Exhibit 10.85 Stock Pledge and Security Agreement dated as of October
11, 1995, by and between Galaxy Foods Company and Xxxxxx X. Xxxxxx
STOCK PLEDGE AND SECURITY AGREEMENT
THIS STOCK PLEDGE AND SECURITY AGREEMENT (the
"Agreement"), is made and entered into as of the 11th day of
October, 1995, by and between XXXXXX X. XXXXXX ("Debtor") and
GALAXY FOODS COMPANY, a Delaware corporation ("Secured Party").
W I T N E S S E T H:
This Agreement is made and entered into under the
following circumstances:
8. Pursuant to that certain Employment Agreement dated
as of October 11, 1995, by and between Secured Party and Debtor,
Secured Party granted to Debtor the right to purchase from Secured
Party (the "Purchase Right") certain shares of the Common Stock of
Secured Party (the "Shares").
9. Debtor has elected to exercise a portion of his
Purchase Right with respect to Eighteen Million (18,000,000) of the
Shares and, in order to evidence the payment of the purchase price
for the Shares obtained pursuant to such election, Debtor has
executed in favor of Secured Party a Promissory Note in the
original principal amount of Eleven Million Five Hundred Seventy-
two Thousand Two Hundred and 00/100 Dollars ($11,572,200.00) (the
"Note"), in order to evidence the consideration for the issuance of
the Shares.
10. Secured Party has required the execution and
delivery of this Agreement to provide security for the obligations
of Debtor under the Note.
NOW, THEREFORE, in consideration of the foregoing
premises, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as
follows:
11. Pledge of Shares. Debtor hereby pledges its
interest in the Shares as security for the payment of all amounts
required to be paid to Secured Party in accordance with the Note
and performance of all obligations of Debtor under the Note and
this Agreement. Secured Party shall have (and is hereby granted) a
security interest in the Shares (and the related certificates
evidencing such Shares) and all proceeds thereof and accessions
thereto, including, without limitation, all additional Shares
acquired by Debtor under the terms hereof (collectively, the
"Collateral") in order to secure the obligations of Debtor under
the Note and this Agreement. Simultaneously herewith, Debtor has
delivered to Secured Party the Shares, together with one or more
stock powers, duly endorsed in blank, to hold and administer
according to the terms hereof.
12. Ownership Rights. Unless a default has occurred
under the Note or this Agreement, Debtor shall have and enjoy all
rights and attributes relating to the pledged Shares delivered
hereunder, including, without limitation, all voting rights and
rights to dividends and other distributions in respect thereof.
13. Adjustments. In the event that, during the term of
this Agreement, any share dividend, reclassification, readjustment,
or other change is declared or made in the capital structure of
Debtor, all new, substituted, and additional shares, options or
other securities issued with respect to the pledged Collateral by
reason of any such change shall be delivered to and held by Secured
Party under the terms of this Agreement in the same manner as the
Collateral originally pledged hereunder.
14. Warrants and Rights. In the event that during the
term of this Agreement, subscription warrants or any other rights
or options shall be issued to or for the benefit of Debtor or
otherwise with respect to the Collateral, such warrants, rights and
options shall be immediately assigned and delivered by Debtor to or
retained by Secured Party, as the case may be, to secure the
obligations of Debtor under the Note and this Agreement.
15. Events of Default; Secured Party's Remedies. In
the event Debtor shall, following the date hereof, (a) fail to pay
to Secured Party any amount to become due as required to be paid by
the Note, or (b) default in any of its obligations under any of the
terms of the Note or this Agreement (each of the foregoing being an
"Event of Default"), upon the failure by Debtor to cure said
default within fifteen (15) days after receipt of written notice
thereof from Secured Party, Secured Party shall have the rights and
remedies provided in the Florida Uniform Commercial Code in effect
on the date of this Agreement (the "Code") and may (i) sell any
such Collateral in any manner provided under the Code, and the
proceeds of any such sale shall be applied first to the expenses of
such sale (including, but not limited to, reasonable attorneys'
fees incurred by Secured Party in connection with any such default
by Debtor), second to all amounts (interest first and then
principal) outstanding under the Note, and the balance, if any,
shall be paid to Debtor; or (ii) retain the Shares in satisfaction
of the unpaid indebtedness represented by the Note in accordance
with any provisions of the Code which allow such retention.
