Exhibit 10.37
PLEDGE AGREEMENT
This is a pledge agreement made as of the 3rd day of January 2000
between Xxxxxx Xxxxxx, an individual residing at 00 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Pledgor"), and Xxxxxxxxx.xxx, Inc., a corporation
organized under the laws of Delaware with its principal office at 0000 Xxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Pledgee").
1. PLEDGE OF COLLATERAL. Pledgor hereby pledges to Pledgee, and grants
Pledgee a security interest in, 58,744 shares of Class B Common Stock, $0.01 par
value per share, of the Pledgee, which are owned by Pledgee which Pledgor has
delivered to Pledgee, as well as all other instruments, documents, stock
certificates, money and goods as may be issued to Pledgee or become issuable to
Pledgee from time to time as a result of its ownership of such Class B Common
Stock, whether through delivery by Pledgor or otherwise, and all proceeds of and
substitutions for the foregoing (the "Collateral").
2. OBLIGATIONS SECURED. The security interest in the Collateral granted
hereby secures payment and performance of all liabilities of Pledgor to Pledgee
arising under that promissory note from Pledgor to Pledgee of even date herewith
in the principal amount of $176,448.11 (the "Note"), together with all interest,
fees, charges and expenses with respect to such Note (the "Obligations").
3. PLEDGEE'S RIGHTS AND DUTIES WITH RESPECT TO THE COLLATERAL.
Pledgee's only duty with respect to the Collateral shall be (a) to exercise
reasonable care to secure the safe custody thereof and (b) after an Event of
Default shall have occurred and be continuing, to act in a commercially
reasonable manner. In addition to Pledgee's rights under section 9 of this
Agreement, after an Event of Default has occurred and is continuing, Pledgee
shall have the right
but not the obligation to (a) demand, xxx for, receive and collect all money or
money damages payable on account of any Collateral, (b) protect, preserve or
assert any other rights of Pledgor or take any other action with respect to the
Collateral, (c) pay any taxes, liens, assessments, insurance premiums or other
charges pertaining to Collateral. Any expenses incurred by Pledgee under the
preceding sentence shall be paid by Pledgor upon demand, become part of the
Obligations secured by the Collateral and bear interest at the rate provided in
the Note until paid. Pledgee shall be relieved of all responsibility for the
Collateral upon surrendering it to Pledgor.
4. PLEDGOR'S WARRANTIES AND INDEMNITY. Pledgor represents, warrants and
covenants (a) that he is and will be the lawful owner of the Collateral, (b)
that the Collateral is and will be fully paid and non-assessable, (c) that the
Pledgor has good title to the Collateral, free and clear of all claims,
mortgages, pledges, liens, security interests, charges, options, restrictions or
other encumbrances, except the pledge and security interest created by this
Agreement and the option and restrictions contained in that Nonstatutory Stock
Option Agreement, dated December 21, 1999, between Pledgor and Pledgee, (d) that
Pledgor has the sole right and lawful authority to pledge the Collateral and
otherwise to comply with the provisions hereof and (e) that the Pledgor will not
sell, assign, transfer or otherwise dispose of, grant any option with respect
to, or pledge or grant any security interest in or otherwise encumber or
restrict any of the Collateral or any interest therein or the proceeds thereof,
except for the pledge thereof and security interest therein provided for in this
Agreement. In the event that any adverse claim is asserted in respect of the
Collateral or any portion thereof, except such as may result from an act of
Pledgee not authorized hereunder, Pledgor promises and agrees to indemnify
Pledgee and hold Pledgee harmless from and against any losses, liabilities,
damages, expenses, costs and reasonable counsel fees incurred
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by Pledgee in exercising any right, power or remedy of Pledgee hereunder or
defending, protecting or enforcing the security interests created hereunder. Any
such loss, liability or expense so incurred shall be paid by Pledgor upon
demand, become part of the Obligations secured by the Collateral and bear
interest at the rate provided in the Note until paid.
5. VOTING OF COLLATERAL. So long as no Event of Default has occurred
hereunder, Pledgor may vote stock and other securities pledged as Collateral.
