STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated as of April 14, 1998, between WEXFORD
MANAGEMENT LLC, a Connecticut limited liability company, as agent for the
Noteholders (the "Agent") and BCAM International, Inc., a New York corporation
(the "Pledgor").
W I T N E S S E T H:
WHEREAS, Pledgor is the record and beneficial owner of the shares of
common stock described on Schedule I hereto (the "Pledged Shares") issued by the
Subsidiaries of the Pledgor named therein; and
WHEREAS, Pledgor and IMPLEO LLC are parties to that certain Note Purchase
Agreement dated as of September 19, 1997, as amended by that certain First
Amendment (the "First Amendment") dated as of April 14, 1998 (as the same may be
further amended, modified and supplemented from time to time, the "Purchase
Agreement") pursuant to which the Purchaser purchased certain Notes from the
Company;
WHEREAS, Pledgor and Xxxxx X. Xxxx, Xxxxxx Xxxxxxxxx, 621 Partners, X.
Xxxx & Associates, Strafe & Company for the account of Xxxxx X. Xxxx, Strafe &
Company for the account of Xxxxx X. Xxxxxxx, and Strafe & Company for the
account of Xxxxx X. Xxxxxxxxxxx (collectively, the "KM Purchasers") are parties
to that certain Note Purchase Agreement dated as of September 19, 1997, as
amended by that certain First Amendment (the "KM First Amendment") dated as of
April 14, 1998 (as the same may be further amended, modified and supplemented
from time to time, the "KM Purchase Agreement") pursuant to which the KM
Purchasers purchased the Other Notes from the Company.
WHEREAS, terms defined in the Purchase Agreement, unless separately
defined herein, shall have the meanings assigned to such terms therein; and
WHEREAS, in connection with the transactions contemplated under the
Purchase Agreement, as amended by the First Amendment thereto, and the KM
Purchase Agreement, as amended by the KM First Amendment, and as security for
all of the obligations of the Company under the Notes, the Other Notes and the
Transaction Documents, the Purchaser and the KM Purchasers are requiring that
Pledgor shall have executed and delivered this Stock Pledge Agreement and
granted the security interest contemplated hereby in favor of the Agent;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce the Purchaser to enter into the First
Amendment and to induce the KM Purchasers to enter into the KM First Amendment,
it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Purchase Agreement and the Notes are used herein as therein defined, and the
following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Agreement" means this Stock Pledge Agreement, including all amendments,
modifications and supplements and any exhibits or schedules to any of the
foregoing, and shall refer to the Agreement as the same may be in effect at the
time such reference becomes operative.
"Bankruptcy Code" means title 11, United States Code, as amended from time
to time, and any successor statute thereto.
"Capital Stock" means any shares of authorized capital stock of a
corporation.
"KM Warrant Agreement" means that certain Warrant Agreement dated as of
September 19, 1997 among the Company and the KM Purchasers.
"Noteholders" means the holders of the Notes and the Other Notes.
"Pledged Collateral" has the meaning assigned to such term in Section 2
hereof.
"Secured Obligations" has the meaning assigned to such term in Section 3
hereof.
"Security Agreement" means the Security Agreement of even date herewith
among BCAM International, Inc., BCAM Technologies, Inc., and Impleo LLC, as the
Agent as the same may be amended from time to time hereafter.
"Transaction Documents" means this Agreement, the Security Agreement, the
Purchase Agreement, the KM Purchase Agreement, the Notes, the Other Notes, the
Warrant Agreement and the KM Warrant Agreement.
"Warrant Agreement" means that certain Warrant Agreement dated as of
September 19, 1997 between the Company and Impleo LLC.
