Exhibit 10.12
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Pledge Agreement") is made as of the
1st day of May, 2001, from L.S. HOLDING (USA), INC., an Alaska corporation, with
a mailing address of 236 and 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxxx 00000 ("L.S.
USA" or the "Borrower"), and LITTLE SWITZERLAND, INC., a Delaware corporation,
with a mailing address of 000-X Xxxxx Xxx, Xx. Xxxxxx, Virgin Islands 00000
("Xxxxxx Xxxxxxxxxxx," and, together with L.S. USA, the "Pledgor"), to and in
favor of THE CHASE MANHATTAN BANK, a commercial banking institution, with a
mailing address of X.X. Xxx 000000, Xx. Xxxxxx, X.X. Xxxxxx Xxxxxxx 00000
("Lender").
WITNESSETH:
WHEREAS, Pledgor has requested, and Lender has agreed to extend a certain
revolving credit facility (the "Facility") to L.S. USA, a wholly-owned
subsidiary of L.S. Holding, Inc., a U.S. Virgin Islands corporation ("L.S.
Holding"), a wholly-owned subsidiary of Little Switzerland, in the aggregate
principal amount of One Hundred Thousand Dollars ($100,000.00), as evidenced by
the Revolving Credit Note of even date herewith (the "Note") executed by
Borrower and issued to Lender; and
WHEREAS, Pledgor and Lender have entered into a Loan Agreement of even
date herewith (the "Loan Agreement"), setting forth the terms and conditions of
the Facility; and
WHEREAS, as an inducement to Lender to extend the Facility, and as
security for Pledgor's obligations to Lender under the Note, the Loan Agreement
and the Security Instruments referenced therein (collectively, the "Loan
Documents"), Pledgor has agreed to pledge and assign to Lender certain shares of
stock now or hereafter owned by Pledgor;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. RECITALS. The foregoing recitals are hereby acknowledged as true and
correct and are incorporated herein by this reference.
2. COLLATERAL. As security for the due and punctual payment of the Note,
as the same
STOCK PLEDGE AGREEMENT
PAGE 2
may be hereafter amended, supplemented or modified from time to time, and for
the payment and performance of all other obligations of Pledgor under the Loan
Documents, Pledgor hereby pledges and assigns to Lender and creates in Lender a
security interest in Pledgor's right, title and interest in and to the issued
and outstanding stock of, or equivalent equity interest in, all Subsidiaries (as
defined below) of Pledgor as shall represent an encumbrance of (a) 65% of
Pledgor's equity interest in such Subsidiaries as are wholly-owned by Pledgor
and (b) 65% of the total issued and outstanding equity interest in such
Subsidiaries as are not wholly-owned by Pledgor (collectively, the "Pledged
Stock"). The Pledged Stock is and shall at all times be duly authorized, validly
issued, fully paid and nonassessable. The term "Subsidiaries" means each
corporation or other formally organized entity with respect to which a Pledgor
now or hereafter beneficially owns, directly or indirectly, a controlling
interest, and shall specifically include, but not be limited to the following:
the Borrower; L.S. Wholesale, Inc., a Massachusetts corporation; L.S. Holding;
World Gift Imports, N.V., a Netherlands Antilles corporation; Montres et Bijoux,
S.A.R.L., a St. Xxxxxx company; L.S. Holding (Aruba), N.V., an Aruba company;
L.S. Holding (Curacao), N.V., a Curacao corporation. The Subsidiaries other than
L.S. Wholesale and L.S. USA shall be collectively referred to as the "Foreign
Subsidiaries." Notwithstanding the foregoing, (i) the Pledged Stock shall
specifically exclude the interest of the Pledgor in World Gift Imports
(Barbados) Limited, a Barbados company, and such entity shall not be included in
the term "Subsidiaries," and (ii) the Pledged Stock shall include 100% of Little
Switzerland's equity interest in L.S. Wholesale.
