EXHIBIT 10.10
EXHIBIT F
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT (this "Agreement"), dated December , 2001, by
and between XXX XXXX and XXXXXX XXXX, each an individual (collectively and
severally, the "Pledgor"); A.P.F. ACQUISITION CORP., a New York corporation
("Maker") and INTERIORS, INC., a Delaware corporation (together with its
successors and assigns, the "Pledgee");
W I T N E S S E T H:
WHEREAS, the Maker, the Pledgee and the Pledgor are parties to that
certain Asset Purchase Agreement, dated December 24, 2001 (the "Purchase
Agreement"); and
WHEREAS, as partial payment of the Purchase Price for the Assets and
business of the APF Division, the Maker is issuing to the Pledgee, a certain
Promissory Note of even date herewith in the principal amount of Seven Hundred
Fifty Thousand Dollars ($750,000) (the "Purchase Note");
WHEREAS, Pledgor is the sole stockholder of the Maker and, as
additional security for the payment of the Purchase Note, has issued to Pledgee
their personal guaranty of the obligations of Maker under the Purchase Note,
pursuant to a guaranty, dated of even date (the "Guaranty"); and
WHEREAS, in order to induce Pledgor to accept the Purchase Note and the
Guaranty, the Pledgor has agreed to secure all of the Maker's obligations under
the Purchase Note and the Pledgor's obligations under the Guaranty with the
grant to the Pledgee of a first priority security interest in and to the
"Pledged Stock" (as hereinafter defined), under the terms and subject to the
conditions of this Agreement; and
WHEREAS, Pledgor, as the sole stockholder of the Maker, will derive
substantial benefit from the transactions contemplated by the Purchase
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Definitions.
Unless otherwise separately defined herein, all capitalized
terms used in this Agreement shall have the same meaning as is defined in the
Purchase Agreement. In addition to those terms defined elsewhere in this
Agreement, the following terms shall have the following meanings wherever used
in this Agreement:
(a) "Event of Default" shall have the same meaning as provided
in the Purchase Note.
(b) "Pledged Stock" shall mean, collectively (i) all, and not
less than all, of the shares of capital stock of the Maker now owned or
hereafter owned or acquired by the Pledgor, any Affiliate of the Pledgor or any
member of the families of any of such persons; and (ii) any options, warrants or
other rights to acquire shares of Pledged Stock which may hereafter be issued to
and/or owned beneficially or of record by the Pledgor, any Affiliate of the
Pledgor or any member of the families of any of such persons, and any and all
securities which may hereafter be issued in respect or upon exercise of such
options, warrants or other rights.
(c) "Obligations" shall mean the individual and collective
reference to: (a) all principal and interest which may be payable under the
Purchase Note at any time and from time to time, whether upon stated maturity,
by acceleration, or otherwise, (b) all other covenants and agreements of the
Maker under the Purchase Note, the Security Agreement or the Purchase Agreement,
and (c) all covenants and agreements of the Pledgor under the Guaranty.
(d) "Satisfaction Date" shall mean that date on which all of
the Obligations have been paid or otherwise satisfied in full.
2. Pledge of the Pledged Stock.
(a) As security for the due and timely payment and performance
of all of the Obligations from time to time, the Pledgor hereby pledges to the
Pledgee, and grants to the Pledgee a first priority lien and security interest
in, all of the Pledged Stock (as same are constituted from time to time),
together with all cash dividends, stock dividends, interest, profits, premiums,
redemptions, warrants, subscription rights, options, substitutions, exchanges
and other distributions now or hereafter made on the Pledged Stock and all cash
and non-cash proceeds thereof, until the Satisfaction Date. The Pledged Stock
and all property at any time pledged to the Pledgee hereunder or in which the
Pledgee is granted a security interest (whether described herein or not) and all
income therefrom and proceeds thereof are herein collectively called the
"Pledged Collateral".
(b) In furtherance of the pledge hereunder, the Pledgor is,
concurrently herewith, delivering to the Pledgee the certificates representing
all of the currently outstanding shares of Pledged Stock, each of which now
remains in the name of the Pledgor and is, to the extent requested by the
Pledgee, accompanied by appropriate undated stock powers duly endorsed in blank
by the Pledgor.
