EXHIBIT 10.70
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PLEDGE AGREEMENT
Agreement made as of December 2, 1999 by and between Xxxxxxx Xxxxxxxxx
Xxxxxx, an individual with a residence at 000 Xxxxxxxxx Xxxxxxxxx, Xxxx Xxxxxx,
XX 00000 and ("Luster"), and Annie's Homegrown, Inc., a Delaware corporation
with a principal place of business at 000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000 (the
"Company").
In consideration of loans, advances and financial accommodations made
by the Company in favor of Luster, as provided in a certain Omnibus Note of even
date herewith (the "Note"), it is hereby agreed as follows:
1. GRANT OF SECURITY INTEREST. As security for all obligations of
Luster to the Company described in Section 2 below, Luster hereby delivers and
pledges to the Company, and grants to the Company a security interest in and
lien on, all of her shares of Common Stock, par value $.001, of the Company,
together with all dividends, interest, distributions, accessions, additions and
substitutions therefor, thereto or thereon and the proceeds and products of all
the foregoing (collectively, the "Collateral"). The stock certificates
evidencing these shares have been duly endorsed or are accompanied by stock
powers duly executed in blank by Luster as the registered owner of such stock
certificates.
2. OBLIGATIONS SECURED. The Collateral from time to time held hereunder
shall secure the payment and performance of all liabilities and obligations of
Luster to the Company, whether such liabilities and obligations be direct or
indirect, absolute or contingent, secured or unsecured, due or to become due,
primary or secondary, now existing or hereafter arising or acquired, whether or
not arising under this Agreement or evidenced by any writing, including Luster's
obligations under the Note (collectively, the "Obligations").
3. REPRESENTATIONS AND WARRANTIES. Luster hereby represents and
warrants to the Company that she is the legal and beneficial owner of and has
good title to all of the Collateral, free and clear of any claim, mortgage,
pledge, lien, security interest or other encumbrance of any nature whatsoever,
except to or in favor of the Company under this Agreement.
4. ISSUANCE OR SALE OF COLLATERAL. Luster hereby covenants and agrees
that, except as consented to by the Company in writing, she will not directly or
indirectly sell, assign, pledge or otherwise encumber or dispose of the
Collateral or any interest therein.
5. VOTING RIGHTS OF LUSTER. Provided that no Event of Default (as
defined in Section 8 of this Agreement) shall have occurred and be continuing,
for so long as Luster shall be the record owner of the Collateral, Luster shall
be entitled, to the extent permitted by applicable law, to exercise voting power
with respect to any Pledged Shares; PROVIDED, HOWEVER, that in no event shall
Luster exercise such voting power in any manner contrary to or inconsistent with
the terms hereof or with the terms of the Note.
6. DISTRIBUTION ON LIQUIDATION; STOCK DIVIDENDS, ETC. In the event of
the dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency or receivership proceedings, or upon an
assignment for the benefit of creditors or
otherwise, except as expressly permitted by the Note, any sum to be paid or any
property to be distributed upon or with respect to any Collateral shall be paid
over to the Company to be held by it as collateral security for the Obligations.
In the event that any stock dividend shall be declared on the Collateral, or any
shares of stock or fractions thereof shall be issued pursuant to any stock split
involving any of such stock, or any distribution of capital shall be made on any
of such stock, or any property of any kind shall be distributed upon or with
respect to any of such stock pursuant to any recapitalization, reclassification,
merger, consolidation, or reorganization of the capital of the issuing
corporation, the shares or other property so distributed shall be delivered to
the Company, to be held by the Company as part of the Collateral. Any
distribution or payment of principal with respect to any note or bond included
in the Collateral shall be delivered to the Company, to be held by the Company
as part of the Collateral.
7. DIVIDENDS, VOTING RIGHTS, ETC. ON DEFAULT. If an Event of Default
shall occur and be continuing, the Company, for so long as that Event of Default
shall continue to exist, shall be entitled to receive and retain as collateral
security for the Obligations any and all dividends and other distributions at
any time and from time to time declared upon or paid with respect to any of the
Collateral and to exercise any and all voting rights and all rights of payment,
conversion, exchange, subscription or any other rights, privileges or options
pertaining to the Collateral as if the Company were the absolute owner thereof,
including, without limitation, the right to exchange, at the discretion of the
Company any and all of the Collateral consisting of securities upon any merger,
consolidation, reorganization, recapitalization or other readjustment of the
issuing corporation, and, upon the exercise of any such right, privilege or
option pertaining to the Collateral, to deposit and deliver any and all of the
Collateral with any committee, depository, transfer agent, registrar or other
designated agency upon such terms and conditions as the Company may determine,
all without liability except to account for property actually received by the
Company; PROVIDED, HOWEVER, that the Company shall have no duty to Luster to
exercise any of the aforesaid rights, privileges or options and shall not be
responsible for any failure or delay with respect to the exercise of any such
rights, privileges or options.
