Exhibit 10.5
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated as of December 4, 2001, made by Xxxxxxx Global
Corp., a Delaware corporation (the "Borrower"), to Third Security, LLC, a
Virginia limited liability company (the "Lender"), recites and provides:
RECITALS
WHEREAS, pursuant to the letter of intent (the "LOI"), dated as of December
3, 2001, between the Borrower and the Lender, the Lender has agreed to make a
loan (the "Loan") in the amount of $1,500,000 to the Borrower for the purposes
described in the LOI, such Loan to be evidenced by a secured convertible note
(the "Note") of the Borrower payable to the order of the Lender as provided in
the Note;
WHEREAS, pursuant to the LOI Borrower and Lender have agreed to execute and
deliver an option and put agreement (the "Option and Put Agreement"), dated as
of the date hereof, pursuant to which provides that in the event that the Lender
exercises its put rights thereunder, then the notes issued to the Lender by the
Borrower as consideration for the shares subject to such put rights shall be
secured by this Pledge Agreement; and
WHEREAS, the Lender is willing to make the Loan and to execute the Option
and Put Agreement but only upon the condition, among others, that the Borrower
executes and delivers to the Lender this Pledge Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. Defined Terms. For the purposes of this Pledge Agreement, the following
terms shall have the following meanings:
"Event of Default" shall have the meaning assigned to such term in the
Note.
"Maturity Date" shall have the meaning assigned to such term in the
Note.
"Obligations" means (a) all obligations of the Borrower hereunder, and
(b) all indebtedness, liabilities and obligations of the Borrower to the
Lender, whether now existing or hereafter incurred, direct or indirect,
absolute or contingent, secured or unsecured, matured or unmatured, joint
or several, whether for principal, interest, fees, expenses or otherwise,
arising out of or in connection with any other agreements, documents or
instruments heretofore, now or hereafter executed and delivered by the
Borrower or the Borrower to the Lender or any oral agreement or by
operation of law and whether evidenced by promissory notes or by other
evidences of indebtedness, including without limitation all obligations
under the LOI and the Option and Put Agreement.
"Pledged Assets" means the Pledged Securities, together with all
certificates, options, rights, dividends, other distributions or intangible
rights or assets issued as an addition to, in substitution or in exchange
for, or on account of, any such Pledged Securities, and all proceeds of all
of the foregoing, now or hereafter owned or acquired by the Borrower.
"Pledged Securities" means the capital securities described in
Schedule 1 hereto and all other capital securities now or hereafter
included in the Pledged Assets.
"UCC" means the uniform commercial code as adopted by the State of New
York.
2. Grant of Security Interest.
(a) As collateral security for the prompt and complete payment and
performance when due of all of the Obligations and in order to induce the Lender
to enter into the Option and Put Agreement and make the Loan in accordance with
the terms thereof, the Borrower hereby pledges to the Lender the Pledged Assets
and grants to the Lender a lien on and security interest therein.
(b) If the Borrower shall become entitled to receive or shall receive,
in connection with any of the Pledged Securities, any:
(i) Certificate or other evidence of ownership, including, but
without limitation, any certificate representing a stock dividend or in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination, stock split, spin-off or split-off;
(ii) Option, warrant, or right, whether as an addition to or in
substitution or in exchange for any of the Pledged Securities, or otherwise;
(iii) Dividend or distribution payable in property, including
capital securities issued by an issuer other than the issuer of any of the
Pledged Securities; or
(iv) Dividends or distributions of any sort (other than those
permitted to be retained by the Borrower pursuant to Section 2(d));
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then the Borrower shall accept the same as the agent of the Lender, in trust for
the Lender, and shall deliver them forthwith to the Lender in the exact form
received with, as applicable, the Borrower's endorsement when necessary, or
appropriate stock powers duly executed in blank, to be held by the Lender,
subject to the terms hereof, as part of the Pledged Assets.
(c) Prior to the occurrence of an Event of Default, the Borrower shall
retain all voting rights with respect to the Pledged Securities. At any time the
Lender, at its option, may have any or all of the Pledged Securities registered
in its name or that of its nominee on the books of the issuer of the Pledged
Securities, and the Borrower hereby covenants that, upon the Lender's request,
the Borrower will cause the issuer of the Pledged Securities to effect such
registration. If such registration is effected prior to the occurrence of an
Event of Default, the Borrower shall nevertheless retain all voting rights with
respect to the Pledged Securities, and, for that purpose, the Lender shall
execute and deliver to the Borrower all necessary proxies. Immediately and
without further notice, upon the occurrence of an Event of Default, whether or
not the Pledged Securities shall have been registered in the name of the Lender
or its nominee, the Lender or its nominee shall have, with respect to the
Pledged Securities, the right to exercise all voting rights with respect thereto
and all conversion, exchange, subscription or other rights, privileges or
options as any owner or holder pertaining thereto as if it were the absolute
owner thereof, including, without limitation, the right to exchange any or all
of the Pledged Securities 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 Pledged Securities, and, in connection therewith, to deliver any of the
Pledged Securities to any committee, depository, 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
the Lender 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 or
any delay in so doing.
