Hansen's Juices are recognizable brand names and Saratoga has
sold its products to customers through institutional sales throughout the
United States. Saratoga products are marketed and sold to restaurants, hotels,
food service accounts, convenience stores and distributors.
Saratoga has developed a limited public relations campaign with a focus on
the tradition of Saratoga Spring water. Marketing and sales activities have
generally involved product promotions and sponsorships. Point of sale
advertising, trade incentives, and in-store displays are also used to support
the sale of Saratoga products. From time to time Saratoga has provided retail
incentive programs to support merchandising of its products. These incentives
are common to the industry and have generally been provided as free or
discounted product for short periods of time. In very competitive situations
Saratoga has purchased shelf space where the exposure and potential sales
justify the cost.
45
<PAGE>
DISTRIBUTION
Saratoga is primarily focused on securing distribution for its product
line. Saratoga's distribution network includes produce distributors, dairy
distributors, soft drink distributors, beer distributors, liquor distributors
and national distributors.
COMPETITION
The market for orange juice and fruit beverages is highly competitive and
is dominated by major companies including PepsiCo Inc., which owns Tropicana,
and The Coca-Cola Company, which owns Minute Maid. Presently, the major orange
juice companies are involved primarily in the production of chilled pasteurized
juice and frozen or reconstituted concentrate juice. Saratoga operates in a
niche category as a producer, distributor and marketer of fresh squeezed,
minimally processed juices and juice-based beverages. Saratoga's largest
competitors are Odwalla, Inc., California Day-Fresh Foods, Inc., a subsidiary
of Chiquita Brands, Inc., and Fresh Samantha, Inc Saratoga anticipates that
sales in the fresh juice industry will grow as a result of consumer trends
towards natural products and increased health consciousness. Saratoga believes
that it can continue to grow its natural and organic juice business.
The bottled water industry is also highly competitive. There are over 700
brands sold in the United States. The industry is dominated by two companies,
Greater Water of France (Perrier) and Danone Group (Evian). On a regional
basis, Saratoga's products compete with a number of regional brands including
Poland Springs and San Pellegrino, which are both owned by the Perrier Group.
In the southeastern part of the United States, Saratoga competes with
Zephyrills, which is also owned by the Perrier Group. Saratoga's products also
compete with other beverage products, including, but not limited to, beer,
liquor, wine, soft drinks, coffee, juices and juice products and "new age"
beverages.
Saratoga's competition includes numerous beverage bottlers and
distributors, many of which are more experienced, have greater financial
resources and more established and proprietary trademarks and distribution
networks than Saratoga. Saratoga believes that it is able to compete
effectively with other bottled water and beverage products because it offers a
diverse product line of quality-bottled water at competitive prices. In
addition, Saratoga believes that the proximity of its Saratoga Springs, New
York facility to several large metropolitan markets, including New York and
Boston, enables Saratoga to compete effectively with other east coast regional
brands.
PRODUCTION
Saratoga operates fruit processing and bottling plants in Winter Haven,
Florida and Azusa, California. Saratoga also owns a water production and
bottling plant for its products in Saratoga Springs, New York.
SUPPLIERS
The significant raw materials in Saratoga's products are citrus juice,
fruit puree and spring water. Saratoga purchases fresh fruit from a number of
growers and fruit puree from various suppliers. Alternate supplies of fruit are
available from a large number of citrus growers in Florida, California,
Arizona, and Texas. Fruit puree are available from a number of companies that
specialize in producing these products.
Saratoga does not manufacture the bottles or packaging for its products.
Packaging and bottles are purchased from suppliers that are located throughout
the United States. A large number of companies manufacture the packaging
products Saratoga uses for its products. Saratoga is not affiliated with its
suppliers.
MAJOR CUSTOMERS
Saratoga sells to a large number of customers including food service
companies, beverage distributors, produce distributors, retail chain grocery,
and convenience stores. Saratoga also has toll-packing customers for water and
juices.
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TRADEMARKS
"Saratoga" is a registered trademark of Saratoga in the United States and
Canada for use in connection with spring water, mineral water, tonic water and
ginger ale products. Saratoga has numerous other trademarks, either pending or
registered, which include "Jango's," the "Saratoga Vichy" name, "Saratoga
Splash" and the Saratoga racetrack oval label used on its bottles and
packaging.
Fresh Juice also has numerous trademarks, including Just Pik't and The
Ultimate Juice.
GOVERNMENT REGULATION
Saratoga and its subsidiaries are subject to certain regulations of
federal, state and local government authorities regarding distribution and sale
of food products. The Florida Department of Citrus and USDA have a defined
inspection program and routinely sample fruit and inspect product. The FDA has
performed reviews of the bottled water and fresh juice industry. From time to
time various proposals are made for new laws and regulations impacting
Saratoga's industry as a whole. It is impossible to predict whether any such
proposals will be adopted and the impact, if any, of such adoption on the
business of Saratoga. Saratoga believes that it currently is in compliance with
all applicable federal, state and local government regulations.
SEASONALITY
The unit sales of citrus juices are generally greater in the 1st and 2nd
quarters due to seasonal factors. Sales of bottled water are generally greater
in the 3rd quarter due to seasonal factors.
EMPLOYEES
As of December 31, 1999, Saratoga and its subsidiaries had 5 part-time and
326 full-time employees, including 244 production, and 87 executive, sales and
administrative employees.
None of Saratoga's employees are represented by a labor organization, and
Saratoga considers its relationship with its employees to be satisfactory.
PROPERTIES
Florida Production Facility and Headquarters
Fresh Juice owns a facility located at 1000 American Superior Boulevard,
Winter Haven, Florida which consists of a 70,000 square foot facility on four
acres, 20,000 square feet of which consists of either chilled or freezer space.
The Florida plant contains the first spiral quick freeze system in the citrus
industry. Fresh Juice designed the Florida plant to be capable of producing
fresh squeezed juice, fresh frozen juice and pasteurized juice, in addition to
other juice-based beverages. Each segment of the production process is separate
and distinct, with separate extraction rooms, filling rooms, blending rooms and
a separate spiral freeze system for the frozen fresh squeezed juice. The
Florida plant is equipped with a laboratory designed to provide an additional
measure of quality control to assist in providing optimal flavor and shelf life
for its customers. In January 2000, Saratoga moved its headquarters to the
Florida Plant from Saratoga Springs, New York.
New York Facility
Saratoga owns a bottling facility and office space located on 48 acres in
Saratoga Springs, New York. The property consists of an approximately 40,000
sq. ft. building which has been substantially rebuilt since 1985. The
carbonated bottling line was installed in 1985 and the PET bottling line was
installed in 1994 and substantially upgraded during 1998. Saratoga believes
that its insurance policies provide adequate coverage on its facilities and
equipment.
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Newark Offices and Distribution Facility
Fresh Juice leases approximately 27,000 square feet of space located at
280 Wilson Avenue, Newark, New Jersey which includes a warehouse with 3,000
square feet of freezer space, 11,000 square feet of cooler space and 7,800
square feet of dry storage space, as well as approximately 5,200 square feet of
office space. The lease was executed in November 1997 and provides for an
initial term which terminates on August 31, 2007. The lease contains two five
year options to renew which, if exercised, could extend the lease term through
August 31, 2012 and August 31, 2017, respectively.
California Offices, Warehouse and Production Facility
The Fresh Juice Company of California, Inc., leases commercial space in
Azusa, California, in which its offices, warehouse and production facility are
located. The total amount of leased space is 35,000 square feet, consisting of
approximately 3,000 square feet of office space and approximately 32,000 square
feet of production and refrigerated warehouse space. The lease is for an
initial term which terminates on June 1, 2003. The lease contains one five-year
option.
The facilities are suitable and adequate to support Saratoga's current
business.
LEGAL PROCEEDINGS
On December 22, 1999, lawsuits were filed in the Court of Chancery of the
State of Delaware by each of Moses Semel, Marian Lustig and Melvin Tepler on
their own behalf and as purported class actions on behalf of all security
holders of Saratoga, against Saratoga and its directors. The complaints in the
three lawsuits are materially identical, and each alleges, among other things,
that (1) the $6.00 per share price to be paid in the merger is "unfair and
inadequate consideration" because, among other things, (a) "the intrinsic value
of the stock of Saratoga is materially in excess of $6.00 per share, giving due
consideration to the prospects for growth and profitability of Saratoga in
light of its business, earnings and earnings power, present and future," and
(b) "the $6.00 per share price was fixed by [Robin Prever, unidentified members
of Saratoga management and an undisclosed financial sponsor (the "Buyout
Group")] to 'cap' artificially the market price of Saratoga's stock, as part of
the plan by the Buyout Group to obtain complete ownership of Saratoga's assets
and business at the lowest possible price"; (2) the members of Saratoga's board
of directors "suffer from material conflicts of interest" because they are
"significant participants in the Buyout Group"; and (3) the members of the
Buyout Group are using "superior knowledge" of Saratoga's finances and value
"to effectuate the [purchase of all of Saratoga's shares not already owned by
the Buyout Group for $6.00 per share] at the expense of the Company's public
shareholders." Saratoga and the members of its board of directors who have been
named as defendants believe that the lawsuits are without merit and intend to
defend the lawsuits vigorously. Counsel for the plaintiffs in the three actions
have indicated that they intend to seek an Order consolidating the three
lawsuits and have agreed to extend the time for the defendants to respond to
the complaints.
THE YEAR 2000 ISSUE
The Year 2000 issue is the result of computer programs being written using
two digits rather than four to define the applicable year. Any of Saratoga's
computer programs that have date-sensitive software recognize a date using "00"
as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions, send invoices or
engage in similar normal business activities. Costs incurred by Saratoga to
prepare for Year 2000 amounted to approximately $500,000.
Saratoga relies on systems developed by other parties in regard to its
business, accounting and operational software. Saratoga believes that its
significant business, accounting and operations software is year 2000
compliant. Additionally, Saratoga assessed the impact of this issue on its
production equipment. The new bottling line installed in 1998 is certified year
2000 compliant by the equipment manufacturer. Older manufacturing equipment is
relay controlled and is not believed to be affected by the Year 2000 issue.
Saratoga evaluated its management information systems, including
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information technology and non-IT computerized systems and believes it is year
2000 compliant. No Year 2000 issues have emerged to date during 2000.
RISK
Saratoga relies on third party suppliers for raw materials,
transportation, utilities, and other critical services. Company operations
could be affected by the interruption of significant suppliers. Saratoga has
evaluated the status of suppliers' compliance with year 2000 issues. These
evaluations were intended to minimize risk, but cannot eliminate the potential
for disruption due to third party failures to be year 2000 compliant. Saratoga
has experienced no year 2000 problems to date during 2000.
Saratoga also is dependent on customers for sales and for cashflow.
Interruptions in our customers' operations due to year 2000 could result in
decreased revenue, increased inventory and cash flow reductions. Saratoga has
evaluated its customers' year 2000 risks, as well as developing alternative
sales strategies. Saratoga has experienced no year 2000 problems to date during
2000.
Despite Saratoga's efforts in regard to the Year 2000 issue, Saratoga's
business, financial condition or results of operations could be materially
adversely affected by the failure of its systems and applications or those
operated by other parties to properly manage dates beyond 1999.
THE SPECIAL MEETING
TIME, DATE AND PLACE OF MEETING
The special meeting will be held at the offices of Swidler Berlin Shereff
Friedman, LLP, located at The Chrysler Building, 405 Lexington Avenue, New
York, New York 10174, on May 15, 2000, starting at 11:00 a.m., local time.
MATTERS TO BE CONSIDERED
The primary purpose of the special meeting is to vote upon a proposal to
approve and adopt the merger agreement. If the merger agreement is approved by
the stockholders of Saratoga and the other conditions to the merger are either
satisfied or waived, MergerCo will merge with and into Saratoga and each share
of common stock of Saratoga issued and outstanding immediately prior to the
effective time of the merger, other than (i) shares held by Saratoga as
treasury stock, (ii) the Rollover Stock held by the Continuing Stockholders,
and (iii) shares as to which dissenters' rights have been validly perfected,
will be converted into the right to receive $6.00 in cash, without interest,
and each share of Rollover Stock will each be converted into the right to
receive one share of common stock of Saratoga as the corporation surviving the
merger. See "Certain Provisions of the Merger Agreement-- The Merger; Merger
Consideration." At the special meeting, the stockholders will also be asked to
transact any other business as properly may come before the meeting. The board
is not presently aware of any other business.
A copy of the merger agreement is attached to this document as Annex A.
See also "The Merger" and "Certain Provisions of the Merger Agreement." THE
SPECIAL COMMITTEE AND THE BOARD HAVE, BY UNANIMOUS VOTE, APPROVED THE MERGER
AGREEMENT AND RECOMMEND A VOTE FOR ADOPTION AND APPROVAL OF THE MERGER
AGREEMENT.
REQUIRED VOTES
The affirmative vote of at least a majority of the outstanding voting
power represented by the shares of Class A common stock and Class B common
stock is required to approve and adopt the merger agreement and the
transactions contemplated by the merger agreement. The transaction is not
structured so that the approval of at least a majority of the stockholders
other than the Continuing Stockholders is required.
Certain stockholders of Saratoga, including Robin Prever, Anthony
Malatino, Steven Bogen, Warren Lichtenstein, Steel Partners II, L.P., an
affiliate of Warren Lichtenstein, Pershing Securities Limited and Jurg Walker,
who beneficially own a sufficient number of shares of Class A common stock and
Class B common stock to cause the merger agreement to be adopted without the
vote of any other stockholders, have each entered into a voting agreement dated
as of January 5, 2000, with the Purchaser which, among other things, appoints
the Purchaser as his, her or its irrevocable proxy to
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vote all of his, her or its shares in favor of the approval and adoption of the
merger agreement. The voting agreements are subject to certain terms and
conditions and terminate upon termination of the merger agreement, including
termination of the merger agreement in connection with the acceptance by
Saratoga of a company superior proposal (as defined in the merger agreement).
As of the record date, the stockholders who are parties to the voting
agreements, were beneficial owners of an aggregate of 1,877,262 shares, or
approximately 37.22%, of the Class A common stock and 522,955 shares, or 100%,
of the Class B common stock for a total of approximately 58.65% of the voting
power of Saratoga, excluding the shares owned by Saratoga. See "Security
Ownership of Certain Beneficial Owners and Management."
Accordingly, the approval and adoption of the merger agreement by
Saratoga's stockholders is expected to occur irrespective of whether or the
manner in which Saratoga's other stockholders vote their Shares.
VOTING AND REVOCATION OF PROXIES
Shares that are entitled to vote and are represented by a proxy properly
signed and received at or prior to the special meeting, unless subsequently
properly revoked, will be voted in accordance with the instructions indicated
on the proxy. IF A PROXY IS SIGNED AND RETURNED WITHOUT INDICATING ANY VOTING
INSTRUCTIONS, SHARES REPRESENTED BY THAT PROXY WILL BE VOTED FOR THE PROPOSAL
TO APPROVE AND ADOPT THE MERGER AGREEMENT. The board is not currently aware of
any business to be acted upon at the special meeting other than as described in
this document. If, however, other matters are properly brought before the
special meeting or any adjournments or postponements of the special meeting,
the persons appointed as proxies will have the discretion to vote or act on the
other matters in accordance with their best judgment, unless authority to do so
is withheld in the proxy. The persons appointed as proxies may not exercise
their discretionary voting authority to vote any proxy in favor of any
adjournments or postponements of the special meeting if instruction is given to
vote against the approval and adoption of the merger agreement.
Any proxy given pursuant to this solicitation may be revoked by the person
giving it at any time before the shares represented by that proxy are voted at
the special meeting by:
o attending and voting in person at the special meeting;
o giving notice of revocation of the proxy at the special meeting; or
o delivering to the Secretary of Saratoga a written notice of revocation or a
duly executed proxy relating to the same shares and matters to be
considered at the special meeting, bearing a date later than the proxy
previously executed.
Attendance at the special meeting will not in and of itself constitute a
revocation of a proxy. All written notices of revocation and other
communications with respect to revocation of proxies should be addressed as
follows: Saratoga Beverage Group, Inc., 1000 American Superior Boulevard,
Winter Haven, Florida 33884, Attention: Secretary, and must be received before
the taking of the votes at the special meeting.
RECORD DATE; STOCK ENTITLED TO VOTE; QUORUM
Only holders of shares at April 11, 2000 will be entitled to receive
notice of and to vote at the special meeting. At the close of business on the
record date, there were outstanding and entitled to vote 5,043,744 shares of
Class A common stock and 522,955 shares of Class B common stock. Under the
terms of the certificate of incorporation of Saratoga, each share of Class A
common stock is entitled to one vote and each share of Class B common stock is
entitled to five votes and the classes vote together as a single class. The
presence, in person or by proxy, at the special meeting of the holders of at
least a majority of the votes represented by the shares is necessary to
constitute a quorum for the transaction of business. Abstentions will be
counted as votes present for the purposes of determining whether a quorum is
present but will not be counted as votes cast in favor of approval
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and adoption of the merger agreement. Because the vote on the merger agreement
requires the approval of the majority of the votes entitled to be cast by the
stockholders of the outstanding shares of Class A common stock and Class B
common stock, abstentions will have the same effect as a negative vote on these
proposals. Proxies relating to "street name" shares that are voted by brokers
will be counted as votes present for purposes of determining the presence of a
quorum on all matters, but will not be treated as shares having voted at the
special meeting as to any proposal as to which authority to vote is withheld by
the broker.
APPRAISAL RIGHTS
Each stockholder of Class A common stock has a right to dissent from the
merger, and, if the merger is consummated, to receive "fair value" for his or
her shares in cash by complying with the provisions of Delaware law, including
Section 262 of the Delaware General Corporate Law. The dissenting stockholder
must deliver to Saratoga, prior to the vote being taken on the merger agreement
at the special meeting, written notice of his or her intent to demand payment
for his or her shares if the merger is effected and must not vote in favor of
approval and adoption of the merger agreement. The full text of Section 262 of
the DGCL is attached as Annex C in this document. See "Dissenting Stockholders'
Rights" for a further discussion of such rights and the legal consequences of
voting shares of Class A common stock and Class B common stock in favor of the
approval and adoption of the merger agreement.
SOLICITATION OF PROXIES
The cost of solicitation of proxies will be borne by Saratoga. In addition
to the use of the mails, proxies may be solicited by telephone by officers and
directors and a small number of regular employees of Saratoga who will not be
specially compensated for such services. Saratoga may also request banks and
brokers to solicit proxies from their customers, where appropriate, and will
reimburse such persons for reasonable expenses incurred in that regard.
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THE MERGER
OVERVIEW
For a description of the principal terms of the merger and the merger
agreement, including the consideration to be received by the stockholders other
than the Continuing Stockholders with respect to the Rollover Stock, see
"Certain Provisions of the Merger Agreement."
VOTING AGREEMENTS
Concurrently with the execution of the merger agreement, and incident to
the merger agreement, each of Robin Prever, Anthony Malatino, Steven Bogen,
Steel Partners II, L.P., Warren Lichtenstein, Pershing Securities Limited and
Jurg Walker, currently the beneficial owners in the aggregate of 1,877,262
shares of Saratoga Class A common stock and 522,955 shares of Saratoga Class B
common stock, representing approximately 58.65% of the total voting power of
Saratoga entitled to vote at the special meeting, entered into voting
agreements with the Purchaser pursuant to which he, she or it appointed the
Purchaser as his, her or its irrevocable proxy to vote all of the shares of
Class A common stock and Class B common stock owned by him, her or it on the
record date in favor of the approval and adoption of the merger agreement. The
vote, in the aggregate, represented by the various voting agreements, is
sufficient to cause the merger agreement to be approved and adopted without the
vote of any other Saratoga stockholders. The voting agreements are subject to
certain terms and conditions and terminate upon termination of the merger
agreement, including termination of the merger agreement in connection with the
acceptance by Saratoga of a company superior proposal, as defined in the merger
agreement. Accordingly, unless the merger agreement is terminated in accordance
with its terms, the adoption of the merger agreement by Saratoga's stockholders
is expected to occur irrespective of whether or the manner in which Saratoga's
other stockholders vote their shares of Class A common stock.
A copy of the form of the voting agreements is attached to this document
as Annex D.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material federal income tax consequences
of the merger to the stockholders, other than the Continuing Stockholders, with
respect to their shares of Class A common stock. The discussion is for general
information only and does not purport to consider all aspects of federal income
taxation that might be relevant to the stockholders, other than the Continuing
Stockholders, with respect to their shares of Class A common stock. The
discussion is based on current provisions of the Internal Revenue Code of 1986,
as amended (the "Code"), existing regulations promulgated under the Code and
administrative and judicial interpretations of the Code, all of which are
subject to change, possibly with retroactive effect. The discussion applies
only to stockholders who hold shares of Class A common stock as capital assets
within the meaning of Section 1221 of the Code, and may not apply to Class A
common stock received pursuant to compensation arrangements, Class A common
stock held as part of a "straddle," "hedge," "conversion transaction,"
"synthetic security," or other integrated investment, or to certain types of
stockholders, including financial institutions, insurance companies, tax-exempt
organizations and broker-dealers, or persons bearing a relationship described
in Section 318 of the Code to a Continuing Stockholder or the Purchaser, who
may be subject to different or special rules. This discussion does not address
the federal income tax consequences to a stockholder who, for federal income
tax purposes, is a non-resident alien individual, a foreign corporation, a
foreign partnership or a foreign estate or trust, as defined in the Code, nor
does it consider the effect of any foreign, state, local or other tax laws.
The receipt of cash for Class A common stock pursuant to the merger will
be a taxable transaction for federal income tax purposes, and may also be a
taxable transaction under applicable foreign, state, local or other tax laws.
In general, for federal income tax purposes, a stockholder will recognize
capital gain or loss equal to the difference between the stockholder's adjusted
tax basis in his Class A common stock and the amount of cash received therefor.
Gain or loss must be determined separately for each block of Class A common
stock (i.e., shares acquired at the same cost in a single transaction) held by
the stockholder.
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Net capital gain (i.e., generally capital gain from the disposition of
Class A common stock that has been held for more than 12 months in excess of
capital loss) recognized by an individual stockholder will generally be subject
to a maximum tax rate of 20% or, in the case of Class A common stock that has
been held for 12 months or less, will be subject to tax at ordinary income tax
rates. Net capital gains derived by corporations currently are taxed at the
same rates as ordinary income. There are also limitations on a stockholder's
deductibility of capital losses.
Payments in connection with the merger may be subject to "backup
withholding" at a rate of 31%, unless a stockholder is a corporation or comes
within certain exempt categories and, when required, demonstrates this fact, or
provides a correct taxpayer identification number, which, for an individual
stockholder, would be the stockholder's social security number, to the exchange
agent, and otherwise complies with applicable requirements of the backup
withholding rules. A stockholder who does not provide a correct TIN may be
subject to penalties imposed by the Internal Revenue Service ("IRS"). Any
amount paid as backup withholding does not constitute an additional tax and
will be creditable against the stockholder's federal income tax liability,
provided that the required information is furnished to the IRS. Each
stockholder should consult with his own tax advisor as to his qualification or
exemption from backup withholding and the procedure for obtaining such
exemption. Stockholders may prevent backup withholding by completing a
Substitute Form W-9 and submitting it to the exchange agent.
In the case of any foreign stockholder (i.e., any person who is, for
federal income tax purposes, a foreign corporation, a non-resident alien
individual, a foreign partnership or a foreign estate or trust), the exchange
agent may withhold 30% of the amount of cash paid to such stockholder in the
merger in order to satisfy certain withholding requirements, unless such
foreign stockholder proves in a manner satisfactory to Saratoga and the
exchange agent that
o the foreign stockholder is not a Continuing Stockholder and is not
considered to own any common stock of any Continuing Stockholder or the
Purchaser under the rules described in Section 318 of the Code;
o the cash received in the merger will qualify for treatment under Section 302
of the Code as proceeds of a sale or exchange of common stock, rather than
as a dividend for federal income tax purposes, in which case no withholding
will be required;
o the foreign stockholder is eligible for a reduced tax treaty rate with
respect to dividend income, in which case the exchange agent will withhold
at the reduced treaty rate; or
o no withholding is otherwise required.
Foreign stockholder should consult their own tax advisers regarding the
application of these withholding rules.
SARATOGA STOCKHOLDERS SHOULD NOTE THAT SARATOGA HAS NOT OBTAINED, AND WILL
NOT OBTAIN, A RULING FROM THE IRS OR AN OPINION OF COUNSEL REGARDING THE
MATTERS DESCRIBED IN THIS DOCUMENT. EACH SARATOGA STOCKHOLDER IS URGED TO
CONSULT HIS, HER OR ITS TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES TO THE
STOCKHOLDER OF THE PROPOSED TRANSACTIONS, INCLUDING FEDERAL, STATE AND LOCAL
TAX CONSEQUENCES.
ACCOUNTING TREATMENT OF THE MERGER
Saratoga believes that the merger and the other transactions contemplated
by the merger agreement will be accounted for as a recapitalization for
accounting purposes. Under the recapitalization method of accounting, the
historical costs basis of Saratoga's assets and liabilities will be carried
forward to the surviving corporation with the aggregate cost of repurchasing
the Saratoga common stock accounted for as a reduction to stockholders' equity.
Accordingly, the historical basis of assets and liabilities will not be
affected by the merger and the other transactions.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Stockholders should be aware that, primarily as a result of their
relationships with Saratoga and its affiliates, certain directors and executive
officers of Saratoga had at the time the merger agreement
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was negotiated and executed, and currently have, interests, described in this
document, that are different from, or in addition to, the interests of holders
of shares generally. These interests have presented them with direct conflicts
of interest in connection with the merger. The special committee and the board
were and are aware of the interests and conflicts described below and elsewhere
in this document and considered them in addition to the other matters described
under "Special Factors--Recommendation of the Special Committee and the Board
of Directors" and "--Reasons for the Merger; Fairness of Merger." For
information on the role of the special committee, see also "Special
Factors--Background of the merger."
Leonard Toboroff will be paid $15,000 for serving as the chairman of the
special committee and William Colaianni will be paid $10,000 for serving as a
member of the special committee. These payments include the special committee's
out-of-pocket expenses.
Pursuant to the merger agreement, Saratoga has agreed for six years after
the effective time to indemnify all present directors and officers of Saratoga
and, subject to certain limitations, use its best efforts to maintain for six
years a directors' and officers' insurance and indemnification policy and a
fiduciary liability policy on terms with respect to coverage and amount not
less favorable in any material respect, than any such policies in effect on
January 5, 2000. See "Certain Provisions of the Merger
Agreement--Indemnification and Insurance."
As of the record date, the executive officers and directors of Saratoga
beneficially owned an aggregate of 1,038,317 shares of Class A common stock and
Class B common stock, excluding shares held by Saratoga and Rollover Stock.
Based on the merger consideration of $6.00 per share, the aggregate
consideration which would be received in the merger by the executive officers
and directors of Saratoga in respect of these shares would be $6,229,902. In
addition, as of the record date, the executive officers and directors of
Saratoga beneficially owned options to purchase an aggregate of 917,832 shares
with a weighted average exercise price of approximately $2.55 per share. Based
on the merger consideration of $6.00 per share and the provision in the merger
agreement that all options to purchase shares of Class A common stock will be
repurchased or canceled, the aggregate consideration which would be received in
the merger by the executive officers and directors of Saratoga in respect of
these options would be $3,121,600. See "Security Ownership of Certain
Beneficial Owners and Management."
In the merger, certain executive officers and directors of Saratoga
including Robin Prever, President, Chief Executive Officer and a director of
Saratoga, Steven Bogen, a director, and Warren Lichtenstein, a director, Steel
Partners II, L.P., an affiliate of Warren Lichtenstein, and certain other
stockholders, including Anthony Malatino, Pershing Securities Limited and Jurg
Walker will convert a minimum of 550,000 and a maximum of 700,000 shares of
Class A Common Stock into the equivalent number of shares of common stock in
the surviving corporation. These shares of common stock of the surviving
corporation will represent approximately 10%, and, after the stock purchase by
the Purchaser, the Purchaser will hold approximately 90%, of the issued and
outstanding common stock of the surviving corporation. Set forth on the
following page is a list of the Continuing Stockholders and the number of
shares which will be rolled over and cashed out in the merger.
<TABLE>
<S> <C> <C> <C>
CASHED OUT ROLLOVER
CONTINUING STOCKHOLDER TOTAL SHARES STOCK STOCK
- ------------------------------------- -------------- --------- ------
Robin Prever ........................ 318,285 251,499 66,786
Anthony Malatino .................... 718,127 557,056 161,071
Warren Lichtenstein ................. 46,254 -- 46,254
Steel Partners II, L.P. ............. 506,258 450,369 55,889
Steven Bogen ........................ 386,793 304,293 82,500
Pershing Securities Limited ......... 200,000 141,071 58,929
Jurg Walker ......................... 224,500 145,929 78,571
--------- --------- -------
TOTAL .............................. 2,400,217 1,850,217 550,000
========= ========= =======
</TABLE>
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<PAGE>
If the equity investment of the Purchaser exceeds $28.66 million due to
the unavailability of the full amount of the contemplated debt financing, then
the aggregate number of shares of Rollover Stock shall be increased so that the
aggregate value, based on a value per share of $6.00, of all of the shares of
Rollover Stock equals 11.11% of such equity investment, and the aggregate
number of cashed out shares shall be decreased in an amount equal to the
increase in the aggregate number of shares of Rollover Stock. This increase and
decrease in the number of shares of Rollover Stock and cashed out stock,
respectively, shall be allocated among Robin Prever, Anthony Malatino, Warren
Lichtenstein, Steel Partners, II, L.P., Steven Bogen, Pershing Securities
Limited and Jurg Walker in accordance with the following respective
percentages: 12.1429%, 29.2856%, 0%, 18.5715%, 15.0000%, 10.7144%, and
14.2856%.
OPTION INFORMATION
The table on the following page sets forth certain information, as of
March 1, 2000, regarding the number of shares of Class A common stock covered
by outstanding vested and unvested options to purchase shares of Class A common
stock held by the executive officers and directors of Saratoga to be canceled
in connection with the merger and the consideration to be paid to each of the
executive officers and directors as a result of the cancellation. Pursuant to
the merger agreement, each existing option, whether vested or unvested, to
purchase shares of Class A common stock shall be terminated in exchange for a
cash payment equal to $6.00 per share of Class A common stock purchasable under
the option less the exercise price with respect to the option.
SARATOGA BEVERAGE GROUP, INC.
OPTION INFORMATION
<TABLE>
<CAPTION>
TOTAL CASH VALUE
OPTIONS VESTED OPTIONS NOT VESTED TO BE RECEIVED
---------------- -------------------- -----------------
<S> <C> <C> <C>
Robin Prever ................ 100,000 200,000 $1,068,600
Adam Madkour ................ 80,666 19,334 346,250
Gayle Henderson* ............ 6,668 0 24,172
Warren Lichtenstein ......... -- 2,500 3,280
John Morabito ............... 25,000 50,000 262,500
Leonard Toboroff ............ 207,500 2,500 684,360
Jeffrey Heavirland .......... 50,000 50,000 350,000
Steven Bogen ................ 2,500 2,500 6,560
R.J. Barry Cox .............. 2,500 4,500 12,560
Kim James ................... -- 20,000 70,000
William Colaianni ........... 87,500 2,500 317,490
------- ------- ----------
Total ....................... 562,334 362,166 $3,145,772
======= ======= ==========
</TABLE>
- ----------
* March 13, 2000 was Ms. Henderson's last day of employment with Saratoga.
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<PAGE>
ROBIN PREVER EMPLOYMENT AGREEMENT
Concurrently with the execution of the merger agreement, and incident to
the merger agreement, Robin Prever entered into an employment agreement with
Saratoga, to be effective upon the closing of the merger.
Under the employment agreement, Ms. Prever will be employed as the
President and Chief Executive Officer of Saratoga under the following terms:
o A period of 3 years with an automatic one year extension unless otherwise
notified, subject to earlier termination for death, disability, resignation
or removal.
o An initial base salary of $ 220,000 and benefits available to officers of
Saratoga generally.
o A performance bonus set annually by the compensation committee, which shall
be not less than $110,000 in the first year. With respect to the first
year's performance bonus, such bonus shall be payable (prorated under
certain circumstances) if Ms. Prever's employment is terminated by Saratoga
without cause or by her for certain types of good reason.
o The grant of stock options to purchase shares of common stock representing
2% of Saratoga's fully diluted equity as of the closing date of the merger
of Saratoga, at an exercise price equal to the fair market value at the
date of grant of the common stock of Saratoga as the company surviving the
merger and vesting at a rate of 25% on the date of grant and on each of the
first, second and third anniversaries of the date of grant.
o On the first anniversary of the closing of the merger, Ms. Prever will be
granted stock options to purchase shares of common stock representing 1% of
Saratoga's fully diluted equity as of the closing date of the merger, at an
exercise price equal to the fair market value at the date of grant of the
common stock of Saratoga as the company surviving the merger, which will be
subject to the same vesting and other provisions as the previous grant of
options.
o If Ms. Prever resigns her employment for good reason, as defined in the
employment agreement, or if Saratoga terminates her employment without
cause, as defined in the employment agreement, Ms. Prever will receive her
full salary through the date of termination plus all other unpaid amounts
under any compensation or benefit plan or program of Saratoga, for a period
ending on the earlier of 24 months or the expiration of the term of the
employment agreement but in no circumstances less than 12 months. All
additional salary payments under good reason are payable in equal monthly
installments over the succeeding 12 months. In case of termination without
cause or termination for good reason, Ms. Prever will receive continuing
health insurance for the earlier of 24 months or expiration of the term of
the Agreement, but no less than 12 months; and her stock options will be
deemed granted and vested.
o If Ms. Prever terminates her employment because of the failure to appoint
her as the Chief Executive Officer for any and all acquisitions made by
North Castle, Saratoga's immediate and ultimate parent companies or their
respective affiliates of businesses in the refrigerated beverage and/or
water business, Saratoga will pay Ms. Prever an amount equal to Ms.
Prever's salary for 36 months payable in equal monthly installments over
the succeeding 12 months and all options shall be granted and vested.
o Pursuant to the Employment Agreement, Ms. Prever is entitled to terminate
her employment if she perceives, in her sole judgment, that there has been
a diminution in her duties, authority, responsibility, day to day control,
reporting responsibility, employee relations, status, relationship with the
board of Saratoga or North Castle or interference with the exercise of her
business judgment or a substantial increase without her agreement in her
duties, responsibilities, or reporting requirements.
o During the term of employment and for a period of three years following the
termination of employment, Ms. Prever shall not compete with Saratoga on
the same terms as described below in "--Robin Prever Non-Competition
Agreement."
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<PAGE>
ROBIN PREVER NON-COMPETITION AGREEMENT
Concurrently with the execution of the merger agreement, and incident to
the merger agreement, Robin Prever entered into a non-competition agreement
with Saratoga, to be effective upon the closing of the merger. Under the
non-competition agreement, Ms. Prever shall not engage in any business which
competes with Saratoga's business, namely, the bottled water or the
refrigerated beverage industry in the same geographic area, or engage in any
conduct disparaging or criticizing Saratoga in any way, for five years from the
closing date of the merger. In consideration for the restrictive covenants,
Saratoga has agreed to pay Ms. Prever $750,000 on the closing date of the
merger.
Pursuant to the Non-Competition Agreement, Ms. Prever can own up to 5% of
the outstanding voting securities of any publicly held corporation and she can
work in an investment banking or consulting business for a company with clients
in the refrigerated beverage and bottled water business, provided that she does
not provide services to those clients.
STOCKHOLDERS AGREEMENT
Concurrently with the execution of the merger agreement, and incident to
the merger agreement, the Purchaser, Robin Prever, Anthony Malatino, Steven
Bogen, Steel Partners II, L.P., Pershing Securities Limited, Warren
Lichtenstein and Jurg Walker entered into a stockholders agreement to be
effective upon the closing of the merger.
Pursuant to the stockholders agreement, the board of Saratoga will consist
of seven members, of which four members will be nominated by the Purchaser, and
three members will be nominated by Robin Prever so long as she is the Chief
Executive Officer. If Ms. Prever is no longer the Chief Executive Officer, then
the Continuing Stockholders may nominate one director, so long as they
collectively own 5% or more of the outstanding common stock. The chairperson of
the board shall be designated by the Purchaser from among the directors of
Saratoga.
In addition, pursuant to the stockholders agreement, the parties also
agreed to certain restrictions on transfer and other rights with respect to
their shares in the surviving corporation in the merger.
In the stockholder agreement, Saratoga and the Purchaser agree to pursue
all future acquisitions, mergers and recapitalizations involving businesses in
the refrigerated juice industry, other than minority investments by the
Purchaser or any of its affiliates, through Saratoga.
CONSULTING AGREEMENT
Concurrently with the execution of the merger agreement, and incident to
the merger agreement, Saratoga and North Castle entered into a consulting
agreement, to be effective upon the closing of the merger, under which
Saratoga, as the surviving corporation, engages North Castle as a consultant to
provide financial and managerial advisory services to Saratoga.
