NOTE AND PLEDGE AGREEMENT
NOTE AND PLEDGE AGREEMENT (the "Note and Pledge Agreement"), dated as
of April 15, 2002, between Xxxxxxx Xxxxxxx (the "Maker") and THE MED-DESIGN
CORPORATION (the "Payee").
PRELIMINARY STATEMENT
The Payee is making a loan (the "Loan") to the Maker and the Maker is
delivering this Note and Pledge Agreement to the Payee, whereby the Maker
promises, among other things, to pay the principal amount of $250,000.00 (the
"Note") in repayment of the Loan and to pledge to the Payee the 66,666 shares of
the Payee's common stock to be issued by the Payee to the Maker on August 6,
2003, to secure the payment of the Loan (the "Pledge"). Under the terms of the
Pledge, the Payee shall hold the Pledged Securities (as defined below), when
issued, until released upon payment of all Obligations (as defined below).
WITNESSETH:
NOW, THEREFORE, to induce the Payee to make a loan under this Note and
Pledge Agreement and in consideration of the mutual covenants contained herein,
the parties hereto, each intending to be legally bound hereby, covenant and
agree as follows:
A. Promissory Note.
1. Terms. FOR VALUE RECEIVED, and intending to be legally bound, the Maker
hereby promises to pay, in lawful money of the United States of America, without
demand, defalcation, set off or deduction, to the order of the Payee, at the
address of the Payee's executive offices, or at such other place as the holder
hereof shall from time to time designate in writing, the principal amount of
$250,000.00. Interest shall accrue on the unpaid principal balance hereof until
paid at the annual rate of 16%, calculated on the basis of a 360-day year
consisting of twelve 30-day months; provided that, from and after the occurrence
of an Event of Default (as defined below), interest shall accrue on the unpaid
principal balance hereof at the annual rate of 18%. Notwithstanding the
foregoing, upon issuance of the Pledged Securities (as defined below) and
perfection of the Payee's security interest in the Pledged Securities, interest
shall accrue on the unpaid principal balance hereof until paid at the Prime Rate
plus 1%, calculated on the basis of a 360-day year consisting of twelve 30-day
months; provided that, from and after the occurrence of an Event of Default that
occurs after the issuance of the Pledged Securities, interest shall accrue on
the unpaid principal balance hereof at the Prime Rate plus 3%. The Prime Rate in
effect on the first business day of each calendar quarter shall apply to the
amount of the unpaid obligation during such calendar quarter. The "Prime Rate"
shall mean the prime lending rate as announced from time to time in The Wall
Street Journal. The Maker shall pay all accrued but unpaid interest hereunder on
April 15, 2003, and if not paid when due, such accrued interest shall be added
to the principal balance of this Note.
The Obligations under this Note and Pledge Agreement are full recourse
to the Maker and are not limited to recourse to the Pledged Securities.
If not sooner demanded or paid, the outstanding principal amount,
together with accrued interest thereon, shall be immediately due and payable on
the first to occur of (i) April 15, 2004, (ii) the date on which the Maker
ceases to be an employee, member of the Board of Directors or consultant of the
Payee for any reason, (iii) the date on which the Payee provides the Maker
notice that the closing price of the Payee's common stock as reported on the
Nasdaq National Market has been $30.00 or higher for 20 consecutive trading
days, or (iv) the date on which the Maker sells or transfers, or agrees to sell
or transfer, any of the Pledged Securities (the earliest of such dates being
referred to herein as the "Maturity Date").
This Note may be prepaid in whole or in part at any time without
penalty or premium. Partial prepayments shall be applied to installments due
hereunder in the same order as such installments become due.
2. Default.
(a) The Maker shall be in default hereunder upon the occurrence of any of the
following events (each an "Event of Default"): (i) if the Maker fails to pay the
principal or interest or any other sum due hereunder on the applicable due date
therefor; (ii) if the Maker shall (A) apply for or consent to the appointment of
a receiver, custodian, trustee or liquidator of himself or of all or a
substantial part of his property, (B) make a general assignment for the benefit
of his creditors, (C) commence a voluntary case under the Federal Bankruptcy
Code (as now or hereafter in effect), (D) file a petition seeking to take
advantage of any other law providing for the relief of debtors, (E) fail to
controvert in a timely or appropriate manner within 60 days, or acquiesce in
writing to, any petition filed against the Maker in any involuntary case under
such Bankruptcy Code, or (F) take any action for the purpose of effecting any of
the foregoing; (iii) if there shall be a default under the Pledge; (iv) if any
representation, warranty or statement made by or on behalf of the Maker to the
Payee in this Agreement is untrue in any material respect when made; or (v) if
the Maker fails to deliver a copy of his 2001 federal and state tax returns and
a completed financial information questionnaire substantially in the form of
Exhibit A attached hereto by April 23, 2002.