2. Pledge. The Pledgor hereby pledges to the Agent, and grants to the
Agent, a first priority security interest in, all of the following
(collectively, the "Pledged Collateral"):
(a) the Pledged Shares owned by the Pledgor listed on Schedule I hereto
and the certificates representing the Pledged Shares, and all dividends,
distributions, cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Shares;
(b) all additional shares of stock of any issuer of the Pledged Shares
from time to time acquired by the Pledgor in any manner (which shares shall be
deemed to be part of the Pledged Shares), and the certificates representing such
additional shares, and all dividends, distributions, cash, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares; and
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(c) all shares of any Person who, after the date of this Agreement,
becomes, as a result of any occurrence, a wholly-owned Subsidiary of the Pledgor
(which shares shall be deemed to be part of the Pledged Shares) and the
certificates representing such shares, and all dividends, cash, instruments and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares.
(d) Notwithstanding the foregoing, if the Pledgor is unable to deliver to
the Agent stock certificates representing all of the issued and outstanding
shares of Capital Stock of HumanCAD Systems, Inc., an Ontario corporation,
concurrently with the execution and delivery of this Agreement, then the Pledgor
agrees (i) not to pledge such shares of Capital Stock in favor of any other
Person, and (ii) to pledge such shares of Capital Stock to the Agent as promptly
as practicable after the Pledgor comes into possession thereof.
3. Security for Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of the
obligations, whether for principal, premium, interest, fees, costs and expenses,
and all obligations of the Pledgor now or hereafter existing under the
Transaction Documents (collectively, the "Secured Obligations"). This term
includes, without limitation, the Notes and any and all future advances, as well
as all interest, fees, charges, expenses, attorneys' fees and any other sum
chargeable to the Company under any of the Transaction Documents.
4. Delivery of Pledged Collateral. All certificates representing or
evidencing the Pledged Shares shall be delivered to and held by or on behalf of
the Agent pursuant hereto and shall be accompanied by duly executed instruments
of transfer or assignment in blank, all in form and substance satisfactory to
the Agent. Upon the occurrence of an Event of Default, the Agent shall have the
right, at any time in its sole and absolute discretion and without notice to the
Pledgor, to transfer to or to register in the name of the Agent or any of its
nominees any or all of the Pledged Shares. In addition, the Agent shall have the
right at any time to exchange certificates or instruments representing or
evidencing Pledged Shares for certificates or instruments of smaller or larger
denominations.
5. Representations and Warranties. The Pledgor represents and warrants to
the Agent that:
(a) The Pledgor is, and at the time of delivery of the Pledged Shares to
the Agent pursuant to Section 4 hereof will be, the sole holder of record and
the sole beneficial owner of the Pledged Collateral free and clear of any Lien
thereon or affecting the title thereto, except for the Lien created by this
Agreement.
(b) All of the Pledged Shares pledged pursuant to this Agreement have been
duly authorized, validly issued and are fully paid and non-assessable.
(c) The Pledgor has the right and requisite corporate authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral pledged
by the Pledgor to the Agent as provided herein.
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(d) None of the Pledged Shares pledged pursuant to this Agreement has been
issued or transferred in violation of the securities registration, securities
disclosure or similar laws of any jurisdiction to which such issuance or
transfer may be subject.
(e) The authorized Capital Stock of each of the corporations listed on
Schedule I hereto consists of the number of shares of common stock, with the
number of shares issued and outstanding that are described in Schedule I hereto.
Schedule I correctly states the Company's ownership percentage of each class of
Capital Stock of the Subsidiaries listed thereon. No Subsidiary listed on
Schedule I owns, directly or indirectly, any Subsidiaries. As of the date the
Pledged Collateral is delivered to the Agent, there are no existing options,
warrants, calls or commitments of any character whatsoever relating to any
Capital Stock of any of such corporations. Except as listed on Schedule I, the
Company has no Subsidiaries.
(f) No consent, approval, authorization or other order of any Person and
no consent, authorization, approval, or other action by, and no notice to or
filing with, any Governmental Authority is required either (i) for the pledge by
the Pledgor of the Pledged Collateral pursuant to this Agreement or for the
execution, delivery or performance of this Agreement by the Pledgor or (ii) for
the exercise by the Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant to this
Agreement, except as may be required in connection with such disposition by laws
affecting the offering and sale of securities generally.