(d) Unless an Event of Default has occurred and is continuing, the
Borrower shall be entitled, if not prohibited by the Note, to receive for its
own use cash dividends or distributions on the Pledged Securities. Upon the
occurrence of an Event of Default, the Lender may require any such cash
dividends or distributions to be delivered to the Lender as additional security
hereunder or applied toward the satisfaction of the Obligations.
3. Remedies, Rights Upon Default.
(a) Upon and after the occurrence of an Event of Default, the Lender
may, 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 the Borrower or any other person (all of which are, to
the extent permitted by law, hereby expressly waived), forthwith realize upon
the Pledged Assets or any part thereof, and may forthwith, or agree to, sell or
otherwise dispose of and deliver the Pledged Assets or any part thereof or
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interest therein, in one or more parcels at public or private sale or sales, at
any exchange, broker's board or at any of the Lender's offices 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 Pledged Securities purchase the
shares or other interests constituting the Pledged Securities for investment and
without any intention to make a distribution thereof) as it may deem best, for
cash or on credit, or for future delivery without assumption of any credit risk,
with the right to the Lender or any purchaser to purchase upon any such sale the
whole or any part of the Pledged Assets free of any right or equity of
redemption in the Borrower, which right or equity is hereby expressly waived and
released.
(b) The proceeds of any such disposition or other action by the Lender
shall be applied as follows:
(i) First, to the costs and expenses incurred in connection
therewith or incidental thereto or to the care or safekeeping of any of the
Pledged Assets or in any way relating to the rights of the Lender hereunder,
including reasonable attorneys' fees and legal expenses;
(ii) Second, to the satisfaction of the Obligations;
(iii) Third, to the payment of any other amounts required by
applicable law; and
(iv) Fourth, to the Borrower to the extent of any surplus
proceeds.
(c) The Lender need not give more than five days' notice of the time
and place of any public sale or of the time after which a private sale may take
place, which notice the Borrower hereby deems reasonable.
4. Representations and Warranties of Borrower. The Borrower represents and
warrants that:
(a) It has, and has duly exercised, all requisite power and authority
to enter into this Pledge Agreement, to pledge the Pledged Assets for the
purposes described in the recitals to this Pledge Agreement, and to carry out
the transactions contemplated by this Pledge Agreement;
(b) It is the legal and beneficial owner of all of the Pledged Assets;
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(c) Except as otherwise set forth in Schedule 1 hereto, the Pledged
Securities constitute all of the issued and outstanding capital securities of
each issuer thereof;
(d) All of the Pledged Securities have been duly and validly issued,
are fully paid and nonassessable, and all of the Pledged Assets are owned by the
Borrower free of any pledge, mortgage, hypothecation, lien, charge, encumbrance
or security interest in or on such Pledged Assets or the proceeds thereof,
except for that granted hereunder;
(e) The execution and delivery of this Pledge Agreement, and the
performance of its terms, will not result in any violation of any provision of
the Organizational Documents of the Borrower or the applicable issuer of the
Pledged Securities or violate or constitute a default under the terms of any
agreement, indenture or other instrument, license, judgment, decree, order, law,
statute, ordinance or other governmental rule or regulation, applicable to the
Borrower or any of its property; and
(f) Upon the delivery of all certificates and instruments evidencing
the Pledged Securities to the Lender or its agent, the registration of the
pledge of the Pledged Securities on the books of the issuer thereof and the
filing of financing statements in the filing office described in Schedule 2
hereto naming the Borrower as debtor, the Lender as secured party and describing
the Pledged Assets, this Pledge Agreement will create a valid first lien upon
and perfected security interest in the Pledged Assets and the proceeds thereof,
subject to no prior security interest, lien, charge or encumbrance, or agreement
purporting to grant to any third party a security interest in the property or
assets of the Borrower which would include the Pledged Assets.
(g) Each of the Borrower's places of business (and if more than one
place of business such Borrower's chief executive office), within the meaning of
the UCC, is listed on Schedule 2 hereto. If any of the Pledged Securities is
uncertificated within the meaning of the UCC, the jurisdiction of the issuer of
such Pledged Securities is listed on Schedule 2 hereto.
