EXHIBIT 10.41
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated as of January 28, 1998, made by and between ▇▇▇▇
▇. ▇▇▇▇▇▇▇, an individual residing at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Pledgor"), to ▇▇▇▇▇▇ International, Inc., a Maryland corporation,
(the "Pledgee" or the "Company").
W I T N E S S E T H:
WHEREAS, the Pledgor is the record and beneficial owner of (i) 20,000 shares
of the issued and outstanding shares of common stock, $.001 par value, of the
Company (the "Common Stock"), acquired in connection with the Pledgor's exercise
of certain stock warrants granted pursuant to an agreement between the Company
and the Pledgor dated May 26, 1993, (ii) 10,000 shares of Common Stock acquired
in connection with the Pledgor's exercise of a certain stock option granted
pursuant to the 1992 Stock Option Plan for Non-Employee Directors; and (iii)
8,333 shares of Common Stock acquired in connection with the Pledgor's exercise
of a certain stock option granted pursuant to the 1990 Directors Stock Option
Plan, and Pledgor is also the record and beneficial owner of 48,929 additional
shares of Common Stock and 617,200 shares of Series B 7% Cumulative Convertible
Preferred Stock (collectively, the "Pledged Shares");
WHEREAS, the Pledgor has agreed to secure, to the extent hereinafter set
forth, the payment in full and the performance of the obligations of the Pledgor
to the Pledgee under a non-recourse promissory note, dated as of the date
hereof, in the amount of $168,278.74 (such promissory note as it may hereafter
be amended or otherwise modified from time to time, the "Note"); and the
capitalized terms used herein, and not otherwise defined herein, are used with
the meanings ascribed to them in the Note); and
WHEREAS, the Pledgor hereby pledges and grants a lien and security interest to
Pledgee in the Pledged Shares to secure the Pledgor's obligations under the
Note.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Pledgee to make the loan under the Note, the Pledgor hereby agrees as follows:
SECTION 1. Pledge. The Pledgor hereby pledges to the Pledgee, and grants to
the Pledgee a security interest in the Pledged Shares and certificates
representing the Pledged Shares, and all dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares, and all proceeds
thereof, additions thereto and changes therein (the "Pledged Collateral").
SECTION 2. Security for Obligations; Non-Recourse Obligations. (a) This
Agreement secures the payment of all liabilities, obligations and indebtedness
of any and every kind and nature
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heretofore, now or hereafter owing, arising, due or payable from the Pledgor to
the Pledgee pursuant to the Note, however evidenced, created, incurred, acquired
or owing, whether primary or secondary, direct or indirect, joint or several,
contingent or fixed, or otherwise, including without limitation, obligations of
performance, and whether arising under any other agreements, documents or
instruments entered into in connection with the Note, now or hereafter given by
the Pledgor to the Pledgee and whether arising by book entry, agreement or
operation of law and whether or not evidenced by promissory notes or other
evidences of indebtedness (all such obligations of the Pledgor being the
"Obligations").
(b) It is expressly understood and agreed that it is the intention of the
parties that the Obligations of the Pledgor under the Note are non-recourse
obligations of the Pledgor and that the Pledgee's right to recover against the
Pledgor hereunder in respect of such Obligations shall be limited solely to the
Pledged Collateral.
SECTION 3. Delivery and Release of Pledged Collateral. (a) All certificates
or instruments representing or evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of the Pledgee pursuant hereto and shall
be in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Pledgee. The Pledgee shall hold the Pledged
Collateral in the form in which it is delivered to the Pledgee unless and until
the occurrence and continuation of an Event of Default under the Note (unless
such Event of Default is waived by the Pledgee) or as otherwise provided in
Section 3(b) below. Upon the occurrence and continuance of an Event of Default
under the Note, the Pledgee shall have the right, at any time in its discretion
and without notice to the Pledgor, to transfer to or to register in the name of
the Pledgee or any of its nominees any or all of the Pledged Collateral, subject
only to the revocable rights specified in Section 6(a) below. In addition, the
Pledgee shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
(b) On March 31, 1998, and on each March 31, June 30 and September 30
thereafter for the term of this Agreement (each such date a "Determination
Date"), the Pledgee shall reasonably determine the aggregate fair market
value of the Pledged Collateral (the "Market Value"). If on such
Determination Date the Market Value exceeds two hundred percent (200%) of
the aggregate principal amount of the Note on such Determination Date (the
"Base Value"), Pledgee shall, unless otherwise requested by Pledgor,
automatically release to the Pledgor such portion of the Pledged Collateral
the aggregate fair market value of which equals the Market Value less 200%
of the Base Value, free and clear of any and all encumbrances hereunder,
and such portion shall no longer constitute Pledged Collateral. For
purposes of this paragraph 3(b), "fair market value" of the Common Stock
shall mean the closing price of the Common Stock as quoted on NASDAQ at the
end of the last business day preceding the Determination Date as reported
in the New York edition of The Wall Street Journal, and the "fair market
value" of the Series B 7% Cumulative Convertible Preferred Stock shall be
determined with reference to the fair market value of the Common Stock and
the conversion ratio then in effect with respect to the Series B 7%
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Cumulative Convertible Preferred Stock.