Concurrent with the closing of the merger, Saratoga agrees to pay
$1,150,000 to North Castle for the financial and managerial services that North
Castle has performed for MergerCo and Saratoga in connection with the merger
and the merger agreement.
Saratoga also agrees to pay to North Castle an annual fee equal to
$550,000 payable quarterly for the continuing services to be provided to
Saratoga. The annual fee will be increased up to a maximum of 2% of the
aggregate equity investment in Saratoga by North Castle and its affiliates but
may not exceed $1.25 million per year. In addition, in connection with any
acquisition of any business or company by Saratoga or any of its subsidiaries
or disposition of Saratoga, Saratoga shall pay to North Castle a transaction
fee equal to 2% of the enterprise value of the acquired company or business or
of Saratoga in the case of a disposition of Saratoga.
The consulting agreement shall remain in effect until the earlier to occur
of the tenth anniversary of the consummation of the merger and the date on
which a change of control occurs, as defined in the consulting agreement. Also,
North Castle may terminate the consulting agreement at any time on
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<PAGE>
30 days' prior notice to Saratoga. The consulting agreement contains customary
indemnifications provisions on behalf of North Castle and its affiliates.
REGISTRATION RIGHTS AGREEMENT
Concurrently with the execution of the merger agreement, and incident to
the merger agreement, Saratoga, the Purchaser and the Continuing Stockholders
entered into a registration rights agreement to be effective as of the closing
of the merger, under which Saratoga, as the surviving corporation, is required
to use its reasonable best efforts to effect the registration of any
registrable securities, as defined in the registration rights agreement,
subject to limitations (including cutback provisions) set forth in the
registration rights agreement.
Pursuant to the registration rights agreement, the holder or holders of at
least 35%, by number of shares of registrable securities, other than shares
obtained upon the exercise of an option, has the right to make written requests
that Saratoga effect one or more registrations, including an underwritten
offering, under the Securities Act. Saratoga agrees to follow the registration
procedures, as defined in the registration rights agreement, if at any time
Saratoga proposes to register any of its equity securities under the Securities
Act, including an underwritten offering. Saratoga agrees to pay all
registration expenses in connection with the first four registrations effected
upon a stockholder request, while the registration expenses in connection with
any other registration being apportioned among the holders whose securities are
being registered.
In the event that Saratoga proposes to register any of its securities
under the Securities Act it agrees, subject to certain exceptions described in
the registration rights agreement, to give prompt written notice to all holders
of registrable securities of its intention to do so and shall register those
registrable securities requested to be registered, subject to certain
limitations and conditions contained in the registration rights agreement.
Saratoga agrees to pay all registration expenses in connection with these
registration rights.
In the event of a registration pursuant to the provisions of the
registration rights agreement, Saratoga has agreed to indemnify the seller of
any security and its directors, officers, employees and each other person who
participate as an underwriter, broker or dealer in the offering or sale of such
securities and each other person who controls such seller against any and all
losses, to which such seller or directors, officers, employees, participating
or controlling person may become subject under the Securities Act or otherwise.
Each of the prospective sellers of Saratoga's securities has agreed to
indemnify Saratoga, each director or officer of Saratoga who shall sign a
registration statement against any and all losses, to which Saratoga or its
directors, officers or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses arise out of or are based
on any untrue statement or alleged untrue statement made in any registration
statement or prospectus with respect to such prospective seller and based on
written information furnished to Saratoga by such prospective seller.
MERGER FINANCING
General
The total amount of cash required to consummate the transactions
contemplated by the merger agreement, including payment of related fees and
expenses, is estimated to be approximately $60.66 million. A substantial
portion of these funds will be provided from the proceeds of financing
arrangements.
Senior Credit Facilities
On December 31, 1999, Bank of America, N.A. and Banc of America Securities
LLC issued a commitment letter and term sheet to MergerCo, pursuant to which
Bank of America, N.A. committed to provide, subject to certain terms and
conditions, up to $30,000,000 of senior secured credit facilities. The senior
credit facilities consist of a revolving credit facility and a term loan
facility. The senior credit facilities are intended to provide for:
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<PAGE>
o the capital required for the consummation of the merger;
o the transaction fees and expenses related to the merger;
o the funds to refinance certain indebtedness of Saratoga; and
o after the closing of the merger, the working capital and other general
corporate purposes of Saratoga and its subsidiaries.
As part of the senior credit facilities, Bank of America has agreed to
provide the surviving corporation in the merger with the revolving credit
facility in an aggregate amount not to exceed the principal amount of
$8,000,000. The revolving credit facility is expected to bear interest, at the
surviving corporation's option, at an annual rate equal to three and
one-quarter percentage points (3.25%) above LIBOR or two percentage points
(2.00%) above the Base Rate, which is defined as the higher of the Bank of
America prime rate and the Federal Funds rate plus .50%. The revolving credit
facility will expire in five years. The senior credit facilities will be
guaranteed by all existing or subsequently acquired or organized domestic
subsidiaries of the surviving corporation and will be secured by a first
priority perfected security interest in the capital stock of each of the
existing or subsequently acquired or organized subsidiaries of the surviving
corporation and substantially all present and future assets and properties of
the surviving corporation and its domestic subsidiaries.
Under the revolving credit facility, letters of credit may be issued, on a
revolving basis, at any time after the closing of the merger and prior to
maturity. Bank of America will extend the surviving corporation credit at any
time up to the lesser of $8 million or the amount of a borrowing base formula
equal to the sum of 85% of eligible receivables and 60% of eligible inventory
of the surviving corporation. Swingline loans will be made available by certain
lenders in a minimum amounts of $100,000.
As part of the senior credit facilities, Bank of America has agreed to
provide the surviving corporation in the merger with a term loan facility in an
aggregate principal amount of $22,000,000. The term loan will bear interest at
the same rate as the revolving credit facility. The term loan will be subject
to quarterly amortization, with a final maturity in five years.
The senior credit facilities provide for mandatory prepayments and
commitment reductions out of excess cash flow and the net cash proceeds from
certain debt or equity issuances and from certain sales of assets or other
dispositions of property. Voluntary prepayments are permitted in whole or in
part at the option of the surviving corporation without penalty, subject to
LIBOR breakage costs. It also provides that the surviving corporation must
remain in compliance with financial covenants specifying maximum leverage
ratios and minimum fixed charge coverage ratios, as well as minimum net worth
and minimum consolidated EBITDA.
The senior credit facilities will also include:
o customary affirmative and negative covenants, including covenants that limit
indebtedness, liens, investments, transactions with and payments to
affiliates, nature of business conducted, acquisitions, issuance of equity
and amendments to material agreements, and
o customary events of default.
The obligation to make the loans under the secured credit facilities is
conditioned upon there not having occurred any material adverse change in the
business, assets, operation or condition (financial or otherwise) of Saratoga
and its subsidiaries since December 31, 1998 and the absence of any event that,
individually or in the aggregate, could reasonably be expected to result in
such a material adverse change, as well as other customary conditions for
commitments of this type.
Senior Subordinated Notes
On January 3, 2000, Key Mezzanine Capital Fund I, L.P. committed, subject
to certain terms and conditions, to purchase from Saratoga $10,000,000 in
senior subordinated notes with warrants. The commitment letter is subject to
customary conditions, including the negotiation, execution and
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<PAGE>
delivery of definitive documentation with respect to the commitment. The
commitment letter will expire on May 31, 2000. The obligation to purchase the
senior subordinated notes is conditioned upon there not having occurred any
material adverse change in the business, assets, financial condition or income
of Saratoga and any of its subsidiaries since December 31, 1998 and other
customary conditions for commitments of this type.
Whether or not Key Mezzanine purchases the senior subordinated notes, the
Purchaser agrees:
o if the merger takes place, to pay all reasonable out-of-pocket costs and
expenses incurred by Key Mezzanine, including its reasonable fees and
disbursements of its counsel;
o to indemnify Key Mezzanine and its affiliates from all losses, claims,
damages, liabilities and expenses in connection with the commitment letter,
except for damages resulting from the gross negligence or willful
misconduct of the indemnitee; and
o should the Purchaser and Saratoga consummate the merger before December 31,
2000 without utilizing Key Mezzanine to provide the senior subordinated
note financing, to pay Key Mezzanine $150,000 as liquidated damages.
Payment of all amounts due under the senior subordinated notes will be
subordinated and junior in right of payment to certain specified senior debt.
The terms and conditions of the senior subordinated notes include:
o a rate of 12% per annum, payable quarterly in arrears;
o a one-time facility fee of $150,000;
o a final maturity of seven years from the closing date, without amortization
prior to maturity;
o prepayment in whole or in part, in multiples of $1,000,000 at any time upon
payment of a prepayment fee of 3-5% of the amount prepaid in certain
circumstances;
o mandatory prepayment in full upon certain change of control events or sale
of 35% or more of Saratoga's assets, together with a prepayment fee of 3-5%
of the amount prepaid in certain circumstances;
o Saratoga's being subject to certain affirmative covenants, including
financial reporting and debt service coverage ratio;
o Saratoga's being subject to certain negative covenants, including
restrictions on capital expenditures, incurrence of debt, dividends or
other distributions, sale of assets or subsidiary stock, merger or
consolidation, and transactions with affiliates;
o customary events of default, including failure to pay amounts due on senior
subordinated notes, non-payment of final judgment in excess of $250,000,
bankruptcy and acceleration of the senior debt.
The holders of the subordinated notes will receive detachable equity
warrants with a nominal exercise price for up to 5% of the equity interest on a
fully diluted basis in Saratoga.
The terms and conditions of the warrants include:
o ability to exercise at any time prior to the later of seven years from the
closing date or payment in full of the subordinated debt;
o exercise price of $.01 per share;
o customary anti-dilution provisions;
o rights, under certain circumstances, to require Saratoga to register the
underlying equity securities under the Securities Act to permit their
resale in a public offering;
o covenants by Saratoga, including prohibition against changing current line
of business and restrictions on affiliate transactions that are not arm's
length.
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<PAGE>
Other than scheduled repayments of the senior credit facilities and the
senior subordinated notes, there are currently no specific plans or
arrangements for the repayment of the funds borrowed under the senior credit
facilities and the senior subordinated notes, but the Purchaser and Ms. Prever
anticipate that the surviving corporation will be able to repay such borrowings
out of internally generated funds.
Equity Financing
On January 5, 2000, North Castle Partners II, L.P. committed, subject to
the terms and conditions of the merger agreement, to Saratoga and the Purchaser
to provide $28.66 million of equity financing to the Purchaser required to
acquire shares of the surviving corporation necessary to consummate the merger.
In addition, North Castle Partners II, L.P. has agreed to provide up to an
additional $10 million in equity financing if the full amount of debt financing
contemplated by either the senior credit facilities or the senior subordinated
notes is not available at the effective time of the merger. The equity
investment by the Purchaser is subject to the same condition as the merger,
including Saratoga obtaining adequate debt financing.
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<PAGE>
CERTAIN PROVISIONS OF THE MERGER AGREEMENT
The following summarizes the material provisions of the merger agreement.
A copy of the merger agreement is attached as Annex A to this document and is
incorporated in this document by reference. This summary is qualified in its
entirety by reference to the merger agreement.
THE MERGER
The merger agreement provides that after satisfaction or, to the extent
permitted, waiver of all conditions to the merger, Saratoga and the Purchaser
will file a certificate of merger with the Secretary of State of the State of
Delaware and make all other filings or recordings required by Delaware law in
connection with the merger. The merger will become effective at such time as
the certificate of merger is duly filed with the Secretary of State of the
State of Delaware or at such later time as is specified in the certificate of
merger by agreement of the Purchaser and Saratoga. Pursuant to this
certificate, MergerCo shall be merged at the effective time with and into
Saratoga, the separate existence of MergerCo shall cease, and Saratoga shall be
the surviving corporation. From and after the effective time, the surviving
corporation will possess all the rights, privileges, powers and franchises and
be subject to all of the restrictions, disabilities and duties of Saratoga, all
as provided under Delaware law.
MERGER CONSIDERATION
At the effective time:
o each share outstanding immediately prior to the effective time (other than a
minimum of 550,000 and a maximum of 700,000 shares owned by the Continuing
Stockholders, shares held in treasury and shares as to which appraisal
rights have been validly perfected), will be converted into the right to
receive $6.00 in cash, without interest;
o a minimum of 550,000 and a maximum of 700,000 shares held by the Continuing
Stockholders immediately prior to the effective time will be converted into
the right to receive a minimum of 550,000 and a maximum of 700,000 shares
of common stock of the surviving corporation; provided that in lieu of any
fractions of a share of common stock of the surviving corporation, each
holder shall be entitled to receive an amount of cash, without interest,
determined by multiplying $6.00 by the fractional interest to which the
holder would otherwise be entitled;
o each share held by Saratoga as treasury stock immediately prior to the
effective time shall be canceled, and no payment shall be made with respect
to those shares;
o all options to purchase shares of Class A common stock, whether or not
exercisable or vested, shall be repurchased or canceled, and each holder
shall receive an amount in cash determined by multiplying (x) the excess,
if any, of $6.00 over the per share exercise price of each option by (y)
the number of shares of Class A common stock the holder could have
purchased, assuming full vesting of all options, had the holder exercised
these options in full immediately prior to the effective time; and
o all warrants to purchase shares of Class A common stock, whether or not
exercisable or vested, shall be repurchased or canceled, and each holder
shall receive an amount in cash determined by multiplying (x) the excess,
if any, of $6.00 over the per share exercise price of each warrant by (y)
the number of shares of Class A common stock the holder could have
purchased, assuming full vesting of all warrants, had the holder exercised
these warrants in full immediately prior to the effective time.
Immediately after the effective time of the merger, the Purchaser will
purchase shares of common stock of Saratoga, as the corporation surviving the
merger, for a minimum of $28.66 million and a maximum of $38.66 million. The
purchase price for each share of common stock will be $6.00. The number of
shares in the surviving corporation that will be purchased by the Purchaser
will be increased above $28.66 million if the financing provided by Bank of
America and Key Mezzanine is
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<PAGE>
less than $32 million. See "The Merger--Interests of Certain Persons in the
Merger" for a discussion of how an increase in the number of shares of common
stock to be purchased by the Purchaser will affect the number of shares of
Rollover Stock.
SURRENDER AND PAYMENT
Prior to the effective time, MergerCo shall appoint an agent for the
purpose of exchanging certificates representing shares for the merger
consideration. On or prior to the effective time, Saratoga will deposit in
trust with the exchange agent the merger consideration to be paid in respect of
the shares and the certificates representing the shares of common stock of the
surviving corporation to be issued. For purposes of determining the merger
consideration to be made available, Saratoga shall assume that no holder of
shares will perfect his right to appraisal of his shares. Promptly, and in any
event within three business days, after the effective time, the surviving
corporation will cause the exchange agent to send to each holder of shares at
the effective time a letter of transmittal for use in the exchange, which will
specify that the delivery shall be effected, and risk of loss and title shall
pass, only upon delivery of the certificates representing shares to the
exchange agent, and instructions for use in effecting the surrender of such
certificates in exchange for the merger consideration.
Each holder of shares that have been converted into a right to receive the
merger consideration, upon surrender to the exchange agent of a certificate or
certificates representing the shares, together with a properly completed letter
of transmittal covering those shares, will be entitled to receive the merger
consideration payable in respect of those shares. Until so surrendered, each
certificate shall, after the effective time, represent for all purposes, only
the right to receive the merger consideration. Any payment or issuance made
pursuant to the provisions of the merger agreement shall be subject to and net
of applicable withholding taxes.
If any portion of the merger consideration is to be paid to a person other
than the registered holder of the shares represented by the certificate or
certificates surrendered in exchange therefor, it shall be a condition to the
payment that the certificate or certificates so surrendered shall be properly
endorsed or otherwise be in proper form for transfer and that the person
requesting such payment shall pay to the exchange agent any transfer or other
taxes required as a result of such payment to a person other than the
registered holder of the shares or establish to the satisfaction of the
exchange agent that the tax has been paid or is not payable.
In the event any certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost, stolen or destroyed, the exchange agent will issue in
exchange for the lost, stolen or destroyed certificate the merger consideration
deliverable in respect of the certificates as determined in accordance with the
merger agreement, provided that the person to whom the merger consideration is
paid shall, as a condition precedent to the payment thereof, gives the
surviving corporation a bond in a sum as it may direct or otherwise indemnify
the surviving corporation in a manner satisfactory to it against any claim that
may be made against the surviving corporation with respect to the certificate
claimed to have been lost, stolen or destroyed.
After the effective time, the stock transfer books of Saratoga shall be
closed and there shall be no further registration of transfers on the stock
transfer books of the surviving corporation of shares that were outstanding
immediately prior to the effective time.
Any portion of the merger consideration and any certificates representing
shares of the surviving corporation's common stock made available to the
exchange agent that remains unclaimed by the holders of shares one year after
the effective time shall be returned to the surviving corporation and any such
holder who has not exchanged his shares for the merger consideration in
accordance with this the procedures described in the merger agreement prior to
that time shall thereafter look only to the surviving corporation for payment
of the merger consideration in respect of his shares without any interest
thereon. Notwithstanding the foregoing, the surviving corporation shall not be
liable to any holder of shares for any amount paid to a public official
pursuant to applicable abandoned property, escheat or similar laws.
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Any portion of the merger consideration made available to the exchange
agent to pay for shares for which appraisal rights have been perfected shall be
returned to the surviving corporation, upon demand.
THE SURVIVING CORPORATION
At the effective time, the certificate of incorporation and bylaws of
Saratoga immediately prior to the effective time, shall be amended and
restated, each substantially in the form attached to the merger agreement as
Exhibit A and B, respectively, and as so amended and restated shall be the
certificate of incorporation and bylaws of the surviving corporation until duly
amended in accordance with applicable law. From and after the effective time,
until successors are duly elected or appointed and qualified in accordance with
applicable law or their earlier death, resignation or removal, the directors of
MergerCo, and the officers of Saratoga immediately prior to the effective time
shall be the directors and officers, respectively, of the surviving
corporation.
Pursuant to the stockholders agreement, the board of Saratoga will consist
of seven members, of which four members will be nominated by the Purchaser, and
three members will be nominated by Robin Prever so long as she is the Chief
Executive Officer. If Ms. Prever is no longer the Chief Executive Officer, then
the Continuing Stockholders may nominate one director, so long as they
collectively own 5% or more of the outstanding common stock. The chairperson of
the board shall be designated by the Purchaser from among the directors of
Saratoga. The stockholders agreement provides that the certificate of
incorporation and bylaws of Saratoga, as the surviving corporation, are to be
consistent with the terms of the stockholders agreement.
REPRESENTATIONS AND WARRANTIES
The merger agreement contains customary representations and warranties of
Saratoga relating to, among other things:
o organization, standing and similar corporate matters of Saratoga and its
subsidiaries;
o the authorization, execution, delivery, performance and enforceability of
the merger agreement;
o consents and approvals, no conflicts, breaches or violations as a result of
the merger agreement and related transactions;
o the capital structure of Saratoga and its subsidiaries;
o interests or investments in other entities;
o the absence of material undisclosed liabilities;
o the absence of certain changes or events since December 31, 1998, including
material adverse changes with respect to Saratoga and its subsidiaries;
o filing of tax returns and payment of taxes;
o title to properties and assets and encumbrances;
o title to real property and encumbrances;
o material contracts and enforceability;
o intellectual property and encumbrances;
o insurance;
o the absence of pending or threatened litigation;
o compliance with applicable laws, governmental approvals and other consents;
o environmental matters;
o employees and labor matters;
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<PAGE>
o benefit plans and other matters relating to the Employee Retirement Income
Security Act of 1974, as amended;
o product liability;
o brokers' fees and expenses;
o documents filed by Saratoga with the SEC and the accuracy of information
contained in those documents and the financial statements of Saratoga;
o the accuracy of information supplied by Saratoga in connection with this
document and the Schedule 13E-3;
o required vote by Saratoga's stockholders;
o the receipt of a fairness opinion from Saratoga's financial advisor;
o state and federal takeover statutes; and
o substantial suppliers and customers.
The merger agreement also contains customary representations and
warranties of the Purchaser relating to, among other things:
o organization, standing and similar corporate matters of the Purchaser
and MergerCo;
o the authorization, execution, delivery, performance and enforceability of
the merger agreement and related matters; consents and approvals, no
breaches or violations as a result of the merger agreement and related
transactions;
o the absence of conflicts and required consents;
o the absence of pending or threatened litigation;
o brokers' fees and expenses;
o no prior business;
o financing commitments in connection with the merger;
o accuracy of information supplied by the Purchaser and MergerCo in connection
with this document and the Schedule 13E-3;
o ownership of shares of Saratoga by MergerCo; and
o the absence of undisclosed liabilities.
CERTAIN PRE-CLOSING COVENANTS
Pursuant to the merger agreement, Saratoga has agreed that prior to the
effective time, Saratoga and its subsidiaries shall conduct their business in
the ordinary course in substantially the same manner as conducted up to then
and shall use their commercially reasonable efforts to preserve intact their
present business organization and relationships with customers, suppliers and
others having business dealings with it to the end that its goodwill and going
business shall be in all material respects unimpaired following the closing,
and to keep available the services of its present officers, employees and
consultants. Until the effective time, Saratoga has agreed to promptly advise
the Purchaser in writing of any event, occurrence, fact, condition, change,
development or effect or breach of the merger agreement that, individually or
in the aggregate, could reasonably be expected to have or result in a material
adverse effect.
Until the effective time, Saratoga shall not take any action or omit to
take any action which would result in a breach of its representations and
warranties or of its obligations under the merger agreement, it being agreed
that Saratoga may enter into contracts to purchase fruit in the ordinary course
consistent with past practice; and may make and commit to make capital
expenditures not in excess of $1 million in the aggregate in accordance with
Saratoga's budget for the fiscal year 2000.
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Until the effective time, Saratoga shall conduct all tax affairs relating
to it in the ordinary course of business, and in good faith in substantially
the same manner as such affairs would have been conducted if the merger
agreement had not been entered into.
ACCESS AND INFORMATION
Until the effective time, Saratoga and its subsidiaries shall give
Purchaser and its accountants, counsel, consultants, employees and agents,
full, complete and timely access during normal business hours to, and furnish
them with all documents, records, work papers, tax returns and information with
respect to, all of Saratoga's and its subsidiaries' properties, assets, books,
material contracts, reports, records and senior management personnel, as
Purchaser shall from time to time reasonably request. Saratoga and its
subsidiaries shall keep Purchaser and its representatives informed as to the
affairs of the business.
AGREEMENT NOT TO SOLICIT TAKEOVER PROPOSALS
Saratoga shall not, nor shall it permit any of its subsidiaries to, nor
shall it authorize or permit any of its directors, officers or employees or any
investment banker, financial advisor, attorney, accountant or other
representative retained by it or any of its subsidiaries to, directly or
indirectly through another person:
o solicit, initiate or encourage, including by way of furnishing information,
or take any other action designed to facilitate, any inquires or the making
of any proposal which constitutes a company takeover proposal, as defined
in the merger agreement; or
o negotiate with respect to, agree to or endorse any company takeover
proposal;
provided, however, that if and to the extent that the board determines in
good faith, after consultation with outside counsel, that it is necessary to do
so in order to act in a manner consistent with its fiduciary duties to the
stockholders under applicable law, Saratoga may, in response to any company
takeover proposal which was not solicited by it and which did not otherwise
result from a breach of this provision, and subject to providing prior written
notice of the company takeover proposal and its decision to take such action to
Purchaser, (x) furnish information with respect to Saratoga and its
subsidiaries to any person making a company takeover proposal pursuant to a
customary confidentiality agreement, as determined by Saratoga based on the
advice of its outside counsel, and (y) participate in discussions or
negotiations regarding such company takeover proposal.
Except as expressly permitted in the merger agreement, neither the board,
the special committee of Saratoga nor any other committee shall:
o withdraw, modify or, following a request by Purchaser to do so, fail to
reconfirm, or propose publicly to withdraw, modify or fail to reconfirm, in
a manner adverse to MergerCo or Purchaser, the approval or recommendation
by the board or any committee of the merger or the merger agreement;
o approve or recommend, or propose publicly to approve or recommend any
company takeover proposal; or
o cause Saratoga to enter into any letter of intent, agreement in principle
acquisition agreement or other similar agreement related to any company
takeover proposal.
Notwithstanding the foregoing, the board may take such actions if it
determines in good faith, based upon the recommendation of the special
committee and after consultation with outside counsel, that in light of a
company superior proposal, as defined in the merger agreement, it is necessary
to do so in order to act in a manner consistent with its fiduciary duties to
the stockholders under applicable law; provided, that it may only take such
actions at a time that is after the third business day following Purchaser's
receipt of written notice advising Purchaser that the board is prepared to
accept a company superior proposal, specifying the material terms and
conditions of the company superior proposal, all of which information will be
kept confidential by Purchaser in accordance with the terms of the
confidentiality agreement between Saratoga and North Castle.
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Pursuant to the merger agreement, Saratoga has agreed to immediately
advise the Purchaser of any request for information or of any company takeover
proposal and the material terms and conditions of any request or company
takeover proposal. Saratoga agrees to keep Purchaser reasonably informed of the
status and details, including amendments or proposed amendments, of any such
request or company takeover proposal.
Nothing contained in the merger agreement will prohibit Saratoga from
taking and disclosing to its stockholders a position contemplated by Rules
14d-9 and 14e-2(a) promulgated under the exchange act or from making any
disclosure to Saratoga's stockholders if, in the good faith judgment of the
board, after consultation with outside counsel, failure to so disclose would be
inconsistent with its obligations under applicable law; provided, however,
that, neither Saratoga nor its board nor any committee thereof shall withdraw
or modify, or propose publicly to withdraw or modify, its position with respect
to the merger agreement or the merger or approve or recommend, or propose
publicly to approve or recommend, a company takeover proposal, except to the
extent permitted in the merger agreement.
INDEMNIFICATION AND INSURANCE
Pursuant to the terms of the merger agreement, for a period of six years
following the effective time, the surviving corporation shall indemnify, defend
and hold harmless the present and former officers, directors, employees and
agents of Saratoga and its subsidiaries in such capacities against all losses,
claims, damages, expenses or liabilities arising out of actions or omissions,
or alleged actions or omissions, occurring at or prior to the effective time,
to the same extent and on the same terms and conditions, including with respect
to advancement of expenses, provided for in Saratoga's certificate of
incorporation and bylaws in effect on January 5, 2000 to the extent consistent
with applicable law.
For six years after the effective time, the surviving corporation shall
maintain in effect directors' and officers' liability insurance covering the
persons who are currently covered by Saratoga's existing directors' and
officers' liability insurance with respect to claims arising from facts or
events which occurred before the effective time, on terms and conditions no
less favorable to such directors and officers than those in effect on January
5, 2000; provided that in no event shall the surviving corporation be required
to make annual premium payments for this insurance in excess of 200% of the
premiums paid by Saratoga for this insurance as of January 5, 2000.
COMMERCIALLY REASONABLE EFFORTS; CERTAIN FILINGS
Saratoga and the Purchaser have agreed to use their commercially
reasonable efforts to take all actions, and to do all things necessary or
appropriate, to consummate the transactions contemplated by the merger
agreement.
Saratoga has agreed to promptly prepare and file with the SEC and
thereafter mail to the stockholders of Saratoga as promptly as practicable this
document. Saratoga and MergerCo have agreed to prepare and file together a
transaction statement on Schedule 13E-3 with the SEC.
CONDITIONS TO THE CONSUMMATION OF THE MERGER
The respective obligations of the parties to consummate the merger are
subject to the satisfaction of the following conditions:
o the merger agreement shall have been adopted by the stockholders of Saratoga
in accordance with the Delaware law;
o no provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the merger;
o no federal, state or foreign court, arbitrator or governmental body, agency,
or official shall have issued any order, and there shall not have been
adopted or promulgated any statute, rule or regulation, prohibiting the
consummation of the merger;
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o the proxy statement shall have been cleared by the SEC;
o the applicable waiting period under the HSR Act shall have expired or been
terminated;
o Saratoga shall have received at least $22.5 million of debt financing
pursuant to definitive financing agreements on the terms substantially
similar to the terms set forth in the commitment letters described under
"The Merger - Merger Financing", or on less favorable terms that are
acceptable to Purchaser;
o Saratoga and the Purchaser shall have entered into the Stockholders
Agreement and the Registration Rights Agreement, and such agreements shall
be in full force and effect; and
o Purchaser and each Continuing Stockholder shall have entered into a voting
agreement and each voting agreement shall be in full force and effect.
The obligations of the Purchaser and MergerCo to consummate the merger are
subject to the satisfaction of the following further conditions:
o Saratoga shall have performed in all material respects all of its
obligations under the merger agreement required to be performed by it at or
prior to the effective time and the representations and warranties of
Saratoga contained in the merger agreement shall be true and correct in all
respects, in the case of any representation or warranty qualified as to
materiality, or in all material respects, in the case of any representation
or warranty not so qualified, at and as of the effective time as if made at
and as of such time;
o Saratoga shall have obtained and shall have delivered to Purchaser on or
prior to the closing date copies of all governmental approvals and all
consents required or appropriate to be obtained by Saratoga or its
subsidiaries;
o from January 5, 2000 through and including the effective time, no event,
occurrence, fact, condition, change, development or effect shall have
occurred, exist or come to exist that, individually or in the aggregate,
has constituted or resulted in, or could reasonably be expected to
constitute or result in, a material adverse effect; it being understood
that the enactment of any regulation by the Food and Drug Administration
mandating pasteurization of fresh juice products shall not constitute a
material adverse effect, as defined in the merger agreement, unless
Saratoga would be unable to comply with such new regulation without the
occurrence of a material adverse effect;
o as of the effective time, all corporate proceedings of Saratoga in
connection with the merger agreement, the ancillary agreements, as defined
in the merger agreement, and the transactions contemplated thereby, and all
documents and instruments incident thereto, shall be reasonably
satisfactory in substance and form to Purchaser and its counsel, and
Purchaser and its counsel shall have received all such documents and
instruments;
o the number of dissenting shares shall not exceed 5% of the issued and
outstanding shares of Class A common stock and Class B common stock;
o the Purchaser shall have received a certificate of Saratoga, in accordance
with Treasury Regulations Section 1.897-2(h), to the effect that Saratoga
is not, and has not during the five year period preceding the effective
time been, a U.S. real property holding corporation within the meaning of
Section 897 of the Code;
o Saratoga and Robin Prever shall have entered into an employment agreement
and such agreement shall be in full force and effect; and
o Saratoga and North Castle shall have entered into a consulting agreement and
such agreement shall be in full force and effect.
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The obligations of Saratoga to consummate the merger are subject to the
satisfaction of the following further conditions:
o each of the Purchaser and MergerCo shall have performed in all material
respects all of its obligations under the merger agreement required to be
performed by them at or prior to the effective time and the representations
and warranties of the Purchaser and MergerCo contained in the merger
agreement shall be true and correct in all respects, in the case of any
representation or warranty qualified as to materiality, or in all material
respects, in the case of any representation or warranty not so qualified;
o the Purchaser and MergerCo shall have obtained and shall have delivered
to Saratoga on or prior to the closing date copies of all governmental
approvals and all consents required or appropriate to be obtained by
Purchaser and MergerCo in connection with the execution and delivery of
the merger agreement and the ancillary agreements and the consummation of
the transactions contemplated thereby; and
o as of the effective time, all organizational proceedings of Purchaser and
MergerCo in connection with the merger agreement, the ancillary agreements
and the transactions contemplated thereby, and all documents and
instruments incident thereto, shall be reasonably satisfactory in substance
and form to Saratoga and its counsel, and Saratoga and its counsel shall
have received all such documents and instruments, or copies thereof,
certified if requested, as may be reasonably requested.
TERMINATION
The merger agreement may be terminated and the merger may be abandoned at
any time prior to the effective time, notwithstanding any approval of the
merger agreement by the stockholders of Saratoga:
o by mutual written consent of Saratoga, the Purchaser and MergerCo;
o by either Saratoga or the Purchaser, if the merger has not been consummated
by May 31, 2000; provided that no party whose failure to fulfill any
obligation under the merger agreement has been the cause of or resulted in
the failure of the merger to be consummated shall be entitled to terminate
the merger agreement under this clause;
o by either Saratoga or the Purchaser, if there shall be any statute, order,
decree, regulation or any other action taken by a governmental authority
that makes consummation of the merger illegal or permanently enjoining,
restraining or otherwise prohibiting the Purchaser or Saratoga from
consummating the merger is entered and such statute, order, decree,
regulation or other action shall become final and nonappealable;
o by Saratoga, upon 15 days' prior written notice, in the event of a material
breach of any representation, warranty, covenant or agreement on the part
of MergerCo or Purchaser, which breach is not cured prior to the expiration
of the 15 day period, provided that if the breach is not curable, Saratoga
may terminate the merger agreement immediately; except where Saratoga is in
material breach of any representation, warranty, covenant or agreement.
o by Saratoga,
o if holders of at least a majority, by vote, of the outstanding Class A
common stock and Class B common stock fail to approve and adopt the
merger agreement and the transactions contemplated thereby at the
special meeting of the stockholders of Saratoga; or
o if prior to the effective time either of the board or the special
committee withdraws, modifies or changes in a manner adverse to MergerCo
its recommendation of the merger agreement or the merger, in accordance
with the fiduciary out provisions of the merger agreement; provided in
the case of this clause that this termination shall not be effective
until Saratoga has made payment to North Castle of the termination fee
in accordance with the merger agreement so long as MergerCo and
Purchaser have not breached their obligations under the merger
agreement.
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o by Purchaser, if
o holders of at least a majority, by vote, of the outstanding Class A
common stock and Class B common stock fail to approve and adopt the
merger agreement and the transactions contemplated by the merger
agreement at the special meeting;
o either the board or the special committee withdraws, modifies or
changes its recommendation of the merger agreement or the merger in a
manner adverse to MergerCo or shall have resolved to do any of the
foregoing or the board shall have recommended to the stockholders any
company takeover proposal (as defined in the Merger Agreement) or
resolved to do so;
o a tender offer or exchange offer for outstanding shares of capital
stock of Saratoga then representing 35% or more of the combined power to
vote generally for the election of directors is commenced, and the board
does not recommend that stockholders not tender their shares into such
tender or exchange offer; or
o any person shall have acquired beneficial ownership or right to acquire
beneficial ownership of, or any "group", as that term is defined under
Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder, shall have been formed that beneficially owns,
or has the right to acquire beneficial ownership of, outstanding shares
of capital stock of Saratoga then representing 35% or more of the
combined power to vote generally for the election of directors.
o by Purchaser, upon 15 days' prior written notice, in the event of a material
breach of any representation, warranty, covenant or agreement on the part
of Saratoga, which breach is not cured prior to the expiration of the 15
day period, provided that if the breach is not curable, Purchaser may
terminate the merger agreement immediately; except where Purchaser or
MergerCo is in material breach of any representation, warranty, covenant or
agreement.
o by Purchaser, on the one hand, or Saratoga, on the other hand, if any event
shall occur or exist that otherwise shall have made it impossible to
satisfy a condition precedent to the obligation of the terminating party or
parties to consummate the transactions contemplated by the merger
agreement, unless the occurrence or existence of such event, fact or
condition shall be due to the failure of the terminating party or parties
to perform or comply with any of the agreements, covenants or conditions
hereof to be performed or complied with by the party prior to the effective
time.
o by Saratoga, if the board determines in good faith, based upon the opinion
of its outside legal counsel, that the failure to terminate the merger
agreement would constitute a breach of the fiduciary duties of the board to
the stockholders under applicable law.
If the merger agreement is terminated as described above, the merger
agreement shall become void and of no effect with no liability on the part of
any party thereto or any of its directors, officers, employees, agents,
consultants, representatives, advisors or affiliates, other than for breaches
and except that provisions relating to the termination fee and costs and
expenses incurred in connection with the merger agreement shall survive the
termination thereof. Additionally, the voting agreements between the Purchaser
and each Continuing Stockholder pursuant to which each Continuing Stockholder
appointed the Purchaser as his, her or its irrevocable proxy to vote all of
his, her or its shares in favor of the merger agreement terminate upon
termination of the merger agreement.
TERMINATION FEE
Saratoga shall promptly pay North Castle a termination fee of $1.2 million
and reimbursement of reasonable costs and expenses not to exceed $300,000 in
the event that the merger agreement is terminated only in the following
circumstances:
o the board or special committee withdraws, modifies or changes in a manner
adverse to the MergerCo its recommendation of the merger agreement or the
merger or resolves to do so;
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o the board recommends to the stockholders any company takeover proposal, as
defined in the merger agreement, or resolves to do so;
o the board does not recommend that stockholders not tender their shares into
a tender offer or exchange offer for shares representing 35% or more of the
voting power to elect directors of Saratoga; or
o any person or group, as defined in the Exchange Act, shall have acquired
beneficial ownership or the right to acquire beneficial ownership of shares
representing 35% or more of the voting power to elect directors of
Saratoga.
