Exhibit 10.13
STOCK PLEDGE AND SECURITY AGREEMENT
This Stock Pledge and Security Agreement (the "Agreement"), is made
and entered into this 12th day of February, 1997, by and among ▇.▇. ▇▇▇▇,
▇▇, ("▇▇▇▇"), First Choice Auto Finance, Inc., a Florida corporation
("FCAF") and ▇▇▇▇▇▇ Industries, Inc., a Florida corporation ("▇▇▇▇▇▇")
(FCAF and ▇▇▇▇▇▇ are referred to collectively as the "Secured Parties").
RECITALS:
This Agreement is made and entered into under the following
circumstances:
1. Hill is the record shareholder of 176,078 shares (the "Shares")
of the outstanding common capital stock, Class B, $.01 par value (the
"Common Stock") of ▇▇▇▇▇▇, such Shares being represented by certificate
number 176,078 (the "Certificate").
2. Hill and ▇▇▇▇▇▇ have entered into that certain Merger Agreement
and Hill, Eckler, and FCAF have entered into that certain Stock Purchase
Agreement, both of even date herewith, pursuant to which ▇▇▇▇▇▇ is
acquiring certain businesses of Hill (such agreements are referred to
herein collectively as the "Acquisition Agreements").
3. ▇▇▇▇▇▇ and FCAF have required the execution and delivery of this
Agreement to provide security for the obligations of Hill under the
Acquisition Agreements.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Pledge of Shares. Hill hereby pledges his interest in the Shares
as security for his obligations (the "Obligations") under the Acquisition
Agreements and all agreements executed and delivered in connection with the
Acquisition Agreements, including his obligations with respect to the
representations and warranties under the foregoing. The Secured Parties
shall have (and are hereby granted) a security interest in the Shares (and
related Certificates) (herein called the "Collateral") and all proceeds
thereof and accessions thereto to secure the Obligations.
2. Ownership Rights. Unless a breach or default has occurred under
the Acquisition Agreements or this Agreement, Hill shall have and enjoy all
rights and attributes relating to the Shares, including, without
limitation, all voting rights and rights to dividends and other
distributions in respect thereof; provided however that Hill shall not
transfer any of the Shares during the time when this Agreement is in
effect.
3. Adjustments. In the event that during the term of this
Agreement, any share dividend, reclassification, readjustment, or other
change is declared or made in the capital structure of the Secured Parties,
all new, substituted, and additional shares, options or other securities
issued with respect to the pledged Collateral by reason of any such change
shall be delivered to the Secured Parties and held by the Secured Parties
under the terms of this Agreement in the same manner as the Collateral
originally pledged hereunder.
4. Warrants and Rights. In the event that during the term of this
Agreement, subscription warrants or any other rights or options shall be
issued to or for the benefit of Hill or otherwise with respect to the
Collateral, such warrants, rights and options shall be immediately assigned
and delivered by Hill to the Secured Parties and shall become part of the
Collateral hereunder.
5. Events of Default; the Secured Parties Remedies. In the event
Hill shall, following the date hereof: (a) default under or breach of any
of the Obligations or this Agreement (collectively, the "Security
Documents"), (b) make an assignment for the benefit of his creditors, (c)
commence proceedings in bankruptcy for the adjustment of any of Hill's
debts under the Bankruptcy Code or under any law, whether state or federal,
now or hereafter existing for the relief of debtors, (d) have a receiver
appointed for any substantial part of Hill's assets, (e) transfer a
substantial part of his property, or (g) become insolvent or unable to pay
debts as they mature (each of the foregoing being an "Event of Default"),
the Secured Parties shall have the rights and remedies provided in the
Florida Uniform Commercial Code in effect on the date of this Agreement
(the "Code") and may sell any such Collateral in any manner provided under
the Code, and the proceeds of any such sale shall be applied first to the
expenses of such sale (including, but not limited to, reasonable attorneys'
fees incurred by the Secured Parties in connection with any such default by
Hill) and the balance, if any, shall be paid to Hill. Further, following
an Event of Default, the Secured Parties shall have the right, but not the
duty, to thereafter exercise all rights with respect to voting privileges
for the Shares and upon notice from the Secured Parties, Hill shall no
longer exercise any voting rights with respect to the Shares, or if so
directed by the the Secured Parties, shall vote the Shares as directed by
the Secured Parties.