(g) The pledge, assignment and delivery of the Pledged Collateral pursuant
to this Agreement will create a valid first priority Lien on and a first
priority perfected security interest in the Pledged Collateral pledged by the
Pledgor, and the proceeds thereof, securing the payment of the Secured
Obligations, subject to no other Lien or security interest.
(h) This Agreement has been duly authorized, executed and delivered by the
Pledgor and constitutes a legal, valid and binding obligation of the Pledgor
enforceable in accordance with its terms.
(i) Schedule I correctly states the Company's ownership percentage of each
class of Capital Stock of the Subsidiaries listed thereon.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. The Pledgor covenants and agrees that until the payment in
full of all of the Secured Obligations:
(a) Without the prior written consent of the Agent, the Pledgor will not
sell, assign, transfer, pledge, or otherwise encumber any of its rights in or to
the Pledged Collateral pledged by the Pledgor or any unpaid dividends or other
distributions or payments with respect thereto or xxxxx x Xxxx therein.
(b) The Pledgor will, at its expense, promptly execute, acknowledge and
deliver all such instruments and take all such action as the Agent from time to
time may reasonably request in order to ensure to the Agent the benefits of the
Liens in and to the Pledged Collateral intended to be created by this Agreement,
including the filing of any necessary
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Uniform Commercial Code financing statements, which may be filed by the Agent
with or without the signature of the Pledgor, and will cooperate with the Agent,
at the Pledgor's expense, in obtaining all necessary approvals and making all
necessary filings under federal or state law in connection with such Liens or
any sale or transfer of the Pledged Collateral.
(c) The Pledgor has and will defend the title to the Pledged Collateral
and the Liens of the Agent thereon against the claim of any Person and will
maintain and preserve such Liens until the payment in full of all of the Secured
Obligations.
(d) The Pledgor will, upon obtaining any additional shares of any
Subsidiaries or any new directly owned Subsidiary, which shares are not already
Pledged Collateral, promptly (and in any event within three (3) Business Days)
deliver to the Agent a Pledge Amendment, duly executed by the Pledgor, in
substantially the form of Schedule II hereto (a "Pledge Amendment"), in respect
of the additional Pledged Shares which are to be pledged pursuant to this
Agreement. The Pledgor hereby authorizes the Agent to attach each Pledge
Amendment to this Agreement and agrees that all Pledged Shares listed on any
Pledge Amendment delivered to the Agent shall for all purposes hereunder be
considered Pledged Collateral.
7. Pledgors' Rights. As long as no Event of Default shall have occurred
and be continuing and until written notice shall be given to the Pledgor in
accordance with Section 8(a) hereof,
(a) the Pledgor shall have the right, from time to time, to vote and give
consents with respect to the Pledged Collateral or any part thereof for all
purposes not inconsistent with the provisions of this Agreement, the Notes, the
Other Notes and any Transaction Document; provided, however, that no vote shall
be cast, and no consent shall be given or action taken, which would have the
effect of impairing the position or interest of the Agent in respect of the
Pledged Collateral or which would authorize or effect (i) the dissolution or
liquidation, in whole or in part, of any corporation listed on Schedule I, (ii)
the consolidation or merger of any corporation listed on Schedule I with any
other Person, (iii) the sale, disposition or encumbrance of all or substantially
all of the assets of any corporation or partnership listed on Schedule I, (iv)
any change in the authorized number of shares, the stated capital or the
authorized share capital of any corporation listed in Schedule I or the issuance
of any additional shares of its capital stock, or (v) the alteration of the
voting rights with respect to the Capital Stock of any corporation listed on
Schedule I; and
(b) all dividends and all other distributions in respect of any of the
Pledged Shares of the Pledgor, whenever paid or made, shall be delivered to the
Agent to hold as Pledged Collateral and shall, if received by the Pledgor, be
received in trust for the benefit of the Agent, be segregated from the other
property or funds of the Pledgor, and be forthwith delivered to the Agent as
Pledged Collateral in the same form as so received (with any necessary
endorsement).
