EXHIBIT 10.25
PLEDGE AGREEMENT
THIS AGREEMENT ENTERED INTO AT BOSTON, MASSACHUSETTS AS OF APRIL 30,
2002 BETWEEN VISION SCIENCES, INC., WITH AN ADDRESS OF 0 XXXXXXXXXX XXXX,
XXXXXX, XXXXXXXXXXXXX 00000 (THE "PLEDGOR") AND CITIZENS BANK OF MASSACHUSETTS,
A MASSACHUSETTS BANKING CORPORATION WITH XX XXXXXXX XX 00 XXXXX XXXXXX, XXXXXX,
XXXXXXXXXXXXX 00000 (THE "BANK").
1. PLEDGE. In consideration of the Bank's extending credit and
other financial accommodations to the Pledgor, the Pledgor hereby grants to the
Bank a security interest in all of the Pledgor's Collateral. The security
interest granted by this Agreement is given to and shall be held by the Bank as
security for the payment and performance of all Obligations. The Bank shall have
the unrestricted right from time to time to apply or to change any application
already made of the proceeds of any of the Collateral to any of the Obligations,
as the Bank in its sole discretion may determine.
2. DEFINITIONS. The following definitions shall apply:
(1) "Collateral" shall mean all the Pledgor's present and
future right, title and interest in and to any and all of the
property listed on SCHEDULE A, attached hereto, whether such
property is now existing or hereafter created, and all products,
proceeds, substitutions, additions, interest, dividends, and
other distributions in respect thereto, and all books, records,
and paper relating to the foregoing.
(2) "Obligation(s)" means all loans, advances, indebtedness,
notes, liabilities and amounts, liquidated or unliquidated,
owing by the Pledgor to the Bank at any time, of each and every
kind, nature and description, whether arising under this
Agreement or under the Loan Agreement between Pledgor and Bank
of even date herewith (the "Loan Agreement") and whether secured
or unsecured, direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter contracted. Said term
expressly includes all interest and other charges chargeable to
the Pledgor or due from the Pledgor to the Bank from time to
time and all costs and expenses referred to in this Agreement
and in the Loan Agreement.
(3) "Person" or "party" shall include individuals, firms,
corporations
and all other entities.
(4) "Event of Default" shall mean the occurrence of any one
or more of the following events:
(1) default of any liability, obligation or undertaking of the
Pledgor to the Bank hereunder; and
(2) occurrence of an Event of Default under the Loan Agreement.
All words and terms used in this Agreement other than those specifically
defined herein or in the Loan and Security Agreement between the Pledgor and the
Bank of even date herewith (the "Loan Agreement"), shall have the meanings
ascribed to them in the Massachusetts Uniform Commercial Code as amended from
time to time (herein the "Code").
3. COSTS AND EXPENSES. The Pledgor shall pay to the Bank any and
all costs and expenses (including, without limitation, reasonable attorneys'
fees, court costs, litigation and other expenses) incurred or paid by the Bank
in establishing, maintaining, protecting or enforcing any of the Bank's rights
or the Obligations, including, without limitation, any and all such costs and
expenses incurred or paid by the Bank in defending the Bank's security interest
in, title or right to the Collateral or in collecting or attempting to collect
or enforcing or attempting to enforce payment of the Collateral.
4. TITLE. The Pledgor represents that the Collateral is held and
owned by the Pledgor free and clear of all liens, encumbrances, attachments,
security interests, pledges, and charges, and if the Collateral is securities,
is fully paid for and nonassessable.
