Exhibit 6(h)
June 27, 1997
Xxxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
c/o Apollo Partners LLC
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
This letter agreement (the "Agreement") sets forth the
agreement among the three stockholders of Video Services
Corporation ("VSC"), Xxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxxx and
Xxxxxx X. Xxxx (each, a "Stockholder" and collectively, the
"Stockholders"), and Xxxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx (the
"Optionees") regarding the grant of an option (the "Option") to
each of the Optionees to purchase from the Stockholders an
aggregate of 30,000 shares of the Common Stock of International
Post Limited (the "Company"). Reference is made to the Agreement
and Plan of Merger among the Company, VSC and the Stockholders,
dated June 27, 1997 (the "Merger Agreement"). Each capitalized
term not defined in this letter shall have the meaning attributed
to it in the Merger Agreement.
Pursuant to the Merger Agreement, VSC will merge with
and into the Company. At the Effective Time of the Merger, each
of the Optionees and the Stockholders agree to execute the
following three documents: (i) an agreement terminating the
Stock Option Agreements, dated as of February 15, 1994, between
VSC and each of the Optionees, in the form of Exhibit 1 hereto;
(ii) a Stock Option Agreement between the Stockholders and each
of the Optionees granting the Option, in the form of Exhibit 2
hereto and (iii) a Pledge Agreement among each of the Optionees
and the Stockholders providing a security interest in the shares
of the Company subject to the Option in the form of Exhibit 3
hereto.
The undersigned hereby agree and acknowledge that: (i)
the shares of stock subject to the Stock Option Agreements to be
granted pursuant hereto are subject to and entitled to the
benefit of, that certain registration rights agreement between,
among others, International Post Group Inc., MTE Holdings, Inc.,
VSC, Xxxxxx Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxxx
X. Xxxxx and Xxxxxxx X. Xxxxxx dated February 15, 1994; and (ii)
except as expressly set forth herein or as otherwise modified in
a writing signed by the Optionees, all agreements between any of
the undersigned and the Optionees shall not be modified by this
Agreement and shall remain in full force and effect.
IN WITNESS WHEREOF, the Optionees and the Stockholders
have duly executed and delivered this Agreement as of the date
first above written.
/s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
/s/ Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
AGREED AND ACKNOWLEDGED:
International Post Limited
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
Video Services Corporation ("VSC"), and each of Xxxxxxxx X.
Xxxxx and Xxxxxxx X. Xxxxxx (the "Optionees") are parties to
stock option agreements dated as of February 15, 1994, (the "VSC
Stock Option Agreements") granting to each of the Optionees the
option to purchase from VSC an aggregate of 30,000 shares of the
Common Stock of International Post Limited (the "Company").
Reference is made to the Agreement and Plan of Merger among
the Company, VSC and the Stockholders of VSC, dated ,
1997, and to the letter agreement, dated , 1997 executed
in the form of Exhibit 7.19 thereto (the "Letter Agreement").
Pursuant to the Letter Agreement, the Optionees and VSC hereby
agree that the VSC Stock Option Agreements are terminated in all
respects and shall hereafter be null and void and have no further
force or effect. As a result, each Optionee hereby acknowledges
and confirms that, except as contemplated in the options to be
granted pursuant to the Letter Agreement, the Optionees have no
other options, rights or claims to acquire stock of the Company
from VSC, its subsidiaries or its stockholders.
IN WITNESS WHEREOF, the Optionees and VSC have duly executed
and delivered this Agreement as of the date first above written.
VIDEO SERVICES CORPORATION
By: ------------------------------
Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxxx
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of - - - - - - - - - - - -, 1997 is
made by and between Xxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxxx and
Xxxxxx X. Xxxx (each, a "Stockholder and collectively, the
"Stockholders") and ----------------- (the "Optionee").