(c) If, while this Agreement is in effect, the Pledgor becomes
entitled to receive or receives any stock certificate (including, without
limitation, any certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of capital or issued
in connection with any reorganization), option or rights, whether as an addition
to, in substitution of, or in exchange for, any Pledged Stock or otherwise, the
Pledgor agrees to accept the same as agent for the Pledgee, to hold the same in
trust on behalf of and for the benefit of the Pledgee, and to deliver the same
forthwith to the Pledgee in the exact form received, with the endorsement of the
Pledgor when necessary and/or appropriate undated stock or other powers duly
executed in blank, to be held by the Pledgee, subject to the terms hereof, as
additional collateral security for the Obligations. Any sums paid on or in
respect of the Pledged Stock on the liquidation or dissolution of the Pledgor
shall be paid over to the Pledgee, to be held by the Pledgee, subject to the
terms and conditions hereof, as additional collateral security for the
Obligations.
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3. Retention of the Pledged Stock.
(a) Except as otherwise provided herein, the Pledgee shall
have no obligation with respect to the Pledged Collateral, except to use
reasonable care in the custody and preservation thereof, to the extent required
by law.
(b) The Pledgee shall hold the Pledged Collateral in the form
in which same are delivered herewith, unless and until there shall occur an
Event of Default.
4. Rights of the Pledgor. Throughout the term of this Agreement, so
long as no Event of Default has occurred and is continuing, the Pledgor shall
have the right to vote the Pledged Stock in all matters presented to the
stockholders of the Pledgor for vote thereon, except in a manner inconsistent
with the terms of this Agreement or with the rights and interest of the Pledgee
under this Agreement.
5. Event of Default; Power of Attorney.
(a) Upon the occurrence and during the continuance of any
Event of Default, the Pledgee shall have the right to: (i) exercise all voting
and corporate rights of, and all rights of conversion, exchange, subscription or
any other rights, privileges or options pertaining to, any Pledged Stock as if
the Pledgee were the absolute owner thereof, including (without limitation) the
right to exchange, at its discretion, any and all of the Pledged Stock upon the
merger, consolidation, reorganization, recapitalization or other readjustment of
the Maker or upon the exercise by the Pledgor or the Pledgee of any right,
privilege or option pertaining to any of the Pledged Stock and, in connection
therewith, to deposit and deliver any and all of the Pledged Stock with any
committee, depository, transfer agent, registrar or other designated agency on
such terms and conditions as the Pledgee may determine, all without liability
except to account for property actually received by it; (ii) apply any funds or
other property received in respect of the Pledged Stock to the Obligations, and
receive in its own name any and all further distributions which may be paid in
respect of the Pledged Stock, all of which shall, upon receipt by the Pledgee,
be applied to the Obligations; (iii) transfer all or any portion of the Pledged
Stock (as determined by the Pledgee in its discretion) on the books of the Maker
to and in the name of the Pledgee or such other person or persons as the Pledgee
may designate; (iv) effect any sale, transfer or disposition of all or any
portion of the Pledged Stock and in furtherance thereof, take possession of and
endorse any and all checks, drafts, bills of exchange, money orders or other
documents and instruments received on account of the Pledged Stock; (v) collect,
xxx for and give acquittance for any money due on account of any of the
foregoing; and (vi) take any and all other action contemplated by this
Agreement, or as otherwise permitted by law, or as the Pledgee may reasonably
deem necessary or appropriate, in order to accomplish the purposes of this
Agreement.
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(b) In furtherance of the foregoing powers of the Pledgee, the
Pledgor hereby authorizes and appoints the Pledgee, with full powers of
substitution, as the true and lawful attorney-in-fact of the Pledgor, in his
name, place and stead, to take any and all such action as the Pledgee, in its
sole discretion, may deem necessary or appropriate in furtherance of the
exercise of the aforesaid powers. Such power of attorney shall be coupled with
an interest, and shall be irrevocable until the Satisfaction Date. Without
limitation of the foregoing, such power of attorney shall not in any manner be
affected or impaired by reason of any act of the Pledgor or by operation of law.
