Exhibit 10.30.3
PLEDGE AND SECURITY AGREEMENT
This Pledge and Security Agreement, dated as of December 19, 2002 (this
"Agreement"), is by and among Eurotech Ltd., a District of Columbia corporation
(the "Obligor"), Xxxxxxxx LLC, a Cayman Islands company (the "Secured Party")
and Xxxxxxx & Prager, LLP, a New York limited liability partnership, as agent
for the Secured Party ("Agent").
Recitals
WHEREAS, Obligor has entered into an Exchange Agreement, dated December
9, 2002 (the "Exchange Agreement") pursuant to which the Obligor is exchanging
certain assets in return for 239,927,344 shares of common stock (the "Pledged
Shares") of Xxxxxxxx Technologies, Inc., a Florida corporation;
WHEREAS, in connection with the closing of the transactions
contemplated by the Exchange Agreement, Obligor and the Secured Party desire to
enter into this Agreement (i) to effect the surrender of the rights of the
Secured Party to receive 5,725 shares (the "Retired Shares Rights") of Obligor's
outstanding Series B 5% Convertible Preferred Stock, par value $.01 per share
(the "Series B Preferred Stock"), which right the Secured Party received
pursuant to that certain Securities Exchange and Purchase Agreement, dated
September 30, 2002, by and between Obligor and the Secured Party(the "Purchase
Agreement") and the other transaction documents related thereto (all such
documents, collectively with the Purchase Agreement, the "Transaction
Documents"), and (ii) in consideration of such surrender, the creation of a
security interest of Secured Party in the Pledged Shares to secure, among other
things, the Obligor's obligations under Section 3 of this Agreement to the
Secured Party (the "Secured Obligations"); and
WHEREAS, Obligor and the Secured Party have duly authorized the
execution, delivery and performance of this Agreement.
NOW THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Certain capitalized terms used herein are defined in this
Section 1. Capitalized terms used but not otherwise defined herein shall have
the meanings provided in the Exchange Agreement. Unless otherwise defined herein
or the context otherwise requires, terms for which meanings are provided in the
UCC are used in this Agreement with such meanings.
"Agent" is defined in the preamble.
"Agreement" is defined in the preamble.
"COD" is defined in Section 3(a).
"Collateral" is defined in Section 4.
"Distributions" is defined in Section 4(b).
"Event of Default" is defined in Section 3(c).
"Exchange Agreement" is defined in the first recital.
"Lien" means with respect to any asset (a) any claim, pledge, mortgage,
lien, charge, security interest, or encumbrance of any kind or (b) the interest
of a vendor or lessor under any conditional sale agreement or other title
retention agreement, but shall not include any lease processing or other
agreement executed by Obligor and covering or including any Collateral.
"Obligor" is defined in the preamble.
"Person" means any individual, corporation, limited liability company,
partnership (including a joint venture), association, joint stock company,
trust, estate, unincorporated organization, government or any agency or
political subdivision thereof (including government corporations), or any other
form of entity, or any trustee, receiver, custodian or similar official.
"Pledged Collateral Account Agreement" means such agreement
substantially in the form of the Pledged Collateral Account Agreement attached
hereto as Exhibit A, or such other form as may be utilized by a securities
intermediary with the mutual consent of Obligor and the Secured Party, such
consent not to be unreasonably withheld.
"Pledged Shares" means all shares of capital stock set forth in the
Recitals that are delivered by Obligor to the Secured Party hereunder.
"Proceeds" is defined in Section 4(b).
"Purchase Agreement" is defined in the second recital.
"Remaining Shares" is defined in Section 2.
"Retired Shares Rights" is defined in the second recital.
"Secured Obligations" is defined in the second recital.
"Secured Party" is defined in the preamble.
"Series B Preferred Stock" is defined in the second recital.
"Stock Exchange" is defined in Section 6.2.
"Termination Date" is defined in Section 6.2.
"Transaction Documents" is defined in the second recital.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
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2. Surrender of Retired Shares Rights. Effective for all purposes as of the date
hereof, and in consideration of the creation of the security interest granted
hereunder, Secured Party hereby surrenders and agrees to terminate all of its
Retired Shares Rights under the Transaction Documents, the COD or otherwise.
Upon such surrender, and pursuant to the Transaction Documents, the Secured
Party shall continue to hold the right to receive 11,450 shares of Series B
Preferred Stock (the "Remaining Shares") which Remaining Shares shall be issued
promptly after receipt, at the Obligor's expense, of any and all applicable
regulatory approvals (it being acknowledged by Obligor and the Secured Party
that Obligor has heretofore been precluded from issuing any shares of Series B
Preferred Stock to the Secured Party solely at the request of the American Stock
Exchange). Promptly following the consummation of the transactions contemplated
by this Agreement, but subject in all instances to applicable regulatory
approvals as contemplated above, Obligor shall deliver to Secured Party
certificates representing the Remaining Shares.