WHEREAS, Video Services Corporation ("VSC") (an entity in
which the Stockholders are the sole stockholders) has entered
into a Merger Agreement (the "Merger Agreement") with
International Post Limited (the "Company") dated -------------,
1997, pursuant to which such corporations will be merged (the
"Merger");
WHEREAS, VSC has previously granted an option to the
Optionee to acquire 30,000 shares of the common stock ("Common
Stock") of the Company, which option was on this day terminated
pursuant to the terms of the Merger Agreement and is being
replaced by this Agreement; and
WHEREAS, the Stockholders desire to grant an option to
Optionee to purchase shares of the Common Stock and Optionee
desires to accept such stock option;
NOW, THEREFORE, the Stockholders and Optionee agree as
follows:
Section 1. Grant of Option.
Section x. Xxxxx; Xxxxx Date
Each Stockholder hereby grants to Optionee the right to
purchase from such Stockholder all or any part of the number of
shares of Common Stock set forth opposite his name in the table
below (the "Option"), comprising an aggregate of 30,000 shares of
the Company's Common Stock, $.01 par value per share, (the
"Shares") upon the terms and conditions set forth in this
Agreement. The grant date of the Option shall be the date of
this Agreement. Optionee hereby accepts the Option, and agrees
to be bound by all the terms and provisions of this Agreement.
Name
Number of
Shares
Xxxxx X. Xxxxxxxxxx
14,616
Xxxxxx X. Xxxxxxxx
14,616
Xxxxxx X. Xxxx
768
Section b. Adjustments in Option
In the event that the outstanding Shares subject to the
Option are changed into or exchanged for a different number or
kind of shares or securities of the Company, or of another
corporation, by reason of reorganization, merger or other
subdivision, consolidation, recapitalization, reclassification,
stock split, stock dividend or combination of shares or similar
event, the Stockholders shall make an appropriate and equitable
adjustment in the Option so that Optionee's proportionate
interest shall be maintained as before the occurrence of such
event to the maximum extent possible. Any adjustment made by the
Stockholders shall be final and binding upon Optionee and all
other interested parties.
Section c. Option Terms
The Option granted under this Agreement shall be
subject to the following terms and conditions:
(1) Price. The exercise price for the
Shares subject to the Option shall be
$11.00 per Share.
(2) Term. The Option shall expire on
February 15, 1999.
(3) Vesting. At the effective time of
the Merger, the Option shall become
fully vested and exercisable
immediately.
(4) Exercise. To the extent that the
Option has become exercisable in
accordance with this Agreement, it may
be exercised in whole or in part at any
time prior to its expiration or
termination, by providing written notice
to each Stockholder of the number of
Shares as to which the Option is being
exercised, and enclosing payment for the
Shares with respect to which the Option
is being exercised. Such payment shall
be in cash. Partial exercise shall be
for whole Shares only and shall not be
for less than five thousand (5,000)
Shares in the aggregate unless the
number of Shares purchased constitutes
the total number of Shares then
remaining subject to the Option or the
Stockholders permit such smaller
exercise in their sole discretion.
Notation of any partial exercise shall
be made by the Stockholders on Schedule
I hereto. Any exercise shall be
allotted among the Stockholders in the
following ratios:
Percentage of
Exercise
Stockholder Applied to
his Shares
Xxxxx X. Xxxxxxxxxx
48.720%
Xxxxxx X. Xxxxxxxx
48.720%
Xxxxxx X. Xxxx
2.560%
Section d. Nontransferability
The Option shall not be transferable other than by will or
the applicable laws of descent and distribution, and no transfer
so effected shall be effective to bind the Stockholders unless
the Stockholders have been furnished with written notice thereof
and such evidence as the Stockholders may deem necessary to
establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions of the
Option.
Section e. Conditions to Issuance of Stock
Certificates
(1) If required, the stock certificates
evidencing the Shares shall bear legends
restricting transferability; in substantially
the form indicated below:
"These Shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"),
and may not be resold, pledged or otherwise transferred
unless they have been registered under the Securities Act or
unless an exemption from registration is available."
(2) The Stockholders shall not be required
to deliver any certificate or certificates
for Shares deliverable upon any exercise of
the Option prior to fulfillment of all of the
following conditions:
(a) The completion of any registration
or other qualification of such Shares
under any state or federal law or under
rulings or regulations of the Securities
and Exchange Commission or of any other
governmental regulatory body, or the
obtaining of approval or other clearance
from any state or federal governmental
agency which the Stockholders shall, in
their sole discretion, deem necessary or
advisable.
