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EXHIBIT 4.16
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ATLANTIC PREMIUM BRANDS, LTD.
PUT OPTION AGREEMENT
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DATED AS OF MARCH 20, 1998
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS............................................................................1
SECTION 2. PUT OPTION.............................................................................1
2.1 PUT OPTION....................................................................1
2.2 MANNER OF EXERCISE............................................................1
2.3 CLOSING AND PAYMENT...........................................................2
2.4 APPOINTMENT OF APPRAISER......................................................2
SECTION 3. TERMINATION............................................................................2
SECTION 4. MISCELLANEOUS. .......................................................................2
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PUT OPTION AGREEMENT
This is the PUT OPTION AGREEMENT dated as of March 20, 1998
("Agreement") by and between ATLANTIC PREMIUM BRANDS, LTD. ("Company"), a
Delaware corporation, and BANC ONE CAPITAL PARTNERS, LLC ("Holder"), a Delaware
limited liability company, provided for and entered into pursuant to the Senior
Subordinated Note and Warrant Purchase Agreement dated as of the date hereof (as
amended, restated, supplemented or otherwise modified from time to time, the
"Purchase Agreement"), by and among the Holder, as purchaser, and the Company
and certain of its subsidiaries, as sellers. The Company and the Holder are
referred to collectively as the "Parties" and individually as a "Party."
THIS AGREEMENT IS ONE OF THE "RELATED DOCUMENTS" REFERRED TO IN THE
PURCHASE AGREEMENT.
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:
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 Purchase Agreement, which definitions are, to the extent applicable,
incorporated in this Agreement by reference.
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 the Note in full; or
(v) any Acceleration of the payment of the Note; and, provided, that at the time
of such occurrence an Illiquidity Event has occurred and is continuing, then the
Holder shall have the option (the "Fixed Put Option") to require the Company to
purchase from the 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 the Holder upon exercise of the Fixed Warrant then owned by the
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, the Holder shall have the option (the "Contingent
Put Option") to require the Company to purchase from the 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 the Holder upon exercise
of the Contingent Warrant then owned by the Holder at a purchase price per share
equal to the Put Option Price then in effect.
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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 Holder's outstanding Warrant Shares.
2.2 MANNER OF EXERCISE. Each Put Option may be exercised by the
Holder giving a one time irrevocable Notice within 30 days of the effective date
of such Put Option to the Company that the 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 the Holder all of the Warrant Shares issued or issuable upon
exercise of the Warrant subject to such Put Option then owned by the Holder. The
Company shall not be obligated to purchase the Warrant Shares subject to such
Put Option then owned by the 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 the 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 Holder may agree on an
Appraisal Value, the Company and the 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
the Holder shall mutually agree upon, then within ten days thereafter, the
Company and the Holder shall each designate an investment banking firm that is
not an Affiliate of either the Company or the 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 the 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 the 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 the Holder under this Agreement and the obligations of the Company
hereunder shall terminate.
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SECTION 4. MISCELLANEOUS. The provisions of Section 12 of the Purchase
Agreement are applicable to this Agreement and are incorporated by reference in
this Agreement.
The parties have executed and delivered this Agreement effective as of
the day and year first above written.
COMPANY: HOLDER:
ATLANTIC PREMIUM BRANDS, LTD. BANC ONE CAPITAL PARTNERS, LLC
By: Banc One Capital Partners Holdings,
Ltd.,
By: /s/ Merrick M. Elfman Manager
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Name: Merrick M. Elfman By: BOCP Holdings Corporation, Manager
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Its: Chairman By: /s/ Leonard Lilliard
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Name: Leonard Lilliard
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Its: Authorized Signer
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