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EXHIBIT 4.22
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ATLANTIC PREMIUM BRANDS, LTD.
AMENDED AND RESTATED
PUT OPTION AGREEMENT
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DATED AS OF APRIL 13, 2001
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TABLE OF CONTENTS
Page
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Section 1. Definitions........................................................1
Section 2. Put Option.........................................................1
2.1 Put Option...................................................2
2.2 Manner of Exercise...........................................2
2.3 Closing and Payment..........................................3
2.4 Appointment of Appraiser.....................................3
Section 3. Termination........................................................3
Section 4. Miscellaneous......................................................3
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AMENDED AND RESTATED PUT OPTION AGREEMENT
This AMENDED AND RESTATED PUT OPTION AGREEMENT dated as of April 13, 2001
("Agreement") is by and among Atlantic Premium Brands, Ltd. ("COMPANY"), a
Delaware corporation, Banc One Capital Partners, LLC ("BOCP"), a Delaware
limited liability company, and Sterling BOCP, LLC ("STERLING"), a Delaware
limited liability company. BOCP and Sterling are referred to individually as a
"HOLDER" and collectively as the "HOLDERS". The Company and the Holders are
referred to collectively as the "PARTIES" and individually as a "PARTY".
RECITALS
WHEREAS, the Company and BOCP entered into that certain Senior
Subordinated Note and Warrant Purchase Agreement dated as of March 20, 1998 (as
amended, "1998 PURCHASE AGREEMENT"), pursuant to which BOCP purchased from the
Company a senior subordinated note due March 31, 2005 in the principal amount of
$6,500,000, a fixed warrant to purchase 666,947 shares of Company nonvoting
common stock and a contingent warrant to purchase up to 428,753 shares of
Company nonvoting common stock (the note, fixed warrant and contingent warrant
are collectively referred to herein as the "1998 BOCP SECURITIES");
WHEREAS, BOCP has agreed to sell, and Sterling has agreed to purchase, a
ten percent (10%) interest in the 1998 BOCP Securities, the 1998 Purchase
Agreement and certain related rights and security agreements thereunder pursuant
to that certain Note and Warrant Purchase Agreement dated as of even date
herewith ("2001 PURCHASE AGREEMENT");
WHEREAS, the Parties deem it desirable to amend and restate that certain
Put Option Agreement dated as of March 20, 1998, by and between the Company and
BOCP ("PUT OPTION AGREEMENT") as set forth herein in order to induce Sterling to
enter into the 2001 Purchase Agreement; and
WHEREAS, this Agreement, as an amendment to the Put Option Agreement, is
one of the "RELATED DOCUMENTS" referred to in the 1998 Purchase Agreement.
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:
AGREEMENTS
SECTION 1. DEFINITIONS.
All capitalized terms not otherwise defined in this Agreement shall have
the definitions set forth in the Glossary of Defined Terms attached to the 1998
Purchase Agreement, which definitions are, to the extent applicable,
incorporated in this Agreement by reference.
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For purposes of this Agreement, the term "HOLDER'S NOTE" means (a) with
respect to Sterling, the 2001 Sterling Note (as defined in the 2001 Purchase
Agreement) and (b) with respect to the BOCP, the 2001 BOCP Note (as defined in
the 2001 Purchase Agreement).
For purposes of this Agreement, the term "FIXED WARRANT" means (a) with
respect to Sterling, the 2001 Sterling Fixed Warrant (as defined in the 2001
Purchase Agreement) and (b) with respect to BOCP, the 2001 BOCP Fixed Warrant
(as defined in the 2001 Purchase Agreement).
For purposes of this Agreement, the term "CONTINGENT WARRANT" means (a)
with respect to Sterling, the 2001 Sterling Contingent Warrant (as defined in
the 2001 Purchase Agreement) and (b) with respect to BOCP, the 2001 BOCP
Contingent Warrant (as defined in the 2001 Purchase Agreement).
For purposes of this Agreement, "WARRANT SHARES" means the Common Shares
issued or issuable upon exercise of the 2001 BOCP Warrants (as defined in the
2001 Purchase Agreement) and the 2001 Sterling Warrants (as defined in the 2001
Purchase Agreement).
SECTION 2. PUT OPTION.
2.1. PUT OPTION. Upon the earlier to occur of: (i) the fifth
anniversary of the Closing Date; (ii) a Disposition; (iii) a Non-Surviving
Combination; (iv) the date upon which the Sellers prepay a Holder's Note in
full; or (v) any Acceleration of the payment of a Holder's Note; and, provided,
that at the time of such occurrence an Illiquidity Event has occurred and is
continuing, then such Holder shall have the option (a "Fixed Put Option") to
independently require the Company to purchase from it, upon the terms and
subject to the conditions set forth in this Agreement, all, but not less than
all, of the Warrant Shares issued or issuable to such Holder upon exercise of
the Fixed Warrant then owned by such Holder at a purchase price per share equal
to the Put Option Price then in effect.