(b) In the event that the Shares have
not been registered under the
Securities Act, if the Stockholders
shall, in their sole discretion, deem it
necessary or advisable, the execution
by Optionee of a written representation
and agreement, in a form satisfactory to
the Stockholders, in which Optionee
represents that the Shares acquired by
him upon exercise are being acquired for
investment and not with a view to
distribution thereof.
The parties to this Agreement understand, acknowledge and
agree that any transfer of all or any part of the Shares, or any
change in the ownership of the Company, shall be subject to the
requirements of the Communications Act of 1934, as amended, and
the rules and regulations of the Federal Communications
Commission ("FCC") as may be in effect at the time of such
transfer, and that before certain rights provided for in this
Agreement are exercised, it may be necessary to obtain any
approval of the FCC required under applicable law.
Section 2. Miscellaneous.
Section a. Entire Agreement: Amendment
This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof. Any term or
provision of this Agreement may be waived at any time by the
party which is entitled to the benefit thereof, and any term or
provision of this Agreement may be amended or supplemented at any
time by the mutual consent of the parties hereto, except that any
waiver of any term or condition, or any amendment, of this
Agreement must be in writing.
Section b. Governing Law
The laws of the State of New York shall govern the
interpretation, validity and performance of the terms of this
Agreement regardless of the law that might be applied under
principles of conflict of laws.
Section c. Successors
This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the respective
parties.
Section d. Notices
All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by
registered or certified mail, return receipt requested, to those
listed below at their following respective addresses or at such
other address as each may specify by notice to the others:
To Optionee:
c/o Apollo Partners LLC
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
To the Stockholders:
c/o International Post Limited
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
With a copy to each of the Stockholders at the
following addresses:
Xxxxx X. Xxxxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
Xxxxxx X. Xxxxxxxx
c/o Video Services Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Xxxxxx X. Xxxx
0 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
All notices to the Stockholders shall also be sent to:
Xxxxxx Xxxxxx Butowsky Xxxxxxx Shalov & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Fax Number: (000) 000-0000
Section e. Waiver
The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be
considered a waiver thereof or deprive that party of the right
thereafter to insist upon strict adherence to that term or any
other term of this Agreement.
Section f. Titles; Construction
Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
- - - - - - - - - - - - - - - - - -
Xxxxx X. Xxxxxxxxxx
- - - - - - - - - - - - - - - - - -
Xxxxxx X. Xxxxxxxx
- - - - - - - - - - - - - - - - - -
Xxxxxx X. Xxxx
Optionee:
- - - - - - - - - - - - - - - - - -
SCHEDULE I
Notations As to Partial Exercise
Number of Balance of
Date of Purchased Shares on Authorized Notation
Exercise Shares Option Signature Date
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated ------------, 1997, by and among
Xxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxx (each
a "Pledgor" and collectively, the "Pledgors"), and --------------
(the "Pledgee").
WHEREAS, the Pledgors and the Pledgee are parties to a Stock
Option Agreement, dated as of the date hereof (the "Stock Option
Agreement"), pursuant to which each Pledgor agreed to sell to the
Pledgee, upon the exercise of the options set forth therein,
certain shares of the issued and outstanding Common Stock, $.01
par value per share, of International Post Limited ("IPL") owned
that Pledgor (with respect to each Pledgor, the "Pledged
Securities").
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements set forth herein and in the
Stock Option Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto desiring to be legally bound do
hereby agree as follows:
Section 1. Grant/Rights of Pledgors. Each Pledgor, as
collateral security for all of its obligations set forth in the
Stock Option Agreement (all such obligations of such Pledgor
being herein collectively referred to as the "Secured
Obligations") hereby deposits with the law firm of Xxxxxxxx Xxxxx
Singer & Xxxxxxxxx, as agent of Pledgee (the "Agent") the Pledged
Securities, as set forth in the table below, and hereby grants to
the Pledgee a security interest in and a lien upon, and hereby
assigns, transfers, pledges and sets over to the Pledgee, the
Pledged Securities, and the certificates representing the Pledged
Securities (the "Collateral") which Pledged Securities are being
delivered simultaneously herewith, together with stock powers
duly endorsed in blank.
