EXHIBIT 10(FF)
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into this 15
day of July, 1995, by and between CompuCom Systems, Inc., a Delaware corporation
("Seller"), and Xxxxx X. Xxxxx ("Purchaser").
WHEREAS, Purchaser is the Chairman of the Board of Seller and has
assisted in the growth and development of ClientLink, Inc., a Delaware
corporation (the "Company") of which Seller owns in excess of the majority of
the issued and outstanding Common Stock;
WHEREAS, Seller desires that Purchaser continue to assist the Company
with its future growth and development;
WHEREAS, in connection with the services for the Company to be provided
by Purchaser, Seller owns and desires to sell to Purchaser 150,000 shares (the
"Shares") of the Common Stock of the Company owned by Seller and Purchaser
desires to purchase such Shares, on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual terms
and conditions herein contained, the parties hereby agree as follows:
ARTICLE I
DEFINED TERMS
As used herein, the following terms shall have the meanings set forth
below:
"AGREEMENT" shall mean this Stock Purchase Agreement, as it may be
amended from time to time in accordance with its terms.
"CHANGE OF CONTROL" shall mean any of (a) the sale by the Company of
substantially all of its assets, or (b) a merger or consolidation of the Company
or a sale of the Company's Common Stock the result of which merger,
consolidation or sale is that the majority of the Common Stock of the Company is
acquired by a person or entity other than CompuCom or its principal stockholder,
Safeguard Scientifics, Inc.
"CLOSING" shall mean the consummation of the transactions provided for
in this Agreement.
"CLOSING DATE" shall mean the date on which the Closing actually occurs
which is the date of this Agreement.
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"COMMON STOCK" shall mean the authorized Common Stock, $.01 par value
per share, of the Company which presently consists of 4,000,000 shares.
"ENCUMBRANCE" shall mean any option, pledge, security interest, lien,
transfer restriction, claim, charge, mortgage, trust deed, easement, lease or
other encumbrance.
"EXEMPT TRANSFERS" shall have the meaning set forth in Section 7.2(a).
"FAMILY GROUP" shall mean Purchaser's spouse and descendants (whether
natural or adopted) and any trust solely for the benefit of Purchaser and/or
Purchaser's spouse and/or descendants.
"IPO" shall mean the date on which the Company conducts a public
offering of any portion of its Common Stock under the Securities Act.
"ORIGINAL COST" of each Share shall mean $.75 (as proportionately
adjusted for all stock splits, stock dividends and other recapitalizations
affecting the Company's Common Stock subsequent to the date hereof).
"LOSSES" shall mean all claims, demands, liabilities, losses, costs,
damages, penalties and expenses (including without limitation, reasonable
attorneys' fees and expenses).
"NOTE" means that certain Term Note, in the form attached as Exhibit A
to this Agreement.
"PLEDGE AGREEMENT" means that certain Pledge Agreement, in the form
attached as Exhibit B to this Agreement.
"REPURCHASE NOTICE" shall have the meaning set forth in Section 7.1(b).
"REPURCHASE OPTION" shall have the meaning set forth in Section 7.1(a).
"SALE NOTICE" shall have the meaning set forth in Section 7.2(a).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"SHARES" shall mean the 150,000 shares of Common Stock of the Company
owned by Seller which are being sold to Purchaser.
"STOCK POWER" means that certain Stock Power, in the form attached as
Exhibit C to this Agreement.
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"TERMINATION DATE" shall mean the date on which (a) Purchaser
voluntarily terminates his services with Seller for any reason (excluding,
however, Purchaser's death or disability) or (b) Purchaser's services for Seller
are terminated with or without cause pursuant to the provisions of any
employment arrangement between the Company and Purchaser.
ARTICLE II
PURCHASE AND SALE
2.1 AGREEMENT TO SELL AND PURCHASE. Subject to the terms and conditions of
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this Agreement, at the Closing Seller shall sell to Purchaser, and Purchaser
shall purchase from Seller, all of the Shares.
2.2 PURCHASE PRICE. Subject to the terms and conditions of this Agreement,
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in consideration for the Shares, Purchaser shall pay to Seller the sum of One
Hundred Twelve Thousand Five Hundred Dollars ($112,500.00) by executing and
delivering to Seller the Note, the Pledge Agreement and the Stock Power.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. This Agreement has been duly and
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validly executed and delivered by Seller and constitutes a legal, valid and
binding agreement of Seller enforceable in accordance with its terms.
3.2 NO VIOLATION. The execution, delivery and performance of this
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Agreement and all other instruments, agreements, certificates and documents
contemplated hereby by Seller does not, on the date hereof, (i) violate any
decree, judgment, order, writ, injunction or award of any court or governmental
authority binding upon or applicable to Seller; (ii) violate any law, rule or
regulation binding upon or applicable to Seller; (iii) violate or conflict with,
or result in a breach of, or constitute a default (or an event which, with or
without notice or lapse of time or both, would constitute a default) under, or
permit cancellation of, or result in the creation of any Encumbrance upon, any
of the Shares under any of the terms, conditions, or provisions of any contract
to which Seller is a party, or by which Seller is bound; or (iv) violate or
conflict with any provision of the Certificate or Articles of Incorporation or
Bylaws of the Company.
3.3 TITLE TO STOCK. Seller is the unconditional sole legal and equitable
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owner of the Shares, free and clear of any and all Encumbrances of any kind or
nature whatsoever. At the Closing, Seller will convey to Purchaser valid and
marketable title to
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all of such Shares, free and clear of any and all Encumbrances of any kind or
nature whatsoever.
3.4 CONSENTS. No notice to, filing with, authorization of, exemption by,
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or consent of any person, entity, or public or governmental authority is
required for Seller to consummate the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
4.1 AUTHORITY RELATIVE TO THIS AGREEMENT. This Agreement has been duly and
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validly executed and delivered by Purchaser and constitutes a legal, valid and
binding agreement of Purchaser enforceable with its terms.
4.2 INVESTMENT REPRESENTATIONS. Purchaser will acquire the Shares for his
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own account for investment and not with a view to the resale or distribution
thereof. Purchaser will not transfer or otherwise dispose of the Shares, or any
interest therein, in such manner as to violate any provisions of the Securities
Act or of any applicable state securities laws regulating the disposition
thereof. Purchaser agrees that the certificates representing the Shares may bear
legends to the effect that such shares have not been registered under the
Securities Act or such other state securities laws, and that no interest therein
may be transferred or otherwise disposed of in violation of the provisions
thereof or of any rules and regulations issued thereunder.
ARTICLE V
CLOSING
5.1 DATE OF CLOSING. Unless otherwise agreed upon by Purchaser and Seller,
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Closing hereunder shall take place simultaneously with the execution of this
Agreement.
5.2 ACTIONS BY SELLER. At the Closing, Seller shall do the following:
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(A) SHARES. Seller shall deliver to Purchaser the original
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certificate or certificates representing the Shares, with an appropriate stock
power with respect thereto duly endorsed in blank by Seller.