(b) Upon the occurrence of an Event of Default, which shall be continuing,
the balance of principal of and all accrued interest upon this Note shall become
immediately due and payable without any action or notice of any kind on the part
of any holder of this Note.
(c) The Maker shall pay on demand all costs of collection, including without
limitation reasonable attorneys' fees, incurred by the holder hereof with
respect to any default by the Maker hereunder. Such amounts, until paid by the
Maker, shall be added to the principal hereof, bear interest at the rate set
forth in Section A.1. above and be secured by the Pledge.
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B. Pledge Agreement.
1. Pledge of Stock. As collateral security for the punctual payment and
performance of all existing and future indebtedness, obligations and other
liabilities, absolute or contingent, direct or indirect, primary or secondary,
of the Maker to the Payee of any nature whatsoever under this Note and Pledge
Agreement (all of such indebtedness, obligations and liabilities of the Maker
being hereinafter sometimes referred to collectively as the "Obligations"), the
Maker hereby pledges and hypothecates to the Payee for its benefit and grants to
the Payee for its benefit, and agrees that the Payee shall have a first security
interest in and pledge of: (i) the 66,666 shares of the Payee's common stock to
be issued by the Payee to the Maker on August 6, 2003 (the "Pledged
Securities"), together with any replacements thereof and substitutions therefor,
and all certificates and instruments evidencing or representing such securities,
(ii) all interest and dividends, whether in cash, kind or stock, received or
receivable upon or in respect of any of the Pledged Securities and all moneys or
other property payable or paid on account of any return or repayment of capital
in respect of any of the Pledged Securities or otherwise distributed in respect
thereof or which will in any way be charged to, or payable or paid out of, the
capital of the Payee on account of the Pledged Securities, (iii) all other
property that may at any time be received or receivable by or otherwise
distributed to the Maker in respect of, or in substitution for, or in exchange
for, any of the foregoing, (iv) all cash, securities and other proceeds of the
foregoing and all rights and interests of the Maker in respect thereof or
evidenced thereby, including all moneys received from time to time by the Maker
which are directly attributable to the sale or other disposition of any of the
Pledged Securities; provided, however, that the Maker will not sell or otherwise
dispose of any of the Pledged Securities, or purport to do any of the foregoing
without the prior written consent of the Payee in accordance with Section C.6.
below.
2. Reservation of Voting Rights. Upon the occurrence of an Event of Default
that shall be continuing, the Payee shall be entitled to exercise any and all
voting power with respect to the Pledged Securities. At all other times, the
Maker shall be entitled to exercise as he deems appropriate, but in a manner
consistent with the provisions of this Note and Pledge Agreement, all voting
power with respect to the Pledged Securities.
3. Delivery of Pledged Securities. The certificates representing the Pledged
Securities duly endorsed by the Maker in blank for transfer or accompanied by
stock powers of attorney satisfactory to the Payee will be delivered to and
remain in the custody of the Payee when issued.
4. Representations and Warranties. As of the date of this Note and Pledge
Agreement, the Maker represents and warrants to the Payee that:
(a) Title, No Other Security Interests. Except for (i) the security
interests created by this Note and Pledge Agreement and (ii) any other security
interests permitted in writing by the Payee, the Maker will own the Pledged
Securities, when issued, free and clear of any security interests. No security
agreement, financing statement or other notice with respect to any or all of the
Pledged Securities is on file or on record in any public office, except for
filings in favor of, or permitted in writing by, the Payee.
(b) Authority; Consents. Except as expressly permitted by the other party
to any agreement, instrument or restriction, the execution, delivery and
performance of this Note and Pledge Agreement does not contravene any agreement,
instrument or restriction to which the Maker is a party or by which the Maker or
any of the Pledged Securities is bound. Except for any consent that has been
obtained and is in full force and effect, no consent of any person is required,
or purports to be required, for the execution, delivery and performance of this
Note and Pledge Agreement.