Name
Number of Shares Deposited
as Pledged Securities
Xxxxx X. Xxxxxxxxxx
14,616
Xxxxxx X. Xxxxxxxx
14,616
Xxxxxx X. Xxxx
768
So long as a Default (as defined below) shall not have
occurred and the notice referred to in Section 7 hereof shall not
have been given:
(a) Each Pledgor shall be entitled:
(i) to exercise the voting power with respect to
the Collateral pledged by him for any purpose not in violation,
or which will not result in a violation, of the terms of this
Agreement, and the Pledgee shall execute or cause to be executed
from time to time such proxies or other instruments, if any, in
favor of each Pledgor or its nominee, in such form and for such
purposes as shall be reasonably required by the Pledgor and as
shall be specified in a written request therefor, to enable the
Pledgor to exercise such voting power with respect to the
Collateral; and
(ii) to receive and retain for its own account any
and all cash dividends at any time and from time to time declared
or paid upon any of the Collateral pledged by him; and
(b) The Agent shall retain possession of the Collateral,
except as otherwise set forth herein; it being understood and
agreed that, following the occurrence of a Default, the Agent
shall take such action as shall be directed by the Pledgee in
furtherance of its rights hereunder and under applicable law.
The term "Default" shall mean, with respect to any Pledgor:
(a) any material breach by such Pledgor of the terms of this
Agreement or the Stock Option Agreement which is not cured within
three (3) days following written notice thereof from Pledgee to
the Pledgor; (b) any breach by such Pledgor of the terms of
Sections 1.1 and 1.3(d) of the Stock Option Agreement which is
not cured within three (3) days following written notice thereof
from Pledgee to the Pledgor; and (c) the commencement by the
Pledgor of a voluntary case or other proceeding with respect to
itself or its debts under any bankruptcy, insolvency or other
similar law, or an involuntary case or other proceeding shall be
commenced against the Pledgor with respect to it or its debts
under any bankruptcy, insolvency or other similar law.
Section 2. Stock Dividends, Distributions, etc. In case
any dividend payable in shares of stock or other securities of
IPL shall be declared on any of the Pledged Securities, or any
shares of stock or fractions thereof or any other securities of
IPL shall be issued pursuant to any stock split, subdivision,
reclassification, share exchange, consolidation or merger
involving any of the Pledged Securities, the shares so
distributed shall be delivered to the Agent (accompanied by
proper instruments of assignment and/or stock powers executed by
each Pledgor in accordance with the Pledgee's instruction) to be
held by it as collateral security for the Secured Obligations and
shall be deemed, for all purposes of this Agreement, to be
Pledged Securities and, therefore, part of the Collateral.
Section 3. Representations and Warranties. Each of the
Pledgors represent and warrant to the Pledgee that it is the
legal and beneficial owner of the Collateral pledged by him free
and clear of any lien, security interest, option or other charge
or encumbrance (the "Existing Lien") and that the pledge of the
Collateral pursuant to this Agreement creates a valid and
perfected first security interest in the Collateral, securing the
payment and performance of the Secured Obligations.
Section 4. Covenants. Each Pledgor covenants and agrees as
follows with respect to itself:
(a) the Pledgor shall not (i) sell or otherwise dispose
of, or grant any option with respect to, any of the Collateral,
or (ii) create or permit to exist any lien, security interest, or
other charge or encumbrance upon or with respect to any of the
Collateral;
(b) at any time and from time to time on and after the
date of this Agreement, at the expense of such Pledgor, the
Pledgor will promptly execute and deliver all further instruments
and documents (including, without limitation, financing
statements), and take all further actions, that may be reasonably
necessary or desirable, or that the Pledgee may reasonably
request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the
Pledgee to exercise and enforce its rights and remedies with
respect to the Collateral or any portion thereof; and
(c) the Pledgor shall promptly notify the Pledgee of any
lien, security interest, encumbrance or claim made or threatened
against the Collateral.