5. Covenants of Borrower.
(a) The Borrower hereby covenants that, until the later of (x) the
Maturity Date and (y) the date that all of the Obligations are satisfied in
full, it will not, without the prior written consent of the Lender:
(i) Sell, convey, or otherwise dispose of any of the Pledged
Assets (other than cash distributions permitted to be retained by the Borrower
pursuant to Section 2(d)) or any interest therein or create, incur, or permit to
exist any pledge, mortgage, lien, charge, encumbrance or security interest
whatsoever in or with respect to any of the Pledged Assets or the proceeds
thereof, other than that created hereby; or
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(ii) Consent to or approve the issuance of any additional capital
securities in the issuer of the Pledged Securities; or any capital securities
convertible voluntarily by the holder thereof or automatically upon the
occurrence or non-occurrence of any event or condition into, or exchangeable
for, any such capital securities, or any warrants, options, rights, or other
commitments entitling any person to purchase or otherwise acquire any such
capital securities or allow the issuer to take any of the foregoing actions; or
(iii) Change its name, identity or organizational structure in
any manner that might make any financing or continuation statement filed
hereunder seriously misleading within the meaning of the UCC (or any other then
applicable provision of the UCC) unless the Borrower has given the Lender at
least 90 days' prior written notice thereof or has delivered to the Lender
acknowledgment copies of UCC financing statements duly executed and duly filed
in each jurisdiction in which UCC filings were required in order to perfect the
security interest granted by this Pledge Agreement in the Pledged Assets and
have taken all action (or made arrangements to take such action substantially
simultaneously with such change if it is impossible to take such action in
advance) necessary or reasonably requested by the Lender to amend such financing
statement or continuation statement so that it is not seriously misleading; or
(iv) Change its place of business or chief executive office as
set forth in Schedule 2 hereto unless it has given the Lender at least 90 days'
prior written notice thereof or has delivered to the Lender acknowledgement
copies of UCC financing statements duly executed and filed in each of the filing
offices in which UCC filings are required in order to perfect any of the
security interests granted hereunder in the Pledged Assets; or
(v) The Borrower warrants and will, at its own expense, defend
the Lender's right, title, special property and security interest in and to the
Pledged Assets against the claims of any person, firm, corporation or other
entity.
6. Registration Statement.
(a) If the Lender elects to exercise its right to sell or otherwise
dispose of all or any part of the Pledged Securities, and if, in the opinion of
counsel for the Lender, it is necessary to have the Pledged Securities or that
portion thereof to be sold registered under the provisions of the Securities Act
of 1933, as amended (the "Securities Act"), the Borrower shall use its best
efforts to cause:
(i) The issuer of such Pledged Securities, its governing body and
responsible officers, to take all action necessary to register such Pledged
Securities or that portion thereof to be disposed of under the provisions of the
Securities Act, at the Borrower's expense;
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(ii) The registration statement relating thereto to become
effective and to remain so for not less than one year from the date of the first
public offering of such Pledged Securities or that portion thereof so to be
disposed of, and to make all amendments thereto and to the related prospectus
that, in the opinion of the Lender or its counsel, are necessary or advisable,
all in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto;
(iii) The issuer of such Pledged Securities to comply with the
provisions of the "Blue Sky" law of any jurisdiction designated by the Lender;
and
(iv) The issuer of such Pledged Securities to make available to
all holders of its capital securities, as soon as practicable, an earnings
statement (which need not be audited) covering a period of at least twelve
months but not more than eighteen months, beginning with the first month after
the effective date of any such registration statement, which earnings statement
will satisfy the provisions of Section 11(a) of the Securities Act.
(b) The Borrower acknowledges that a breach of any of the covenants
contained in paragraph 5(a) above may cause irreparable injury to the Lender;
that the Lender will have no adequate remedy at law with respect to such breach;
and, as a consequence, that the Borrower's covenants in paragraph 5(a) shall be
specifically enforceable against the Borrower; and the Borrower hereby waives,
to the extent such waiver is enforceable under law, and shall not assert, any
defenses against an action for specific performance of such covenants, except
for a defense that no Event of Default has occurred.
(c) Notwithstanding the foregoing, the Borrower recognizes that the
Lender may be unable to effect a public sale of all or a part of the Pledged
Securities and may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obligated to agree, among other
things, to acquire such capital securities for their own account, for investment
and not with a view to the distribution or resale thereof. The Borrower
acknowledges that any such private sales may be at prices and on terms less
favorable to the Lender than those of public sales, and agrees that the sale of
the Pledged Securities does not have to be a public sale in order to be made in
a commercially reasonable manner and that the Lender has no obligation to delay
sale of any such Pledged Securities to permit the issuer thereof to register it
for public sale under the Securities Act.