(B) OTHER AGREEMENTS. Seller shall perform or shall have performed
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all of the covenants and agreements contained in this Agreement to be performed
or complied with by Seller at or prior to the Closing hereunder.
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5.3 ACTIONS BY PURCHASER. At the Closing, Purchaser shall:
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(A) CLOSING PAYMENT. Pay to Seller the sum of One Hundred Twelve
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Thousand Five Hundred Dollars ($112,500.00). Such payment shall be made by
Purchaser executing and delivering to Seller the Note, the Pledge Agreement and
the Stock Power.
(B) OTHER AGREEMENTS. Perform or shall have performed all of the
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covenants and agreements contained in this Agreement to be performed or complied
with by Purchaser at or prior to the Closing hereunder.
ARTICLE VI
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES; INDEMNITY
6.1 REPRESENTATIONS AND WARRANTIES TO SURVIVE. All statements contained in
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any agreement, certificate, instrument, schedule, or document delivered by or on
behalf of the parties pursuant to this Agreement and the transactions
contemplated hereby shall be deemed representations and warranties by the
delivering party hereunder. All representations, warranties, covenants and
agreements made by the parties each to the other in this Agreement shall be true
at the Closing and shall survive the consummation of this Agreement and the
Closing hereunder for a period of four (4) years, ending at midnight on the
fourth anniversary of the Closing Date.
6.2 INDEMNITY.
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(A) SELLER. Seller agrees to indemnify and hold harmless Purchaser,
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and his successors and assigns from, against, and in respect of, any and all
Losses arising out of or resulting from any of the following:
(i) Any misrepresentation, breach of warranty, or failure to fulfill
any agreement or covenant of Seller under this Agreement or under any other
agreement or document delivered by Seller at Closing hereunder; and
(ii) Any and all actions, suits, proceedings, demands, assessments,
judgments, costs and legal and other expenses incident to any of the
foregoing.
(B) PURCHASER. Purchaser shall indemnify and hold Seller harmless
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from, against, and in respect of, any and all Losses arising out of or resulting
from any of the following:
(i) Any misrepresentation, breach of warranty, or failure to fulfill
any agreement or covenant of Purchaser under this Agreement or under any
other agreement or document delivered by Purchaser at Closing hereunder;
and
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(ii) Any and all actions, suits, proceedings, demands, assessments,
judgments, costs, and legal and other expenses incident to any of the
foregoing.
(C) INDEMNITY PROCEDURES. In case any claim, demand or action shall be
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brought by any third party including, without limitation, any governmental
authority, against a party entitled to indemnity under Section 6.2(a) or 6.2(b)
above, such party shall promptly notify the other party or parties, as the case
may be, from whom indemnity is or may validly be sought in writing and, subject
to this Section 6.2(c), the indemnifying party or parties shall assume the
defense thereof, including the employment of counsel. In addition, in case a
party hereto shall become aware of any facts which might result in any such
claim, demand or action,such party shall promptly notify the other party or
parties who would be obligated to provide indemnity hereunder with respect to
such claim, demand or action, and, subject to this Section 6.2(c), such other
party or parties shall have the right to take such action as it or they may deem
appropriate to resolve such matter. The indemnified party or parties shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties, unless the employment of such
counsel has been specifically authorized by the indemnifying party or parties.
Any settlement of any action subject to indemnity hereunder shall require the
consent of the indemnified and the indemnifying party which consent shall not be
unreasonably withheld and shall be given within five (5) days following the
giving of notice thereof. The indemnifying party or parties shall not be liable
for any settlement of any action effected without its or their consent, but if
settled with the consent of the indemnifying party or parties or if there be a
final judgment for the plaintiff in any such action, the indemnifying party or
parties shall indemnify and hold harmless the indemnified party from and against
any loss or liability by reason of such settlement or judgment. If requested by
the indemnifying party, the indemnified party shall cooperate with the
indemnifying party and its counsel and use its best efforts in contesting any
such claim or, if appropriate, in making any counter-claim or cross-complaint
against the party asserting the claim, provided that the indemnifying party will
reimburse the indemnified party for reasonable expenses incurred in so
cooperating upon presentation of receipts or other evidence of such expense. The
indemnifying party and its representatives shall have full and complete access
during reasonable hours to all books, records and files of the indemnified party
expressly related to the defense of any claim for indemnification undertaken by
the indemnifying party pursuant to this Section 6.2, or for any other purpose in
connection therewith; provided that the indemnifying party shall safeguard and
maintain the confidentiality of all such books, records and files.
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ARTICLE VII
MISCELLANEOUS
7.1 REPURCHASE OPTION.
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(A) Subject to the limitations contained in this Section 7.1(a),
Seller or its designee will have the option to repurchase (the "Repurchase
Option") the Shares at a price per share equal to the sum of (i) the Original
Cost plus (ii) interest on the Original Cost at eight percent (8%) per annum
from the date of this Agreement to the date of closing of such repurchase, in
the event that prior to January 1, 1999 (A) Purchaser voluntarily terminates his
services with Seller for any reason (excluding, however, Purchaser's death or
disability) or (B) Purchaser's services for Seller are terminated with or
without cause pursuant to the provisions of any employment arrangement between
the Company and Purchaser. The number of Shares which Seller shall be entitled
to repurchase pursuant to this Section 7.1 shall be as follows:
(i) Any or all of the Shares in the event the Termination Date
occurs before January 1, 1996;
(ii) Up to 75% of the Shares in the event the Termination Date
occurs after January 1, 1996 but before January 1, 1997;
(iii) Up to 50% of the Shares in the event the Termination Date
occurs after January 1, 1997 but before January 1, 1998; and
(iv) Up to 25% of the Shares in the event the Termination Date
occurs after January 1, 1998 but before January 1, 1999.
(B) Subject to the limitations contained in Section 7.1(a), Seller
may elect to purchase all or any portion of the Shares by delivery of written
notice (the "Repurchase Notice") to the holder or holders of the Shares within
sixty (60) days after the Termination Date. The Repurchase Notice shall set
forth the number of Shares to be acquired from such holder(s), the aggregate
consideration to be paid for such Shares, and the time and place for the closing
of the transaction. The number of Shares to be repurchased by Seller shall first
be satisfied to the extent possible from the Shares then held by Purchaser at
the time of delivery of the Repurchase Notice. If the number of Shares then held
by Purchaser is less than the total number of Shares Seller has elected to
purchase, Seller shall purchase the remaining Shares elected to be purchased
from the other holder(s) of the Shares, pro rata according to the number of
Shares held by such other holder(s) at the time of delivery of such Repurchase
Notice (determined as nearly as practicable to the nearest Share).
