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EXHIBIT 4.3
STOCK PLEDGE AGREEMENT
(STOCK IN XXXXX & WESSON CORP.)
THIS STOCK PLEDGE AGREEMENT (this "Pledge Agreement"), which is to be
effective on the 11th day of May, 2001, is by and between SAF-T-HAMMER
CORPORATION, a Nevada corporation (hereafter the "Pledgor"), and Xxxxxx Xxxxx
(hereafter, the "Pledgee").
RECITALS
Pursuant to a Promissory Note & Loan Agreement dated as of May 6, 2001
(the "Note"), Pledgor has borrowed the principal sum of $5 million from Pledgee
(the "Loan"), the proceeds of which shall be used to pay a portion of the
purchase price for Pledgor's acquisition (the "SW Transaction") of the shares of
capital stock of Xxxxx & Wesson Corp. ("SW"). Immediately upon closing such
acquisition, Pledgor shall own all of the issued and outstanding capital stock
(the "Securities") of SW. To secure Pledgor's obligations to Pledgee under the
Note, Pledgor is willing to pledge the Securities to Pledgee.
Pledgee is only willing to make the Loan to Pledgor if Pledgor
pledges the Securities to Pledgee in accordance with the terms and conditions of
this Pledge Agreement.
1. DEFINITIONS. The following terms shall have the following
meanings in this Pledge Agreement:
Collateral: The Securities and all dividends, distributions
and amounts or additional securities to which Pledgor (with or without
additional consideration) is or becomes entitled by virtue of its
ownership of any of the Securities or as the result of any corporate
reorganization, merger, consolidation, stock split, stock dividend,
conversion, preemptive right or otherwise.
Obligations: (a) Payment in cash of all principal, interest,
and any other fees, late charges, and attorneys' fees related to the Note,
and all addenda, modifications, and amendments thereto, if any; and (b)
payment, performance and observance by Pledgor of each covenant,
condition, provision, and agreement contained herein and of all monies
expended or advanced by Pledgee pursuant to the terms hereof, or to
preserve any right of
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Pledgee thereunder, or to protect or preserve the Collateral or any part
thereof; and (c) any and all other obligations of Pledgor to Pledgee
arising in any manner in connection with the issuance and performance by
Pledgor under the Note.
2. COLLATERAL; AGENT. To secure payment and performance of the
Obligations, Pledgor hereby pledges the Securities and hereby grants to Pledgee
a valid and perfected first lien on and security interest in the Securities and
all other items of the Collateral. Simultaneously with the execution of this
Pledge Agreement, Pledgor has delivered or shall deliver to Xxxxxxx & Xxxxxxx,
PLC as escrow agent (the "Agent"), certificates for the Securities, together
with the assignment separate from certificate duly executed by Pledgor in blank
(the "Assignment"). Pledgee may direct the Agent to receive and hold the
Securities subject and pursuant to all the terms, conditions and provisions
hereof until the Obligations have been discharged in full. Upon the request of
Pledgee, Pledgor and Pledgee shall appoint a mutually agreeable substitute third
party to replace Agent and upon the written instruction by Pledgee and Pledgor
Agent shall promptly deliver the Securities and the Assignment to such
substitute Agent. After the designation by Pledgee and Pledgor of a substitute
Agent hereunder such original Agent shall have no further duties, obligations or
liabilities with respect to or resulting from this Agreement and the substitute
shall be deemed to be the Agent hereunder.
3. REPRESENTATIONS, COVENANTS, AND WARRANTIES. Pledgor hereby
represents and warrants to Pledgee that (i) Pledgor is, and at all times prior
to the payment and performance of the Obligations will be, the legal and
beneficial owner of such Collateral; (ii) the pledge of such Collateral pursuant
to the terms of this Pledge Agreement, together with delivery thereof, creates a
valid and perfected first lien on and security interest in such Collateral in
favor of Pledgee; (iii) the Assignment has been duly executed in blank and
delivered by Pledgor to Agent; (iv) none of such Collateral is subject to any
claim, lien, charge, security interest or other encumbrance of any kind
whatsoever, except for the perfected first security interest therein granted to
Pledgee hereby and, so long as this Pledge Agreement remains in effect, Pledgor
will not create or permit to exist any claim, lien, charge, security interest or
encumbrance upon or with respect to such Collateral, except for the first
security interest therein granted to Pledgee by this Pledge Agreement and except
as otherwise permitted pursuant to the terms of this Pledge Agreement; (v) so
long as this Pledge Agreement remains in effect, Pledgor will not sell,
transfer, convey, assign, or otherwise divest his interests in such Collateral,
or any part thereof, to any other person; (vi) no authorization, approval or
other action by, or notice to or filing with, any governmental body is required
for the pledge by Pledgor of such Collateral
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pursuant to the terms of this Pledge Agreement; and (vii) all of the Collateral
has been duly authorized, validly issued and is fully paid and non-assessable
and is registered in the name of Pledgor.
