Exhibit 10.27
PLEDGE AGREEMENT
This is a pledge agreement made as of the 14th day of January, 1999
between Xxxxxx Xxxxxxxxxx, an individual residing at 0 Xxxxxxx Xxxx, Xxxxxxxxx,
XX 00000 ("Pledgor") and Xxxxxxxxx.xxx, Inc., a corporation organized under the
laws of Delaware with its principal office at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx ("Pledgee").
1. PLEDGE OF COLLATERAL. Pledgor hereby grants Pledgee a security
interest in the stock and notes identified in EXHIBIT A, annexed hereto, 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 by any issuer of such stock or notes from time to time,
whether through delivery by Pledgor or otherwise (the "Collateral").
2. OBLIGATIONS SECURED. The security interest in the Collateral granted
hereby secures payment and performance of all debts, loans and liabilities of
Pledgor to Pledgee of every kind and description, whether now existing or
hereafter arising, including but not limited to a promissory note from Pledgor
to Pledgee of even date herewith in the principal amount of $200,000 (the
"Note"), together with all interest, fees, charges and expenses with respect to
any such debt, loan or liability (the "Obligations").
3. PLEDGEE'S RIGHTS AND DUTIES WITH RESPECT TO THE COLLATERAL.
Pledgee's only duty with respect to the Collateral shall be to exercise
reasonable care to secure
the safe custody thereof. 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
Collateral is and will remain free and clear of all liens, encumbrances and
security interests other than the security interest granted by Pledgor
hereunder, (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
Pledgor has obtained the consent and agreement of the issuer, and all other
persons who have contractual rights or restrictions with respect to the
Collateral, to the pledge, disposition and other rights of Pledgee herein. 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
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against any losses, liabilities, damages, expenses, costs and reasonable counsel
fees incurred 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. While Pledgor is not in default hereunder,
Pledgor may vote stock and other securities pledged as Collateral.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. 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 distributed 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, deliver and
pay the cost of filing 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. 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 its cost and
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expense, cause the same to be re-recorded and/or refiled at the time and in the
manner requested 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:
(a) If Pledgor is not paying his debts as they become due,
becomes insolvent, files or 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), 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;
(c) If any lien, encumbrance or adverse claim of any nature
whatsoever is asserted with respect to any Collateral;
(d) If any warranty of Pledgor hereunder is or shall become
false;
(e) If Pledgor fails to fulfill any obligation hereunder;
(f) If Pledgor fails to pay or perform any of the Obligations
when such payment of performance is due.
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9. PLEDGEE'S RIGHTS UPON DEFAULT. Upon the occurrence of any default as
defined in the preceding section, 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 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.
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10. 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.
11. 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.
12. 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. If this
Pledge Agreement is executed by more than one Pledgor, then (a) "Obligations"
shall include the Obligations of either or both of the Pledgors, (b) Pledgors
shall be in default if any of the events described in Section 8 above takes
place with respect to either Pledgor, (c) any notice required of Pledgee shall
be given to both Pledgors and (d) all Pledgors' obligations, covenants,
warranties and representations hereunder shall be joint and several.
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13. 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.
EXECUTED under seal at Boston, Massachusetts as of the date first above
written.
/s/ Xxxxxx Xxxxxxxxxx
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