3. Secured Obligations.
(a) Subject to applicable law, Obligor shall redeem for cash the
Remaining Shares held by Secured Party (whether or not in issued and registered
form) by immediately delivering and causing (or consenting to) the Agent or the
Broker (as each is defined below), as appropriate, for deliver directly to
Secured Party, fifty percent (50%) of the proceeds of any sale, transfer,
assignment, grant of any lien or pledge of the Pledged Shares, as soon as such
proceeds become available to Obligor, up to an amount not to exceed the stated
value (liquidation value) plus accrued dividends of the Remaining Shares. The
proceeds received by the Secured Party shall be applied toward the redemption of
the Remaining Shares ( whether or not in issued and registered form) in
chronological order per the terms of the redemption schedule contained in the
Certificate of Designations for the Series B Preferred Stock (the "COD");
(b) (i) Obligor hereby ratifies and reaffirms all the covenants and
obligations of Obligor contained in the Transaction Documents with respect to
the Secured Party's rights to receive the Remaining Shares including without
limitation the obligations under that certain Registration Rights Agreement
between Obligor and Secured Party and the redemption provisions of the COD(ii)
Subject to all disclosures made by Obligor in Obligor's its filings prior to the
date hereof with the Securities and Exchange Commission, including Obligor's
Quarterly Report on Form 10-Q for the period ending September 30, 2002 and its
various Current Reports on Form 8-K, all of the representations and warranties
made by Obligor in Article III of the Exchange Agreement (subject to applicable
exceptions and disclosure schedules) are incorporated by reference herein and
are made by Obligor to the Secured Party, with the same force and effect as if
made on the date hereof.
(c) Any default in the performance under either (a), (b)(i) or (b)(ii)
above shall be an event of default hereunder (an "Event of Default").
4. Grant of Security Interest and Pledge. Obligor hereby grants to Secured Party
a security interest in Obligor's right, title, and interest in the following
"Collateral," whether now owned or hereafter acquired:
(a) The Pledged Shares; and
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(b) Fifty percent (50%) of all proceeds derived from any sale,
transfer, assignment, grant of any lien or pledge, or such other divestment of
the Pledged Shares, and to the extent not otherwise included, all payments under
any indemnity, warranty or guaranty of or for the foregoing Collateral (all such
proceeds and payments under any insurance, indemnity, warranty or guaranty being
the "Proceeds"), and any distributions issued in connection with the Pledged
Shares, in whatever form , including but not limited to, cash or stock
dividends, stock splits, recapitalizations, regoranizations and similar
transactions ("Distributions").
5. Obligor's Representations and Warranties. Subject to all disclosures made by
Obligor (i) in all of Obligor's filings prior to the date hereof with the
Securities and Exchange Commission, including Obligor's Quarterly Report on Form
10-Q for the period ending September 30, 2002 and its various Current Reports on
Form 8-K and (ii) Obligor's disclosure schedules to the Exchange Agreement,
Obligor hereby represents and warrants the following to the Secured Party:
5.1 Organization and Existence. Obligor is duly incorporated, validly
existing and in good standing under the laws of the District of Columbia.
Obligor has full corporate power and authority to own and hold the properties
and assets it now owns and holds and to carry on its business as and where such
properties are now owned or held and such business is now conducted. Obligor is
duly licensed or qualified to do business as a foreign corporation and is in
good standing in the states in which the character of the properties and assets
now owned or held by it or the nature of the business now conducted by it
requires it to be so licensed or qualified, except where the failure to be so
qualified or in good standing would not reasonably be expected to have a
material adverse effect on the business, financial condition or results of
operations of Obligor.
5.2 Authority and Approval. Obligor has the corporate power and
authority to execute and deliver this Agreement, to consummate the transactions
contemplated hereby and to perform all the terms and conditions hereof to be
performed by it. The execution and delivery by Obligor of this Agreement, the
performance by Obligor of all the terms and conditions hereof to be performed by
it and the consummation of the transactions contemplated hereby have been duly
authorized and approved by all requisite corporate action of Obligor. This
Agreement constitutes the valid and binding obligation of Obligor enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and by general principles
of equity (whether applied in a proceeding at law or in equity).