No delay or omission on the part of Secured Party in
exercising any right granted hereunder shall operate as a waiver of
such right or any other right. A waiver on any one occasion by
Secured Party shall not be construed as a bar to or waiver of any
right on any future occasion. All rights and remedies of Secured
Party, whether granted herein or by the Note, shall be cumulative
and may be exercised separately or concurrently.
16. Termination of Pledge; Release of Shares. The
pledge created hereby shall terminate upon the payment in full of
the Note and performance of all of Debtor's obligations under the
Note and this Agreement. Upon termination of the pledge created
hereby arising from such full payment and satisfaction of
obligations, Secured Party shall release its security interest in
the Collateral and shall release to Debtor the certificates and
stock powers relating thereto, and any other Collateral remaining
in Secured Party's possession.
17. Amendment. This Agreement may be amended at any
time by a writing which refers to this Agreement and is executed by
each of the parties hereto.
18. Complete Agreement. Except as expressly set forth
herein or in an instrument in writing signed by the party to be
bound thereby which makes specific reference to this Agreement,
this Agreement sets forth the entire understanding of the parties
hereto concerning the subject matter hereof, and supersedes all
prior contracts, arrangements, communications, discussions,
representations and warranties, whether oral or written, among the
parties relating to the subject matter of this Agreement.
19. Notices. All notices, requests, consents, and
other communications hereunder shall be in writing, shall be deemed
to have been duly given when received, if personally delivered, and
when mailed, if mailed by U.S. Certified or Registered Mail,
postage prepaid, and addressed as follows:
If to Debtor: XXXXXX X. XXXXXX
0000 Xxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
If to Secured Party: GALAXY FOODS COMPANY
0000 Xxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
or to such other address or addresses as the party addressed may
from time to time designate to the others in writing.
20. Governing Law. This Agreement shall in all
respects be interpreted, governed by, and construed in accordance
with the laws of the state of Florida.
21. Severability. Each Section, subsection, and lesser
section of this Agreement constitutes a separate and distinct
undertaking, covenant, or provision hereof. In the event that any
provision of this Agreement shall finally be determined to be
unlawful, such provision shall be deemed limited by construction in
scope and effect to the minimum extent necessary to render the same
valid and enforceable, and, if such a limiting construction is not
possible, any such provision shall be deemed severed from this
Agreement, but every other provision of this Agreement shall remain
in full force and effect.
22. Third Parties. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon
or give any other person or entity other than the parties hereto
any rights or remedies under or by reason of this Agreement.
23. Headings. The headings in this Agreement are
intended solely for convenience of reference and shall not be given
any effect in the construction or interpretation of this Agreement.
24. Counterparts. This Agreement may be executed and
delivered in two or more counterparts, each of which shall be
deemed an original but all of which shall constitute one and the
same Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto set
their hands on the date first written above.
"Debtor"
s/Xxxxxx X. Xxxxxxxx, XX s/Xxxxxx X. Xxxxxx
Witness XXXXXX X. XXXXXX, individually
s/Xxxxxxxxx X. Xxxxxxx
Witness
"Secured Party"
GALAXY FOODS COMPANY, a
Delaware corporation
s/Xxxxxxxxx X. Xxxxxxx By: s/Xxxxxx X. Xxxxxxxx, XX
Witness Name: Xxxxxx X. Xxxxxxxx, XX
s/Xxxxxxxxx X. Xxxxxxx Title: Chief Financial Officer
Witness