AMENDMENT AND WAIVER
Any provision of the merger agreement may be amended, modified, waived or
discharged prior to the effective time if, and only if, the amendment,
modification, waiver or discharge is in writing and duly executed by the party
against whom enforcement of the amendment, modification, waiver or discharge is
sought.
ESTIMATED FEES AND EXPENSES
Except as described under "--Termination Fee", the merger agreement calls
for all costs and expenses incurred in connection with the merger to be paid by
the party incurring such cost or expense. If the merger is consummated,
Saratoga shall pay all costs and expenses incurred in connection with the
merger by MergerCo, the Purchaser and Saratoga.
The following is an estimate of fees and expenses to be incurred in
connection with the merger:
<TABLE>
<S> <C>
Legal Fees and Expenses .............................. $ 850,000
Accountants' Fees and Expenses ....................... 200,000
Financing Costs and Fees ............................. 2,200,000
Financial Advisor to Special Committee ............... 520,000
Legal Fees and Expenses of Special Committee ......... 150,000
Special Committee Fees and Expenses .................. 25,000
Printing ............................................. 50,000
Filing Fees .......................................... 7,237.88
Information/Transfer Agent ........................... 10,000
Mailing .............................................. 10,000
Miscellaneous ........................................ 750,000
-------------
Total ............................................ $ 4,772,237.88
==============
</TABLE>
Saratoga currently expects that approximately $32.6 million will be
required to pay the merger consideration to the Continuing Stockholders and the
other stockholders, assuming no holders perfect appraisal rights. Saratoga
currently expects that approximately $3.6 million will be required to pay the
holders of options and warrants in exchange for the cancellation of those
options and warrants. For a description of the sources of these funds, see "The
Merger--Merger Financing."
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UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL DATA
The following unaudited pro forma condensed consolidated financial data of
Saratoga has been prepared to give effect to the merger and the other
transactions contemplated by the merger agreement as a leveraged
recapitalization for financial reporting purposes. Accordingly, the historical
basis of Saratoga's assets and liabilities will not be affected by the
transactions. For a discussion of the merger and the other transactions, see
"The Merger."
The pro forma adjustments presented are based upon available information
and certain assumptions that Saratoga believes are reasonable under the
circumstances. The historical condensed consolidated statement of income data
for the year ended December 31, 1999 and the historical condensed consolidated
balance sheet data for the year ended December 31, 1999 were derived from the
audited consolidated financial statements of Saratoga included in Saratoga's
Annual Report on Form 10-KSB incorporated by reference in this document and
included with this document. The unaudited pro forma condensed consolidated
statement of operations data of Saratoga for the year ended December 31, 1999
gives effect to (i) the merger as if it had occurred on January 1, 1999, and
(ii) the acquisition of Fresh Juice on January 29, 1999 as if that acquisition
has occurred on January 1, 1999. The unaudited pro forma consolidated balance
sheet data of Saratoga as of December 31, 1999 gives effect to the merger
assuming that it was completed on January 1, 1999.
The unaudited pro forma financial data should be read in conjunction with
the historical consolidated financial statements of Saratoga and notes thereto,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the other financial data incorporated by reference in this
document and included with this document, as well as the information concerning
the merger, including the sources and uses of the merger, contained in "The
Merger."
The pro forma financial data and related notes are provided for
informational purposes only and do not necessarily reflect the results of
operations or financial position of Saratoga that would have actually resulted
had the events referred to above or in the notes to the unaudited pro forma
financial data been consummated as of the date and for the period indicated and
are not intended to project Saratoga's financial position or results of
operations for any future period.
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PRO FORMA (UNAUDITED) CONDENSED CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1999
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
SARATOGA
BEVERAGE PRO FORMA
GROUP (1) ADJUSTMENTS PRO FORMA
----------- ---------------- ------------
<S> <C> <C> <C>
ASSETS
Cash and cash equivalents .................................... $ 474 $ (474)(2) $ --
Accounts receivable, net ..................................... 6,332 -- 6,332
Inventories .................................................. 6,183 -- 6,183
Income Tax Receivable ........................................ 644 644
Prepaid expenses and other current assets .................... 252 -- 252
-------- --------- ---------
Total current assets ...................................... 13,885 (474) 13,411
Property, plant and equipment, net ........................... 7,800 -- 7,800
Deferred financing costs, net ................................ 742 51 (2) 793
Goodwill ..................................................... 18,414 -- 18,414
Note receivable .............................................. 127 -- 127
Trademarks, patents, and other intangibles, net .............. 247 -- 247
Other assets ................................................. 132 -- 132
-------- --------- ---------
Total assets .............................................. $ 41,347 $ (423) $ 40,924
======== ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable and accrued liabilities ..................... $ 5,209 $ --(2) $ 5,209
Current portion of long term debt and capital leases ......... 173 -- 173
Other current liabilities .................................... 18 -- 18
-------- ----------- ---------
Total current liabilities ................................. 5,400 -- 5,400
Subordinated convertible note ................................ 1,500 (1,500)(2) --
Long term debt and capital leases ............................ 21,942 10,195 (2) 32,137
Other liabilities ............................................ 515 -- 515
-------- ----------- ---------
Total liabilities ......................................... 29,357 8,695 38,052
-------- ----------- ---------
Common stock ................................................. 55 -- 55
Paid in capital .............................................. 15,769 (2,258)(2) 13,511
Warrants ..................................................... -- 1,726 (2) 1,726
Accumulated deficit .......................................... (3,834) (8,586)(2) (12,420)
-------- ----------- ---------
Total stockholders' equity ................................ 11,990 (9,118) 2,872
-------- ----------- ---------
Total liabilities and stockholders' equity ................ $ 41,347 $ (423) $ 40,924
======== =========== =========
</TABLE>
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NOTES TO PRO FORMA UNAUDITED CONDENSED CONSOLIDATED
BALANCE SHEET DATA
(1) Represents Saratoga's consolidated financial position as reported
<TABLE>
<CAPTION>
DEFERRED
PAID IN ACCUMULATED LONG TERM FINANCE CASH ON
CAPITAL DEFICIT DEBT COSTS HAND OTHER TOTAL
------------ ------------- ----------- --------- -------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
(2) SOURCES:
Borrowing under 12% senior
subordinated notes ...................... $ $ $ 10,000 $ $ $ $ 10,000
Proceeds from the issuance of 4,776,667
new shares to NCP-SBG, LP ............... 28,660 28,660
Borrowing under senior credit facilities... 22,000 22,000
Borrowing under Revolver .................. 1,727 1,727
Cash on hand .............................. 474 474
---------
Total sources ........................... 62,861
=========
USES:
Cash paid to repurchase an estimated
5,433,173 shares of Class A and Class
B common stock, (representing
approximately 90% of shares
outstanding prior to the transaction).... (32,599) (32,599)
Cash paid to repurchase 1,019,455
options and 30,000 warrants at $6.00
per share less option or warrant
exercise price .......................... (3,593) (3,593)
Refinanced debt ........................... (22,033) (22,033)
Payment of estimated transaction and
deferred financing costs ................ (3,646) (990) (4,636)
---------
Total uses .............................. $ (62,861)
=========
OTHER PRO FORMA TRANSACTIONS:
Conversion of $1.5 million
subordinated note into 428,571
shares of Class A common stock in
January, 2000 ........................... 1,500 (1,500)
Charge to equity of unamortized costs
of above note ........................... (49) 49
Compensation effect of stock option
exercise ................................ 230 (230)
Write off of deferred financing costs
associated with refinanced debt ......... (742) 742
Periodic amortization of deferred
financing costs on refinanced debt ...... (148) 148
Discount of approximately 280,000
detachable warrants associated with
borrowing under 12% senior
subordinated note ....................... (1,726) 1,726
Periodic amortization of discount ......... (227) 227
--------- -------- --------- ------
Total ................................... $ (2,258) $ (8,586) $ 10,195 $ (51)
========= ======== ========= ======
</TABLE>
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PRO FORMA (UNAUDITED) CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE TWELVE MONTHS ENDED DECEMBER 31, 1999
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
SARATOGA PRO FORMA
BEVERAGE INCLUDING RECAPITALIZATION
GROUP (1) ACQUISITION (7) ACQUISITION ADJUSTMENT PRO FORMA
------------- ----------------- ------------- ------------------- -------------
<S> <C> <C> <C> <C> <C>
Net sales .............................. $ 50,740 $3,235 $ 53,975 $ -- $ 53,975
Cost of goods sold ..................... 39,337 2,152 41,489 -- 41,489
---------- ------ ---------- ---------- ----------
Gross margin .......................... 11,403 1,083 12,486 -- 12,486
Selling general and administrative ..... 6,586 608 7,194 550 (2) 7,744
Depreciation, amortization, and
equipment lease ....................... 1,323 132 1,455 -- 1,455
---------- ------ ---------- ---------- ----------
Operating income ...................... 3,494 343 3,837 (550) 3,287
Other income (expense):
Interest income ........................ 56 5 61 -- 61
Interest expense ....................... (1,836) (47) (1,883) (1,898) (3) (3,781)
Net gain on disposal of equipment ...... 14 -- 14 -- 14
Other income (expense): ................ 137 2 139 -- 139
---------- ------ ---------- ---------- ----------
Other income (expense), net ........... (1,629) (40) (1,669) (1,898) (3,567)
Income/(Loss) before income taxes ...... 1,865 303 2,168 (2,448) (279)
Provision for income taxes ............. 104 7 111 -- 111
---------- ------ ---------- ---------- ----------
Net income/(Loss) ...................... $ 1,761 $ 296 $ 2,057 $ (2,448) $ (391)
========== ====== ========== ========== ==========
Income (Loss) per share: (4)
Basic ................................. $ 0.34 $ 0.40 $ (0.08)
========== ========== ==========
Diluted ............................... $ 0.32 $ 0.36 $ (0.08)
========== ========== ==========
Weighted average number of shares
outstanding:
Basic ................................. 5,175,114 5,175,114 4,993,433
========== ========== ==========
Diluted ............................... 5,697,615 5,697,615 4,993,433
========== ========== ==========
Book Value Per Share: .................. $ 2.25 $ 2.31 $ 0.54
========== ========== ==========
</TABLE>
75
<PAGE>
NOTES TO PRO FORMA UNAUDITED CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED
DECEMBER 31, 1999
--------------------
<S> <C>
(1) Represents Saratoga's consolidated results of operations as reported
(2) Reflects the annual continuing service fee payable to North Castle Partners .......... $ 550
========
(3) Reflects the following:
1. Incremental amortization expense for the deferred financing costs of $990
associated with the transaction, ................................................. 17
2. Reversal of interest expense recognized under existing debt ...................... (1,828)
3. Interest expense related to the $22,000 senior credit facility at an assumed
interest rate of LIBOR plus 3.0% (9.6%). ......................................... 2,112
4. Interest expense at 12% for the $10,000 Senior Subordinated Note with
detachable warrants. ............................................................. 1200
5. Interest expense on the Revolver at assumed interest rate of LIBOR plus 3.25%
(9.85%) .......................................................................... 170
6. Amortization expense associated with the fair value of detachable warrants
issued with the Senior Subordinated Note ......................................... 227
--------
Total ............................................................................ $ 1,898
========
(4) Pro forma Basic and Diluted earnings per shared have been calculated to
include newly issued shares of 4,776,667 and to represent the effect of
repurchasing 5,433,173 shares; Earnings per share excludes the effect of
approximately 391,000 options and warrants, the effect of which would be
antidilutive. ........................................................................
(5) The unaudited Pro Forma Condensed Consolidated Statements of Operations
exclude the following non-recurring items that are directly attributable to
the Recapitalization:
1. The compensatory effect of repurchasing outstanding stock options and
warrants repurchased as a result of the Recapitalization ......................... $ 3,823
2. The payment of transaction costs ................................................. 3,635
3. Write-off of deferred financing costs associated with the refinanced debt ........ 742
--------
Total ............................................................................ $ 8,200
========
(6) Because interest rates in connection with the refinancing have not been
determined as of the date hereof, the pro forma data is indicative of
Saratoga's best current estimate of interest expense. A 1/8 percentage point
increase or decrease in the assumed interest rate on the refinancing would
change the annual net interest expense by approximately $36 for the year
ended December 31, 1999.
(7) Represents Fresh Juice's estimated operations for the period from January
1, 1999 to January 29, 1999, the date of the acquisition.
</TABLE>
76
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHANGES
(IN 000S, EXCEPT FOR RATIO AMOUNTS)
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED
DECEMBER 31, 1999
--------------------
<S> <C>
Pre-tax earnings from continuing operations ............ $ 1,866
-------
Fixed charges:
Interest expense ....................................... 1,835
Rentals -- 33% ......................................... 314
Rentals -- bottling line at 21% ........................ 27
Total fixed charges .................................... $ 2,176
-------
Earnings before income taxes and fixed charges ......... $ 4,042
=======
Ratio of earnings to fixed charges ..................... 1.86
=======
</TABLE>
SARATOGA BEVERAGE GROUP, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHANGES
AFTER ADJUSTMENT FOR REFINANCING
(IN 000S, EXCEPT FOR RATIO AMOUNTS)
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED
DECEMBER 31, 1999
--------------------
<S> <C>
Pre-tax earnings from continuing operations plus fixed charges ......... $ 4,042
-------
Fixed charges, as above ................................................ 2,176
Adjustments:
Estimated net increase in interest expense from refinancing ........... 1,898
-------
Total pro forma fixed charges ......................................... $ 4,074
=======
Pro forma ratio of earnings to fixed charges ........................... 0.99
=======
</TABLE>
77
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of March 1, 2000, certain information
with respect to the beneficial ownership of the common stock by (i) each
director and nominee for director of Saratoga, (ii) each person named in
Saratoga's 1999 compensation table, (iii) all persons known by Saratoga to be
the beneficial owner of more than 5% of the outstanding shares of the Company's
voting securities and (iv) all officers, directors and nominees for directors
of Saratoga as a group.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF PERCENTAGE BENEFICIALLY OWNED
COMMON STOCK -----------------------------------
NAME AND STOCK ADDRESS BENEFICIALLY OWNED AT OF VOTING
OF BENEFICIAL OWNER MARCH 1, 2000(1) OF SHARES(1)(2)(3) POWER(2)(3)
- ------------------------------------- ---------------------- -------------------- ------------
<S> <C> <C> <C>
Anthony Malatino (4)(5) ............. 718,127 (12) 12.0% 26.5%
Robin Prever (5)(6) ................. 418,285 (13) 6.9% 13.3%
Adam Madkour (6) .................... 81,716 (14) 1.4% 1.0%
Gayle Henderson (6) ................. 7,793 (15) * *
Warren Lichtenstein (7) ............. 552,512 (16) 9.2% 6.8%
John Morabito (6) ................... 25,000 (17) * *
Leonard Toboroff (8) ................ 207,500 (18) 3.4% 2.5%
Jeffrey Heavirland (9) .............. 81,106 (19) * *
Steven Bogen (10) ................... 389,293 (20) 6.5% 4.8%
R. J. Barry Cox (6) ................. 2,500 (21) * *
Kim James (6) ....................... 0 (22) * *
William Colaianni (11) .............. 87,500 (23) 1.4% 1.1%
Irene Fonzi (6) ..................... 0 * *
Marc Craen (6) ...................... 0 (24) * *
All officers and directors as a group
(12 persons) ....................... 1,853,205 28.3% 29.3%
</TABLE>
- ----------
* Less than 1%.
(1) Based upon 5,460,218 shares of Class A common stock and 522,955 shares of
Class B common stock outstanding at March 1, 2000. This table does not
include the impact that the execution of the voting agreements by
Continuing Stockholders may have had on the beneficial ownership of the
Purchaser. Purchaser and MergerCo have informed Saratoga that they
beneficially owned no shares of Class A common stock of Saratoga as of
January 14, 2000, other than, with respect to the Purchaser, any
beneficial ownership which may be attributed to the Purchaser as a result
of the execution of the voting agreements.
(2) The information presented with respect to stock ownership and related
percentage information is based on common stock as a percentage of the
aggregate number of shares of common stock outstanding, treating the
Class A common stock and the Class B common stock as a single class. The
number of shares of Class A common stock outstanding does not include (i)
30,000 shares issuable upon exercise of warrants to Global Financial
Group, Inc. for acting as placement agent in connection with the offering
of the 5% subordinated convertible note, (ii) shares issuable upon
exercise of certain outstanding stock options or reserved for issuance
pursuant to Saratoga's Stock Option Plan.
(3) The Class A common stock and the Class B common stock are identical,
except that the holders of the Class A common stock are entitled to one
vote per share, whereas the holders of the Class B common stock are
entitled to five votes per share on all matters submitted for stockholder
vote.
(4) The business address of Mr. Malatino is c/o Morgan Stanley Dean Witter,
340 Broadway, Saratoga Springs, NY 12866.
(5) Ms. Prever and Mr. Malatino were married on February 12, 2000. Each of
Ms. Prever and Mr. Malatino disclaim beneficial ownership of the other
person's common stock.
78
<PAGE>
(6) The business address of each of Ms. Prever, Ms. Henderson, Mr. Morabito,
Mr. Cox, Mr. James and Ms. Fonzi is c/o Saratoga Beverage Group, Inc.,
1000 American Superior Boulevard, Winter Haven, Florida 33884. The
business address of Mr. Madkour is c/o Saratoga Beverage Group, Inc., 11
Geyser Road, Saratoga Springs, New York 12866.
(7) The business address of Mr. Lichtenstein is c/o Steel Partners II, LP,
150 East 52nd Street, 21st Floor, New York, New York 10022.
(8) The business address of Mr. Toboroff is c/o Lincolnshire Management,
Inc., 780 3rd Avenue, 40th Floor, New York, NY 10017.
(9) The business address of Mr. Heavirland is c/o The Fresh Juice Company of
California, Inc., 875 West Eighth Street, Azusa, CA 91702-2247.
(10) The business address of Mr. Bogen is The Fresh Juice Company of New York,
Inc., 280 Wilson Avenue, Newark, NJ 07105.
(11) The business address of Mr. Colaianni is Holding Capital Group, Inc., 10
E. 53rd St., 30th Floor, New York, NY 10022
(12) Includes 363,132 shares of Class A common stock outstanding and 354,995
shares of Class B common stock outstanding.
(13) Includes 100,000 shares of Class A common stock issuable upon exercise of
certain options that are exercisable within 60 days, 150,325 shares of
Class A common stock outstanding and 167,960 shares of Class B common
stock outstanding, and excludes 200,000 shares issuable upon options that
are not exercisable within 60 days.
(14) Includes 80,666 shares of Class A common stock issuable upon exercise of
certain options that are exercisable within 60 days, 1,050 shares of
Class A common stock outstanding, and excludes 19,334 shares issuable
upon options that are not exercisable within 60 days.
(15) Includes 6,668 shares of Class A common stock issuable upon exercise of
certain options that are exercisable within 60 days, 1,125 shares of
Class A common stock outstanding, and excludes 8,332 shares issuable upon
options that are not exercisable within 60 days. March 13, 2000 was Ms.
Henderson's last day of employment with Saratoga.
(16) No shares of Class A common stock issuable upon exercise of certain
options that are exercisable within 60 days, 552,512 shares of Class A
common stock outstanding, and excludes 2,500 shares issuable upon options
that are not exercisable within 60 days.
(17) Includes 25,000 shares of Class A common stock issuable upon exercise of
certain options that are exercisable within 60 days, no shares of Class A
common stock are outstanding, and excludes 50,000 shares issuable upon
options that are not exercisable within 60 days.
(18) Includes 207,500 shares of Class A common stock issuable upon exercise of
certain options that are exercisable within 60 days, and excludes 2,500
shares issuable upon options that are not exercisable within 60 days.
(19) Includes 50,000 shares of Class A common stock issuable upon exercise of
certain options that are exercisable within 60 days, 31,106 shares of
Class A common stock outstanding, and excludes 50,000 shares issuable
upon options that are not exercisable within 60 days.
(20) Includes 2,500 shares of Class A common stock issuable upon exercise of
certain options that are exercisable within 60 days, 386,793 shares of
Class A common stock outstanding, and excludes 2,500 shares issuable upon
options that are not exercisable within 60 days.
(21) Includes 2,500 shares of Class A common stock issuable upon exercise of
certain options that are exercisable within 60 days, no shares of Class A
common stock are outstanding, and excludes 4,500 shares issuable upon
options that are not exercisable within 60 days.
(22) No shares of Class A common stock issuable upon exercise of certain
options that are exercisable within 60 days, no shares of Class A common
stock are outstanding, and excludes 20,000 shares issuable upon options
that are not exercisable within 60 days.
(23) Includes 87,500 shares of Class A common stock issuable upon exercise of
certain options that are exercisable within 60 days, no shares of Class A
common stock are outstanding, and excludes 2,500 shares issuable upon
options that are not exercisable within 60 days.
(24) No shares of Class A common stock issuable upon exercise of certain
options that are exercisable within 60 days, no shares of Class A common
stock are outstanding, and excludes 50,000 shares issuable upon options
that are not exercisable within 60 days.
79
<PAGE>
PURCHASES OF COMMON STOCK BY,
AND OTHER TRANSACTIONS WITH, CERTAIN PERSONS
On February 12, 2000, Robin Prever, Chairman of the Board, President and
Chief Executive Officer of Saratoga, and Anthony Malatino, the Chairman of the
Board of Saratoga until December 12, 1995, were married. Each of Ms. Prever and
Mr. Malatino disclaim beneficial ownership of the other person's Saratoga
stock. Mr. Malatino and Ms. Prever, entered into a stockholders' agreement,
dated as of October 22, 1998, granting each of them the option to purchase all
or a portion of the other person's Class B common stock upon the death of such
person. Mr. Malatino and Ms. Prever, entered into a voting trust agreement,
dated August 17, 1992, as amended in April 1993. This agreement expired in
1998.
On January 5, 2000, Warren Lichtenstein, a director of Saratoga, exercised
options to purchase an aggregate of 95,500 shares of Class A common stock with
an aggregate exercise price of $233,920. Mr. Lichtenstein exercised his options
using a cashless exercise and, therefore, received 46,254 shares of common
stock in exchange for his options.
On December 23, 1999, Ms. Prever exercised options to purchase 115,000
shares of Class A common stock with an aggregate exercise price of $273,750.
In February 1998, Steel Partners, an affiliate of Warren Lichtenstein,
purchased 275,000 shares of unregistered Class A common stock from Saratoga at
a purchase price of $2.25 per share. Steel Partners, an affiliate of Warren
Lichtenstein, is a private investment fund that invests in small-cap companies.
Carl T. Wolf became co-chairman of the board and director in February
1998. At that time, he purchased 175,000 shares of unregistered Class A common
stock from Saratoga at a purchase price of $2.25 per share. In connection with
his purchase, Mr. Wolf was issued an option to purchase 200,000 shares of Class
A common stock at an exercise price of $2.875 per share. Mr. Wolf resigned from
the board on April 17, 1998 for personal reasons and, on that date, Saratoga
repurchased 150,000 shares of unregistered Class A common stock at a price of
$2.25 per share. In connection with Mr. Wolf's resignation, the option was
amended to be exercisable for 75,000 shares and the expiration date of the
options was extended to February 3, 2003.
Saratoga also repurchased 100,000 shares of unregistered Class A common
stock for $1.62 per share in a private transaction from an unaffiliated
stockholder during the first quarter of 1998.
During the second quarter of 1998, 250,000 shares held in treasury were
retired.
In connection with the execution of the merger agreement, each of Robin
Prever, Anthony Malatino, Steven Bogen, Warren Lichtenstein, Steel Partners,
Pershing Securities Limited and Jurg Walker entered into the voting agreements
with the Purchaser described in "The Merger--Voting Agreements."
On October 13, 1998, Saratoga, Steven Bogen, Robin Prever and Anthony
Malatino entered in a stockholder agreement in which it was agreed to vote all
of their Saratoga securities to elect, re-elect and prevent any proposed
removal of, Mr. Bogen as a member of Saratoga's board. This stockholder
agreement shall expire on the earlier of the date (i) that Mr. Bogen directly
owns less than 400,000 shares of Class A common stock, (ii) Mr. Bogen is
convicted of a felony or a misdemeanor involving moral turpitude, dishonesty,
theft or unethical business conduct, or (iii) Mr. Bogen breaches his fiduciary
duties, in a material fashion, to Saratoga or its stockholders. The stockholder
agreement will terminate upon the effective time of the merger.
80
<PAGE>
REGULATORY CONSIDERATIONS
ANTITRUST
Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules promulgated thereunder, certain merger transactions may
not be consummated unless certain information has been furnished to the
Antitrust Division of the Department of Justice and the Federal Trade
Commission and certain waiting periods have expired or been terminated. The
merger is subject to the filing requirements of the HSR Act. Saratoga was
informed by the Federal Trade Commission that its request for early termination
of the waiting period was granted effective February 23, 2000.
THE PURCHASER AND MERGERCO
The Purchaser is a newly formed Delaware limited partnership and MergerCo
is a newly formed corporation, both organized at the direction of North Castle
in connection with the transactions contemplated by the merger agreement. The
Purchaser and MergerCo were formed for the purpose of effecting the
transactions contemplated by the merger agreement and are not expected to have
significant assets or liabilities other than in connection with the
transactions contemplated by the merger agreement or to engage in any
activities other than those incident to their formations and the transactions
contemplated by the merger agreement, and, in the case of the Purchaser,
actions contemplated by the voting agreements.
The authorized capital stock of MergerCo consists of 1,000 shares of
common stock, par value $0.01, all of which shares have been issued and are
held by the Purchaser. The general partner of the Purchaser is NCP-SBG GP,
L.L.C., a Delaware limited liability company organized at the direction of
North Castle to serve, along with the Purchaser and MergerCo, as investment
vehicles in connection with the transactions contemplated by the merger
agreement and related agreements. The sole member of NCP-SBG GP, L.L.C. is
North Castle Partners II, L.P., a Delaware limited partnership ("North Castle
Fund II"). The general partner of North Castle Partners II, L.P. is NCP G.P.
II, L.P., a Delaware limited partnership. The general partner of NCP G.P. II,
L.P. is North Castle GP II, L.L.C., a Delaware limited liability company. The
sole member of North Castle GP II, L.L.C. is Charles F. Baird, Jr., an
individual.
North Castle Fund II is a private equity fund and, along with NCP G.P. II,
L.P. and North Castle GP II, L.L.C., are private investment vehicles formed for
the purpose of investing in transactions arranged by North Castle Partners,
L.L.C. The present principal occupation of Mr. Baird is the senior managing
member or North Castle Partners, L.L.C. Mr. Baird is a citizen of the United
States.
The principal executive offices of MergerCo, the Purchaser, NCP-SBG GP,
L.L.C., North Castle Partners II, L.P., NCP G.P. II, L.P. and North Castle GP
II, L.L.C. are c/o North Castle Partners II, L.L.C., 60 Arch Street, Greenwich,
Connecticut 06830.
As described in "The Merger--Consulting Agreement," Saratoga and North
Castle have entered into a consulting agreement, to be effective upon the
closing of the merger, pursuant to which North Castle will provide financial
and other advisory services to Saratoga in exchange for certain fees following
the merger.
81
<PAGE>
DISSENTING STOCKHOLDERS' RIGHTS
Holders of shares of Class A common stock are entitled to appraisal rights
under Section 262 of the DGCL, provided that they comply with the conditions
established by Section 262. Section 262 is reprinted in its entirety as Annex C
to this document. The following discussion is not a complete statement of the
law relating to appraisal rights and is qualified in its entirety by reference
to Annex C. This discussion and Annex C should be reviewed carefully by any
holder who wishes to perfect statutory appraisal rights or who wishes to
preserve the right to do so, as failure to comply with the procedures set forth
in this document or Section 262 may result in the loss of appraisal rights.
Stockholders of record who desire to perfect their appraisal rights must:
o hold shares of Class A common stock on the date of making a demand for
appraisal;
o continuously hold those shares through the effective time of the merger;
o not exchange his shares for the merger consideration;
o deliver a properly executed written demand for appraisal to Saratoga prior
to the vote by the stockholders of Saratoga on the merger;
o not vote in favor of the merger or consent to the merger in writing;
o file any necessary petition in the Delaware Chancery Court, as more fully
described below, within 120 days after the effective time of the merger;
and
o otherwise satisfy all of the conditions described more fully below and in
Annex C.
A record holder of shares of Class A common stock who makes the demand
described below with respect to his shares, who continuously is the record
holder of his shares through the effective time of the merger, who otherwise
complies with the statutory requirements of Section 262 and who neither votes
in favor of the merger nor consents to the merger in writing will be entitled,
if the merger is consummated, to receive payment of the fair value of his
shares of Class A common stock as appraised by the Delaware Chancery Court. All
references in Section 262 and in this summary of appraisal rights to a
"stockholder" or "holders of shares of Class A common stock" are to the record
holder or holders of shares of Class A common stock.
Under Section 262, not less than 20 days prior to the special meeting,
Saratoga is required to notify each stockholder eligible for appraisal rights
of the availability of appraisal rights. This document constitutes notice to
holders of Class A common stock that appraisal rights are available to them.
Stockholders of record who desire to perfect their appraisal rights must
satisfy all of the conditions set forth in this document. A written demand for
appraisal of any shares of Class A common stock must be filed with Saratoga
before the taking of the vote on the merger. This written demand must
reasonably inform Saratoga of the identity of the stockholder of record and of
the stockholder's intention to demand appraisal of the Class A common stock
held by the stockholder. This written demand for appraisal of shares must be in
addition to and separate from any proxy or vote abstaining from or voting
against the merger. Voting against, abstaining from voting on, failing to
return a proxy with respect to, or failing to vote on the merger will not
constitute a demand for appraisal within Section 262.
Stockholders who desire to perfect appraisal rights must not vote in favor
of the merger, consent to the merger in writing, or exchange their shares for
the merger consideration. Voting in favor of the merger or delivering a proxy
in connection with the special meeting, unless the proxy votes against, or
expressly abstains from the vote on, the approval of the merger, will
constitute a waiver of the stockholder's right of appraisal and will nullify
any written demand for appraisal submitted by the stockholder.
A demand for appraisal must be executed by or on behalf of the stockholder
of record, fully and correctly, as the stockholder's name appears on the
certificate or certificates representing the shares of Class A common stock. A
person having a beneficial interest in shares of Class A common stock that are
held of record in the name of another person, including a broker, fiduciary or
other nominee, must
82
<PAGE>
act promptly to cause the record holder to follow the steps summarized in this
document properly and in a timely manner to perfect any appraisal rights. If
the shares of Class A common stock are owned of record by a person other than
the beneficial owner, including a broker, fiduciary, trustee, guardian,
custodian or other nominee, the demand must be executed by or for the record
owner. If the shares of Class A common stock are owned of record by more than
one person, as in a joint tenancy or tenancy in common, the demand must be
executed by or for all joint owners. An authorized agent, including an agent
for two or more joint owners, may execute the demand for appraisal for a
stockholder of record; however, the agent must identify the record owner and
expressly disclose the fact that, in exercising the demand, this person is
acting as agent for the record owner. A record owner, including a broker,
fiduciary or other nominee, who holds shares of Class A common stock, may
perfect appraisal rights with respect to all or less than all shares held, and
in the case of a record owner who holds as a nominee for more than one other
stockholder may perfect appraisal rights for the shares held for all or less
than all beneficial owners of shares as to which the person is the record
owner. In this case, the written demand must set forth the number of shares
covered by the demand. Where the number of shares is not expressly stated, the
demand will be presumed to cover all shares of Class A common stock outstanding
in the name of the record owner. A stockholder who elects to perfect appraisal
rights should mail or deliver his or her written demand to: Saratoga Beverage
Group, Inc., 1000 American Superior Boulevard, Winter Haven, Florida 33884,
Attention: Secretary. The written demand for appraisal should specify the
stockholder's name and mailing address, the number of shares of Class A common
stock owned, and that the stockholder is demanding appraisal of his or her
shares. A proxy or vote against the merger will not constitute a demand. If the
demand is not physically received by Saratoga prior to the special meeting,
irrespective of when mailed, then the demand will not be duly made.
Within ten days after the effective time, the surviving corporation must
provide notice of the effective time to all stockholders who have complied with
Section 262. Within 120 days after the effective time, either the surviving
corporation or any stockholder who has complied with the required conditions of
Section 262 may file a petition in the Delaware Chancery Court, with a copy
served on the surviving corporation in the case of a petition filed by a
stockholder, demanding a determination of the fair value of the shares of all
dissenting stockholders. The surviving corporation does not currently intend to
file an appraisal petition and stockholders seeking to perfect appraisal rights
should not assume that the surviving corporation will file a petition or that
the surviving corporation will initiate any negotiations with respect to the
fair value of Saratoga shares. Accordingly, stockholders who desire to have
their shares appraised should initiate any petitions necessary for the
perfection of their appraisal rights within the time periods and in the manner
prescribed in Section 262. Within 120 days after the effective time, any
stockholder who has complied with the applicable provisions of Section 262 will
be entitled, upon written request, to receive from the surviving corporation a
statement setting forth the aggregate number of shares of Class A common stock
not voted in favor of the merger and with respect to which demands for
appraisal were received by Saratoga and the number of holders of the shares.
This statement must be mailed within 10 days after the written request for
appraisal rights has been received by the surviving corporation or within 10
days after expiration of the time for delivery of demands for appraisal under
Section 262, whichever is later.
If a petition for appraisal is duly filed by a stockholder and a copy
thereof is delivered to the surviving corporation, the surviving corporation
will then be obligated within 20 days to provide the Delaware Court of Chancery
with a duly verified list containing the names and addresses of all
stockholders who have demanded appraisal of their shares. After notice to such
stockholders, the Delaware Court of Chancery is empowered to conduct a hearing
upon the petition to determine those stockholders who have complied with
Section 262 and who have become entitled to appraisal rights under that
section. The Delaware Court of Chancery may require the stockholders who have
demanded payment for their shares to submit their stock certificates to the
Register in Chancery for a notation thereon of the pendency of the appraisal
proceedings; and if any stockholder fails to comply with such direction, the
Delaware Court of Chancery may dismiss the proceedings as to such stockholder.
83
<PAGE>
If a petition for an appraisal is timely filed, at the hearing on the
petition, the Delaware Chancery Court will determine which stockholders are
entitled to appraisal rights and will appraise the shares of Class A common
stock owned by the stockholders, determining the fair value of the shares
exclusive of any element of value arising from the accomplishment or
expectation of the merger, together with a fair rate of interest, if any, to be
paid upon the amount determined to be the fair value. In determining fair
value, the Delaware Chancery Court is to take into account all relevant
factors. The Delaware Chancery Court may permit discovery or other pretrial
proceedings. In Weinberger v. UOP, Inc., the Delaware Supreme Court discussed
the factors that could be considered in determining fair value in an appraisal
proceeding, stating that "proof of value by any techniques or methods which are
generally considered acceptable in the financial community and otherwise
admissible in court" should be considered, and that, "fair price obviously
requires consideration of all relevant factors involving the value of a
company." The Delaware Supreme Court stated that in making this determination
of fair value the court must consider market value, asset value, dividends,
earnings prospects, the nature of the enterprise and any other facts which are
known or which can be ascertained as of the date of the merger and which throw
any light on future prospects of the merged corporation. In Weinberger, the
Delaware Supreme Court stated that "elements of future value, including the
nature of the enterprise, which are known or susceptible of proof as of the
date of the merger and not the product of speculation, may be considered."
Section 262, however, provides that fair value is to be "exclusive of any
element of value arising from the accomplishment or expectation of the merger."
Stockholders considering seeking appraisal should recognize that the fair
value of their shares as determined under Section 262 could be more than, the
same as or less than the merger consideration to be received if they do not
seek appraisal of their shares. The cost of the appraisal proceeding may be
determined by the Delaware Chancery Court and taxed against the parties as the
Delaware Chancery Court deems equitable in the circumstances. Upon application
of a dissenting stockholder of Saratoga, the Delaware Chancery Court may order
that all or a portion of the expenses incurred by any dissenting stockholder in
connection with the appraisal proceeding, including without limitation,
reasonable attorneys' fees and the fees and expenses of experts, be charged pro
rata against the value of all shares of stock entitled to appraisal.
Any holder of shares of Class A common stock who has duly demanded
appraisal in compliance with Section 262 will not, after the effective time, be
entitled to vote for any purpose any shares subject to the demand or to receive
payment of dividends or other distributions on the shares, except for dividends
or distributions payable to stockholders of record at a date prior to the
effective time.
At any time within 60 days after the effective time, any stockholder will
have the right to withdraw the demand for appraisal and to accept the terms
offered in the merger; after this period, the stockholder may withdraw the
demand for appraisal only with the consent of the surviving corporation. If no
petition for appraisal is filed with the Delaware Chancery Court within 120
days after the effective time, stockholders' rights to appraisal will cease,
and all holders of shares of Class A common stock will be entitled to receive
the merger consideration. Inasmuch as the surviving corporation has no
obligation to file a petition, and has no present intention to do so, any
holder of shares of Class A common stock who desires a petition to be filed is
advised to file it on a timely basis.
