Exhibit 10.22
STOCK PLEDGE AGREEMENT
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THIS AGREEMENT, made and entered into this 31st day of October,
1995, by and between ▇▇▇▇▇▇-AMERICAN COMPANY, INC., a North Carolina Corporation
of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter
referred to as the ("Pledgor"), and ▇▇▇▇▇▇-▇▇▇▇▇ OF TAMPA, INC., a Florida
Corporation, ▇▇▇▇▇▇-▇▇▇▇▇ OF JACKSONVILLE, INC., a Florida Corporation,
▇▇▇▇▇▇-▇▇▇▇▇ OF MIAMI, INC., a Florida Corporation, and ▇.▇. ▇▇▇▇▇, ▇▇., of ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter collectively referred
to as the "Pledgee").
R E C I T A L S
WHEREAS, ▇▇▇▇▇▇-American Company of Florida, Inc., a North
Carolina Corporation of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (hereinafter referred to as the "Debtor") is currently indebted to
the three corporate entities forming a part of Pledgee in the total amount of
$4,000,000.00 as evidenced by that certain Promissory Note of even date
herewith, a copy of which is attached hereto as Exhibit "A" and incorporated
herein by reference (hereinafter referred to as the "Goodwill Note"), and will
become further indebted to Pledgee pursuant to a loan to be made in accordance
with Section 1.1(b) of the "Asset Purchase Agreement" (as defined hereinbelow),
said additional loan to be evidenced by a certain Promissory Note, a copy of
which is attached hereto as Exhibit "B" and incorporated herein by reference
(hereinafter referred to as the "Loan Amount Note"); and
WHEREAS, Debtor has entered into a certain Employment/Non-
Competition/Non-Disclosure Agreement of even date herewith with ▇.▇. ▇▇▇▇▇, ▇▇.
(hereinafter referred to as the "▇▇▇▇▇ Agreement") whereby the Debtor has
obligated itself with respect to certain compensation and other employment
responsibilities; and
WHEREAS, Debtor has secured its obligations under the Goodwill
Note, Loan Amount Note and ▇▇▇▇▇ Agreement by means of a certain Security
Agreement of even date herewith (the "Security Agreement"), and pursuant to
which Pledgor has entered into this Agreement; and
WHEREAS, Pledgor has entered in a certain Unconditional and
Continuing Guaranty of even date herewith (the "Guaranty") whereby Pledgor has
guaranteed payment and performance of Debtor's obligations under the Goodwill
Note, Loan Amount Note, ▇▇▇▇▇ Agreement and Security Agreement, and Pledgor has
further entered into this Agreement as additional security for Debtor's
obligations under those documents and for Pledgor's obligations under the
Guaranty; and
WHEREAS, Pledgor is owner and holder of 100 shares of $1.00 par value
issued and outstanding common stock of Debtor; and
WHEREAS, the Pledgor, as the owner of such issued and outstanding
stock has agreed that the same will be pledged as security for the repayment of
the aforesaid indebtedness and obligations.
NOW, THEREFORE, in consideration of the foregoing Recitals which shall
be deemed an integral part of this Agreement and not merely as recitals thereto,
and in consideration of the mutual agreements and covenants herein contained,
the parties hereto, intending to be legally bound thereby, agree as follows:
1. Pledge. The Pledgor herein delivers and conveys to the Pledgee to
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be held in escrow by ▇▇▇▇▇ & ▇▇▇▇▇, P.A., (hereinafter referred to as the
"Escrow Agent") the following shares of stock represented by the following
certificate number:
One Hundred (100) shares of $1.00 par value common stock of Debtor bearing
Certificate No. 1.
2. Term. Equitable title to such stock shall remain vested in the
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Pledgor and the Escrow Agent shall hold such stock only as security for (i) the
repayment of the indebtedness described in Exhibits "A" and "B" hereto; (ii) the
obligations under the ▇▇▇▇▇ Agreement; (iii) the obligations under the Security
Agreement; (iv) the obligations under the Guaranty; and (v) the obligations
under that certain Asset Purchase Agreement between Pledgor, Pledgee and Debtor
dated October 17, 1995 (the "Asset Agreement") (hereinafter all such obligations
of Debtor and Pledgor are referred to as the "Indebtedness"). Escrow Agent shall
not encumber or dispose of such stock except in accordance with the provisions
of this Agreement. Such stock shall remain so pledged to the Pledgee until the
said Indebtedness is repaid in full with applicable interest.
3. Voting. During the term of this pledge and so long as the Debtor
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or Pledgor is not in default in the performance of any of the terms of the
Indebtedness described above, then the Pledgor shall have the right to vote the
pledged stock on all corporate questions and the Pledgee shall execute due and
timely proxies in favor of the Pledgor and may be necessary to this end.
4. Representations and Warranties as to Ability to Pledge Stock.
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(a) The Pledgor warrants and represents that the Pledgor has the
right, power and authority to transfer the pledged stock, that
such stock is
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being pledged and transferred free and clear of any and all liens,
restrictions and encumbrances of every type and character, and that
such pledge and transfer may be made without obtaining the consent so
to do from any person, corporation or entity whatsoever, except the
Pledgee.