Section 5. Pledgee May Perform. If a Pledgor fails to
perform any agreement contained herein, the Pledgee may (but
shall not be obligated to) perform, or cause performance of, such
agreement, and the expenses of the Pledgee incurred in connection
therewith shall be payable by the Pledgor.
Section 6. Agent and Pledgee's Duty of Care. Other than
exercise of reasonable care in the physical custody of the
Collateral while held by the Agent or the Pledgee hereunder,
neither the Pledgee nor the Agent shall have any responsibility
for, or obligation or duty with respect to, all or any part of
the Collateral or any matter or proceeding arising out of or
relating thereto, including, without limitation, any obligation
or duty to collect any sums due with respect thereto or to
protect or preserve any rights against prior parties or any other
rights pertaining thereto, it being understood and agreed that
each Pledgor shall be responsible for preservation of all of its
and the Pledgee's rights in the Collateral. Without limiting the
generality of the foregoing, the Pledgee and Agent shall be
conclusively deemed to have exercised reasonable care in the
custody of the Collateral if it takes such action, for purposes
of preserving rights in the Collateral, as each of the Pledgors
may reasonably request in writing; provided, however, that no
refusal, failure, omission or delay by the Pledgee in complying
with any such request shall be deemed to be a failure to exercise
reasonable care. The rights and powers conferred upon the
Pledgee hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon it to exercise any
such rights or powers.
It is agreed that the duties and obligations of the Agent
are those herein specifically provided. The Agent shall not
incur any liability whatsoever so long as it has acted in good
faith, except for willful misconduct or gross negligence.
The Agent may consult with counsel of its choice (other than
any lawyer practicing with the Agent, if any), and shall not be
liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel. The Agent shall not
be bound by any modification, amendment, termination,
cancellation, rescission or supersession of this Agreement,
unless it shall have given its prior written consent thereto.
The Agent may at any time resign hereunder by giving written
notice of its resignation to the Pledgors and Pledgee at the
addresses set forth in Section 18 hereof, at least ten (10) days
prior to the date specified for such resignation to take effect,
and, upon the effective date of such resignation, all Collateral
then held by the Agent hereunder shall be delivered by it to such
substitute agent, undertaking the obligations and duties of the
Agent hereunder, as shall be specified by Pledgee and approved by
Pledgors (such approval not to be unreasonably withheld),
whereupon all of Agent's obligations and duties hereunder shall
cease and terminate. If no such person shall have been
designated by such date, all obligations of Agent hereunder shall
nevertheless cease and terminate except that Agent's sole
responsibility thereafter shall be to keep all the Collateral
then held by it and to deliver the same to a person designated in
writing by Pledgee (approved by Pledgors in the manner set forth
above) or in accordance with the directions of a final, binding,
non-appealable order or judgment of a court of competent
jurisdiction.
The parties hereto acknowledge that the Agent is the agent
of Pledgee and not of Pledgors and Pledgee agrees to indemnify,
defend and hold the Agent harmless from and against any and all
loss, damage, tax, liability and expense that may be incurred by
the Agent arising out of or in connection with its acceptance of
appointment as Agent hereunder, except as caused by its gross
negligence or willful misconduct, including, without limitation,
the legal costs and expenses of defending itself against any
claim or liability in connection with its performance hereunder.
Agent shall look solely to Pledgee for any payment under this
Agreement provided, however, that anything in this Agreement to
the contrary notwithstanding, the Agent agrees and acknowledges
that it shall not charge any fee for any of the services to be
provided by it hereunder.