SECTION 4. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the legal and beneficial owner of the Pledged Collateral
free and clear of any lien, adverse claim, security interest, option or other
charge or encumbrance, except for the security interest created by this
Agreement.
(b) The pledge of the Pledged Collateral pursuant to this Agreement creates a
valid and perfected first priority security interest in the Pledged Collateral,
securing the payment of the Obligations.
(c) Neither the execution or delivery of this Agreement, nor the consummation
of the transactions contemplated hereby, nor the compliance with or performance
of the terms and conditions of this Agreement by the Pledgor is prevented by,
limited by, conflicts with or will result in the breach or violation of or a
default under the terms, conditions or provisions of (i) any mortgage, security
agreement, indenture, evidence of indebtedness, loan or financing agreement,
trust agreement, stockholder agreement, or other agreement or instrument to
which the Pledgor is a party or by which he is bound or (ii) any provision of
law, any order of any court or administrative agency or any rule or regulation
applicable to the Pledgor, subject to applicable state and federal securities
laws.
(d) This Agreement constitutes the legal, valid and binding obligation of the
Pledgor, enforceable in accordance with its terms.
(e) There are no actions, suits or proceedings (whether or not purportedly on
behalf of the Pledgor) pending or, to the best knowledge of the Pledgor,
threatened affecting the Pledgor that involve the Pledged Collateral.
(f) All consents or approvals, if any, required as a condition precedent to
or in connection with the due and valid execution, delivery and performance by
the Pledgor of this Agreement have been obtained, subject to applicable state
and federal securities laws.
SECTION 5. Further Assurances. The Pledgor agrees that at any time and from
time to time, at the expense of the Pledgor, the Pledgor will promptly execute
and deliver all further instruments and documents, and take all further action,
that may be necessary or desirable, or that the Pledgee may reasonably request,
in order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Pledgee to exercise and enforce its rights and
remedies hereunder, subject to applicable state and federal securities laws,
with respect to any Pledged Collateral.
SECTION 6. Voting Rights; Dividends, Etc. (a) So long as no Event of
Default under
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the Note shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any part thereof for
any purpose not inconsistent with the terms of this Agreement or the Note.
(ii) The Pledgor shall be entitled to receive and retain any and all
dividends and interest paid, in respect of the Pledged Collateral; provided,
however, that any and all:
(A) dividends and interest paid or payable other than in cash in respect of,
and instruments and other property received, receivable or otherwise distributed
in respect of, or in exchange for, any Pledged Collateral (whether resulting
from a subdivision, combination or reclassification of the outstanding capital
stock of the Company, or any merger, consolidation, acquisition or other
exchange of assets or securities to which the Company may be a party, or any
conversion, call or redemption, or otherwise);
(B) dividends and other distributions paid or payable in cash in respect of
any Pledged Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in-surplus; and
(C) cash paid, payable or otherwise distributed in respect of principal of,
or in redemption of, or in exchange for, any Pledged Collateral,
shall be, at the option and request of the Pledgee, forthwith delivered to the
Pledgee to hold as Pledged Collateral and shall, if received by the Pledgor, be
received in trust for the benefit of the Pledgee, be segregated from the other
property or funds of the Pledgor, and be forthwith delivered to the Pledgee as
Pledged Collateral in the same form as so received (with any necessary
endorsement).
(iii) The Pledgee shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies and other instruments as the Pledgor
may reasonably request for the purpose of enabling the Pledgor to exercise the
voting and other rights which he is entitled to exercise pursuant to paragraph
(i) above and to receive the dividends or interest payments which he is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of Default under
the Note, and at the election of Pledgee:
(i) All rights of the Pledgor to exercise the voting and other consensual
rights which he would otherwise be entitled to exercise pursuant to Section
6(a)(i) and to receive the dividends and interest payments which he would
otherwise be authorized to receive and retain pursuant to Section 6(a)(ii) shall
cease for the period subsequent to the Event of Default, and all such rights
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shall thereupon become vested in the Pledgee who shall thereupon have the sole
right to exercise such voting and other consensual rights and to receive and
hold as Pledged Collateral such dividends and interest payments.
