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EXHIBIT 10.34
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
October 11, 1999, is executed by Xxx Xxxxxx ("Pledgor"), in favor of
ClientLogic Corporation, a Delaware corporation ("Lender").
RECITALS
A. Pledgor has requested that Lender make a loan to Pledgor in the
principal amount of $65,000.00 (the "Loan") pursuant to that certain
Promissory Notes, dated as of even date herewith, made by Pledgor in favor
of Lender (the "Note") in connection with Lender's relocation of Pledgor to
Nashville, Tennessee, and other reasons.
B. It is a condition precedent to the obligations of Lender to make the
Loan under the Note that Xxxxxxx shall have executed and delivered this
Pledge Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Pledgor hereby agrees with Lender as follows:
1. Definitions and Interpretation. All terms defined in the New
York Uniform Commercial Code (the "UCC") shall have the respective meanings
given to those terms in the UCC.
2. The Pledge. To secure the payment when due of all obligations
and liabilities of Xxxxxxx under the Note, including all principal and
interest (the "Obligation"), Pledgor hereby pledges and assigns to Lender,
and grants to Lender a security interest in, all of Pledgor's right, title
and interest, whether now existing or hereafter arising, in the following
property (the "Collateral"):
(a) all right, title and interest of Pledgor in and to _______
shares (the "Pledged Shares") of common stock, par value $0.01 per share
("Common Stock"), of ClientLogic Holding Corporation presently owned or
hereafter acquired by Pledgor;
(b) all dividends, other distributions or other property,
securities or instruments in respect of or in exchange for the Pledged
Shares, whether by way of recapitalization, mergers, consolidations,
split-ups, combinations or exchanges of shares or otherwise; and
(c) all proceeds of the foregoing.
3. Delivery of Pledged Shares.
(a) In furtherance of the pledge provided for herein, concurrent
with the execution of this Pledge Agreement, Pledgor has delivered to Lender
each and
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every certificate representing Pledged Shares presently owned by Pledgor,
together with any and all documentation of such delivery that Lender may
reasonably request.
(b) With respect to certificates (each an "After-Acquired
Certificate") for any Pledged Shares hereafter acquired by Pledgor from
Lender or any third party, Pledgor shall immediately deliver, or cause to be
delivered, to Lender each and every After-Acquircd Certificate, together
with any and all documentation of such delivery that Lender may reasonably
request. ClientLogic Holding Corporation shall not be obligated to deliver
any After Acquired Certificates representing the Pledged Shares to Pledgor
but may instead deliver such Lender.
(c) Notwithstanding anything to the contrary herein or elsewhere
contained, during any such time as Pledgor comes into possession of any
certificates for Pledged Shares, such possession shall be deemed to be in
trust for the benefit of Lender, and Pledgor shall immediately, upon coming
into possession of any certificates for Pledged Shares, submit written
notification to Lender of Xxxxxxx'x possession of such certificates and
shall immediately deliver, or cause to be delivered, to Lender such
certificates, together with any and all documentation of such delivery that
Lender may reasonably request.
4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
(a) The Pledged Shares owned by Pledgor on the date hereof have
been duly authorized and validly issued and are fully paid and
non-assessable.
(b) Pledgor is the legal and beneficial owner of the Pledged
Shares, free and clear of any lien, security interest, option or other
charge or encumbrance except for the security interest created by this
Pledge Agreement.
(c) The pledge of the Pledged Shares hereby does not require the
consent of any person, and no filing or registration with, or notice to any
governmental body is necessary for the validity, enforceability or
perfection of such pledge.
5. Further Assurances. Pledgor agrees that at any time and from
time to time, at Pledgor's expense, Pledgor will promptly execute and
deliver all further instruments and documents, and take all further action,
that Lender may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable
Lender to exercise and enforce its rights and remedies hereunder with
respect to the Collateral.
6. Rights on Default.
(a) Remedies. Upon (i) any failure by Pledgor to pay any of the
Obligations within five (5) days of the date when due, (ii) a sale, transfer
or other conveyance of the Collateral or (iii) a breach of this Pledge
Agreement by the Pledgor (a "Default"), Lender may, subject to any necessary
consent by any governmental body, exercise all rights and remedies of a
secured party under the UCC or otherwise by law.
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The proceeds of any sale or other disposition of Collateral shall be applied
in accordance with the provisions of the Note.
(b) Voting. Unless a Default has occurred and is continuing,
Pledgor shall have and retain all right to vote the Pledged Shares which
Pledgor owns at any given time.
7. Miscellaneous.
(a) Notices. All notices and communications under this Pledge
Agreement shall be delivered in accordance with the provisions set forth in
the Note.
(b) Nonwaiver. No failure or delay on Lender's part in
exercising any right hereunder shall operate as a waiver thereof or of any
other right nor shall any single or partial exercise of any such right
preclude any other further exercise thereof or of any other right.
(e) Amendments and Waivers. This Pledge Agreement may not be
amended or modified, nor may any of its terms be waived, except by written
instruments signed by Pledgor and Lender. Each waiver or consent under any
provision hereof shall be effective only in the specific instances for the
purpose for which given.
(d) Binding Effect. This Pledge Agreement shall be binding upon
and inure to the benefit of Lender and Pledgor and their respective
successors and assigns.
(e) Cumulative Rights. The rights, powers and remedies of Lender
under this Pledge Agreement shall be in addition to all rights, powers and
remedies given to Lender by law, or in equity, all of which rights, powers,
and remedies shall be cumulative and may be exercised successively or
concurrently without impairing Lender's rights hereunder.
(f) Partial Invalidity. If any time any provision of this Pledge
Agreement is or becomes illegal, invalid or unenforceable in any respect
under the law or any jurisdiction in any respect, neither the legality,
validity or enforceability of the remaining provisions of this Pledge
Agreement nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or
impaired thereby.
(g) Expenses. Pledgor shall pay on demand all reasonable
out-of-pocket fees and expenses, including reasonable attorneys' fees and
expenses, incurred by Lender in connection with custody, preservation or
sale of, or other realization on, any of the Pledged Shares.
(h) APPLICABLE LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS (BUT NOT THE RULES GOVERNING
CONFLICTS OF LAWS) OF THE STATE OF NEW YORK.
(i) Submission to Jurisdiction; Waivers. (i) The Pledgor hereby
irrevocably submits for himself and his property in any legal action or
proceeding
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relating to this Pledge Agreement, the Note or any other document executed
in connection herewith or therewith to the exclusive jurisdiction of the
state courts located in the city of Buffalo, State of New York, the courts
of the United States of America for the Western District of New York, and
appellate courts from any thereof, Pledgor irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or relating to this Pledge Agreement or any other instruments executed in
connection herewith brought in any such court, and hereby further
irrevocably waives any claims that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
(ii) The Pledgor hereby expressly and unconditionally waives, in
connection with any suit, action or proceeding brought by the Lender on this
Pledge Agreement, the Note or any other document executed in connection
herewith or therewith, any and every right he may have to (i) injunctive
relief, (ii) a trial by jury, (iii) interpose any counterclaim therein and
(iv) have the same consolidated with any other or separate suit, action or
proceeding.
(j) Return of Collateral. Upon satisfaction in full of the
Obligations, Lender shall promptly return to Pledgor the Collateral.
IN WITNESS WHEREOF, Pledgor has caused this Pledge Agreement to be
executed as of the day and year first above written.
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Signature of Pledgor
Xxx Xxxxxx
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Name of Pledgor (Please Print)
ACKNOWLEDGED AND ACCEPTED
CLIENTLOGIC CORPORATION
By:
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Name:
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Title:
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