EXHIBIT 3.12
DATED 22nd April 1996
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AND
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PLEDGE AGREEMENT
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THIS PLEDGE AGREEMENT is made the 22nd day of April ▇▇▇▇
▇ ▇ ▇ ▇ ▇ ▇ N :
(1) MR. ▇▇▇▇▇ ▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ 7 RN (hereinafter
called "the Pledgor")
(2) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇ of ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
(hereinafter called "the Pledgee")
W H E R E A S :
Pursuant to the Guarantee of even date herewith made between the Pledgor and the
Pledgee ("the Guarantee"), the Pledgor has agreed to guarantee certain payments
to the Pledgee under a loan agreement of even date herewith between the Pledgee
and the Company (as hereinafter defined) and to enter into this Pledge as
security for the said payments.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
In this Pledge Agreement, except where the context otherwise requires:
"the Company" means ▇▇▇▇▇▇▇.▇▇ Limited, a company registered in England
under number 3069667.
"the Debt" means the debt guaranteed by the Pledgor in accordance with
the terms of the Guarantee.
"Loan Agreement" means the loan agreement of even date herewith between
the Pledgee and the Company for an interest bearing loan of US$210,000
by the Pledgee to the Company.
"▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇" means ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Pa of ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
"Pledge Agreement" means this Pledge Agreement as amended from time to
time.
"The Security" means all the two Ordinary Shares of L1 each in the
capital of the Company the share certificates for which have been
deposited by the Pledgor with ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ and the other
property pledged under clauses 2.1 and 2.2 hereof.
2. PLEDGE
2.1 Pledge: As Continuing security for the due and punctual
payment of the Debt the Pledgor as legal and beneficial owner
of the Security, hereby pledges, assigns, transfers,
hypothecates, mortgages, charges and encumbers (and with the
intent also of creating a security interest and a lien
thereon) by way of first equitable charge to and in favour of
the Pledgee the security and all his present and future
rights, title and interest thereto and therein.
2.2 Other Property Pledged: The pledge, assignment, transfer,
hypothecation, mortgage, charge, encumbrance, security,
interest and lien hereby created shall affect, and the
Security shall include (i) all dividends and interest paid or
payable thereon (if any) and (ii) all stocks shares, notes,
bonds, debentures and certificates of deposit or other
securities (and in each case the dividends and interest paid
or payable thereon (if any), rights, monies or other property
paid, distributed, accruing or offered at any time (by way of
dividend, bonus, redemption, rights, preference, option,
warrant or otherwise) on, to or in respect of or in
substitution for any Security and (iii) the proceeds of sale,
repayment and redemption and any payment or receipt of, on or
in respect of any of the Security all and any of which shall
be promptly delivered to the Pledgee.
2.3 Non-Recourse: This Pledge shall be without recourse to the
assets of the Pledgor other than the Security.
2.4 Custody; Registration: Subject as otherwise provided in this
Agreement, the Security shall be held by ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
and the Pledgor shall immediately after the execution and
delivery of this Pledge Agreement deliver or cause to be
delivered to ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ the Security with duly
executed blank transfers for all such shares. The Security
shall be kept thereafter in the custody of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
or their nominee.
3. ENFORCEMENT
3.1 Time for enforcement: The security hereby created shall become
immediately enforceable upon the non-payment of the debt or
any part of it and thereupon any sum payable under this Pledge
Agreement
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3.2 Rights of Pledgee: At any time after the security hereby
created shall become enforceable the Pledgee may (without
notice to the Pledgor) from time to time do any one or more of
the following:
3.2.1 take possession of the Security and hold and/or
procure that its nominees hold the Security to the
order of the Pledgee absolutely; and/or
3.2.2 cause to be delivered to the pledgee or as the
Pledgee may direct the Security; and/or
3.2.3 execute and do, and/or procure its nominees to
execute and do, (at the expense of the Pledgor) all
such conveyances, transfers, assignments, assurances,
deeds, acts and things as the Pledgee may require for
perfecting or protecting the security hereby created
or intended to be created or for facilitating the
realization of the Security and for exercising all or
any of the rights, powers and discretions conferred
on the Pledgee by or pursuant to this Pledge
Agreement.