(ii) All dividends and interest payments which are received by the Pledgor
contrary to the provisions of paragraph (i) of this Section 6(b) shall be
received in trust for the benefit of the Pledgee, shall be segregated from other
funds of the Pledgor and shall be forthwith paid over to the Pledgee and Pledged
Collateral in the same form as so received (with any necessary endorsement).
(c) In the event that during the term of this Agreement subscription warrants
or other rights or options shall be issued in connection with the Pledged
Collateral, all such stock warrants, rights and options shall forthwith be
assigned by the Pledgor to the Pledgee and said stock warrants, rights and
options shall be, and, to the extent exercised by Pledgor, all new stock issued
pursuant thereto shall be pledged by Pledgor to Pledgee to be held as, and shall
be deemed to be part of, the "Pledged Collateral" under the terms of this
Agreement in the same manner as the shares of stock originally pledged
hereunder.
SECTION 7. Transfers and Other Liens; Additional Shares. The Pledgor agrees
that he will not (i) sell or otherwise dispose of, or grant any option with
respect to, any of the Pledged Collateral, or (ii) create or permit to exist any
lien, security interest, or other charge or encumbrance upon or with respect to
any of the Pledged Collateral, except for the security interest under this
Agreement.
SECTION 8. Litigation Respecting Pledged Shares. In the event any action,
suit or other proceeding at law, in equity, in arbitration or before any other
authority involving or affecting the Pledged Collateral becomes known to or is
contemplated by the Pledgor, the Pledgor shall give the Pledgee immediate notice
thereof and if the Pledgor is contemplating such action, suit or other
proceeding, the Pledgor shall receive the written consent of the Pledgee prior
to commencing any such action, suit or other proceeding.
SECTION 9. Pledgee Appointed Attorney-in-Fact. (a) If an Event of Default
shall occur and be continuing under the Note (unless such Event of Default is
waived by the Pledgee), Pledgor hereby appoints the Pledgee (and any officer or
agent of the Pledgee with full power of substitution and revocation) the
Pledgor's true and lawful attorney-in-fact, with full authority in the place and
stead of the Pledgor and in the name of the Pledgor or otherwise, from time to
time in the Pledgee's discretion to take any action and to execute any
instrument which the Pledgee may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation, (i) to receive,
endorse and collect all instruments made payable to the Pledgor representing any
dividend, interest payment or other distribution in respect of the Pledged
Collateral or any part thereof and to give full discharge for the same; and (ii)
to transfer the Pledged Collateral on the books of the Company, in whole or in
part, to the name of the Pledgee or such other person or persons as the Pledgee
may designate; take possession of and endorse any one or more checks, drafts,
bills of exchange, money orders or any other documents received on account of
the Pledged
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Collateral; collect, ▇▇▇ for and give acquittances for moneys due on account of
the foregoing; withdraw any claims, suits, or proceedings pertaining to or
arising out of the foregoing; execute and record or file on behalf of the
Pledgor any evidence of a security interest contemplated by this Agreement or
any refiling, continuation or extension thereof; take any other action
contemplated by this Agreement; and sign, execute, acknowledge, swear to,
verify, deliver, file, record and publish any one or more of the foregoing.
(b) The powers of attorney which shall be granted pursuant to Section 9(a)
and all authority thereby conferred shall be granted and conferred solely to
protect the Pledgee's interests in the Pledged Collateral and shall not impose
any duty upon the attorney-in-fact to exercise such powers. Such powers of
attorney shall be irrevocable prior to the performance in full of the
Obligations and shall not be terminated prior thereto or affected by any act of
the Pledgor or other person or by operation of law, including, but not limited
to, the dissolution, death, disability or incompetency of any person, the
termination of any trust, or the occurrence of any other event, and if the
Pledgor or any other person should be dissolved or die or become disabled or
incompetent or any other event should occur before the performance in full of
the Obligations and termination of this Agreement, such attorney-in-fact shall
nevertheless be fully authorized to act under such powers of attorney as if such
dissolution, death, disability or incompetency or other event had not occurred
and regardless of notice thereof.