5. AFFIRMATIVE COVENANTS. The Pledgor shall:
(1) execute all such instruments, documents, and papers, and
will do all such acts as the Bank may reasonably request from
time to time to carry into effect the provisions and intent of
this Agreement, including, without limitation, the execution of
stock transfer orders, stock powers, notifications to obligors
on the Collateral, the providing of notification in connection
with book entry securities or general intangibles and the
providing of instructions to the issuers of uncertificated
securities or financial intermediaries, and will do all such
other acts as the Bank may request with respect to the
perfection and protection of the security interest granted
herein and the assignment effected hereby;
(2) keep the Collateral free and clear of all liens, encumbrances,
attachments, security interests, pledges and charges;
(3) deliver to the Bank, if and when received by the
Pledgor, any item representing or constituting any of the
Collateral, including without limitation, all cash dividends and
all stock certificates whether now existing or hereafter
received as a result of any stock dividends, stock splits or
otherwise;
(4) upon the request of the Bank, cause the issuer of any
uncertificated securities comprising any of the Collateral to
issue certificates with respect thereto;
(5) upon the request of the Bank, cause certificated
securities comprising any of the Collateral to be issued in the
name of the Bank, as pledgee;
(6) not cause or permit any of the Collateral presently
evidenced by a written certificate to be converted to
uncertificated securities;
(7) not exercise any right with respect to the Collateral
which would dilute or adversely affect the Bank's rights in the
Collateral;
(8) not file any affidavit for replacement of lost stock
certificate or bonds with respect to the Collateral; and
(9) not vote the Collateral in favor of or consent to any
resolution which might: (i) impose any restrictions upon the
sale, transfer, or disposition of the Collateral; or (ii) result
in the issuance of any additional shares of stock of any class;
or (iii) vest additional powers, privileges, preferences, or
priorities to any other class of stock.
6. POWER OF ATTORNEY. The Pledgor hereby irrevocably constitutes
and appoints the Bank as the Pledgor's true and lawful attorney, with full power
of substitution at the sole cost and expense of the Pledgor but for the sole
benefit of the Bank, to endorse in favor of the Bank any of the Collateral;
cause the transfer of any of the Collateral in such name as the Bank may, from
time to time, determine; cause the issuance of certificates for book entry
and/or uncertificated securities; provide notification in connection with book
entry securities or general intangibles and/or provide instructions to the
issuers of uncertificated securities or financial intermediaries, as necessary;
to renew, extend, or roll over any Collateral; and make demand and initiate
actions to enforce any of the Collateral. The Bank may take such action with
respect to the Collateral as the Bank may reasonably determine to be necessary
to protect and preserve its interests in the Collateral. The Bank shall also
have and may exercise at any time all rights, remedies, powers, privileges, and
discretions of the Pledgor with respect to and under the Collateral, provided,
however, the Bank shall have no right until an Event of Default has occurred to
exercise any voting rights available to the Pledgor at any time the Collateral
is held
by the Bank solely as pledgee hereunder. Except as limited above, all the
rights, remedies, powers, privileges and discretions included in this Paragraph
may be exercised by the Bank whether or not any of the Obligations are then due
and whether or not an Event of Default has occurred. The within designation,
being coupled with an interest, is irrevocable until the within Agreement is
terminated by a written instrument executed by a duly authorized officer of the
Bank. The power of attorney shall not be affected by subsequent disability or
incapacity of the Pledgor. The Bank shall not be liable for any act or omission
to act pursuant to this Paragraph except for any act or omission to act which is
in actual bad faith.
7. DEFAULT. If an Event of Default shall occur, at the election of
the Bank, all Obligations shall become immediately due and payable without
notice or demand, except with respect to Obligations payable on demand, which
shall be due and payable on demand, whether or not an Event of Default has
occurred.