Failure to take any required step in connection with the perfection of
appraisal rights may result in termination of appraisal rights. In view of the
complexity of these provisions of the DGCL, stockholders who are considering
exercising their rights under Section 262 should consult with their legal
advisors.
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INDEPENDENT AUDITORS
The consolidated balance sheets as of December 31, 1998 and December 31,
1999, and the related consolidated statements of income, stockholders' equity,
and cash flows for each of the two fiscal years in the period ended December
31, 1999, incorporated by reference in this document and included with this
document, have been audited by PricewaterhouseCoopers, LLP, independent
auditors. A representative of PricewaterhouseCoopers, LLP will be at the
special meeting to answer appropriate questions from stockholders and will have
the opportunity to make a statement, if so desired.
FUTURE STOCKHOLDER PROPOSALS
Saratoga will hold an annual meeting in the year 2000 only if the merger
has not already been completed. If the annual meeting is held, then
stockholders' proposals must be sent to the attention of the Secretary of
Saratoga at 1000 American Superior Boulevard, Winter Haven, Florida 33884 by
certified mail, returned receipt requested. Any proposal that a stockholder
wishes to have presented at the next annual meeting of Saratoga must be
received at the main office of Saratoga for inclusion in the proxy statement no
later than 120 days in advance of August 18, 2000; provided, however, that if
the 2000 Annual Meeting is held prior to July 19, 2000 or after September 17,
2000, Saratoga will notify stockholders of a revised date for submitting notice
to Saratoga.
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ANNEX A
- --------------------------------------------------------------------------------
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STOCK PURCHASE AGREEMENT AND
AGREEMENT AND PLAN OF MERGER
among
SARATOGA BEVERAGE GROUP, INC.
NCP-SBG RECAPITALIZATION CORP.
and
NCP-SBG, L.P.
-----------------------
Dated as of January 5, 2000
-----------------------
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TABLE OF CONTENTS
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ARTICLE I
MERGER; PURCHASE OF SHARES
1.1 Merger; Purchase of Shares ................................... A-1
1.2 Issuance of Purchased Shares and Cash Payment ................ A-2
1.3 Conversion or Cancellation of Shares ......................... A-2
1.4 Exchange of Certificates ..................................... A-3
1.5 Options; Warrants; 2000 Note ................................. A-4
1.6 Dissenting Shares ............................................ A-4
1.7 Certificate of Incorporation; By-Laws ........................ A-5
1.8 Directors and Officers of the Surviving Corporation .......... A-5
1.9 Effective Time ............................................... A-5
1.10 Closing ...................................................... A-5
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.1 Corporate Status, etc. ....................................... A-5
2.2 Authorization, etc. .......................................... A-6
2.3 No Conflicts; Consents ....................................... A-6
2.4 Capitalization ............................................... A-7
2.5 Investments .................................................. A-7
2.6 Undisclosed Liabilities, etc. ................................ A-7
2.7 Absence of Changes ........................................... A-8
2.8 Tax Matters .................................................. A-8
2.9 Assets ....................................................... A-9
2.10 Real Property ................................................ A-9
2.11 Material Contracts ........................................... A-9
2.12 Intellectual Property ........................................ A-10
2.13 Insurance .................................................... A-11
2.14 Litigation ................................................... A-11
2.15 Compliance with Laws and Instruments ......................... A-11
2.16 Environmental Matters ........................................ A-11
2.17 Employees, Labor Matters, etc. ............................... A-12
2.18 Employee Benefit Plans and Related Matters; ERISA ............ A-12
2.19 Product Liability ............................................ A-13
2.20 Brokers, Finders, etc. ....................................... A-14
2.21 SEC Reports and Financial Statements ......................... A-14
2.22 Proxy Statement; Exchange Act Schedules ...................... A-14
2.23 Required Vote by Company Stockholders ........................ A-14
2.24 Fairness Opinion ............................................. A-15
2.25 Takeover Statutes ............................................ A-15
2.26 Substantial Suppliers and Customers .......................... A-15
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF MERGERCO AND PURCHASER
3.1 Status; Authorization, etc. .................................. A-15
3.2 No Conflicts, etc. ........................................... A-15
3.3 Litigation ................................................... A-16
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3.4 Brokers, Finders, etc. .......................................... A-16
3.5 No Prior Business ............................................... A-16
3.6 Financing ....................................................... A-16
3.7 Proxy Statement; Exchange Act Schedules ......................... A-16
3.8 Beneficial Ownership of Shares .................................. A-16
3.9 Liabilities ..................................................... A-16
ARTICLE IV
COVENANTS OF THE COMPANY
4.1 Conduct of the Business ......................................... A-17
4.2 No Solicitation ................................................. A-17
4.3 Access and Information .......................................... A-18
4.4 Further Assurances .............................................. A-18
ARTICLE V
COVENANTS OF MERGERCO, PURCHASER AND THE COMPANY
5.1 Public Announcements ............................................ A-18
5.2 Further Actions ................................................. A-18
5.3 Company Stockholder Approval; Proxy Statement ................... A-19
5.4 Directors' and Officers' Insurance and Indemnification .......... A-20
5.5 Stockholder Litigation .......................................... A-21
5.6 Recapitalization ................................................ A-21
5.7 Certain Employee Matters ........................................ A-21
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Obligations of Each Party ......................... A-21
6.2 Conditions to Obligations of MergerCo and Purchaser ............. A-22
6.3 Conditions to Obligations of the Company ........................ A-23
ARTICLE VII
TERMINATION
7.1 Termination ..................................................... A-23
7.2 Effect of Termination ........................................... A-25
ARTICLE VIII
DEFINITIONS
8.1 Definition of Certain Terms ..................................... A-25
ARTICLE IX
MISCELLANEOUS
9.1 Survival ........................................................ A-32
9.2 Expenses ........................................................ A-32
9.3 Severability .................................................... A-32
9.4 Notices ......................................................... A-32
9.5 Entire Agreement ................................................ A-33
9.6 Counterparts; Headings .......................................... A-33
9.7 Governing Law, etc. ............................................. A-33
9.8 Binding Effect; No Third Party Beneficiaries .................... A-34
9.9 Assignment ...................................................... A-34
9.10 Amendment; Waivers, etc. ........................................ A-34
9.11 Attorneys' Fees ................................................. A-35
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EXHIBIT INDEX
Exhibit A Form of Amended and Restated Certificate of Incorporation of the Company.....
Exhibit B Form of Amended and Restated By-laws at the Company .........................
Exhibit C Form of Stockholders Agreement ..............................................
Exhibit D Form of Registration Rights Agreement .......................................
Exhibit E Form of Employment Agreement ................................................
Exhibit F Form of Consulting Agreement ................................................
Exhibit G Form of Voting Agreement ....................................................
ANNEX
Annex A List of Continuing Stockholders; Cashed Out Shares & Rollover Shares ........
</TABLE>
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STOCK PURCHASE AGREEMENT AND AGREEMENT AND PLAN OF MERGER, dated as of
January 5, 2000, among NCP-SBG, L.P., a Delaware limited partnership (the
"Purchaser"), NCP-SBG Recapitalization Corp., a Delaware corporation
("MergerCo"), and Saratoga Beverage Group, Inc., a Delaware corporation (the
"Company"). Capitalized terms used herein have the meanings ascribed in Section
8.1.
W I T N E S S E T H:
WHEREAS, the Board of Directors of MergerCo has approved, and deems it
advisable and in the best interests of the stockholders of MergerCo to
participate in the recapitalization (the "Recapitalization") of the Company,
upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of the Company, based upon the unanimous
recommendation of a special committee of independent directors of the Company
(the "Special Committee"), has approved, and deems it advisable and in the best
interests of the stockholders of the Company to consummate, the
Recapitalization of the Company, upon the terms and subject to the conditions
set forth herein;
WHEREAS, in furtherance of such Recapitalization, the Board of Directors
of the Company, based upon the unanimous recommendation of the Special
Committee, and the Board of Directors of MergerCo have each approved this
Agreement and the merger of MergerCo with and into the Company in accordance
with the terms of this Agreement and the Delaware General Corporation Law (the
"DGCL");
WHEREAS, in connection with the Recapitalization, Purchaser desires to
purchase and the Company desires to issue and sell to Purchaser shares of
common stock of the Company on the terms and conditions set forth in this
Agreement; and
WHEREAS, MergerCo has entered into voting agreements, dated as of the date
hereof (the "Voting Agreements"), with each of the Continuing Stockholders (as
defined herein), pursuant to which the Continuing Stockholders agree to vote
their shares of common stock of the Company in favor of the Merger (as defined
herein);
NOW, THEREFORE, in consideration of the foregoing premises and respective
covenants, representations, warranties and agreements made herein and of the
mutual benefits to be derived therefrom, and for other good and valuable
consideration the receipt and adequacy of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I.
MERGER; PURCHASE OF SHARES
1.1. Merger; Purchase of Shares. (a) On the terms and subject to the
conditions of this Agreement and in accordance with the applicable provisions
of the DGCL, at the Effective Time, MergerCo shall be merged (the "Merger")
with and into the Company and the separate corporate existence of MergerCo
shall cease. After the Merger, the Company shall continue as the surviving
corporation (sometimes hereinafter referred to as the "Surviving Corporation")
and shall continue to be governed by the laws of the State of Delaware. The
Merger shall have the effect as provided in the applicable provisions of the
DGCL. Without limiting the generality of the foregoing, upon the Merger, all
the rights, privileges, immunities, powers and franchises of the Company and
MergerCo shall vest in the Surviving Corporation and all restrictions,
obligations, duties, debts and liabilities of the Company and MergerCo shall be
the restrictions, obligations, duties, debts and liabilities of the Surviving
Corporation.
(b) On the terms and subject to the conditions of this Agreement,
immediately after the Effective Time, the Surviving Corporation shall, in
consideration for the payment of the Purchase Price, issue, transfer, deliver
and sell to Purchaser and Purchaser shall purchase and accept from the
Surviving Corporation (the "Stock Purchase") the Purchased Shares. The
"Purchase Price" shall mean
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$28,660,000, provided that if the full amount (the "Debt Commitment Amount") of
the debt financing contemplated by the letters referred to in Section 3.6(ii)
and (iii) is unavailable at the Effective Time from the financial institutions
party to such letters or from other financing sources on terms substantially
similar to the terms contained in such letters or on less favorable terms that
are acceptable to Purchaser, then the "Purchase Price" shall equal the sum of
(x) $28,660,000 and (y) 90% of the positive difference between (A) the Debt
Commitment Amount and (B) the amount of debt financing actually obtained at the
Effective Time, provided, further, that the "Purchase Price" shall not exceed
$38,660,000 under any circumstance. Purchaser shall provide written notice to
the Company two Business Days prior to the Effective Time of the Purchase
Price.
1.2. Issuance of Purchased Shares and Cash Payment. At the Closing (i)
the Surviving Corporation shall deliver to Purchaser certificates representing
the Purchased Shares, duly authorized and issued in blank, free and clear of
all Liens and (ii) Purchaser shall deliver or cause to be delivered to the
Surviving Corporation the Purchase Price by wire transfer of immediately
available funds, to an account or accounts designated at least three Business
Days prior to the Closing by the Company in a written notice to Purchaser.
1.3. Conversion or Cancellation of Shares. The manner of converting or
canceling shares of Company Common Stock and shares of common stock of MergerCo
in the Merger shall be as follows:
(a) At the Effective Time, each share of Class A Common Stock of the
Company, par value $.01 per share (the "Class A Common Stock") and Class B
Common Stock of the Company, par value $.01 per share (the "Class B Common
Stock", and together with the Class A Common Stock, the "Company Common Stock")
that is issued and outstanding immediately prior to the Effective Time (other
than shares that are held by Stockholders (the "Dissenting Stockholders")
exercising appraisal rights with respect to such shares pursuant to Section 262
of the DGCL) shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into the right to receive, without
interest:
(i) with respect to each such share held by any Non-Continuing
Stockholder, cash in an amount equal to the Per Share Merger Consideration;
(ii) with respect to each Cashed Out Share held by any Continuing
Stockholder, cash in an amount equal to the Per Share Merger Consideration;
and
(iii) with respect to each Rollover Share held by any Continuing
Stockholder, a number of shares of Surviving Corporation Common Stock equal
to the quotient of (x) the Per Share Merger Consideration divided by (y)
the Per Share Amount.
(b) Notwithstanding the foregoing, no fractions of a share of Surviving
Corporation Common Stock shall be issued in the Merger, but in lieu thereof
each holder of Company Common Stock otherwise entitled to a fraction of a share
of Surviving Corporation Common Stock shall, upon surrender of his or her
certificate or certificates, be entitled to receive an amount of cash (without
interest) determined by multiplying the Per Share Amount by the fractional
share interest to which such holder would otherwise be entitled.
(c) At the Effective Time, each share of Company Common Stock issued and
held in the Company's treasury immediately prior to the Effective Time shall,
by virtue of the Merger and without any action on the part of the holder
thereof, cease to be outstanding, shall be canceled and retired without payment
of any consideration therefor and shall cease to exist.
(d) At the Effective Time, each share of common stock, par value $.01 per
share, of MergerCo issued and outstanding immediately prior to the Effective
Time shall, by virtue of the Merger and without any action on the part of
MergerCo or the holders thereof, cease to be outstanding, shall be canceled and
retired without payment of any consideration therefor and shall cease to exist.
(e) At the Effective Time, the stock transfer books of the Company shall
be closed and there shall be no transfers on the stock transfer books of the
Surviving Corporation of shares of Company Common Stock that were outstanding
immediately prior to the Effective Time.
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1.4. Exchange of Certificates. (a) Prior to the Effective Time, MergerCo
shall designate the Company's registrar and transfer agent or such other bank
or trust company as may be approved in writing by the Company (which approval
shall not be unreasonably withheld), to act as exchange agent for the holders
of shares of Company Common Stock in connection with the Merger (the "Exchange
Agent"), to receive the certificates representing the shares of Surviving
Corporation Common Stock and the funds to which holders of shares of Company
Common Stock shall become entitled pursuant to this Article I. On or prior to
the Effective Time, the Company will deposit in trust with the Exchange Agent,
for the benefit of holders of Company Common Stock, (i) the funds necessary to
complete the payments contemplated by this Article I and (ii) the certificates
representing the shares of Surviving Corporation Common Stock to be issued
hereunder.
(b) At the Effective Time, the Surviving Corporation will instruct the
Exchange Agent to promptly, and in any event not later than three Business Days
following the Effective Time, mail (and to make available for collection by
hand) to each holder of record of a certificate or certificates, which
immediately prior to the Effective Time represented outstanding shares of
Company Common Stock, whose shares were converted pursuant to Section 1.3 into
the right to receive the Merger Consideration (i) a letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and
title to such certificates shall pass, only upon delivery of such certificates
to the Exchange Agent and shall be in such form and have such other provisions
as MergerCo and the Company may reasonably specify) and (ii) instructions for
use in effecting the surrender of such certificates in exchange for the Merger
Consideration (which shall provide that, at the election of the surrendering
holder, such certificates may be surrendered, and payment therefor collected,
by hand delivery). Upon surrender of such certificates for cancellation to the
Exchange Agent or to such other agent or agents as may be appointed by the
Company, together with such letter of transmittal, duly executed, the holder of
such certificates shall be entitled to receive in exchange therefor the Merger
Consideration specified in Section 1.3 for each share of Company Common Stock
formerly represented by such certificate, to be mailed (or made available for
collection by hand if so elected by the surrendering holder) within three
Business Days of receipt thereof, and the certificate so surrendered shall
forthwith be cancelled. If payment of the Merger Consideration is to be made to
a person other than the person in whose name the surrendered certificate is
registered, it shall be a condition of payment that the certificate so
surrendered shall be properly endorsed or shall be otherwise in proper form for
transfer and that the person requesting such payment shall have paid any
transfer and other taxes required by reason of the payment of the Merger
Consideration to a person other than the registered holder of the certificate
surrendered or shall have established to the satisfaction of the Surviving
Corporation that such tax either has been paid or is not applicable. Until
surrendered as contemplated by this Section 1.4, each certificate (other than
certificates representing Dissenting Shares) shall be deemed at any time after
the Effective Time to represent only the right to receive the Merger
Consideration as contemplated by this Section 1.4.
(c) In the event any certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such certificate to be lost, stolen or destroyed, the Exchange Agent will issue
in exchange for such lost, stolen or destroyed certificate the Merger
Consideration deliverable in respect thereof as determined in accordance with
this Article I, provided that the Person to whom the Merger Consideration is
paid shall, as a condition precedent to the payment thereof, give the Surviving
Corporation a bond in such sum as it may direct or otherwise indemnify the
Surviving Corporation in a manner satisfactory to it against any claim that may
be made against the Surviving Corporation with respect to the certificate
claimed to have been lost, stolen or destroyed.
(d) Any portion of the funds deposited with the Exchange Agent (and the
proceeds of any interest and other income received by the Exchange Agent in
respect of all such funds) and any certificates representing shares of
Surviving Corporation Common Stock that remain unclaimed by the former
stockholders of the Company one year after the Effective Time shall be
delivered to the Surviving Corporation. Any former stockholders of the Company
who have not theretofore complied
A-3
<PAGE>
with this Article I shall thereafter look only to the Surviving Corporation for
payment of any Merger Consideration that may be payable upon surrender of any
certificates such stockholder holds, as determined pursuant to this Agreement,
without any interest thereon.
(e) None of MergerCo, the Company, the Surviving Corporation, the Exchange
Agent or any other Person shall be liable to any former holder of shares of
Company Common Stock for any amount properly delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(f) Any payment or issuance made pursuant to this Section 1.4 shall be
subject to and made net of applicable withholding Taxes.
1.5. Options; Warrants; 2000 Note. (a) At or immediately prior to the
Effective Time, all options to purchase shares of Company Common Stock (each
such option, a "Company Stock Option") outstanding under the Company's 1993
Stock Option Plan, as amended, the Company's 1998 Stock Option Plan and any
other stock option (or other equity-related award) or compensation plan or
arrangement of the Company (collectively, the "Company Stock Option Plans"),
and any other outstanding Company Stock Options, whether or not exercisable or
vested, shall be repurchased or canceled, and the Surviving Corporation shall
pay each such holder at or promptly after the Effective Time for each such
option an amount in cash determined by multiplying (i) the excess, if any, of
the Per Share Merger Consideration over the per share exercise price of such
option by (ii) the number of shares of Company Common Stock such holder could
have purchased (assuming full vesting of all options) had such holder exercised
such options in full immediately prior to the Effective Time, such amount
subject to any required withholding. The Company shall use its best efforts to
obtain all necessary consents of the holders of Company Stock Options to the
cancellation or repurchase of such options.
(b) At or immediately prior to the Effective Time, all warrants to
purchase shares of Company Common Stock (each such warrant, a "Company Stock
Warrant") outstanding under the Warrant issued to Global Financial Group and
any other outstanding Company Stock Warrant, whether or not exercisable or
vested, shall be repurchased or canceled, and the Surviving Corporation shall
pay each such holder at or promptly after the Effective Time for each such
warrant an amount in cash determined by multiplying (i) the excess, if any, of
the Per Share Merger Consideration over the per share exercise price of such
warrant by (ii) the number of shares of Company Common Stock such holder could
have purchased (assuming full vesting of all warrants) had such holder
exercised such warrants in full immediately prior to the Effective Time, such
amount subject to any required withholding. The Company shall use its best
efforts to obtain all necessary consents of the holders of Company Stock
Warrants to the cancellation or repurchase of such warrants on the terms
provided in the preceding sentence.
(c) At or immediately prior to the Effective Time, the 2000 Note shall be
repurchased or canceled, and the Surviving Corporation shall pay the holder
thereof at or promptly after the Effective Time an amount in cash equal to (x)
the quotient of (I) 1.5 million plus a number equal to the amount of accrued
but unpaid interest on the 2000 Note through the Effective Time divided by (ii)
3.5, multiplied by (y) the Per Share Merger Consideration, such amount subject
to any required withholding. The Company shall use its best efforts to obtain
all necessary consents of the holder of the 2000 Note to the cancellation or
repurchase of the 2000 Note on the terms provided in the preceding sentence.
1.6. Dissenting Shares. Notwithstanding anything in this Agreement to the
contrary, shares of Company Common Stock that are issued and outstanding
immediately prior to the Effective Time and that are held by stockholders who
have perfected any dissenters' rights provided under the DGCL, if applicable
(the "Dissenting Shares"), shall not be converted into or be exchangeable for
the right to receive the Merger Consideration unless and until such holder
shall have failed to perfect or shall have effectively withdrawn or lost such
holder's right to appraisal and payment under the DGCL. If such holder shall
have so failed to perfect or shall have effectively withdrawn or lost such
right, such holder's shares shall thereupon be deemed to have been converted
into and to have become exchangeable for, at the Effective Time, the right to
receive the Merger Consideration, without any interest thereon.
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1.7. Certificate of Incorporation; By-Laws. (a) The certificate of
incorporation of the Company as in effect immediately prior to the Effective
Time shall, in accordance with the terms thereof and the DGCL, be amended and
restated as set forth in Exhibit A and, as so amended, shall be the certificate
of incorporation of the Surviving Corporation until duly amended in accordance
with the terms thereof and the DGCL.
(b) By-laws. The by-laws of the Company, as in effect immediately prior to
the Effective Time shall, in accordance with the terms thereof, the certificate
of incorporation and applicable law, be amended and restated as set forth in
Exhibit B and, as so amended, shall be the by-laws of the Surviving Corporation
until thereafter amended as provided by applicable law, the certificate of
incorporation of the Surviving Corporation and such by-laws.
1.8. Directors and Officers of the Surviving Corporation. (a) The
directors of MergerCo immediately prior to the Effective Time shall, from and
after the Effective Time, be the directors of the Surviving Corporation until
their successors shall have been duly elected or appointed and qualified or
until their earlier death, resignation or removal in accordance with the
Surviving Corporation's certificate of incorporation and by-laws.
(b) The officers of the Company immediately prior to the Effective Time
shall be the initial officers of the Surviving Corporation and shall hold
office until their respective successors are duly elected and qualified, or
their earlier death, resignation or removal.
1.9. Effective Time. On the Closing Date, MergerCo and the Company will
cause the appropriate certificate of merger (the "Certificate of Merger") to be
executed and filed with the Secretary of State of the State of Delaware (the
"Delaware Secretary of State") in such form and executed as provided in Section
251(c) of the DGCL. The Merger shall become effective on the date on which the
Certificate of Merger has been duly filed with the Delaware Secretary of State
(the "Effective Time").
1.10. Closing. The closing of the Merger and the Stock Purchase (the
"Closing") shall take place at the offices of Debevoise & Plimpton, 875 Third
Avenue, New York, New York, at 10:00 a.m., New York time, on a date to be
specified by the parties, which shall be no later than the second Business Day
after satisfaction or waiver of all of the conditions set forth in Article VI
hereof. The "Closing Date" shall be the date the Closing actually occurs.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As of the date hereof and as of the Closing Date, the Company represents
and warrants to MergerCo and Purchaser as follows:
2.1. Corporate Status, etc.
(a) Organization. Each of the Company and its Subsidiaries is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has full corporate power and authority to
conduct the Business and to own or lease and to operate its properties as and
in the places where the Business is conducted and such properties are owned,
leased or operated.
(b) Qualification. Each of the Company and its Subsidiaries is duly
qualified to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of its business or the properties owned or
leased by it makes such qualification necessary, except for such failures to be
so qualified and in good standing as would not have, individually or in the
aggregate, a Material Adverse Effect. Schedule 2.1(b) of the disclosure letter
delivered by the Company to the Purchaser concurrently with the execution and
delivery of this Agreement (the "Company Disclosure Letter") lists all
jurisdictions in which such qualification is necessary.
(c) Organizational Documents. Purchaser has been furnished complete and
correct copies of the certificate of incorporation and by-laws or other
organizational documents of the Company and each of its Subsidiaries, as
amended, modified or waived through and in effect on the date hereof (the
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<PAGE>
"Organizational Documents"). Each of the Organizational Documents is in full
force and effect. Neither the Company nor any of its Subsidiaries is in
violation of any of the provisions of its Organizational Documents. The minute
books of the Company and each of its Subsidiaries, which have heretofore been
made available to Purchaser, correctly reflect in all material respects for
each (i) all corporate actions taken by the stockholders that such stockholders
were required by applicable Law to take, (ii) all corporate actions taken by
the directors that such board of directors was required by applicable Law to
take and (iii) all other corporate actions taken by the stockholders and
directors (including by any committee of the board of directors).
2.2. Authorization, etc. (a) The Company has full corporate power and
authority to execute and deliver this Agreement and the Ancillary Agreements to
which it is a party, and, subject to the approval of its stockholders as
contemplated by Section 5.3 hereof, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the Ancillary Agreements to
which the Company is a party, the performance by the Company of its obligations
hereunder and thereunder, and the consummation of the transactions contemplated
hereby and thereby, have been duly recommended by the Special Committee and
duly authorized by the Board of Directors of the Company and, other than
adoption and approval of this Agreement by the holders of a majority, by vote,
of the outstanding shares of the Class A Common Stock and Class B Common Stock
voting as a single class (the "Company Stockholder Approval"), no other
corporate proceedings on the part of the Company are necessary to authorize the
execution and delivery of this Agreement and the Ancillary Agreements by the
Company and the consummation of the transactions contemplated hereby and
thereby other than the filing of the Certificate of Merger with the Delaware
Secretary of State. The Company has duly executed and delivered this Agreement
and the Ancillary Agreements to which it shall be a party. This Agreement and
each such Ancillary Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
2.3. No Conflicts; Consents. (a) Except as set forth on Schedule 2.3(a) of
the Company Disclosure Letter, neither the execution, delivery and performance
of this Agreement and the Ancillary Agreements by the Company, nor the
consummation of the transactions contemplated hereby and thereby, will conflict
with, contravene, result in a violation or breach of or default under (with or
without the giving of notice or the lapse of time or both), give rise to a
right or claim of termination, amendment, modification, vesting, acceleration
or cancellation of any right or obligation or loss of any material benefit
under, result in the creation of any Lien (or any obligation to create any
Lien) upon, or give rise to the creation of a right or claim by any Person
other than the Company to, any of the Assets under, (i) any Law applicable to
the Company or its Subsidiaries, or any of their respective properties or
assets, (ii) any provision of any of the Organizational Documents or (iii) any
Material Contract, or any other material agreement or instrument to which the
Company or its Subsidiaries is a party or by which any of their respective
properties or assets may be bound, except, in the case of clause (i) or (iii)
above, for such violations or defaults as would not have, individually or in
the aggregate, a Material Adverse Effect.
(b) Consents. Except as set forth on Schedule 2.3(b) of the Company
Disclosure Letter, no Consent of or with any court, arbitral tribunal,
administrative agency or commission or other governmental or regulatory
authority or administrative agency or commission, whether domestic or foreign,
(a "Governmental Authority") or other Person is required to be obtained by the
Company or any of its Subsidiaries in connection with the execution, delivery
and performance by the Company of this Agreement and the Ancillary Agreements
to which it shall be a party or the consummation of the transactions
contemplated hereby and thereby, except for (i) applicable requirements under
the Exchange Act, (ii) applicable requirements under the Securities Act, (iii)
the filing by the Company under the HSR Act described in Section 5.2(c), (iv)
the filing of the Certificate of Merger with the Delaware Secretary of State,
(v) with respect to Consents of or with any Person other than a Governmental
Authority, Consents which individually or in the aggregate are not material to
the Company and its Subsidiaries taken as a whole, and (vi) applicable
requirements under securities or "blue sky" laws of various states.
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2.4. Capitalization.
(a) Authorized Capital Stock of the Company. The authorized capital stock
of the Company consists of 50,000,000 shares of Class A Common Stock, 2,000,000
shares of Class B Common Stock, and 5,000,000 shares of Preferred Stock, par
value $.01 per share, of which 4,985,393, 522,955 and 0 shares, respectively,
were issued and outstanding as of the close of business on January 4, 2000. The
Class A Common Stock and Class B Common Stock are identical in their powers,
rights and preferences, except that each share of Class A Common Stock carries
one vote and each share of Class B Common Stock carries five votes. As of the
close of business on January 5, 2000 there were outstanding under the Company's
Stock Option Plans, options to acquire an aggregate of 1,126,600 shares of
Class A Common Stock and 0 shares of Class B Common Stock. Set forth on
Schedule 2.4(a) of the Company Disclosure Letter is a list of all such
outstanding options, their respective exercise prices, and scheduled vesting
and expiration dates. All issued and outstanding shares of Company Common Stock
have been duly authorized and validly issued and are fully paid and
nonassessable. As of the date hereof, the Company has outstanding (i) a
$1,500,000 5% Subordinated Convertible Note Due 2000, convertible at the option
of the holder at any time prior to maturity into shares of Class A Common Stock
at a conversion price of $3.50 per share (the "2000 Note"), and (ii) a warrant
to acquire 30,000 shares of Class A Common Stock for an exercise price of $3.50
per share (the "GFG Warrant").
(b) Ownership of Capital Stock of the Company and Subsidiaries; No Equity
Rights. Schedule 2.4(b) of the Company Disclosure Letter contains a complete
and correct description of the shares of stock or other equity interests that
are authorized, or issued and outstanding, of each of the Subsidiaries of the
Company. The Company is the record and beneficial owner of all of the
outstanding capital stock of each of its Subsidiaries, free and clear of any
Lien. There are no preemptive or similar rights on the part of any holders of
any class of securities of the Company or its Subsidiaries. Except for the 2000
Note and the GFG Warrant and except as set forth on Schedule 2.4(b), (i) there
are no outstanding shares of capital stock or other securities of either the
Company or its Subsidiaries, and (ii) no subscriptions, options, warrants,
instruments, conversion or other rights, agreements, commitments, arrangements
or understandings of any kind obligating the Company or its Subsidiaries,
contingently or otherwise, to issue or sell, or cause to be issued or sold, any
shares of capital stock of the Company or its Subsidiaries, or any securities
convertible into or exchangeable for any such shares, are outstanding, and no
authorization therefore has been given. Except as set forth on Schedule 2.4(b),
there are no outstanding contractual or other rights or obligations to or of
the Company or its Subsidiaries to (x) repurchase, redeem or otherwise acquire
any outstanding shares or other equity interests of the Company or its
Subsidiaries or (y) make any payment based upon the value or earnings of the
Company or its Subsidiaries. Each of the 2000 Note and the GFG Warrant permits,
by its terms, and without the consent of the holders thereof, the transactions,
contemplated by Section 1.5(b).
2.5. Investments. Except as set forth on Schedule 2.5 of the Company
Disclosure Letter, neither the Company nor any of its Subsidiaries owns any
shares of capital stock or other securities, including, without limitation, any
options, warrants, conversion or other rights, of, or interest in, any other
Person (other than, as to the Company, its Subsidiaries).
2.6. Undisclosed Liabilities, etc. Neither the Company nor any of its
Subsidiaries has any liabilities or obligations of any nature, whether known,
unknown, absolute, accrued, contingent or otherwise and whether due or to
become due, except (a) as set forth on Schedule 2.6 of the Company Disclosure
Letter, (b) as and to the extent disclosed on and adequately reserved against
in the Balance Sheet, or (c) for liabilities and obligations that (i) were
incurred after December 31, 1998 in the ordinary course of business and (ii)
individually and in the aggregate have not had a Material Adverse Effect. Since
December 31, 1998, there has not occurred or come to exist any Material Adverse
Effect or any event, occurrence, fact, condition, change, development or effect
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Except as disclosed on Schedule 2.6 of the Company
Disclosure Letter, there are no liabilities or obligations of the Company or
its Subsidiaries, contingent or otherwise, to any Person with respect to the
value of the Company Common Stock.
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2.7. Absence of Changes. Since December 31, 1998, except (a) as set forth
on Schedule 2.7 of the Company Disclosure Letter, (b) as disclosed in the
Company SEC documents filed and publicly available prior to the date hereof, or
(c) as specifically permitted after the date hereof pursuant to Section 4.1,
the Company and its Subsidiaries have conducted the Business in the ordinary
course consistent with past practice and there have not been any events,
changes or developments which, individually or in the aggregate, would have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a whole;
it being understood that the enactment of any regulation by the Food and Drug
Administration mandating pasteurization of fresh juice products shall not
constitute a Material Adverse Effect unless the Company would be unable to
comply with such new regulation without the occurrence of a Material Adverse
Effect.
2.8. Tax Matters. (a) Except as set forth on Schedule 2.8(a) of the
Company Disclosure Letter and for such failures as would not have, individually
or in the aggregate, a Material Adverse Effect, (i) all income and other
material Returns required to be filed by the Company or its Subsidiaries with
respect to Taxes have been filed, (ii) all such Returns are complete and
accurate in all material respects, (iii) all Taxes due by the Company or its
Subsidiaries (whether or not shown on any Return), chargeable as a Lien upon
the assets of the Company or its Subsidiaries, claimed to be due by any
Governmental Authority, or that may become due by the Company or its
Subsidiaries with respect to any period (or portion thereof) ending on or
before the Closing Date have been paid or have been adequately reserved for in
the books and records of the Company or its Subsidiaries in accordance with
GAAP and will be paid when due if due on or before the Closing, (iv) each of
the Company and its Subsidiaries has duly and timely withheld all Taxes
required to be withheld and such withheld Taxes have been either duly and
timely paid to the proper Governmental Authority or properly set aside in
accounts for such purpose and will be duly and timely paid to the proper
Governmental Authority if such payment is due before the Closing.
(b) Except as set forth on Schedule 2.8(b) of the Company Disclosure
Letter, (i) no agreement or other document waiving, extending, or having the
effect of waiving or extending, the statute of limitations, the period of
assessment or collection of any Taxes on or in respect of the Company or its
Subsidiaries, and no power of attorney with respect to any such Taxes has been
filed with any Governmental Authority which waiver, extension or power of
attorney is currently in effect and (ii) neither the Company nor its
Subsidiaries has requested or been granted an extension of time for filing any
Return to a date later than the date of this Agreement.
(c) Except as set forth on Schedule 2.8(c) of the Company Disclosure
Letter, no Returns of or in respect of the Company or its Subsidiaries are
currently under audit, examination or investigation by any Governmental
Authority. Except as set forth on Schedule 2.8(c) of the Company Disclosure
Letter, no Governmental Authority is now asserting or, to the knowledge of the
Company or any of its Subsidiaries threatening to assert against the Company or
its Subsidiaries any deficiency or claim for Taxes or any adjustment to Taxes,
and, to the knowledge of the Company or any of its Subsidiaries, no
circumstances exist to form the basis for asserting such a claim or deficiency.
(d) No amount will be required to be withheld under section 1445 of the
Code in connection with any of the transactions contemplated by this Agreement.
(e) Neither the Company nor its Subsidiaries, will, as a result of the
transactions contemplated by this Agreement, make or become obligated to make
any "parachute payment" as defined in Section 280G of the Code.
(f) Except as set forth on Schedule 2.8(f) of the Company Disclosure
Letter, no written claim against or in respect of the Company or any of its
Subsidiaries (other than a claim that has been finally settled) has ever been
made by any Governmental Authority in a jurisdiction where the Company or any
of its Subsidiaries, as the case may be, does not file Returns or pay or
collect Taxes in respect of a particular type of Tax imposed by that
jurisdiction, that the Company or any of its Subsidiaries is or may be subject
to an obligation to file Returns or pay or collect Taxes in respect of such Tax
in that jurisdiction.
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(g) Except as set forth on Schedule 2.8(g) of the Company Disclosure
Letter, neither the Company nor any of its Subsidiaries is liable for the Taxes
of any other Person (other than the Company and its Subsidiaries), whether
pursuant to United States Treasury Regulation section 1.1502-6 (or comparable
provision of state or local law), as a transferee or successor, by contract
(including, without limitation, any Tax allocation, sharing, indemnity or
similar agreement or arrangement) or otherwise.
(h) Except as set forth on Schedule 2.8(h) of the Company Disclosure
Letter, neither the Company nor any of its Subsidiaries has received or applied
for a Tax ruling, the receipt or failure of which to receive would have,
individually or in the aggregate, a Material Adverse Effect, or has entered
into a closing agreement pursuant to Section 7121 of the Code, or any
predecessor provision or similar provision of state or local law which closing
agreement currently is in effect.
(i) Except as set forth on Schedule 2.8(i) of the Company Disclosure
Letter, there are no outstanding adjustments for Tax purposes applicable to the
Company or any of its Subsidiaries as a result of changes in methods of
accounting, and no material elections for Tax purposes have been made except as
reflected in the Returns (i) with respect to the Company or any of its
Subsidiaries that are currently in force or (ii) by which the Company or any of
its Subsidiaries is bound.
