EXHIBIT 10.24
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made this 4th day of
May 2002, by XXXXXXXX X. XXXXXXXX (the "Obligor") in favor of XXXXXXXX'X, INC.,
a Tennessee corporation (the "Secured Party").
Background
A. Contemporaneously herewith, the Obligor is borrowing
up to $717,000 from the Secured Party pursuant to a Term Note dated the date
hereof (as hereafter amended, modified or supplemented, the "Note").
B. The Obligor is a director, an Executive Vice
President and the Chief Financial Officer of the Secured Party. In order to
secure the Obligor's obligations under the Note, the Obligor has agreed to
pledge and to grant to the Secured Party a security interest in and to (i)
certain marketable securities owned by the Obligor and (ii) all of the shares of
Common Stock of the Secured Party ("Common Stock") and all other securities of
the Secured Party owned or hereafter acquired by the Obligor.
NOW, THEREFORE, the parties hereto, in consideration of the
consummation of the aforementioned loan by the Secured Party to the Obligor, and
intending to be legally bound hereby, agree as follows:
1. Pledge of Collateral.
1.1. Pledge of Stock. To secure the payment of all amounts
due or to become due to the Secured Party under the Note (collectively the
"Indebtedness"), the Obligor hereby pledges to the Secured Party and grants to
the Secured Party a first lien on, and security interest in, the Collateral (as
hereinafter defined). In furtherance of this Agreement, the Obligor has entered
into that certain Collateral Assignment of Brokerage Account with Solomon Xxxxx
Xxxxxx (the "Brokerage Firm") in favor of the Secured Party (the "Collateral
Assignment")
1.2. Designation of Collateral. The term "Collateral" when
used herein shall include (i) marketable securities owned by the Obligor having
a Fair Market Value (as hereinafter defined) as of the date of this Agreement
equal to no less than the principal amount outstanding under the Note and (ii)
any shares of Common Stock and any other securities of the Secured Party now
owned or hereafter acquired by the Obligor, or in which the Obligor now has or
hereafter acquires any beneficial interest, together with any securities,
instruments or distributions of any kind issuable, issued or received upon
conversion of, in respect of, or in exchange or in substitution for any such
Collateral, including, but not limited to, those arising from a stock dividend,
stock split, reclassification, reorganization, merger, consolidation, sale of
assets or other exchange of securities, or any dividends, cash, property or
other distributions of any kind upon, with respect to, or in consequence of the
ownership of, the Collateral. In the event subscriptions, warrants, options or
other rights are issued in connection with any Collateral, such subscriptions,
warrants, options and rights shall be deemed to be part of the Collateral. The
term "Collateral" shall also include any additional Collateral delivered by the
Obligor to the Secured Party pursuant to Section 1.3 hereof. As used in this
Agreement, the term "Fair Market Value" shall mean, as of any date: (i) with
respect to the marketable securities, the
closing price of such marketable securities as reported on the principal
national securities exchange(s) on which such marketable securities are traded
on such date, or if no price for such marketable securities are reported on such
date, the closing price of such securities on the last preceding date on which
there were reported prices for such securities; or (ii) with respect to
marketable securities that are not listed or admitted to unlisted trading
privileges on a national securities exchange, the closing price of such
securities as reported by The Nasdaq Stock Market on such date, or if no price
for such marketable securities are reported on such date, the closing price of
such securities on the last preceding date on which there were reported prices
for such securities; or (iii) with respect to any assets that are not marketable
securities traded on a national securities exchange or on The Nasdaq National
Stock Market, then the Fair Market Value shall be determined by the Secured
Party, acting in its discretion, which determination shall be conclusive.
1.3. Delivery of Initial Collateral and Additional
Collateral. The Obligor has delivered, and by these presents does hereby
deliver, to the Secured Party the certificates representing the Collateral (the
"Certificates"), together with stock powers for the Certificates duly executed
in blank for transfer by the Obligor. The Obligor agrees that upon the
acquisition by the Obligor of any additional securities of the Secured Party
included in the definition of Collateral prior to the termination of this
Agreement, the Obligor shall deliver the Certificates representing such
securities, with stock powers duly endorsed for transfer, to the Secured Party
as additional Collateral to be held by the Secured Party pursuant to the terms
of this Agreement. The Obligor further agrees that, within 10 days after the
Secured Party's written request, he shall deliver additional collateral to the
Secured Party from time to time hereafter to be held pursuant to the terms of
this Agreement to the extent that the Fair Market Value of the Collateral held
by the Secured Party, together with all Collateral pledged pursuant to the
Collateral Assignment, falls below 125% of the principal amount then outstanding
under the Note; provided, however, to to the extent that the additional
collateral consists of marketable securities, the Obligor may subject such
marketable securities to the pledge under the Collateral Assignment though the
Brokerage Firm. Such additional collateral shall be in such form as shall be
reasonably acceptable to the Secured Party.
