Exhibit 4.5
FORM OF
SECURED PROMISSORY NOTE AND SECURITY AGREEMENT
("NOTE")
$[ ] August __, 2002
FOR VALUE RECEIVED, the undersigned, ___________ (the
"BORROWER"), hereby promises to pay to BPC Holding Corporation, a Delaware
corporation (the "COMPANY"), or to the legal holder of this Note at the
time of payment, the principal sum (the "PRINCIPAL SUM") of ______________
dollars ($_______) in lawful money of the United States of America. The
Borrower also agrees that interest (computed on the basis of a 365 day
year) shall accrue on any portion of the Principal Sum that remains
outstanding from and after the effective date of this Note until the entire
Principal Sum has been paid in full, at the "applicable federal rate" as
determined pursuant to Section 1274(d) of the Internal Revenue Code of
1986, as amended; PROVIDED, HOWEVER, that the interest accrued on the
unpaid Principal Sum shall be added to the unpaid Principal Sum semi-
annually, but with the first such addition occurring on December 31, 2002,
and with subsequent additions occurring every 6 months thereafter; and
FURTHER, PROVIDED, that in no event shall such interest be charged to the
extent it would violate any applicable usury law. Other than with respect
to the Pledged Collateral (as defined below) to the extent set forth
hereunder, the obligations represented by this Note shall be without
recourse to the Borrower; PROVIDED, HOWEVER, that to the extent that the
Principal Sum is increased each year by reason of the addition of interest
accrued on the unpaid Principal Sum, such portion of the Principal Sum
shall be with full recourse to the Borrower.
The proceeds received by the Borrower shall be used solely to
acquire shares of common stock, par value $0.01 per share, of the Company
(the "COMMON STOCK") pursuant to the terms of the Key Employee Stock
Purchase Agreement, dated as of August __, 2002, between the Company and
the Borrower (the "STOCK PURCHASE AGREEMENT").
This Note is subject to the following further terms and
conditions:
1. PAYMENT UPON MATURITY. The Principal Sum then outstanding
and all accrued interest thereon shall become due and payable on the first
to occur of (i) the (10{th}) tenth anniversary of the date hereof, (ii) the
ninetieth (90{th}) day immediately following Borrower's termination of
employment with the Company by reason of death, Disability (as defined in
the Company's 2002 Stock Option Plan (the "OPTION PLAN")), Redundancy (as
defined in the Option Plan), or retirement from the Company and its
subsidiaries on or after attaining age 60 with at least ten years of
service with the Company and/or one or more of its subsidiaries, (iii) the
thirtieth (30{th}) day following Borrower's termination of employment with
the Company for any other reason, or (iv) the day immediately preceding the
date on which the existence of this Note would otherwise cause the Company
to be in violation of Section 402 of the Xxxxxxxx-Xxxxx Act of 2002.
Notwithstanding the forgoing, in the event the Borrower's employment is
terminated by reason of death, Disability, Redundancy or retirement as set
forth in (ii) above, the Borrower may elect prior to the thirtieth day
following such termination, by providing written notice to the Company, to
amortize the loan over a four year period beginning on the last business
day of the month in which such termination occurs (the "Amortization
Commencement Date"), in which case, the Principal and interest shall become
due and payable in sixteen equal quarterly installments with the first such
installment becoming due and payable on the last business day of the third
month following the Amortization Commencement Date and each subsequent
payment becoming due and payable on the last business day of each third
month thereafter.
2. PAYMENT AND PREPAYMENT. All payments and prepayments of the
Principal Sum of this Note (including amounts representing accrued interest
on this Note) shall be made to the Company or its order, or to the legal
holder of this Note or such holder's order, in lawful money of the United
States of America at the principal offices of the Company (or at such other
place as the holder hereof shall notify the Borrower in writing). The
Borrower may, at his option, prepay this Note in whole or in part at any
time or from time to time without penalty or premium. Any payment or
prepayment on this Note shall be deemed to be applied first to the payment
of accrued interest and then to the repayment of the unpaid Principal Sum.
Upon full and final payment of the Principal Sum of this Note (including
amounts representing accrued interest on this Note), it shall be
surrendered to the Borrower and the Pledged Collateral (as defined below)
shall be released, subject to the terms of any other note or similar
agreement entered into by and between the Company and the Borrower from
time to time. In addition, if on the third (3{rd}) anniversary of July 22,
2002, the closing date of the acquisition of control of the Company by the
Company and other affiliates of Xxxxxxx Sachs & Co. and other investors
(the "CLOSING DATE"), or on any subsequent anniversary of such date, the
board of directors of the Company (the "BOARD") makes a good faith
determination that the then fair market value of a share of Common Stock is
less than 25% of the fair market value (as determined in good faith by the
Board) of a share of Common Stock on the Closing Date, the Board shall
notify the Borrower within ten (10) business days of such determination and
within thirty (30) business days of receipt of such notice the Borrower may
cause the Note to be cancelled (except with respect to accrued interest),
and interest to cease to accrue, by delivering to the Company all or a
portion of the shares of Common Stock then held by the Borrower up to a
number of shares with a fair market value (as determined in good faith by
the Board) equal to the then outstanding Principal Sum and accrued
interest; provided, however, that the Borrower may not cause the Note to be
so cancelled if it would be prohibited by operation of one or more of the
Company's instruments of indebtedness, applicable law or otherwise; and
provided, further, that any right Borrower may have to cause the Note to be
so cancelled will expire upon the initial underwritten offering of the
Common Stock pursuant to a registration statement (other than a Form S-8 or
any successor form).