4. STOCK SPLITS, STOCK DIVIDENDS, ETC.
4.1 Pledgor agrees that in the event Pledgor, by virtue of
his ownership of the Collateral, now is, or hereafter becomes, entitled
(with or without additional consideration) to other or additional
securities as the result of any corporate reorganization, merger,
consolidation, stock split, stock dividend, conversion or preemptive right
or otherwise, Pledgor shall:
4.1.1 Cause the issuer of such additional securities to
deliver to Agent the certificates evidencing Pledgor's ownership
thereof and hereby authorizes and empowers Pledgee to demand the
same from such issuer, and agrees if such certificates are delivered
to Pledgor, to take possession thereof in trust for Pledgee;
4.1.2 Deliver to Agent an assignment separate from
certificate and irrevocable proxy with respect to such securities,
executed in blank by Pledgor;
4.1.3 Deliver to Agent a certificate, executed by
Pledgor and dated the date of such pledge, as to the truth and
correctness on such date of the warranties set forth in SECTION 3
hereof; and
4.1.4 Deliver to Agent such other certificates, forms
and other instruments as Pledgee may request in connection with such
pledge.
4.2 Pledgor agrees that such additional securities shall
constitute a portion of the Collateral and be subject to this Pledge
Agreement in the same manner and to the same extent as the securities
pledged hereby to Pledgee on the date hereof.
5. VOTING POWER; DIVIDENDS. Unless and until an Event of Default
pursuant to the terms of the Note shall have occurred, Pledgor shall be entitled
to exercise all voting powers in all corporate matters pertaining to the
Collateral for any purpose not inconsistent with, or in violation of, the
provisions of the Note, this Agreement and that certain Stock Purchase Agreement
between Xxxxxxx Corporation and Pledgor of even date herewith (the "SW SPA").
Any cash dividends and cash distributions of any kind made with respect to the
Collateral shall be made in compliance with the Note, this Agreement or the SW
SPA and shall be
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applied to reduce the Obligations. Pledgor shall have no right to vote the
Collateral in favor of an increase in the capitalization of SW without the prior
written consent of Pledgee and shall not have the right to vote the Collateral
in favor of any transaction not permitted by the Note or the SW SPA. Following
an Event of Default (as defined below), Pledgee shall have all voting and
dividend rights in the Collateral, and for this purpose this Agreement shall
constitute an irrevocable and no-expiring proxy coupled with an interest in the
Securities.
6. DEFAULT AND REMEDIES.
6.1 The occurrence of any of the following events shall
constitute an "Event of Default":
6.1.1 The occurrence of a Note Default (under the Note).
6.1.2 Any levy or execution upon, or judicial seizure
of, any portion of the Collateral that is not cured within thirty
(30) days.
6.1.3 Any attachment or garnishment of, or the existence
or filing of any lien or encumbrance against, any portion of the
Collateral which is not released within thirty (30) days.
6.1.4 The institution of any legal action or proceedings
to enforce any lien or encumbrance upon any portion of the
Collateral that is not dismissed within thirty (30) days after its
institution.
6.1.5 Any failure or neglect to perform or observe any
of the terms, provisions, or covenants of this Pledge Agreement
which is not cured within fifteen (15) days after notice is received
by Pledgor.
6.2 If an Event of Default shall have occurred and be
continuing, Pledgee, at its option, may:
6.2.1 Declare all or any part of the Obligations to be
immediately due and payable, and the same, with all costs and
charges, shall be collectible thereupon by action at law;
6.2.2 Cause the Collateral to be registered in its name
or in the name of its nominee;
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6.2.3 Exercise all voting powers pertaining to the
Collateral and otherwise act with respect thereto as though Pledgee
were the owners thereof;
6.2.4 Receive all dividends and all other distributions
of any kind whatsoever on all or any part of such Collateral;
6.2.5 Realize on the Collateral by public or private
sale; and
6.2.6 Pursue any legal or equitable remedy available to
collect the Obligations, to enforce Pledgee's title in and right to
possession of the Collateral and to enforce any and all other rights
or remedies available to it.
With respect to the actions described in this SECTION 6.2, Pledgor hereby
irrevocably constitutes and appoints Pledgee his proxies and
attorneys-in-fact with full power of substitution and acknowledges that
the constitution and appointment of such proxies and attorneys-in-fact are
coupled with an interest and are irrevocable.
6.3 Pledgee shall give not less than ten (10) Business Days
prior written notice to Pledgor of any sale pursuant to this SECTION 6.