(j) True, correct and complete copies of all income, and all material
franchise, sales, use, property and payroll Returns filed by or with respect to
the Company or any of its Subsidiaries for the past three years have been
provided to the Purchaser.
(k) The Company has elected for the 1998 taxable year to file Returns on a
consolidated basis with its Subsidiaries for U.S. federal income Tax purposes.
2.9. Assets. The Company and its Subsidiaries own, or otherwise have full,
exclusive, sufficient and legally enforceable rights to use, all of the
properties and assets (real, personal or mixed, tangible or intangible), used
or held for use in connection with, necessary for the conduct of, or otherwise
material to, the Business (the "Assets"), except for such failures to own or
have such rights to use the Assets as would not, individually or in the
aggregate, result in a Material Adverse Effect. The Company and its
Subsidiaries have good, valid and marketable title to, or in the case of leased
property have good and valid leasehold interests in, all Assets, including but
not limited to all such Assets reflected on the Balance Sheet or acquired since
the date thereof (except as disposed of in the ordinary course of business
consistent with past practice after the date thereof and in accordance with
this Agreement), in each case free and clear of any Lien, except Permitted
Liens. There are no Assets used in the operation of the Business that will not,
following the Closing, be owned by the Company or its Subsidiaries, or leased
or licensed to the Company or its Subsidiaries under valid current leases or
license arrangements. All tangible Assets currently being used in and material
to the Business are in good working order, except for normal wear and tear.
Schedule 2.9 of the Company Disclosure Letter identifies the location of all
tangible Assets that are owned by the Company or its Subsidiaries that are
material to the Business, including but not limited to buildings, machinery,
equipment, vehicles, inventory and real property.
2.10. Real Property. Except as set forth on Schedule 2.10(i) of the
Company Disclosure Letter, neither the Company nor its Subsidiaries owns any
real property. Either the Company or one of its Subsidiaries has good, valid
and marketable fee simple title to the Owned Real Property, free and clear of
any Liens other than Permitted Liens. Schedule 2.10(ii) of the Company
Disclosure Letter contains a complete and correct list of all Leases setting
forth the location and landlord for each Lease. Copies of such Leases have been
delivered to Purchaser. Either the Company or one of its Subsidiaries has valid
or subsisting leasehold interests in the Leased Real Property, free and clear
of any Liens other than Permitted Liens. No material damage or destruction has
occurred since December 31, 1998 with respect to any of the Company Real
Property.
2.11. Material Contracts. (a) Disclosure. Schedule 2.11(a) of the Company
Disclosure Letter contains a complete and correct list, as of the date hereof,
of all Material Contracts. The Company
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and its Subsidiaries have delivered to Purchaser complete and correct copies of
all written Material Contracts, and accurate descriptions of all material terms
of all oral Material Contracts, set forth or required to be set forth on
Schedule 2.11(a) of the Company Disclosure Letter.
(b) Enforceability. All Material Contracts are legal, valid, binding, in
full force and effect and enforceable against the Company or one of its
Subsidiaries, as the case may be, and, to the knowledge of the Company, each
other party thereto. Except as set forth on Schedule 2.11(b)(i) of the Company
Disclosure Letter, there does not exist under any Material Contract any
violation, breach or event of default, or event or condition that, after notice
or lapse of time or both, would constitute a violation, breach or event of
default thereunder, on the part of the Company, or its Subsidiaries or, to the
knowledge of the Company, any other Person, other than such violations,
breaches, events of default, or events or conditions that, individually and in
the aggregate, could not reasonably be expected to have or result in a Material
Adverse Effect. Except as set forth on Schedule 2.11(b)(ii) of the Company
Disclosure Letter, the enforceability of all Material Contracts will not be
affected in any manner by the execution, delivery or performance of this
Agreement, and no Material Contract contains any change in control or other
terms or conditions that will, with or without obtaining consent or waiver,
become applicable or inapplicable as a result of the consummation of the
transactions contemplated by this Agreement or the Ancillary Agreements.
2.12. Intellectual Property.
(a) Disclosure. Schedule 2.12(a) of the Company Disclosure Letter sets
forth a list of all issued patents, pending patent applications, issued
trademark registrations, pending trademark applications, issued copyright
registrations, and all material non-registered Intellectual Property owned,
licensed, used or held for use by the Company or any Subsidiary ("Listed
Intellectual Property"), specifying as to each, as applicable: (i) the nature
of such Listed Intellectual Property; (ii) the owner of such Listed
Intellectual Property; (iii) the jurisdictions in which such Listed
Intellectual Property has been issued or registered or in which an application
for such issuance or registration has been filed; (iv) the registration or
application numbers; and (v) the current status of such registration or
application. The Company or a Subsidiary holds good, valid and enforceable
right, title and interest, free and clear of any Liens, or has valid and
enforceable rights to use, all Listed Intellectual Property used in the conduct
of its Business. The Listed Intellectual Property includes all of the
Intellectual Property that is material to the Business.
(b) Licenses. Schedule 2.12(b) of the Company Disclosure Letter sets forth
a list of all licenses and other agreements, oral and written, as to which the
Company or any Subsidiary is a party (i) pursuant to which any Person is
authorized to use any Listed Intellectual Property, or (ii) pursuant to which
the Company or a Subsidiary holds or uses or is authorized to use any
Intellectual Property, except, in the case of this clause (ii), any
"shrink-wrap" software. To the knowledge of the Company, there is no material
pending or threatened bankruptcy, insolvency or similar proceeding with respect
to any party to such licenses or agreements, and no event has occurred which
(whether with or without notice, lapse of time or the happening or occurrence
of any other event) would constitute a material default by any party to such
licenses or agreements.
(c) No Infringement. Except as set forth on Schedule 2.12(c)(i) of the
Company Disclosure Letter, to the knowledge of the Company, no Person has
interfered with, infringed upon, misappropriated or otherwise come into
conflict with any Listed Intellectual Property. Except as set forth on Schedule
2.12(c) (ii) of the Company Disclosure Letter, to the knowledge of the Company
the conduct of the Business does not infringe or otherwise conflict with any
rights of any person in respect of any Intellectual Property.
(d) Protection. Except as set forth on Schedule 2.12(d) of the Company
Disclosure Letter, the Company and its Subsidiaries have taken all commercially
reasonable actions to ensure full protection of the Listed Intellectual
Property (including maintaining the secrecy of all confidential Intellectual
Property) under any applicable law.
(e) No Intellectual Property Litigation. No Listed Intellectual Property
is subject to any outstanding judgment, injunction, order, decree or agreement
restricting use thereof by the Company
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or any Subsidiary, except for such matters as, individually or in the
aggregate, have not had and do not have a Material Adverse Effect. Except as
set forth on schedule 2.12(e) of the Company Disclosure Letter, no Listed
Intellectual Property is or since January 1, 1996 has been the subject of any
pending or, to the knowledge of the Company, threatened Litigation.
(f) Calendar Function. The disclosure as to Year 2000 Compatibility issues
in the Company's Quarterly Report on Form 10-Q for the period ended September
30, 1999 is complete and correct in all material respects and does not omit to
state a material fact necessary to make the statements contained therein not
misleading.
2.13. Insurance. (a) Schedule 2.13 of the Company Disclosure Letter
contains a complete and correct list of all insurance policies maintained by or
on behalf of the Company or its Subsidiaries (the "Policies"). Purchaser has
been furnished with complete and correct copies of all Policies together with
all riders and amendments thereto. The Policies are in full force and effect,
and all premiums due thereon have been paid. The Company and its Subsidiaries
have complied in all material respects with the terms and provisions of the
Policies. The Company and its Subsidiaries have been and are adequately insured
with respect to their respective property and the conduct of their respective
business.
2.14. Litigation. Except as set forth on Schedule 2.14 of the Company
Disclosure Letter, there is no Litigation pending or, to the knowledge of the
Company, threatened, against the Company or its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
2.15. Compliance with Laws and Instruments.
(a) Compliance. Except as set forth in the Company SEC Documents or on
Schedule 2.15(a) of the Company Disclosure Letter, the Company and each of its
Subsidiaries is in compliance with all Laws applicable to it, and neither the
Company nor any of its Subsidiaries has received any notice alleging
non-compliance with any Law except, with reference to all the foregoing, where
the failure to be in compliance would not, individually or in the aggregate,
have a Material Adverse Effect.
(b) Governmental Approvals, etc. Schedule 2.15(b)(i) of the Company
Disclosure Letter contains a complete and correct list of all Governmental
Approvals and other Consents necessary for, or otherwise material to, the
conduct of the Business. Except as set forth on Schedule 2.15(b)(ii) of the
Company Disclosure Letter and such failures as would not have, individually or
in the aggregate, a Material Adverse Effect, all such Governmental Approvals
and other Consents have been duly obtained and are held by the Company and are
in full force and effect. The execution, delivery and performance of this
Agreement and the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby do not and will not violate any such
Governmental Approval or Consent, or result in any revocation, cancellation,
suspension, modification or nonrenewal thereof, except, with respect to
Consents of or with any Person other than a Governmental Authority, for such
violations, revocations, cancellations, suspensions, modifications or
nonrenewals that individually or in the aggregate are not and will not be
material to the Company and its Subsidiaries, taken as a whole.
2.16. Environmental Matters.
(a) Compliance with Environmental Law. Except as set forth on Schedule
2.16(a) of the Company Disclosure Letter and such failures as would not have,
individually or in the aggregate, a Material Adverse Effect, the Company and
each of its Subsidiaries have complied and are in compliance in all respects
with all applicable Environmental Laws pertaining to their respective
properties and Assets (including the Real Property) and the use and ownership
thereof, and to the operation of the Business. No violation by the Company or
its Subsidiaries of any applicable Environmental Law relating to any of the
properties and assets of the Company or its Subsidiaries or the use or
ownership thereof, or to the operation of the Business is being or has been
alleged, except for such violations or failures as would not have, individually
or in the aggregate, a Material Adverse Effect. Except as set forth on Schedule
2.16(a) of the Company Disclosure Letter and for such failures
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to be in possession and compliance as would not, individually or in the
aggregate, result in a Material Adverse Effect, the Company and its
Subsidiaries are in possession of, and in compliance with, all permits,
authorizations and consents required under applicable Environmental Laws.
(b) Other Environmental Matters. (i) None of the Company, its Subsidiaries
or any other Person, has caused or taken any action that will result in, and
neither the Company nor its Subsidiaries is subject to, any liability relating
to (x) the environmental conditions on, under, or about the Real Property or
other properties or assets currently or formerly owned, leased or operated by
the Company, its Subsidiaries or any predecessor thereto, including without
limitation, the air, soil and groundwater conditions at such properties or (y)
the past or present use, management, handling, transport, treatment,
generation, storage, disposal or Release of any Hazardous Materials.
(ii) No Environmental Claims have been asserted against the Company, its
Subsidiaries, or, to the knowledge of the Company, any predecessor in interest,
nor does the Company have knowledge or written notice of any threatened or
pending Environmental Claim against the Company, its Subsidiaries or any
predecessor in interest.
(iii) Purchaser has been furnished with all material information,
including, without limitation, all studies, analyses, reports and
investigations, in the possession, custody or control of the Company or its
agents or otherwise known to the Company or its Subsidiaries relating to (x)
the environmental conditions on, under or about the Real Property or other
properties or assets currently or formerly owned, leased or operated by the
Company, its Subsidiaries or any predecessor in interest thereto, and (y) any
Hazardous Materials used, managed, handled, transported, treated, generated,
stored or Released by the Company, its Subsidiaries or any other Person on,
under, about or from any of the Real Property, or otherwise in connection with
the use or operation of any of the properties and assets of the Company or its
Subsidiaries or the Business.
2.17. Employees, Labor Matters, etc. Except as set forth on Schedule 2.17
of the Company Disclosure Letter, neither the Company nor any of its
Subsidiaries is a party to or bound by any collective bargaining agreement, and
there are no labor unions or other organizations representing, purporting to
represent or attempting to represent any employees employed by the Company or
its Subsidiaries. Since December 31, 1998, there has not occurred or, to the
Company's knowledge, been threatened any strike, slowdown, picketing, work
stoppage, concerted refusal to work overtime or other similar labor activity
with respect to any employees of the Company or its Subsidiaries that would,
individually or in the aggregate, have a Material Adverse Effect. Except as set
forth on Schedule 2.17 of the Company Disclosure Letter, there are no material
labor disputes currently subject to any grievance procedure, arbitration or
litigation and there is no representation petition pending or, to the knowledge
of the Company, threatened with respect to any employee of the Company or its
Subsidiaries. Except as set forth on Schedule 2.17 of the Company Disclosure
Letter, the Company and its Subsidiaries have complied with all applicable Laws
pertaining to the employment or termination of employment of their respective
employees, including, without limitation, all such Laws relating to labor
relations, equal employment opportunities, fair employment practices,
prohibited discrimination or distinction and other similar employment
activities, except where the failure to so comply would not, individually or in
the aggregate, result in a Material Adverse Effect.
2.18. Employee Benefit Plans and Related Matters; ERISA.
(a) Employee Benefit Plans. Schedule 2.18(a) of the Company Disclosure
Letter sets forth a complete and correct list of each Plan. With respect to
each such Plan, Purchaser has been furnished with complete and correct copies
of: (i) such Plan, if written, or a description of such Plan if not written,
and (ii) to the extent applicable to such Plan, all trust agreements, insurance
contracts or other funding arrangements, the two most recent actuarial and
trust reports, the two most recent Forms 5500 required to have been filed with
the IRS and all schedules thereto, the most recent IRS determination letter,
the current summary plan description, any communication received from or sent
to the IRS, the Pension Benefit Guaranty Corporation or the Department of Labor
indicating that the Company or any of its Subsidiaries has or may have a
material liability (including, to the Company's knowledge, any existing written
description of any oral communication), any actuarial study of any
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post-employment life or medical benefits provided under any such Plan, if any,
statements or other communications regarding withdrawal or other multi employer
plan liabilities, if any, and all material amendments and modifications to any
such document. Neither the Company nor any of its Subsidiaries has communicated
to any Employee any intention or commitment to modify any Plan or to establish
or implement any other employee or retiree benefit or compensation plan or
arrangement.
(b) Qualification. Except as set forth on Schedule 2.18(b) of the Company
Disclosure Letter, each Plan intended to be qualified under Section 401(a) of
the Code, and the trust (if any) forming a part thereof, has received a
favorable determination letter from the IRS as to its qualification under the
Code and to the effect that each such trust is exempt from taxation under
Section 501(a) of the Code, and nothing has occurred since the date of such
determination letter that could reasonably be expected to adversely affect such
qualification or tax-exempt status.
(c) Compliance; Liability. (i) Neither the Company nor any of its
Subsidiaries has been involved in any transaction that could cause the Company
or any of its Subsidiaries or, following the Closing, Purchaser, to be subject
to material liability under Section 4069 or 4212 of ERISA. Neither the Company
nor any of its Subsidiaries has incurred (either directly or indirectly,
including as a result of an indemnification obligation) any material liability
under or pursuant to Title I or IV of ERISA or the penalty, excise Tax or joint
and several liability provisions of the Code relating to employee benefit plans
and no event, transaction or condition has occurred or exists that could result
in any such material liability to the Company or any of its Subsidiaries or,
following the Closing, Purchaser or any of its Affiliates. All contributions
and premiums required to have been paid by the Company or its Subsidiaries to
any employee benefit plan (within the meaning of Section 3(3) of ERISA) under
the terms of any such plan or its related trust, insurance contract or other
funding arrangement, or pursuant to any applicable Law (including ERISA and the
Code) or collective bargaining agreement have been paid within the time
prescribed by any such plan, arrangement, applicable Law, or agreement.
(ii) Except as set forth on Schedule 2.18(c)(ii) of the Company Disclosure
Letter, each of the Plans has been operated and administered in all material
respects in compliance with its terms, all applicable Laws and all applicable
collective bargaining agreements. There are no material pending or, to the
knowledge of the Company, material threatened claims by or on behalf of any of
the Plans, by any Employee or otherwise involving any such Plan or the assets
of any Plan (other than routine claims for benefits, all of which have been
fully reserved for on the regularly prepared balance sheets of the Company or
its Subsidiaries).
(iii) No Plan is a "multiemployer plan" within the meaning of Section
4001(a)(3) of ERISA or a "multiple employer plan" within the meaning of Section
4063 or 4064 of ERISA.
(iv) No Plan is subject to Section 412 of the Code or Section 302 or Title
IV of ERISA.
(v) No Employee is or will become entitled to post-employment benefits of
any kind by reason of employment with the Company or its Subsidiaries,
including, without limitation, death or medical benefits (whether or not
insured), other than (x) coverage mandated by Section 4980B of the Code, or (y)
retirement benefits payable under any Plan qualified under Section 401(a) of
the Code. Except as set forth on Schedule 2.18(c) of the Company Disclosure
Letter, the consummation of the transactions contemplated by this Agreement and
the Ancillary Agreements will not result in an increase in the amount of
compensation or benefits or the acceleration of the vesting or timing of
payment of any compensation or benefits payable to or in respect of any
Employee.
2.19. Product Liability. Except as set forth on Schedule 2.19 of the
Company Disclosure Letter, neither the Company nor its Subsidiaries has any
liability or obligation of any nature (whether known or unknown, accrued,
absolute, contingent or otherwise, and whether due or to become due), whether
based on strict liability, negligence, breach of warranty (express or implied),
breach of contract or otherwise, in respect of any product, component or other
item manufactured, sold, designed or produced prior to the Closing by or on
behalf of the Company or its Subsidiaries or any predecessor
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thereto, that (i) is not fully and adequately covered by policies of insurance
or by indemnity, contribution, cost sharing or similar agreements or
arrangements by or with other Persons and (ii) is not otherwise fully and
adequately reserved against as reflected in the Financial Statements.
2.20. Brokers, Finders, etc. Except for Schroder & Co. Inc., whose fees
shall be paid by the Company, neither the Company nor any of its Subsidiaries
has retained any broker, finder or investment banker or other intermediary in
connection with the transactions contemplated herein so as to give rise to any
claim against Purchaser, the Company or its Subsidiaries for any brokerage,
finder's or investment banker's commission, fee or similar compensation.
2.21. SEC Reports and Financial Statements. The Company has timely filed
with the SEC, any applicable state securities authorities and any other
Governmental Authority all forms and documents required to be filed by it since
January 1, 1996 (collectively, the "Company Reports") and has heretofore made
available to Purchaser (i) its Annual Reports on Form 10-K or Form 10-KSB, as
the case may be, for the last three fiscal years, (ii) its Quarterly Reports on
Form 10-Q for the periods ended March 31, 1999, June 30, 1999, and September
30, 1999, (iii) all proxy statements relating to meetings of Stockholders since
January 1, 1996 (in the form mailed to Stockholders) and (iv) all other forms,
reports and registration statements filed by the Company with the SEC since
January 1, 1996 (other than registration statements on Form S-8 or Form 8-A,
filings on Form T-1 or preliminary materials and registration statements in
forms not declared effective). The documents described in clauses (i)-(iv)
above (whether filed before, on or after the date hereof) are referred to in
this Agreement collectively as the "Company SEC Documents". As of their
respective dates, the Company Reports (a) did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and (b) complied in
all material respects with the applicable requirements of Law, including in the
case of SEC filings, the Exchange Act and the Securities Act, as the case may
be, and the applicable rules and regulations of the SEC thereunder. The
consolidated financial statements included in the Company SEC Documents have
been prepared in accordance with GAAP applied on a consistent basis during the
periods involved (except as otherwise noted therein and except that the
quarterly financial statements are subject to year-end adjustment and do not
contain all footnote disclosures required by GAAP) and fairly present in all
material respects the consolidated financial position and the consolidated
results of operations and cash flows of the Company and its consolidated
Subsidiaries as at the dates thereof and for the periods presented therein.
2.22. Proxy Statement; Exchange Act Schedules. (a) The Proxy Statement
(and any amendment thereof or supplement thereto) at the date mailed to the
Stockholders and at the time of the Special Meeting, (i) will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading and (ii)
will comply in all material respects with the provisions of the Exchange Act
and the rules and regulations thereunder; except that no representation is made
by the Company with respect to statements made in the Proxy Statement based on
information supplied by MergerCo or Purchaser specifically for inclusion in the
Proxy Statement.
(b) Any Schedule 14A or 13E-3 and any related schedules (and any amendment
or supplement to any of the foregoing) filed with the SEC at the date so filed
(i) will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading and (ii) will comply in all material respects with the
provisions of the Exchange Act and the rules and regulations thereunder; except
that no representation is made by the Company with respect to statements made
in any such document based on information supplied by MergerCo or Purchaser
specifically for inclusion therein.
2.23. Required Vote by Company Stockholders. The Company Stockholder
Approval is the only vote of any class of capital stock of the Company that is,
and no separate class vote by the holders of either the Class A Common Stock or
the Class B Common Stock is, required by the DGCL or the Organizational
Documents to adopt this Agreement and approve the transactions contemplated
hereby.
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2.24. Fairness Opinion. The Company has received from Schroder & Co. Inc.
(the "Financial Advisor") and provided to Purchaser on or prior to the date
hereof, an executed copy of its opinion (the "Fairness Opinion") that the
Merger Consideration to be received by the Stockholders in the Merger is fair,
from a financial point of view, to such holders. The Company has been
authorized by the Financial Advisor to include the Fairness Opinion in the
Proxy Statement and has not been notified by the Financial Advisor that the
Fairness Opinion has been withdrawn or modified.
2.25. Takeover Statutes. No "Fair price," "Moratorium," "control share
acquisition" or other similar anti-takeover statute or regulation enacted under
state or federal laws in the United States, applicable to the Company or any of
its Subsidiaries is applicable to the execution, delivery and performance of
this Agreement or the consummation of the Merger or the other transactions
contemplated by this Agreement.
2.26. Substantial Suppliers and Customers. Except as set forth on Schedule
2.26 of the Company Disclosure Letter, since December 31, 1998 none of the top
ten (10) suppliers (by dollar volume) or the top ten (10) customers (by dollar
volume) of the Company and its Subsidiaries has substantially reduced the use
or supply of the products or goods made available for purchase by the Company
and its Subsidiaries in their business or has ceased, or, to the Company's
knowledge, threatened to cease, to use or to supply such products or goods, nor
does the Company have any reason to believe that any such supplier or customer
will do so.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MERGERCO AND PURCHASER
As of the date hereof and as of the Closing Date, MergerCo and Purchaser
jointly and severally represent and warrant to the Company as follows:
3.1. Status; Authorization, etc. MergerCo is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Purchaser is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware. Each of MergerCo
and Purchaser has all requisite power and authority to execute and deliver this
Agreement and the Ancillary Agreements, to perform its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the Ancillary
Agreements to which MergerCo or Purchaser is a party, and the consummation of
the transactions contemplated thereby, have been duly authorized by all
requisite action of MergerCo and Purchaser. Each of MergerCo and Purchaser has
duly executed and delivered this Agreement and the Ancillary Agreements to
which it is a party. This Agreement and each of the Ancillary Agreements to
which MergerCo and Purchaser are a party constitute the valid and legally
binding obligations of MergerCo and Purchaser, enforceable against MergerCo and
Purchaser in accordance with its terms.
3.2. No Conflicts, etc. (a) The execution, delivery and performance by
each of MergerCo and Purchaser of this Agreement and the Ancillary Agreements
to which it will be a party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not conflict with, contravene,
result in a violation or breach of or default under (with or without the giving
of notice or the lapse of time, or both), give rise to a right or claim of
termination, amendment, modification, vesting, acceleration or cancellation of
any right or obligation or loss of any material benefit under, result in the
creation of any Lien (or any obligation to create any Lien) upon, or give rise
to the creation or claim by any Person other than MergerCo or Purchaser to any
of the properties or assets of MergerCo or Purchaser under, (i) any provision
of any organizational document of MergerCo or Purchaser, (ii) any Law
applicable to MergerCo or Purchaser, or any of their respective properties or
assets or (iii) any contract, or any other agreement or instrument to which
either MergerCo or Purchaser is a party or by which any of their respective
properties or assets may be bound.
(b) Consents. No Consent of or with any Governmental Authority or other
Person is required or advisable to be obtained by MergerCo or Purchaser in
connection with the execution, delivery and performance by MergerCo and
Purchaser of this Agreement and the Ancillary Agreements or
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consummation of the transactions contemplated hereby and thereby, except for
(i) the filing by the "ultimate parent entity" of Purchaser and MergerCo under
the HSR Act described in Section 5.2(c), (ii) applicable requirements under the
Exchange Act, (iii) applicable requirements under the Securities Act, (iv) the
filing of the Certificate of Merger with the Delaware Secretary of State, (v)
applicable requirements under securities or "blue sky" laws of various states,
and (vi) such other consents, approvals, orders, authorizations, notifications,
registrations, dec larations and filings (x) required to be obtained or made by
the Company or any of its Subsidiaries or (y) the failure of which to be
obtained or made would not have a material adverse effect on the business,
results of operations or financial condition of MergerCo, taken as a whole, or
materially impair or delay the consummation of the transactions contemplated by
this Agreement.
3.3. Litigation. There is no litigation pending or, to the knowledge of
MergerCo or Purchaser, threatened, against MergerCo or Purchaser that could
reasonably be expected to have or result in a material adverse effect on the
ability of MergerCo or Purchaser to consummate the transactions contemplated by
this Agreement.
3.4. Brokers, Finders, etc. Except for the transaction fee payable to
North Castle Partners L.L.C. pursuant to the Consulting Agreement, neither
MergerCo nor Purchaser has retained any broker, finder or investment banker or
other intermediary in connection with the transactions contemplated herein so
as to give rise to any claim against the Company or any of its Subsidiaries for
any brokerage, finder's or investment banker's commission, fee or similar
compensation.
3.5. No Prior Business. MergerCo has not engaged in any business or
activity of any kind, or entered into any agreement or arrangement with any
person or any entity or incurred, directly or indirectly, any material
liabilities or obligations, other than in connection with the transactions
contemplated hereby, and was formed for the purpose of effecting the
Recapitalization.
3.6. Financing. Purchaser has delivered to the Company (i) a complete and
correct copy of a commitment letter from North Castle Partners II, L.P. (the
"Fund"), whereby the Fund has committed, upon the terms and subject to the
conditions set forth therein, to provide equity financing to Purchaser in
respect of the transactions contemplated hereby up to $38,660,000, (ii) a
complete and correct copy of a commitment letter from Bank of America, N.A. and
Banc of America Securities, whereby such financial institution has committed,
upon the terms and subject to the conditions set forth therein, to provide debt
financing in the amount of $30 million and (iii) a complete and correct copy of
a letter from Key Mezzanine Capital Fund I, L.P. expressing its intention upon
the terms and subject to the conditions set forth therein, to provide debt
financing in the amount of $10 million.
3.7. Proxy Statement; Exchange Act Schedules. (a) None of the information
supplied in writing by MergerCo or Purchaser specifically for inclusion in the
Proxy Statement (including any amendments thereof or supplements thereto) will,
at the date mailed to stockholders or at the time of the Special Meeting,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
(b) None of the information supplied in writing by MergerCo or Purchaser
specifically for inclusion in any Schedule 14A or 13E-3 and any related
schedules (and any amendment or supplement to any of the foregoing) will, at
the date such documents are filed with the SEC, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3.8. Beneficial Ownership of Shares. MergerCo does not "beneficially own"
(as defined in Rule 13d-3 under the Exchange Act) more than 1% of the
outstanding shares of the Company Common Stock or any securities convertible
into or exchangeable for the Company Common Stock.
3.9. Liabilities. Except as set forth herein, MergerCo has no obligations
of any nature, whether known, unknown, absolute, accrued, contingent or
otherwise and whether due or to become due.
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ARTICLE IV
COVENANTS OF THE COMPANY
4.1. Conduct of the Business. On and after the date hereof until the
Closing Date, except as expressly required by this Agreement, as disclosed on
Schedule 4.1 of the Company Disclosure Letter or as otherwise expressly
consented to by Purchaser in writing, the Company and its Subsidiaries shall:
(i) carry on the Business in the ordinary course of business in
substantially the same manner as heretofore conducted, and use commercially
reasonable efforts to (x) preserve intact its present business
organization, (y) keep available the services of its present officers,
employees and consultants, and (z) preserve intact its relationships with
customers, suppliers and others having business dealings with it, to the
end that its goodwill and going business shall be in all material respects
unimpaired following the Closing;
(ii) promptly advise Purchaser in writing of any event, occurrence, fact,
condition, change, development or effect that, individually or in the
aggregate, could reasonably be expected to have or result in a Material
Adverse Effect or a breach of this Section 4.1; it being understood that
the enactment of any regulation by the Food and Drug Administration
mandating pasteurization of fresh juice products shall not constitute a
Material Adverse Effect unless the Company would be unable to comply with
such new regulation without the occurrence of a Material Adverse Effect;
(iii) not take any action or omit to take any action within its
reasonable control, which action or omission would result in a breach of
any of the representations and warranties set forth in Article II; it being
agreed that the actions of (x) entering into contracts to purchase fruit in
the ordinary course consistent with past practice and (y) making and
committing to make capital expenditures not in excess of $1 million in the
aggregate in accordance with the Company's budget for the fiscal year 2000,
which has been provided to Purchaser, shall not be deemed breaches of this
Section 4.1(iii).
(iv) not agree or otherwise commit to take any of the actions proscribed
by the foregoing paragraphs (i) through (iii); and
(v) conduct all Tax affairs relating to it only in the ordinary course of
business, and in good faith in substantially the same manner as such
affairs would have been conducted if this Agreement had not been entered
into.
4.2. No Solicitation. (a) The Company shall not, nor shall it permit any
of its Subsidiaries to, nor shall it authorize or permit any of its directors,
officers or employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it or any of its Subsidiaries
to, directly or indirectly through another person, (i) solicit, initiate or
encourage (including by way of furnishing information), or take any other
action designed to facilitate, any inquiries or the making of any proposal
which constitutes a Company Takeover Proposal or (ii) negotiate with respect
to, agree to or endorse any Company Takeover Proposal; provided, however, that
if and to the extent that the Board of Directors of the Company determines in
good faith, after consultation with outside counsel, that it is necessary to do
so in order to act in a manner consistent with its fiduciary duties to the
Stockholders under applicable law, the Company may, in response to any Company
Takeover Proposal which was not solicited by it and which did not otherwise
result from a breach of this Section 4.2(a), and subject to providing prior
written notice of its decision to take such action to Purchaser and compliance
with Section 4.2(c), (x) furnish information with respect to the Company and
its Subsidiaries to any person making a Company Takeover Proposal pursuant to a
customary confidentiality agreement (as determined by the Company based on the
advice of its outside counsel) and (y) participate in discussions or
negotiations regarding such Company Takeover Proposal.
(b) Except as expressly permitted by this Section 4.2, neither the Board
of Directors of the Company, the Special Committee nor any other committee
shall (i) withdraw, modify or, following a request by Purchaser to do so, fail
to reconfirm, or propose publicly to withdraw, modify or fail to reconfirm, in
a manner adverse to MergerCo or Purchaser, the approval or recommendation by
such
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Board of Directors or such committee of the Merger or this Agreement, (ii)
approve or recommend, or propose publicly to approve or recommend any Company
Takeover Proposal, or (iii) cause the Company to enter into any letter of
intent, agreement in principle, acquisition agreement or other similar
agreement (each, a "Company Acquisition Agreement") related to any Company
Takeover Proposal. Notwithstanding the foregoing, the Board of Directors of the
Company may take such actions if it determines in good faith, based upon the
recommendation of the Special Committee and after consultation with outside
counsel, that in light of a Company Superior Proposal it is necessary to do so
in order to act in a manner consistent with its fiduciary duties to the
Stockholders under applicable law; provided, that it may only take such actions
at a time that is after the third Business Day following Purchaser's receipt of
written notice advising Purchaser that the Board of Directors of the Company is
prepared to accept a Company Superior Proposal, specifying the material terms
and conditions of such Company Superior Proposal, all of which information will
be kept confidential by Purchaser in accordance with the terms of the
confidentiality agreement between the Company and North Castle.
(c) In addition to the obligations of the Company set forth in paragraphs
(a) and (b) of this Section 4.2, the Company shall immediately advise Purchaser
of any request for information or of any Company Takeover Proposal and the
material terms and conditions of such request or Company Takeover Proposal. The
Company will keep Purchaser reasonably informed of the status and details
(including amendments or proposed amendments) of any such request or Company
Takeover Proposal.
(d) Nothing contained in this Section 4.2 shall prohibit the Company from
taking and disclosing to its Stockholders a position contemplated by Rules
14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to the Company's Stockholders if, in the good faith judgment of the
Board of Directors of the Company, after consultation with outside counsel,
failure to so disclose would be inconsistent with its obligations under
applicable law; provided, however, that, neither the Company nor its Board of
Directors nor any committee thereof shall withdraw or modify, or propose
publicly to withdraw or modify, its position with respect to this Agreement or
the Merger or approve or recommend, or propose publicly to approve or
recommend, a Company Takeover Proposal except to the extent permitted by
Section 4.2(b).
4.3. Access and Information. From the date hereof to the Closing, the
Company and its Subsidiaries shall give Purchaser and its accountants, counsel,
consultants, employees and agents, full, complete and timely access during
normal business hours to, and furnish them with all documents, records, work
papers, tax returns and information with respect to, all of the Company's and
its Subsidiaries' properties, Assets, books, Material Contracts, reports,
records and senior management personnel, as Purchaser shall from time to time
reasonably request. The Company and its Subsidiaries shall keep Purchaser and
its representatives informed as to the affairs of the Business.
4.4. Further Assurances. Following the Closing, the Company and its
Subsidiaries shall execute and deliver such additional instruments, documents,
conveyances or assurances and take such other actions as shall be necessary, or
otherwise reasonably requested by Purchaser, to confirm and assure the rights
and obligations provided for in this Agreement and the Ancillary Agreements,
and render effective the consummation of the transactions contemplated hereby
and thereby.
ARTICLE V
COVENANTS OF MERGERCO, PURCHASER AND THE COMPANY
5.1. Public Announcements. Prior to the Closing, except as required by
applicable Law, no party shall, nor shall permit its Affiliates to, make any
public announcement in respect of this Agreement or the transactions
contemplated hereby without the prior written consent of the other parties.
5.2. Further Actions. (a) From the date hereof to the Closing, each party
agrees to use commercially reasonable efforts to take all actions and to do all
things necessary or appropriate to consummate the transactions contemplated
hereby and by the Ancillary Agreements as promptly as possible, including,
without limitation: (i) filing or supplying all applications, notifications and
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information required to be filed or supplied by it pursuant to applicable Law,
(ii) obtaining all Consents and Governmental Approvals necessary or appropriate
to be obtained by it in order to consummate transactions contemplated hereby
and thereby, (iii) providing all information necessary or appropriate to the
Company's obtaining new senior and mezzanine financing arrangements as
contemplated hereby, and (iv) coordinating and cooperating with the other
parties in exchanging such information and supplying such reasonable assistance
as may be reasonably requested by the other parties.
(b) At all times prior to the Closing, each party shall promptly notify
the other parties in writing of any fact, condition, event or occurrence that
will or is reasonably likely to result in the failure of any of the conditions
contained in Article VI to be satisfied.
(c) Purchaser and MergerCo on the one hand, and the Company on the other
hand, shall use their respective reasonable efforts to resolve such objections,
if any, as may be asserted with respect to the transactions contemplated hereby
under the laws, rules, guidelines or regulations of any Governmental Authority.
Without limiting the foregoing, each of the Company and MergerCo shall, as soon
as practicable, file (or cause its respective "ultimate parent entity" within
the meaning of the HSR Act to file) Notification and Report Forms under the HSR
Act with the Federal Trade Commission (the "FTC") and Antitrust Division of the
Department of Justice (the "Antitrust Division") and shall use reasonable
efforts to respond as promptly as practicable to all inquiries received from
the FTC or the Antitrust Division for additional information or documen tation.
Each party hereto shall use its reasonable efforts to take or cause to be taken
all actions necessary, proper or advisable to obtain any consent, waiver,
approval or authorization relating to any Competition Law that is required for
the consummation of the transactions contemplated by this Agreement.
(d) Each of the parties agrees to cooperate with each other in taking, or
causing to be taken, all actions necessary to delist the shares of Company
Common Stock from the NASDAQ SmallCap Market System, provided that such
delisting shall not be effective until after the Effective Time. The parties
also acknowledge that it is Purchaser's intent that the shares of Surviving
Corporation Common Stock following the Merger will not be quoted on the NASDAQ
SmallCap Market System or listed on any national securities exchange.
