1
EXHIBIT 4.11
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT is made and entered into this 20th day of
March, 1998, by and between ATLANTIC PREMIUM BRANDS, LTD., a Delaware
corporation (hereinafter referred to as "Pledgor"), and FLEET CAPITAL
CORPORATION, a Rhode Island corporation (hereinafter referred to as "Lender").
W I T N E S S E T H:
WHEREAS, Pledgor and Lender have entered into a certain Loan and
Security Agreement dated March 20, 1998 (hereinafter, together with all
amendments thereto, the "Loan Agreement"), pursuant to which Lender may make
loans or extend financial accommodations to or for the benefit of Pledgor
("Loans"); and
WHEREAS, to secure the Loans, Pledgor has granted a security interest
in and lien upon all or substantially all of its property; and
WHEREAS, a condition to the making of the Loans is Pledgor's pledge to
Lender of all of the capital stock of CARLTON FOODS CORP., a Delaware
corporation (hereinafter the "Company") as security for the Loans and all other
liabilities and obligations of Pledgor and Company to Lender of every kind and
description, whether arising under the Loan Agreement or under any other
instrument or agreement evidencing or securing all or any part of the Loans or
other liabilities (hereinafter jointly called, together with all amendments
thereto, the "Loan Documents");
NOW, THEREFORE, for and in consideration of the sum of $10.00 in hand
paid and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and to secure the timely payment and performance
of the Loans and all other liabilities of Pledgor and Company to Lender, Pledgor
agrees as follows:
1. PLEDGE. Pledgor hereby pledges, mortgages, assigns,
transfers, sets over and delivers to Lender, and grants to Lender a security
interest in, 100 shares of the capital stock of Company, evidenced by stock
certificate number(s) 1 and all options for the purchase of shares of the
capital stock of Company (such shares of capital stock being hereinafter called
"Stock"), herewith delivered to Lender accompanied by stock powers ("Powers")
duly executed in blank, with signatures properly guaranteed, and the proceeds
thereof (said Stock and Powers hereinafter collectively called the "Collateral")
as security for the payment of all liabilities and obligations of Pledgor to
Lender of every kind and description, whether now existing or hereafter arising
and whether fixed or contingent, secured or unsecured, joint or several, due
2
or to become due and whether arising under the Loan Agreement or otherwise
(jointly hereinafter called the "Obligations").
Lender shall have no duty with respect to any of the Collateral other
than the duty to use reasonable care in the safe custody of the Collateral in
its possession. Without limiting the generality of the foregoing, Lender shall
be under no obligation to take any steps necessary to preserve the value of any
of the Collateral or to preserve rights in the Collateral against any other
parties, but may do so at its option, and all expenses incurred in connection
therewith shall be for the sole account of Pledgor.
2. VOTING RIGHTS. During the term of this Agreement, and so
long as there shall not occur any event of default under any of the Loan
Documents (any such event of default being herein referred to as "Event of
Default"), Pledgor shall have the right to vote all or any portion of the Stock
on all corporate questions for all purposes not inconsistent with the terms of
this Agreement or the Loan Documents. Upon and after the occurrence of any Event
of Default and Lender's acceleration of the maturity of the Obligations in
consequence thereof, Lender shall be entitled to exercise all voting powers
pertaining to the Collateral, and any and all proxies theretofore executed by
Lender shall terminate and thereafter be null and void and of no effect
whatsoever. To that end, if Lender transfers all or any portion of the
Collateral into its name or the name of its nominee, Lender shall, upon the
request of Pledgor, unless an Event of Default shall have occurred, execute and
deliver or cause to be executed and delivered to Pledgor, proxies with respect
to the Collateral.
3. COLLECTION OF DIVIDEND PAYMENTS. During the term of this
Agreement, and so long as there shall not occur or exist any Event of Default,
Pledgor shall have the right to receive and retain any and all sums payable by
Company on account of any of the Collateral except as otherwise provided in the
Loan Documents. Upon and after the occurrence of any Event of Default and
Lender's acceleration of the Obligations in consequence thereof, all sums
payable by Company on account of any of the Collateral shall be paid to Lender
and any such sum received by Pledgor shall be deemed to be held by Pledgor in
trust for the benefit of Lender and shall be forthwith turned over to Lender for
application by it to the Obligations in such order of application as Lender in
its sole discretion elects.
4. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. Pledgor warrants
and represents that: Pledgor is the legal and beneficial owner of the
Collateral; all of the shares of the Stock have been duly and validly issued,
are fully paid and nonassessable, and are owned by Pledgor free of any liens,
charges or encumbrances except for Lender's security interest hereunder and such
security interests as Lender has heretofore consented to in writing; the Stock
constitutes all of the issued and outstanding capital stock of the Company;
there are no restrictions upon the voting rights or upon the transfer of any of
the Collateral other than as may appear on the face of the certificates
evidencing the Stock; Pledgor has the right to vote, pledge and grant a security
interest in or otherwise transfer such Collateral without the consent of any
other party and free of any encumbrances and applicable restrictions imposed by
any governmental agency or regulation; and the execution, delivery and
performance by Pledgor
- 2 -
3
of this Agreement and the exercise by Lender of its rights and remedies
hereunder do not and will not result in the violation of any agreement,
indenture or instrument or any license, judgement, decree, order, law, statute
or other governmental rule or regulation, including, without limitation, any
federal or state laws or regulations governing the sale or exchange of
securities.
5. AFFIRMATIVE COVENANTS OF PLEDGOR. Until all of the
Obligations have been satisfied in full and the Loan Documents terminated,
Pledgor covenants that it will: warrant and defend at its own expense Lender's
right, title, special property and security interest in and to the Collateral
against the claims of any person or entity; promptly deliver to Lender all
written notices, and will promptly give written notice to Lender of any other
notices, received by Pledgor with respect to the Collateral; and deliver to
Lender promptly to hold under this Agreement any shares of the capital stock of
the Company acquired by Pledgor by virtue of the exercise of any stock options
included within the Collateral.
6. NEGATIVE COVENANTS OF PLEDGOR. Until all of the Obligations
have been satisfied in full and the Loan Documents terminated, Pledgor covenants
that it will not sell, convey or otherwise dispose of any of the Collateral or
any interest therein; incur or permit to be incurred any pledge, lien, charge,
or encumbrance or any security interest whatsoever in or with respect to any of
the Collateral or the proceeds thereof, other than the security interest created
hereby and such security interests as Lender has heretofore consented to in
writing; or permit the Company to issue any new stock.
7. SUBSEQUENT CHANGES AFFECTING COLLATERAL. Pledgor represents
to Lender that Pledgor has made its own arrangements for keeping informed of
changes or potential changes affecting the Collateral (including, but not
limited to, rights to convert, rights to subscribe, payment of dividends,
reorganization or other exchanges, tender offers and voting rights), and Pledgor
agrees that Lender shall have no responsibility or liability for informing
Pledgor of any such changes or potential changes or for taking any action or
omitting to take any action with respect thereto. Lender may, at any time that
an Event of Default exists, at its option and without notice to Pledgor,
transfer or register the Collateral or any portion thereof into its or its
nominee's name with or without any indication that such Collateral is subject to
the security interest hereunder.
8. STOCK ADJUSTMENTS. If during the term of this Agreement any
stock dividend, reclassification, readjustment or other change is declared or
made in the capital structure of Company, or any option included within the
Collateral is exercised, or both, all new, substituted and additional shares, or
other securities, issued by reason of any such change or exercise shall be
delivered to and held by Lender under the terms of this Agreement in the same
manner as the Collateral originally pledged hereunder.
9. WARRANTS, OPTIONS AND RIGHTS. If during the term of this
Agreement subscription warrants or any other rights or options shall be issued
or exercised in connection with the Collateral, then such warrants, rights and
options shall be immediately assigned by
- 3 -
4
Pledgor to Lender and all new stock or other securities so acquired by Pledgor
shall be immediately assigned to Lender to be held under the terms of this
Agreement in the same manner as the Collateral originally pledged hereunder.
10. REGISTRATION. If Lender is required to register under or
otherwise comply in any way with the Securities Act of 1933 or any similar
Federal or State Law with respect to the securities included in the Collateral
prior to sale thereof by Lender, then upon or at any time after the occurrence
of an Event of Default, Pledgor will use its best efforts to cause any such
registration to be effectively made, at no expense to Lender, and to continue
such registration effective for such time as may be reasonably necessary in the
opinion of Lender, and will reimburse Lender for any expense incurred by Lender,
including reasonable attorney's fees and accountant's fees and expenses, in
connection therewith.