3.2.4 exercise or direct the exercise of any powers or
rights incident to the ownership of the Security and
the fact of membership of the Company.
3.2.5 collect and receive any and all interest, dividends,
proceeds of repayment or redemption (whether total or
partial) and other payments or receipts of, on or in
respect of the Security.
3.2.6 sell, exchange, convert into money or otherwise
dispose of or realize (or concur in selling,
exchanging, converting into money or otherwise
disposing of or realizing) the Security and for this
purpose complete the blank transfers referred to in
Clause 2.4, either by public offer or private
contract for such consideration and in such currency
or currencies and on such terms as it may think fit
and so that (without prejudice to the generality of
the foregoing) it may do any of those things for a
consideration consisting of
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cash, certificates of deposit, debentures or other
obligations, shares, stock or other valuable
consideration and any such considerations may be
payable or deliverable in a lump sum whether
immediately or on a deferred basis or by installments
spread over such period as it may think fit and with
full power to buy in or rescind or vary any contract
for the sale of the Security and to resell the same,
all without being responsible for any loss which may
be occasioned thereby and with full power to
compromise and effect compositions.
3.2.7 generally act in relation to the Security as if the
Pledgee were the absolute beneficial owner of the
same.
3.3 Application of Proceeds: Any monies arising from the
enforcement of the security hereby created shall be applied by
the Pledgee as follows:
3.3.1 first, in or towards payment of all costs and
expenses incurred by the Pledgee in connection with
this Pledge Agreement and the exercise of all or any
of the powers hereby confirmed;
3.3.2 secondly, in or towards payment of the Debt (the
Pledgor remaining liable for any shortfall); and
3.3.3 thirdly, in payment of any surplus to the Pledgor or
3.3.4 other person entitled thereto.
3.4 Notice to Purchaser from Pledgor: Upon any sale of the
Security or any part of it which the Pledgee may make or
purport to make under the provisions hereof a statutory
declaration made by the Pledgee that the Pledgor has made
default and that the power of sale has become exercisable
shall be
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conclusive evidence of the fact in favour of any purchaser or
other person to whom the Security may be transferred under
such sale or other appropriation and the Pledgor or any part
of it agrees to indemnify the Pledgee against any claim which
may be made against the Pledgee by such purchaser or person by
reason of any defect in the title of the Pledgor to such
Security or part thereof.
3.5 Beneficial Owner Warranty: The Pledgor warrants that it is the
absolute and beneficial owner of the Security free from
encumbrances subject to the terms hereof and that it will be
the absolute and beneficial owner free from encumbrances of
any security which may hereafter may become subject to the
terms hereof.
3.6 Powers Non-Exclusive: The powers conferred on the Pledgee by
this Pledge Agreement are in addition to and not in
substitution for the powers conferred on mortgagees under the
Law of Property ▇▇▇ ▇▇▇▇, which shall apply to the security
hereby created except insofar as they are expressly or
impliedly excluded. Where there is any ambiguity or conflict
between the powers contained in that Act and those conferred
by the Pledge Agreement, the terms of this Pledge Agreement
shall prevail.
3.7 Exclusion of Statutory Rights: The restrictions contained in
Section 93 and Section 103 of the Law of Property Act 1925
shall not apply to this Pledge Agreement.
3.8 No Duty to Inquire, Etc.: No person dealing with the Pledgee
shall be concerned to inquire whether the security hereby
created has become enforceable or whether any event has
happened upon which any of the powers, authorities and
discretions conferred by or pursuant to this Pledge Agreement
are or may be exercisable by the Pledgee or otherwise as to
the propriety or regularity of acts purporting or intended to
be in exercise of any such powers and authorities and all the
protection to purchasers contained in Sections 104 and 107 of
the law of
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Property Act 1925 shall apply to any person purchasing from or
dealing with the Pledgee.