The Bank is hereby authorized, at its election, after an Event of Default
or after demand, without any further demand or notice except to such extent as
notice may be required by applicable law, to sell or otherwise dispose of all or
any of the Collateral at public or private sale and/or enforce and collect the
Collateral (including, without limitation, the right to require the issuer of
any deposit account or certificate of deposit to pay the interest and proceeds
thereof and funds represented by such to the Bank); and the Bank may also
exercise any and all other rights and remedies of a secured party under the Code
or which are otherwise accorded to it by applicable law, all as the Bank may
determine. If notice of a sale or other action by the Bank is required by
applicable law, the Pledgor agrees that ten (10) days' written notice to the
Pledgor, or the shortest period of written notice permitted by law, whichever is
larger, shall be sufficient notice; and that to the extent permitted by law, the
Bank, its officers, attorneys and agents may bid and become purchasers at any
such sale, if public, and may purchase at any private sale any of the Collateral
that is of a type customarily sold on a recognized market or which is the
subject of widely distributed standard price quotations. Any sale (public or
private) shall be free from any right of redemption, which the Pledgor hereby
waives and releases. No purchaser at any sale (public or private) shall be
responsible for the application of the purchase money. Any balance of the net
proceeds of sale remaining after paying all Obligations of the Pledgor to the
Bank shall be returned to the Pledgor or to such other party as may be legally
entitled thereto; and if there is a deficiency, the Pledgor shall be responsible
for the same, with interest. The Pledgor acknowledges that any exercise by the
Bank of the Bank's rights upon default may be subject to compliance by the Bank
with any statute, regulation, ordinance, directive, or order of any federal,
state, municipal, or other governmental authority, and may impose, without
limitation, any of the foregoing restricting the sale of securities. The Bank,
in its sole discretion at any such sale, may restrict the prospective bidders or
purchasers as to their number, nature of business and investment intentions, and
may impose, without limitation, a requirement that the persons making such
purchases represent and agree, to the satisfaction of the Bank, that they are
purchasing the Collateral for their own account, for investment, and not with a
view to the distribution or resale thereof. The proceeds of any collection or of
any sale or disposition of the Collateral held pursuant to this Agreement shall
be applied towards the Obligations in such order
and manner as the Bank determines in its sole discretion, any statute, custom,
or usage to the contrary notwithstanding.
8. SAFE CUSTODY AND EXCLUSIVITY. The Bank shall have no duty as to
the Collateral or protection of the Collateral or any income or distribution
thereon, beyond the safe custody of such of the Collateral as may come into the
possession of the Bank and shall have no duty as to the preservation of rights
against prior parties or any other rights pertaining thereto. The Bank's Rights
and Remedies (as defined herein) may be exercised without resort or regard to
any other source of satisfaction of the Obligations.
9. INDEMNIFICATION. The Pledgor shall indemnify, defend, and hold
the Bank harmless of and from any claim brought or threatened against the Bank
by the Pledgor, any guarantor or endorser of the Obligations, or any other
person (as well from attorneys' reasonable fees and expenses in connection
therewith) on account of the Bank's relationship with the Pledgor, or any
guarantor or endorser of the Obligations, each of which may be defended,
compromised, settled, or pursued by the Bank with counsel of the Bank's
election, but at the expense of the Pledgor. The within indemnification shall
survive payment of the Obligations, and/or any termination, release, or
discharge executed by the Bank in favor of the Pledgor.
10. WAIVERS. The Pledgor waives notice of nonpayment, demand,
presentment, protest or notice of protest of the Collateral, and all other
notices, consents to any renewals or extensions of time of payment thereof, and
generally waives any and all suretyship defenses and defenses in the nature
thereof. No delay or omission of the Bank in exercising or enforcing any of its
rights, powers, privileges, remedies, immunities or discretions ("the Bank's
Rights and Remedies") hereunder shall constitute a waiver thereof; and no waiver
by the Bank of any default of the Pledgor hereunder or of any demand hereunder
shall operate as a waiver of any other default hereunder or any other demand
hereunder. No term or provision hereof shall be waived, altered or modified
except with the prior written consent of the Bank, which consent makes explicit
reference to this Agreement. Except as provided in the preceding sentence, no
other agreement or transaction, of whatsoever nature, entered into between the
Bank and the Pledgor at any time (whether before, during or after the effective
date or term of this Agreement) shall be construed in any particular as a
waiver, modification or limitation of any of the Bank's Rights and Remedies
under this Agreement, nor shall anything in this Agreement be construed as a
waiver, modification or limitation of any of the Bank's Rights and Remedies
under any such other agreement or transaction, but all the Bank's Rights and
Remedies not only under the provisions of this Agreement but also under any such
other agreement or transaction shall be cumulative and not alternative or
exclusive, and may be exercised by the Bank at such time or times and in such
order of preference as the Bank in its sole discretion may determine.