5.3. Company Stockholder Approval; Proxy Statement. (a) As promptly as
practicable after the date hereof, the Company will prepare and file with the
SEC a proxy statement relating to the Special Meeting (as amended or
supplemented and including documents incorporated by reference therein, the
"Proxy Statement"), and shall use its commercially reasonable efforts to
respond to any comments of the SEC or its staff and to cause the Proxy
Statement to be cleared by the SEC. The Company shall notify Purchaser of the
receipt of any comments from the SEC or its staff and of any request by the SEC
or its staff for amendments or supplements to the Proxy Statement or for
additional information and shall supply Purchaser and its counsel with copies
of all correspondence between the Company or any of its representatives, on the
one hand, and the SEC or its staff, on the other hand, with respect to the
Proxy Statement. After the Proxy Statement has been cleared by the SEC, the
Company shall mail the Proxy Statement to the Stockholders. The Company shall
include in the Proxy Statement the recommendation of the Board of Directors of
the Company and the Special Committee that the Stockholders approve and adopt
this Agreement and the transactions contemplated hereby. If at any time prior
to the Special Meeting (as defined herein) there shall occur any event that
should be set forth in an amendment or supplement to the Proxy Statement, the
Company will prepare and mail to the Stockholders such an amendment or
supplement.
(b) The Company shall, as soon as practicable, in accordance with
applicable law and the Organizational Documents of the Company, duly call, set
a record date for, give notice of, convene and hold a special meeting of the
Stockholders (the "Special Meeting") for the purpose of considering and taking
action upon this Agreement and such other matters as may be appropriate at the
Special Meeting. Except as would constitute a breach of the fiduciary duties of
the Board of Directors of the Company to the Stockholders under applicable law,
the Company shall, through its Board of Directors, recommend that the
Stockholders approve the Merger and shall use all reasonable efforts to solicit
from the Stockholders proxies in favor of the approval and adoption of this
Agreement and the transactions contemplated hereby.
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(c) The Company and MergerCo shall together prepare and file a Transaction
Statement on Schedule 13E-3 (as amended or supplemented and including documents
incorporated by reference therein, the "Schedule 13E-3") under the Exchange
Act. Each of MergerCo and the Company shall furnish all information concerning
it, its Affiliates and the holders of its capital stock required to be included
in the Schedule 13E- 3 and, after consultation with each other, shall respond
promptly to any comments made by the SEC with respect to the Schedule 13E-3.
(d) The information supplied by the Company for inclusion in the Proxy
Statement or the Schedule 13E-3 shall not, at the time the Proxy Statement is
mailed, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading or, at the time of the Special Meeting, as then amended or
supplemented, or at the Effective Time, omit to state any material fact
necessary to correct any statement originally supplied by the Company for
inclusion in the Proxy Statement or the Schedule 13E-3 which has become false
or misleading. If at any time prior to the Effective Time any event relating to
the Company or any of its Affiliates, or the Company's or its Affiliates'
respective officers, directors or stockholders, should be discovered which
should be set forth in an amendment of, or a supplement to such Proxy Statement
or Schedule 13E-3, the Company shall promptly so inform MergerCo and will
furnish all necessary information to MergerCo relating to such event and an
appropriate amendment or supplement to such Proxy Statement or Schedule 13E-3
will thereafter be filed with the SEC by the Company. All documents that the
Company is responsible for filing with the SEC in connection with the
transactions contemplated by this Agreement shall comply in all material
respects, both as to form and otherwise, with the Exchange Act and/or the
Securities Act, as the case may be, and the rules and regulations thereunder.
The Company shall also take any action required to be taken under any
applicable state securities laws in connection with the registration and
qualification in connection with the Merger of the Surviving Corporation Common
Stock following the Merger.
(e) All filings with the SEC and any amendments or supplements thereto,
all responses to requests for additional information by, and replies to
comments of, the SEC, and all mailings to the Stockholders, in each case in
connection with the Merger, shall be subject to the prior review and comment of
Purchaser.
(f) The information supplied or to be supplied by MergerCo for inclusion
in the Proxy Statement or the Schedule 13E-3 shall not, at the time the Proxy
Statement is mailed, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading or, at the time of the Special Meeting, as then
amended or supplemented, or at the Effective Time, omit to state any material
fact necessary to correct any statement originally supplied by MergerCo for
inclusion in the Proxy Statement or the Schedule 13E-3 which has become false
or misleading. If at any time prior to the Effective Time any event relating to
MergerCo or any of its Affiliates, or its Affiliates' respective officers,
directors or stockholders should be discovered which should be set forth in an
amendment of, or a supplement to, such Proxy Statement or Schedule 13E-3,
MergerCo shall promptly so inform the Company and will furnish all necessary
information to the Company relating to such event. All documents that MergerCo
is responsible for filing with the SEC in connection with the transactions
contemplated by this Agreement shall comply in all material respects, both as
to form and otherwise, with the Exchange Act and the rules and regulations
thereunder.
5.4. Directors' and Officers' Insurance and Indemnification. (a) For a
period of six years after the Effective Time, the Surviving Corporation shall
indemnify, defend and hold harmless the present and former officers, directors,
employees and agents of the Company and its Subsidiaries in such capacities
against all losses, claims, damages, expenses or liabilities arising out of
actions or omissions or alleged actions or omissions occurring at or prior to
the Effective Time to the same extent and on the same terms and conditions
(including with respect to advancement of expenses) provided for in the
Company's Organizational Documents in effect at the date hereof (to the extent
consistent with applicable Law).
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(b) For a period of six years after the Effective Time, the Surviving
Corporation shall maintain in effect directors' and officers' liability
insurance covering the persons who are currently covered by the Company's
existing directors' and officers' liability insurance with respect to claims
arising from facts or events which occurred before the Effective Time, on terms
and conditions no less favorable to such directors and officers than those in
effect on the date hereof; provided that in no event shall the Surviving
Corporation be required to make annual premium payments for such insurance in
excess of 200% of the premiums paid by the Company for such insurance as of the
date hereof.
5.5. Stockholder Litigation. Each of the Company on the one hand and
MergerCo and Purchaser, on the other hand, shall give the other the reasonable
opportunity to participate in the defense of any stockholder litigation against
the Company, MergerCo or Purchaser, as applicable, and its directors, relating
to the transactions contemplated hereby.
5.6. Recapitalization. Each of the Company, MergerCo and Purchaser shall
use its best efforts to cause the transactions contemplated hereby, including
the Merger, to be accounted for as a recapitalization and such accounting
treatment to be accepted by their respective accountants and by the SEC, and
each of the Company, MergerCo and Purchaser agrees that it shall take no action
that, to their respective knowledge, would cause such accounting treatment not
to be obtained.
5.7. Certain Employee Matters. For a period of not less than one year
following the Closing Date, the Surviving Corporation shall provide employees
of the Company with compensation and benefits which are substantially
comparable in the aggregate to the compensation and benefits provided to such
employees as of the date of this Agreement (other than with respect to any
equity based compensation).
ARTICLE VI
CONDITIONS PRECEDENT
6.1. Conditions to Obligations of Each Party. The obligation of the
parties to consummate the transactions contemplated hereby shall be subject to
the fulfillment of the following conditions on or prior to the Closing Date:
(a) No Injunction, etc. No statute, rule, order, decree or regulation
shall have been enacted or promulgated by any Governmental Authority of
competent jurisdiction (whether temporary, preliminary or permanent) that
is in effect and has the effect of prohibiting the consummation of the
Merger or making the Merger illegal. There shall be no order or injunction
of a Governmental Authority of competent jurisdiction (whether temporary,
preliminary or permanent) in effect precluding, restraining, enjoining or
prohibiting consummation of the Merger; provided, however, that the parties
shall use their reasonable commercial efforts to cause such order or
injunction to be vacated or lifted.
(b) Securities Law Matters. The Proxy Statement in form and substance
consistent with the intent of the parties set forth in Section 5.6 shall
have been cleared by the SEC, and any material "blue sky" and other state
securities Laws applicable to the registration and qualification of the
Surviving Corporation Common Stock following the Merger shall have been
complied with; and
(c) HSR and Other Approvals. The applicable waiting period (and any
extension thereof) under the HSR Act with respect to the actions
contemplated by this Agreement shall have expired or been terminated and
all other material authorizations, consents, orders or approvals of, or
regulations, declarations or filings with, or expirations of applicable
waiting periods imposed by, any Governmental Authority (including, without
limitation, any foreign antitrust filing) necessary for the consummation of
the transactions contemplated hereby, shall have been obtained or filed or
shall have occurred.
(d) Financing. The Company shall have received at least $22.5 million of
debt financing pursuant to definitive financing agreements on terms
substantially similar to the terms set forth in the commitment letters
described in Section 3.6(ii) and (iii) (including the market flex
provisions thereof) or on less favorable terms that are acceptable to
Purchaser.
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(e) Stockholder Approval. The Company Stockholder Approval shall have
been obtained.
(f) Ancillary Agreements. On or prior to the Closing Date, (i) the
Company and Purchaser shall have entered into a Stockholders Agreement (the
"Stockholders Agreement"), in the form of Exhibit C, dated as of the date
hereof, to become effective as of the Effective Time; (ii) the Company and
Purchaser shall have entered into a Registration Rights Agreement (the
"Registration Rights Agreement") in the form of Exhibit D, dated as of the
date hereof, to become effective as of the Effective Time; and (iii) the
Purchaser and each of the Continuing Stockholders shall have entered into a
Voting Agreement (each a "Voting Agreement") substantially in the form of
Exhibit G, dated as of the date hereof, to become effective as of the date
hereof; and all such agreements shall be in full force and effect.
6.2. Conditions to Obligations of MergerCo and Purchaser. The obligation
of MergerCo and Purchaser to consummate the transactions contemplated hereby
shall be subject to the fulfillment on or prior to the Closing Date of the
following conditions:
(a) Representations, Performance, etc. The representations and warranties
of the Company contained herein shall be true and correct in all respects
(in the case of any representation or warranty qualified as to materiality)
or in all material respects (in the case of any representation or warranty
not so qualified) at and as of the date hereof and on and as of the Closing
Date with the same effect as though made on and as of the Closing Date, and
Purchaser shall have received a certificate signed by the chief executive
officer and chief financial officer of the Company to such effect.
(b) Performance of Obligations of the Company. The Company shall have
performed or complied in all material respects with all conditions,
agreements, obligations and covenants required to be performed or complied
with prior to the Closing by the Company under this Agreement and Purchaser
shall have received a certificate signed by the chief executive officer and
chief financial officer of the Company to such effect.
(c) Consents. The Company shall have obtained and shall have delivered to
Purchaser on or prior to the Closing Date copies of all Governmental
Approvals and all Consents required or appropriate to be obtained by the
Company or its Subsidiaries in connection with the execution and delivery
of this Agreement and the Ancillary Agreements and the consummation of the
transactions contemplated hereby and thereby, including without limitation,
the Consents set forth on Schedule 6.2(c) of the Company Disclosure Letter.
(d) No Material Adverse Effect. From the date hereof through and
including the Effective Time, no event, occurrence, fact, condition,
change, development or effect shall have occurred, exist or come to exist
that, individually or in the aggregate, has constituted or resulted in, or
could reasonably be expected to constitute or result in, a Material Adverse
Effect; it being understood that the enactment of any regulation by the
Food and Drug Administration mandating pasteurization of fresh juice
products shall not constitute a Material Adverse Effect unless the Company
would be unable to comply with such new regulation without the occurrence
of a Material Adverse Effect.
(e) Corporate Proceedings. As of the Closing Date, all corporate
proceedings of the Company in connection with this Agreement, the Ancillary
Agreements and the transactions contemplated hereby and thereby, and all
documents and instruments incident thereto, shall be reasonably
satisfactory in substance and form to Purchaser and its counsel, and
Purchaser and its counsel shall have received all such documents and
instruments (including the resignations of any officers of the Company or
of its Subsidiaries), or copies thereof, certified if requested, as may be
reasonably requested.
(f) Dissenting Shares. The number of Dissenting Shares shall not exceed
5% of the issued and outstanding shares of Company Common Stock.
(g) FIRPTA Certificate. Purchaser shall have received a certificate of
the Company, in accordance with Treasury Regulations Section 1.897-2(h),
to the effect that Company is not, and has not during the five year period
preceding the Effective Time been, a U.S. real property holding corporation
within the meaning of Section 897 of the Code.
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(h) Employment Agreement. The Company and Robin Prever shall have entered
into an employment agreement (the "Employment Agreement"), in the form of
Exhibit E, dated as of the date hereof, to become effective as of the
Effective Time, and such agreement shall be in full force and effect.
(i) Consulting Agreement. The Company and North Castle Partners, L.L.C.
shall have entered into a Consulting Agreement (the "Consulting
Agreement"), in the form of Exhibit F, dated as of the date hereof, to
become effective as of the Effective Time, and such agreement shall be in
full force and effect.
6.3. Conditions to Obligations of the Company. The obligation of the
Company to consummate the transactions contemplated hereby shall be subject to
the fulfillment, on or prior to the Closing Date, of the following conditions:
(a) Representations, Performance, etc. The representations and warranties
of MergerCo and Purchaser contained herein shall be true and correct in all
respects (in the case of any representation or warranty qualified as to
materiality) or in all material respects (in the case of any representation
or warranty not so qualified) at and as of the date hereof and on and as of
the Closing Date with the same effect as though made at and as of the
Closing Date and the Company shall have received a certificate of an
officer of each of MergerCo and Purchaser to such effect.
(b) Performance of Obligations of MergerCo and Purchaser. MergerCo and
Purchaser shall have performed or complied in all material respects with
all conditions, agreements, obligations and covenants required to be
performed or complied with prior to the Closing by MergerCo and Purchaser
under this Agreement and the Company shall have received a certificate of
an officer of each of MergerCo and Purchaser to such effect.
(c) Consents. Purchaser and MergerCo shall have obtained and shall have
delivered to the Company on or prior to the Closing Date copies of all
Governmental Approvals and all Consents required or appropriate to be
obtained by Purchaser and MergerCo in connection with the execution and
delivery of this Agreement and the Ancillary Agreements and the
consummation of the transactions contemplated hereby and thereby.
(d) Organizational Proceedings. As of the Closing Date, all
organizational proceedings of Purchaser and MergerCo in connection with
this Agreement, the Ancillary Agreements and the transactions contemplated
hereby and thereby, and all documents and instruments incident thereto,
shall be reasonably satisfactory in substance and form to the Company and
its counsel, and the Company and its counsel shall have received all such
documents and instruments, or copies thereof, certified if requested, as
may be reasonably requested.
ARTICLE VII
TERMINATION
7.1. Termination. Notwithstanding anything herein to the contrary, this
Agreement may be terminated and the Merger may be abandoned at any time prior
to the Effective Time, whether before or after the Company Stockholder Approval
has been given:
(a) by the written agreement of the parties hereto;
(b) by either the Purchaser or the Company if (i) the Merger has not been
consummated on or prior to May 31, 2000 or such other date, if any, as
Purchaser and the Company shall agree upon (provided that the right to
terminate this Agreement under this Section 7.1(b)(i) shall not be
available to a party whose failure to fulfill any obligation under this
Agreement has been the cause of or resulted in the failure of the Merger to
be consummated on or before such date), or (ii) any Governmental Authority
shall have issued a statute, order, decree or regulation or taken any other
action (which statute, order, decree, regulation or other action the
parties hereto shall use their best efforts to lift), in each case
permanently restraining, enjoining or otherwise
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prohibiting the Merger or making the Merger illegal and such statute,
order, decree, regulation or other action shall have become final and
non-appealable.
(c) by the Company, upon 15 days' prior written notice, in the event of a
material breach of any representation, warranty, covenant or agreement on
the part of MergerCo or Purchaser such that the conditions set forth in
Section 6.3(a) or 6.3(b) would not be satisfied as of the Effective Time,
which breach is not cured prior to the expiration of such 15 day period
(provided that if such breach is not curable, the Company may terminate
this Agreement immediately under this Section 7.1(c)); except where the
Company is in material breach of any representation, warranty, covenant or
agreement.
(d) By the Company, (i) if holders of at least a majority, by vote, of
the outstanding Company Common Stock fail to approve and adopt this
Agreement and the transactions contemplated hereby at the Special Meeting
(including any postponement or adjournment thereof), or (ii) if prior to
the Effective Time either the Board of Directors of the Company or the
Special Committee withdraws, modifies or changes in a manner adverse to
MergerCo its recommendation of this Agreement or the Merger pursuant to
Section 4.2; provided in the case of clause (ii) that such termination
shall not be effective until the Company has made payment to North Castle
of the Termination Fee and the Expense Reimbursement Fee in accordance with
Section 9.2 so long as MergerCo and Purchaser have not breached their
obligations hereunder.
(e) by Purchaser, if (i) holders of at least a majority, by vote, of the
outstanding Company Common Stock fail to approve and adopt this Agreement
and the transactions contemplated hereby at the Special Meeting (including
any postponement or adjournment thereof); (ii) either the Board of
Directors of the Company or the Special Committee withdraws, modifies or
changes its recommendation of this Agreement or the Merger in a manner
adverse to MergerCo or shall have resolved to do any of the foregoing or
the Board of Directors of the Company shall have recommended to the
Stockholders any Company Takeover Proposal or resolved to do so; (iii) a
tender offer or exchange offer for outstanding shares of capital stock of
the Company then representing 35% or more of the combined power to vote
generally for the election of directors is commenced, and the Board of
Directors of the Company does not recommend that Stockholders not tender
their shares into such tender or exchange offer; or (iv) any Person shall
have acquired beneficial ownership or right to acquire beneficial ownership
of, or any "group" (as such term is defined under Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder), shall
have been formed that beneficially owns, or has the right to acquire
beneficial ownership of, outstanding shares of capital stock of the Company
then representing 35% or more of the combined power to vote generally for
the election of directors.
(f) by Purchaser, upon 15 days' prior written notice, in the event of a
material breach of any representation, warranty, covenant or agreement on
the part of the Company such that the conditions set forth in Section
6.2(a) or 6.2(b) would not be satisfied as of the Effective Time, which
breach is not cured prior to the expiration of such 15 day period (provided
that if such breach is not curable, Purchaser may terminate this Agreement
immediately under this Section 7.1(f)); except where Purchaser or MergerCo
is in material breach of any representation, warranty, covenant or
agreement.
(g) by Purchaser, on the one hand, or the Company, on the other hand, if
any event shall occur or exist that otherwise shall have made it impossible
to satisfy a condition precedent to the obligation of the terminating party
or parties to consummate the transactions contemplated by this Agreement,
unless the occurrence or existence of such event, fact or condition shall
be due to the failure of the terminating party or parties to perform or
comply with any of the agreements, covenants or conditions hereof to be
performed or complied with by such party prior to the Closing Date.
(h) by the Company, if the Board of Directors of the Company determines
in good faith, based upon the opinion of its outside legal counsel, that
the failure to terminate this Agreement would constitute a breach of the
fiduciary duties of the Board of Directors of the Company to the
Stockholders under applicable law.
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7.2. Effect of Termination. In the event of the termination of this
Agreement pursuant to the provisions of Section 7.1, this Agreement shall
become void and have no effect, without any liability to any Person in respect
hereof or of the transactions contemplated hereby on the part of any party
hereto, or any of its directors, officers, employees, agents, consultants,
representatives, advisers, or Affiliates, except as specified in Section 9.2
and except for any liability resulting from such party's breach of this
Agreement.
ARTICLE VIII
DEFINITIONS
8.1. Definition of Certain Terms. The terms defined in this Section 8.1,
whenever used in this Agreement (including in the Schedules), shall have the
respective meanings indicated below for all purposes of this Agreement (each
such meaning to be equally applicable to the singular and the plural forms of
the respective terms so defined). All references herein to a Section, Article
or Schedule are to a Section, Article or Sched ule of or to this Agreement,
unless otherwise indicated.
2000 Note: as defined in Section 2.4(a).
Affiliate: of a Person means a Person that directly or indirectly through
one or more intermediaries, controls, is controlled by, or is under common
control with, the first Person, and with respect to a natural person shall
include any child, stepchild, grandchild, parent, stepparent, spouse, sibling,
mother-in-law, father-in- law, son-in-law, daughter-in-law, brother-in-law or
sister-in-law, and shall include adoptive relationships. "Control" (including
the terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, whether through the ownership
of voting securities, by contract or credit arrangement, as trustee or
executor, or otherwise.
Agreement: this Stock Purchase Agreement and Agreement and Plan of Merger,
as the same may be amended from time to time.
Ancillary Agreements: the Stockholders Agreement, Voting Agreements,
Registration Rights Agreement, Employment Agreement and Consulting Agreement.
Antitrust Division: as defined in Section 5.2(c).
Assets: as defined in Section 2.9.
Audited Financial Statements: the audited consolidated financial
statements of the Company as at and for the years ended December 31, 1998, 1997
and 1996, including (i) balance sheets and statements of income, cash flows and
stockholders equity, (ii) the notes thereto, and (iii) a report thereon from
PricewaterhouseCoopers, LLP, the Company's independent auditors.
Balance Sheet: the balance sheet of the Company as of December 31, 1998
included in the Audited Financial Statements.
Business: any business in which the Company or its Subsidiaries is engaged
as of the Effective Time.
Business Day: shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in The City of New York are authorized or required to
close.
Cashed Out Shares: with respect to any Continuing Stockholder, a number of
shares of Company Common Stock equal to the number listed under the column
captioned "Cashed Out Shares" opposite such Continuing Stockholder's name on
Annex A to this Agreement, subject to the adjustment provisions in Annex A.
CERCLA: the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 U.S.C. Section 9601 et seq.
Certificate of Merger: as defined in Section 1.9.
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Class A Common Stock: as defined in Section 1.3(a).
Class B Common Stock: as defined in Section 1.3(a).
Closing: as defined in Section 1.10.
Closing Date: as defined in Section 1.10.
Code: the Internal Revenue Code of 1986, as amended.
Company: as defined in the recitals to this Agreement.
Company Acquisition Agreement: as defined in Section 4.2(b).
Company Common Stock: as defined in Section 1.3(a).
Company Disclosure Letter: as defined in Section 2.1(b).
Company Reports: as defined in Section 2.21.
Company SEC Documents: as defined in Section 2.21.
Company Stock Option: as defined in Section 1.5(a).
Company Stock Option Plans: as defined in Section 1.5(a).
Company Stockholder Approval: as defined in Section 2.2.
Company Superior Proposal: any proposal made by a third party to acquire,
directly or indirectly, including pursuant to a tender offer, exchange offer,
merger, consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction, for consideration consisting of cash and/or
securities, more than 25% of the combined voting power of the shares of the
Company's capital stock then outstanding or all or substantially all the assets
of the Company and otherwise on terms which the Special Committee determines in
its good faith judgment, based on the advice of the Financial Advisor or an
investment banking firm of national reputation and after consultation with
outside counsel, to be more favorable to the Stockholders than the Merger and
for which financing, to the extent required, is then committed or which, in the
good faith judgment of the Special Committee, is reasonably capable of being
obtained by such third party.
Company Takeover Event: any direct or indirect acquisition or purchase of
a business that constitutes 25% or more of the net revenues, net income or
assets of the Company and its Subsidiaries, taken as a whole, or 25% or more of
any class of equity securities of the Company, any tender offer or exchange
offer that if consummated would result in any person beneficially owning 25% or
more of any class of any equity securities of the Company, or any merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company (or any Subsidiary whose business
constitutes 25% or more of the net revenues, net income or assets of the
Company and its Subsidiaries taken as a whole), other than the transactions
contemplated by this Agreement.
Company Takeover Proposal: any inquiry, proposal or offer from any person
relating to any Company Takeover Event.
Competition Laws: statutes, rules, regulations, orders, decrees,
administrative and judicial doctrines, and other laws that are designed or
intended to prohibit, restrict or regulate actions having the purpose or effect
of monopolization, lessening of competition or restraint of trade, including
the HSR Act.
Computer System: with respect to any Person, any and all Software,
semiconductor chips, microprocessors, embedded microcontrollers and other
hardware containing programming instructions of any kind, whether owned or
licensed or otherwise held by such Person for use.
Consent: any consent, approval, order, authorization, waiver, agreement,
license, declaration, filing or report or notice to, any Person.
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Consulting Agreement: as defined in Section 6.2(i).
Continuing Stockholders: the Stockholders listed on Annex A to this
Agreement.
Delaware Secretary of State: as defined in Section 1.9.
DGCL: as defined in the recitals to this Agreement.
Dissenting Shares: as defined in Section 1.6.
Dissenting Stockholders: as defined in Section 1.3(a).
Effective Time: as defined in Section 1.9.
Employees: any employee or former employee of the Company or its
Subsidiaries or the beneficiaries or dependants of any such employee or former
employee.
Employment Agreement: as defined in Section 6.2(h).
Environmental Claims: any complaint, notice, directive, order, claim,
litigation, investigation, judicial or administrative proceeding, judgment,
letter or other communication from any governmental agency, office or other
authority, or any third party, involving violations of Environmental Laws or
Releases of Hazardous Materials (i) from any assets, properties or businesses
of the Company or its Subsidiaries; (ii) from properties or businesses
adjoining any of the Real Property; or (iii) from or onto any facilities which
received Hazardous Materials generated by the Company or its Subsidiaries.
Environmental Laws: all applicable Laws relating to the protection of the
environment, to human health and safety, to natural resources or to any use,
sale, manufacture, treatment, generation, processing, storage, disposal,
abatement, existence, Release, threatened Release, transportation or handling
of any Hazardous Materials, including, without limitation, (i) CERCLA, the
Resource Conservation and Recovery Act, and the Occupational Safety and Health
Act, and (ii) all other governmental requirements pertaining to reporting,
licensing, permitting, investigation or remediation of Releases or threatened
Releases of Hazardous Substances into the air, surface water, groundwater or
land, or relating to the manufacture, processing, distribution, use, sale,
treatment, receipt, storage, disposal, transport or handling of Hazardous
Substances.
ERISA: the Employee Retirement Income Security Act of 1974, as amended.
Exchange Act: the Securities Exchange Act of 1934, as amended.
Exchange Agent: as defined in Section 1.4(a).
Expense Reimbursement Fee: as defined in Section 9.2(b).
Fairness Opinion: as defined in Section 2.24.
Financial Advisor: as defined in Section 2.24.
Financial Statements: the Audited Financial Statements and the Interim
Financial Statements.
FTC: as defined in Section 5.2(c).
Fund: as defined in Section 3.6.
GAAP: United States generally accepted accounting principles.
GFG Warrant: as defined in Section 2.4(a).
Governmental Approval: any written consent, approval, authorization,
waiver, permit, concession, franchise, Agreement, license, exemption or order
of, declaration or filing with, or report or notice to, any Governmental
Authority.
Governmental Authority: as defined in Section 2.3(b).
Hazardous Materials: any substance that: (i) is or contains asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, petroleum or
petroleum-derived substances or wastes, or radon gas, or (ii) requires
investigation, removal or remediation under any applicable Environmental Law,
or is defined, listed or identified as a "hazardous waste" or "hazardous
substance" thereunder.
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HSR Act: the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
Intellectual Property: any and all United States and foreign: patents and
applications, including all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof; trademarks, service
marks, trade names, trade dress, domain names, logos, business and product
names, slogans, and registrations and applications for registration or renewal
thereof; copyrights and registrations or renewals thereof; copyrightable works;
World Wide Web sites; Software; inventions, processes, designs, formulae, trade
secrets, know-how, R&D, manufacturing and production processes and techniques;
confidential business and technical information; all other intellectual
property and proprietary rights similar to the foregoing; all rights to sue for
and remedies against past, present and future infringements of any or all of
the foregoing; rights of priority and protection of interests therein under the
Laws of any jurisdiction, copies and tangible embodiments thereof (in whatever
form or medium, including electronic media).
Interim Financial Statements: the unaudited consolidated financial
statements of the Company for the periods ended March 31, 1999, June 30, 1999,
and September 30, 1999, including a balance sheet and statements of income,
cash flows and stockholders equity.
IRS: the Internal Revenue Service.
Law: all applicable provisions of all (a) constitutions, treaties,
statutes, laws (including the common law), codes, rules, regulations,
ordinances or orders of any Governmental Authority, (b) Governmental Approvals
and (c) orders, decisions, injunctions, judgments, awards and decrees of or
agreements with any Governmental Authority.
Leased Real Property: all interests leased pursuant to Leases.
Leases: the real property leases, subleases, licenses and occupancy
agreements pursuant to which the Company or its Subsidiaries is lessee,
sublessee, licensee or occupant.
Lien: any mortgage, pledge, hypothecation, right of others, claim,
security interest, encumbrance, lease, sublease, license, occupancy agreement,
adverse claim or interest, easement, covenant, encroachment, burden, title
defect, title retention Agreement, voting trust Agreement, interest, equity,
option, lien, right of first refusal, charge or other restrictions or
limitations of any nature whatsoever, including but not limited to such as may
arise under any Material Contracts.
Listed Intellectual Property: as defined in Section 2.12(a).
Litigation: any action, cause of action, claim, demand, suit, proceeding,
citation, summons, subpoena, inquiry or investigation of any nature, civil,
criminal, regulatory or otherwise, in law or in equity, pending or threatened,
by or before any court, tribunal, arbitrator or other Governmental Authority,
or by or on behalf of any third party.
Material Adverse Effect: (i) any event, occurrence, fact, condition,
change or effect that is, or would reasonably be expected to be, materially
adverse to the Business, Assets, liabilities, prospects, results of operations
or financial or other condition of the Company or its Subsidiaries, taken as a
whole, or (ii) a material impairment of the ability of the Company to perform
its obligations hereunder or to consummate the transactions contemplated hereby
and thereby.
Material Contracts: all loan agreements, indentures, letters of credit
(including related letter of credit applications and reimbursement
obligations), mortgages, security agreements, pledge agreements, deeds of
trust, bonds, notes, guarantees, surety obligations, warranties, material
licenses, material franchises, permits, powers of attorney, material leases,
endorsement agreements, and other agreements, contracts, instruments,
obligations, material arrangements and understandings, written or oral, to
which the Company or any of its Subsidiaries is a party or by which any of
their properties or assets may be bound or affected, in each case as amended,
supplemented, waived or otherwise modified, that are of the types listed in
clauses (i) through (xiv) below:
(i) leases, subleases, licenses, occupancy agreements, material permits,
insurance policies, material agreements, Governmental Approvals and other
Material Contracts concerning or relating to the Real Property;
A-28
<PAGE>
(ii) material employment, consulting, severance, agency, bonus,
compensation, or other trusts, funds and other Material Contracts (other than
the Plans) relating to or for the benefit of current, future or former
employees, officers, directors, sales representatives, distributors, dealers,
agents, independent contractors or consultants (whether or not legally binding)
of the Company or its Subsidiaries, requiring annual payments in excess of
$100,000, including sales agency, copacking or distributorship agreements or
arrangements for the sale of any of the products or services of the Company or
its Subsidiaries;
(iii) Intellectual Property licenses;
(iv) broker's or finder's contracts;
(v) joint venture, partnership and similar contracts, agreements,
arrangements and understandings involving a sharing of profits or expenses;
(vi) stock purchase agreements, asset purchase agreements and other
acquisition or divestiture agreements, including but not limited to any
agreements relating to the acquisition, lease or disposition of the Company or
its Subsidiaries, any material assets or properties (other than sales of
inventory made in the ordinary course of business), any business, or any
capital stock of or other interest in any Person by the Company or its
Subsidiaries, within the last three years, which involve continuing indemnity
or other obligations;
(vii) contracts prohibiting or restricting the ability of the Company, its
Subsidiaries or the Business to engage in any business or operate in any
geographical area or to compete with any Person;
(viii) orders and other contracts for the purchase or sale of materials,
supplies, products or services, involving aggregate payments in excess of
$100,000 in each case or, other than with respect to such orders or contracts
entered into in the ordinary course of business, $250,000 in the aggregate;
(ix) contracts providing for future payments that are conditioned, in
whole or in part, on a change in control of any of the Company or its
Subsidiaries;
(x) powers of attorney, except routine powers of attorney relating to
representation before governmental agencies or given in connection with
qualification to conduct business in another jurisdiction;
(xi) contracts not entered into in the ordinary course of business;
(xii) contract or series of related contracts with respect to which the
aggregate amount that could reasonably be expected to be paid or received
thereunder in the future exceeds $25,000 per annum or, other than with respect
to such contracts entered into in the ordinary course of business, $100,000 in
the aggregate;
(xiii) contracts that are or will be material to the business, operations,
results of operations, condition (financial or otherwise), assets or properties
of the Company or its Subsidiaries; and
(xiv) contracts providing for future payments that are conditioned, in
whole or in part, on the future performance of the Company or its Subsidiaries.
Merger: as defined in Section 1.1(a).
MergerCo: as defined in the recitals to this Agreement.
Merger Consideration: the cash and shares of Surviving Corporation Common
Stock paid to Stockholders pursuant to Section 1.3.
Non-Continuing Stockholder: any Stockholder not listed on Annex A to this
Agreement.
Organizational Documents: as defined in Section 2.1(c).
Owned Intellectual Property: as defined in Section 2.12(a).
A-29
<PAGE>
Owned Real Property: the real property owned by the Company or its
Subsidiaries, together with all structures, facilities, improvements, fixtures
and systems attached or appurtenant thereto and all easements, licenses and
rights relating to the foregoing.
Permitted Liens: (i) Liens securing liabilities for which adequate
reserves are included on the Balance Sheet, to the extent so reserved, that do
not materially interfere with the use of the property subject thereto or extend
to or cover any assets of any other Affiliate of Purchaser upon consummation of
the transactions contemplated by this Agreement, (ii) Liens for Taxes not yet
due and payable, or that are being contested in good faith by appropriate
proceedings, (iii) mechanic's Liens, landlord's Liens and warehouseman's Liens
securing obligations arising in the ordinary course of business that are not
more than 30 days past due or are being contested in good faith by appropriate
proceedings or (iv) Liens that, indi vidually and in the aggregate, do not and
would not materially detract from the value of any of the property or Assets or
materially interfere with the use thereof as currently used or proposed to be
used.
Per Share Amount: an amount equal to the quotient obtained by dividing the
Purchase Price by the number of Purchased Shares.
Per Share Merger Consideration: $6.00.
Person: any natural person, firm, partnership, association, corporation,
company, trust, business trust, Governmental Authority or other entity.
Plan: each "employee benefit plan", as such term is defined in Section
3(3) of ERISA, and each bonus, incentive or deferred compensation, severance,
termination, retention, change of control, stock option, stock appreciation,
stock purchase, phantom stock or other equity-based, performance or other
employee or retiree benefit or compensation plan, program, arrangement,
Agreement, policy or understanding, whether written or unwritten, that provides
or may provide benefits or compensation in respect of any Employee, or under
which any Employee is or may become eligible to participate or derive a benefit
and that is or has been maintained or established by the Company or its
Subsidiaries or to which the Company or its Subsidiaries contributes or is or
has been obligated or required to contribute.
Policies: as defined in Section 2.13.
Proxy Statement: as defined in Section 5.3(a).
Purchaser: as defined in the recitals to this Agreement.
Purchase Price: as defined in Section 1.1(b).
Purchased Shares: a number (rounded down to the nearest whole share) of
newly issued shares of Surviving Corporation Common Stock equal to the Purchase
Price divided by the Per Share Merger Consideration.
Real Property: the Owned Real Property and the Leased Real Property.
Registration Rights Agreement: as defined in Section 6.1(f).
Release: any releasing, disposing, discharging, injecting, spilling,
leaking, leaching, pumping, dumping, emitting, escaping, emptying, seeping,
dispersal, migration, transporting, placing and the like, including without
limitation, the moving of any materials through, into or upon, any land, soil,
surface water, ground water or air, or otherwise entering into the environment.
Return: any return, report, declaration, form, claim for refund or in
formation return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
Rollover Shares: with respect to any Continuing Stockholder, a number of
shares of Company Common Stock equal to the number listed under the column
captioned "Rollover Shares" opposite a Continuing Stockholder's name on Annex A
to this Agreement, subject to the adjustment provisions in Annex A.
A-30
<PAGE>
Schedule 13E-3: as defined in Section 5.3(c).
SEC: the Securities and Exchange Commission.
Securities Act: the Securities Act of 1933, as amended.
Software: all computer software, including but not limited to application
software and system software, including all source code and object code
versions thereof, in any and all forms and media, whether recorded on paper,
magnetic media or other electronic or non-electronic media (including data and
related documentation, user manuals, training materials, flow charts, diagrams,
descriptive tests and programs, computer print-outs, underlying tapes, computer
databases and similar items), integrated circuits, embedded systems, and other
electro-mechanical or processor based systems.
Special Committee: as defined in the recitals hereto.
Special Meeting: as defined in Section 5.3(b).
Stock Purchase: as defined in Section 1.1(b).
Stockholders: the holders of the Company Common Stock.
Stockholders Agreement: as defined in Section 6.1(f).
Subsidiaries: each corporation or other Person in which a Person owns or
controls, directly or indirectly, capital stock or other equity interests
representing at least 50% of the outstanding voting stock or other equity
interests.
Surviving Corporation: as defined in Section 1.1(a).
Surviving Corporation Common Stock: common stock, par value $.01 per
share, of the Surviving Corporation.