Section 7. Rights of Pledgee. If a Default shall have
occurred and is continuing with respect to any Pledgor, the
Pledgee may (upon payment of the applicable option exercise
price) immediately transfer the Collateral pledged by that
Pledgor into its own name or the name of a nominee. If a Default
shall have occurred and be continuing, and the Pledgee shall have
given the individual Pledgor in Default written notice (which may
be telecopied or telegraphed) of the termination of such
Pledgor's rights under Section 1 above, then such Pledgor's
rights under Section 1 above shall cease, and the Pledgee shall
thereupon and thereafter be exclusively entitled to receive and
retain, as collateral security for the Secured Obligations (to be
applied as provided or permitted herein), any and all dividends
and other distributions of any kind at any time and from time to
time declared or paid upon or with respect to the Collateral
pledged by such Pledgor as set forth in Section 1 and to exercise
all voting and consensual powers with respect to the Collateral
pledged by such Pledgor.
Section 8. Remedies. If a Default shall have occurred and
be continuing with respect to a Pledgor, in addition to all other
rights and remedies at law or in equity, the Pledgee may exercise
all rights of a secured party under the Uniform Commercial Code
as in effect in the State of New York (the "UCC") from time to
time, and, without obligation to resort to other security or any
other assurance of payment, may (at the Pledgee's discretion) at
any time and from time to time:
(a) sell, resell, assign and deliver, in its discretion,
that portion of the Collateral pledged by the Pledgor in
Default, in one or more parcels, at the same or different times,
at public or private sale, for cash, upon credit or for future
delivery, and at such price or prices and on such terms as the
Pledgee may determine, the Pledgor in Default hereby agreeing
that, upon such sale, any and all equity or right of redemption
of such Pledgor shall be automatically waived and released
without any further action on the part of the Pledgor. In the
event of any such sale, the Pledgee shall give such Pledgor ten
(10) days' prior written notice of the time, place and manner of
any public sale or ten (10) days' written notice of the time
after which any private sale or other intended disposition of
such Pledgor's proportionate contribution to the Collateral is to
be made, except that, if such Collateral threatens to decline
speedily in value or is of a type customarily sold on a
recognized market, the Pledgee may sell or otherwise dispose of
such portions of the Collateral without notification,
advertisement, or other notice of any kind. Upon each such sale,
the Pledgors (or any of them) may bid for and purchase all or any
of the Collateral being sold and, if a private sale, a Pledgor's
purchase thereof shall be considered commercially reasonable.
Upon each such sale, the Pledgee may purchase all or any of the
Collateral being sold, free from any equity or right of
redemption, which, upon each such sale, shall be waived and
released. The proceeds of each such sale shall be applied as
provided in Section 9 hereof. For the purposes of this Section
8, an agreement to sell any or all the Collateral entered into
after the applicable notice period specified above shall be
treated as a sale thereof, and the Pledgee shall be entitled to
carry out such sale pursuant to such agreement and a Pledgor
shall not be entitled to the return of any of the Collateral
subject thereto notwithstanding the fact that after the Pledgee
shall have entered into any such agreement the Secured
Obligations shall have been paid in full;
(b) appropriate and apply all proceeds of or held as
part of the Collateral pledged by such Pledgor to the applicable
Secured Obligations in accordance with Section 9 hereof;
(c) retain all or such portion of the Collateral pledged
by such Pledgor as shall aggregate in value to an amount equal to
the applicable Secured Obligations, in satisfaction of the
applicable Secured Obligations, whenever the circumstances are
such that the Pledgee is entitled to do so under the UCC;
(d) reduce the Pledgee's claim to judgment, foreclose,
or otherwise enforce the security interest in all or any part of
the Collateral by any available judicial procedure; or
(e) apply (by appropriate judicial proceedings) for
appointment of a receiver for that amount of the Collateral
pledged by the Pledgor in default, and each Pledgor hereby
consents to any such appointment.