11. SEVERABILITY. If any provision of this Agreement or portion of
such provision or the application thereof to any person or circumstance shall to
any extent be held invalid or unenforceable, the remainder of this Agreement (or
the remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
12. BINDING EFFECT OF AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto, and shall remain in full force and effect (and the Bank shall be
entitled to rely thereon) until terminated as to future transactions by written
notice from either party to the other party of the termination hereof; provided
that any such termination shall not release or affect any Collateral in which
the Bank already has a security interest or any Obligations incurred or rights
accrued hereunder prior to the effective date of such notice (as hereinafter
defined) of such termination. Notwithstanding any such termination, the Bank
shall have a security interest in all Collateral to secure the payment and
performance of Obligations arising after such termination as a result of
commitments or undertakings made or entered into by the Bank prior to such
termination. The Bank may transfer and assign this Agreement and deliver the
Collateral to the assignee, who shall thereupon have all of the Bank's Rights
and Remedies; and the Bank shall then be relieved and discharged of any any
responsibility or liability with respect to this Agreement and the Collateral.
13. NOTICES. Any notices under or pursuant to this Agreement shall
be deemed duly received by the Pledgor and effective if delivered in hand to the
Pledgor, or if mailed by registered or certified mail, return receipt requested,
addressed to the Pledgor at the Pledgor's address as shown in the preamble
hereto. Any notices to the Bank under or pursuant to this Agreement shall be
mailed to the Bank by registered, certified, or express mail, return receipt
requested, addressed to the Bank at the address shown at the beginning of this
Agreement.
14. REPRODUCTIONS. This Agreement and all documents which have been
or may be hereinafter furnished by Pledgor to the Bank may be reproduced by the
Bank by any photographic, photostatic, microfilm, xerographic, or similar
process, and any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made in the
regular course of business).
15. MASSACHUSETTS LAW. This Agreement is intended to take effect as
a sealed instrument and has been executed or completed and is to be performed in
Massachusetts, and it and all transactions thereunder or pursuant thereto shall
be governed as to interpretation, validity, effect, rights, duties and remedies
of the parties thereunder and in all other respects by the domestic laws of
Massachusetts.
16. JURISDICTION AND VENUE. Pledgor irrevocably submits to the
non-exclusive jurisdiction of any federal or state court sitting in Boston,
Massachusetts over any suit, action or proceeding arising out of or relating to
this Agreement. Pledgor irrevocably waives, to the fullest extent it may
effectively do so under applicable law, any objection it may have or hereafter
have to the laying of the venue of any such suit, action or proceeding brought
in any such court and any claim that the same has been brought in an
inconvenient forum. Pledgor irrevocably agrees that any and all legal process
which may be served in any such suit, action or proceeding, may be
served by mailing a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to Pledgor and agrees that such service shall
in every respect be deemed effective service upon Pledgor.
17. JURY WAIVER. THE PLEDGOR AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, WAIVE
ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION
WITH THIS AGREEMENT, THE OBLIGATIONS, IN ALL MATTERS CONTEMPLATED HEREBY AND
DOCUMENTS EXECUTED IN CONNECTION HEREWITH. THE PLEDGOR CERTIFIES THAT NEITHER
THE BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT OF ANY SUCH
PROCEEDING, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
Witness our hands and seals as of this 30 day of April, 2002.
WITNESS PLEDGOR:
VISION SCIENCES, INC.
/s/ Xxx Xxxx By: /s/ Xxxxx X. Xxxxx
------------------------------------ ---------------------------
VP Finance, Treasurer
SCHEDULE A TO PLEDGE AGREEMENT
BETWEEN VISION SCIENCES, INC.
AND CITIZENS BANK OF MASSACHUSETTS
All of Pledgor's right, title and interest in and to the certificate of
deposit with the Bank described below and all interest and dividends thereon and
all renewals, substitutions and replacements thereof and all proceeds thereof,
including without limitation any other deposit account or investment account
with Citizens Bank of Massachusetts or any affiliate thereof into which such
proceeds may hereafter be deposited.
Citizens Bank of Massachusetts certificate of deposit no.______________________.
