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EXHIBIT 10.20
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT dated as of December 6, 1996 by and between
ZYNAXIS, INC., a Pennsylvania corporation (the "Pledgor") and CYTRX
CORPORATION, a Delaware corporation (the "Pledgee").
WHEREAS, pledgee has agreed to lend funds to the Pledgor, with the
Pledgor's obligation to repay the loan being evidenced by that certain Senior
Secured Note made by Pledgor in favor of Pledgee that is being delivered
simultaneously with the execution of this Agreement (the "Note"); and
WHEREAS, in connection with such loan the Pledgee requires a first
priority security interest in all of the assets of the Pledgor.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
SECTION 1. PLEDGE. The Pledgor hereby pledges, hypothecates,
assigns, transfers, sets over and delivers unto the Pledgee, and grants to the
Pledgee a security interest in, all of the Pledgor's right, title and interest
in, to and under the following (collectively, the "Pledged Collateral"): (a)
all of the common stock, shares, equity interest and other securities
(collectively, "Securities") of each Person (each an "Issuer") described in
Schedule 1 attached hereto; (b) any additional Securities of any of such
Issuers as may from time to time be issued to the Pledgor or otherwise acquired
by the Pledgor; (c) any additional Securities of any Issuer as may hereafter at
any time be delivered to the Pledgee by or on behalf of the Pledgor; (d) any
cash or additional Securities or other property at any time and from time to
time receivable or otherwise distributable in respect of, in exchange for, or
in substitution of, any of the property referred to in any of the immediately
preceding clauses (a) through (c); and (e) any and all products and proceeds of
any of the foregoing, together with any and all other rights, titles,
interests, powers, privileges and preferences pertaining to said property.
SECTION 2. OBLIGATIONS SECURED. This Agreement is made, and the
security interest created hereby is granted to the Pledgee, to secure the
prompt performance and payment in full of all indebtedness, liabilities,
obligations, covenants and duties of the Pledgor owing to the Pledgee of every
kind, nature and description, whether direct or indirect, absolute or
contingent, due or not due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any note, including any
reasonable fees of or costs or expenses incurred by the Pledgee or Pledgee's
counsel in connection with the realization of the security for which this
Agreement provides, including, without
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limitation, any reasonable costs or expenses of any proceedings to which this
Agreement may give rise.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Pledgor hereby
represents and warrants to the Pledgee as follows:
(a) Validly Issued, etc. All of the Securities of each Issuer
have been validly issued and are fully paid and nonassessable.
(b) Title and Liens. The Pledgor is, and will at all times
continue to be, the legal and beneficial owner of the Pledged Collateral and
none of the Pledged Collateral is subject to any Lien. No financing statement
under the Uniform Commercial Code of any jurisdiction which names the Pledgor
as debtor or covers any of the Pledged Collateral, or any other notice filed in
the public records indicating the existence of a Lien thereon, has been filed
and is still effective in any state or other jurisdiction, other than Uniform
Commercial Code financing statements filed in favor of the Pledgee, and the
Pledgor has not signed any such financing statement or notice or any security
agreement authorizing the filing of any such financing statement or notice,
other than Uniform Commercial Code financing statements filed in favor of the
Pledgee.
(c) Name; Chief Executive Office; Taxpayer ID Number. The correct
corporate name of the Pledgor is set forth in the first paragraph of this
Agreement. The chief executive office and principal place of business of the
Pledgor and the location of the Pledgor's books and records relating to the
Pledged Collateral are located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇. The Internal Revenue Service taxpayer identification
number of the Pledgor is ▇▇-▇▇▇▇▇▇▇.
(d) Authority, etc. The Pledgor (i) has the power and authority
to pledge the Pledged Collateral in the manner hereby done or contemplated and
(ii) will defend its title or interest thereto or therein against any and all
Liens (other than the Lien created by this Agreement and Permitted Liens),
however arising, of all Persons.
(e) No Approval. No consent or approval of any Governmental
Authority or any securities exchange was or is necessary to the validity of the
pledge effected hereby.
(f) Outstanding Shares. Schedule 2 attached hereto sets forth the
authorized capital structure of each Issuer and the issued and outstanding
shares of stock of each class of capital stock.
SECTION 4. COVENANTS. The Pledgor hereby unconditionally covenants
and agrees as follows:
(a) No Liens; No Sale of Pledged Collateral. The Pledgor will not
create, assume, incur or permit or suffer to exist or to be created, assumed or
incurred, any Lien on any of the Pledged Collateral (or any interest therein),
other than Permitted Liens, and
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will not, without the prior written consent of the Pledgee, sell, lease,
assign, transfer or otherwise dispose of all or any portion of the Pledged
Collateral (or any interest therein).
(b) Change of Locations, Name, Etc. Without giving the Pledgor
sixty-day's prior written notice, the Pledgor will not (i) change the Pledgor's
chief executive office, principal place of business, or the location of its
books and records relating to the Pledged Collateral or (ii) change its name,
identity or structure.
SECTION 5. ADDITIONAL SHARES.
(a) During the period this Agreement is in effect, the Pledgor
shall not permit any Issuer to issue any additional shares of capital stock or
other equity securities or interests to any Person other than the Pledgor.
Further, the Pledgor shall not permit any Issuer to amend or modify its
articles or certificate of incorporation in a manner which would affect the
voting, liquidation, preference or other rights of a holder of the shares of
stock pledged hereunder.