8. Defaults and Remedies.
(a) Upon the occurrence of an Event of Default and during the continuation
of such Event of Default, then or at any time after such declaration and
following written notice to the Pledgor, the Agent (personally or through an
agent) is hereby authorized and empowered to transfer and register in its name
or in the name of its nominee the whole or any part of the
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Pledged Collateral, to exchange certificates or instruments representing or
evidencing Pledged Securities for certificates or instruments of smaller or
larger denominations, to exercise the voting rights with respect thereto, to
collect and receive all cash dividends and other distributions made thereon, to
sell in one or more sales after seven (7) days' notice of the time and place of
any public sale or of the time after which a private sale is to take place
(which notice the Pledgor agrees is commercially reasonable), but without any
previous notice or advertisement, the whole or any part of the Pledged
Collateral and to otherwise act with respect to the Pledged Collateral as though
the Agent was the outright owner thereof, the Pledgor hereby irrevocably
constituting and appointing the Agent as the proxy and attorney-in-fact of the
Pledgor, with full power of substitution to do so, and which shall remain in
effect until the Secured Obligations are paid in full; provided, however, the
Agent shall not have any duty to exercise any such right or to preserve the same
and shall not be liable for any failure to do so or for any delay in doing so.
Any sale shall be made at a public or private sale at the Agent's place of
business, or at any public building in the City of New York or elsewhere to be
named in the notice of sale, either for cash or upon credit or for future
delivery at such price as the Agent may deem fair, and the Agent may be the
purchaser of the whole or any part of the Pledged Collateral so sold and hold
the same thereafter in its own right free from any claim of the Pledgor or any
right of redemption. Each sale shall be made to the highest bidder, but the
Agent reserves the right to reject any and all bids at such sale which, in its
sole and absolute discretion, it shall deem inadequate. Demands of performance,
except as otherwise herein specifically provided for, notices of sale,
advertisements and the presence of property at sale are hereby waived and any
sale hereunder may be conducted by an auctioneer or any officer or agent of the
Agent.
(b) If, at the original time or times appointed for the sale of the whole
or any part of the Pledged Collateral, the highest bid, if there be but one
sale, shall be inadequate to discharge in full all the Secured Obligations, or
if the Pledged Collateral be offered for sale in lots, if at any of such sales,
the highest bid for the lot offered for sale would indicate to the Agent, in its
sole and absolute discretion, the unlikelihood of the proceeds of the sales of
the whole of the Pledged Collateral being sufficient to discharge all the
Secured Obligations, the Agent may, on one or more occasions and in its sole and
absolute discretion, postpone any of said sales by public announcement at the
time of sale or the time of previous postponement of sale, and no other notice
of such postponement or postponements of sale need be given, any other notice
being hereby waived; provided, however, that any sale or sales made after such
postponement shall be after seven (7) days' notice to the Pledgor.
(c) In the event of any sales hereunder the Agent shall, after deducting
all costs or expenses of every kind (including reasonable attorneys' fees and
disbursements) for care, safekeeping, collection, sale, delivery or otherwise,
apply the residue of the proceeds of the sales to the payment or reduction,
either in whole or in part, of the Secured Obligations in accordance with the
agreements and instruments governing and evidencing such Obligations, returning
the surplus, if any, to the Pledgor.
(d) If, at any time when the Agent in its sole and absolute discretion
determines, following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise of its
rights (when permitted under this Section 8) to sell the whole or any part of
the Pledged Collateral hereunder, it is necessary or advisable to effect a
public registration of all or part of the Pledged Collateral pursuant to the
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Securities Act of 1933, as amended (or any similar statute then in effect) (the
"Act"), the Pledgor shall, in an expeditious manner, cause its Subsidiaries, if
any, to:
(i) Prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement with respect to the Pledged
Collateral and use its best efforts to cause such registration statement
to become and remain effective.
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of the Pledged Collateral covered
by such registration statement whenever the Agent shall desire to sell or
otherwise dispose of the Pledged Collateral.