(c) Each person who shall be a transferee of the beneficial ownership of the
Pledged Collateral, by the acceptance of such a transfer, shall be deemed to
have irrevocably appointed the Pledgee, with full power of substitution and
revocation, such person's true and lawful attorney-in-fact in such person's name
and otherwise to do any and all acts permitted to, and to exercise any and all
powers herein conferred upon, such attorney-in-fact.
SECTION 10. Reasonable Care. The Pledgee shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its
possession if the Pledged Collateral is accorded treatment substantially equal
to that which the Pledgee accords its own property, it being understood that the
Pledgee shall not have any responsibility for (i) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Pledged Collateral, whether or not the Pledgee has or is
deemed to have knowledge of such matters, or (ii) taking any necessary steps to
preserve rights against any parties with respect to any Pledged Collateral.
SECTION 11. Remedies Upon Event of Default. (a) Subject to Section 2(b)
hereof, if any Event of Default under the Note shall have occurred and be
continuing (unless such Event of Default is waived by the Pledgee), for the
period subsequent to the Event of Default:
(i) The Pledgee may receive and retain all payments of any kind with respect
to the Pledged Collateral and may notify the obligors or other parties, if any,
interested in any items of Pledged Collateral of the interest of the Pledgee
therein and of any action proposed to be taken with respect thereto, and inform
any of those parties that all payments otherwise payable to the Pledgor
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with respect thereto shall be made to the Pledgee until all amounts due under
the Note have been paid in full;
(ii) The Pledgee may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") in effect in the State of New Jersey at
that time, and the Pledgee may also, without notice except as specified below,
sell the Pledged Collateral or any part thereof in one or more parcels at public
or private sale, at any exchange, broker's board or at any of the Pledgee's
offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Pledgee may deem commercially reasonable. The Pledgor agrees
that, to the extent notice of sale shall be required by law, at least ten days'
notice to the Pledgor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable notification.
The Pledgee shall not be obligated to make any sale of Pledged Collateral
regardless of notice of sale having been given. The Pledgee may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned;
(iii) Any cash held by the Pledgee as Pledged Collateral and all cash
proceeds received by the Pledgee in respect of any sale of, collection from, or
other realization upon all or any part of the Pledged Collateral may, in the
discretion of the Pledgee, by held by the Pledgee as collateral for, and/or then
or at any time thereafter applied in whole or in part by the Pledgee against,
all or any part of the Obligations in such order as the Pledgee shall elect.
Any surplus of such cash or cash proceeds held by the Pledgee and remaining
after payment in full of all the Obligations shall be paid over to the Pledgor
or to whomsoever may be lawfully entitled to receive such surplus; and
(iv) The Pledgee may otherwise use or deal from time to time with the Pledged
Collateral, in whole or in part, in all respects as if the Pledgee were the
outright owner thereof.
(b) Except as set forth in Section 11(a)(iii), the Pledgee shall have the
sole right to determine the order in which Obligations shall be deemed
discharged by the application of the Pledged Collateral or any other property or
money held hereunder or any amount realized thereon. Any requirement of
reasonable notice imposed by law shall be deemed met if such notice is in
writing and is mailed, telegraphed or hand delivered to the Pledgor at least
three days prior to the sale, disposition or other event giving rise to such
notice requirement.
(c) The Pledgee shall collect the cash proceeds received from any sale or
other disposition or from any other source contemplated by subsection (a) above
and shall apply the full proceeds in accordance with the provisions of this
Agreement.
(d) Notwithstanding the foregoing, none of the provisions of this Section 11
shall confer on
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the Pledgee any rights or privileges that are not permissible under applicable
law. The Pledgee may effect the provisions of this Section 11 only in compliance
with all applicable federal and state securities laws.
(e) In connection with the provisions of this Agreement, the Pledgor from
time to time shall promptly execute and deliver, or cause to be executed and
delivered, to the Pledgee such documents and instruments, shall join in such
notices and shall take, or cause to be taken, such other lawful actions as the
Pledgee shall deem reasonably necessary or desirable to enable it to exercise
any of the rights with respect to the Pledged Collateral granted to it pursuant
to this Agreement.
SECTION 12. Waivers and Amendments, Etc. The rights and remedies given
hereby are in addition to all others however arising, but it is not intended
that any right or remedy be exercised in any jurisdiction in which such exercise
would be prohibited by law. No action, failure to act or knowledge of the
Pledgee shall be deemed to constitute a waiver of any power, right or remedy
hereunder, nor shall any single or partial exercise thereof preclude any further
exercise thereof or the exercise of any other power, right or remedy. Any
waiver or consent respecting any covenant, representation, warranty or other
term or provision of this Agreement shall be effective only in the specified
instance and for the specific purpose for which given and shall not be deemed,
regardless of frequency given, to be a further or continuing waiver or consent.