Upon the earlier to occur of: (i) the fifth anniversary of the Closing
Date, (ii) a Disposition; or (iii) a Non-Surviving Combination; and, provided,
that, at the time of such occurrence, an Illiquidity Event has occurred and is
continuing, each Holder shall have the option (a "Contingent Put Option") to
independently require the Company to purchase from such Holder, upon the terms
and subject to the conditions set forth in this Agreement, all, but not less
than all, of the Warrant Shares issued or issuable to such Holder upon exercise
of the Contingent Warrant then owned by such Holder at a purchase price per
share equal to the Put Option Price then in effect.
The Fixed Put Option and the Contingent Put Option are referred to
collectively as the "Put Options" and individually as a "Put Option". The term
"Illiquidity Event" means that, as of any date of determination, if (i) the
Company is not listed on a stock exchange or other dealer network, or (ii) the
average weekly trading volume of the Company's Common Stock for four consecutive
calendar weeks falls below the product of (A) 15% of (B) the number of such
Holder's outstanding Warrant Shares.
2.2 MANNER OF EXERCISE. Each Put Option may be exercised by a
Holder giving a one time irrevocable Notice within 30 days of the effective date
of such Put Option to
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the Company that such Holder elects to exercise such Put Option upon the terms
and subject to the conditions set forth in this Agreement. Upon final
determination of the Put Price, the Company shall be required to purchase from
such Holder all of the Warrant Shares issued or issuable upon exercise of the
Warrant subject to such Put Option then owned by such Holder. The Company shall
not be obligated to purchase the Warrant Shares subject to such Put Option then
owned by such Holder if the Company shall be unable to do so without a breach or
violation of the provisions of Applicable Law, its Charter Documents or the
Senior Loan Agreement. Notwithstanding the foregoing, the Company shall use
reasonable efforts to remove any such limitations upon its ability to purchase
the Warrant Shares, and the Company shall have the continuing obligation to
purchase such Warrant Shares immediately after and to the extent such
limitations have been removed.
2.3 CLOSING AND PAYMENT. With respect to each Put Option, the
closing for the purchase of the Warrant Shares pursuant to this Agreement shall
occur within fifteen Business Days following the date of the determination of
the Put Price. The Put Price shall be payable to an exercising Holder by the
Company by (i) wire transfer of immediately available funds, or (ii) by delivery
of a certified or cashiers' check.
2.4 APPOINTMENT OF APPRAISER. If the appointment of an Appraiser
is necessary in connection with the determination of any Put Price, then within
(i) ten days after the exercise of such Put Option if there is a Disposition or
Non-Surviving Combination or (ii) ten days after the expiration of the 30 day
period in which the Company and the exercising Holder may agree on an Appraisal
Value, the Company and such Holder shall endeavor in good faith to select a
mutually acceptable Appraiser. If no such Appraiser is mutually selected within
such time period or such longer time period as the Company and such Holder shall
mutually agree upon, then within ten days thereafter, the Company and such
Holder shall each designate an investment banking firm that is not an Affiliate
of either the Company or such Holder, and within ten days thereafter, such
investment banking firms shall mutually select the Appraiser. The Company shall
pay the reasonable fees and expenses of the Appraiser, and, if applicable, the
Company and such Holder shall each pay the fees and expenses of the investment
banking firm designated by each of them for the purpose of selecting the
Appraiser.
SECTION 3. TERMINATION. Notwithstanding the foregoing, if a Holder ceases
to own Warrant Shares representing at least 1% of the Outstanding Common Shares
of the Company at any time prior to the exercise of the Fixed Put Option, the
rights of such Holder under this Agreement and the obligations of the Company to
such Holder hereunder shall terminate.
SECTION 4. MISCELLANEOUS. The provisions of Section 11 of the 1998
Purchase Agreement are applicable to this Agreement and are incorporated by
reference in this Agreement.
[SIGNATURE PAGE TO FOLLOW]
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The parties have executed and delivered this Amended and Restated Put
Option Agreement effective as of the day and year first above written.
COMPANY: HOLDERS:
ATLANTIC PREMIUM BRANDS, LTD. BANC ONE CAPITAL PARTNERS, LLC
By: Banc One Capital Partners
By: /s/ MERRICK M. ELFMAN Holdings, Ltd., Manager
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Name: MERRICK M. ELFMAN By: BOCP Holdings Corporation, Manager
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Its: Chairman By: /s/ JAMES J. HENSON
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Name: JAMES J. HENSON
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Its: Authorized Signatory
STERLING BOCP, LLC
By: /s/ STEVEN M. TASLITZ
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Name: STEVEN M. TASLITZ
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Its: Manager
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