5.3 No Conflict. This Agreement, and the execution and delivery by
Obligor of this Agreement does not, and the fulfillment and compliance with the
terms and conditions hereof, and the consummation of the transactions
contemplated hereby will not:
(a) conflict with any of, or require the consent of any person or
entity under, the terms, conditions or provisions of the charter documents or
bylaws or equivalent governing instruments of Obligor;
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(b) violate any provision of, or require any consent,
authorization or approval under, any law, statute, ordinance, rule or regulation
or any judicial, administrative or arbitration order, award, judgment, writ,
injunction or decree applicable to Obligor; or
(c) result in the creation of any material lien, charge or
encumbrance on the assets of Obligor under any indenture, mortgage, lien, lease
or contract.
5.4 Pledged Shares. The taking of possession by the Secured Party or by
its agent, or by the Broker pursuant to the Pledged Collateral Account
Agreement, for the purpose of accepting delivery of the Pledged Shares, shall
perfect and establish the first priority of the Secured Party's security
interest in such Pledged Shares. Except as set forth in this Section 5.4 or as
may be required under the UCC, no action is necessary to perfect or otherwise
protect such security interest in such Pledged Shares and the Obligor has not
granted a security interest in the Pledged Shares to any other person.
5.5 Other Liens. Obligor owns the Collateral free and clear of any
Lien, except for the security interests created by this Agreement and by the
Pledged Collateral Account Agreement. No effective financing statement or other
instrument similar in effect covering all or any part of the Collateral is on
file in any recording office, except such as may have been filed in connection
with this Agreement.
5.6 Lien Priority and Perfection of Security Interest in the
Collateral. This Agreement creates a valid first priority security interest in
the Collateral. No other authorization, approval or other action by any
governmental authority or any other person or entity is necessary to grant the
security interest in the Collateral contemplated hereby, allow Obligor to
perform its obligations hereunder or permit the Secured Party to exercise its
rights and remedies hereunder.
6. Obligor's Covenants.
6.1 Delivery of the Pledged Shares. Obligor shall deliver to Agent,
which the Secured Party hereby appoints as its agent for the purpose of
accepting delivery of and holding the Pledged Shares, simultaneously with or
promptly following the execution and delivery of this Agreement, all
certificates representing the Pledged Shares endorsed in blank for transfer or
accompanied by stock powers executed in blank for transfer of the Pledged
Shares, with medallion guarantees. Prior to delivery to the Agent, all such
certificates representing Pledged Shares shall be held in trust by Obligor for
the benefit of the Secured Party pursuant hereto. All such certificates shall be
delivered in suitable form for transfer by delivery or shall be accompanied by
duly executed instruments of transfer or assignment in blank, substantially in
the form provided in Exhibit B attached hereto. Obligor further agrees to
execute and deliver to the Secured Party such UCC or other applicable financing
statements or other filing or registration as may be reasonably requested by the
Secured Party in order to perfect and protect the security interest created
hereby in the Pledged Shares or to deliver to the Secured Party such instruments
and similar documents with respect to the Pledged Shares as the Secured Party
may reasonably request.
6.2 Pledged Collateral Account. Prior to any open market sale or
transfer of the Pledge Shares on any stock exchange or trading market
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(including, if applicable, the OTC Bulletin Board) where the Pledge Shares are
then traded (the "Stock Exchange"), Obligor shall execute and deliver a Pledged
Collateral Account Agreement substantially in the form of that attached hereto
as Exhibit A, to a broker or brokers to be identified by Obligor and Secured
Party by mutual consent (the "Broker"), for purposes of establishing an Account
or Accounts among Obligor, Secured Party and Broker to remain effective until
the earlier of (i) the date on which the Secured Obligations shall have been
paid in full and the security interest is thereby released; or (ii) the
completion of any foreclosure of Secured Party's security interests as provided
herein (the "Termination Date"). If prior to the Termination Date, the parties
determine to close such Account or Accounts, the Obligor shall cause any
applicable Collateral to be redelivered to the Agent.
6.3 Distributions. In the event that any Distributions are to be
delivered to Obligor with respect to any Pledged Shares, and no Event of Default
has occurred or is continuing, then fifty percent (50%) of such Distributions
shall be delivered directly to Obligor and the other fifty percent (50%) shall
be delivered directly to Agent for the benefit of Secured Party. If an Event of
Default in the performance of the Secured Obligations has occurred and is
continuing through no fault of the Agent and/or the Broker, then any and all
such Distributions are to be delivered directly to the Agent (accompanied, if
appropriate, by stock powers executed in blank for transfer or another
instrument of transfer) for the benefit of Secured Party, up to any deficiency
amount owed to the Secured Party pursuant to the redemption schedule contained
in the COD.