"Business Day" means each day other than a Saturday, a Sunday or any other
day on which commercial banks in New York City are authorized or required
by law or executive order to close. Pledgor hereby agrees that such notice
is commercially reasonable.
6.4 Pledgee shall apply the proceeds of any sale of the
whole or any part of the Collateral (the "Proceeds") and any other monies
at the time held by Pledgee under the provisions of this Pledge Agreement
in the manner provided pursuant to the terms of the Note. Pledgor shall be
fully responsible for any deficiency remaining after the sale of the
Collateral.
6.5 Any sale of all or any portion of the Collateral
pursuant to SECTION 6.2 above shall operate to divest all right, title and
interest of Pledgor to the Collateral that is the subject of any such
sale.
7. PLEDGEE'S OBLIGATIONS, CUSTODIAL AGREEMENT, PERFORMANCE
RIGHTS. Pledgee shall not have any duty to protect, preserve or enforce rights
against the Collateral other than a duty of reasonable custodial care of any
such Collateral in its possession, it being understood that Pledgee shall have
no responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to the
Collateral, whether or not Pledgee
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have or are deemed to have knowledge of such matters, or (ii) taking any
necessary steps to preserve rights against any parties with respect to the
Collateral.
8. TERMINATION OF PLEDGE AGREEMENT. Upon the Termination Date,
the pledge of the Securities hereunder shall immediately terminate without
further act by any party, Agent shall deliver to Pledgor the Collateral in its
possession, and this Pledge Agreement shall automatically terminate. The
"Termination Date" shall mean the date upon which the payment and performance in
full of all of the Obligations shall have been made. Pledgor and Pledgee shall
after the Termination Date promptly notify Pledgor and Pledgee of the
termination of this Pledge Agreement. Agent shall be entitled to rely on a
written notice from Pledgor and Pledgee that the Termination Date shall have
occurred.
9. MISCELLANEOUS.
9.1 This Pledge Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or
against Pledgor for liquidation or reorganization, should Pledgor become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of
Pledgor's assets, and shall continue to be effective or be reinstated, as
the case may be, if at any time payment and performance of the Obligations
or any part thereof is, pursuant to applicable law, rescinded or reduced
in amount, or must otherwise be restored or returned by any obligee of the
obligations, whether as a "voidable preference," "fraudulent conveyance,"
or otherwise, all as though such payment, or performance had not been
made. In the event that any payment, or any part hereof, is rescinded,
reduced, restored or returned, the obligations shall be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
9.2 Each and every right, remedy and power granted to
Pledgee hereunder shall be cumulative and in addition to any other right,
remedy or power specifically granted herein or now or hereafter existing
in equity, at law, by virtue of statute or otherwise and may be exercised
by Pledgee, from time to time, concurrently or independently and as often
and in such order as Pledgee may deem expedient. Any failure or delay on
the part of Pledgee in exercising any such right, remedy or power, or
abandonment or discontinuance of steps to enforce the same, shall not
operate as a waiver thereof or affect Pledgee's right thereafter to
exercise the same, and any single or partial exercise of any such right,
remedy or power shall not preclude any other right, remedy or power, and
no such failure, delay, abandonment or single or partial exercise of
Pledgee's rights hereunder shall
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be deemed to establish a custom or course of dealing or performance among
the parties hereto.
9.3 Any modification or waiver of any provision of this
Pledge Agreement, or any consent to any departure by Pledgor there from,
shall not be effective in any event unless the same is in writing and
signed by both Pledgee, and then such modification, waiver or consent
shall be effective only in the specific instance and for the specific
purpose given. Any notice to or demand on Pledgor in any event not
specifically required of Pledgee hereunder shall not entitle Pledgor to
any other or further notice or demand in the same, similar or other
circumstances unless specifically required hereunder.
9.4 Pledgor agrees that at any time, and from time to time,
after the execution and delivery of this Pledge Agreement, Pledgor, upon
the request of either Pledgee and at the expense of Pledgor, promptly will
execute and deliver such further documents and do such further acts and
things as Pledgee may reasonably request in order to effect fully the
purposes of this Pledge Agreement and to subject to the security interest
created hereby any property or rights intended by the provisions hereof to
be covered hereby.
9.5 Pledgor agrees that he will warrant, preserve, maintain
and defend, at his sole expense, the right, title and interest of Pledgee
in and to the Collateral and all right, title and interest represented
thereby against all claims, charges and demands of all persons whomsoever.