Because of the Securities Act of 1933, as amended, and other
applicable securities laws and regulations (collectively, the
"Securities Laws"), there may be legal restrictions or
limitations affecting the Pledgee in attempts to dispose of all
or any portion of the Collateral in the enforcement of its rights
and remedies hereunder. For this reason, the Pledgee is hereby
authorized by each Pledgor, upon the occurrence and continuance
of any Default with respect to that Pledgor, to sell or otherwise
dispose of that portion of the Collateral pledged by the Pledgor
in Default at a private sale subject to investment letter or in
any manner which will not require that any of the Collateral be
registered under the Securities Laws. The Pledgors acknowledge
and understand that the sale under such circumstances may yield a
lower price for the Collateral, or any portion thereof, than
would otherwise be obtainable if the Collateral were registered
and sold in the open market. The Pledgors agree that the
Pledgee's so selling that portion of the Collateral pledged by
the Pledgor in Default, or any portion thereof, at such private
sale or sales shall not be evidence that the Pledgee acted in a
manner that is not commercially reasonable under the UCC.
Section 9. Proceeds. All proceeds that the Pledgee shall
receive, in accordance with the provisions hereof, by sale,
collection or other realization of or upon the Collateral pledged
by a Pledgor, shall be applied in the following manner: First, to
the payment of all costs and expenses incurred in connection with
the administration and enforcement of, or the preservation of any
rights under, this Agreement or any of the reasonable expenses
and disbursements of the Pledgee (including, without limitation,
the fees and disbursements of its counsel and agents) in respect
of a Default by such Pledgor; Second, to the reimbursement of the
Pledgee for all disbursements made by it for taxes, assessments,
or liens superior to the security interest of the Pledgee which
the Pledgee must pay in respect to that Pledgor; Third, to the
payment of the other applicable to such Pledgor Secured
Obligations, in such order as the Pledgee may determine; and
Fourth, the balance thereof, if any, shall be returned to such
Pledgor. If the proceeds of the sale, collection or other
realization of or upon the Collateral are insufficient to pay in
full the applicable Secured Obligations (after any prior
application of proceeds as described above in this Section 9),
the Pledgor in Default shall remain liable for any deficiency.
Section 10. Absolute Security Interest. All rights of the
Pledgee and the security interest hereunder, and all obligations
of each of the Pledgors hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any
agreement or instrument relating hereto;
(b) any change in the time, manner or place of, or in
any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from
the Note;
(c) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent
to departure from any guaranty, for all or any of the Secured
Obligations; or
(d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Pledgors in respect of the Secured Obligations.
Section 11. Transfer of Collateral. If a Default shall
have occurred, the Pledgee shall have the right, for and in the
name, place and stead of the Pledgor in Default (which
appointment is irrevocable and coupled with an interest), to (a)
execute endorsements, stock powers, assignments or other
instruments of conveyance or transfer with respect to the portion
of the Collateral pledged by the Pledgor in Default, (b) demand,
collect, xxx for, recover, receive and give acquittance and
receipt for monies due and to become due under or with respect to
any of such Collateral, (c) receive, endorse, and collect any
drafts or other instruments, documents, and chattel paper in
connection with the immediately preceding clause (b) of this
Section 11, and (d) take any other action and execute any other
instrument or document that the Pledgee may deem necessary or
advisable to accomplish the purposes of this Agreement.
The parties to this Agreement understand, acknowledge and
agree that any transfer of all or any part of the Pledged
Securities, or any change in the ownership of the Company, shall
be subject to the requirements of the Communications Act of 1934,
as amended, and the rules and regulations of the Federal
Communications Commission ("FCC") as may be in effect at the time
of such transfer, and that before certain remedies provided for
in this Agreement are utilized it may be necessary to obtain any
approval of the FCC required under applicable law.
Section 12. No Waiver. No failure or delay on the part of
the Pledgee in exercising any of its rights, powers, or remedies,
nor any partial or single exercise thereof, shall constitute a
waiver thereof or shall preclude any other or future exercise
thereof or any exercise of any other right, power, or remedy.
None of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner whatsoever
unless in writing and duly signed by the party against whom
enforcement of such change or waiver, modification, or variance
is sought. Any waiver or consent by the Pledgee shall be
effective only in the specific instance and for the specific
purpose for which given.