(C) The closing of the purchase transaction provided for in this
Section 7.1 shall take place on the date designated by Seller in the Repurchase
Notice, which
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date shall not be more than thirty (30) days and not less than ten (10) days
after delivery of the Repurchase Notice. Seller or its designee will pay for the
Shares to be purchased pursuant to the Repurchase Option by delivery of
immediately available funds. The purchasers of the Shares pursuant to this
Section 7.1 will be entitled to receive customary representations and warranties
from the sale regarding the Seller's good title to, and freedom from
Encumbrances on, the Shares.
(D) The Repurchase Option set forth in this Section 7.1 will continue
with respect to each of the Shares until the earlier of (i) the IPO, (ii)
January 1, 1999 and (iii) a Change of Control occurs.
7.2 RESTRICTIONS ON TRANSFER.
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(A) Purchaser will not sell, pledge or otherwise transfer any
interest in any Shares except pursuant to the provisions of Section 7.1 ("Exempt
Transfers") and except pursuant to the provisions of this Section 7.2. At least
sixty (60) days prior to making any transfer other than an Exempt Transfer,
Purchaser will deliver a written notice (the "Sale Notice") to Seller. The Sale
Notice will disclose in reasonable detail the identity of the prospective
transferee(s) and the terms and conditions of the proposed transfer. Purchaser
(and Purchaser's transferees) agree not to consummate any such transfer until
sixty (60) days after the Sale Notice has been delivered to Seller. Seller or
its designee may elect to purchase all (but not less than all) of the Shares to
be transferred upon the same terms and conditions as set forth in the Sale
Notice by delivering a written notice of such election to Purchaser within
thirty (30) days after the receipt of the Sale Notice by Seller. Seller or its
designee will be given up to sixty (60) days after receipt of the Sale Notice by
Purchaser to consummate the purchase and sale of Shares. If Seller or its
designee has not elected to purchase all of the Shares specified in the Sale
Notice, Purchaser may, subject to the provisions of Section 7.2(c), transfer the
Shares specified in the Sale Notice at a price and on terms no more favorable to
the transferee(s) thereof than specified in the Sale Notice during the 60-day
period immediately following the earlier of (i) the date on which Seller's right
of first refusal hereunder expires or (ii) the date on which Seller delivers
written notice to Purchaser of its election not to exercise its right of first
refusal. Any Shares not transferred within such 60-day period will be subject to
the provisions of this Section 7.2(b) upon subsequent transfer.
(B) The restrictions contained in this Section 7.2 will not apply
with respect to transfers of Shares (i) pursuant to applicable laws of descent
and distribution or (ii) among Purchaser's Family Group; provided that the
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restrictions contained in this Section 7.2 will continue to be applicable to the
Shares after any such transfer and the transferees of such Shares have agreed in
writing to be bound by the provisions of this Agreement.
(C) The restrictions on the transfer of Shares set forth in this
Section 7.2 will continue with respect to each of the Shares until the earlier
of (i) the IPO and (ii) a Change of Control occurs.
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(D) The certificates representing the Shares will bear the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT, AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR EXEMPTION FROM REGISTRATION THEREUNDER.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND
CERTAIN OTHER AGREEMENTS SET FORTH IN A STOCK PURCHASE AGREEMENT
BETWEEN COMPUCOM SYSTEMS, INC. AND XXXXX X. XXXXX DATED AS OF JULY __,
1995, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
7.3 FURTHER INSTRUMENTS. The parties hereto agree to execute and deliver
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such instruments and take such other action as shall be reasonably necessary, or
as shall be reasonably requested by any other party, in order to carry out the
transactions, agreements and covenants contemplated in this Agreement at or
prior to the Closing Date.
7.4 NOTICES. Any notices, claims or demands which any party is required or
may desire to give to another under or in conjunction with this Agreement shall
be in writing, and shall be given by addressing the same to such other
party(ies) at the address set forth below, and by (i) depositing the same so
addressed, postage prepaid, first class, certified or registered, in the United
States mail (herein referred to as "Mailing"), (ii) overnight delivery by a
nationally recognized overnight courier service (e.g. UPS, Federal Express),
(iii) delivery the same personally to such other party(ies), or (iv)
transmitting by facsimile and Mailing the original. Any notice shall be deemed
to have been given five (5) U.S. Post Office delivery days following the date of
Mailing; one day after timely delivery to an overnight courier; if by personal
delivery, upon such delivery; or if by facsimile, the day of transmission if
made within customary business hours, or if not transmitted within customary
business hours, the following business day.
(A) If to Seller:
CompuCom Systems, Inc.
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
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(B) If to Purchaser:
Xxxxx X. Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Any party may change the address or facsimile telephone number for notices to be
sent to it by written notice delivered pursuant to the terms of this Section
7.4.
7.5 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the documents to be
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delivered at Closing hereunder set forth the entire understanding of the parties
and supersede all prior agreements or understandings, whether written or oral,
with respect to the subject matter hereof. This Agreement may be amended,
modified or supplemented but only in writing by Purchaser and Seller.
7.6 BINDING EFFECT/ASSIGNABILITY. This Agreement shall extend to and be
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binding upon and inure to the benefit of the parties hereto, their respective
heirs, legal representatives, successors and assigns. Seller shall not be
entitled to assign any of its rights or obligations under this Agreement.
7.7 INVALID PROVISIONS. If any provision of this Agreement is held to be
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illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provisions shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof with the remaining provisions
remaining in full force and effect and not affected by the illegal, invalid or
unenforceable provision or by severance herefrom. Furthermore, in lieu of such
illegal, invalid or unenforceable provision there shall be added automatically
as part of this Agreement a provision similar in terms to such illegal, invalid,
or unenforceable provision as may be possible and still be legal, valid and
enforceable.
7.8 HEADINGS/CAPTIONS. The captions to sections and subsections of this
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Agreement have been inserted solely for convenience and reference, and shall not
control or affect the meaning or construction of any of the provisions of this
Agreement.
7.9 WAIVER; REMEDIES. Waiver by any party hereto of any breach of or
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exercise of any rights under this Agreement shall not be deemed to be a waiver
of similar or other breaches or rights or a future breach of the same duty. The
failure of a party to take any action by reason of any such breach or to
exercise any such right shall not deprive any party of the right to take any
action at any time while such breach or condition giving rise to such right
continues. Except as expressly limited by this Agreement, the parties shall have
all remedies permitted to them by this Agreement or law, and all such remedies
shall be cumulative.
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7.10 ATTORNEY'S FEES AND COSTS. In the event of a breach by any party to
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this Agreement and commencement of a subsequent legal action in a court of law
or forum of arbitration, or in the event legal counsel is consulted in the event
of any such breach or in anticipation of any such prospective legal action, the
prevailing party in any such dispute shall be entitled to reimbursement of
reasonable attorney's fees and court costs, including, but not limited to, the
costs of expert witnesses, transportation, lodging and meal costs of the parties
and witnesses, costs of transcript preparation and other reasonable and
necessary direct and incidental costs of such dispute. "Prevailing party" is the
party in whose favor final judgment is rendered.