7. Notices Concerning Pledged Assets. The Borrower will promptly deliver to
the Lender all written notices, and will promptly give the Lender written notice
of any other notices, received by it with respect to Pledged Assets.
8. Further Assurances. The Borrower shall at any time, and from time to
time, upon the written request of the Lender, execute and deliver such further
documents and do such further acts and things as the Lender may reasonably
request to effect the purposes of this Pledge Agreement, including, without
limitation, delivering to the Lender upon the occurrence of an Event of Default
irrevocable proxies with respect to the Pledged Securities in form satisfactory
to the Lender. Until receipt thereof, this Pledge Agreement shall constitute the
Borrower's proxy to the Lender or its nominee to vote all Pledged Securities
then registered in the Borrower's name in accordance with Section 2(c).
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9. Termination. This Pledge Agreement shall terminate on the later of (i)
the Maturity Date and (ii) the date that all of the Obligations are satisfied in
full, and the Lender shall deliver to the Borrower, or register a release for
the benefit of the Borrower, at the Borrower's expense, such of the Pledged
Assets as shall not have been sold or otherwise applied pursuant to this Pledge
Agreement.
10. Limitation on Lender's Duty in Respect of Collateral. Beyond the
exercise of reasonable care to assure the safe custody of the Pledged Assets
while held hereunder, the Lender shall have no duty or liability to preserve
rights pertaining thereto and shall be relieved of all responsibility for the
Pledged Assets upon surrendering it or tendering surrender of it to the
Borrower.
11. Severability. Any provision of this Pledge Agreement that 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 provision in any other jurisdiction.
12. No Waiver; Cumulative Remedies. The Lender shall not, by any act,
delay, omission or otherwise, be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by the
Lender, and then only to the extent therein set forth. A waiver by the Lender of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Lender would otherwise have had on any
future occasion. No failure to exercise nor any delay in exercising on the part
of the Lender, any right, power or privilege 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 future exercise thereof or the
exercise or any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
provisions of this Pledge Agreement may be waived, altered, modified or amended
except by an instrument in writing, duly executed by the Borrower and the
Lender.
13. Successors and Assigns; Governing Law. This Pledge Agreement and all
obligations of the Borrower hereunder shall be binding upon the successors and
assigns of the Borrower, and shall, together with the rights and remedies of the
Lender hereunder, inure to the benefit of the Lender and its successors and
assigns. This Pledge Agreement shall be governed by, and be construed and
interpreted in accordance with, the laws of the State of New York.
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14. Further Indemnification. The Borrower agrees to pay, and to save the
Lender harmless from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all excise, sales or other taxes which may be
payable or determined to be payable with respect to any of the Pledged Assets or
in connection with any of the transactions contemplated by this Pledge
Agreement.
(a) Notices. All notices and other communications under this Pledge
Agreement shall be in writing, shall be effective when received, and shall in
any event be deemed to have been received on the date of delivery if delivered
personally or by telecopier; on the second business day after the business day
of deposit with the U.S. Postal Service for delivery by first class mail,
registered or certified, postage prepaid; or on the first business day after the
business day of deposit with a courier for overnight delivery, freight prepaid;
in each such case, addressed as follows (until any such address is changed by
notice duly given):
To Lender: Third Security, LLC
The Governor
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esquire
With a Copy to: Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: X. Xxxxxx Xxxxxxx, Esq.
To Borrower: Xxxxxxx Global Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (212) ___________
Attention: Xx. Xxxxx Xxxxxxxx
With a Copy to: Beckman, Millman, Barandes & Xxxxxxx, LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
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IN WITNESS WHEREOF, the Borrower has caused this Pledge Agreement to be
duly executed and delivered as of the date and year first above written.
XXXXXXX GLOBAL CORP.
By:____________________________________
Xxxxx Xxxxxxxx
Chairman and Chief Executive Officer
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Schedule 1
CAPITAL SECURITIES
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Issuer, including exact name, the type of Certificate No. (if No. of Shares or Exact Name of Registered
entity and jurisdiction of organization applicable) ownership % Holder
------------------------------------------------- ----------------------------- --------------------- ------------------------------
H&R Acquisition Corp. 81% Xxxxxxx Global Corp.
------------------------------------------------- ----------------------------- --------------------- ------------------------------
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Schedule 2
FILING OFFICES AND INFORMATION
Filing Office:
State of New York
Location of Debtor:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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