EXHIBIT 10.23
STOCK PLEDGE AGREEMENT
AGREEMENT, made as of June 28, 1996, between Xxxxxxxx Xxxxx, an
individual residing at the address set forth at the foot of this Agreement, (the
"PLEDGOR"), and Frontier Software Development, Inc., a Delaware corporation (the
"Pledgee").
1. CERTAIN DEFINITIONS.
a. The term "PLEDGED SHARES" as used herein means the number of
shares (as determined from time to time as provided herein)
of Voting Common Stock, par value $0.001 per share, of
Frontier Software Development, Inc. (the "COMPANY"). The
Pledged Shares shall initially be those shares represented
by the following stock certificate of the Company:
Certificate No. VC-11 for 116,130 shares.
b. The term "OBLIGATIONS" as used herein means all
indebtedness, obligations and liabilities of the Pledgor to
the Pledgee, now existing or hereafter arising, direct or
indirect, absolute or contingent, due or to become due,
matured or unmatured, liquidated or unliquidated, arising
under Pledgor's Secured Term Note (Partially Nonrecourse)
dated the date hereof in the principal amount of
US$900,000.00 payable to the order of Pledgee (the "NOTE"),
as from time to time amended, revised or assigned.
c. The term "COLLATERAL" as used herein means the Pledged
Shares and any other property at any time, whether now or
hereafter, pledged with and from time to time held by the
Pledgee hereunder (whether described herein or not) and all
income therefrom, increases therein and proceeds thereof.
d. The term "EVENT OF DEFAULT" shall mean Pledgor's failure to
pay any and all amounts due under the Note, an event of
default pursuant to the terms of any of the documents or
instruments evidencing any of the Obligations or the breach
of a covenant or agreement herein contained.
2. SECURITY FOR OBLIGATIONS. This Agreement and the pledge of the
Collateral hereunder is made with the Pledgee as security for the
Obligations.
3. PLEDGE OF STOCK. For valuable consideration, receipt of which is
hereby acknowledged by the Pledgor, the Pledgor hereby grants a
security interest in and pledges, assigns and delivers the
Pledged Shares to the Pledgee, to be held by the Pledgee subject
to the terms and conditions hereinafter set forth. All of the
Pledged Shares, accompanied by a stock power and assignment duly
executed in blank by the Pledgor, have been delivered to the
Pledgee by the Pledgor.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR.
a. CAPITALIZATION, ETC., OF THE COMPANY. The Pledgor represents
and warrants that the Pledged Shares are fully paid and
non-assessable.
b. WARRANTY OF TITLE, ETC. The Pledgor warrants that:
(i) he has good and marketable title to the Pledged Shares,
subject to no pledges, liens, charges, options,
restrictions or other encumbrances except the lien of
this Agreement, applicable securities laws restrictions
and restrictions arising under or described in the
investment documentation relating to the issuance of
the Company's Series A Preferred Stock;
(ii) he has the full right and power to enter into this
Agreement, to execute in blank stock powers and
assignments covering the Pledged Shares, and to deliver
the Pledged Shares in pledge hereunder and the
accompanying stock powers and assignments duly executed
in blank by the Pledgor, and to take any actions
contemplated or permitted by this Agreement to be taken
by him, and pursuant to this Agreement the Pledgee has
a valid, perfected, first priority security interest in
the Collateral in accordance with the terms hereof;
(iii) neither this Agreement, nor the pledge of the Pledged
Shares hereunder, will violate any agreement or
commitment to which the Pledgor is a party or by which
Pledgor or any of Pledgor's property is bound or
affected; and
(iv) this Agreement is binding upon the Pledgor, his
successors and assigns.
c. GENERAL COVENANTS. The Pledgor covenants that he will defend
the Pledgee's rights and security interest hereunder in the
Pledged Shares and against the claims and demands of all
persons whomsoever, and that the Pledgor will have the like
title to and right to pledge the Collateral and will
likewise defend the Pledgee's rights and security interests
therein.
5. DIVIDENDS, LIQUIDATION, RECAPITALIZATION, ETC. In case any distribution of
capital or stock dividend shall be made on or in respect of any of the
Pledged Shares or payment of any dividend in cash or other property shall
be made in respect of the Pledged Shares, or any money or property shall
otherwise be distributed upon or with respect to any of the Pledged Shares,
including pursuant to a recapitalization or reclassification of the capital
stock of the Company or pursuant to a reorganization or liquidation or
dissolution of the Company, then the capital stock, dividend, principal,
interest or other money or property so distributed with respect to the
Pledged Shares shall be delivered to the Pledgee to be held by it as part
of the Collateral and as security for the Obligations. All capital stock,
dividends, principal, interest and other sums of money and property, if
any, paid or distributed in respect of the Pledged Shares, which are
received by the Pledgor shall, until
2
paid or delivered to the Pledgee, be held in trust for the Pledgee as part
of the Collateral and as security for the Obligations.