Tax: any federal, state, provincial, local, foreign or other income, alter
native, minimum, accumulated earnings, personal holding company, franchise,
capital stock, net worth, capital, profits, windfall profits, gross receipts,
value added, sales (including, without limitation, bulk sales), use, goods and
services, excise, customs duties, transfer, conveyance, mortgage, registration,
stamp, documentary, recording, premium, severance, environmental (including,
without limitation, taxes under Section 59A of the Code), real property,
personal property, ad valorem, intangibles, rent, occupancy, license,
occupational, employment, unemployment insurance, social security, disability,
workers' compensation, payroll, health care, withholding, estimated or other
similar tax, levy, impost, fee, duty or other governmental charge or assessment
or deficiencies thereof (in cluding all interest and penalties thereon and
additions thereto, whether disputed or not) imposed by any Governmental
Authority or other taxing authority.
Termination Fee: as defined in Section 9.2(b).
Transaction Expenses: as defined in Section 9.2(a).
Treasury Regulations: the regulations prescribed under the Code.
Voting Agreements: as defined in the recitals to this Agreement.
Year 2000 Compatibility: (and variations thereof) means, with respect to
any Computer System, that such Computer System (i) records, stores, processes
and provides true and accurate dates and calculations for dates and spans of
dates, (ii) is and will be able to operate on a basis comparable to its current
operation during and after calendar year 2000 A.D., including, but not limited
to, leap years, and (iii) shall not end abnormally or provide invalid or
incorrect results as a result of date data which represents or references (or
fails to represent or reference) different centuries or more than one century.
Any reference in this Agreement to a statute shall be to such statute, as
amended from time to time, and to the rules and regulations promulgated
thereunder. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation."
A-31
<PAGE>
ARTICLE IX
MISCELLANEOUS
9.1. Survival. No representations or warranties of the parties set forth
in this Agreement shall survive beyond the Effective Time.
9.2. Expenses. (a) Except as otherwise provided herein, if this Agreement
is terminated prior to Closing, all costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated
hereby (the "Transaction Expenses") shall be paid by the party incurring such
expenses. If the Closing does occur, the Company shall pay all Transaction
Expenses of MergerCo, Purchaser and the Company.
(b) The Company shall promptly pay North Castle a termination fee of $1.2
million (the "Termination Fee"), plus documented reasonable out of pocket costs
and expenses incurred by MergerCo and Purchaser in connection with this
Agreement and the consummation of the transactions contemplated hereby in an
amount not to exceed $300,000 (the "Expense Reimbursement Fee") in the event
that this Agreement is terminated pursuant to Sections 7.1(d)(ii) or
7.1(e)(ii)-(iv). Any such payment shall be made by wire transfer of immediately
available funds.
(c) The Company acknowledges that the agreements contained in this Section
9.2 are an integral part of the transactions contemplated by this Agreement,
and that, without these agreements, Purchaser and MergerCo would not enter into
this Agreement; accordingly, if the Company fails promptly to pay the amount
due pursuant to this Section 9.2, and, in order to obtain such payment,
Purchaser and MergerCo commence a suit which results in a judgment against the
Company for any or all of the Termination Fee or the Expense Reimbursement Fee
set forth in this Section 9.2, the Company shall pay to Purchaser and MergerCo
their costs and expenses (including attorneys' fees and expenses) in connection
with such suit.
(d) This Section 9.2 shall survive any termination of this Agreement.
9.3. Severability. If any provision of this Agreement is inoperative or
unenforceable for any reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative, or unenforceable to any extent whatsoever. The
invalidity of any one or more phrases, sentences, clauses, sections or
subsections of this Agreement shall not affect the remaining portions of this
Agreement.
9.4. Notices. All notices and other communications made in connection with
this Agreement shall be in writing and shall be deemed to have been duly given
if (a) mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid, (b) transmitted by hand delivery, (c) sent by
next-day or overnight mail or delivery or (d) sent by fax or telecopy,
addressed as follows:
(i) if to MergerCo, Purchaser or, from and after the Closing, the Company, to
such person:
c/o North Castle Partners, L.L.C.
60 Arch Street
Greenwich, CT 06830
Telephone: (203) 862-3200
Telecopy: (203) 618-1860
Attention: Peter J. Shabecoff
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6000
Telecopy: (212) 909-6836
Attention: Franci J. Blassberg, Esq.
A-32
<PAGE>
(ii) if to the Company prior to the Closing, to:
Saratoga Beverage Group, Inc.
11 Geyser Road
Saratoga Springs, NY 12366
Telephone: (518) 584-6363 x11
Telecopy: (518) 584-0380
Attention: Chief Financial Officer
with a copy to:
Swidler Berlin Shereff Friedman, LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 891-9268
Telecopy: (212) 891-9598
Attention: Charles I. Weissman, Esq.
or, in each case, at such other address as may be specified in writing to the
other party 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.
9.5. Entire Agreement. This Agreement (including the schedules hereto),
the Ancillary Agreements (when executed and delivered) and the Confidentiality
Agreement constitute the entire Agreement, and supersede all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
9.6. Counterparts; Headings. 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. The headings contained in this
Agreement are for purposes of convenience only and shall not affect the meaning
or interpretation of this Agreement.
9.7. Governing Law, etc. (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 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
A-33
<PAGE>
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 9.4 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 9.7(b).
9.8. Binding Effect; No Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns, subject to Section 9.9.
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.
9.9. Assignment. This Agreement shall not be assignable by any of the
parties hereto without the prior written consent of the other parties,
provided, that, (a) the Company may assign this Agreement and the Ancillary
Agreements to which it is a party to any lenders to the Company as security for
obligations to such lenders, and (b) Purchaser may assign this Agreement to any
of its Affiliates, or to any lender to Purchaser as security for obligations to
such lender, and provided, further, that no assignment by Purchaser shall in
any way affect Purchaser's obligations or liabilities under this Agreement.
9.10. 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 of any party based upon,
arising out of or otherwise in respect of any inaccuracy or breach of any
representation, warranty, covenant or agreement or failure to fulfill any
condition shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such inaccuracy
or breach is based may also be the subject matter of any other representation,
warranty, covenant or agreement as to which there is no inaccuracy or breach.
The representations and warranties of the Company shall not be affected or
deemed waived by reason of any investigation made by or on behalf of MergerCo
or Purchaser (including but not limited to by any of their advisors,
consultants or representatives) or by reason of the fact that MergerCo,
Purchaser or any of their advisors, consultants or representatives knew or
should have known that any such representation or warranty is or might be
inaccurate.
A-34
<PAGE>
9.11. Attorneys' Fees. As between the parties to this Agreement, in any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees in addition to
its costs and expenses and any other available remedy.
IN WITNESS WHEREOF, the parties have duly executed this Stock Purchase
Agreement and Agreement and Plan of Merger as of the date first above written.
SARATOGA BEVERAGE GROUP, INC.
By: /s/ Kim James
-------------------------------
Name: Kim James
Title: Chief Financial Officer
NCP-SBG RECAPITALIZATION CORP.
By: /s/ Peter J. Shabecoff
-----------------------------
Name: Peter J. Shabecoff
Title: Vice President
NCP-SBG, L.P.
By: NCP-SBG GP, L.L.C.
its General Partner
By: /s/ Peter J. Shabecoff
-----------------------------
Name: Peter J. Shabecoff
Title: Executive Vice
President
A-35
<PAGE>
ANNEX A TO ANNEX A
<TABLE>
<CAPTION>
TOTAL CASHED ROLLOVER INCREASE
CONTINUING STOCKHOLDER SHARES OUT SHARES SHARES PERCENTAGE
- ------------------------------------- ------------ ------------ ---------- -------------
<S> <C> <C> <C> <C>
Robin Prever ........................ 318,285 251,499 66,786 12.1429%
Anthony Malatino .................... 718,127 557,056 161,071 29.2857%
Warren Lichtenstein ................. 46,254 -- 46,254
Steel Partners II, L.P. ............. 481,258 425,369 55,889 18.5714%
Steve Bogen ......................... 386,793 304,293 82,500 15.0000%
Pershing Securities Limited ......... 200,000 141,071 58,929 10.7143%
Jurg Walker ......................... 224,500 145,929 78,571 14.2857%
------- ------- ------- --------
TOTAL ............................ 2,375,217 1,825,217 550,000 100.00%
========= ========= ======= ========
</TABLE>
If the equity investment of the Purchaser exceeds $28,660,000, due to the
unavailability of the full amount of the contemplated debt financing, then the
aggregate number of rollover shares shall be increased so that the aggregate
value of all of the Rollover Stock equals 11.11% of such equity investment, and
the aggregate number of cashed out shares shall be decreased in an amount equal
to the increase in the aggregate number of shares of Rollover Stock. This
increase and decrease in the number of rollover shares and cashed out shares,
respectively, shall be allocated among Robin Prever, Anthony Malatino, Warren
Lichtenstein, Steel Partners, II, L.P., Steve Bogen, Pershing Keen Nominee
Limited and Jurg Walker in accordance with the following respective
percentages: 12.1429%, 29.2857%, [ ]%, 18.5714%, 15.0000%, 10.7143%, and
14.2857%.
A-A-1
<PAGE>
EXHIBIT A TO ANNEX A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SARATOGA BEVERAGE GROUP, INC.
Saratoga Beverage Group, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is Saratoga Beverage Group, Inc. The
Corporation was initially incorporated in the State of Delaware under the name
of Saratoga Spring Water Company on May 5, 1993.
2. This Amended and Restated Certificate of Incorporation was proposed by
the Board of Directors of the Corporation and adopted by the stockholders of
the Corporation in the manner and by the vote prescribed by Sections 242 and
245 of the General Corporation Law of the State of Delaware, and is as follows:
FIRST: The name of the Corporation is Saratoga Beverage Group, Inc.
SECOND: The Corporation's registered office in the State of Delaware is at
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business of the Corporation and its purpose is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The aggregate number of shares of capital stock which the
Corporation shall have authority to issue is shares of common stock, par
value $ per share.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for the
purpose of creating, defining, limiting and regulating the powers of the
Corporation and its directors and stockholders:
(a) The number of directors of the Corporation shall be fixed and may be
altered from time to time in the manner provided in the By-Laws, and
vacancies in the Board of Directors and newly created directorships
resulting from any increase in the authorized number of directors may be
filled, and directors may be removed, as provided in the By-Laws.
(b) The election of directors may be conducted in any manner approved by
the stockholders at the time when the election is held and need not be by
written ballot.
(c) All corporate powers and authority of the Corporation (except as at
the time otherwise provided by law, by this Certificate of Incorporation or
by the By-Laws) shall be vested in and exercised by the Board of Directors.
(d) The Board of Directors shall have the power without the assent or
vote of the stockholders to adopt, amend, alter or repeal the By-Laws of
the Corporation, except to the extent that the By-Laws or this Certificate
of Incorporation otherwise provide.
(e) No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of his or her fiduciary
duty as a director, provided that nothing contained in this Article shall
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in
Exhibit A-1
<PAGE>
good faith or which involve intentional misconduct or a knowing violation
of the law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware or (iv) for any transaction from which the director
derived an improper personal benefit.
SIXTH: The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner now or hereafter
prescribed by the laws of the State of Delaware, and all rights herein
conferred upon stockholders or directors are granted subject to this
reservation.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by , its Secretary, this day of , 2000.
SARATOGA BEVERAGE GROUP, INC.
By:
-------------------------------
Name:
Title:
Exhibit A-2
<PAGE>
EXHIBIT B TO ANNEX A
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SARATOGA BEVERAGE GROUP, INC.
AMENDED AND RESTATED BY-LAWS
As adopted on , 2000
- --------------------------------------------------------------------------------
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
AMENDED AND RESTATED BY-LAWS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
- ------------- -----
<S> <C> <C>
ARTICLE I
STOCKHOLDERS ...................................................... 1
Section 1.01. Annual Meetings ..................................... 1
Section 1.02. Special Meetings .................................... 1
Section 1.03. Notice of Meetings; Waiver .......................... 1
Section 1.04. Quorum .............................................. 1
Section 1.05. Voting .............................................. 1
Section 1.06. Voting by Ballot .................................... 2
Section 1.07. Adjournment ......................................... 2
Section 1.08. Proxies ............................................. 2
Section 1.09. Organization; Procedure ............................. 2
Section 1.10. Consent of Stockholders in Lieu of Meeting .......... 3
ARTICLE II
BOARD OF DIRECTORS ................................................ 3
Section 2.01. General Powers ...................................... 3
Section 2.02. Number and Term of Office ........................... 3
Section 2.03. Election of Directors ............................... 3
Section 2.04. Annual and Regular Meetings ......................... 3
Section 2.05. Special Meetings; Notice ............................ 4
Section 2.06. Quorum; Voting ...................................... 4
Section 2.07. Adjournment ......................................... 4
Section 2.08. Action Without a Meeting ............................ 4
Section 2.09. Regulations; Manner of Acting ....................... 4
Section 2.10. Action by Telephonic Communications ................. 4
Section 2.11. Resignations ........................................ 4
Section 2.12. Removal of Directors ................................ 4
Section 2.13. Vacancies and Newly Created Directorships ........... 4
Section 2.14. Compensation ........................................ 5
Section 2.15. Reliance on Accounts and Reports, etc ............... 5
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES .......................... 5
Section 3.01. How Constituted ..................................... 5
Section 3.02. Powers .............................................. 5
Section 3.03. Proceedings ......................................... 5
Section 3.04. Quorum and Manner of Acting ......................... 5
Section 3.05. Action by Telephonic Communications ................. 6
Section 3.06. Absent or Disqualified Members ...................... 6
Section 3.07. Resignations ........................................ 6
Section 3.08. Removal ............................................. 6
Section 3.09. Vacancies ........................................... 6
</TABLE>
Exhibit B-i
<PAGE>
<TABLE>
<CAPTION>
SECTION PAGE
- ------------- -----
<S> <C> <C>
ARTICLE IV
OFFICERS ................................................................. 6
Section 4.01. Number ..................................................... 6
Section 4.02. Election ................................................... 6
Section 4.03. Salaries ................................................... 6
Section 4.04. Removal and Resignation; Vacancies ......................... 6
Section 4.05. Authority and Duties of Officers ........................... 6
Section 4.06. The President .............................................. 7
Section 4.07. The Vice Presidents ........................................ 7
Section 4.08. The Secretary .............................................. 7
Section 4.09. The Treasurer .............................................. 7
Section 4.10. Additional Officers ........................................ 8
Section 4.11. Security ................................................... 8
ARTICLE V
CAPITAL STOCK ............................................................ 8
Section 5.01. Certificates of Stock ...................................... 8
Section 5.02. Signatures; Facsimile ...................................... 8
Section 5.03. Lost, Stolen or Destroyed Certificates ..................... 9
Section 5.04. Transfer of Stock .......................................... 9
Section 5.05. Record Date ................................................ 9
Section 5.06. Registered Stockholders .................................... 10
Section 5.07. Transfer Agent and Registrar ............................... 10
ARTICLE VI
INDEMNIFICATION .......................................................... 10
Section 6.01. Nature of Indemnity ........................................ 10
Section 6.02. Successful Defense ......................................... 10
Section 6.03. Determination That Indemnification Is Proper ............... 11
Section 6.04. Advance Payment of Expenses ................................ 11
Section 6.05. Procedure for Indemnification of Directors and Officers .... 11
Section 6.06. Survival; Preservation of Other Rights ..................... 11
Section 6.07. Insurance .................................................. 12
Section 6.08. Severability ............................................... 12
ARTICLE VII
OFFICES .................................................................. 12
Section 7.01. Registered Office .......................................... 12
Section 7.02. Other Offices .............................................. 12
ARTICLE VIII
GENERAL PROVISIONS ....................................................... 12
Section 8.01. Dividends .................................................. 12
Section 8.02. Reserves ................................................... 13
Section 8.03. Execution of Instruments ................................... 13
Section 8.04. Corporate Indebtedness ..................................... 13
Section 8.05. Deposits ................................................... 13
Section 8.06. Checks ..................................................... 13
Section 8.07. Sale, Transfer, etc. of Securities ......................... 13
Section 8.08. Voting as Stockholder ...................................... 13
Section 8.09. Fiscal Year ................................................ 13
</TABLE>
Exhibit B-ii
<PAGE>
<TABLE>
<CAPTION>
SECTION PAGE
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<S> <C> <C>
Section 8.10. Seal ................................... 13
Section 8.11. Books and Records; Inspection .......... 14
ARTICLE IX
AMENDMENT OF BY-LAWS .................................. 14
Section 9.01. Amendment .............................. 14
ARTICLE X
CONSTRUCTION .......................................... 14
Section 10.01. Construction ........................... 14
</TABLE>
Exhibit B-iii
<PAGE>
SARATOGA BEVERAGE GROUP, INC.
AMENDED AND RESTATED BY-LAWS
AS ADOPTED ON , 2000
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meetings. The annual meeting of the stockholders of
the Corporation for the election of directors and for the transaction of such
other business as properly may come before such meeting shall be held at such
place, either within or without the State of Delaware, and at 10:00 a.m. local
time on the first Tuesday in July (or, if such day is a legal holiday, then on
the next succeeding business day), or at such other date and hour, as may be
fixed from time to time by resolution of the Board of Directors and set forth
in the notice or waiver of notice of the meeting. [Sections 211(a), (b).](1)
Section 1.02. Special Meetings. Special meetings of the stockholders may
be called at any time by the President (or, in the event of his absence or
disability, by any Vice President), or by the Board of Directors. A special
meeting shall be called by the President (or, in the event of his absence or
disability, by any Vice President), or by the Secretary, immediately upon
receipt of a written request therefor by stockholders holding in the aggregate
not less than a majority of the outstanding shares of the Corporation at the
time entitled to vote at any meeting of the stockholders. If such officers or
the Board of Directors shall fail to call such meeting within 20 days after
receipt of such request, any stockholder executing such request may call such
meeting. Such special meetings of the stockholders shall be held at such
places, within or without the State of Delaware, as shall be specified in the
respective notices or waivers of notice thereof. [Section 211(d).]
Section 1.03. Notice of Meetings; Waiver. The Secretary or any Assistant
Secretary shall cause written notice of the place, date and hour of each
meeting of the stockholders, and, in the case of a special meeting, the purpose
or purposes for which such meeting is called, to be given personally or by
mail, not less than ten nor more than sixty days prior to the meeting, to each
stockholder of record entitled to vote at such meeting. If such notice is
mailed, it shall be deemed to have been given to a stockholder when deposited
in the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the record of stockholders of the Corporation, or, if
he shall have filed with the Secretary of the Corporation a written request
that notices to him be mailed to some other address, then directed to him at
such other address. Such further notice shall be given as may be required by
law.
No notice of any meeting of stockholders need be given to any stockholder
who submits a signed waiver of notice, whether before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in a written waiver of
notice. The attendance of any stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened. [Sections 222, 229.]
Section 1.04. Quorum. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting. [Section 216.]
Section 1.05. Voting. If, pursuant to Section 5.05 of these By-Laws, a
record date has been fixed, every holder of record of shares entitled to vote
at a meeting of stockholders shall be entitled to one
- ----------
1 Citations are to the General Corporation Law of the State of Delaware as in
effect on April 15, 1999 (the "GCL"), and are inserted for reference only,
and do not constitute a part of the By-Laws.
Exhibit B-1
<PAGE>
vote for each share outstanding in his name on the books of the Corporation at
the close of business on such record date. If no record date has been fixed,
then every holder of record of shares entitled to vote at a meeting of
stockholders shall be entitled to one vote for each share of stock standing in
his name on the books of the Corporation at the close of business on the day
next preceding the day on which notice of the meeting is given, or, if notice
is waived, at the close of business on the day next preceding the day on which
the meeting is held. Except as otherwise required by law or by the Certificate
of Incorporation, the vote of a majority of the shares represented in person or
by proxy at any meeting at which a quorum is present shall be sufficient for
the transaction of any business at such meeting. [Sections 212(a), 216.]
Section 1.06. Voting by Ballot. No vote of the stockholders need be taken
by written ballot or conducted by Inspectors of Elections unless otherwise
required by law. Any vote which need not be taken by ballot may be conducted in
any manner approved by the meeting.
Section 1.07. Adjournment. If a quorum is not present at any meeting of
the stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place, date and hour thereof are announced at the meeting at
which the adjournment is taken, provided, however, that if the adjournment is
for more than thirty days, or if after the adjournment a new record date for
the adjourned meeting is fixed pursuant to Section 5.05 of these By-Laws, a
notice of the adjourned meeting, conforming to the requirements of Section 1.03
hereof, shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting at which a quorum is present, any business
may be transacted that might have been transacted on the original date of the
meeting. [Section 222(c).]
Section 1.08. Proxies. Any stockholder entitled to vote at any meeting of
the stockholders or to express consent to or dissent from corporate action
without a meeting may authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. A stockholder may
authorize a valid proxy by executing a written instrument signed by such
stockholder, or by causing his or her signature to be affixed to such writing
by any reasonable means including, but not limited to, by facsimile signature,
or by transmitting or authorizing the transmission of a telegram, cablegram or
other means of electronic transmission to the person designated as the holder
of the proxy, a proxy solicitation firm or a like authorized agent. No such
proxy shall be voted or acted upon after the expiration of three years from the
date of such proxy, unless such proxy provides for a longer period. Every proxy
shall be revocable at the pleasure of the stockholder executing it, except in
those cases where applicable law provides that a proxy shall be irrevocable. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by filing another duly executed proxy bearing a later date with the
Secretary. Proxies by telegram, cablegram or other electronic transmission must
either set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder. Any copy, facsimile telecommunication or other
reliable reproduction of a writing or transmission created pursuant to this
section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission. [Sections 212(b), (c).]
Section 1.09. Organization; Procedure. At every meeting of stockholders
the presiding officer shall be the President or, in the event of his absence or
disability, a presiding officer chosen by a majority of the stockholders
present in person or by proxy. The Secretary, or in the event of his absence or
disability, the Assistant Secretary, if any, or if there be no Assistant
Secretary, in the absence of the Secretary, an appointee of the presiding
officer, shall act as Secretary of the meeting. The order of business and all
other matters of procedure at every meeting of stockholders may be determined
by such presiding officer.
Exhibit B-2
<PAGE>
Section 1.10. Consent of Stockholders in Lieu of Meeting. To the fullest
extent permitted by law, whenever the vote of stockholders at a meeting thereof
is required or permitted to be taken for or in connection with any corporate
action, such action may be taken without a meeting, without prior notice and
without a vote of stockholders, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the earliest
dated consent delivered in the manner required by law to the Corporation,
written consents signed by a sufficient number of holders or members to take
action are delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery made to the Corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. [Section 228.]
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers. Except as may otherwise be provided by law,
by the Certificate of Incorporation or by these By-Laws, the property, affairs
and business of the Corporation shall be managed by or under the direction of
the Board of Directors and the Board of Directors may exercise all the powers
of the Corporation. [Section 141(a).]
Section 2.02. Number and Term of Office. The number of Directors
constituting the entire Board of Directors shall be seven (7), which number may
be modified from time to time by resolution of the Board of Directors, but in
no event shall the number of Directors be less than one. Each Director
(whenever elected) shall hold office until his successor has been duly elected
and qualified, or until his earlier death, resignation or removal. [Section
141(b).]
Section 2.03. Election of Directors. Except as otherwise provided in
Sections 2.12 and 2.13 of these By-Laws, the Directors shall be elected at each
annual meeting of the stockholders. If the annual meeting for the election of
Directors is not held on the date designated therefor, the Directors shall
cause the meeting to be held as soon thereafter as convenient. At each meeting
of the stockholders for the election of Directors, provided a quorum is
present, the Directors shall be elected by a plurality of the votes validly
cast in such election. [Sections 211(b), (c), 216.]
Section 2.04. Annual and Regular Meetings. The annual meeting of the Board
of Directors for the purpose of electing officers and for the transaction of
such other business as may come before the meeting shall be held as soon as
possible following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders. Notice of such annual meeting
of the Board of Directors need not be given. The Board of Directors from time
to time may by resolution provide for the holding of regular meetings and fix
the place (which may be within or without the State of Delaware) and the date
and hour of such meetings. Notice of regular meetings need not be given,
provided, however, that if the Board of Directors shall fix or change the time
or place of any regular meeting, notice of such action shall be mailed
promptly, or sent by telegram, radio or cable, to each Director who shall not
have been present at the meeting at which such action was taken, addressed to
him at his usual place of business, or shall be delivered to him personally.
Notice of such action need not be given to any Director who attends the first
regular meeting after such action is taken without protesting the lack of
notice to him, prior to or at the commencement of such meeting, or to any
Director who submits a signed waiver of notice, whether before or after such
meeting. [Section 141(g).]
Exhibit B-3
<PAGE>
Section 2.05. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the President or, in the event of
his absence or disability, by any Vice President, at such place (within or
without the State of Delaware), date and hour as may be specified in the
respective notices or waivers of notice of such meetings. Special meetings of
the Board of Directors may be called on 24 hours' notice, if notice is given to
each Director personally or by telephone or telegram, or on five days' notice,
if notice is mailed to each Director, addressed to him at his usual place of
business. Notice of any special meeting need not be given to any Director who
attends such meeting without protesting the lack of notice to him, prior to or
at the commencement of such meeting, or to any Director who submits a signed
waiver of notice, whether before or after such meeting, and any business may be
transacted thereat. [Sections 141(g), 229.]
Section 2.06. Quorum; Voting. At all meetings of the Board of Directors,
the presence of a majority of the total authorized number of Directors shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the vote of a majority of the Directors present at any meeting
at which a quorum is present shall be the act of the Board of Directors.
[Section 141(b).]
Section 2.07. Adjournment. A majority of the Directors present, whether or
not a quorum is present, may adjourn any meeting of the Board of Directors to
another time or place. No notice need be given of any adjourned meeting unless
the time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section
2.05 shall be given to each Director.
Section 2.08. Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if all members of the Board of Directors consent thereto in writing,
and such writing or writings are filed with the minutes of proceedings of the
Board of Directors. [Section 141(f).]
Section 2.09. Regulations; Manner of Acting. To the extent consistent with
applicable law, the Certificate of Incorporation and these By-Laws, the Board
of Directors may adopt such rules and regulations for the conduct of meetings
of the Board of Directors and for the management of the property, affairs and
business of the Corporation as the Board of Directors may deem appropriate. The
Directors shall act only as a Board, and the individual Directors shall have no
power as such.
Section 2.10. Action by Telephonic Communications. Members of the Board of
Directors may participate in a meeting of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
a meeting pursuant to this provision shall constitute presence in person at
such meeting. [Section 141(i).]
Section 2.11. Resignations. Any Director may resign at any time by
delivering a written notice of resignation, signed by such Director, to the
President or the Secretary. Unless otherwise specified therein, such
resignation shall take effect upon delivery. [Section 141(b).]
Section 2.12. Removal of Directors. Any Director may be removed at any
time, either for or without cause, upon the affirmative vote of the holders of
a majority of the outstanding shares of stock of the Corporation entitled to
vote for the election of such Director, cast at a special meeting of
stockholders called for the purpose. Any vacancy in the Board of Directors
caused by any such removal may be filled at such meeting by the stockholders
entitled to vote for the election of the Director so removed. If such
stockholders do not fill such vacancy at such meeting (or in the written
instrument effecting such removal, if such removal was effected by consent
without a meeting), such vacancy may be filled in the manner provided in
Section 2.13 of these By-Laws. [Section 141(b).]
Section 2.13. Vacancies and Newly Created Directorships. If any vacancies
shall occur in the Board of Directors, by reason of death, resignation, removal
or otherwise, or if the authorized number of Directors shall be increased, the
Directors then in office shall continue to act, and such vacancies and newly
created directorships may be filled by a majority of the Directors then in
office, although less than a quorum. A Director elected to fill a vacancy or a
newly created directorship shall hold office until his successor has been
elected and qualified or until his earlier death, resignation or removal. Any
such vacancy or newly created directorship may also be filled at any time by
vote of the stockholders. [Section 223.]
Exhibit B-4
<PAGE>
Section 2.14. Compensation. The amount, if any, which each Director shall
be entitled to receive as compensation for his services as such shall be fixed
from time to time by resolution of the Board of Directors. [Section 141(h).]
Section 2.15. Reliance on Accounts and Reports, etc. A Director, or a
member of any Committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
records of the Corporation and upon information, opinions, reports or
statements presented to the Corporation by any of the Corporation's officers or
employees, or Committees designated by the Board of Directors, or by any other
person as to the matters the member reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation. [Section 141(e).]
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.01. How Constituted. The Board of Directors may designate one or
more Committees, including an Executive Committee, each such Committee to
consist of such number of Directors as from time to time may be fixed by the
Board of Directors. The Board of Directors may designate one or more Directors
as alternate members of any such Committee, who may replace any absent or
disqualified member or members at any meeting of such Committee. Thereafter,
members (and alternate members, if any) of each such Committee may be
designated at the annual meeting of the Board of Directors. Any such Committee
may be abolished or re-designated from time to time by the Board of Directors.
Each member (and each alternate member) of any such Committee (whether
designated at an annual meeting of the Board of Directors or to fill a vacancy
or otherwise) shall hold office until his successor shall have been designated
or until he shall cease to be a Director, or until his earlier death,
resignation or removal. [Section 141(c).]
Section 3.02. Powers. During the intervals between the meetings of the
Board of Directors, the Executive Committee, except as otherwise provided in
this section, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the property, affairs and business of
the Corporation. Each such other Committee, except as otherwise provided in
this section, shall have and may exercise such powers of the Board of Directors
as may be provided by resolution or resolutions of the Board of Directors.
Neither the Executive Committee nor any such other Committee shall have the
power or authority:
(a) to approve or adopt, or to recommend to the stockholders, any action
or matter expressly required by the General Corporation Law of the State of
Delaware to be submitted to the stockholders for approval; or,
(b) to adopt, amend or repeal any by-law of the Corporation.
The Executive Committee shall have, and any such other Committee may be granted
by the Board of Directors, power to authorize the seal of the Corporation to be
affixed to any or all papers which may require it. [Section 141(c).]
Section 3.03. Proceedings. Each such Committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time. Each such Committee shall keep minutes of its proceedings and shall
report such proceedings to the Board of Directors at the meeting of the Board
of Directors next following any such proceedings.
Section 3.04. Quorum and Manner of Acting. Except as may be otherwise
provided in the resolution creating such Committee, at all meetings of any
Committee the presence of members (or alternate members) constituting a
majority of the total authorized membership of such Committee shall constitute
a quorum for the transaction of business. The act of the majority of the
members present at any meeting at which a quorum is present shall be the act of
such Committee. Any action required or permitted to be taken at any meeting of
any such Committee may be taken without a meeting, if all members of such
Committee shall consent to such action in writing and such writing or
Exhibit B-5
<PAGE>
writings are filed with the minutes of the proceedings of the Committee. The
members of any such Committee shall act only as a Committee, and the individual
members of such Committee shall have no power as such. [Section 141(c).]
Section 3.05. Action by Telephonic Communications. Members of any
Committee designated by the Board of Directors may participate in a meeting of
such Committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting. [Section 141(i).]
Section 3.06. Absent or Disqualified Members. In the absence or
disqualification of a member of any Committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member. [Section 141(c).]
Section 3.07. Resignations. Any member (and any alternate member) of any
Committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Chairman or the President. Unless otherwise
specified therein, such resignation shall take effect upon delivery.
Section 3.08. Removal. Any member (and any alternate member) of any
Committee may be removed at any time, either for or without cause, by
resolution adopted by a majority of the whole Board of Directors.
Section 3.09. Vacancies. If any vacancy shall occur in any Committee, by
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, and any
such vacancy may be filled by the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.01. Number. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a President, one or more Vice Presidents, a
Secretary and a Treasurer. The Board of Directors also may elect one or more
Assistant Secretaries and Assistant Treasurers in such numbers as the Board of
Directors may determine, and such other officers as the Board of Directors
deems desirable. Any number of offices may be held by the same person. No
officer need be a Director of the Corporation. [Section 142(a), (b).]
Section 4.02. Election. Unless otherwise determined by the Board of
Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual
meeting, officers may be elected at any regular or special meeting of the Board
of Directors. Each officer shall hold office until his successor has been
elected and qualified, or until his earlier death, resignation or removal.
[Section 142(b).]
Section 4.03. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
Section 4.04. Removal and Resignation; Vacancies. Any officer may be
removed for or without cause at any time by the Board of Directors. Any officer
may resign at any time by delivering a written notice of resignation, signed by
such officer, to the Board of Directors or the President. Unless otherwise
specified therein, such resignation shall take effect upon delivery. Any
vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise, shall be filled by the Board of Directors. [Section
142(b), (e).]
Section 4.05. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and
perform such duties as may be specified in these By-Laws, except that in any
event each officer shall exercise such powers and perform such duties as may be
required by law. [Section 142(a).]
Exhibit B-6
<PAGE>
Section 4.06. The President. The President shall preside at all meetings
of the stockholders and directors at which he is present, shall be the chief
executive officer and the chief operating officer of the Corporation, shall
have general control and supervision of the policies and operations of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall manage and administer the
Corporation's business and affairs and shall also perform all duties and
exercise all powers usually pertaining to the office of a chief executive
officer and a chief operating officer of a corporation. He shall have the
authority to sign, in the name and on behalf of the Corporation, checks,
orders, contracts, leases, notes, drafts and other documents and instruments in
connection with the business of the Corporation, and together with the
Secretary or an Assistant Secretary, conveyances of real estate and other
documents and instruments to which the seal of the Corporation is affixed. He
shall have the authority to cause the employment or appointment of such
employees and agents of the Corporation as the conduct of the business of the
Corporation may require, to fix their compensation, and to remove or suspend
any employee or agent elected or appointed by the President or the Board of
Directors. The President shall perform such other duties and have such other
powers as the Board of Directors or the Chairman may from time to time
prescribe.
Section 4.07. The Vice Presidents. Each Vice President shall perform such
duties and exercise such powers as may be assigned to him from time to time by
the President. In the absence of the President, the duties of the President
shall be performed and his powers may be exercised by such Vice President as
shall be designated by the President, or failing such designation, such duties
shall be performed and such powers may be exercised by each Vice President in
the order of their earliest election to that office; subject in any case to
review and superseding action by the President.
Section 4.08. The Secretary. The Secretary shall have the following powers
and duties:
(a) He shall keep or cause to be kept a record of all the proceedings of
the meetings of the stockholders and of the Board of Directors in books
provided for that purpose.
(b) He shall cause all notices to be duly given in accordance with the
provisions of these By-Laws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a resolution of
the Board of Directors, he shall furnish a copy of such resolution to the
members of such Committee.
(d) He shall be the custodian of the records and of the seal of the
Corporation and cause such seal (or a facsimile thereof) to be affixed to
all certificates representing shares of the Corporation prior to the
issuance thereof and to all instruments the execution of which on behalf of
the Corporation under its seal shall have been duly authorized in
accordance with these By-Laws, and when so affixed he may attest the same.
(e) He shall properly maintain and file all books, reports, statements,
certificates and all other documents and records required by law, the
Certificate of Incorporation or these By-Laws.
(f) He shall have charge of the stock books and ledgers of the
Corporation and shall cause the stock and transfer books to be kept in such
manner as to show at any time the number of shares of stock of the
Corporation of each class issued and outstanding, the names (alphabetically
arranged) and the addresses of the holders of record of such shares, the
number of shares held by each holder and the date as of which each became
such holder of record.
(g) He shall sign (unless the Treasurer, an Assistant Treasurer or
Assistant Secretary shall have signed) certificates representing shares of
the Corporation the issuance of which shall have been authorized by the
Board of Directors.
(h) He shall perform, in general, all duties incident to the office of
secretary and such other duties as may be specified in these By-Laws or as
may be assigned to him from time to time by the Board of Directors, or the
President.
Section 4.09. The Treasurer. The Treasurer shall be the chief financial
officer of the Corporation and shall have the following powers and duties:
Exhibit B-7
<PAGE>
(a) He shall have charge and supervision over and be responsible for the
moneys, securities, receipts and disbursements of the Corporation, and
shall keep or cause to be kept full and accurate records of all receipts of
the Corporation.
(b) He shall cause the moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or other
depositaries as shall be selected in accordance with Section 8.05 of these
By-Laws.
(c) He shall cause the moneys of the Corporation to be disbursed by
checks or drafts (signed as provided in Section 8.06 of these By-Laws) upon
the authorized depositaries of the Corporation and cause to be taken and
preserved proper vouchers for all moneys disbursed.
(d) He shall render to the Board of Directors or the President, whenever
requested, a statement of the financial condition of the Corporation and of
all his transactions as Treasurer, and render a full financial report at
the annual meeting of the stockholders, if called upon to do so.
(e) He shall be empowered from time to time to require from all officers
or agents of the Corporation reports or statements giving such information
as he may desire with respect to any and all financial transactions of the
Corporation.