11. CONSENT. Pledgor hereby consents that from time to time,
before or after the occurrence or existence of any Event of Default, with or
without notice to or assent from Pledgor, any other security at any time held by
or available to Lender for any of the Obligations may be exchanged, surrendered,
or released, and any of the Obligations may be changed, altered, renewed,
extended, continued, surrendered, compromised, waived or released, in whole or
in part, as Lender may see fit, and Pledgor shall remain bound under this
Agreement and under the Loan Agreement notwithstanding any such exchange,
surrender, release, alteration, renewal, extension, continuance, compromise,
waiver or inaction, extension of further credit or other dealing.
12. REMEDIES UPON DEFAULT. Upon and after the occurrence of
any Event of Default, Lender shall have, in addition any other rights given by
law or the rights given hereunder or under the Loan Documents, all of the rights
and remedies with respect to the Collateral of a secured party under the Uniform
Commercial Code as adopted and in force in the State of Georgia. In addition,
with respect to the Collateral, or any part thereof, which shall then be or
shall thereafter come into Lender's possession or custody, Lender may sell or
cause the same to be sold at any broker's board or at public or private sale, in
one or more sales or lots, at such price as Lender may deem best, and for cash
or on credit or for future delivery, without assumption of any credit risk, and
the purchaser of any or all of the Collateral so sold shall thereafter hold the
same absolutely, free from any claim, encumbrance or right of any kind
whatsoever. Unless the Collateral threatens to decline speedily in value or is
or becomes of a type sold on a recognized market, Lender will give Pledgor
reasonable notice of the time and place of any public sale thereof, or of the
time after which any private sale or other intended disposition is to be made.
Any sale of the Collateral conducted in conformity with reasonable commercial
practices of banks, insurance companies or other financial institutions
disposing of property similar to the Collateral shall be deemed to be
commercially reasonable. Any requirements of reasonable notice shall be met if
such notice is mailed to Pledgor, as provided in paragraph 18 below, at least
ten (10) days before the time of the sale or disposition. Any other requirement
of notice, demand or advertisement for sale is, to the extent permitted by law,
waived. Lender may, in its own name, or in the name of a designee or nominee,
buy at any public sale of the Collateral and, if permitted by applicable law,
buy at any private sale thereof.
- 4 -
5
Pledgor will pay to Lender on demand all expenses (including court costs and
reasonable attorneys' fees and expenses) of, or incident to, the enforcement of
any of the provisions hereof and all other charges due against the Collateral,
including, without limitation, taxes, assessments, security interests, liens or
encumbrances upon the Collateral and any expenses, including transfer or other
taxes, arising in connection with any sale, transfer or other disposition of
Collateral. In connection with any sale of Collateral by Lender, Lender shall
have the right to execute any document or form, in its name or in the name of
Pledgor, which may be necessary or desirable in connection with such sale,
including, if required, Form 144 promulgated by the Securities and Exchange
Commission. In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Collateral may
be effected after an Event of Default, Pledgor agrees that Lender may, from time
to time, attempt to sell all or any part of the Collateral by means of a private
placement restricting the bidders and prospective purchasers to those who will
represent and agree that they are purchasing for investment only and not for
distribution. In so doing, Lender may solicit offers to buy the Collateral, or
any part of it, for cash, from a limited number of investors deemed by Lender,
in its reasonable judgment, to be responsible parties who might be interested in
purchasing the Collateral, and if Lender solicits such offers from not less than
four (4) such investors, then the acceptance by Lender of the highest offer
obtained therefrom shall be deemed to be a commercially reasonable method of
disposing of the Collateral.
13. TERM. This Agreement shall become effective only when
accepted by Lender and, when so accepted, shall constitute a continuing
agreement and shall remain in full force and effect until the Loan Documents are
terminated and all of the Obligations have been fully paid and satisfied, at
which time this Agreement shall terminate and Lender shall deliver to Pledgor,
at Pledgor's expense, such of the Collateral as shall not have been sold or
otherwise applied pursuant to this Agreement.
14. DEFINITIONS. The singular shall include the plural and
vice versa, and any gender shall include any other gender as the text shall
indicate.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon Pledgor and its administrators, executors, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
16. CONSTRUCTION AND APPLICABLE LAW. Whenever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but, if any provision of this
Agreement shall be held to be prohibited or invalid under any applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. This Agreement shall be governed by,
construed under, and enforced in accordance with, the internal laws of the State
of Georgia.