6. VOTING, ETC., PRIOR TO MATURITY. Unless and until an Event of Default
shall have occurred and be continuing, and until notice of such Event of
Default has been given by the Pledgee, the Pledgor shall be entitled to
vote the Pledged Shares and to give consents, waivers and ratifications,
in respect of the Pledged Shares; PROVIDED, HOWEVER, that no vote shall
be cast, or consent, waiver or ratification given or action taken which
would be inconsistent with or violate any provisions of any of the
documents or instruments evidencing any of the Obligations or of this
Agreement. Until the occurrence of an Event of Default, the Pledgee
shall execute and deliver to the Pledgor such proxies or other documents
in writing as may be necessary to enable the Pledgor to exercise the
foregoing rights. All such rights of the Pledgor to vote and give
consents, waivers and ratifications shall cease forthwith in case an
Event of Default shall have occurred and be continuing, without any
notice (except as provided in this Section 6) or demand by the Pledgee
to the Pledgor.
7. REMEDIES. If an Event of Default shall have occurred and be continuing, the
Pledgee shall thereafter have the following rights and remedies (to the
extent permitted by applicable law) in addition to the rights and remedies
of a secured party under the Uniform Commercial Code of The Commonwealth of
Massachusetts, all such rights and remedies being cumulative, not
exclusive, and enforceable alternatively, successively or concurrently, at
such time or times as the Pledgee deems expedient:
a. The Pledgee may vote any or all of the Pledged Shares (whether or not
the same shall have been transferred into its name or the name of its
nominee or nominees) and give all consents, waivers and ratifications
in respect of the Pledged Shares and otherwise act with respect
thereto as though it were the outright owner thereof (the Pledgor
hereby irrevocably constituting and appointing the Pledgee the proxy
and attorney in-fact of the Pledgor, with full power of substitution,
to do so);
b. The Pledgee may demand, xxx for, collect or make any compromise or
settlement the Pledgee deems suitable in respect of any Collateral
held by it hereunder;
c. The Pledgee may sell, resell, assign and deliver, or otherwise dispose
of any or all of the-Collateral, for cash and/or credit and upon such
terms, at such place or places and at such time or times and to such
persons, firms, companies or corporations as the Pledgee deems
expedient, all following demand for performance by and upon notice to
the Pledgor; and
d. The Pledgee may cause all or any part of the Pledged Shares held by it
to be transferred into its name or the name of its nominee or
nominees.
3
If any of the Collateral is sold by the Pledgee upon credit or for future
delivery, the Pledgee shall not be liable for the failure of the
purchaser to pay for the same and in such event the Pledgee may resell
such Collateral.
The Pledgee may buy any part or all of the Collateral at any public sale
and if any part or all of the Collateral is of a type customarily sold
in a recognized market or is of the type which is the subject of
widely-distributed standard price quotations, the Pledgee may, in its
sole discretion, buy at private sale and may make payments therefor by
any means including, without limitation, cancellation of indebtedness
secured thereby.
The Pledgee may, in its sole discretion, apply the cash proceeds
actually received from any sale or other disposition to the
reasonable expenses of retaking, holding, preparing for sale,
selling and the like, to reasonable attorneys' fees, and all legal
expenses, travel and other expenses which may be incurred by the
Pledgee in attempting to collect the Obligations or to enforce this
Agreement or any instrument evidencing the Obligations or in the
prosecution or defense of any action or proceeding related to the
subject matter of this Agreement or any instrument evidencing the
Obligations, and then to the Obligations with respect to principal or
interest, or both, or other fees and expenses, in such proportions
as the Pledgee, in its sole discretion, shall determine, and any
surplus shall be paid to the Pledgor.
The Pledgor recognizes that the Pledgee may be unable to effect a public
sale of the Pledged Shares by reason of certain prohibitions contained
in the United States Securities Act of 1933, as amended, or in other
applicable laws, regulations or agreements to which such Pledged Shares
may be subject but may be compelled to resort to one or more private
sales thereof to a restricted group of purchasers. The Pledgor agrees that
any such private sales may be at prices and other terms less favorable to
the seller than if sold at public sales and that such private sales
shall be deemed to have been made in a commercially reasonable manner. The
Pledgee shall be under no obligation to delay a sale of any of the Pledged
Shares for the period of time necessary to permit the issuer of such
securities to register such securities for public sale under the said
Securities Act or other applicable law, even if the issuer would agree to
do so.
8. MARSHALING. The Pledgee shall not be required to marshal any present or
future security for (including but not limited to this Agreement
and the Collateral pledged hereunder), or guaranties of, the Obligations or
any of them, or to resort to such security or guaranties in any particular
order; and all of the rights hereunder and in respect of such securities
and guaranties shall be cumulative and in addition to all other rights,
however existing or arising to the extent that it lawfully may, the Pledgor
hereby agrees that it will not invoke any law relating to the marshaling of
collateral which might cause delay in or impede the enforcement of the
Pledgee's rights under this Agreement or under any other instrument
evidencing any of the Obligations or under which any of the Obligations is
outstanding or by which any of the Obligations is secured or guaranteed,
and to the extent that it lawfully may the Pledgor hereby irrevocably
waives the benefits of all such laws.