(iii) Furnish to the Agent such numbers of copies of a prospectus
and a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as the Agent may request in order to
facilitate the public sale or other disposition of the Pledged Collateral
by the Agent.
(iv) Use its best efforts to register or qualify the Pledged
Collateral covered by such registration statement under such other
securities or blue sky laws of such jurisdictions within the United States
as the Agent shall request, and do such other reasonable acts and things
as may be required of it to enable the Agent to consummate the public sale
or other disposition in such jurisdictions of the Pledged Collateral by
the the Agent.
(v) Furnish, at the request of the Agent, on the date that shares of
the Pledged Collateral are delivered to the underwriters for sale pursuant
to such registration or, if the security is not being sold through
underwriters, on the date that the registration statement with respect to
such shares of the Pledged Collateral becomes effective, (A) an opinion,
dated such date, of the independent counsel representing such registrant
for the purposes of such registration, addressed to the underwriters, if
any, and in the event the Pledged Collateral is not being sold through
underwriters, then to the Agent, in customary form and covering matters of
the type customarily covered in such legal opinions; and (B) a comfort
letter, dated such date, from the independent certified public accountants
of such registrant, addressed to the underwriters, if any, and in the
event the Pledged Collateral is not being sold through underwriters, then
to the Agent, in a customary form and covering matters of the type
customarily covered by such comfort letters and as the underwriters or the
Agent shall reasonably request. The opinion of counsel referred to above
shall additionally cover such other legal matters with respect to the
registration in respect of which such opinion is being given as the Agent
may reasonably request. The letter referred to above from the independent
certified public accountants shall additionally cover such other financial
matters (including information as to the period ending not more than five
(5) Business Days prior to the date of such letter) with respect to the
registration in respect of which such letter is being given as the Agent
may reasonably request.
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(vi) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, but not later than 18
months after the effective date of the registration statement, an earnings
statement covering the period of at least 12 months beginning with the
first full month after the effective date of such registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of
the Act.
(e) All expenses incurred in complying with Section 8(d) hereof,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the National Association of Securities Dealers,
Inc.), printing expenses, fees and disbursements of counsel for the registrant,
the fees and expenses of counsel for the Agent, expenses of the independent
certified public accountants (including any special audits incident to or
required by any such registration) and expenses of complying with the securities
or blue sky laws or any jurisdictions, shall be paid by the Pledgor.
(f) If, at any time when the Agent shall determine to exercise its right
to sell the whole or any part of the Pledged Collateral hereunder, such Pledged
Collateral or the part thereof to be sold shall not, for any reason whatsoever,
be effectively registered under the Act, the Agent may, in its sole and absolute
discretion (subject only to applicable requirements of law), sell such Pledged
Collateral or part thereof by private sale in such manner and under such
circumstances as the Agent may deem necessary or advisable, but subject to the
other requirements of this Section 8, and shall not be required to effect such
registration or to cause the same to be effected. Without limiting the
generality of the foregoing, in any such event the Agent in its sole and
absolute discretion (x) may, in accordance with applicable securities laws,
proceed to make such private sale notwithstanding that a registration statement
for the purpose of registering such Pledged Collateral or part thereof could be
or shall have been filed under the Act (or similar statute), (y) may approach
and negotiate with a single possible purchaser to effect such sale, and (z) may
restrict such sale to a purchaser who will represent and agree that such
purchaser is purchasing for its own account, for investment and not with a view
to the distribution or sale of such Pledged Collateral or part thereof. In
addition to a private sale as provided above in this Section 8, if any of the
Pledged Collateral shall not be freely distributable to the public without
registration under the Act (or similar statute) at the time of any proposed sale
pursuant to this Section 8, then the Agent shall not be required to effect such
registration or cause the same to be effected but, in its sole and absolute
discretion (subject only to applicable requirements of law), may require that
any sale hereunder (including a sale at auction) be conducted subject to
restrictions (i) as to the financial sophistication and ability of any Person
permitted to bid or purchase at any such sale, (ii) as to the content of legends
to be placed upon any certificates representing the Pledged Collateral sold in
such sale, including restrictions on future transfer thereof, (iii) as to the
representations required to be made by each Person bidding or purchasing at such
sale relating to that Person's access to financial information about the Pledgor
and such Person's intentions as to the holding of the Pledged Collateral so sold
for investment, for its own account, and not with a view to the distribution
thereof, and (iv) as to such other matters as the Agent may, in its sole and
absolute discretion, deem necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in compliance with
the Bankruptcy Code and other laws affecting the enforcement of creditors'
rights and the Act and all applicable state securities laws.