7.11 COUNTERPARTS. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth above.
SELLER:
COMPUCOM SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Its: Senior Vice President - CFO
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PURCHASER:
/s Xxxxx X. Xxxxx
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XXXXX X. XXXXX
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TERM NOTE
$112,500 Dallas, Texas July 15, 1995
FOR VALUE RECEIVED, Xxxxx X. Xxxxx, an individual residing at 0000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000 (the "MAKER") promises to pay to the order of
CompuCom Systems, Inc. ("PAYEE"), the principal sum of One Hundred Twelve
Thousand Five Hundred Dollars ($112,500.00), together with interest on the
unpaid principal balance as set forth below. All sums hereunder are payable to
Payee at CompuCom Systems, Inc., 00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx
00000, Attention: Chief Financial Officer.
1. DEFINITIONS. The following terms shall have the following meanings:
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"MAXIMUM RATE" means the higher of the maximum interest rate allowed
by applicable United States or Texas law as amended from time to time and
in effect on the date for which a determination of interest accrued
hereunder is made. The determination of the maximum rate permitted by
applicable Texas law shall be made pursuant to the indicated rate ceiling
as defined in Tex.Rev.Civ.Stat.Xxx. art. 5069-1.04, but the Lender reserves
the right to implement from time to time any other rate ceiling permitted
by such law.
2. INTEREST RATE.
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(a) The unpaid principal balance from the date hereof until maturity
(whether by acceleration or otherwise) shall bear interest at eight percent
(8%) per annum.
(b) All past-due payments of principal and interest under this Note
shall bear interest at the Maximum Rate (or if there is no such Maximum
Rate, then at 12%) from maturity until paid.
3. PAYMENT OF PRINCIPAL AND INTEREST.
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(a) The principal of this Note shall be due and payable on July 15,
2000 unless prior to such date (i) Maker voluntarily terminates his
services with Payee for any reason (excluding, however, Maker's death or
disability) or (ii) Maker's services for Payee are terminated with or
without cause pursuant to the provisions of any employment arrangement
between Maker and Payee, in either of which cases the principal balance of
this Note shall be due and payable thirty (30) days after such termination
of Maker's employment with Payee. Interest on this Note shall be due and
payable on July __ of each year commencing July __, 1996 and continuing on
the same day of each year thereafter until the principal of this Note
becomes due and payable.
TERM NOTE - PAGE 1 ____________________________
Initialed for Identification
(b) Unless the Lender in its sole discretion elects to apply payments
differently, each payment shall be first credited to the discharge of
interest accrued on the unpaid principal balance to the date of the
payment, and the remainder shall be credited to the reduction of said
principal.
(C) The principal and interest due hereunder shall be evidenced by
the Lender's records which, absent manifest error, shall be conclusive
evidence of the computation of principal and interest balances owed by the
Maker to the Lender.
4. DEFAULT. Failure to pay the principal and interest of this Note as
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they become due, or failure of the undersigned or any other person to perform
(after the expiration of any applicable cure period) any of the terms or
provisions set forth in, or the occurrence of any event of default under the
terms of that certain Pledge Agreement of even date herewith between Maker and
Payee (the "Pledge Agreement"), shall, at the election of the holder hereof,
without notice, demand or presentment, which are hereby waived, mature the
principal of this Note and all interest then accrued, and the same shall at once
become due and payable and subject to those remedies of the holder hereof.
5. PREPAYMENT. Maker may at any time prepay in whole or in part the
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unpaid principal of this Note without premium or penalty, and the interest shall
immediately cease on any amounts so prepaid.
6. WAIVER. Each surety, endorser, guarantor and any other party now or
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hereafter liable for the payment of this Note in whole or in part ("Surety") and
the Maker hereby severally (a) waive grace, demand, presentment for payment,
notice of nonpayment, protest, notice of protest, non-payment or dishonor,
notice of intent to accelerate, notice of acceleration and all other notices,
filing of suit and diligence in collecting this Note or enforcing any other
security with respect to same, (b) agree to any substitution, surrender,
subordination, waiver, modification, change, exchange or release of any security
or the release of the liability of any parties primarily or secondarily liable
hereon, (c) agree that the Lender is not required first to institute suit or
exhaust its remedies hereon against the Maker, any Surety or others liable or to
become liable hereon or to enforce its rights against them or any security with
respect to same or to join any of them in any suit against any others of them,
and (d) consent to any extension or postponement of time of payment of this Note
and to any other indulgence with respect hereto without notice thereof to any of
them. No failure or delay on the part of the Lender in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
7. ATTORNEYS' FEES. If this Note is not paid at maturity, regardless of
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how such maturity may be brought about, or is collected or attempted to be
collected through the initiation or prosecution of any suit or through any
probate, bankruptcy or any other judicial proceedings, or is placed in the hands
of an attorney for collection, the Maker shall pay, in addition to all other
amounts owing hereunder, all actual
TERM NOTE - Page 2 ____________________________
Initialed for Identification
expenses of collection, all court costs and reasonable attorney's fees incurred
by the holder hereof.
8. LIMITATION ON AGREEMENTS. All agreements between the Maker and the
------------------------
Lender, whether now existing or hereafter arising, are hereby limited so that in
no event shall the amount paid, or agreed to be paid to or charged or demanded
by the Lender for the use, forbearance, or detention of money or for the payment
or performance of any covenant or obligation contained herein or in any other
document evidencing, securing or pertaining to this Note, exceed the Maximum
Rate. If any circumstance otherwise would cause the amount paid, charged or
demanded to exceed the Maximum Rate, the amount paid or agreed to be paid to or
charged or demanded by the Lender shall be reduced to the Maximum Rate, and if
the Lender ever receives interest which otherwise would exceed the Maximum Rate,
such amount which would be excessive interest shall be applied to the reduction
of the principal of this Note and not to the payment of interest, or if such
excessive interest otherwise would exceed the unpaid balance of principal of
this Note such excess shall be applied first to other indebtedness of the Maker
to the Lender, and the balance, if any, shall be refunded to the Maker. In
determining whether the interest paid, agreed to be paid, charged or demanded
hereunder exceeds the highest amount permitted by applicable law, all sums paid
or agreed to be paid to or charged or demanded by the Lender for the use,
forbearance or detention of the indebtedness of the Maker to the Lender shall,
to the extent permitted by applicable law, (i) be amortized, prorated, allocated
and spread throughout the full term of such indebtedness until payment in full
so that the actual rate of interest on account of such indebtedness is uniform
throughout such term, (ii) be characterized as a fee, expense or other charge
other than interest, and (iii) exclude any voluntary prepayments and the effects
thereof. The terms and provisions of this paragraph shall control and supersede
every other provision of all agreements between the Lender and the Maker in
conflict herewith.
9. GOVERNING LAW AND VENUE. This Note and the rights and obligations of
-----------------------
the parties hereunder shall be governed by the laws of the United States of
America and by the laws of the State of Texas, and is performable in Dallas
County, Texas.
10. BUSINESS DAY. If any action is required or permitted to be taken
------------
hereunder on a Sunday, legal holiday or other day on which banking institutions
in the State of Texas are authorized or required to close (a "Non-Business
Day"), such action shall be taken on the next succeeding day which is not a Non-
Business Day, and, to the extent applicable, interest on the unpaid principal
balance shall continue to accrue at the applicable rate.
11. SECURITY. This Note is the Note referred to in the Pledge Agreement,
--------
and is entitled to the benefits thereof and the security as provided for
therein. Reference is made to the Pledge Agreement for a statement of the rights
and obligations of Maker, a description of the nature and extent of the security
and the rights of the parties in respect to such security, and a statement of
the terms and conditions under which the due date of this Note may be
accelerated.
TERM NOTE - Page 3 ____________________________
Initialed for Identification
12. VENUE. Any suit, action, or proceeding arising out of or in any manner
-----
relating to this Note may be brought in the courts of the State of Texas, County
of Dallas, or in the United States District Court for the Northern District of
Texas, Dallas Division. Maker irrevocably waives any objections which it may now
or hereafter have (including any based on the ground of forum non conveniens) to
--------------------
the laying of venue of any suit, action, or proceeding arising out of or
relating to this Note brought in the courts located in the State of Texas,
County of Dallas. Nothing herein impairs the right to bring proceedings in the
courts of any other jurisdiction.
/s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
TERM NOTE - Page 4
PLEDGE AGREEMENT
PLEDGE AGREEMENT ("PLEDGE AGREEMENT") made as of the 15 day of July, 1995
between Xxxxx X. Xxxxx ("PLEDGOR"), and CompuCom Systems, Inc., a Delaware
corporation ("SECURED PARTY").
1. DEFINITIONS. In addition to the terms defined elsewhere in this Pledge
-----------
Agreement, the following terms shall have the following meanings for purposes of
this Pledge Agreement:
(a) The term "EVENT OF DEFAULT" shall have the meaning set forth in
Section 9.
---------
(b) The term "NOTE" shall mean that certain Term Note, dated of even
date herewith, in the original principal amount of One Hundred Twelve
Thousand Five Hundred Dollars ($112,500.00), which Pledgor has executed, or
is in the process of executing, payable to the order of Secured Party,
together with any and all concurrent or subsequent extensions, amendments,
or modifications thereto.
(c) The term "OBLIGATIONS" shall mean and includes all obligations
of Pledgor to Secured Party pursuant to the terms of the Note and this
Pledge Agreement.
2. PLEDGE. Upon the terms hereof, Pledgor hereby pledges and grants to
------
Secured Party a lien on and security interest (the "SECURITY INTEREST") in and
to all of the right, title and interest of Pledgor in and to all of the
following instruments and property (all of the following being herein sometimes
called the "COLLATERAL"):
(a) One Hundred Fifty Thousand (150,000) shares of voting Common
Stock of ClientLink, Inc., a Delaware corporation, presently registered in
the name of Secured Party which are being sold by Secured Party to Pledgor
and which are evidenced by share certificate No. _____________;
(b) All securities and other property, rights or interests of any
description at any time issued or issuable as an addition to, in
substitution or exchange for, with respect to, incident to or in lieu of
such shares described in Section 2(a) or with respect to, incident to or in
------------
lieu of the Collateral (i) due to any dividend, stock-split, stock dividend
or distribution on dissolution, on partial or total liquidation, or other
corporate reorganization; or for any other reason; (ii) in connection with
a reduction of capital, capital surplus or paid-in surplus; or (iii) in
connection with any spin-off, split-off, reclassification, readjustment,
merger, consolidation, sale of assets, combination of shares or any other
plan of distribution affecting the companies which have issued the shares
described in Section 2(a); and
------------
PLEDGE AGREEMENT - Page 1
(c) Any and all proceeds, monies, income and benefits arising from or
by virtue of, and all dividends and distributions (cash or otherwise)
payable and/or distributable with respect to, all or any of the shares or
other securities and rights and interests described herein.
3. OBLIGATIONS SECURED. This Pledge Agreement and the Security Interest
-------------------
granted hereby secure the prompt satisfaction of the Obligations.
4. WARRANTIES. Pledgor represents, warrants, covenants and agrees to and
----------
with Secured Party that: (a) Pledgor is the legal and beneficial owner of the
Collateral; (b) the Collateral is duly authorized and issued, fully paid, and
nonassessable; (c) no dispute, right of setoff, counterclaim or defense exists
with respect to all or any part of the Collateral; (d) all of the shares of the
Collateral are owned by Pledgor free of any pledge, mortgage, hypothecation,
lien, charge, encumbrance or security interest or purchase right or option on
the part of any third person in such shares or the proceeds thereof, except the
Security Interest; (e) other than certain restrictions in favor of Secured
Party, there are no restrictions upon the transfer of any of the shares
constituting the Collateral, other than as may appear on the face of the
certificates; (f) Pledgor has the full power, authority and legal right to
transfer and pledge the Collateral free of any encumbrances and without
obtaining the consent of the other shareholders of the issuer of the Collateral;
(g) this Pledge Agreement has been duly authorized, executed and delivered by
Pledgor and constitutes a legal, valid and binding obligation of Pledgor
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights and, to the extent that such
instruments require or may require, enforcement by a court of equity, such
principles of equity as the court may have jurisdiction to impose; and (i) upon
delivery of the Collateral to Secured Party, this Pledge Agreement will create a
valid and perfected first priority lien upon, and security interest in, the
Collateral and the proceeds thereof, securing the payment of the Obligations.
The delivery at any time by Pledgor to Secured Party of Collateral shall
constitute a representation and warranty by Pledgor under this Pledge Agreement
that, with respect to such Collateral and each item thereof: (1) Pledgor is the
owner of the Collateral; and (2) the matters heretofore warranted in clauses (a)
through (i) of this Section 4 are true and correct.