3.9 Avoidance of Payments: No assurance, security or payment which
may be avoided under any law relating to bankruptcy or
insolvency, and no release, settlement or discharge given or
made by the Pledgee on the faith of any such assurance,
security or payment, shall prejudice or affect the right of
the Pledgee to enforce the security hereby created in respect
of the full extent of the moneys thereby secured.
4. GENERAL
4.1 Further Assurances: The parties hereto hereby agree to execute
and do all such further deeds and documents (at the expense of
the requesting party) as may reasonably be required by the
requesting party to give full force and effect to this
Agreement.
4.2 Power of Attorney: The Pledgor hereby irrevocably and by way
of security appoints the Pledgee to be its attorney and agent
and on its behalf and in its name or otherwise to execute and
do (at the expense of the Pledgee) all such conveyances,
transfers, assignments, assurances, deeds, acts and things
which it ought to execute or do under the provisions of this
Pledge Agreement and generally in its name or otherwise and on
its behalf to exercise all or any of the powers, authorities
and discretions conferred on the Pledgee by or pursuant to
this Pledge Agreement or the Law of Property ▇▇▇ ▇▇▇▇ and
(without prejudice to the generality of the foregoing) to seal
and deliver and otherwise perfect any conveyance, transfer,
assignment, assurance, deed, act or thing which the Pledgee
may deem proper in or for the purpose of exercising any of
such powers, authorities and discretions.
4.3 Security Additional: The security hereby created shall be in
addition to and shall not in any way prejudice or be
prejudiced by any other security, guarantee, indemnity, right
of set-off, remedy or lien of whatever nature which the
Pledgee may now
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or at any time hereafter have or to which the Pledgee may at
any time be entitled, whether by law or otherwise, for or in
respect of all or any part of the sum due under the Guarantee.
4.4 Illegality: If at any time any provision hereof is or becomes
illegal, invalid or unenforceable in any respect under the law
of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under
the laws of any other jurisdiction shall in any way be
affected or impaired thereby.
4.5 Waivers: No failure or delay on the part of the Pledgee in
exercising any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of
any right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The
rights and remedies provided in this Pledge Agreement are
cumulative and not exclusive of any rights or remedies which
the Pledgee would otherwise have.
4.6 Counterparts: This Agreement may be executed in any number of
counterpart each of which when executed by one or more of the
parties hereto shall constitute an original but all of which
shall constitute one and the same instrument.
4.7 Successors: This Pledge Agreement and the security evidenced
shall be binding on each of the successors and assigns of the
Pledgor.
5. NOTICE
Any notice demand or other communication to be given hereunder
by either of the parties hereto shall be addressed to the
parties at their respective addresses shown in this Agreement
or such other address as the party shall previously have
specified in writing to the other for such purpose and may be
given in person or sent by first-class pre-paid post or
airmail if overseas or facsimile transmission or telex and
shall be deemed to have been served if
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hand delivered at the time of delivery or if posted at the
expiration of forty-eight (48) hours or (in the case of
airmail) seven days after the envelope containing the same was
put into the post or if sent by facsimile or telex
transmission at the end of the transmission provided that if
the original communication is not transmitted between the
hours of 9:00 am to 6:00 pm on a day when banks are open for
business in London then on the next such day at 9:00 am.
6. GOVERNING LAW
This Pledge Agreement shall be governed by and construed in
accordance with the laws of England and the Pledgor in
relation to any legal action or proceedings arising out of or
in connection with this Pledge Agreement unconditionally
submits to the non-exclusive jurisdiction of the High Court
of Justice in England.
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IN WITNESS whereof this Pledge Agreement has been duly executed as a deed and
delivered the day and year first above written.
Signed as a DEED by ▇▇▇▇▇ ▇▇▇▇▇ in the )
presence of: )
Witness signature: _____________________________
Name: __________________________________________
Address: _______________________________________
Occupation: ____________________________________
Signed as DEED by ▇▇▇▇▇▇▇▇ ▇▇▇ in )
the presence of: )
Witness signature: _____________________________
Name: __________________________________________
Address: _______________________________________
Occupation: ____________________________________
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