4
9. PLEDGOR'S OBLIGATIONS NOT AFFECTED. The obligations of the Pledgor
hereunder shall remain in full force and effect without regard to, and
shall not be impaired by (a) any bankruptcy, insolvency, arrangement,
readjustment, composition or the like of the Pledgor; (b) any exercise or
non-exercise, or any waiver, by the Pledgee of any right, remedy, power or
privilege under or in respect of any of the Obligations or any security
therefor (including this Agreement); (c) any amendment to or modification
of any of the Obligations; (d) any amendment to or modification of any
instrument (other than this Agreement) evidencing or securing or
guaranteeing any of the Obligations; or (e) the taking of additional
security for, or any guaranty of, any of the Obligations or the release or
discharge or termination of any security or guaranty for any of the
Obligations; whether or not the Pledgor shall have notice or knowledge of
any of the foregoing.
10. FURTHER ASSURANCES. The Pledgor will do all such acts, and will furnish to
the Pledgee all such financing statements, certificates, legal opinions and
other documents and will obtain such governmental consents and approvals
and will do or cause to be done all such other things, including without
limitation the execution and delivery of further agreements and
instruments, as the Pledgee may reasonably request from time to time in
order to give full effect to this Agreement and to secure the rights of the
Pledgee hereunder.
11. PLEDGEE'S EXONERATION. Under no circumstances shall the Pledgee be deemed
to assume any responsibility for or obligation or duty with respect to any
part or all of the Collateral of any nature or kind, or any matter or
proceedings arising out of or relating thereto, but the same shall be at
the Pledgor's sole risk at all times. The Pledgee shall not be required to
take any action of any kind to collect, preserve or protect its or the
Pledgor's rights in the Collateral or against other parties thereto. The
Pledgee's prior recourse to any part or all of the Collateral shall not
constitute a condition of any demand, suit or proceeding for payment or
collection of the Obligations.
12. NO WAIVER, ETC. No act, failure or delay by the Pledgee shall constitute a
waiver of its rights and remedies hereunder or otherwise. No single or
partial waiver by the Pledgee of any default or right or remedy which it
may have shall operate a waiver of any other default, right or remedy or of
the same default, night or remedy on a future occasion. The Pledgor hereby
waives presentment, notice of dishonor and protest of all instruments,
included in or evidencing any of the Obligations or the Collateral, and any
and all other notices and demands whatsoever (except as expressly provided
herein).
13. NOTICES, ETC. All notices, requests and other communications hereunder
shall be in writing and shall be delivered in hand or by telex or telecopy
or where telex or telecopy communication is not possible, by mail, return
receipt requested, or by a nationally known overnight courier service
addressed as follows:
a. If to the Pledgor:
To the address set forth at the foot of this agreement
5
with a copy to such person or persons as Pledgor may designate from
time to time
b. If to the Pledgee:
Frontier Software Development, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
with a copy to such person or persons as Pledgee may designate from
time to time
or to such other address as the party to receive any such
communication or notice may have designated by written notice to the
other party from time to time.
14. TERMINATION. Upon payment and performance in full of the Obligations in
accordance with their terms and the performance by the Pledgor of all of
his covenants and agreements hereunder, this Agreement shall terminate and
the Pledgor shall be entitled to the return, at the Pledgor's expense, of
such of the Collateral in the possession or control of the Pledgee as has
not theretofore been disposed of pursuant to the provisions hereof,
together with any moneys and other property at the time held by the Pledgee
hereunder.
15. MISCELLANEOUS PROVISIONS. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated except by a written
instrument expressly referring to this Agreement and to the provisions
so modified or limited, and executed by the party to be charged
therewith. This Agreement and all obligations of the Pledgor hereunder
shall be binding upon the successors and assigns of the Pledgor, and
shall, together with the rights and remedies of the Pledgee hereunder,
inure to the benefit of the Pledgee and the Pledgee's successors and
assigns. This Agreement and the obligations of the Pledgor hereunder
shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts. The descriptive section headings herein
have been inserted for convenience of reference only and do not define
or limit the provisions hereof. If any terms of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity of all other
terms hereof shall be in no way affected thereby, and this Agreement
shall be construed and be enforceable as if such invalid, illegal or
unenforceable term had not been included herein. The Pledgor
acknowledges receipt of a copy of this Agreement. Terms used herein
without definition which are defined in the Uniform Commercial Code of
The Commonwealth of Massachusetts have such defined meanings herein,
unless the context otherwise indicate or requires.
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Agreement to be duly executed, as an instrument under seal, as of the date first
above written.
6
PLEDGOR:
/s/ Xxxxxxxx Xxxxx
-----------------------------------------
Xxxxxxxx Xxxxx
-----------------------------------------
Address: 00 Xxxxxx Xxxx
-------------------------------
Xxxxxxxxxx, XX 00000
-------------------------------
PLEDGEE:
FRONTIER SOFTWARE DEVELOPMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: VP Finance
------------
7