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(g) The Pledgor acknowledges that notwithstanding the legal availability
of a private sale or a sale subject to the restrictions described above in
Section 8(f), the Agent may, in its sole and absolute discretion, elect to
register any or all the Pledged Collateral under the Act (or any applicable
state securities law) in accordance with its rights hereunder. The Pledgor,
however, recognizes that the Agent may be unable to effect a public sale of any
or all the Pledged Collateral and may be compelled to resort to one or more
private sales thereof. The Pledgor also acknowledges that any such private sale
may result in prices and other terms less favorable to the seller than if such
sale were a public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially reasonable
manner. The Agent shall be under no obligation to delay a sale of any of the
Pledged Collateral for the period of time necessary to permit the registrant to
register such securities for public sale under the Act, or under applicable
state securities laws, even if the Pledgor would agree to do so.
(h) The Pledgor agrees that following the occurrence and during the
continuance of an Event of Default it will not at any time plead, claim or take
the benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay the
enforcement of this Agreement, or the absolute sale of the whole or any part of
the Pledged Collateral or the possession thereof by any purchaser at any sale
hereunder, and the Pledgor waives the benefit of all such laws to the extent it
lawfully may do so. The Pledgor agrees that it will not interfere with any
right, power and remedy of the Agent provided for in this Agreement or now or
hereafter existing at law or in equity or by statute or otherwise, or the
exercise or beginning of the exercise by the Agent of any one or more of such
rights, powers or remedies. No failure or delay on the part of the Agent to
exercise any such right, power or remedy and no notice or demand which may be
given to or made upon the Pledgor by the Agent with respect to any such remedies
shall operate as a waiver thereof, or limit or impair the right of the Agent to
take any action or to exercise any power or remedy hereunder, without notice or
demand, or prejudice its rights as against the Pledgor in any respect.
(i) The Pledgor further agrees that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to the Agent, that the
Agent have no adequate remedy at law in respect of such breach and, as a
consequence, agrees that each and every covenant contained in this Section 8
shall be specifically enforceable against the Pledgor, and the Pledgor hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that the Secured Obligations
are not then due and payable in accordance with the agreements and instruments
governing and evidencing such obligations. The Pledgor further acknowledges the
impossibility of ascertaining the amount of damages which would be suffered by
the Agent by reason of a breach of any of such covenants and, consequently,
agrees that, if the Agent shall xxx for damages for breach, it shall pay, as
liquidated damages and not as a penalty, an amount equal to the lesser of (i)
the value of the Pledged Collateral pledged by the Pledgor on the date the Agent
shall demand compliance with this Section 8, and (ii) the amount required to pay
in full the Secured Obligations.
9. Application of Proceeds. Any cash held by the Agent as Pledged
Collateral and all cash proceeds received by the Agent in respect of any sale
of, liquidation of, or other realization upon all or any part of the Pledged
Collateral shall be applied by the Agent as follows:
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first, to the Agent in an amount sufficient to pay in full the
expenses of the Agent in connection with such sale, disposition or other
realization, including all expenses, liabilities and advances incurred or
made by the Agent in connection therewith, including, without limitation,
attorneys' fees;
second, to the Agent in an amount equal to the then unpaid principal
of and accrued interest and prepayment premiums, if any, on the Secured
Obligations;
third, to the Agent in an amount equal to any other Secured
Obligations which are then unpaid; and
finally, after payment in full of all Secured Obligations, to pay to
the Pledgor, or its successors or assigns, or to whomsoever may be
lawfully entitled to receive the same, or as a court of competent
jurisdiction may direct, any surplus then remaining from such proceeds.