If an Event of Default shall occur, the Secured Parties shall satisfy
any resulting claim by the Secured Parties against Hill resulting from such
Event of Default by causing Shares having an aggregate value (determined as
provided below, subject to appropriate adjustment to account for any stock
split, stock dividend, combination of shares or other such event which may
occur at any time prior to the termination of this Agreement) equal to the
amount of such claim by the Secured Parties against Hill to be transferred
from Hill to the Secured Parties for cancellation. For purposes hereof,
the Shares shall be deemed to have a value per share equal to $17.50.
No delay or omission on the part of the Secured Parties in exercising
any right granted hereunder shall operate as a waiver of such right or any
other right. A waiver on any one occasion by the Secured Parties shall not
be construed as a bar to or waiver of any right on any future occasion.
All rights and remedies of the Secured Parties, whether granted herein or
by the Acquisition Agreements, shall be cumulative and may be exercised
separately or concurrently.
6. Termination of Pledge; Release of Shares. The pledge created
hereby shall terminate upon the termination of the Obligations. On
termination the Secured Parties shall release their security interest in
the Collateral and shall deliver to Hill the Certificates and stock powers
relating thereto, and any other Collateral remaining in the possession of
the Secured Parties.
7. Amendment. This Agreement shall not be amended except by a
writing which refers to this Agreement and is executed by each of the
parties hereto.
8. Complete Agreement. This Agreement sets forth the entire
understanding of the parties hereto concerning the subject matter hereof,
including the agreements referenced herein, and supersedes all prior
contracts, arrangements, communications, discussions, representations and
warranties, whether oral or written, among the parties relating to the
subject matter of this Agreement.
9. Notices. All notices, requests, consents, and other
communications hereunder shall be in writing and delivered to the person to
whom the notice is directed, either (i) in person, (ii) by U.S. Mail, as
registered or certified item with return receipt requested, (iii) delivered
by delivery service, or (iv) sent by facsimile (with confirmation or
receipt), telex or telecopy. Notices delivered by mail shall be deemed to
be given when deposited in a post office or other depository under the care
or custody of the United States Postal Service, enclosed in a wrapper,
addressed properly with proper postage affixed or when received at the
address set forth herein if delivered or sent by facsimile. All notices
shall be addressed as follows:
If to Hill: ▇.▇. ▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Milam, Otero, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Secured Parties: ▇▇▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address or addresses as the party addressed may from time
to time designate to the others in writing in accordance with this
paragraph.
10. Governing Law. This Agreement shall in all respects be
interpreted, governed by, and construed in accordance with the laws of the
State of Florida.
11. Severability. Each section, subsection, and lesser section of
this Agreement constitutes a separate and distinct undertaking, covenant,
or provision hereof. In the event that any provision of this Agreement
shall finally be determined to be unlawful, such provision shall be deemed
limited by construction in scope and effect to the minimum extent necessary
to render the same valid and enforceable, and, if such a limiting
construction is not possible, any such provision shall be deemed severed
from this Agreement, but every other provision of this Agreement shall
remain in full force and effect.
12. Third Parties. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any other person or
entity other than the parties hereto any rights or remedies under or by
reason of this Agreement.
13. Headings. The headings in this Agreement are intended solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
14. Counterparts. This Agreement may be executed and delivered in
two or more counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same Agreement.
15. Waiver of Trial by Jury. THE PARTIES HEREBY MUTUALLY AGREE THAT
NEITHER PARTY, NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE
OF THE PARTIES (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES")
SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY
OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY DOCUMENT, INSTRUMENT, OR AGREEMENT EXECUTED IN CONNECTION HEREWITH, ANY
RELATED AGREEMENT OR INSTRUMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN
OR AMONG THE PARTIES, OR ANY OF THEM. NONE OF THE PARTIES WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS
OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES. THE WAIVER
CONTAINED HEREIN IS IRREVOCABLE, CONSTITUTES A KNOWING AN VOLUNTARY WAIVER,
AND SHALL BE SUBJECT TO NO EXCEPTIONS. ▇▇▇▇▇▇ HAS IN NO WAY AGREED WITH OR
REPRESENTED TO GUARANTOR OR ANY OTHER PARTY THAT THE PROVISIONS OF THIS
PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on
the date first written above.
Hill:
/S/ ▇.▇. ▇▇▇▇, ▇▇
▇.▇. ▇▇▇▇, ▇▇
▇▇▇▇▇▇:
▇▇▇▇▇▇ INDUSTRIES, INC.,
a Florida corporation
By:/S/ J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title:Asst. V. P.
FCAF:
FIRST CHOICE AUTO FINANCE,
INC.,
a Florida corporation
By: /S/
Title: