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EXHIBIT 10.5
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is dated as of May 17,
2000 by and between Serra/Xxxxxx Living Trust (the "Pledgor") and Professional
Transportation Group Ltd., Inc. (the "Pledgee").
WHEREAS, contemporaneously with the execution of this Agreement,
Pledgor has executed a promissory note (the "Note") in the amount of
$2,325,000.00 and entered into the Proceeds Agreement pursuant to which Pledgor
may have an obligation to make certain other payments to Pledgee (the "Excess
Payment Obligations"); and
WHEREAS, the Pledgor has agreed to pledge 465,000 shares of the common
stock of Pledgee titled in Pledgor's name (the "Pledged Shares") as security
for the repayment of the Note and Pledgee's obligations pursuant to the
Proceeds Agreement dated as of the date hereof (collectively, the
"Obligations") and subject to the terms of this Pledge Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. PLEDGE OF SHARES. As collateral security for the payment of the
Obligations, Pledgor hereby pledges unto Pledgee the Pledged Shares and grants
a security interest therein together with any proceeds therefrom and all
securities and other property at any time and from time to time receivable or
otherwise distributed in respect of or in exchange for any or all of the
Pledged Shares and/or such additional shares. Pledgor hereby appoints Pledgee
as its attorney to arrange for the transfer of the Pledged Shares on the books
of the Pledgee to the name of Pledgee and will, upon request of Pledgee,
deliver to Pledgee a duly executed stock power relating to the Pledged Shares;
provided, however, that the record ownership of the Pledged Shares shall remain
in Pledgor until the Pledgee exercises its rights pursuant to this Agreement.
Pledgee shall hold the Pledged Shares as security for repayment of the
Obligations and shall not encumber or dispose of the Pledged Shares except in
accordance with the provisions of this Agreement.
2. VOTING RIGHTS; STOCK ADJUSTMENTS. During the term of this
Agreement, Pledgee shall have the right to exercise all voting rights
pertaining to the Pledged Shares. In the event that, during the term of this
Agreement, any stock dividend, stock split, combination, subdivision,
reorganization, recapitalization, reclassification, readjustment, or other
change is declared or made in the capital structure of the Company, Pledgor
shall promptly deliver to the Pledgee, all new, substituted, and additional
shares, or other securities, issued by reason of any such change, to be held by
the Pledgee under the terms of this Agreement as part of the Pledged Shares. In
the event that, during the term of this Agreement, subscription warrants or any
other rights or warrants shall be issued in respect to the Pledged Shares and
exercised by Pledgor, all new stock or other securities acquired by Pledgor
shall be immediately assigned to Pledgee to be held under the terms of this
Agreement as part of the Pledged Shares.
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3. PAYMENT OF NOTE. Upon payment or satisfaction of the Obligations,
Pledgee shall transfer to Pledgor all of the Pledged Shares.
4. REMEDIES UPON DEFAULT OR BREACH. Upon the occurrence of an Event of
Default under the Note or upon a breach of Pledgor's obligations pursuant to
the Proceeds Agreement, Pledgee may, upon 15 days notice to the Pledgor sent by
registered mail, redeem the Pledged Shares in payment of the Obligations in its
sole discretion, free from any right or equity of redemption. In addition,
Pledgee shall have the following remedies available to it:
(a) Pledgee may cause title to the Collateral then in Pledgee's
possession to be transferred to Pledgee by virtue of the blank power(s) for the
conveyance of the Collateral to Pledgee; and
(b) Subject to the requirements of applicable law, and without
limiting any rights otherwise available hereunder or under law, sell, assign
and deliver all of the Collateral at public or private sale for cash, on credit
or for other property, for immediate or future delivery, without any assumption
of credit risk, and for such price and upon such terms as are commercially
reasonable.
Any sale of the Collateral or any portion thereof shall be subject to
compliance with applicable securities laws and rules and regulations
thereunder. Pledgee shall be authorized at any such sale to restrict the
prospective bidders or Pledgor to persons who will represent and agree that
they are purchasing the Collateral for their own account, for investment and
not with a view to the distribution or sale thereof, and upon consummation of
any such sale.
Each such purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of Pledgor, and Pledgor
hereby waives (to the extent permitted by law) all rights of redemption, stay
or appraisal that Pledgor now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.
If notice of intended disposition of the Collateral is required by
law, such notice shall be deemed reasonable and proper if given to Pledgor at
least 15 days prior to such disposition stating Pledgee's intention to make any
such public or private sale. Any such notice, in case of public sale, shall
state the time and place for such sale. Any such public sale shall be held at
such time or times within ordinary business hours and at such place or places
as Pledgee may fix and shall state in the notice of such sale. At any such
sale, all of the Collateral, or portion thereof, to be sold may be sold in one
lot as an entirety or in separate parcels, as Pledgee may (in Pledgee's sole
and absolute discretion) determine.
Pledgee shall not be obligated to make any sale of the Collateral if
Pledgee shall determine not to do so, regardless of the fact that notice of
sale of the Collateral may have been given. Pledgee may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned.
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In case sale of all or any part of the Collateral is made on credit or
for future delivery, the Collateral so sold may be retained by Pledgee until
the sale price is paid by the Pledgor thereof, but Pledgee shall not incur any
liability in case any such purchaser shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be
sold again upon like notice.
(c) Notwithstanding the foregoing and without regard to the fair
market value of the Collateral and/or the purchase price offered by a third
party, the Pledgee or the Pledgor, the Pledgee acknowledges that it will treat
the value of each share of the Pledged Shares as having a value of $5.00 per
share, or such value as may be determined after taking into account any stock
dividend, stock split, combination, subdivision, reorganization,
recapitalization, reclassification, readjustment, or other change in the
capital structure of the Company.
5. SUBSTITUTION OF COLLATERAL; PARTIAL RELEASE. Pledgor may at any
time during the term of this Agreement propose that Pledgee accept as
Collateral unencumbered property of Pledgor having a fair market value and
liquidity equal to or in excess of the Pledged Shares (but not more than $5.00
per share). In the event that the Pledgee agrees to the value and liquidity of
such unencumbered property (the "Substitute Collateral") and consents to accept
the Substitute Collateral (which consent shall not be unreasonably withheld),
the Pledgee shall release to Pledgor the Pledged Shares at such time that the
Pledgee obtains a perfected first priority security interest in the Substitute
Collateral, which shall then become subject to the terms of this Agreement.
Upon the request of Pledgor, Pledgee shall release to Pledgor so much of the
Pledged Shares whose agreed value exceeds the amount of the Obligations.
6. MISCELLANEOUS. No failure or delay on the part of any party in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof. The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. No modification, amendment, termination, waiver or consent under this
Agreement, the Note or the Proceeds Agreement shall be valid unless evidenced
by a writing signed by the party against whom any of the foregoing actions is
sought to be enforced. This Agreement, the Proceeds Agreement and the Note
constitute the entire agreement between the parties and supersedes all prior
proposals and agreements, written or oral, and all other communications between
the parties relating to the subject matter of this Agreement, the Proceeds
Agreement or the Note. The invalidity, illegality or unenforceability of any
provision of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision. This Agreement shall be binding upon and
inure to the benefit of the Pledgee and the Pledgor and their respective
successors and assigns. All notices hereunder shall be in writing and shall be
deemed given when sent by certified or registered mail, postage paid, return
receipt requested. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, this Agreement has been executed as an instrument
under seal as of the date and year first above written.
PLEDGEE: PLEDGOR:
PROFESSIONAL TRANSPORTATION SERRA/XXXXXX LIVING TRUST
GROUP LTD., INC.
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxx Xxxxx
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Xxxxxx X. Xxxxx, President Xxxxxx Xxxxx, Trustee
By:/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Trustee
