Exhibit 10.59
AMENDED AND RESTATED
LOAN AND PLEDGE AGREEMENT
THIS AMENDED AND RESTATED LOAN AND PLEDGE AGREEMENT (this "Amended Agreement"),
dated as of November 21, 2002, is made by and between Xxxxxxx Technology
Company, Inc. ("Payee"), a Delaware Corporation with an office and principal
place of business in Shelton, Connecticut, and Xxxx X. Xxxxx, Xx. ("Payor"),
residing in Westport, Connecticut.
WHEREAS, Payor and Payee previously entered into a Loan and Pledge Agreement
dated as of October 17, 2001 (the "Agreement"); and
WHEREAS, the parties now wish to amend and restate the Agreement upon the terms
and conditions as hereinafter set forth;
NOW, THEREFORE, Payor and Payee hereby agree as follows:
Section 1. LOAN AGREEMENT
In October 2001, Payee made a loan to Payor (the "Loan") in the principal amount
of six hundred seventy-five thousand ($675,000.00) dollars, payable upon the
demand of Payee, in order to enable Payor to purchase 375,000 shares of Class B
Common Stock of Payee. The Loan was evidenced by a promissory note dated October
17, 2001 of even date therewith (the "Original Note"), in the principal amount
of six hundred seventy-five thousand ($675,000.00) dollars.
Payor pledged to Payee, as security collateral for the Loan, 375,000 shares of
Class B Common Stock of Payee (the "Pledged Shares") pursuant to the pledge
provisions set forth in the Agreement.
Payor repaid $225,000 of the principal amount of the Loan by surrendering to
Payee the right to receive from Payee supplemental retirement benefits in the
amount of $225,000 with the result that there remains unpaid $450,000 principal
amount of the Loan, and interest accrued but unpaid thereon in the amount of
$36,893.84.
The parties have agreed to amend the Loan, cancel the Original Note and
substitute a new promissory note in the principal amount of four hundred fifty
thousand ($450,000.00) dollars, plus accrued but unpaid interest of thirty-six
thousand eight hundred ninety-three and 84/100 ($36,893.84) dollars, dated of
even date herewith (the "Note") a copy of which is attached hereto.
Amended and Restated Loan and Pledge Agreement
November 21, 2002
Page 2 of 4
Section 2. PLEDGE AGREEMENT
In connection with the Loan, Payor executed and delivered to Payee the Original
Note and pledged the Pledged Shares to secure payment of all amounts owing under
the Original Note. Payor hereby agrees to execute and deliver to Payee the Note,
and hereby re-pledges with and re-hypothecates to Payee the Pledged Shares, as
collateral security for the prompt and complete payment, in full, when due, of
all principal and interest on and all other amounts, if any, that may become due
under the terms of the Note, as amended, and of the $36,893.84 of interest
accrued but unpaid under the Original Note. Payor has delivered to Payee stock
certificates representing the Pledged Shares, and agrees to deliver to Payee
stock powers and a proxy, coupled with an interest, duly executed by Payor,
covering the Pledged Shares.
Section 3. PAYOR'S REPRESENTATIONS AND WARRANTIES
Payor represents and warrants to Payee that Payor owns the Pledged Shares free
and clear of all liens, claims, charges and other encumbrances (except as
provided for by this Amended Agreement). Payor agrees that during the term of
this Amended Agreement, he will continue to own the Pledged Shares free and
clear of all liens, claims, charges and other encumbrances (except as provided
by this Amended Agreement).
Section 4. VOTING RIGHTS, ETC.
So long as any amounts of principal or interest remain outstanding under the
Loan, Payor shall not be entitled to vote the Pledged Shares or give consents,
ratifications or waivers in respect thereof; Payor hereby grants to the Chief
Executive Officer of Payee all rights to vote said shares unless and until the
Loan is paid in full. Said right to vote said shares is coupled with an
interest.
Section 5. EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall constitute an
"Event of Default" as that term is used in this Agreement; provided, however,
that upon the occurrence of any Event of Default under Section 5(iii) or Section
5(iv), Payor shall have thirty (30) days after receiving written notice from
Payee of such an Event of Default within which to cure such Event of Default:
(i) Default in the payment, when due, of any installment of interest on
the Note unless waived or extended by Payee;
(ii) Default in the payment, when due, of any principal of the Note
unless waived or extended by Payee;
Amended and Restated Loan and Pledge Agreement
November 21, 2002
Page 3 of 4
(iii) The breach of any covenant, representation or warranty of Payor
contained in this Amended Agreement;
(iv) The failure of Payor to perform any of his obligations under this
Amended Agreement.
Section 6. RIGHTS FOLLOWING AN EVENT OF DEFAULT
Upon the occurrence of any Event of Default, Payee may, at its sole election,
exercise any or all of the following rights:
(i) Transfer into Payee's name, or into the name of Payee's nominee(s),
any or all of the Pledged Shares; or
(ii) Sell, transfer, assign, pledge, convey or make any agreement with
respect to the Pledged Shares, which right Payee agrees to make
reasonable efforts to exercise prior to commencing any court
proceedings to enforce Payee's rights under the Note or this Amended
Agreement.
Section 7. APPLICATION OF PROCEEDS
The proceeds of any sale, transfer, assignment, pledge or conveyance of the
Pledged Shares pursuant to Section 6 (ii) shall be applied by Payee as follows:
(i) First, to the payment of all costs and expenses incurred by Payee in
connection with Payee's actions pursuant to Section 6, including,
but not limited to, all court costs and fees and expenses of the
agents and legal counsel of Payee, and any other costs or expenses
incurred in connection with the exercise of any right or remedy
hereunder:
(ii) Second, to the payment in full of the outstanding principal of and
accrued and unpaid interest on the Note; and
(iii) Third, to Payor, his successors and assigns, or as a court of
competent jurisdiction may otherwise direct.
Amended and Restated Loan and Pledge Agreement
November 21, 2002
Page 4 of 4
Section 8. TERMINATION OF EMPLOYMENT
Payor's employment with Payee terminated November 29, 2002. Payee agrees that
for a period of two years after such termination, Payee will not demand payment
of the outstanding principal of and accrued and unpaid interest on the Note or
the accrued and unpaid interest on the Original Note.
Section 9. MISCELLANEOUS
Notices under this Amended Agreement shall be in writing and delivered to the
parties at the addresses specified below. This Amended Agreement shall be
binding and inure to the benefit of the parties hereto and their respective
heirs, administrators, successors and assigns but shall not be assignable by any
party without the written consent of the other. This Amended Agreement shall not
be amended, modified, waived discharged or terminated except by a writing
executed by the parties hereto. This Amended Agreement may be executed in any
number of counterparts and shall be governed by and construed in accordance with
the laws of the State of Connecticut.
PAYEE PAYOR
Xxxxxxx Technology Company, Inc. Xxxx X. Xxxxx, Xx.
-------------------------------- -------------------------
By: Xxxxxx X. Xxxxx Xxxx X. Xxxxx, Xx.
Its Chairman, President and Chief Executive Officer
Address for notices: Address for notices:
00 Xxxxxxxx Xxxxx 0 Xxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