17. FURTHER ASSURANCES. Pledgor agrees that it will cooperate
with Lender and will upon Lender's request execute and deliver, or cause to be
executed and delivered, all such other stock powers, instruments, and documents,
and will take all such other action as Lender may reasonably request from time
to time in order to carry out the provisions and
- 5 -
6
purposes hereof, including, without limitation, delivering to Lender, if
requested by Lender upon or after the occurrence of an Event of Default and
Lender's acceleration of the Obligations in consequence thereof, irrevocable
proxies with respect to the Stock in form satisfactory to Lender. Until receipt
thereof, this Agreement shall constitute Pledgor's proxy to Lender or its
nominee to vote all shares of the Stock then registered in Pledgor's name.
18. NOTICES. Except as otherwise provided herein, all notices,
requests, demands and other communications required or permitted under this
Agreement or applicable law shall be in writing and shall be deemed to have been
validly served, given, delivered, made and received when delivered against
receipt or four (4) business days after deposit in the mail, postage prepaid, or
in the case of a telecopy notice, when received at that office of the noticed
party as follows:
If to Pledgor: Atlantic Premium Brands, Ltd.
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
With a copy to:
▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C.
c/o Sterling Capital, Ltd.
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Lender: Fleet Capital Corporation
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Administration
With a copy to:
Parker, Hudson, Rainer & ▇▇▇▇▇
1500 Marquis Two Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Either party may change the address to which notices are to be sent to
it by giving written notice of such changed address to the other party in the
manner prescribed by this Section. Notice given in any other manner shall
nevertheless be effective as to the noticed party on the date actually received
by such notice party.
- 6 -
7
19. PARAGRAPH HEADINGS. The paragraph headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
20. LENDER APPOINTED ATTORNEY-IN-FACT. Pledgor hereby
constitutes and appoints Lender, with full power of substitution, Pledgor's
attorney-in-fact for the purpose of carrying out the provisions of this
Agreement and taking any action and executing any instrument which Lender may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is coupled with an interest and is irrevocable. Without limiting the generality
of the foregoing, Lender shall have the power to arrange for the transfer, upon
or at any time after the occurrence of an Event of Default, of the Collateral on
the books of the Company to the name of and Lender's acceleration of the
Obligations in consequence thereof, Lender or Lender's nominee. Pledgor agrees
to indemnify and save Lender harmless from and against any liability or damage
which Lender may incur, in good faith and without gross negligence, in the
exercise or performance of any of Lender's powers and duties specifically set
forth herein.
21. USE OF LOAN PROCEEDS. Pledgor hereby represents and
warrants that the loan proceeds heretofore and hereafter received by it under
the Loan Agreement are not for the purpose of purchasing, or enabling any other
person or entity to reduce or retire indebtedness which was originally incurred
to purchase, any "margin security" as that term is defined in Regulation G
promulgated by the Board of Governors of the Federal Reserve System.
22. WAIVERS. PLEDGOR HEREBY WAIVES: NOTICE OF ACCEPTANCE OF
THIS AGREEMENT; NOTICE OF EXTENSIONS OF CREDIT, LOANS, ADVANCES OR OTHER
FINANCIAL ASSISTANCE BY LENDER TO COMPANY; THE RIGHT TO TRIAL BY JURY (WHICH
LENDER ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM CONCERNING
THIS AGREEMENT; PRESENTMENT AND DEMAND FOR PAYMENT OF ANY OF THE OBLIGATIONS;
PROTEST AND NOTICE OF DISHONOR OR DEFAULT WITH RESPECT TO ANY OF THE
OBLIGATIONS; AND ALL OTHER NOTICES TO WHICH THE PLEDGOR MIGHT OTHERWISE BE
ENTITLED EXCEPT AS HEREIN OTHERWISE EXPRESSLY PROVIDED.
- 7 -
8
IN WITNESS WHEREOF, Pledgor has signed, sealed and delivered this
Agreement, on the day and year first above written.
PLEDGOR:
--------
ATTEST: ATLANTIC PREMIUM BRANDS, LTD.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- -----------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
[CORPORATE SEAL]
(Signatures continued on following page)
- 8 -
9
Accepted and agreed to
in Atlanta, Georgia, this
20th day of March, 1998
LENDER:
FLEET CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Title: Vice President
-------------------
- 9 -
