Exhibit 10.46
STOCK PLEDGE AGREEMENT
----------------------
THIS STOCK PLEDGE AGREEMENT dated as of February 23, 1999 is made and
entered into by and between Big V Holding Corp., a Delaware corporation
("Holding") and Xxxx X. Xxxxxxxx (the "Pledgor").
RECITALS
--------
A. The Pledgor has entered into a certain Management Stock Subscription
Agreement dated as of even date herewith by and between Holding and the Pledgor
(the "Subscription Agreement") whereby Holding has agreed to issue and sell an
aggregate of 20,000 shares of its common stock, par value $0.01 per share (the
"Common Stock") to the Pledgor. Capitalized terms used herein and not otherwise
defined shall have the same meanings ascribed to them in the Employment
Agreement.
B. On the date hereof the Pledgor is delivering a note or notes of
Pledgor payable to Holding in the principal amount of $700,000 dated as of the
date hereof (the "Indebtedness"), which Indebtedness is being incurred in
connection with the sale of 20,000 shares of Common Stock to the Pledgor.
C. The Pledgor wishes to grant further security and assurance to Holding
in order to secure the payment of the principal and interest on the Indebtedness
and to pledge to Holding all shares of Common Stock to be held by such Pledgor.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Pledge. As collateral security for the full and timely payment of the
------
principal of and interest on the Indebtedness, the Pledgor hereby delivers,
deposits, pledges, transfers and assigns to Holding, in form transferable for
delivery, and creates in Holding a security interest in 20,000 shares of Common
Stock held by the Pledgor and all certificates or other instruments or documents
evidencing the same now or hereafter owned by the Pledgor (together with any
securities or property to be delivered to the Pledgor pursuant to Section 2(c)
hereof, the "Pledged Securities").
The Pledgor hereby delivers to Holding appropriate undated security
transfer powers duly executed in blank for the Pledged Securities set forth
above and will deliver appropriate undated security transfer powers duly
executed in blank for the Pledged Securities to be pledged hereunder from time
to time hereafter.
2. Administration of Security. The following provisions shall govern the
--------------------------
administration of the Pledged Securities:
(a) So long as an Event of Default has not occurred and is continuing
with respect to any Indebtedness (as used herein, "Event of Default" shall mean
the occurrence of any event of default under any instrument evidencing any
Indebtedness), the Pledgor shall be entitled to act with respect to the Pledged
Securities in any manner not inconsistent with this Stock Pledge Agreement, the
Subscription Agreement, the Amended and Restated Shareholders' Agreement dated
as of December 17, 1993 by and among the Holding and its stockholders (the
"Shareholders' Agreement") or any instrument evidencing any Indebtedness,
including voting the Pledged Securities and receiving all cash distributions
thereon and giving consents, waivers and ratifications in respect thereof;
(b) If at any time, the Pledgor receives any proceeds from the sale
by the Pledgor or any of the Pledgor's Permitted Transferees (as that term is
defined in the Shareholders' Agreement) of any Common Stock to anyone, the Net
Proceeds (as defined below) from such sale of Common Stock shall be applied to
the prepayment first of the accrued and unpaid interest on any Indebtedness and
then to the unpaid principal of any Indebtedness. The term "Net Proceeds" shall
mean the total proceeds received from the sale of Common Stock, minus an amount
-----
equal to the sum of (i) the federal income tax liability that would be payable
in respect of the gain recognized upon such sale, after giving effect to any
state income tax liability described in clause (ii) below, assuming a tax rate
equal to the maximum federal income tax rate on long-term capital gains in
effect at the time of sale, and (ii) any state income tax liability that would
be payable in respect of such gain, assuming the maximum applicable state income
tax rate on sales of such securities.
(c) If, while this Stock Pledge Agreement is in effect, the Pledgor
(or any of the Pledgor's Permitted Transferees) shall become entitled to receive
or shall receive any debt or equity security certificate (including, without
limitation, any certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of capital, or
issued in connection with any reorganization), option or right, whether as a
dividend or distribution in respect of, in substitution of, or in exchange for
any Pledged Securities, or otherwise, the Pledgor and each of the Pledgor's
Permitted Transferees agree to accept the same as Holding's agent and to hold
the same in trust on behalf of and for the benefit of Holding and to deliver the
same forthwith to Holding in the exact form received, with the endorsement of
the Pledgor and the Pledgor's Permitted Transferees when necessary and/or
appropriate undated security transfer powers duly executed in blank, to be held
by Holding, subject to the terms of this Stock Pledge Agreement, as additional
collateral security for the Indebtedness. Notwithstanding the foregoing, it is
agreed that the Pledgor or any of the Pledgor's Permitted Transferees may
exercise any option or right received as contemplated in the preceding sentence,
and Holding will exercise any such option or right upon receipt of written
instructions to that effect and any required payments or documents from the
Pledgor or the Pledgor's Permitted Transferees and the securities received upon
such exercise of any such option or right shall thereafter be held by Holding as
contemplated by the preceding sentence.