As further security, Pledgor hereby grants to Lender a security interest
in any payments, warrants, stock rights, rights to subscribe, liquidating
dividends, stock dividends, dividends paid in stock, new securities or other
property which Pledgor is or may hereafter become entitled to receive on account
of the Pledged Stock and, except as provided SECTION 4 hereof, in the event that
Pledgor receives any such money or property Pledgor will immediately deliver it
to the Lender to be held hereunder in the same manner as the property originally
delivered hereunder. The Pledged Stock and any and all money and property
hereinafter delivered to the Lender is hereinafter called the "Collateral". The
Collateral shall constitute security for the Obligations.
3. DELIVERY OF SHARES. Each original stock certificate (or equivalent
instrument for the
STOCK PLEDGE AGREEMENT
PAGE 3
Foreign Subsidiaries) representing Pledged Stock shall be delivered to the
Lender, in form transferable by delivery, on or before May 31, 2001 and shall be
accompanied by a stock power executed in blank by Pledgor. The Pledged Stock
shall be free and clear of all restrictions on transfer, other than as may be
imposed by state and federal securities laws; if any such restrictions on
transfer appear on a certificate or other instrument representing any of the
Pledged Stock, the delivery thereof shall be accompanied by waivers executed by
all parties as may be necessary to evidence the full and complete waiver of such
restrictions. Any Pledged Stock hereafter acquired shall be promptly delivered
in compliance with this Section upon such acquisition. Time is of the essence
with respect to all such deliveries of Pledged Stock required under this
Section.
4. VOTING POWER; DIVIDENDS. Subject to SECTION 7 hereof, Pledgor shall be
entitled to vote the Pledged Stock and to give consents, waivers and
ratifications with respect thereto; provided, however, that no vote shall be
cast or consent, waiver or ratification given or action taken which would be
inconsistent with or violate any of the provisions of the Loan Documents.
Subject to SECTION 7 hereof, Pledgor shall be entitled to receive all dividends
on the Pledged Stock; provided, however, that Pledgor shall give Lender thirty
(30) days written notice thereof and Lender shall have the option during such
thirty (30) day period to advise Pledgor that any non-cash dividends or
liquidating dividends shall be delivered to Lender in the manner provided in
SECTION 2 hereof.
5. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and warrants
to the Lender that:
A. Pledgor is the sole legal owner and holder of the Pledged Stock in
the manner indicated hereinabove and no lien, charge, encumbrance or other
security interest exists against the Pledged Stock (other than this Pledge
Agreement).
B. No disability or contractual obligation exists which would prohibit
Pledgor from pledging the Pledged Stock as herein provided.
C. The agreements and obligations of Pledgor have been duly authorized
by all necessary corporate action and do not violate the Pledgor's Articles of
Incorporation or Bylaws.
6. COVENANTS. Pledgor hereby covenants and agrees that:
A. The Collateral shall at all times be free and clear of any security
interests,
STOCK PLEDGE AGREEMENT
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mortgages, pledges, liens, encumbrances and restrictions on the transfer
thereof, other than (a) the security interest provided for herein, (b) such
restrictions on transfer as may be imposed by state and federal securities laws
and (c) the security interest of Xxxxxxx and Company subordinate to the Lender's
security interest under this Pledge Agreement.
B. Pledgor will defend the Collateral against all claims and demands of
all persons at any time claiming any interest therein.
C. No part of the Collateral shall be sold, assigned or conveyed.
D. Pledgor shall indemnify and save and hold the Lender harmless from
and against any and all claims, expenses, damages, loss, liability or judgments,
including reasonable attorneys' fees, which may be incurred or sustained by
Lender, directly or indirectly, in connection with this Pledge Agreement and the
exercise of any of the security rights with respect to the Collateral. This
covenant shall survive the termination of the other provisions of this Pledge
Agreement.
E. Pledgor shall execute and deliver to Lender such further instruments
and agreements, in form and substance satisfactory to the Lender and its
counsel, as the Lender may reasonably request, in order to evidence, enforce and
carry out the transactions contemplated by this Pledge Agreement.