---------
5. COVENANTS. Pledgor covenants to do or not to do, as the case may be,
---------
each of the following; provided, however, in the case of a negative covenant,
-------- -------
Pledgor will not undertake any of the proscribed activities without the prior
written consent of Secured Party: (a) from time to time promptly to execute,
assign, endorse and deliver to Secured Party all proxies, applications,
acceptances, stock powers, chattel paper, documents, instruments or other
evidences of payment or writing constituting or relating to any of the
Collateral, and all such other assignments, certificates, supplemental writings,
and financing statements and do all other acts or things as Secured Party may
reasonably request in order more fully to evidence and perfect the Security
Interest; (b) promptly to furnish Secured Party with any information or writings
which Secured Party may reasonably request concerning the Collateral; (c) to
allow Secured Party to inspect all records of Pledgor relating to the Collateral
or to the Obligations, and to make and take
PLEDGE AGREEMENT - Page 2
away copies of such records during normal business hours; (d) promptly to notify
Secured Party of any change in any fact or circumstance warranted or represented
by Pledgor in this Pledge Agreement or in any other writing furnished by Pledgor
to Secured Party in connection with the Collateral or the Obligations; (e)
promptly to notify Secured Party of any claim, action or proceeding affecting
title to the Collateral, or any part thereof, or the Security Interest, and at
the request of Secured Party, appear in and defend, at Pledgor's expense, any
such action or proceeding; (f) promptly to pay to Secured Party the amount of
all court costs and reasonable attorneys' fees incurred by Secured Party
hereunder; (g) except to the extent prohibited by applicable law, pay all
expenses incurred in the custody, preservation, use or operation of the
Collateral; and (h) promptly to deliver to Secured Party, in the exact form
received, all securities and other property described in Section 2(b) and
------------
Section 2(d) hereof which comes into the possession, custody or control of
------------
Pledgor. Pledgor further covenants and agrees that, without the prior written
consent of Secured Party, Pledgor shall not sell, assign or transfer Pledgor's
rights in the Collateral, or create any other lien or security interest in, or
otherwise encumber any of the Collateral, or permit any of the Collateral ever
to be or become subject to any lien, attachment, execution, sequestration, other
legal or equitable process, or any lien or encumbrance of any kind. All
assignments and endorsements by Pledgor shall be in such form and substance as
may be satisfactory to Secured Party. Should any covenant, duty or agreement of
Pledgor fail to be performed in accordance with its terms hereunder, Secured
Party may, but shall never be obligated to, perform or attempt to perform such
covenant, duty or agreement on behalf of Pledgor, and any amount expended by
Secured Party in such performance or attempted performance shall become part of
the Obligations, except to the extent prohibited by applicable law, and, at the
request of Secured Party, or unless otherwise agreed, Pledgor agrees to pay such
amount promptly to Secured Party.
6. ADJUSTMENTS AND DISTRIBUTIONS CONCERNING COLLATERAL. Should the
---------------------------------------------------
Collateral, or any part thereof, ever be converted in any manner by its issuer
into another type of property or any money or other proceeds ever be paid or
delivered to Pledgor as a result of Pledgor's rights in the Collateral, then in
any such event (except as provided in Section 7 hereof), all such property,
---------
money and other proceeds shall immediately be and become part of the Collateral,
and Pledgor covenants to pay forthwith and deliver all such property, money or
other proceeds so received to Secured Party; and, if Secured Party deems it
necessary and so requests, to endorse properly or assign any and all such other
proceeds to Secured Party and to deliver to Secured Party any and all such other
proceeds which require perfection by possession under the Uniform Commercial
Code of the State of Texas or other appropriate jurisdiction (the "UCC"). With
respect to any of such property of a kind requiring an additional security
agreement, financing statement or other writing to perfect a security interest
therein in favor of Secured Party, Pledgor will forthwith execute and deliver to
Secured Party whatever Secured Party shall deem necessary or proper for such
purpose.
7. CASH DIVIDENDS AND VOTING RIGHTS. Unless an Event of Default has
--------------------------------
occurred and shall not have been waived by Secured Party, Pledgor is entitled
(a) to exercise all voting rights with respect to the Collateral and (b) to
receive for its own use
PLEDGE AGREEMENT - Page 3
cash dividends on the Collateral. Upon the occurrence of an Event of Default,
Secured Party may require any such cash dividends to be delivered to Secured
Party as additional Collateral hereunder or applied toward the satisfaction of
the Obligations.
8. REGISTRATION OF COLLATERAL IN NAME OF SECURED PARTY. Upon the
---------------------------------------------------
occurrence of an Event of Default Secured Party, at its option, may have any or
all of the Collateral registered in its name or that of its nominee, and Pledgor
hereby covenants that, upon Secured Party's request, Pledgor will cause the
issuer of the Collateral to effect such registration. Immediately and without
further notice, upon the occurrence of an Event of Default, whether or not the
Collateral shall have been registered in the name of Secured Party or its
nominee, Secured Party or its nominee shall have, with respect to the
Collateral, the right to exercise all voting rights and all other corporate
rights and all conversion, exchange, subscription or other rights, privileges or
options pertaining thereto as if it were the absolute owner thereof, including,
without limitation, the right to exchange any or all of the Collateral upon the
merger, consolidation, reorganization, recapitalization or other readjustment of
the issuer thereof, or upon the exercise by such issuer of any right, privilege,
or option pertaining to any of the Collateral, and, in connection therewith, to
deliver any of the Collateral to any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as it may
determine, all without liability except to account for property actually
received by it; but Secured Party shall have no duty to exercise any of the
aforesaid rights, privileges or options and shall not be responsible for any
failure to do so, delay in doing so, or depreciation in the value of the
Collateral by reason of doing so.
9. EVENTS OF DEFAULT. The occurrence of any one or more of the following
-----------------
shall constitute an Event of Default:
(a) The failure of Pledgor to make timely payment of any portion of
the principal or interest of the Note or any portion of the Obligations
when due subject to any applicable cure periods;
(b) The failure of Pledgor to perform fully, faithfully and promptly
any material agreements, covenants and conditions contained in this Pledge
Agreement;
(c) The making of any statement, representation, covenant or warranty
by Pledgor in this Pledge Agreement or in any certificate, agreement,
instrument or statement contemplated hereby or made or delivered pursuant
hereto, or in connection herewith, or in any other written agreement
between Pledgor and Secured Party which is untrue or misleading in any
material respect at the time such statement, representation, warranty or
covenant is made;
(d) The levy against the Collateral, or any substantial part thereof,
or any execution, attachment, sequestration, restraint warrant or other
like or similar writ or the attachment to the Collateral of any lien other
than the Security Interest;
PLEDGE AGREEMENT - Page 4
(e) The entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of Pledgor in an involuntary case
under the United States bankruptcy laws as now or hereafter constituted, or
any other applicable federal or state bankruptcy, insolvency or other
similar law, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of Pledgor or of any
substantial part of Pledgor's property, or ordering the winding-up or
liquidation of the affairs of Pledgor and the continuance of any such
decree or order unstayed and in effect for a period of thirty (30)
consecutive days; or
(f) The commencement by Pledgor of a voluntary case under the United
States bankruptcy laws, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or other similar
law, or the consent by Pledgor to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
similar official) of Pledgor for any substantial part of Pledgor's
property, or the making by Pledgeor of any assignment for the benefit of
creditors, or the inability of Pledgor generally to pay his debts as such
debts become due, or the taking of any action by Pledgor in furtherance of
any of the foregoing.