6.4 Further Assurances With Respect to the Collateral.
(a) Obligor agrees that at any time, at Obligor's expense, Obligor will
promptly execute and deliver all such further instruments and documents, and
take all such further action, that may be necessary or that the Secured Party
may reasonably request, in order to perfect and protect any security interest in
the Collateral granted or purported to be granted hereby or to enable Secured
Party to exercise and enforce their rights and remedies hereunder with respect
to any Collateral. Without limiting the generality of the foregoing, Obligor
will, at the Secured Party's request: (i) execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices as may be necessary, or as the Secured Party may reasonably request, in
order to perfect and preserve the security interests granted or purported to be
granted hereby in the Collateral.
(b) Obligor will furnish to the Secured Party, from time-to-time,
statements and schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as the Secured Party may
reasonably request, all in reasonable detail, including but not limited to
monthly reports or statements in connection with sales pursuant to the Pledged
Collateral Account Agreement.
6.5 Transfer of Collateral. Except in the case of an open market sale
(not pre-arranged) by Obligor of the Pledged Shares on a Stock Exchange, whether
by means of an effective registration statement or by means of Rule 144 pursuant
to the Pledged Collateral Account Agreement, Obligor shall not sell, assign,
transfer (by operation or law or otherwise), pledge as collateral, or grant or
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create any security interest, lien or other encumbrance with respect to any of
the Collateral without the prior written consent of the Secured Party. Obligor
agrees to promptly upon settlement of such sales, to transfer to Secured Party
fifty percent (50%) of the proceeds of such sales, net of all reasonable and
customary broker's commissions.
7. Remedies. If an Event of Default shall have occurred and remain uncured:
7.1 UCC Remedies With Respect to the Collateral. To the extent
permitted by law, the Secured Party may exercise in respect of the Collateral,
in addition to other rights and remedies provided for in this Agreement or
otherwise available to it, all the rights and remedies of a secured party under
the UCC (whether or not the UCC applies to the affected Collateral).
7.2 Application of Collateral. All cash proceeds received by the
Secured Party from the collection of or other realization of any part of the
Collateral shall be applied by the Secured Party against the performance of the
Secured Obligations pursuant to the redemption schedule for the Series B
Preferred Stock contained in the COD and in the Certificate of Designation for
the Series A Preferred Stock.. Any surplus of such cash or cash proceeds held by
the Secured Party and remaining after performance in full of all the Secured
Obligations shall be paid over to Obligor or to whomever may be lawfully
entitled to receive such surplus.
7.3 Pledged Shares.
(a) Certain Remedies. Upon the occurrence of and during the continuance
of an Event of Default, Secured Party may exercise in respect of the Collateral,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party under the UCC
and may also require the Obligor to, and the Obligor hereby agrees that it will
at its expense, require the Agent to deliver the Collateral to the Secured
Party. Secured Party may sell all or any part of the Collateral as a whole or in
parcels either by public auction or private sale or other method of disposition.
The Secured Party may bid at any public sale on all or any portion of the
Collateral. Secured Party shall give Obligor reasonable notice of the time and
place of any public sale or of the time after which any private sale or other
disposition of the Collateral is to be made, and notice given at least ten (10)
business days before the time of the sale or other disposition shall be
conclusively presumed to be reasonable.
(b) No Obligation to Sell. Notwithstanding Section 7.3(a), Secured
Party shall be under no obligation to offer to sell the Pledged Shares. In the
event the Secured Party offers to sell the Pledged Shares, the Secured Party
shall be under no obligation to consummate a sale of the Pledged Shares if, in
their reasonable business judgment, none of the offers received by them
reasonably approximate the fair value of the Pledged Shares.
(c) Strict Foreclosure. In the event the Secured Party elects not to
sell the Pledged Shares, the Secured Party may elect to follow the procedures
set forth in the UCC for retaining the Pledged Shares in satisfaction of the
Secured Obligations, subject to the Obligor's rights under such procedures.
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(d) Rights. Until the occurrence of an Event of Default, all legal and
beneficial ownership rights to the Pledged Shares shall remain with the Obligor
during such time as the Pledged Shares are held by the Agent, including, but not
limited to, any right to vote thereon.
8. Appointment of Agent.
8.1 Attorneys-In-Fact. Upon the occurrence and continuance of an Event
of Default, Obligor hereby irrevocably appoints the Secured Party as Obligor's
attorney-in-fact with respect to the Collateral and the Agent as Obligor's
attorney-in-fact with respect to the Pledged Shares, with full authority to act
for Obligor and in the name of Obligor to, in their respective discretion, take
any action and execute any instrument which they respectively may deem necessary
or advisable to accomplish the purposes of this Agreement, including, without
limitation, with respect to the Collateral:
(a) filing one or more financing or continuation statements, and
amendments thereto, relative to all or any part of the Collateral without the
signature of Obligor where permitted by law; and
(b) to ask, demand, collect, xxx for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral and to file any claims or take any action or
institute any proceedings which the Secured Party may deem necessary or
desirable for the collection of any of the Collateral or otherwise to enforce
the rights of the Secured Party with respect to any of the Collateral, or the
rights and remedies under Section 7 hereof.