3. GRANT OF SECURITY INTEREST.
(a) As security for the full and punctual payment of the
Principal Sum (including amounts representing accrued interest on this
Note) when due and payable (whether upon stated maturity, or otherwise),
the Borrower hereby grants and pledges a continuing lien on and security
interest in, and, as a part of such grant and pledge, hereby pledges,
assigns, transfers and conveys to the Company as collateral security, all
of the shares of Common Stock purchased under the Stock Purchase Agreement
(the "PLEDGED STOCK"), together with any and all dividends and other
distributions made in respect of the Pledged Stock (net of any taxes
payable by the Borrower on any such dividends or distributions) and any and
all securities issued in substitution or exchange for the Pledged Stock
(the "PLEDGED COLLATERAL").
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(b) Borrower shall not be permitted to directly or indirectly
sell, transfer, assign, pledge, encumber or otherwise transfer ("TRANSFER")
any shares of Pledged Stock other than shares as to which this Agreement
has terminated pursuant to Section 2 hereof, unless the Company has given
its prior consent with respect to such Transfer. Any proceeds received by
the Borrower upon a Transfer of any shares of Pledged Stock, including a
Transfer to the Company pursuant to the Stockholders Agreement dated July
22, 2002 among the Company and the stockholders party thereto, shall be
paid to the Company as a full or partial prepayment of this Note.
(c) The Borrower will defend the Company's right, title and
interest in and to the Pledged Collateral against the claims and demands of
all other persons.
(d) Concurrently with making this Note, the Borrower has
delivered to the Company the certificates representing the Pledged Stock,
together with appropriate undated stock powers duly executed in blank for
the Pledged Stock. The Borrower agrees to deliver, if necessary or
appropriate, additional undated stock powers duly executed in blank for the
Pledged Stock and to take such additional action as is required from time
to time to perfect the Company's security interest in the Pledged Stock.
(e) So long as the Borrower has not defaulted in the timely
payment of principal and interest hereunder, and such default shall not
have been cured within (30) days following written notice of such default
(a "DEFAULT"), the Borrower shall be entitled to vote the Pledged Stock and
to give all consents, waivers and ratifications in respect of the Pledged
Stock. Upon the occurrence of a Default, all voting and other consensual
rights of the Borrower in the Pledged Stock shall cease and may be
exercised by the Company.
(f) Upon the occurrence of a Default, the entire unpaid
Principal Sum and unpaid interest under this Note shall become immediately
due and payable and the Company shall have and may exercise all rights and
remedies afforded to a secured party under the Delaware Uniform Commercial
Code applicable thereto, and shall have the right to retain the Pledged
Collateral in partial or full satisfaction of the Borrower's obligations
under this Note in accordance with the provisions of, and to the extent
permitted under, the Delaware Uniform Commercial Code, provided that the
Company shall provide the Borrower with prior written notice of any sale of
the Pledged Collateral. With respect to the preceding sentence, the
Company shall, in its sole discretion, to the extent permitted under the
Delaware Uniform Commercial Code, determine the order in which all or any
portion of the assets comprising the Pledged Collateral shall be applied in
satisfaction of the Borrower's obligations under this Note; PROVIDED,
HOWEVER, that the value of any such assets so applied shall be determined
in accordance with paragraph (g) of this Section 3; and FURTHER PROVIDED,
that in the event the Company determines to retain the Pledged Collateral
in partial satisfaction of the Borrower's obligations hereunder, interest
shall cease to accrue on the remaining unpaid Principal Sum and interest
under this Note. Borrower hereby agrees to indemnify the Company and hold
it harmless from and against any and all costs and expenses, including
without limitation attorneys fees, reasonably incurred by the Company in
connection with any Default, it being understood that the Borrower's
obligation to indemnify the Company shall, except to the extent of the
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Pledged Collateral, be without recourse to the Borrower. Any balance of
the Pledged Collateral not transferred to the Company under the provisions
of this Section 3(f) shall be promptly returned to the Borrower.
(g) In the event of a Default, for purposes of this Note the
value of a share of Common Stock as of any date shall be equal to the fair
market value (as determined in good faith by the board of directors of the
Company) of a share of Common Stock as of such date.
(h) The Borrower agrees that at any time and from time to time
upon the written request of the Company, the Borrower will execute and
deliver such further documents and do or cause to be done such further acts
and things as the Company may reasonably request in order to effect the
purposes of this Note and the grant of the security interest hereunder.
4. NOTICE. For the purposes of this Note, notices, demands and
all other communications provided for herein shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Borrower:
If to the Company:
Xxxxxx Xxxxxx
BPC Holding Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
5. MISCELLANEOUS.
(a) No delay or failure by the Company or the holder of this
Note in the exercise of any right or remedy shall constitute a waiver
thereof, and no single or partial exercise by the holder hereof of any
right or remedy shall preclude other or future exercise thereof or the
exercise of any other right or remedy.
(b) The headings contained in this Note are for reference
purposes only and shall not affect in any way the meaning or interpretation
of the provisions hereof.
(c) This Note shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, heirs and permitted
assigns and nothing herein is intended or shall be construed to give any
other person any right, remedy or claim under, to or in respect of this
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Note. The rights and obligations of this Note may not be assigned (other
than by operation of law) in whole or in part by the Borrower or the
Company.
(d) The provisions of this Note shall be governed by and
construed in accordance with laws of the State of Delaware, without giving
effect to the choice of law principles thereof.
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IN WITNESS WHEREOF, this Note has been duly executed and
delivered to the Company by the Borrower on the date first above written.
_____________________________
Borrower
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