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5. Remedies. Upon the occurrence of an Event of Default that shall be
continuing, the Payee shall have the right at any time and from time to time to
take such actions as it deems appropriate with respect to the Pledged
Securities. The Maker hereby agrees that, upon any sale of the Pledged
Securities by the Payee, any and all equity and right of redemption shall be
automatically waived and released without any further action on the part of the
Maker. The Maker agrees that any proceeds of sale paid by any purchaser of the
Pledged Securities to the Payee (after application of such proceeds to the
payment of all costs and expenses for sale or delivery, including reasonable
compensation to the agents and attorneys of the Payee, and all other expenses,
liabilities and advances made or incurred by the Payee in connection therewith)
shall be applied to the payment of the Obligations under this Note and Pledge
Agreement, in such order as the Payee may deem fit, and the Maker shall remain
liable for any deficiency. Any balance remaining after payment in full of the
Obligations shall be paid over to the Maker.
6. Certain Restrictions on Sale by Payee. If at any time when the Payee shall
determine to exercise its rights to sell all or any part of the Pledged
Securities pursuant to Section B.5. hereof and if the Pledged Securities have
not been registered, the Payee, in its sole discretion, is hereby expressly
authorized to sell such Pledged Securities or such part thereof by private sale
in such manner and under such circumstances as the Payee may deem necessary or
advisable in order that such sale may legally be effected without such
registration.
7. Right to Execute Endorsements. Upon the occurrence of any Event of
Default, the Payee shall have the right, for and in the name, place and stead of
the Maker and acting as its attorney-in-fact if necessary, to execute
endorsements, assignments and other instruments of conveyance or transfer with
respect to all or any of the Pledged Securities whenever any such execution is
required or permitted hereunder.
C. Remedies, Termination, Waiver and Miscellaneous.
1. Remedies Cumulative; Indemnities, etc. The rights, powers and remedies
provided herein in favor of the Payee shall not be deemed exclusive, but shall
be cumulative, and shall be in addition to all other rights and remedies in
favor of the Payee existing at law or in equity, including without limitation
all of the rights, powers and remedies available to a secured creditor under the
Uniform Commercial Code as in effect in Pennsylvania or any other appropriate
jurisdiction, and may be exercised concurrently, independently or successively
by the holder hereof in such holder's discretion. The Maker shall indemnify and
save harmless the Payee from and against any and all liabilities, losses and
damages that the Payee may incur in the exercise or performance of any of its or
their rights, powers or remedies set forth herein, provided, however, that the
Maker shall have no obligation to indemnify any such indemnitee against any
liability, loss or damage resulting from such indemnitee's own gross negligence
or bad faith.
2. Waivers; Amendments. No delay on the part of the Payee in exercising any
of its options, powers or rights, and no partial or single exercise thereof,
shall constitute a waiver thereof or of any other option, power or right. The
Payee shall not be deemed by any act or omission to have waived any such right
or remedy or any default by the Maker hereunder or under the Pledge unless such
waiver is in writing and signed by the holder, and then only to the extent
specifically set forth in the writing. Any such waiver shall not be construed as
a continuing waiver or as a bar to or waiver of any right or remedy with respect
to any other default by the Maker. None of the terms and conditions of this Note
and Pledge Agreement may be amended, modified or waived orally but only in a
writing signed by the Payee and the Maker.
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3. Return of Collateral. Upon the full payment and performance of all of the
Obligations, this Note and Pledge Agreement shall expire and the Maker (except
to the extent otherwise contemplated hereby) shall be entitled to the return of
all of the Pledged Securities and other property and cash held in pledge
hereunder that have not been used or applied to the payment of the Obligations.
4. Further Assurances; Immunities, etc. With respect to the Pledged
Securities and any security interest of the Payee, the Maker shall take all such
actions and file, record, make, execute and deliver all such deeds, things,
notices and instruments as may be necessary or desirable in the opinion of the
Payee in order to vest more fully in and assure to the Payee the security
interest in the Pledged Securities created hereby or intended so to be and the
enforcement and realization of all of the benefits of the rights, remedies and
powers of the Payee hereunder relating to the Pledged Securities.
5. Limitations on Other Security Interests. The Maker will not create, incur
or permit to exist, and will defend the Pledged Securities against, and will
take such other action as is necessary to remove, any and all security interests
on and claims in respect of the Pledged Securities other than the security
interests created by this Note and Pledge Agreement, or those permitted in
writing by the Maker (collectively, the "Permitted Liens"), and the Maker will
defend the right, title and interest of the Payee in and to the Pledged
Securities against the claims and demands of all persons other than those
holding Permitted Liens.
6. Limitations on Dispositions of Collateral. The Maker will not, without the
Payee's prior written consent, sell or otherwise dispose of any of the Pledged
Securities.