The power of attorney granted pursuant to this Section 8.1 is coupled
with an interest and is irrevocable.
8.2 Secured Party's Performance. If Obligor fails to perform any
covenant contained herein, the Secured Party may itself perform, or cause
performance of, such covenant, and Obligor shall pay for the expenses of the
Secured Party incurred in connection therewith.
8.3 Secured Party's Duties. The powers conferred on the Secured Party
under this Agreement are solely to protect its interest in the Collateral and
the Pledged Shares and shall not impose any duty upon it to exercise any such
powers. Except for the safe custody of any Collateral in their possession and
the accounting for monies actually received by them hereunder, the Secured Party
shall have no duty as to any Collateral or as to the taking of any necessary
steps to preserve rights against prior parties or any other rights pertaining to
any Collateral or any Pledged Shares.
9. Miscellaneous.
9.1 Continuing Security Interest; Transfer of Interest. This Agreement
shall create a continuing security interest in the Collateral and the Pledged
Shares and shall (a) remain in full force and effect until the Termination Date;
provided, however, that the security interest in the Collateral and the Pledged
Shares created by this Agreement shall continue after the Termination Date with
respect to any Secured Obligations that arose prior to the Termination Date, (b)
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be binding upon Obligor and its permitted successors and assigns and (c) inure,
together with the rights and remedies of the Secured Party hereunder, to the
benefit of the Secured Party and its respective successors, transferees and
assigns.
9.2 Collateral Held By Agent. Unless held with a Broker under the
Pledged Collateral Account Agreement, the Agent shall hold the Collateral in
escrow pending agreement of the Obligor and the Secured Party, communicated in
writing signed by both of them delivered to the Agent, in which event the Agent
shall follow the directions regarding the release of the Collateral provided
therein. Upon any termination of the security interests granted hereby, all
rights to the Collateral and the Pledged Shares shall revert to Obligor to the
extent such Collateral or Pledged Shares shall not have been sold or otherwise
applied pursuant to the terms hereof and the Secured Party will, at Obligor's
expense, execute and deliver to Obligor such documents as Obligor shall
reasonably request and take any other actions reasonably requested to evidence
or effect such termination.
9.3 Obligor's Waivers. Obligor hereby waives:
(a) promptness, diligence, notice of acceptance and any other notice
with respect to any of the Secured Obligations and this Agreement;
(b) any requirement that the Secured Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take any
action against any other Person or any Collateral; and
(c) any duty on the part of the Secured Party to disclose to Obligor
any matter, fact or thing relating to the business, operation or condition of
Obligor and its assets now or hereafter known by any Person.
9.4 Secured Party Waivers. Secured Party hereby waives any contractual,
legal or equitable right it may have as a stockholder of Obligor to approve (or
enforce a covenant restricting or preventing) the consummation of the
transactions contemplated by the Exchange Agreement.
9.5 Severability. If any provision of this Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by decree of a court of last resort, Obligor and the
Secured Party shall promptly meet and negotiate substitute provisions for those
rendered or declared illegal or unenforceable, but all of the remaining
provisions of this Agreement shall remain in full force and effect.
9.6 Binding Effect and Assignment. This Agreement shall be binding upon
and inure to the benefit of Obligor and the Secured Party and its respective
permitted successors and assigns; but neither this Agreement nor any of the
rights, benefits or obligations hereunder shall be assigned, by operation of law
or otherwise, by Obligor without the prior written consent of the Secured Party.
Nothing in this Agreement, express or implied, is intended to confer upon any
person or entity other than Obligor and the Secured Party and their respective
permitted successors and assigns, any rights, benefits or obligations hereunder.
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9.7 Section Captions. Section captions used in this Agreement are for
convenience of reference only, and shall not affect the construction of this
Agreement.
9.8 Agent's Authority. It is understood and agreed that should any
dispute arise with respect to the delivery and/or ownership or right of
possession of the Collateral held by the Agent hereunder, the Agent is
authorized and directed in the Agent's sole discretion (a) to retain in the
Agent's possession without liability to anyone all or any part of said
Collateral until such disputes shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree or judgment of a
court of competent jurisdiction after the time for appeal has expired and no
appeal has been perfected, but the Agent shall be under no duty whatsoever to
institute or defend any such proceedings or (b) to deliver the Collateral held
by the Agent hereunder to a state or federal court having competent subject
matter jurisdiction and located in the State and City of New York in accordance
with the applicable procedure therefor.