2. Additional Amounts Secured. In addition to the Obligor's
prompt and full repayment of the Indebtedness, the security interest and pledge
created hereby shall secure reimbursement to the Secured Party for: (i) all
costs and expenses incurred in collection of all amounts due to the Secured
Party from the Obligor, including without limitation, the costs of suit and
attorneys' fees in execution of this Agreement and the Note; (ii) prompt
performance by the Obligor of his obligations under the Note and this Agreement;
and (iii) interest on all of the foregoing at the rates set forth in the Note.
3. Covenants. Until the termination of this Agreement and the
security interest and pledge created hereby:
3.1. The Obligor shall not, nor shall the Obligor permit,
without the prior written consent of the Secured Party, the sale, transfer,
pledge, hypothecation or other encumbrance, or the execution of an agreement
contemplating any of the foregoing for all or any part of the Collateral;
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3.2. The Obligor shall, at the Obligor's expense, defend
the Secured Party's right, title, special property and security interest in and
to the Collateral and the proceeds thereof; and
3.3. In the event any of the Collateral ceases to be
certificated and is held by a financial intermediary in electronic form, the
Obligor agrees promptly to cause such financial intermediary to enter into a
control agreement satisfactory to the Secured Party and do all other acts and
things reasonably required by the Secured Party to perfect and maintain
perfected the security interest and pledge created hereby.
4. Representations and Warranties of the Obligor.
The Obligor hereby makes the following representations and
warranties to the Secured Party:
4.1. Except for the security interest granted pursuant to
Section 1 hereof, all of the Collateral is owned by the Obligor, free and clear
of any and all options, claims, security interests, liens, pledges, encumbrances
and security interests, except that created herein; and
4.2. The execution and delivery of this Agreement, the
consummation of the transactions provided for herein, and the fulfillment of the
terms hereof, will not result in the breach of any of the terms, conditions or
provisions of, or constitute a default under, or conflict with, or cause any
acceleration of any obligation under, any agreement or other instrument to which
the Obligor or the Secured Party is a party or by which either of them is bound,
or any provision of the Charter or Bylaws of the Secured Party, or any judgment,
decree, order or award of any court, governmental body or arbitrator or any
applicable law, rule or regulation.
5. Voting and Distributions Prior to Default.
5.1. Voting. Prior to the occurrence of an Event of
Default hereunder, the Obligor shall have the right to vote the securities
constituting the Collateral owned by him; provided, however, that the Obligor
shall not in any event vote such securities in a manner which would cause or
constitute an Event of Default under this Agreement or under the Note or would
otherwise be inconsistent with any of the terms, conditions or provisions of
this Agreement or the Note.
5.2. Distributions. Prior to the occurrence of an Event of
Default, the Obligor shall be entitled to receive directly from the Secured
Party all dividends, property and cash distributions with respect to, or in
consequence of the ownership of, the Collateral.
6. Default
6.1. Events of Default. There shall be an "Event of
Default" for purposes of this Agreement if: (i) any "event of default" (as
defined therein) shall have occurred and be continuing under the Note; or (ii)
the Obligor shall fail to observe any agreement, condition, undertaking, or
covenant in this Agreement.