All such rights of Pledgor to vote and give consents, waivers, and ratifications
with respect to the Collateral shall cease in case an Event of Default hereunder
shall have occurred.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. So long as no event of Default
has occurred hereunder, Pledgor may receive cash dividends, payments of
principal and interest, and other cash distributions payable with respect to
Collateral. Pledgor shall cause all non-cash dividends and distributions with
respect to Collateral to be dis tributed directly to Pledgee, to be held by
Pledgee as additional Collateral, and if any such distribution is made to
Pledgor, Pledgor shall receive such distribution in trust for Pledgee and shall
immediately transfer it to Pledgee.
7. FINANCING STATEMENTS. Pledgor hereby agrees to execute and deliver
any financing statement, or other notices appropriate under applicable law, in
respect of any security interest created pursuant to this Agreement which may at
any time be required or which, in the opinion of Pledgee, may at any time be
desirable. The Pledgee shall bear the cost of filing any such financing
statement or other notices. In the event that any re-recording or refiling
thereof (or the filing of any statements of continuation or assignment of any
financing statement) is required to protect and preserve such lien or security
interest, Pledgor shall, at the Pledgee's cost and expense, cause the same to be
re-recorded and/or refiled at the time and in the manner requested
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by Pledgee. Pledgor hereby irrevocably designates Pledgee, its agents,
representatives and designees, as agents and attorneys-in-fact for Pledgor to
sign such financing statements on behalf of Pledgor.
8. PLEDGOR'S DEFAULT. Pledgor shall be in default hereunder upon the
occurrence of any of the following events (each, an "Event of Default"):
(a) If Pledgor is not generally paying his debts as they
become due (as such phrase is generally used in the context of bankruptcies and
insolvencies), becomes insolvent, files a petition under any chapter of the
United States Bankruptcy Code, 11 U.S.C. Section 101 ET SEQ. (or any similar
petition under any insolvency law of any jurisdiction), has filed against him a
petition under any chapter of the United States Bankruptcy Code, 11 U.S.C.
Section 101 ET SEQ. (or any similar petition under any insolvency law of any
jurisdiction) not dismissed within 90 days, proposes any liquidation,
composition or financial reorganization with his creditors, makes an assignment
or trust mortgage for the benefit of creditors, or if a receiver, trustee,
custodian or similar agent is appointed or takes possession with respect to any
property or business of Pledgor;
(b) If Pledgor dies or becomes incapacitated, or if a
conservator or guardian of Pledgor is appointed, or if Pledgor suffers any other
legal disability, unless, in each case, Pledgor (or his estate, heirs,
representative, guardian or other similar person) pays in full all outstanding
amounts (principal and interest) owing under the Note within 90 days thereafter;
(c) If any lien, encumbrance or adverse claim of any nature
whatsoever is asserted with respect to any Collateral and Pledgor fails to
satisfactorily indemnify Pledgee against the same as required in Section 4
herein above;
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(d) If any representation or warranty of Pledgor hereunder is
or, as the result of any of Pledgor's acts, omissions or conduct, shall become
false;
(e) If Pledgor fails to fulfill any obligation hereunder or
under the Note;
(f) If Pledgor fails to pay or perform any of the Obligations
when such payment of performance is due; or
(g) If Pledgor violates the non-competition, non-solicitation
or confidentiality provisions of any employment or other agreement between
Pledgor and Pledgee.
9. PLEDGEE'S RIGHTS UPON DEFAULT. Upon the occurrence of any Event of
Default, Pledgee may, if Pledgee so elects in its sole option:
(a) at any time and from time to time, sell, assign and
deliver the whole or any part of the Collateral at a sale through a broker in a
public market where securities of the type constituting such Collateral are
usually traded, without any advertisement, presentment, demand for performance,
protest, notice of protest, notice of dishonor or any other notice;
(b) at any time and from time to time sell, assign and deliver
all or any part of the Collateral, or any interest therein, at any other 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 or
prices and on such terms as Pledgee in its absolute discretion may determine,
PROVIDED that (i) at least ten days' notice of the time and place of any such
sale shall be given to Pledgor, and (ii) in the case of any private sale, such
notice shall also contain the minimum terms of the proposed sale;
(c) exercise the right to vote, the right to receive cash
dividends and other distributions, and all other rights with respect to the
Collateral as though Pledgee were the
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absolute owner thereof, whether or not such rights were retained by Pledgor as
against Pledgee before default; and
(d) exercise all other rights available to a secured party
under the Uniform Commercial Code and other applicable law.