(f) He may sign (unless an Assistant Treasurer or the Secretary or an
Assistant Secretary shall have signed) certificates representing stock of
the Corporation the issuance of which shall have been authorized by the
Board of Directors.
(g) He shall perform, in general, all duties incident to the office of
treasurer and such other duties as may be specified in these By-Laws or as
may be assigned to him from time to time by the Board of Directors, or the
President.
Section 4.10. Additional Officers. The Board of Directors may appoint such
other officers and agents as it may deem appropriate, and such other officers
and agents shall hold their offices for such terms and shall exercise such
powers and perform such duties as may be determined from time to time by the
Board of Directors. The Board of Directors from time to time may delegate to
any officer or agent the power to appoint subordinate officers or agents and to
prescribe their respective rights, terms of office, authorities and duties. Any
such officer or agent may remove any such subordinate officer or agent
appointed by him, for or without cause. [Section 142(a), (b).]
Section 4.11. Security. The Board of Directors may require any officer,
agent or employee of the Corporation to provide security for the faithful
performance of his duties, in such amount and of such character as may be
determined from time to time by the Board of Directors. [Section 142(c).]
ARTICLE V
CAPITAL STOCK
Section 5.01. Certificates of Stock. The shares of the Corporation shall
be represented by certificates, provided that the Board of Directors may
provide by resolution or resolutions that some or all of any or all classes or
series of the stock of the Corporation shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until each
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock in the
Corporation represented by certificates and upon request every holder of
uncertificated shares shall be entitled to have a certificate signed by, or in
the name of the Corporation, by the President or a Vice President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary, representing the number of shares registered in certificate form.
Such certificate shall be in such form as the Board of Directors may determine,
to the extent consistent with applicable law, the Certificate of Incorporation
and these By-Laws. [Section 158.]
Section 5.02. Signatures; Facsimile. All of such signatures on the
certificate may be a facsimile, engraved or printed, to the extent permitted by
law. In case any officer, transfer agent or registrar who
Exhibit B-8
<PAGE>
has signed, or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
[Section 158.]
Section 5.03. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Board of Directors of an affidavit of
the owner or owners of such certificate, setting forth such allegation. The
Board of Directors may require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or
the issuance of any such new certificate. [Section 167.]
Section 5.04. Transfer of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to Sections 151, 156, 202(a) or 218(a) of the General Corporation Law
of the State of Delaware. Subject to the provisions of the Certificate of
Incorporation and these By-Laws, the Board of Directors may prescribe such
additional rules and regulations as it may deem appropriate relating to the
issue, transfer and registration of shares of the Corporation. [Section 151.]
Section 5.05. Record Date. In order to determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix, in advance, a record date, which
record date shall not precede the date on which the resolution fixing the
record date is adopted by the Board of Directors, and which shall not be more
than sixty nor less than ten days before the date of such meeting. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting,
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the board of
directors is required by law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be
at the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights of the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not
Exhibit B-9
<PAGE>
more than sixty days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto. [Section 213.]
Section 5.06. Registered Stockholders. Prior to due surrender of a
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice of such claim or interests.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer or uncertificated
shares are requested to be transferred, both the transferor and transferee
request the Corporation to do so. [Section 159.]
Section 5.07. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Nature of Indemnity. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was or has agreed to become a director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
director or officer, of another corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by
reason of the fact that he is or was or has agreed to become an employee or
agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with
such action, suit or proceeding and any appeal therefrom, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding had no reasonable cause to believe his conduct was unlawful; except
that in the case of an action or suit by or in the right of the Corporation to
procure a judgment in its favor (1) such indemnification shall be limited to
expenses (including attorneys' fees) actually and reasonably incurred by such
person in the defense or settlement of such action or suit, and (2) no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper.
The termination of any action, suit or proceeding by judgment, order
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 6.02. Successful Defense. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
6.01 hereof or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Exhibit B-10
<PAGE>
Section 6.03. Determination That Indemnification Is Proper. Any
indemnification of a director or officer of the Corporation under Section 6.01
hereof (unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the director or officer is not
proper in the circumstances because he has not met the applicable standard of
conduct set forth in Section 6.01 hereof. Any indemnification of an employee or
agent of the Corporation under Section 6.01 hereof (unless ordered by a court)
may be made by the Corporation upon a determination that indemnification of the
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 6.01 hereof. Any such
determination shall be made (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than
a quorum, or (3) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (4) by the
stockholders.
Section 6.04. Advance Payment of Expenses. Expenses (including attorneys'
fees) incurred by a director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation as authorized in this
Article. Such expenses (including attorneys' fees) incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate. The Board of Directors may authorize the
Corporation's counsel to represent such director, officer, employee or agent in
any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding.
Section 6.05. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the Corporation under Sections 6.01
and 6.02, or advance of costs, charges and expenses to a director or officer
under Section 6.04 of this Article, shall be made promptly, and in any event
within 30 days, upon the written request of the director or officer. If a
determination by the Corporation that the director or officer is entitled to
indemnification pursuant to this Article is required, and the Corporation fails
to respond within sixty days to a written request for indemnity, the
Corporation shall be deemed to have approved such request. If the Corporation
denies a written request for indemnity or advancement of expenses, in whole or
in part, or if payment in full pursuant to such request is not made within 30
days, the right to indemnification or advances as granted by this Article shall
be enforceable by the director or officer in any court of competent
jurisdiction. Such person's costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such action shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim for
the advance of costs, charges and expenses under Section 6.04 of this Article
where the required undertaking, if any, has been received by the Corporation)
that the claimant has not met the standard of conduct set forth in Section 6.01
of this Article, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 6.01 of this Article, nor the fact
that there has been an actual determination by the Corporation (including its
Board of Directors, its independent legal counsel, and its stockholders) that
the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 6.06. Survival; Preservation of Other Rights. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously
Exhibit B-11
<PAGE>
existing or any action, suit or proceeding previously or thereafter brought or
threatened based in whole or in part upon any such state of facts. Such a
"contract right" may not be modified retroactively without the consent of such
director, officer, employee or agent.
The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 6.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article,
provided that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the entire Board of
Directors.
Section 6.08. Severability. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE VII
OFFICES
Section 7.01. Registered Office. The registered office of the Corporation
in the State of Delaware shall be located at Corporation Trust Center, 1209
Orange Street in the City of Wilmington, County of New Castle.
Section 7.02. Other Offices. The Corporation may maintain offices or
places of business at such other locations within or without the State of
Delaware as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends. Subject to any applicable provisions of law and
the Certificate of Incorporation, dividends upon the shares of the Corporation
may be declared by the Board of Directors at any regular or special meeting of
the Board of Directors and any such dividend may be paid in cash, property, or
shares of the Corporation's Capital Stock.
A member of the Board of Directors, or a member of any Committee
designated by the Board of Directors shall be fully protected in relying in
good faith upon the records of the Corporation and upon such information,
opinions, reports or statements presented to the Corporation by any of its
officers or employees, or Committees of the Board of Directors, or by any other
person as to matters the Director reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation, as to the value and amount
of the assets, liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other funds from
which dividends might properly be declared and paid. [Sections 172, 173.]
Exhibit B-12
<PAGE>
Section 8.02. Reserves. There may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, thinks proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Corporation or for such other purpose as the
Board of Directors shall think conducive to the interest of the Corporation,
and the Board of Directors may similarly modify or abolish any such reserve.
[Section 171.]
Section 8.03. Execution of Instruments. The President, any Vice President,
the Secretary or the Treasurer may enter into any contract or execute and
deliver any instrument in the name and on behalf of the Corporation. The Board
of Directors or the President may authorize any other officer or agent to enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation. Any such authorization may be general or limited to
specific contracts or instruments.
Section 8.04. Corporate Indebtedness. No loan shall be contracted on
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors or the President. Such
authorization may be general or confined to specific instances. Loans so
authorized may be effected at any time for the Corporation from any bank, trust
company or other institution, or from any firm, corporation or individual. All
bonds, debentures, notes and other obligations or evidences of indebtedness of
the Corporation issued for such loans shall be made, executed and delivered as
the Board of Directors or the President shall authorize. When so authorized by
the Board of Directors or the President, any part of or all the properties,
including contract rights, assets, business or good will of the Corporation,
whether then owned or thereafter acquired, may be mortgaged, pledged,
hypothecated or conveyed or assigned in trust as security for the payment of
such bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation, and of the interest thereon, by instruments
executed and delivered in the name of the Corporation.
Section 8.05. Deposits. Any funds of the Corporation may be deposited from
time to time in such banks, trust companies or other depositaries as may be
determined by the Board of Directors or the President, or by such officers or
agents as may be authorized by the Board of Directors or the President to make
such determination.
Section 8.06. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such agent or agents
of the Corporation, and in such manner, as the Board of Directors or the
President from time to time may determine.
Section 8.07. Sale, Transfer, etc. of Securities. To the extent authorized
by the Board of Directors or by the President, any Vice President, the
Secretary or the Treasurer or any other officers designated by the Board of
Directors or the President may sell, transfer, endorse, and assign any shares
of stock, bonds or other securities owned by or held in the name of the
Corporation, and may make, execute and deliver in the name of the Corporation,
under its corporate seal, any instruments that may be appropriate to effect any
such sale, transfer, endorsement or assignment.
Section 8.08. Voting as Stockholder. Unless otherwise determined by
resolution of the Board of Directors, the President or any Vice President shall
have full power and authority on behalf of the Corporation to attend any
meeting of stockholders of any corporation in which the Corporation may hold
stock, and to act, vote (or execute proxies to vote) and exercise in person or
by proxy all other rights, powers and privileges incident to the ownership of
such stock. Such officers acting on behalf of the Corporation shall have full
power and authority to execute any instrument expressing consent to or dissent
from any action of any such corporation without a meeting. The Board of
Directors may by resolution from time to time confer such power and authority
upon any other person or persons.
Section 8.09. Fiscal Year. The fiscal year of the Corporation shall
commence on the first day of January of each year (except for the Corporation's
first fiscal year which shall commence on the date of incorporation) and shall
terminate in each case on the last day of December.
Section 8.10. Seal. The seal of the Corporation shall be circular in form
and shall contain the name of the Corporation, the year of its incorporation
and the words "Corporate Seal" and
Exhibit B-13
<PAGE>
"Delaware". The form of such seal shall be subject to alteration by the Board
of Directors. The seal may be used by causing it or a facsimile thereof to be
impressed, affixed or reproduced, or may be used in any other lawful manner.
Section 8.11. Books and Records; Inspection. Except to the extent
otherwise required by law, the books and records of the Corporation shall be
kept at such place or places within or without the State of Delaware as may be
determined from time to time by the Board of Directors.
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 9.01. Amendment. These By-Laws may be amended, altered or repealed
(a) by resolution adopted by a majority of the Board of Directors at any
special or regular meeting of the Board if, in the case of such special
meeting only, notice of such amendment, alteration or repeal is contained
in the notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders if, in the case
of such special meeting only, notice of such amendment, alteration or
repeal is con tained in the notice or waiver of notice of such meeting.
[Section 109(a).]
ARTICLE X
CONSTRUCTION
Section 10.01. Construction. In the event of any conflict between the
provisions of these By-Laws as in effect from time to time and the provisions
of the certi ficate of incorporation of the Corporation as in effect from time
to time, the provisions of such certificate of incorporation shall be
controlling.
Exhibit B-14
<PAGE>
ANNEX B
January 5, 2000
Special Committee to the Board of Directors
Saratoga Beverage Group, Inc.
11 Geyser Road
Saratoga Springs, NY 12866
Gentlemen:
We understand that NCP-SBG, L.P. ("North Castle") and Saratoga Beverage
Group, Inc ("TOGA" or the "Company") propose to enter into a Stock Purchase
Agreement and Agreement and Plan of Merger (the "Merger Agreement"), whereby
NCP-SBG, L.P., a wholly-owned subsidiary of North Castle Partners, L.L.C., will
merge with and into the Company (the "Transaction") whereby each outstanding
share of common stock (the "Common Stock"), par value of $0.01 per share, of
the Company (other than shares of Common Stock owned by certain members of
management and other investors (the "Rollover Shares"), which will convert into
shares of the surviving corporation in such merger) will be converted into the
right to receive $6.00 (the "Merger Consideration"). We did not, at your
request, participate in the negotiation of the Merger Consideration.
You have requested our opinion as to the fairness to the shareholders
(other than the holders of Rollover Shares) of the Company, from a financial
point of view, of the Merger Consideration to be paid to such holders in the
Transaction (the "Opinion"). It is understood that the Opinion shall be used by
you solely in connection with your consideration of the fairness of the Merger
Consideration to be paid to the shareholders (other than the holders of
Rollover Shares) of the Company and for no other purpose, and that you will not
furnish the Opinion or any other material prepared by Schroder & Co. Inc.
("Schroders") to any other person or persons or use or refer to the Opinion for
any other purpose without Schroders' prior written approval. Schroders
understands and agrees that its Opinion may be referred to and reproduced in
full in any proxy statement mailed to shareholders of the Company, provided
that the disclosure of the Opinion shall be subject to Schroders' review and
consent, which consent shall not be unreasonably withheld.
Schroders, as part of its investment banking business, is regularly
engaged in the valuation of businesses and their securities in connection with
mergers and acquisitions, negotiated underwritings, secondary distributions of
listed and unlisted securities, private placements and valuation for estate,
corporate and other purposes.
Our opinion does not address the Company's underlying business decision to
effect the Merger. At your direction, we have not been asked to, nor do we,
offer any opinion as to the material terms of the Merger Agreement or the form
of the Transaction. In rendering this opinion, we have assumed, with your
consent, that the final executed form of the Merger Agreement does not differ
in any material respect from the draft we have examined, and that the
Transaction will be consummated on the terms set forth in the Merger Agreement.
We have further assumed that the Merger will comply with applicable United
States, foreign, federal and state laws.
In connection with our opinion set forth herein, we have, among other
things:
(i) reviewed the Company's Annual Reports on Form 10-K filed with
the Commission for the fiscal year ended December 31, 1998,
including the financial statements for the twelve month period
ending December 31, 1997; and its Quarterly Report on Form 10-Q
for the nine month period and quarter ended September 30, 1999,
including the financial statements for the nine month period and
quarter ended September 30, 1998;
B-1
<PAGE>
(ii) reviewed The Fresh Juice Company's audited financial statements
for the twelve month period ended November 30, 1998; and its
Quarterly Report on Form 10-Q for the nine month period and
quarter ended August 31, 1998, including the financial statements
for the nine-month period and quarter ended August 31, 1997;
(iii) reviewed the unaudited historical financial information for The
Fresh Juice Company for the one-month period ending January 31,
1999, provided by management;
(iv) reviewed the unaudited balance sheet provided by management,
dated November 30, 1999;
(v) reviewed the combined companies' (The Fresh Juice Company and
Saratoga Beverage Group) financial results for the last twelve
months, derived by management using the following financial
information:
(a) TOGA's 10-K for its fiscal year ended December 31, 1998;
(b) TOGA's 10-Q for the nine-month period ended September 30,
1999;
(c) Fresh Juice's audited financial statements for its twelve
month period ended November 30, 1998;
(d) Fresh Juice's 10-Q for the nine month period ended August 31,
1998;
(e) Management estimates of financial results for Fresh Juice for
the one month period ended January 31, 1999;
(vi) reviewed the combined companies' estimates for the twelve months
ending December 31, 1999, derived by management from management
estimates of Fresh Juice's financial results for the one month
period ended January 31, 1999, the financial statements contained
in the Company's Form 10-Q for the nine month period ending
September 30, 1999, and management estimates for the three month
period ended December 31, 1999;
(vii) reviewed certain projected financial information prepared by
management of the Company;
(viii) reviewed certain publicly available information concerning the
Company;
(ix) conducted discussions with the senior management of the Company
concerning the Transaction, the Company's historical financial
results and projected financial information as presented and
described in (i), (iii), (iv), (v), (vi) and (vii) above;
(x) performed various financial analyses, as we deemed appropriate,
of the Company using generally accepted analytical methodologies,
including: (i) the application to the financial results of TOGA
of the public trading multiples of companies which we deemed
comparable; (ii) the application to the financial results of TOGA
of the multiples reflected in recent mergers and acquisitions for
businesses which we deemed comparable; (iii) a discounted cash
flow analysis utilizing the projections referred to in clause
(vi) above, and (iv) the application to the share price of TOGA
of the average equity premiums paid in a large sample of publicly
reported transactions;
(xi) reviewed the historical trading prices and volumes of TOGA's
Common Stock on the NASDAQ National Market System from January 1,
1998 to December 17, 1999;
(xii) reviewed the draft Merger Agreement as distributed on January 5,
1999, including the form of agreements attached thereto as
exhibits;
(xiii) performed such other financial studies, analyses, inquiries and
investigations as we deemed appropriate.
In our review and analysis and in formulating our opinion, we have assumed
and relied upon the accuracy and completeness of all information supplied or
otherwise made available to us by the Company (including, the estimates of
financial results described in clause (iii), (iv), (v) and (vi) above) or
obtained by us from other sources, and upon the assurance of the Company's
management that
B-2
<PAGE>
they are not aware of any information or facts that would make the information
provided to us incomplete or misleading. We have not attempted to independently
verify any of such information. We have not undertaken an independent appraisal
of the assets or liabilities (contingent or otherwise) of the Company, nor have
we been furnished with any such appraisals. With respect to the projected
financial information (as described in clause (v) and (vi) above), we have been
advised by the Company, and we have assumed, without independent verification
or investigation, that they have been reasonably prepared and reflect the best
estimates of management of the Company. In connection with our engagement, we
were not requested to, and did not, actively solicit third party indications of
interest in the possible acquisition of all or a part of TOGA.
Our opinion is necessarily based upon financial, economic, market and
other conditions as they exist and can be evaluated by us on the date hereof.
We disclaim any undertaking or obligation to advise any person of any change in
any fact or matter affecting our opinion which may come or be brought to our
attention after the date of the opinion unless specifically requested to do so.
Our opinion is provided to the Special Committee of the Board of Directors
of the Company only and does not constitute a recommendation as to any action
any shareholder of the Company should take in connection with the Merger
Agreement or any aspect thereof or alternative thereto. Without limitation to
the foregoing, this letter does not constitute a recommendation to any
shareholder with respect to whether to vote in favor of the Transaction, and
should not be relied upon by any shareholder as such. In rendering our opinion,
we have not been engaged as an agent or fiduciary of the Company's shareholders
or of any other third party. Our opinion relates solely to the fairness, from a
financial point of view, to the shareholders (other than the holders of
Rollover Shares) of the Company of the Merger Consideration to be paid to such
holders pursuant to the Merger Agreement.
We have acted as financial adviser to the Special Committee to the Board
of Directors of TOGA in connection with the Transaction and will receive a fee
for such services, a significant portion of which is contingent upon the
consummation of the Transaction. In addition, the Company has agreed to
indemnify us for certain liabilities that may arise out of the rendering of
this Opinion. We bring to your attention that Schroders has previously provided
a fairness opinion to the Board of Directors of the Company in connection with
the Company's acquisition of The Fresh Juice Company. In the ordinary course of
our business, we may trade in the equity securities of the Company for our own
account and for the accounts of our customers and, accordingly, may at any time
hold a long or short position in such securities.
Based upon and subject to all the foregoing, we are of the opinion, that
as of the date hereof, the Merger Consideration to be paid to the shareholders
(other than the holders of Rollover Shares) of the Company pursuant to the
Merger Agreement is fair, from a financial point of view, to such holders.
Very truly yours,
SCHRODER & CO. INC.
By: /s/ SCHRODER & CO. INC.
-----------------------------------
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<PAGE>
ANNEX C
RIGHTS OF DISSENTING STOCKHOLDERS UNDER THE DGCL
In view of the complexity of these provisions of the DGCL, any stockholder
who is considering exercising appraisal rights should consult his or her legal
advisor.
Statutory Appraisal Procedures. The following is a brief summary of the
statutory procedures to be followed by a holder of shares at the Effective Time
who does not wish to accept the per share cash consideration pursuant to the
Merger (a "Remaining Stockholder") in order to dissent from the Merger and
perfect appraisal rights under the DGCL. THIS SUMMARY IS NOT INTENDED TO BE
COMPLETE AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SECTION 262 OF THE
DGCL, THE TEXT OF WHICH IS SET FORTH IN THIS ANNEX C HERETO. ANY REMAINING
STOCKHOLDER CONSIDERING DEMANDING APPRAISAL IS ADVISED TO CONSULT LEGAL
COUNSEL. APPRAISAL RIGHTS WILL NOT BE AVAILABLE UNLESS AND UNTIL THE MERGER (OR
A SIMILAR BUSINESS COMBINATION) IS CONSUMMATED.
Remaining Stockholders of record who desire to exercise their appraisal
rights must fully satisfy all of the following conditions. A written demand for
appraisal of shares must be delivered to the Secretary of the Company before
the taking of the vote on the approval and adoption of the Merger Agreement at
the Special Meeting. This written demand for appraisal of shares must be in
addition to and separate from any proxy or vote abstaining from or against the
approval and adoption of the Merger Agreement, and neither voting against,
abstaining from voting, nor failing to vote on the Merger Agreement will
constitute a demand for appraisal within the meaning of Section 262 of the
DGCL. Any stockholder of record seeking appraisal rights must hold the shares
for which appraisal is sought on the date of the making of the demand,
continuously hold such shares through the Effective Time and otherwise comply
with the provisions of Section 262 of the DGCL.
A demand for appraisal must be executed by or for the stockholder of
record, fully and correctly, as such stockholder's name appears on the stock
certificates. If shares are owned of record in a fiduciary capacity, such as by
a trustee, guardian or custodian, such demand must be executed by the
fiduciary. If shares are owned of record by more than one person, as in a joint
tenancy or tenancy in common, such demand must be executed by all joint owners.
An authorized agent, including an agent for two or more joint owners, may
execute the demand for appraisal for a stockholder of record; however, the
agent must identify the record owner and expressly disclose the fact that in
exercising the demand, he is acting as agent for the record owner.
A record owner, such as a broker, who holds shares as a nominee for
others, may exercise appraisal rights with respect to the shares held for all
or less than all beneficial owners of shares as to which the holder is the
record owner. In such case the written demand must set forth the number of
shares covered by such demand. Where the number of shares is not expressly
stated, the demand will be presumed to cover all shares outstanding in the name
of such record owner. Beneficial owners who are not record owners and who
intend to exercise appraisal rights should instruct the record owner to comply
strictly with the statutory requirements with respect to the exercise of
appraisal rights before the date of the Special Meeting.
Stockholders who elect to exercise appraisal rights must mail or deliver
their written demands to: Secretary, Saratoga Beverage Group, Inc., 11 Geyser
Road, Saratoga Springs, New York 12866. The written demand for appraisal should
specify the stockholder's name and mailing address, the number of Shares
covered by the demand and that the stockholder is thereby demanding appraisal
of such shares. The Company must, within ten days after the Effective Time,
provide notice of the Effective Time to all stockholders who have complied with
Section 262(d) of the DGCL and have not voted for approval and adoption of the
Merger Agreement.
Stockholders electing to exercise their appraisal rights under Section 262
must not vote for the approval and adoption of the Merger Agreement or consent
thereto in writing. Voting in favor of the approval and adoption of the Merger
Agreement, or delivering a proxy in connection with the Special
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Meeting (unless the proxy votes against, or expressly abstains from the vote
on, the approval and adoption of the Merger Agreement), will constitute a
waiver of the stockholder's right of appraisal and will nullify any written
demand for appraisal submitted by the stockholder.
Within 120 days after the Effective Time, either the Company or any
stockholder who has complied with the required conditions of Section 262 and
who is otherwise entitled to appraisal rights may file a petition in the
Delaware Court of Chancery demanding a determination of the fair value of the
shares of the dissenting stockholders. If a petition for an appraisal is timely
filed, after a hearing on such petition, the Delaware Court of Chancery will
determine which stockholders are entitled to appraisal rights and thereafter
will appraise the shares owned by such stockholders, determining the fair value
of such shares, exclusive of any element of value arising from the
accomplishment or expectation of the Merger, together with a fair rate of
interest to be paid, if any, upon the amount determined to be the fair value.
The cost of the appraisal proceeding may be determined by the Delaware
Court of Chancery and taxed upon the parties as the Delaware Court of Chancery
deems equitable in the circumstances. Upon application of a dissenting
stockholder, the Delaware Court of Chancery may order that all or a portion of
the expenses incurred by any dissenting stockholder in connection with the
appraisal proceeding, including, without limitation, reasonable attorneys' fees
and the fees and expenses of experts, be charged pro rata against the value of
all shares entitled to appraisal. In the absence of such determination or
assessment, each party bears its own expenses.
Any stockholder who has duly demanded appraisal in compliance with Section
262 of the DGCL will not, after the Effective Time, be entitled to vote for any
purpose the shares subject to such demand or to receive payment of dividends or
other distributions on such shares, except for dividends or other distributions
payable to stockholders of record at a date prior to the Effective Time.
At any time within 60 days after the Effective Time, any former holder of
shares shall have the right to withdraw his or her demand for appraisal and to
accept the per Share cash consideration pursuant to the Merger. After this
period, such holder may withdraw his or her demand for appraisal only with the
consent of the Surviving Corporation. If no petition for appraisal is filed
with the Delaware Court of Chancery within 120 days after the Effective Time,
stockholders' rights to appraisal shall cease and all stockholders shall be
entitled to receive the per share cash consideration pursuant to the Merger.
Failure to take any required step in connection with the exercise of
appraisal rights may result in the termination or waiver of such rights.
APPRAISAL RIGHTS CANNOT BE EXERCISED AT THIS TIME. THE INFORMAT10N SET
FORTH ABOVE IS FOR INFORMATIONAL PURPOSES ONLY WITH RESPECT TO ALTERNATIVES
AVAILABLE TO STOCKHOLDERS IF THE MERGER (OR ANY SIMILAR BUSINESS COMBINATION)
IS CONSUMMATED. THIS PROXY STATEMENT CONSTITUTES NOTICE TO HOLDERS OF COMPANY
COMMON STOCK THAT APPRAISAL RIGHTS ARE AVAILABLE TO THEM. STOCKHOLDERS WHO SELL
SHARES IN THE OFFER WILL NOT BE ENTITLED TO EXERCISE APPRAISAL RIGHTS WITH
RESPECT THERETO BUT, RATHER, WILL RECEIVE THE PRICE PAID IN THE OFFER THEREFOR.
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
262. APPRAISAL RIGHTS
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to Section
228 of this title shall be entitled to an appraisal by the Court of Chancery of
the fair value of the stockholder's shares of stock
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<PAGE>
under the circumstances described in subsections (b) and (c) of this section.
As used in this section, the word "stockholder" means a holder of record of
stock in a stock corporation and also a member of record of a nonstock
corporation; the words "stock" and "share" mean and include what is ordinarily
meant by those words and also membership or membership interest of a member of
a nonstock corporation; and the words "depository receipt" mean a receipt or
other instrument issued by a depository representing an interest in one or more
shares, or fractions thereof, solely of stock of a corporation, which stock is
deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Section 251 (other than a merger effected pursuant to
Section 25 1 (g) of this title), Sections 252, 254, 257, 258, 263 or 264 of
this title:
(1) Provided, however, that no appraisal rights under this section shall
be available for the shares of any class or series of stock, which stock,
or depository receipts in respect thereof, at the record date fixed to
determine the stockholders entitled to receive notice of and to vote at the
meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require
for its approval the vote of the stockholders of the surviving corporation
as provided in subsection (f) of Section 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required
by the terms of an agreement of merger or consolidation pursuant to
Sections 251, 252, 254, 257, 258, 263 and 264 of this title to accept for
such stock anything except:
a. Shares of stock of the corporation surviving or resulting from such
merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts in
respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the
merger or consolidation will be either listed on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a. and b. of this paragraph; or
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this
paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under Section 253 of this title is not owned by
the parent corporation immediately prior to the merger, appraisal rights
shall be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets
of the corporation. If the certificate of incorporation contains such a
provision, the procedures of this section, including those set forth in
subsections (d) and (e) of this section, shall apply as nearly as is
practicable.
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<PAGE>
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record date for
such meeting with respect to shares for which appraisal rights are
available pursuant to subsections (b) or (c) hereof that appraisal rights
are available for any or all of the shares of the constituent corporations,
and shall include in such notice a copy of this section. Each stockholder
electing to demand the appraisal of his shares shall deliver to the
corporation, before the taking of the vote on the merger or consolidation,
a written demand for appraisal of his shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of his shares. A proxy or vote against the merger or
consolidation shall not constitute such a demand. A stockholder electing to
take such action must do so by a separate written demand as herein
provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become
effective; or
(2) If the merger or consolidation was approved pursuant to Section 228
or Section 253 of this title, each constituent corporation, either before
the effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights
of the approval of the merger or consolidation and that appraisal rights
are available for any or all shares of such class or series of stock of
such constituent corporation, and shall include in such notice a copy of
this section; provided that, if the notice is given on or after the
effective date of the merger or consolidation, such notice shall be given
by the surviving or resulting corporation to all such holders of any class
or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective
date of the merger or consolidation, shall, also notify such stockholders
of the effective date of the merger or consolidation. Any stockholder
entitled to appraisal rights may, within 20 days after the date of mailing
of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation, either
(i) each such constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of the holders
of any class or series of stock of such constituent corporation that are
entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send
such a second notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is sent more
than 20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holder's shares in accordance with
this subsection. An affidavit of the secretary or assistant secretary or of
the transfer agent of the corporation that is required to give either
notice that such notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be
not more than 10 days prior to the date the notice is given, provided, that
if the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the
day on which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who
has complied with subsections (a) and (d) hereof and who is otherwise entitled
to appraisal rights, may file a petition in the Court of Chancery demanding a
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<PAGE>
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw his demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10
days after his written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the
addresses therein stated. Such notice shall also be given by I or more
publications at least I week before the day of the hearing, in a newspaper of
general circulation published in the City of Wilmington, Delaware or such
publication as the Court deems advisable. The forms of the notices by mail and
by publication shall be approved by the Court, and the costs thereof shall be
borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled
to appraisal rights. The Court may require the stockholders who have demanded
an appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as
to such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any
element of value arising from the accomplishment or expectation of the merger
or consolidation, together with a fair rate of interest, if any, to be paid
upon the amount determined to be the fair value. In determining such fair
value, the Court shall take into account all relevant factors. In determining
the fair rate of interest, the Court may consider all relevant factors,
including the rate of interest which the surviving or resulting corporation
would have had to pay to borrow money during the pendency of the proceeding.
Upon application by the surviving or resulting corporation or by any
stockholder entitled to participate in the appraisal proceeding, the Court may,
in its discretion, permit discovery or other pretrial proceedings and may
proceed to trial upon the appraisal prior to the final determination of the
stockholder entitled to an appraisal. Any stockholder whose name appears on the
list filed by the surviving or resulting corporation pursuant to subsection (f)
of this section and who has submitted his certificates of stock to the Register
in Chancery, if such is required, may participate fully in all proceedings
until it is finally determined that he is not entitled to appraisal rights
under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to
the stockholders entitled thereto. Interest may be simple or compound, as the
Court may direct. Payment shall be so made to each such stockholder, in the
case of holders of uncertificated stock forthwith, and the case of holders of
shares represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
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<PAGE>
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded his appraisal rights as provided in subsection (d)
of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation); provided,
however, that if no petition for an appraisal shall be filed within the time
provided in subsection (e) of this section, or if such stockholder shall
deliver to the surviving or resulting corporation a written withdrawal of his
demand for an appraisal and an acceptance of the merger or consolidation,
either within 60 days after the effective date of the merger or consolidation
as provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the
Court of Chancery shall be dismissed as to any stockholder without the approval
of the Court, and such approval may be conditioned upon such terms as the Court
deems just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
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<PAGE>
ANNEX D
VOTING AGREEMENT SCHEDULE
The following persons executed a Voting Agreement with respect to the
following number of shares:
<TABLE>
<CAPTION>
TOTAL CASHED ROLLOVER INCREASE
CONTINUING STOCKHOLDER SHARES OUT STOCK STOCK PERCENTAGE
- ------------------------------------- ------------ ----------- ---------- -------------
<S> <C> <C> <C> <C>
Robin Prever ........................ 318,285 251,499 66,786 12.1429%
Anthony Malatino .................... 718,127 557,056 161,071 29.2856%
Warren Lichtenstein ................. 46,254 -- 46,254 0%
Steel Partners II, L.P. ............. 506,258 450,369 155,889 18.5715%
Steve Bogen ......................... 386,793 304,293 82,500 15.0000%
Pershing Securities Limited ......... 200,000 141,071 58,929 10.7144%
Jurg Walker ......................... 224,500 145,929 78,571 14.2856%
------- ------- ------- --------
TOTAL .............................. 2,400,217 1,850,217 550,000 100.00 %
======= ========
</TABLE>
VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 5, 2000 (this "Agreement"), among
NCP-SBG, L.P., a Delaware limited partnership ("Purchaser"), and
("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 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 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
D-1
<PAGE>
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
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.
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.
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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
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.
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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
Stockholder, 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,
, and and the Stockholders' Agreement, as of October 22, 1998 between
and .
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 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
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<PAGE>
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.
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.
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
D-5
<PAGE>
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 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 COURT
D-6
<PAGE>
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, 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
determined 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.
D-7
<PAGE>
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
By:
------------------------------------
Name:
Title:
Address of Stockholder:
D-8
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
NUMBER OF SHARES OF NUMBER OF SHARES OF
STOCKHOLDER IS THE: CLASS A COMMON STOCK CLASS B COMMON STOCK
- ---------------------------------------------------- ---------------------- ---------------------
<S> <C> <C>
Record and beneficial owner ........................
General partner of a limited partnership that is the
record owner of, and whose beneficiaries are the
beneficial owners of ..............................
Beneficial owner but not the record holder .........
</TABLE>
D-9
<PAGE>
COMMON STOCK
SARATOGA BEVERAGE GROUP, INC.
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF THE CORPORATION FOR SPECIAL MEETING OF STOCKHOLDERS
17 APRIL, 2000
The undersigned hereby constitutes and appoints Robin Prever and Irene
Fonzi, and each of them, with full power of substitution, attorneys and proxies
to represent and to vote all of the shares of Class A common stock, par value
$.01 per share, of Saratoga Beverage Group, Inc. that the undersigned would be
entitled to vote, with all powers the undersigned would possess if personally
present, at the Special Meeting of the Stockholders of Saratoga Beverage Group,
Inc., to be held at the offices of Swidler Berlin Shereff Friedman, LLP, located
at the Chrysler Building, 405 Lexington Avenue, New York, New York 10174, on May
15, 2000 at 11:00 o'clock a.m., local time, at any adjournment thereof, on all
matters coming before said meeting:
1. PROPOSAL TO APPROVE THE STOCK PURCHASE AGREEMENT AND AGREEMENT AND PLAN OF
MERGER, DATED AS OF JANUARY 5, 2000, BY AND AMONG SARATOGA BEVERAGE GROUP,
INC., NCP-SBG RECAPITALIZATION CORP. AND NCP-SBG, L.P., AND THE RELATED
TRANSACTIONS, INCLUDING THE RESULTING RIGHT TO RECEIVE FOR EACH SHARE OF
SARATOGA CLASS A COMMON STOCK, $6.00 IN CASH, WITHOUT INTEREST, OTHER THAN
CERTAIN SHARES OWNED BY THE CONTINUING STOCKHOLDERS.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
<PAGE>
Should the undersigned be present and elect to vote at the Special Meeting or
at any adjournment or postponement thereof and after notification to the
Secretary of the Company at the Special Meeting of the stockholder's decision
to terminate this proxy, then the power of said attorneys and proxies shall be
deemed terminated and of no further force and effect.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE LISTED PROPOSAL.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE
VOTED FOR THE PROPOSAL LISTED ABOVE IF NO SPECIFICATION IS MADE. IF ANY OTHER
BUSINESS IS PRESENTED AT THE SPECIAL MEETING, INCLUDING MATTERS RELATING TO THE
CONDUCT OF THE SPECIAL MEETING, THIS PROXY WILL BE VOTED BY THOSE NAMED IN THIS
PROXY IN THEIR BEST JUDGMENT. NO OTHER BUSINESS MAY PROPERLY COME BEFORE THE
SPECIAL MEETING OR ANY ADJOURNMENT(S) OR POSTPONEMENT(S) THEREOF.
The undersigned acknowledges receipt of the accompanying Proxy Statement dated
17 April, 2000
Dated: , 2000
------------------------
-------------------------------------
PRINT NAME OF STOCKHOLDER(S)
-------------------------------------
SIGNATURE OF STOCKHOLDER(S)
(When signing as attorney, trustee,
executor, administrator, guardian,
corporate officer, etc., please give
full title. If more than one trustee,
all should sign. Joint owners must
each sign.)
Please date and sign exactly as name
appears on your stock certificate.
I plan [ ] I do not plan [ ] to
attend the Special Meeting.