9.9 Indemnification of Agent. Obligor and the Secured Party agree,
jointly and severally, to indemnify and hold harmless the Agent from any and all
claims, liabilities, costs or expenses in any way arising from or relating to
the duties or performance of the Agent hereunder other than any such claim,
liability, cost or expense to the extent the same shall have been determined by
final, unappealable judgment of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agent.
9.10 Any notice required or permitted hereunder shall be given in
manner provided in the Section headed "NOTICES" in the Transaction Documents,
the terms of which are incorporated herein by reference. For such purposes, the
address of the Agent shall be (subject to change as provided in such Section):
Xxxxxxx & Xxxxxx, LLP
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
eMail: xxxxxxxx@xxxxxxxxx.xxx
9.11 Governing Law; Waiver of Jury Trial; Attorney's Fees. The
provisions of this Agreement shall be governed by and construed in accordance
with the laws of the State of New York, including the UCC and without regard to
such State's conflicts of laws principles. The parties hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the courts of
the State of New York and of the United States of America located in the Borough
of Manhattan for any litigation arising out of or relating to this Agreement and
the transactions contemplated by this Agreement; provided, however, that any
suit seeking enforcement against any Collateral or any Pledged Shares or
Distributions or other property may be brought, at the Secured Party's option,
in the courts of any jurisdiction where such Collateral, Pledged Shares, or
other property may be found. Each party hereto hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising from or relating to this Agreement or the
transactions contemplated hereby. In addition, the Obligor shall pay all
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reasonable fees and expenses incurred by the Secured Party in connection with
any amendments, modifications or waivers of this Agreement or incurred in
connection with the enforcement of this Agreement, including, without
limitation, all reasonable attorneys fees and expenses.
9.12 No Oral Agreements. This Agreement represents the final agreement
between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
9.13 No Third Party Beneficiaries. This Agreement is not intended to
confer upon any person or entity other than the parties to this Agreement any
rights or remedies under this Agreement, except such rights as may be applicable
to a Broker in the event the Pledged Shares are subject to a Pledged Collateral
Account Agreement.
9.14 Counterparts. This Agreement may be executed in any number of
counterparts, and by facsimile, each such counterpart being deemed to be an
original instrument, and all such counterparts shall together constitute the
same agreement.
*****
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IN WITNESS WHEREOF, the parties duly executed and delivered this
Agreement as of the date first written above.
EUROTECH, LTD.
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------------
Name: Xxx X. Xxxxxxxxx
Title: President
AGENT:
XXXXXXX & XXXXXX, LLP as agent on behalf
of the Secured Party
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Member
Address:
XXXXXXXX LLC
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx for Navigator
Management Ltd.
Title: Director
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Broker Account Number __-_______
EXHIBIT A
FORM OF PLEDGED COLLATERAL ACCOUNT AGREEMENT
NOTE: THIS AGREEMENT IS SUBJECT TO REVIEW AND ACCEPTANCE BY ________ ("BROKER")
TO: Broker
[address]
1. Prior to the execution of this Pledged Collateral Account
Agreement (the "Agreement"), the undersigned, Eurotech, Ltd. ("Assignor")
and Xxxxxxxx LLC ("Assignee") entered into Pledge and Security Agreement,
dated as of December __, 2002 pursuant to which a security interest in
certain rights and assets of Assignor is granted by Assignor to Assignee
(the "Assignment"). In connection therewith, Assignor hereby instructs
_________ Company ("Broker") to:
a) establish a cash security account, which is to be known as
"__________.", as Secured Party for__________________.,
Pledged Collateral A/C, Attn: _________________________ ("Cash
Account"); and
b) place the assets listed in Exhibit A, which is attached hereto
and made a part hereof, into the Cash Account for a period
through and until December 31, 2007, to be extended by mutual
consent.
2. Assignor represents that Exhibit A is a correct listing of the
assets to be held in the Cash Account (the "Collateral") and that it has
received no notice of, and has no knowledge of, any other security interest
in the Cash Account or Collateral. Broker will furnish all appropriate tax
reporting information for the Cash Account to the Internal Revenue Service
under Assignor's Tax Identification or Social Security Number.
3. Assignor and Assignee consent and agree that instructions with
regard to the Cash Account shall be given to Broker directly and shall be
given only by Assignor, except as otherwise provided herein.
4. Assignor may give instructions of any kind or character in
regard to the Cash Account, oral or written, except that any instruction to
Broker to deliver out of the Cash Account cash, securities and/or proceeds
from the sale of or distributions on such securities, shall be made by a
written instrument executed by either (a) an Authorized Officer of Assignor
AND an Authorized Officer of Assignee or (b) an Authorized Officer of
Assignee who shall certify in writing that an "Event of Default", as defined
in the Assignment, exists as of the date thereof (it being understood and
agreed that Broker shall have no duty or obligation whatsoever of any kind
or character to determine whether an Event of Default exists). After
receiving such notice of an Event of Default, if any, Broker shall not
effect any trades or changes to investments with respect to the Collateral.