Nothing herein contained, however, shall be deemed to require or impose any duty
upon the Pledgee to exercise any of the rights or powers granted herein.
(c) The foregoing rights and powers granted to the Pledgee,
and the foregoing power of attorney, shall be fully binding upon any person who
may acquire any beneficial interest in any of the Pledged Stock or any other
property held or received by the Pledgee hereunder.
6. Foreclosure; Sale of Pledged Stock.
(a) Without limitation of paragraph 5 above, in the event that
the Pledgee shall make any sale or other disposition of any or all of the
Pledged Stock following an Event of Default, the Pledgee may also:
(i) offer and sell all or any portion of the Pledged
Stock by means of a private placement restricting the offer or sale to a limited
number of prospective purchasers who meet such suitability standards as the
Pledgee and its counsel may deem appropriate, and who may be required to
represent that they are purchasing Pledged Stock for investment and not with a
view to distribution;
(ii) purchase all or any portion of the Pledged Stock
for the Pledgee's own account at a price not less than the highest bona fide
offer received therefor, which if effected in a manner in compliance with
applicable law, shall be deemed to be a commercially reasonable disposition of
the subject Pledged Stock;
(iii) sell any or all of the Pledged Stock upon
credit or for future delivery, without being in any way liable for failure of
the purchaser to pay for the subject Pledged Stock; and
(iv) receive and collect the net proceeds of any sale
or other disposition of any Pledged Stock, and apply same in such order and to
such of the Obligations (including the costs and expenses of the sale or
disposition of the Pledged Stock) as the Pledgee may, in its absolute
discretion, deem appropriate.
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(b) Upon any sale of any of the Pledged Stock in accordance
with this Agreement, the Pledgee shall have the right to assign, transfer and
deliver the subject Pledged Stock to the purchaser(s) thereof, and each such
purchaser shall be entitled to hold such Pledged Stock absolutely free from any
right or claim of the Pledgor and/or any other person claiming any beneficial
interest in the Pledged Stock, including any equity of redemption (which right
and all other such rights are hereby waived by the Pledgor to the fullest extent
permitted by law).
(c) Nothing herein contained shall be deemed to require the
Pledgee to effect any sale or disposition of any Pledged Stock at any time, or
to consummate any proposed public or private sale at the time and place at which
same was initially called. It is the intention of the parties hereto that the
Pledgee shall, subject to any further conditions imposed by this Agreement, at
all times following the occurrence of an Event of Default, have the right to use
or deal with the Pledged Stock as if the Pledgee were the outright owner
thereof, and to exercise any and all rights and remedies, as a secured party in
possession of collateral or otherwise, under any and all provisions of law.
7. Covenants, Representations and Warranties.
In connection with the transactions contemplated by this
Agreement, and knowing that the Pledgee is and shall be relying hereon, the
Pledgor hereby covenants, represents and warrants that, except as contemplated
in the Purchase Agreement:
(a) the Pledged Stock have been and will be duly and validly
issued, are and will be fully paid and non-assessable, and are and will be owned
by the Pledgor free and clear of any and all restrictions, pledges, liens,
encumbrances or other security interests of any kind, save and except for the
pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights
in respect of the sale, transfer or other disposition of any of the Pledged
Stock by the Pledgor, and the Pledgor has the absolute right to pledge the
Pledged Stock hereunder without the necessity of any consent of any Person;
(c) the Pledged Stock constitute all of the outstanding
capital stock and other securities of the Maker on the date hereof; and neither
the Maker nor the Pledgor not granted any options, warrants or other rights to
subscribe for or acquire any capital stock or other securities of Maker, or any
securities or other rights exercisable for or convertible into any capital
stock, securities or rights to acquire securities of Maker;
(d) neither the execution or delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, nor the compliance
with or performance of this Agreement by the Pledgor, conflicts with or will
result in the breach or violation of or a default under the terms, conditions or
provisions of (i) any mortgage, security agreement, indenture, evidence of
indebtedness, loan or financing agreement, or other agreement or instrument to
which the Pledgor or the Maker is a party or by which the Pledgor or the Maker
is bound, or (ii) any provision of law, any order of any court or administrative
agency, or any rule or regulation applicable to the Pledgor or the Maker;
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(e) this Agreement has been duly executed and delivered by the
Pledgor, and constitutes the legal, valid and binding obligation of the Pledgor,
enforceable against the Pledgor in accordance with its terms; and
(f) there are no actions, suits or proceedings pending or
threatened against or affecting the Maker or the Pledgor that involve or relate
to the Pledged Collateral.