9.6 All notices required or permitted to be given hereunder
shall be in writing and may be given in person or by United States mail,
by delivery service or by electronic transmission. Any notice directed to
a party to this Pledge Agreement shall become effective upon the earliest
of the following: (i) actual receipt by that party; (ii) delivery to the
designated address of that party, addressed to that party; or (iii) if
given by certified or registered United States mail, three days after
deposit with the United States Postal Service, postage prepaid, addressed
to that party at its designated address. The designated addresses of the
parties shall be as follows:
If to Pledgor:
Saf-T-Hammer Corporation
00000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
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With a copy to:
Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxxx & Xxxxxxx, PLC
0 X. Xxxxxxx Xxx., 00xx xxxxx
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
If to Pledgee:
Xxxxxx Xxxxx
00000 00xx Xxx. X.
Xxxx, XX 00000
With a copy to:
Xxxx Xxxxxxxxx, Esquire
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX, 00000
Fax: (000) 000-0000
provided, however, that any party may change its respective address for
purposes of receipt of any such communication by giving ten (10) days
prior written notice of such change to the other parties hereto in the
manner provided above. All notices sent pursuant to the terms of this
SECTION 9.6 shall be deemed received (i) if sent by overnight, express
carrier, on the next Business Day immediately following the day sent or
(ii) if sent by registered or certified mail, on the third Business Day
following the day sent.
9.7 THIS PLEDGE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON (WITHOUT
REFERENCE TO THE CONFLICTS OF LAWS PRINCIPLES OF SUCH STATE). FOR PURPOSES
OF THIS SECTION 9.7, THIS PLEDGE AGREEMENT SHALL BE DEEMED TO BE PERFORMED
AND MADE IN THE STATE OF WASHINGTON.
9.8 In the event that any provision of this Pledge Agreement
is deemed to be invalid by reason of the operation of any law, or by
reason of the interpretation placed thereon by any court or other
governmental body, this Pledge Agreement shall be construed as not
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containing such provision and the invalidity of such provision shall not
affect the validity of any other provision hereof, and any and all other
provisions hereof which otherwise are lawful and valid shall remain in
full force and effect.
9.9 This Pledge Agreement shall inure to the benefit of the
successors and assigns of Pledgee and shall be binding upon the successors
and assigns of Pledgor.
9.10 This Pledge Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall be one and the same instrument.
9.11 PLEDGOR AND PLEDGEE HEREBY AGREE THAT ALL ACTIONS OR
PROCEEDINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS PLEDGE AGREEMENT
SHALL BE LITIGATED IN KING COUNTY SUPERIOR COURT, OR THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON. PLEDGOR HEREBY
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED BY PLEDGEE IN ANY OF SUCH COURTS AND HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR
PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND
COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL ADDRESSED TO PLEDGOR AT THE ADDRESS TO WHICH NOTICES ARE TO
BE SENT PURSUANT TO SECTION 9.6. PLEDGOR WAIVES ANY CLAIM THAT SEATTLE,
WASHINGTON OR THE WESTERN DISTRICT OF WASHINGTON IS AN INCONVENIENT FORUM
OR AN IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD PLEDGOR, AFTER BEING
SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR
PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE
MAILING THEREOF, PLEDGOR SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR
JUDGMENT MAY BE ENTERED BY PLEDGEE AGAINST PLEDGOR AS DEMANDED OR PRAYED
FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF
FORUM FOR PLEDGOR SET FORTH IN THIS SECTION 9.11 SHALL NOT BE DEEMED TO
PRECLUDE THE ENFORCEMENT, BY PLEDGEE, OF ANY JUDGMENT OBTAINED IN ANY
OTHER FORUM OR THE TAKING, BY PLEDGEE, OF ANY ACTION TO ENFORCE THE SAME
IN ANY OTHER APPROPRIATE JURISDICTION, AND PLEDGOR HEREBY WAIVES THE RIGHT
TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
9.12 If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement the prevailing party
shall be entitled
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to reasonable attorneys fees, reasonable costs and necessary disbursements
in addition to any other relief such party may be entitled.
10. INDEMNIFICATION OF AGENT. Each of Pledgor and Pledgee
severally agrees to indemnify, defend, protect and hold harmless Agent, and its
affiliates and their respective successors, assigns and shareholders and the
directors, officers, employees, agents and attorneys of the foregoing
(collectively, "Indemnified Parties") for, from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for such Indemnified
Parties in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Indemnified Parties are
designated parties thereto) that may be imposed on, incurred by, or asserted
against the Indemnified Parties, in any manner relating to or arising out of its
respective instructions, acts and omissions in connection with this Pledge
Agreement.
[signatures on following page]
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IN WITNESS WHEREOF, Pledgor and Pledgee have caused this Pledge Agreement to be
executed as of the date first written above.
PLEDGOR:
SAF-T-HAMMER CORPORATION, a Nevada
corporation
By: __________________________________
Its: __________________________________
PLEDGEE:
_______________________________________
Xxxxxx Xxxxx