Assignor and Assignee agree that, after notice of an Event of Default,
Broker will proceed to liquidate on a best efforts basis the Cash Account or
any portion thereof as may be directed in writing by Assignee. Assignee
acknowledges and understands that there is no assurance that a liquid market
exists for all of the Collateral. Further Assignee hereby agrees to
indemnify and hold harmless Broker, its affiliates, officers, employees,
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agents, successors and assigns from and against any and all claims, causes
of action, liabilities, lawsuits, demands and/or damages, including, without
limitation, any and all court costs and reasonable attorney's fees, that may
result by reason of Broker complying with such instructions by Assignee
acting alone.
5. For purposes of this Agreement, the term "Authorized Officer of
Assignor" shall refer, collectively, to __________________, President and
________________. The term "Authorized Officer of Assignee" shall refer in
the singular to_________ (who is, on the date hereof, a Director of
Assignee). If the Assignor or the Assignee is a natural person then such
term shall mean the Assignor or Assignee respectively and, if more than one
natural person is the Assignee, such natural persons may act severally. An
Authorized Officer shall be replaced by written notice by a senior officer
of the party replacing said Authorized Officer, or by such other officer as
Broker may approve, which approval shall not be unreasonably withheld.
6. So long as this Agreement remains in effect, Assignee, as the
Secured Party for the Cash Account, shall be entitled to receive any and all
notices and statements of the Cash Account and Assignor, as an interested
party, shall be entitled to receive duplicates of the trade confirmations
and account statements of such Cash Account at the respective addresses
listed below. Assignee agrees to forward promptly to Assignor, as beneficial
owner of the Cash Account, all other documents relating to securities held
in the Cash Account that are received by Assignee from Broker.
7. Broker shall not be liable for any action taken or omitted by
it in good faith with respect to the Cash Account and believed by Broker to
be authorized or within its obligations hereunder. Broker may rely on any
certificate, statement, request, agreement or other instrument it believes
to be genuine and to have been signed or presented by a proper person.
8. If conflicting demands are made or notices are served upon
Broker with respect to this Agreement or Cash Account, or if Broker shall
hold a good faith belief that the rights of a party to the Cash Account are
not absolutely clear, the parties hereto agree that Broker shall be entitled
to refuse to comply with any such notice or demand and to withhold and stop
all further proceedings in the performance of this Agreement until (a) the
rights of the adverse claimants have been finally adjudicated in a court
having and assuming jurisdiction of the parties or the Cash Account or (b)
all differences shall have been adjusted by mutual agreement of such
claimants and Broker shall have been notified thereof in a writing signed by
such claimants. Broker shall not be or become liable for damages or interest
to Assignor or Assignee or to any other person for its failure to comply
with such conflicting or adverse demands or notices. Broker may, but shall
not be obligated to, file a suit in interpleader for a declaratory judgment
for the purpose of having the respective rights of such claimants
adjudicated, or may deposit the Collateral with a court of competent
jurisdiction, in which event Assignor and Assignee, jointly and severally,
agree to pay all reasonable costs, expenses and attorney's fees incurred by
Broker in connection therewith. In the event that Broker shall deposit the
Collateral with such court, Broker shall be fully released and discharged
from any and all duties and obligations hereunder.
9. Assignor and Assignee acknowledge and agree that Broker is not
a party to any other agreement between them, that Broker is not bound by or
subject to any terms thereof, and that Broker's only duties and
responsibilities with respect to the Cash Account are those set forth
herein. Assignor and Assignee acknowledge and agree that Broker has not
arranged for and will not arrange for the extension or maintenance of any
credit for the Cash Account.
10. Assignor and Assignee acknowledge and agree that Broker shall
not be liable to Assignee for any decrease in value of the investments in
the Cash Account for any reason, including, by way of illustration and not
limitation, liability for decreases in value resulting from transactions
recommended by Broker or its employees or agents or from commission and/or
other charges. Broker expressly has no obligation to advise either Assignor
or Assignee of any decrease in the value of the Cash Account at any time.
11. Assignor and Assignee acknowledge and agree that,
notwithstanding anything to the contrary contained herein or in the
Assignment, this Agreement shall not subordinate or release Broker's
security interest in or lien on the Cash Account or impose or create any
obligations or duties upon Broker greater than or in addition to the
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customary and usual obligations and duties of Broker to Assignor, as set
forth in the Broker Customer Agreement executed by Assignor, and Broker may
charge such fees, commissions, costs and interest, if applicable, in
accordance with its customary practices, except and to the extent that
Broker henceforth shall accept instructions in connection with the Cash
Account as provided in this Agreement.