-2-
(d) The Pledgor and each of the Pledgor's Permitted Transferees shall
immediately upon request by Holding and in confirmation of the security
interests hereby created, execute and deliver to Holding such further
instruments, deeds, transfers, assurances and agreements, in form and substance
as Holding shall request, including any financing statements and amendments
thereto, or any other documents, as required under Delaware law and any other
applicable law to protect the security interests created hereunder and to enable
Holding to exercise its rights hereunder.
(e) If at any time, Holding exercises its right as set forth in the
Shareholders' Agreement to purchase the Pledged Securities, or the Pledgor
exercises his right as set forth in the Shareholders' Agreement to require
Holding to purchase the Pledged Securities, then the cash payable for the
Pledged Securities so purchased shall be the difference between the Put Price or
the Call Price, as applicable (as those terms are defined in the Shareholders'
Agreement), and the outstanding principal balance and accrued but unpaid
interest then due in respect of the Indebtedness.
(f) Subject to any sale by Holding or other disposition by Holding of
the Pledged Securities or other property pursuant to this Stock Pledge Agreement
and subject to Section 5 below, the Pledged Securities shall be returned to the
Pledgor or such Pledgor's Permitted Transferees upon payment in full of the
unpaid principal of, accrued interest on and any other amounts due in respect of
the Indebtedness.
3. Remedies in Case of an Event of Default.
---------------------------------------
(a) In case of an Event of Default shall have occurred and be
continuing, Holding shall have in each case all of the remedies of a secured
party under the Delaware Uniform Commercial Code, and, without limiting the
foregoing, shall have the right, in its sole discretion, to sell, resell, assign
and deliver all or, from time to time, any part of the Pledged Securities, or
any interest in or option or right to purchase any part thereof, on any
securities exchange on which the Pledged Securities or any of them may be
listed, at any private sale or at public auction, with or without demand of
performance or other demand, advertisement or notice of the time or place of
sale or adjournment thereof or otherwise (except that Holding shall give ten
days' notice to the Pledgor of the time and place of any sale pursuant to this
Section 3), for cash, on credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as Holding shall, in
its sole discretion, determine, the Pledgor and the Pledgor's Permitted
Transferees hereby waiving and releasing any and all right or equity of
redemption whether before or after sale hereunder. At any such sale Holding may
bid for and purchase the whole or any part of the Pledged Securities so sold
free from any such right or equity of redemption. Holding shall apply the
proceeds of any such sale first to the payment of all costs and expenses,
-----
including reasonable attorneys' fees, incurred by Holding in enforcing its
rights under this Stock Pledge Agreement, second to the payment of accrued and
------
unpaid interest on and then of unpaid principal of the Indebtedness of the
Pledgor and third to any other amounts due on the Indebtedness.
-----
-3-
(b) The Pledgor and the Pledgor's Permitted Transferees recognize
that Holding may be unable to effect a public sale of all or a part of the
Pledged Securities by reason of certain prohibitions contained in the Securities
Act of 1933, as amended (the "Act"), or in the rules and regulations promulgated
thereunder, or in applicable state securities or "blue sky" laws, but 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 the
Pledged Securities for their own account, for investment and not with a view to
the distribution or resale thereof. The Pledgor and the Pledgor's Permitted
Transferees agree that private sale so made may be at prices and on other terms
less favorable to the seller and that Holding has no obligation to delay the
sale of the Pledged Securities for the period of time necessary to permit the
registration of the Pledged Securities for public sale under the Act and under
applicable state securities or "blue sky" laws. The Pledgor and the Pledgor's
Permitted Transferees agree that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(c) If any consent, approval or authorization of any state, municipal
or other governmental department, agency or authority should be necessary to
effectuate any sale or disposition by Holding pursuant to this Section 3 of the
Pledged Securities, the Pledgor and each of the Pledgor's Permitted Transferee
will execute all such applications and other instruments as may be required in
connection with securing any such consent, approval or authorization, and will
otherwise use their best efforts to secure the same.
(d) Neither failure nor delay on the part of Holding to exercise any
right, remedy power or privilege provided for herein or by statute or at law or
in equity shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, remedy, power or privilege preclude any other right,
remedy, power or privilege.