10. REMEDIES. Upon the occurrence of an Event of Default, in addition to
--------
any and all other rights and remedies which Secured Party may then have
hereunder, under the UCC or otherwise, Secured Party may at its discretion and
without notice to Pledgor do any one or more of the following, without liability
except to account for property actually received by it, and Pledgor agrees that
it is commercially reasonable for Secured Party to do any of the following:
(a) declare the entire unpaid balance of principal of and all accrued interest
on the Obligations immediately due and payable without notice, including without
limitation, notice of acceleration and notice of intent to accelerate, demand,
or presentment, which are hereby waived; (b) transfer to or register in its name
or the name of its nominee (if the same has not already been done) any of the
Collateral with or without indication of the security interest herein created,
and whether or not so transferred or registered, receive the income, dividends
and other distributions thereon and hold them or apply them to the Obligations
in any order of payment; (c) exercise or cause to be exercised all voting powers
with respect to any of the Collateral so registered or transferred, including
all rights to conversion, exchange, subscription or any other rights, privileges
or options pertaining to such Collateral, as if the absolute owner thereof; (d)
exchange any of the Collateral for other property upon a reorganization,
recapitalization or other readjustment and, in connection therewith, deposit any
of the Collateral with any committee or depository upon such terms as Secured
Party may determine; (e) in its name or in the name of Pledgor demand, xxx for,
collect or receive any money or property at any time payable or receivable on
account of or in exchange for any of the Collateral and, in connection
therewith, endorse notes, checks, drafts, money orders, documents of title or
other evidences of payment, shipment or storage in the name of Pledgor; (f) make
any compromise or settlement deemed advisable with respect to any of the
Collateral; (g) renew, extend, or otherwise change the terms and conditions of
any of the Collateral or otherwise change the terms and conditions of any of the
Collateral or the Obligations; (h) take or release any other collateral as
security for
PLEDGE AGREEMENT - Page 5
any of the Collateral or the Obligations; (i) add or release any guarantor,
indorser, surety or other party to any of the Collateral or the Obligations; (j)
reduce its claim to judgment or foreclose or otherwise enforce the Security
Interest, in whole or in part, by any available judicial procedure; (k) without
demand of performance or other demand, advertisement or notice of any kind
(except the notice specified below of time and place of public or private sale)
to or upon Pledgor or any other person (all of which are, to the extent
permitted by law, hereby expressly waived), forthwith realize upon the
Collateral or any part thereof, and may forthwith sell or otherwise dispose of
or deliver the Collateral or any part thereof or interest therein, in one or
more parcels at public or private sale or sales, at any exchange, broker's board
or at Secured Party's office or elsewhere, at such prices and on such terms
(including, but without limitation, a requirement that any purchaser of all or
any part of the Collateral purchase the shares constituting the Collateral for
investment without any intention to make any distribution thereof) as it may
deem best (it being agreed that the sale of any part of the Collateral shall not
exhaust Secured Party's power of sale, but sales may be made from time to time
until all of the Collateral has been sold or until the Obligations have been
paid in full without any intention to make any distribution thereof), for cash
or on credit, or for future delivery without assumption of any credit risk, with
the right of Secured Party or any purchaser to purchase upon any such sale the
whole or any part of the Collateral free from any right or equity of redemption
in Pledgor, which right or equity is hereby expressly waived and released, and
at any such sale it shall not be necessary to exhibit the Collateral; (l) apply
by appropriate judicial proceedings for appointment of a receiver for the
Collateral, or any part thereof, and Pledgor hereby consents to any such
appointment; (m) at its discretion, retain the Collateral in satisfaction of the
Obligations whenever the circumstances are such that Secured Party is entitled
to do so under the UCC or otherwise; (n) exercise any and all other rights it
may have hereunder or under the UCC or otherwise. Pledgor hereby grants to
Secured Party an irrevocable proxy coupled with an interest to exercise as to
such Collateral, upon the occurrence of an Event of Default, all rights, powers
and remedies of an owner and all of the rights, powers and remedies hereinabove
set forth, the proxy herein granted to exist until all of the Obligations have
been paid and performed in full.
11. APPLICATION OF PROCEEDS. The proceeds of any disposition of the
-----------------------
Collateral or other action by Secured Party shall be applied (a) first, to the
cost and expenses incurred in connection therewith or incidental thereto or to
the care or safekeeping of any of the Collateral or in any way relating to the
rights of Secured Party hereunder, including reasonable attorneys' fees and
legal expenses; (b) then, to the satisfaction of the Obligations in such order
as Secured Party may elect; (c) then, to the payment of any other amounts
required by applicable law (including, without limitation, Section 9.504(a)(3)
of the UCC); and (d) then, to Pledgor to the extent of any surplus proceeds.
Secured Party shall be under no duty to exercise or to withhold the exercise of
any of the rights, powers, privileges and options expressly or implicitly
granted to Secured Party in this Pledge Agreement, and shall not be responsible
for any failure to do so or delay in so doing.
PLEDGE AGREEMENT - Page 6
12. LAWS AND AGREEMENTS. Pledgor agrees that, because of the Securities
-------------------
Act of 1933, as amended (the "SECURITIES ACT"), to the extent applicable, or any
other laws or regulations, and for other reasons, including in order to obtain
any required approval of the purchase or purchaser by any governmental
regulatory agency or officers, there may be legal and/or practical restrictions
or limitations affecting Secured Party in any attempts to dispose of certain
portions of the Collateral and for enforcement of its rights. For these reasons,
Secured Party is hereby authorized by Pledgor, but not obligated, in the event
of the occurrence of an Event of Default, to sell all or any part of the
Collateral at private sale, subject to investment letter or in any other manner
which will not require the Collateral, or any part thereof, to be registered in
accordance with any laws or regulations, including but not limited to the
Securities Act of 1933, to the extent applicable, or the rules and regulations
promulgated thereunder, or make it necessary to obtain any required approval of
the purchase or the purchaser by any governmental regulatory agency or officer,
at the best price reasonably obtainable by Secured Party at such private sale or
other disposition in the manner mentioned above. Pledgor understands that
Secured Party may in its discretion approach a restricted number of potential
purchasers and that a sale under such circumstances may yield a lower price for
the Collateral, or any part or parts thereof, than would otherwise be obtainable
if same were either offered to a large number of potential purchasers, or
registered and sold in the open market. Pledgor agrees that such private sales
shall be deemed to have been made in a commercially reasonable manner and that
Secured Party has no obligation to delay sale of any Collateral to permit the
issuer thereof to register it for public sale under any applicable federal or
state securities laws, and that Secured Party shall not be liable or accountable
to Pledgor, nor shall the Obligations be subject to any reduction by reason of
the fact that the proceeds of sale subject to any such limitation or restriction
are less than otherwise might have been obtained.