12. Assignor and Assignee hereby agree to indemnify and hold
harmless Broker, its affiliates, officers, employees, agents, successors and
assigns from and against any and all claims, causes of action, liabilities,
lawsuits, demands and/or damages, including, without limitation, any and all
court costs and reasonable attorney's fees, in any way related to or arising
out of or in connection with the Assignment, this Agreement and/or the Cash
Account.
13. Assignor, Assignee and Broker agree that any action instituted
as a result of any controversy involving Broker or its employees or agents
arising out of this Agreement, or as a result of any interpretation of any
section thereof, or involving transactions in the Cash Account shall be
brought before the arbitration facility of a self-regulatory organization
with jurisdiction over Broker.
14. This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the respective parties hereto and shall be
construed in accordance with the laws of the State of New York without
regard to its conflict of laws principles and the rights and remedies of the
parties shall be determined in accordance with such laws.
15. Assignor and Assignee represent and warrant to Broker that the
Agreement and Assignment are in compliance with applicable law, including,
without limitation, the federal securities laws and regulations and any
applicable Federal Reserve credit regulations.
16. Assignor and Assignee acknowledge that this Agreement
supplements Assignor's existing agreement(s) with Broker and, except as
otherwise provided herein, that this Agreement in no way is intended to
abridge any rights that Broker otherwise may have.
17. Unless otherwise provided herein, any notice permitted or
required hereunder from either Assignor or Assignee to Broker shall be in
writing and shall be delivered personally or be mailed by certified or
registered mail, return receipt requested, postage prepaid,
to_____________________ New York, NY [ZIP] to_________, _________, NY [ZIP],
with a copy to _______________and _____________________ at _______________,
or to such other representative of Broker and address as provided in writing
thereafter. Any such notice shall be effective upon receipt.
18. Broker's duties and obligations under this Agreement shall
terminate upon the delivery of written notice to Broker from Assignee that
Assignor has satisfied the obligation underlying the Assignment or that the
Assignment has been breached, expired or otherwise terminated.
19. Broker may terminate its duties and obligations under this
Agreement by giving Assignor and Assignee fifteen (15) days prior written
notice of its intent (a) to transfer the Collateral to Assignee or its
Designee, (b) to deliver the Collateral to another broker-dealer or
financial institution if directed in a notice signed by Assignee and
delivered to Broker prior to the end of such fifteen (15) day notice period,
or (c) to otherwise terminate its Cash Account relationship with Assignor.
If Assignee fails to direct Broker concerning the Collateral transfer,
Broker may file an interpleader action or deposit the Collateral with a
court as forth in this Agreement.
20. This Agreement may be executed in any number of counterparts
and by facsimile, each of which shall be an original and all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Assignor and Assignee have caused this Agreement to
be executed by their duly authorized officers, whereupon it shall become
effective and binding on the date of acceptance by Broker.
ASSIGNOR: ASSIGNEE:
By: _______________________ By: ________________________
Title: Title:
Signature: _______________________ Signature: ________________________
Date: _______________________ Date: ________________________
Address: _______________________ Address: ________________________
_______________________ ________________________
Telephone: _______________________ Telephone: ________________________
Facsimile: Facsimile:
REVIEWED AND ACCEPTED:
BROKER
ADDRESS
New York, NY
By: _______________________________________ Date: _______________________
Title:
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PLEDGED COLLATERAL ACCOUNT AGREEMENT
BROKER ACCOUNT NUMBER ___-______
EXHIBIT A
1. 239,927,344 shares of common stock of Xxxxxxxx Technologies, Inc.
2. Distributions on the Pledged Shares(as defined in the Assignment).
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Exhibit B
---------
to
Pledge and Security Agreement
dated as of December 19, 2002
by Eurotech, Ltd.
in favor of Xxxxxxxx LLC.
Irrevocable Stock Power
-----------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
to ___________________________________, the following shares of common stock,
$_.01 par value per share, of the undersigned:
No. of Shares Certificate No.
------------- ---------------
and irrevocably appoints _________________________ its agent and
attorney-in-fact to transfer all or any part of such capital stock and to take
all necessary and appropriate action to effect any such transfer. The agent and
attorney-in-fact may substitute and appoint one or more persons to act for him.
The effectiveness of a transfer pursuant to this stock power shall be subject to
any and all transfer restrictions referenced on the face of the certificates
evidencing such interest or in the certificate of incorporation or bylaws of the
subject corporation, to the extent they may from time to time exist.
EUROTECH, LTD.
By: ____________________________
Name: ____________________________
Title: ____________________________
MEDALLION SIGNATURE GUARANTEE:
___________________________
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