10. ASSIGNMENT. The Pledgee may assign this Agreement, or any of its
rights or duties hereunder, at any time without the consent of Pledgor. The
Pledgor may not assign this Agreement, or any of its rights or duties hereunder,
without the written consent of the Pledgee, such consent to be given at the sole
discretion of the Pledgee.
11. APPLICATION OF SALE PROCEEDS. In the event of a sale of Collateral,
the proceeds shall first be applied to the payment of the expenses of the sale,
including brokers' commissions, counsel fees, any taxes or other charges imposed
by law upon the Collateral or the transfer thereof and all other charges paid or
incurred by Pledgee pertaining to the sale; and, second, to satisfy outstanding
Obligations, in the order in which Pledgee elects in its sole discretion; and,
third, the surplus (if any) shall be paid to Pledgor.
12. NOTICES. All notices made or required to be made hereunder shall be
sent by United States first class or certified or registered mail, with postage
prepaid, or delivered by hand to Pledgee or to Pledgor at the addresses first
above written. Notice by mail shall be deemed to have been made on the date when
the notice is deposited in the mail.
13. HEIRS, SUCCESSORS, ETC. This Pledge Agreement and all of its terms
and provisions shall benefit and bind the heirs, successors, assigns,
transferees, executors and administrators of each of the parties hereto.
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14. PLEDGEE'S FORBEARANCE. Any forbearance, failure or delay by Pledgee
in exercising any right, power or remedy hereunder shall not be deemed a waiver
of such right, power or remedy. Any single or partial exercise of any right,
power or remedy of Pledgee shall continue in full force and effect until such
right, power or remedy is specifically waived in writing by Pledgee.
15. FURTHER ASSURANCES. Pledgor will do all such acts, and will furnish
to Pledgee all such financing statements, certificates, legal opinions and other
documents and will obtain all such governmental consents and approvals and will
do or cause to be done all such other things as Pledgee may reasonably request
from time to time in order to give full effect to this Agreement and to secure
the rights of Pledgee hereunder, all without any cost or expense to Pledgee. If
Pledgee so elects, a photocopy of this Agreement may at any time and from time
to time be filed by Pledgee as a financing statement in any recording office in
any jurisdiction.
16. TERMINATION. Upon final payment and performance in full of
Pledgor's obligations hereunder and under the Note, this Agreement shall
terminate and Pledgee shall, at the Pledgor's request and expense, return such
Collateral in the possession or control of Pledgee as has not theretofore been
disposed of pursuant to the provisions hereof, together with any moneys and
other property at the time held by Pledgee hereunder.
17. MISCELLANEOUS. This Agreement and the obligations of Pledgor
hereunder shall for all purposes be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts (excluding the laws applicable to
conflicts or choice of law). The headings of each section of this Agreement are
for convenience only and shall not define or limit the provisions thereof. If
any term of this Agreement shall be held to be invalid, illegal or
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unenforceable, the validity of all other terms hereof shall be in no way
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein.
Pledgor acknowledges receipt of a copy of this Agreement.
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EXECUTED under seal at Boston, Massachusetts as of the date first above
written.
PLEDGOR: PLEDGEE:
Xxxxxxxxx.xxx, Inc.
/s/ Xxxxxx Xxxxxx
------------------------------ By: /s/ Xxxxx Derecho
Xxxxxx Xxxxxx ---------------------------------
Its: CFO
--------------------------------
[SIGNATURE PAGE TO THE PLEDGE AGREEMENT]