10. Waiver. No delay on the part of the Agent in exercising any power of
sale, Lien, option or other right hereunder, and no notice or demand which may
be given to or made upon the Pledgor by the Agent with respect to any power of
sale, Lien, option or other right hereunder, shall constitute a waiver thereof,
or limit or impair the Agent's right to take any action or to exercise any power
of sale, Lien, option, or any other right hereunder, without notice or demand,
or prejudice any of their rights as against the Pledgor in any respect.
11. Assignment. The Agent may assign, endorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Transaction Documents, and the holder of such instrument
shall be entitled to the benefits of this Agreement.
12. Termination. Immediately following the payment of all Secured
Obligations, the Agent shall deliver to the Pledgor the Pledged Collateral at
the time subject to this Agreement and all instruments of assignment executed in
connection therewith, free and clear of the Liens hereof and, except as
otherwise provided herein, all of the Pledgor's obligations hereunder shall at
such time terminate.
13. Lien Absolute. All rights of the Agent hereunder, and all obligations
of the Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any Transaction Document or
any other agreement or instrument governing or evidencing any Secured
Obligations;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any part of the Secured Obligations, or any other amendment or
waiver of or any consent to any departure from any Transaction Document or any
other agreement or instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other collateral, or
any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the Secured Obligations; or
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(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Pledgor.
14. Release. The Pledgor consents and agrees that the Agent may at any
time, or from time to time, in its sole and absolute discretion (a) renew,
extend or change the time of payment, and/or the manner, place or terms of
payment of all or any part of the Secured Obligations and (b) exchange, release
and/or surrender all or any of the Pledged Collateral, or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by the Agent in
connection with all or any of the Secured Obligations; all in such manner and
upon such terms as the Agent may deem proper, and without notice to or further
assent from the Pledgor, it being hereby agreed that the Pledgor shall be and
remain bound upon this Agreement, irrespective of the existence, value or
condition of any of the Pledged Collateral, and notwithstanding any such change,
exchange, settlement, compromise, surrender, release, renewal or extension, and
notwithstanding also that the Secured Obligations may, at any time, exceed the
aggregate principal amount thereof set forth in the Notes, or any other
agreement governing any Secured Obligations. The Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and notice
of dishonor of any and all of the Secured Obligations, and promptness in
commencing suit against any party hereto or liable hereon, and in giving any
notice to or of making any claim or demand hereunder upon the Pledgor. No act or
omission of any kind on the part of the Agent shall in any event affect or
impair this Agreement.
15. Indemnification. The Pledgor agrees to indemnify and hold the Agent
harmless from and against any taxes, liabilities, claims and damages, including
reasonable attorney's fees and disbursements, and other expenses incurred or
arising by reason of the taking or the failure to take action by the Agent, in
good faith, in respect of any transaction effected under this Agreement or in
connection with the Lien provided for herein, including, without limitation, any
taxes payable in connection with the delivery or registration of any of the
Pledged Collateral as provided herein. Whether or not the transactions
contemplated by this Agreement shall be consummated, the Pledgor agrees to pay
to the Agent all out-of-pocket costs and expenses incurred in connection with
this Agreement and all reasonable fees, expenses and disbursements, including
registration costs under the Act (or similar statute) and the reasonable fees of
the Agent's agents or representatives, incurred in connection with the execution
and delivery of this Agreement and the performance by the Agent of the
provisions of this Agreement and of any transactions effected in connection with
this Agreement. The obligations of the Pledgor under this Section 15 shall
survive the termination of this Agreement.
16. Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Pledgor for liquidation or reorganization, should the Pledgor become insolvent
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the Pledgor's assets,
and shall continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Secured Obligations, or any part
thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee of the Secured Obligations,
whether as a "violable preference", "fraudulent conveyance", or otherwise, all
as though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Secured Obligations shall be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
11
17. WAIVER OF JURY TRIAL. THE PLEDGOR WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO DEFEND ANY RIGHTS OR REMEDIES HEREUNDER, UNDER THE
AGREEMENT, THE KM AGREEMENT OR UNDER THE OTHER TRANSACTION DOCUMENTS OR RELATING
TO ANY OF THE FOREGOING.