(b) Pledgor represents and warrants that the pledged stock constitutes
one hundred percent (100%) of the issued and outstanding stock of
Debtor of all classes and the Pledgor has the sole right and authority
to pledge such stock.
(c) Pledgor represents that it is the sole owner of the pledged stock.
5. Stock Adjustments, Warrants and Rights. In the event that during the
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term of this pledge any stock dividend, reclassification, readjustment or other
change is declared or made in the capital structure of the corporate issuer of
any of the pledged stock, all new substituted and additional shares or other
securities issued in respect to the pledged stock shall be held by the Escrow
Agent under the terms of this Agreement in the same manner as the shares of
stock originally pledged hereunder; and in the event that during the term of
this pledge subscription warrants or any other rights or options shall be issued
in connection with the pledged stock, such warrants, rights, and options shall
be immediately assigned by the Pledgee to the Pledgor, and if exercised by the
Pledgor all new stock or other securities so acquired by the Pledgor shall be
immediately assigned to the Pledgee to be held under the terms of this Agreement
in the same manner as the shares of stock originally pledged hereunder.
6. Return of Stock. Upon the pledge of stock, Pledgee shall deliver with
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the original stock certificates executed stock powers in blank to the Escrow
Agent covering the pledged stock and the Escrow Agent shall return to the
Pledgor all of the stock pledged hereunder upon the payment in full of the
Indebtedness.
7. Documentary Stamps. The Pledgor agrees to pay for any and all
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documentary stamps which may be imposed on the transfer and delivery to Escrow
Agent of the pledged stock and substitutions thereof and any additions thereto,
and which may be imposed on the retransfer and redelivery of the same to the
Pledgor.
8. Default. In the event the Pledgor defaults in the performance of any
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of the terms of this Agreement and fails to cure such default within ten (10)
days after written notice to do so, or if an event of default, as defined in the
terms and conditions contained in the various documents referred to above and
forming a part of the Indebtedness and subject to any applicable notice
requirements and cure opportunities specifically set forth therein,
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shall occur or a default under any agreement relating thereto, or if a breach or
default occurs under any of the provisions of the Asset Agreement, including,
without limitation, those within Articles IV and VI, but subject to the notice
requirements and cure opportunities specifically set forth in Section 9.1 of the
Asset Agreement, the Pledgee shall have the following rights, exercisable
immediately after compliance with any required notice from Pledgee to Debtor
and/or Pledgor and termination without cure of any required cure opportunity
under the applicable document within the Indebtedness as to such event of
default:
(a) To direct the Escrow Agent to sell the whole or any part
of the pledged stock and any substitutes therefor and any
additions thereto, at public or private sale, at the option
of the said Pledgee and from the proceeds derived from the
said sale to pay first the cost and expenses of said sale,
including a reasonable attorneys' fee for making said sale,
and second, any interest which may then have accrued with
respect thereto, and third, the unpaid principal balance of
the Indebtedness, and accounting thereafter to the Pledgor
for any surplus then remaining derived from said sale after
making all the payments herein above set forth, such surplus,
if any, to be paid over and delivered to Pledgor, and at such
sale the Pledgee may be a bidder, and may purchase the
pledged stock or any part thereof; provided, however, that
ten (10) days notice of said sale and the time and place
thereof shall be given to the Pledgor by personal delivery or
by certified or registered mail addressed to the Pledgor at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President. It is further agreed that
after a sale and purchase of the pledged stock or any part
thereof there shall be no equity or right of redemption on
the part of or by the Pledgor, as all rights of redemption
are hereby expressly waived and released. It is further
understood and agreed that the Debtor and Pledgor shall
remain liable for any deficiency that may arise after the
sale or sales of the pledged stock. It is further agreed that
no public advertisement of the sale of the stock so pledged
hereunder shall be necessary, and that the Pledgee may at any
sale sell all or any part of such stock hereby pledged and
that a sale of a part of such stock shall not operate to
prevent the sale at a later date of the remainder of such
stock, and that such sale may continue from day to day at the
option of the Pledgee without further notice to the Pledgor.
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(b) The right to vote the pledged stock on all corporate
questions until such time as the default is cured and the
Pledgor shall execute due and timely proxies in favor of the
Pledgee as may be necessary to this end.
It is understood that the Pledgee may exercise either or both options to
the extent that same, in its sole discretion, will most likely lead to the
satisfaction of the Indebtedness secured by this pledge; that the rights
hereunder are in addition to any and all other rights which the Pledgee may
have under any other agreements whatsoever or by law; and further that Pledgee
may exercise either or both of the above options whether or not it exercised
any of such additional rights.
9. Prohibition of Sale or Further Encumbrance of Stock. During the
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term of this pledge, the Pledgor agrees not to sell, assign, dispose of or
further encumber the shares of stock subject to this pledge, and Debtor agrees
not to issue any additional shares of its common stock, or create any additional
classes of stock, without the written consent of Pledgee, which consent for any
of such prohibited actions of Debtor and Pledgor shall be in the sole and
exclusive discretion of the Pledgee.