7. EVENT OF DEFAULT. At any time that an Event of Default (as defined in
the Loan Agreement) shall have occurred and be continuing, the Lender may, in
its discretion and upon giving notice to the Pledgor of intention to do so,
A. vote all or any of the Pledged Stock and give all consents, waivers
and ratifications with respect thereto and take any action with respect thereto
as the outright owner thereof;
B. receive all dividends and all other distributions of any kind on
all or any of the Pledged Stock;
C. exercise any and all rights of collection, conversion or exchange,
and any and all other rights, privileges, options or powers of the Pledgor
pertaining or relating to the Pledged Stock; and/or
D. sell, assign and deliver the whole or, from time to time, any part
of the Pledged
STOCK PLEDGE AGREEMENT
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Stock at any broker's board or at a private sale or public auction for cash, for
credit or for other property, for immediate or future delivery, and for such
price or prices on such terms as the Lender in its discretion may determine,
providing that such sale shall be an arms length commercially reasonable
transaction and, if then permitted by law, the Lender may bid for and purchase
the whole or any part of the Pledged Stock so sold free from any right or equity
of redemption. Upon any such sale the Lender shall have the right to deliver,
assign and transfer to the purchaser thereof the Pledged Stock so sold.
8. SALE. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right of any kind whatsoever, including any
equity or right of redemption, of Pledgor, who hereby specifically waives to the
maximum extent permitted by applicable law all rights of redemption, stay or
appraisal which Pledgor has or may have under any rule of law or statute now
existing or hereafter adopted. The Lender shall give the Pledgor not less than
ten (10) days' written notice of intention to make any such public or private
sale or sale at broker's board or on a securities exchange. Such notice, in case
of sale at a broker's board or on a securities exchange, shall state the board
or exchange at which such sale is to be made and the day on which the Pledged
Stock or that portion thereof so being sold, will first be offered for sale at
such board or exchange. Any such public sale shall be held at such time or times
within the ordinary business hours and at such place or places as the Lender may
fix in the notice of such sale. At any such sale the Pledged Stock may be sold
in one lot as an entirety or in separate parcels, as the Lender may determine.
The Lender may without notice or publication adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at the time
and place fixed for the sale, and such sale may be made at any time or place to
which the same may be so adjourned. In case of any sale of all or any part of
the Pledged Stock on credit or for future delivery, the Pledged Stock so sold
may be retained by the Lender until the selling price is paid by the purchaser
there of, but the Lender shall not incur any liability in case of the failure of
such purchaser to take up and pay for the Pledged Stock so sold and, in case of
any such failure, such Pledged Stock may again be sold upon like notice.
Notwithstanding the foregoing, the Lender, in its discretion and instead of
exercising the power of sale herein conferred upon it, may proceed by a suit or
suits at law or in equity to foreclose
STOCK PLEDGE AGREEMENT
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this Pledge Agreement and sell the Pledged Stock, or any portion thereof, under
a judgment or decree of a court or courts of competent jurisdiction, Pledgor
having been given due notice of all such action. Pledgor recognizes that
registration under federal law of the securities included in the Collateral or
compliance therewith may be required to effect any public sale thereof. Any
private sale shall be conducted in such manner and in such circumstances as
Lender may deem necessary or advisable for the purpose of effecting such sale
without such registration or otherwise. Pledgor hereby agrees that disposition
by private sale is commercially reasonable, that it will upon Lender's request
give any such purchaser access to such information as may be reasonably
requested to effect such disposition and that the Lender shall incur no
liability for selling all or part of such securities at a private sale,
notwithstanding the possibility that a higher price might be realized if the
sale were deferred until after registration of such securities.
9. NO OBLIGATION OF LENDER. Notwithstanding anything contained herein to
the contrary, Lender shall not be obligated or have a duty to exercise any such
rights, privileges, options or powers herein provided or to sell or otherwise
realize upon any of the Pledged Stock as herein authorized, and the Lender shall
not be responsible for any failure to do so or delay in so doing. Further, the
Lender shall have no duty as to the collection or protection of the Collateral
or any part thereof or any income thereon, or as to the preservation of any
rights pertaining thereto, beyond the safe physical custody of any Collateral
actually in the Lender's possession.