(g) Until the Purchase Note shall be paid in full, neither the
Pledgor nor any Affiliate or family member of the Pledgor will (i) sell,
transfer, pledge or assign any shares of capital stock of the Maker; or (ii)
sell, transfer, pledge or assign any of the assets or properties of Maker.
8. Return of the Pledged Stock. To the extent that the Pledgee shall
not previously have taken, acquired, sold, transferred, disposed of or otherwise
realized value on the Pledged Collateral in accordance with this Agreement, at
the Satisfaction Date, any security interest in the Pledged Collateral shall
automatically terminate, cease to exist and be released, and the Pledgee shall
forthwith return the Pledged Collateral to and in the name of the Pledgor.
9. Expenses of the Pledgee. All expenses incurred by the Pledgee
(including but not limited to reasonable attorneys' fees) in connection with any
actual or attempted sale or other disposition of Pledged Stock hereunder shall
be reimbursed to the Pledgee by the Pledgor (jointly and severally) on demand,
or, at the Pledgee's option, such expenses may be added to the Obligations and
shall be payable on demand.
10. Further Assurances. From time to time hereafter, each party shall
take any and all such further action, and shall execute and deliver any and all
such further documents and/or instruments, as any other party may request in
order to accomplish the purposes of and fulfill the parties' obligations under
this Agreement, in order to enable the Pledgee to exercise any of its rights
hereunder, and/or in order to secure more fully the Pledgee's interest in the
Pledged Collateral.
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11. Miscellaneous.
(a) Any notices or consents required or permitted under this
Agreement shall be in writing and shall be deemed given as, when and in the
manner provided in the Purchase Agreement.
(b) This Agreement shall be construed in accordance with and
governed for all purposes by the laws of the State of New York applicable to
contracts executed and to be wholly performed within such State. With respect to
any action that may arise under this Agreement, the parties hereto irrevocably
submit and consent to the exclusive jurisdiction of the federal court located
within Westchester County, State of New York (or if such court lacks
jurisdiction, the state court located therein).
(c) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns. The
Pledgor shall not, however, assign any of its rights or obligations hereunder
without the prior written consent of the Pledgee, and the Pledgee shall not
assign its rights hereunder without simultaneously assigning its obligations
hereunder to the subject assignee. Except as otherwise referred to herein, this
Agreement, and the documents executed and delivered pursuant hereto, constitute
the entire agreement between the parties relating to the specific subject matter
hereof.
(d) Neither any course of dealing between the Pledgor and the
Pledgee nor any failure to exercise, or any delay in exercising, on the part of
the Pledgee, 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 operate as a waiver of any other exercise of such right, power or
privilege or any other right, power or privilege.
(e) The Pledgee's rights and remedies, whether hereunder or
pursuant to any other agreements or by law or in equity, shall be cumulative and
may be exercised singly or concurrently.
(f) No change, amendment, modification, waiver, assignment of
rights or obligations, cancellation or discharge hereof, or of any part hereof,
shall be valid unless the Pledgee shall have consented thereto in writing.
(g) The captions and paragraph headings in this Agreement are
for convenience of reference only, and shall not in any way define, limit or
describe the construction, terms or provisions of this Agreement.
(h) If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require, and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date first set forth above.
Pledgee:
INTERIORS, INC.
By:
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Xxxx York
Administrative Vice President
Pledgor:
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XXX XXXX
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XXXXXX XXXX
Approved:
A.P.F. ACQUISITION CORP.
By:
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Xxx Xxxx
President and Chief Executive
Officer
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