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6.2. Consequences of Default. Upon the occurrence of an
Event of Default, and until the termination of this Agreement:
6.2.1. The Secured Party may notify the Obligor of
the occurrence of such Event of Default;
6.2.2. The Secured Party shall be entitled to
receive and apply in payment of amounts payable by the Obligor under the Note
all dividends, property and cash distributions with respect to, or in
consequence of the ownership of, the Collateral;
6.2.3. The Secured Party shall be entitled and
authorized to exercise in its discretion all voting rights, if any, pertaining
to the Collateral and in connection therewith, which authorization herein
granted shall be deemed an irrevocable power coupled with an interest;
6.2.4. The Obligor shall take any action necessary
or required or requested by the Secured Party, in order to allow the Secured
Party fully to enforce the pledge of the security interest in and to the
Collateral hereunder and realize thereon to the fullest possible extent,
including but not limited to the filing of any claims with any court, liquidator
or trustee, custodian, receiver or other like person or party and the execution
of any dividend, payment or brokerage orders or proxies; and
6.2.5. The Secured Party shall have all the rights
and remedies granted or available to it hereunder, under the Uniform Commercial
Code as in effect from time to time, under any other statute or the common law,
or under the Note, including the right to sell the Collateral or any portion
thereof at one or more public or private sales upon twenty (20) days' written
notice and to bid thereat or purchase any part or all thereof in its own or a
nominee's or nominees' names, free and clear of any equity of redemption; and to
apply the net proceeds of the sale, after deduction for any expenses of sale,
including the payment of all the Secured Party's reasonable attorneys' fees in
connection with the Indebtedness and the sale, to the payment of the
Indebtedness in any manner or order which the Secured Party in its sole
discretion may elect, without further notice to or consent of the Obligor and
without regard to any equitable principles of marshalling or other like
equitable doctrines. To the extent that the proceeds of such sale are
insufficient to satisfy all of the Indebtedness, the Obligor shall remain liable
for the amount of such deficiency.
7. Delay, Non-Waiver and Exclusive Remedies.
7.1. Non-Exclusive Remedies. No remedy or right herein
conferred upon or reserved to the Secured Party is intended to be to the
exclusion of any other remedy or right, but each and every such remedy or right
shall be cumulative, and shall be in addition to every other remedy or right
given hereunder, and now or hereafter existing at law or in equity.
7.2. Delay and Non-Waiver. No delay or omission by the
Secured Party to exercise any remedy or right accruing upon an Event of Default
shall impair any such remedy or right, or shall be construed to be a waiver of
any such Event of Default, or an acquiescence therein, nor shall it affect any
subsequent Event of Default of the same, or a different nature.
8. Indemnification. The Obligor shall defend, indemnify, and hold
harmless Secured
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Party from and against any loss, liability, damage, or expense which the Secured
Party may incur as a result of the taking, holding, and/or disposing of the
Collateral and the Certificates, unless such loss, liability, damage, or expense
was caused by the gross negligence or willful misconduct of the Secured Party or
its agents.
9. Rights Retained by the Obligor. So long as no Event of Default
shall have occurred and be continuing hereunder or under the Note, the Obligor
shall retain and may exercise all rights of or incident to the ownership of the
Collateral.
10. Termination. This Agreement and the security interests and
pledge created hereby shall terminate on the payment in full by the Obligor of
all of the Indebtedness. Upon termination, the Secured Party shall forthwith
deliver to the Obligor the Certificates, with the stock powers therefor,
delivered by the Obligor to the Secured Party.
11. Strict Enforcement. The Secured Party shall at all times have
the right to enforce the provisions of this Agreement in strict accordance with
the terms hereof, notwithstanding any conduct or custom to the contrary. The
failure of the Secured Party at any time to enforce its rights hereunder shall
not be construed as having created a custom contrary to the provisions of this
Agreement, as having modified in any manner the terms hereof, or as having
prevented the Secured Party from thereafter enforcing strict compliance. All
rights and remedies of the Secured Party are cumulative and concurrent and the
exercise of one right or remedy shall not be deemed a waiver or release of any
other right or remedy.
12. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and supersedes all prior and contemporaneous agreements and
understandings, oral and written, with respect thereto.
13. Modification. This Agreement may be modified or amended only
by means of a writing signed by the party against whom such modification or
amendment is sought to be enforced.
14. Severability; Governing Law. If any provision of this
Agreement shall be determined to be illegal and unenforceable by any court of
law, the remaining provisions shall be severable and enforceable in accordance
with their terms. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Tennessee.
15. Benefits of Agreement. This Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors and assigns.
16. Counterparts. This Agreement may be signed in any number of
counterparts and by different parties on different counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original,
and all of which counterparts, taken together shall constitute but one and the
same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SECURED PARTY
XXXXXXXX'X, INC.
By: /s/ Xxxxxx. X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer and
President
OBLIGOR
/s/ Xxxxxxxx X. Xxxxxxxx
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XXXXXXXX X. XXXXXXXX
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