10. Corporation Parties to this Agreement. By being made a party to this
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Agreement, the corporations which are parties to this Agreement agree to the
terms and conditions hereof and further agree that the execution and delivery of
this Agreement shall be authorized by a meeting of the Board of Directors of the
corporations which are parties to this Agreement to be held prior to the
consummation of this Agreement.
11. Benefit. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective heirs, beneficiaries,
personal representatives, successors, or assigns, and it is particularly
understood and agreed that whenever the term "Pledgee" is used in the Agreement,
the said term shall include the Pledgee's successors and assigns; provided,
however, any rights of Pledgee to assign this Agreement shall be limited as
set forth in Section 9.11 of the Asset Agreement and any rights of Pledgor to
assign this Agreement shall be limited as set forth in Sections 6.7 and 9.11 of
the Asset Agreement. Debtor shall have no rights to assign this Agreement
without the prior written consent of Pledgee.
12. This Agreement is being executed in connection with and
simultaneously with the closing of a sale of assets from ▇▇▇▇▇▇-▇▇▇▇▇ of Tampa,
Inc., ▇▇▇▇▇▇-▇▇▇▇▇ of Jacksonville, Inc. and ▇▇▇▇▇▇-▇▇▇▇▇ of Miami, Inc. to
Debtor whereby the purchase price owed by Debtor was financed by Pledgee and
pursuant to which Pledgee made additional loans to Debtor.
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13. Any modifications or changes in the terms of this Agreement shall be
in writing and signed by all of the parties.
14. Pledgor agrees to and shall indemnify and pay or reimburse the
Pledgee, on demand, for any and all losses, damages, costs, expenses, collection
charges and attorneys' fees, whether paid or incurred out of court or in
litigation, including appeals and bankruptcy court proceedings, paid or incurred
by Pledgee in endeavoring or otherwise proceeding to collect, enforce or defend
Pledgee's rights against the Pledgor under this Agreement, with interest thereon
subsequent to default at the highest lawful contract rate in effect from time to
time hereafter; provided, however, Pledgor shall not be responsible for any
losses, damages, costs, expenses, collection charges or attorneys' fees
associated with any litigation under this Agreement unless Pledgee shall be the
prevailing party in any such litigation.
15. This Stock Pledge Agreement is made under and shall be governed,
construed and enforced in accordance with the laws of the State of Florida. The
Pledgor agrees that Hillsborough County, Florida shall be the proper venue in
any action based upon or arising hereunder or related hereto, and Pledgor hereby
submits itself and consents to the jurisdiction (personal and in rem) of the
court(s) in Hillsborough County, Florida, and waives any defense pertaining to
or based upon lack of such jurisdiction. Pledgor and Pledgee each hereby
expressly waive all rights to a jury trial with respect to any and all actions
commenced by Pledgor or Pledgee under or in connection with this Stock Pledge
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
Signed, Sealed and Delivered
in the Presence of: "Pledgor"
▇▇▇▇▇▇-AMERICAN COMPANY, INC.
a North Carolina Corporation
/s/ (illegible)
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/s/ (illegible) By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Attest:
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"Pledgee"
▇▇▇▇▇▇-▇▇▇▇▇ OF TAMPA, INC., a
Florida Corporation
/s/ (illegible)
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/s/ (illegible) By: /s/ ▇.▇. ▇▇▇▇▇, ▇▇.
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Witness as to Pledgee ▇.▇. ▇▇▇▇▇, ▇▇., President
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▇▇▇▇▇▇-▇▇▇▇▇ OF JACKSONVILLE, INC.,
a Florida Corporation
[UNREADABLE]
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By: /s/ ▇.▇. ▇▇▇▇▇, ▇▇.
[UNREADABLE] ------------------------------------
----------------------------- ▇.▇. ▇▇▇▇▇, ▇▇., President
Witness as to Pledgee
▇▇▇▇▇▇-▇▇▇▇▇ OF MIAMI, INC.,
a Florida Corporation
[UNREADABLE]
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By: /s/ ▇.▇. ▇▇▇▇▇, ▇▇.
[UNREADABLE] ------------------------------------
----------------------------- ▇.▇. ▇▇▇▇▇, ▇▇., President
Witness as to Pledgee
[UNREADABLE]
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/s/ ▇.▇. ▇▇▇▇▇, ▇▇.
[UNREADABLE] ------------------------------------
----------------------------- ▇.▇. ▇▇▇▇▇, ▇▇., Individually
Witness as to Pledgee
"Escrow Agent"
▇▇▇▇▇ & ▇▇▇▇▇, P.A.
[UNREADABLE]
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By: /s/ ▇▇ ▇. ▇▇▇▇▇, ▇▇.
[UNREADABLE] ------------------------------------
----------------------------- ▇▇ ▇. ▇▇▇▇▇, ▇▇.
Witness as to Escrow Agent
"Debtor"
▇▇▇▇▇▇-AMERICAN COMPANY OF FLORIDA, INC.,
[UNREADABLE] a North Carolina Corporation
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
[UNREADABLE] ------------------------------------
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Witness as to Debtor Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: President
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