8. DEFAULT. If any one or more of the following events (herein referred
to as "Events of Default") shall occur:
(a) the occurrence of an Event of Default as defined by
the Note; or
(b) [intentionally omitted]
then upon the occurrence of any such Event of Default or at any time or times
thereafter, unless such Event of Default shall have been waived in writing by
the Company, the Company shall have all of the rights and remedies of a secured
party under the Uniform Commercial Code of Massachusetts and shall have full
power and authority to sell or otherwise dispose of the Collateral or any part
thereof, and, after giving written notice of such Event of Default to Luster, to
vote any Collateral consisting of voting securities with respect to any and all
matters. Any such sale or other disposition, subject to the provisions of
applicable law, may be by public or private proceedings and may be made by one
or more contracts, as a unit or in parcels, at such time and place, by such
method, in such manner and on such terms as the Company may determine. Except as
required by law, such sale or other disposition may be made without
advertisement or notice of any kind or to any person. Where reasonable
notification of the time
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or place of such sale or other disposition is required by law, such requirement
shall have been met if such notice is telegraphed, cabled or mailed, postage
prepaid, at least five days before the time of such sale or other disposition to
each person entitled thereto at each such person's address (which in the case of
Luster is as specified in Section 15 below). The Company or any other holder of
the Obligations may buy any or all of the Collateral upon any sale thereof, and
upon any such sale or sales, and the Collateral so purchased shall be held by
the purchaser absolutely free from any claims or rights of whatsoever kind or
nature, including any equity of redemption or any similar rights, all such
equity of redemption and any similar rights being hereby expressly waived and
released by Luster to the extent permitted by applicable law. In the event any
consent, approval or authorization of any governmental agency shall be necessary
to effectuate any such sale or sales, Luster shall execute, as necessary, all
applications or other instruments as may be required. After deducting all
reasonable costs and expenses of collection, custody, sale or other disposition
or delivery (including legal costs and reasonable attorneys' fees) and all other
charges due with respect to the Collateral (including any charges of the type
described in Section 10 below), the residue of the proceeds of any such sale or
other disposition shall be applied to the payment of the Obligations in such
order of priorities as is determined at the time by the Company except as
otherwise provided by law or directed by any court purporting to have
jurisdiction thereof, and any surplus shall be returned to Luster, except as
otherwise provided by law. Luster shall be liable for any deficiency.
Luster recognizes that it may not be possible or feasible for Company
to effect a public sale of all or a part of the Collateral by reason of certain
registration or filing requirements contained in the Securities Act of 1933, as
amended, or applicable state securities laws, and that Company may be compelled
to resort to one or more private sales to a restricted group of purchasers who
will be obliged to agree, among other things, to acquire such Collateral for
their own account for investment and not with a view to the distribution or
resale thereof. Luster agrees that private sales so made may be at a price and
on other terms less favorable to the seller than if such Collateral were sold at
public sales, and that the Company has no obligation to delay the sale of any
such Collateral for the period of time necessary to permit the same to be
registered for public sale under the Securities Act of 1933 or any applicable
state securities laws. Luster further agrees that sales made under the foregoing
circumstances shall not be deemed to have been made in a commercially
unreasonable manner by virtue of any sale being made on terms less favorable to
the seller than a public sale due to the private nature of the sale. Subject to
the foregoing, the Company agrees that any sale of the Collateral made by the
Company shall be made in a commercially reasonable manner.
9. TRANSFER OF PLEDGED STOCK AND OTHER COLLATERAL. Luster hereby
irrevocably appoints the Company as agent of Luster to arrange for any and all
transfers of the Collateral as the Company may from time to time deem advisable
to assist the Company in obtaining the benefit of the Company's security
interest therein, including, but not limited to, the transfer of the Collateral
into the name of the Company or its nominee at any time, the foregoing
appointment being deemed a power coupled with an interest.
10. PAYMENT OF TAXES, CHARGES, ETC. The Company, at its option, may
discharge any taxes, charges, assessments, security interests, liens or other
encumbrances upon the Collateral and otherwise take such actions and incur or
pay such expenses as Company deems
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necessary or advisable to protect the value of the Collateral. All such
expenditures incurred by the Company shall become payable by Luster to the
Company upon demand and shall be secured by the Collateral.
11. DUTIES WITH RESPECT TO COLLATERAL. The Company shall have no duty
to Luster with respect to the Collateral other than the duty to use reasonable
care in the safe custody of any Collateral in its possession. Without limiting
the generality of the foregoing, the Company, although it may do so at its
option, shall be under no obligation to Luster to take any steps necessary to
preserve rights in the Collateral against other parties.
12. COMPANY'S RIGHTS AND REMEDIES NOT EXCLUSIVE. All of the Company's
rights and remedies on the Obligations or the Collateral, whether evidenced
hereby or by any other agreement, instrument or paper, shall be cumulative and
may be exercised singly or concurrently, and nothing herein shall be deemed to
limit in any way any rights the Company might otherwise have under any other
instrument or by law, including, without limiting the generality thereof, the
right to negotiate any note or other instrument together with any collateral
specifically described therein.
13. WAIVERS BY LUSTER. Luster (a) waives presentment, notice, protest,
notice of acceptance of this Agreement, notice of any loans made, extensions
granted, collateral received or delivered or other action taken in reliance
hereon and all demands and notices of every kind in connection with the
delivery, acceptance, performance, default or enforcement of this Agreement, the
Collateral or the Obligations, (b) assents to any one or more renewals,
extensions or postponements of the time of payment of any of the Obligations or
any other indulgence with respect thereto, to any acquisition, substitution,
exchange or release of collateral therefor and to the addition or release of any
person primarily or secondarily liable thereon, to the acceptance of partial
payment and the settlement, compromise, adjustment or discharge of any thereof,
all in such manner and at such time or times as Company may deem advisable, (c)
agrees to the provisions of any instrument, security or other writing evidencing
any of the Obligations, and (d) shall not assert any right arising from the
discharge of any of the Obligations through realization upon Collateral or from
other payment or performance hereunder until all of the Obligations shall have
been paid, performed and fulfilled.
14. TERMINATION. The obligations of Luster under this Agreement shall
continue regardless of any reduction or increase in the Obligations until all
Collateral has been either applied thereto or returned to Luster. The Company
shall, upon written request therefor by Luster, return the Collateral to Luster
at any time after the payment in full of all Obligations.
15. NOTICES. All notices and other communications hereunder shall be
deemed to have been sufficiently given when mailed, postage prepaid by certified
or registered mail, return receipt requested,
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if to the Company, to: Annie's Homegrown, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
with a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
if to Luster, to: 000 Xxxxxxxxx Xxxxxxxxx
Xxxx Xxxxxx, XX 00000
or at such other address as the party to whom such notice or demand is directed
may have designated in writing to the other party hereto in the manner provided
above.
16. RIGHTS, AMENDMENTS AND WAIVERS. No course of dealing between Luster
and the Company, nor any delay in exercising, on the part of the Company, any
right, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. Company may exercise its rights with respect to the
Collateral without resorting or regard to other collateral or sources of
reimbursement for the Obligations. No amendment, modification, consent or waiver
of any provision of this Agreement or of any of the rights of Company hereunder
or with respect to the Obligations or the Collateral shall be effective unless
in a writing executed by Company, and then such amendment, modification, consent
or waiver shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on Luster in any case shall entitle Luster
to any other or further notice or demand in similar or other circumstances, or
constitute a waiver of any right of Company to take action without notice or
demand. To the extent permitted by applicable law, Luster waives its right to
trial by jury with respect to this Agreement and all rights to require Company
to elect among any of its remedies with respect to this Agreement or any other
collateral for or sources of payment of the Obligations.
17. CONSENT TO JURISDICTION; GOVERNING LAW; MISCELLANEOUS. Luster
hereby submits to the jurisdiction of the state courts in Essex County,
Massachusetts and the United States District Court for the District of
Massachusetts, as well as to the jurisdiction of all courts to which an appeal
may be taken or other review sought from the aforesaid courts, for the purpose
of any suit, action or other proceeding arising out of any of Luster's
obligations under or with respect to this Agreement, expressly waives any and
all objections it may have as to venue in any of such courts, and agrees that
service of process may be made by mailing a copy of the summons to Luster at its
address as set forth in Section 15 of this Agreement. Whenever possible each
provision of this Agreement shall be interpreted in such manner as to be
effective, valid and enforceable under applicable law. The provisions of this
Agreement are severable, however, and if any of the provisions of this Agreement
shall be held by any court of competent jurisdiction to be unenforceable, such
holding shall not affect or impair any other provision hereof or, to the extent
not invalidated, the effect of said unenforceable provisions in other
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jurisdictions. This Agreement shall take effect as a sealed instrument and inure
to the benefit of the Company and its successors and assigns and shall be
binding upon Luster and the heirs, executors, administrators, other legal
representatives, successors and assigns of Luster. This Agreement and all the
rights and remedies of the Company and Luster shall be determined as to their
validity, construction, effect and enforcement by the laws of the Commonwealth
of Massachusetts.
IN WITNESS WHEREOF, Luster has caused this Agreement to be duly
executed as of the date first set forth above.
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Xxxxxxx Xxxxxxxxx Xxxxxx
ACCEPTED AND AGREED:
ANNIE'S HOMEGROWN, INC.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, President
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