7. Transfers of Interest . Upon any assignment or other transfer by the Payee
of any of the Obligations, the Payee may transfer its interest in the Pledged
Securities, or any part thereof, to the assignee or transferee, who shall
thereupon become vested with all the rights, remedies, powers, security
interests and liens herein granted to the Payee in respect of the Pledged
Securities or the transferred part thereof, subject, however, to the
restrictions contained herein.
8. Expenses. The Pledged Securities secure, and the Maker shall pay on
demand, all reasonable expenses (including but not limited to reasonable
attorneys' fees and costs for legal services, costs of insurance and payments of
taxes or other charges) of, or incidental to, the custody, care, sale or
realization on any of the Pledged Securities or in any way relating to the
enforcement or protection of the rights of the Payee hereunder.
9. Notices. All notices, requests, demands, directions, declarations and
other communications provided for herein shall be in writing and shall be deemed
effectively given (a) upon personal delivery to the party to be notified, (b)
three days after notice shall be deposited with the United States Post Office,
by registered or certified mail, postage prepaid and addressed to the party to
be notified (i) if to the Maker, at the address set forth below, and (ii) if to
the Payee, at the address designated for payments hereunder from time to time,
or (c) upon confirmation that notice shall have been received by fax at the fax
number specified for such party with its address. Any party may change its
address or fax number for notice purposes by giving advance notice hereunder to
the other party in accordance with this Section C.9.
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10. Governing Law; Consent to Jurisdiction, etc. This Note and Pledge
Agreement and the rights and obligations of the parties hereunder shall be
governed by and construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania. The Maker and the Payee hereby consent to the
jurisdiction of the courts of the State of Pennsylvania in any action or
proceeding that may be brought against the Maker or the Payee under or in
connection with this Note and Pledge Agreement or any of the transactions
contemplated hereby or to enforce any undertaking contained herein. Service of
process in any such action or proceeding may be duly effected upon the Maker or
the Payee by service in accordance with the provisions of the Uniform Interstate
and International Procedure Act as in effect in Pennsylvania.
11. Certain Waivers; Integration, etc.
(a) The Maker waives presentment for payment, demand, notice of
nonpayment, notice of protest, protest and notice of dishonor of this Note, and
all other notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Note and Pledge Agreement.
(b) The Maker hereby waives any and all present and future laws and rules
of court exempting any of the Pledged Securities or any other property, real or
personal, or any of the proceeds arising from any sale of such property, from
attachment, levy, sale or execution, or providing for any stay of execution,
appraisement, exemption from civil process or extension of time for payment.
(c) This instrument states the entire agreement of the parties concerning
the subject matter hereof, and it is acknowledged that there are no customs,
usages, representations, or assurances referring to the subject matter, and no
inducements leading to the execution or delivery hereof, other than those
expressed herein.
12. Miscellaneous. This Note and Pledge Agreement shall bind and inure to the
benefit of the Maker and the Payee and their respective heirs, executors,
administrators, personal representatives, successors and assigns, except that
the Maker shall not have the right to assign any of the Maker's rights hereunder
or interests herein without the written consent of the Payee. No persons other
than the Maker and the Payee and the respective assignees of the Payee
(including any creditors of Payee to which the Payee may assign its rights
hereunder) are intended to be benefitted hereby or shall have any rights
hereunder, as third-party beneficiaries or otherwise. The Maker acknowledges
that this Note and Pledge Agreement and the obligations of the Maker hereunder
and the security interest created or intended to be created hereby have
constituted, and were intended by the Maker to constitute, a material inducement
to the Payee to enter into this Note and Pledge Agreement and make the loan
contemplated hereby, knowing that the Payee will rely upon this Agreement. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and all such counterparts shall together constitute but one
and the same instrument. Any provision of this Note and Pledge Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without affecting the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of such provision
in any other jurisdiction. Words of any gender herein shall include any other
genders, and the singular shall include the plural and vice versa, whenever the
same is necessary to produce a fair and meaningful construction. The term
"Payee" shall apply equally to the initial Payee specified above and to any
holder to which this Note may be assigned.
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IN WITNESS WHEREOF, the Maker has executed this Note and Pledge
Agreement and intending to be legally bound as of the day and year first written
above.
MAKER
_______________________________________
Xxxxxxx Xxxxxxx
PAYEE
THE MED-DESIGN CORPORATION
By:____________________________________
Name:
Title:
[Signature Page to Note and Pledge Agreement]
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