18. Miscellaneous.
(a) The Agent may execute any of its duties hereunder by or through agents
or employees and shall be entitled to advice of counsel concerning all matters
pertaining to its duties hereunder.
(b) The Pledgor agrees to promptly reimburse the Agent for actual
out-of-pocket expenses, including, without limitation, reasonable counsel fees,
incurred by the Agent in connection with the administration and enforcement of
this Agreement.
(c) None of the Agent, nor any of their respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully taken or
omitted to be taken by it or them hereunder or in connection herewith, except
for its or their own gross negligence or willful misconduct.
(d) This Agreement shall be binding upon the Pledgor and its successors
and assigns, and shall inure to the benefit of, and be enforceable by, the Agent
and its respective successors and assigns, and shall be governed by, and
construed and enforced in accordance with, the internal laws in effect in the
State of New York without giving effect to principles of conflict of laws, and
none of the terms or provisions of this Agreement may be waived, altered,
modified or amended except in writing duly signed for and on behalf of the Agent
and the Pledgor.
19. Severability. If for any reason any provision or provisions hereof are
determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
20. Notices. Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other party, or whenever any of the parties desires to give or serve upon any
other a communication with respect to this Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and either shall be delivered in person with receipt acknowledged or
sent by registered or certified mail, return receipt requested, postage prepaid,
or by telecopy and confirmed by telecopy and addressed as follows:
(a) If to the Agent, at:
Wexford Management LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
12
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
XxXxxxxxx, Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
13
(b) If to the Pledgors, to:
c/o BCAM International, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx, President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Ruskin, Moscou, Xxxxx & Faltischek, PC
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback or
three (3) Business Days after the same shall have been deposited in the United
States mail. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to the persons
designated above to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication.
21. Section Titles. The Section titles contained in this Agreement are and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
14
22. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Pledge
Agreement to be duly executed as of the date first written above.
BCAM INTERNATIONAL, INC.
By:
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
WEXFORD MANAGEMENT LLC, as the Agent
for the Noteholders
By:
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
15
SCHEDULE I
to the Stock Pledge Agreement
Issued and Outstanding
State of Authorized Shares Before Issuance of
Company Organization Capital Stock to the Noteholders
------- ------------ ------- -------------------------
Drew Shoe Ohio 1,711.3422 shares 1,709.829
Corporation of common stock,
no par value
BCAM Technologies, Delaware 1,000 shares 1,000
Inc common stock par
value $.001 per
share
100 shares of mutual 0
stock, par value
$.001 preferred per
share
HumanCAD Systems, Ontario An unlimited number [to be provided]
Inc. of shares, without
par value
BCAM Technologies, New York [to be provided] [to be provided]
Inc.
BCA Services, Inc. New York 10,000,000 shares of 10,000,000
common stock, par
value $.01 per share
16
SCHEDULE II
to the Stock Pledge Agreement
PLEDGE AMENDMENT
This Pledge Amendment, dated __________ __, 19__ is delivered pursuant to
Section 6(d) of the Stock Pledge Agreement referred to below. The undersigned
hereby agrees that this Pledge Amendment may be attached to that certain Stock
Pledge Agreement, dated as of April __, 1998 by the undersigned, as Pledgor, to
Wexford Management LLC, as Agent, and that the Pledged Securities listed on this
Pledge Amendment shall be and become a part of the Pledged Collateral referred
to in said Stock Pledge Agreement and shall secure all Secured Obligations
referred to in said Stock Pledge Agreement.
BCAM INTERNATIONAL, INC.
By:
------------------------------
Name:
Title:
Class of Certificate Number of Shares Issued
Name and Address of Pledgor Issuer Stock Number(s) Number of Shares and Outstanding
--------------------------- ------ ----- --------- ---------------- ---------------