10. APPLICATION OF PROCEEDS. The proceeds of any sale of all or any part
of the Pledged Stock or any other amounts realized by the Lender under this
Pledge Agreement, shall be applied by the Lender:
A. to the payment of the costs and expenses of such sale, including
reasonable compensation to the Lender and its agents and counsel, and all
expenses, liabilities and advances made or incurred by the Lender in connection
therewith;
B. to the payment of the Note and to the payment of any other
obligations of the Pledgor or the Borrower under the Loan Documents;
C. to the payment of any other indebtedness secured by a subordinated
security interest in the Pledged Stock; and
STOCK PLEDGE AGREEMENT
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D. to Pledgor or as a court of competent jurisdiction may direct, of
any surplus then remaining from such proceeds.
11. DEFAULT. The following shall constitute an Event of Default hereunder
and under the Loan Agreement:
A. Any representation or warranty made by Pledgor herein hereof
proves to have been incorrect in any material respect; and
B. Failure to perform or comply with any term or provision of this
Pledge Agreement, which failure shall remain unremedied for thirty (30) days
after written notice from the Lender to the Pledgor thereof; and
C. The occurrence of an Event of Default under the Loan Agreement.
12. LENDER AS ATTORNEY-IN-FACT. Lender is hereby appointed the
attorney-in-fact of Pledgor for the purpose of carrying out the provisions of
this Pledge Agreement and taking any action and executing any instruments which
the Lender may deem necessary or advisable to accomplish the purposes hereof,
which appointment as attorney-in-fact is irrevocable and coupled with an
interest; provided, however, that unless an Event of Default shall have occurred
and be continuing, the Lender agrees not to take any action as attorney-in-fact
of the Pledgor. Without limiting the generality of the foregoing, at any time in
which an Event of Default has occurred and is continuing, Lender shall have the
right and power to receive, endorse and collect all checks made payable to the
order of the Pledgor representing any dividend or other distribution in respect
of the Pledged Stock or any part thereof and to give full discharge of the same.
13. NO WAIVER. No course of dealing between the Pledgor and the Lender
shall operate as a waiver of any rights under this Pledge Agreement or any other
related documents or instruments or in respect of the Collateral. No failure on
the part of the Lender to exercise, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by the Lender of any right, power or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy. The remedies herein provided are cumulative and are not exclusive of
any remedies provided by law.
14. DISCHARGE. When all obligations and liabilities of the Borrower or
Pledgor under the
STOCK PLEDGE AGREEMENT
PAGE 8
Loan Documents shall have been paid and performed in full, this Pledge Agreement
shall terminate, and the Lender shall forthwith assign, transfer and deliver to
Pledgor, against Pledgor's receipt, the Collateral then held by it hereunder.
The receipt of Pledgor of the Collateral so delivered shall be complete and full
acquittance therefor, and the Lender shall thereafter be discharged from any
liability or responsibility therefor.
15. NOTICE. Any notice herein provided to be given to Pledgor and to
Lender in the manner provided in the Loan Agreement.
16. CONSTRUCTION. This Pledge Agreement shall in all respects be construed
in accordance with and governed by the laws of the Territory of the United
States Virgin Islands. The invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of any other
term or provision hereof.
17. JURY TRIAL WAIVER. PLEDGOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS PLEDGE
AGREEMENT AND/OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS BY ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER'S WILLINGNESS TO EXTEND THE CREDIT EVIDENCED BY THE
NOTE. FURTHER, PLEDGOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE
LENDER, NOR THE LENDER'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
THE LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO REPRESENTATIVE OR AGENT OF THE
LENDER, NOR THE LENDER'S COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR
MODIFY THIS PROVISION.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement
to be duly executed the day and year first above written.
L.S. HOLDING (USA), INC.
By: /s/ Xxxxxxx X. Xxxxxx, Senior Vice President
--------------------------------------------
(SEAL)
Attest: /s/ Xxxxxxxx Xxxxxx Holland
-----------------------------------
Xxxxxxxx Xxxxxx Xxxxxxx, Secretary
LITTLE SWITZERLAND, INC., Guarantor
By: /s/ Xxxxxxx X. Xxxxxx, Senior Vice President
--------------------------------------------
(SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxx, Secretary
------------------------------
Xxxxxxx X. Xxxxxx, Secretary
THE CHASE MANHATTAN BANK, Lender
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx, Managing Director