13. NOTIFICATION OF SALE. Reasonable notification of the time and place of
--------------------
any public sale of the Collateral, or reasonable notification of the time after
which any private sale or other intended disposition of the Collateral is to be
made, shall be sent to Pledgor and to any other person entitled under the UCC to
notice; provided that if any of the Collateral threatens to decline speedily in
value or is of the type customarily sold on a recognized market, Secured Party
may sell or otherwise dispose of the Collateral without notification,
advertisement, or other notice of any kind. It is agreed that notice sent or
given not less than five (5) calendar days prior to the taking of the action to
which the notice relates is reasonable notification and notice for the purposes
of this paragraph.
14. SATISFACTION OF OBLIGATIONS. Upon the satisfaction in full of all
---------------------------
Obligations and the satisfaction of all additional costs and expenses of Secured
Party as provided herein, this Pledge Agreement shall terminate, and Secured
Party shall deliver to Pledgor, at Pledgor's expense, such of the Collateral as
shall not have been sold or otherwise applied pursuant to this Pledge Agreement.
15. NOTICES. Any notice required or permitted by this Pledge Agreement
-------
shall be deemed to have been given or made when deposited in the United States
Mail, postage prepaid, certified mail, return receipt requested, addressed to
the parties at the
PLEDGE AGREEMENT - Page 7
addresses set forth opposite their respective signatures below, or, if hand
delivered, upon actual receipt.
16. DUTIES OF SECURED PARTY. Secured Party's duty with respect to any
-----------------------
Collateral now or hereafter in the possession of Secured Party is solely to use
reasonable care in the custody and preservation of the Collateral. Secured Party
shall be deemed to have exercised reasonable care in the custody and
preservation in the Collateral if the Collateral is accorded treatment
substantially equal to that which Secured Party accords its own property, it
being understood that Secured Party shall not have any responsibility for
ascertaining or taking action with respect to fixing or preserving rights
against prior parties to the Collateral, calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral or for informing
Pledgor of such matters whether or not Secured Party has or is deemed to have
any knowledge of such matters. Secured Party shall not be required to take any
steps necessary to preserve any rights in the Collateral against prior parties
or to protect, perfect, preserve or maintain any security interest given to
secure the Collateral. Secured Party shall never be liable for its failure to
use due diligence in the collection of the Obligations, or any part thereof, or
for its failure to give notice to Pledgor of default in the payment of the
Obligations, or any part thereof, or in the payment of or upon any security,
whether pledged hereunder or otherwise. Secured Party shall not be liable for a
decline in the market value of the Collateral.
17. INDEMNIFICATION. Pledgor hereby agrees to indemnify and to hold
---------------
Secured Party harmless from and against any loss, claim, demand or expense
(including attorneys' fees) by reason, or in any manner related to, the
Collateral, including any such claim as may arise by reason of any alleged
breach of warranty concerning the Collateral, by reason of the failure of
Pledgor to comply with any state or federal statute, rule, regulation, order or
decree, or by reason of Secured Party's efforts to enforce payment of the
Obligations, including expenses incurred in satisfying any applicable securities
and banking laws.
18. EXPENSES. Pledgor will upon demand pay to Secured Party the amount of
--------
any and all reasonable expenses, including the reasonable fees and expenses of
its counsel and of any experts and agents, which Secured Party may incur in
connection with the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Collateral, the exercise or enforcement of
any of the rights of Secured Party hereunder, or the failure by Pledgor to
perform or observe any of the provisions hereof.
19. SECURITY INTEREST ABSOLUTE. All rights of Secured Party and the pledge
--------------------------
and Security Interest hereunder, and all obligations of Pledgor hereunder, shall
be absolute and unconditional in all respects and shall not be released,
diminished, impaired, or affected for any reason, including without limitation
the occurrence of any one or more of the following events: (a) the taking or
accepting of any other security or assurance for any or all of the Obligations;
(b) any change in the time, manner or place of payment of, or in any other term
of, all or any of the Obligations; (c) any exchange, release, subordination,
surrender, loss or non-perfection of any other collateral at any time existing
in connection with any or all of the Obligations, or any release or amendment or
waiver
PLEDGE AGREEMENT - Page 8
of or consent to departure from any guaranty, or other security, for all
or any of the Obligations; (d) any neglect, delay, omission, failure, or refusal
of Secured Party to take or prosecute any action in connection with this Pledge
Agreement; (e) the insolvency, bankruptcy, or lack of corporate power of
Pledgor; or (f) any other circumstance which might otherwise constitute a
defense available to a discharge of Pledgor in respect of the Obligations of
Pledgor in respect of this Pledge Agreement.
20. WAIVERS. Except as otherwise required by the terms hereof or by
-------
applicable law, Pledgor hereby waives all notices, including but not limited to
demand, presentment for payment, notice of nonpayment, protest, notice of
protest, notice of intent to accelerate, notice of acceleration and all other
notices, and without further notice hereby consents to any and all renewals,
extensions, amendments, modifications, indulgences, releases, subordinations,
waivers or changes in the terms of any of the Obligations.
21. REMEDIES CUMULATIVE. The rights and remedies provided herein are
-------------------
cumulative and are in addition to and not exclusive of any rights or remedies
provided by law, including, but without limitation, the rights and remedies of a
secured party under the UCC.
22. AMENDMENT. This Pledge Agreement may be amended only by written
---------
instrument signed by both parties.
23. COURSE OF DEALING. No course of dealing between Pledgor and Secured
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Party, nor any failure to exercise, nor any delay in exercising, any right,
power or privilege of, Secured Party hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
24. INVALIDITY OF ANY PROVISION. The invalidity of any one or more
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phrases, sentences, clauses, paragraphs or sections hereof shall not affect the
remaining portions of this Pledge Agreement, all of which are being inserted
conditionally on their being held legally valid. In the event that any one or
more of the phrases, sentences, clauses, paragraphs or sections contained herein
should be invalid, or should operate to render this Pledge Agreement invalid,
then this Pledge Agreement shall be construed as if such invalid phrase or
phrases, sentence or sentences, clause or clauses, paragraph or paragraphs, or
section or sections had not been inserted.
25. ASSIGNMENT. This Pledge Agreement shall apply to, inure to the benefit
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of and be binding upon and enforceable against the parties hereto and their
respective legal representatives, successors and assigns, except that the right
and obligations of Pledgor contained herein shall not be assignable.
26. GOVERNING LAW. This Pledge Agreement is being executed and delivered,
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and is intended to be performed, in the State of Texas, and the substantive laws
of such State shall govern the validity construction, enforcement and
interpretation of this
PLEDGE AGREEMENT - Page 9
Agreement, unless the laws of another state require the application of the laws
of such state. This Pledge Agreement is performable in Dallas County, Texas.
IN WITNESS WHEREOF, the parties have executed this Pledge Agreement as of
the day and year first above written.
PLEDGOR:
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
SECURED PARTY:
COMPUCOM SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Its: Senior Vice President - CFO
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PLEDGE AGREEMENT - Page 10