The failure or delay of the Pledgee at any time or times to require performance
of, or to exercise its rights with respect to, any representation, warranty,
covenant or other term or provision of this Agreement in no manner shall affect
its right at a later time to enforce any such provision. No notice to or demand
on a party in any case shall entitle such party to any other or further notice
or demand in the same, similar, or other circumstances. Any right or power of
the Pledgee hereunder respecting the Pledged Collateral and any other property
or money held hereunder may at the option of the Pledgee be exercised as to all
or any part of the same and the term "Pledged Collateral" wherever used herein,
unless the context clearly requires otherwise, shall be deemed to mean (and
shall be read as) the "Pledged Collateral and any other property or money held
hereunder or any part thereof". This Agreement shall not be amended nor shall
any right hereunder be deemed waived except by a written agreement expressly
setting forth the amendment or waiver and signed by the party against whom or
which such amendment or waiver is sought to be charged.
SECTION 13. Notices. All notices hereunder shall be given and deemed
received as set forth in the Note.
SECTION 14. Continuing Security Interest and Reinstatement. (a) This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) be binding upon the Pledgor, his heirs, successors and assigns,
and (ii) inure to the benefit of the Pledgee and its successors, transferees and
assigns. Upon the payment in full or performance of the Obligations, the
Pledgor shall be entitled to the return, upon his request and at his expense, of
such of the Pledged Collateral as shall not have been released, sold or
otherwise applied pursuant to the terms
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of the Agreement.
(b) If at any time after payment in full by the Pledgor of all Obligations
and termination of the pledge granted in this Agreement, any payments on
Obligations theretofore made by the Pledgor must be disgorged by the Pledgee for
any reason whatsoever, this Agreement and the pledge granted hereunder shall be
reinstated as to all disgorged payments as though such payments had not been
made, and the Pledgor shall sign and deliver to Pledgee all documents and things
necessary to reperfect the terminated pledge.
SECTION 15. Severability. In the event that any provision of this Agreement
shall be determined to be superseded, invalid or otherwise unenforceable
pursuant to applicable law, such determination shall not affect the validity of
the remaining provisions of this Agreement, and the remaining provisions of this
Agreement shall be enforced as if the invalid provision were deleted.
SECTION 16. Survival of Representations, Etc. All representations,
warranties, covenants and other agreements made herein shall survive the
execution and delivery of this Agreement and shall continue in full force and
effect until all amounts due under the Note have been paid in full. This
Agreement shall remain and continue in full force and effect without regard to
any modification, execution, renewal, amendment or waiver of any provision of
the Note.
SECTION 17. Termination and Return of Pledged Stock. This Agreement shall
continue in full force and effect until all of the Obligations shall have been
paid and satisfied or until the release, discharge or termination of the Note,
whichever last occurs. Upon the termination of this Agreement, the Pledgee
shall cause to be transferred to Pledgor all of the Pledged Collateral and any
money, property and rights received by Pledgor pursuant thereto, to the extent
Pledgee has not released, taken, sold or otherwise realized upon the same
pursuant to its rights and obligations hereunder.
SECTION 18. Transfer and Assignment. The Pledgee may transfer the Pledged
Collateral and any other property or money held hereunder to any transferee of
the obligations or any part thereof. The transferee shall thereupon succeed to
all of the Pledgee's rights hereunder with respect to the Pledged Collateral so
transferred. Thereafter, the Pledgee shall have no obligation to Pledgor with
respect to the Pledged Collateral so transferred. The Pledgee shall, however,
retain all of its rights and powers with respect to any part of the Pledged
Collateral not transferred. Every agent or nominee of the Pledgee shall have the
benefit of this agreement as if named herein and may exercise all of the rights
and powers given to the Pledgee hereunder.
SECTION 19. Entire Agreement. This Agreement and the Secured Non-Recourse
Promissory Note contain the entire agreement of the parties and supersedes all
other agreements, understandings and representations, oral or otherwise, between
the parties with respect to the
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matters contained herein. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors, assigns,
heirs, administrators, fiduciaries, next of kin and executors. Section headings
used herein are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof. This Agreement may be executed in
any number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument.
SECTION 20. Governing Law; Terms. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of New Jersey
without giving effect to its conflict of laws provisions. Unless otherwise
defined herein or in the Note, terms defined in Article 9 of the Uniform
Commercial Code in the State of New Jersey are used herein as therein defined.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the date first above written.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and CEO
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