Section 13. Certain Events. The obligations of each of the
Pledgors hereunder shall remain in full force and effect without
regard to, and shall not be impaired by: (a) any bankruptcy,
insolvency, reorganization, arrangement, readjustment,
composition, liquidation or the like of any of the Pledgors; (b)
any exercise or non-exercise, or any waiver, by the Pledgee of
any of its right under or in respect of the Secured Obligations
or any security for any of the Secured Obligations (other than to
the extent that the Pledgee terminates or waives any obligations
of any of the Pledgors under this Agreement) or (c) any amendment
to or modification of, the Secured Obligations or any security
for any of the Secured Obligations (other than to the extent that
the Pledgee agrees to amend or modify any obligation of the
Pledgors under this Agreement) whether or not the Pledgors shall
have notice or knowledge of any of the foregoing.
Section 14. Return of Collateral. After the indefeasible
payment and performance in full of the Secured Obligations in
respect of a Pledgor (including, without limitation, all amounts
which may be paid by the Pledgee in collecting or endorsing all
or any part of such Secured Obligations) or the expiration or
termination of the Stock Option Agreement, each of the Pledgors
shall be entitled to the return of its contribution to the
Pledged Securities and to the other Collateral, which has not
been applied toward the payment in full of the Secured
Obligations, or applied in the manner set forth in the following
sentence without representation or warranty of any kind by the
Pledgee (except a representation that the Pledgee has not
encumbered any of the Collateral). In the event of any exercise
by Pledgee of any option to purchase securities of IPL pursuant
to the Stock Option Agreement, then simultaneously with the
payment of the purchase price thereof pursuant thereto, the
parties hereto and the Agent shall take such action as is
necessary to transfer to the Pledgee such shares so purchased
from those held as Collateral, and all liens granted hereunder
with respect to such shares shall, upon such transfer, cease and
terminate, the same shall no longer constitute Collateral, and
the Collateral shall therefore be reduced to the extent of such
shares, in accordance with the proportionate share of each
Pledgor's pledge.
Section 15. Successors and Assigns. This Agreement is
binding upon each of the Pledgors, the Pledgee and their
respective executors, administrators, successors and assigns and
shall inure to the benefit of the Pledgee and its successors and
assigns.
Section 16. Choice of Law. This Agreement and the rights
and obligations of the parties hereunder shall be construed in
accordance with and governed by the internal laws of the State of
New Jersey, without giving effect to its principles of conflicts
of law.
Section 17. Severability. Any provision of this 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 invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provisions in any other jurisdiction.
Section 18. Notices. All notices, consents and approvals
to be given pursuant to this Agreement shall be in writing and
shall be deemed given when received at the address set forth
below:
If to Pledgors:
Xxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
c/o International Post Limited
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy as follows:
If to Siracusano, to:
Xxxxx X. Xxxxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
If to Xxxxxxxx, to:
Xxxxxx X. Xxxxxxxx
c/o Video Services Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
If to Buck, to:
Xxxxxx X. Xxxx
0 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
If to Pledgee:
c/o Apollo Partners Ltd.
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
If to Agent:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Section 19. Headings. All Section headings contained in
this Agreement are for convenience of reference only, do not form
a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 20. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall constitute an
original hereof, and all of such counterparts, taken together,
shall constitute one and the same instrument.
Section 21. Reinstatement. This Agreement shall continue
to be effective, or be reinstated, as the case may be, if at any
time a payment, or any part thereof, of the Secured Obligations
to the Pledgee is rescinded or must otherwise be restored or
returned by the Pledgee upon the insolvency, bankruptcy, or
reorganization of the Pledgors, or otherwise, all as though such
payment had not been made.
IN WITNESS WHEREOF, the Pledgors and the Pledgee have duly
executed and delivered this Agreement as of the date first above
written.
-----------------------------
Xxxxx X. Xxxxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxx
PLEDGEE:
-----------------------------
This undersigned hereby accepts
the duties and obligations of
the Agent set forth above and
acknowledges receipt from Xxxxx
Xxxxxxxxxx, Xxxxxx Xxxxxxxx,
Xxxxxx Xxxx of certificates representing
an aggregate of 30,000 shares of
the Common Stock of International Post
Limited:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx LLP
By: -----------------------------
Xxxx X. Xxxxxxx, Partner