4. Pledgor's Obligations Not Affected. The obligations of the Pledgor and
----------------------------------
each of the Pledgor's Permitted Transferees under this Stock Pledge Agreement
shall remain in full force and effect without regard to, and shall not be
impaired or affected by: (a) any subordination, amendment or modification of or
addition or supplement to the Employment Agreement, the Shareholders' Agreement,
or the Indebtedness or any assignment or transfer thereof; (b) any exercise or
non-exercise by Holding of any right, remedy, power or privilege under or in
respect of this Stock Pledge Agreement, the Shareholders' Agreement or any
instrument evidencing any Indebtedness, or any waiver of any such right, remedy,
power or privilege; (c) any waiver, consent, extension indulgence or other
action or inaction in respect of this Stock Pledge Agreement, the Employment
Agreement, the Shareholders' Agreement or any instrument evidencing any
Indebtedness, or any assignment or transfer of any thereof; or (d) any
bankruptcy, insolvency, reorganization arrangement, readjustment, composition,
liquidation or the like, of Holding, whether or not the Pledgor and the
Pledgor's Permitted Transferees shall have notice or knowledge of any of the
foregoing.
5. Transfer by Pledge. The Pledgor and the Pledgor's Permitted
------------------
Transferees will not sell, assign, transfer or otherwise dispose of, grant any
option with respect to, or mortgage, pledge or otherwise encumber the Pledged
Securities or any interest therein except as provided in
-4-
the Employment Agreement and the Shareholders' Agreement. In the event of a
sale, assignment, transfer or other disposition of or mortgage, pledge or other
encumbrance of Pledged Securities pursuant to the Subscription Agreement or the
Shareholders' Agreement, the Common Stock so sold, assigned, transferred or
otherwise disposed of or mortgaged, pledged or otherwise encumbered shall remain
subject to the provisions of this Stock Pledge Agreement and of the
Shareholders' Agreement and the purchaser, assignee, transferee or other
acquirer, mortgagee or pledgee shall agree in writing, in form and substance
satisfactory to Holding, to be bound by all the terms of this Stock Pledge
Agreement and of the Shareholders' Agreement with the same force and effect as
if such transferee were a party hereto.
6. Attorney-in-Fact. Holding is hereby appointed the attorney-in-fact of
----------------
the Pledgor and the Pledgor's Transferees for the purpose of carrying out the
provisions of this Stock Pledge Agreement and taking any action and executing
any instrument which Holding reasonably may deem necessary or advisable to
accomplish the purposes hereof, including without limitation, the execution of
the applications and other instruments described in Section 3(c) hereof, which
appointment as attorney-in-fact is irrevocable as one coupled with an interest.
7. Termination. Upon payment in full of the unpaid principal of, accrued
-----------
interest on and all other amounts payable in respect of the Indebtedness, this
Stock Pledge Agreement shall terminate and the Pledgor or the Pledgor's
Permitted Transferees shall be entitled to the return of such of the Pledged
Securities as have not theretofore been sold or otherwise applied pursuant to
the provisions of this Stock Pledge Agreement.
8. Notices. All notices or other communications required or permitted to
-------
be given hereunder shall be deemed delivered when delivered by hand or when sent
by first class, certified mail, postage and fees prepaid, as follows:
(i) If to Holding: Big V Holding Corp.
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Copy to: Xxxxxxx X. Xxxxxx, Esquire
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(ii) If to the Executive: To the address set forth below
unless and until notice of another
or different address shall be
given as provided herein.
9. Binding Effect, Successors and Assigns. This Stock Pledge Agreement
--------------------------------------
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns and nothing herein is intended or shall be
construed to give any other person any right,
-5-
remedy or claim under, to or in respect of this Stock Pledge Agreement. No
transfer of Pledged Securities of the Pledgor to the Pledgor's Permitted
Transferees shall be permitted hereunder, and any such transfer shall be null
and void, unless and until each such Permitted Transferee agrees in writing, in
form and substance satisfactory to Big V Supermarkets, Inc. and Holding, to
become bound by this Stock Pledge Agreement with respect to the Pledged
Securities so transferred.
10. Miscellaneous. Holding and its assigns shall have no obligation in
-------------
respect of the Pledged Securities, except to hold and dispose of the same in
accordance with the terms of this Stock Pledge Agreement. Neither this Stock
Pledge Agreement nor any provision hereof may be amended, modified, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the amendment, modification, waiver,
discharge or termination is sought. The provisions of this Stock Pledge
Agreement shall be binding upon the successors and assigns of the Pledgor and
each of the Pledgor's Permitted Transferees. The captions in this Stock Pledge
Agreement are for convenience of reference only and shall not limited the
provisions hereof. This Stock Pledge Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to the conflicts of law rules thereof. This Stock Pledge
Agreement may be executed simultaneously in counterparts, each of which is an
original, but all of which together shall constitute one instrument.
-6-
IN WITNESS WHEREOF, the parties hereto have caused this Stock Pledge
Agreement to be executed and delivered on the date first above written.
BIG V HOLDING CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Title: Chairman of the Board and Interim Chief
Executive Officer
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Address: 0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
-7-