(b) The Pledgor agrees that, until this Agreement has terminated
in accordance with its terms, any additional Securities of an Issuer at any
time issued to the Pledgor or otherwise acquired by the Pledgor shall be
promptly delivered or otherwise transferred to the Pledgee as additional
Pledged Collateral and shall be subject to the Lien of, and the terms and
conditions of, this Agreement.
SECTION 6. REGISTRATION IN NOMINEE NAME, DENOMINATIONS. The Pledgee
shall have the right (in its sole and absolute discretion) to hold the Pledged
Collateral in its own name as pledgee, the name of its nominee (as Pledgee or
as sub-agent) or the name of the applicable Pledgor, endorsed or assigned in
blank or in favor of the Pledgee. The Pledgor will promptly give to the
Pledgee copies of any notices or other communications received by it with
respect to Pledged Collateral registered in the name of the Pledgor. The
Pledgee shall at all times have the right to exchange the certificates
representing Pledged Collateral for certificates of smaller or larger numbers
of shares for any purpose consistent with this Agreement.
SECTION 7. VOTING RIGHTS; DIVIDENDS, ETC.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) the Pledgor shall be entitled to exercise any and all
voting and/or consensual rights and powers accruing to an owner of the
Pledged Collateral or any part thereof for any purpose not
inconsistent with the terms and conditions of this Agreement or any
agreement giving rise to or otherwise relating to any of the
Obligations; provided, however, that the Pledgor shall not exercise,
or refrain from exercising, any such right or power if any such action
would have a materially adverse effect on the value of such Pledged
Collateral in the judgment of the Pledgee;
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(ii) the Pledgor shall be entitled to retain and use any
and all cash dividends paid on the Pledged Collateral, but any and all
stock and/or liquidating dividends, other distributions in property,
return of capital or other distributions made on or in respect of
Pledged Collateral, whether resulting from a subdivision, combination
or reclassification of outstanding Securities of an Issuer which are
pledged hereunder or received in exchange for Pledged Collateral or
any part thereof or as a result of any merger, consolidation,
acquisition or other exchange of assets or on the liquidation, whether
voluntary or involuntary, of an Issuer, or otherwise, shall be and
become part of the Pledged Collateral pledged hereunder and, if
received by the Pledgor, shall forthwith be delivered to the Pledgee
to be held as collateral subject to the terms and conditions of this
Agreement.
The Pledgee agrees to execute and deliver to the Pledgor, or cause to be
executed and delivered to the Pledgor, as appropriate, at the sole cost and
expense of the Pledgor, all such proxies, powers of attorney, dividend orders
and other instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and/or consensual rights and powers
which Pledgor is entitled to exercise pursuant to clause (i) above and/or to
receive the dividends which Pledgor is authorized to retain pursuant to clause
(ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of the Pledgor to exercise the voting and/or consensual
rights and powers which Pledgor is entitled to exercise pursuant to subsection
(a)(i) above and/or to receive the dividends which Pledgor is authorized to
receive and retain pursuant to subsection (a)(ii) above shall cease, and all
such rights thereupon shall become immediately vested in the Pledgee, which
shall have, to the extent permitted by law, the sole and exclusive right and
authority to exercise such voting and/or consensual rights and powers which the
Pledgor shall otherwise be entitled to exercise pursuant to subsection (a)(i)
above and/or to receive and retain the dividends which the Pledgor shall
otherwise be authorized to retain pursuant to subsection (a)(ii) above. Any
and all money and other property paid over to or received by the Pledgee
pursuant to the provisions of this subsection (b) shall be retained by the
Pledgee as additional collateral hereunder and shall be applied in accordance
with the provisions of Section 9. If the Pledgor shall receive any dividends
or other property which it is not entitled to receive under this Section, the
Pledgor shall hold the same in trust for the Pledgee, without commingling the
same with other funds or property of or held by the Pledgor, and shall promptly
deliver the same to the Pledgee upon receipt by the Pledgor in the identical
form received, together with any necessary endorsements.
SECTION 8. REMEDIES UPON DEFAULT.
(a) In addition to any right or remedy that the Pledgee may have
under the Note or otherwise under Applicable Law, if an Event of Default shall
have occurred, the Pledgee may exercise any and all the rights and remedies of
a secured party under the Uniform Commercial Code as in effect in any
applicable jurisdiction and may otherwise
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sell, assign, transfer, endorse and deliver the whole or, from time to time,
any part of the Pledged Collateral at a public or private sale or on any
securities exchange, for cash, upon credit or for other property, for immediate
or future delivery, and for such price or prices and on such terms as the
Pledgee in its discretion shall deem appropriate. The Pledgee shall be
authorized at any sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the Pledged Collateral for their own account in compliance
with the Securities Act of 1933, as amended, and upon consummation of any such
sale the Pledgee shall have the right to assign, transfer, endorse and deliver
to the purchaser or purchasers thereof the Pledged Collateral so sold. Each
purchaser at any sale of Pledged Collateral shall take and hold the property
sold absolutely free from any claim or right on the part of the Pledgor, and
the Pledgor hereby waives (to the fullest extent permitted by Applicable Law)
all rights of redemption, stay and/or appraisal which the Pledgor now has or
may at any time in the future have under any Applicable Law now existing or
hereafter enacted. The Pledgor agrees that, to the extent notice of sale shall
be required by Applicable Law, at least ten days' prior written notice to the
Pledgor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification, but notice
given in any other reasonable manner or at any other reasonable time shall
constitute reasonable notification. Such notice, in case of public sale, shall
state the time and place for such sale, and, in the case of sale on a
securities exchange, shall state the exchange on which such sale is to be made
and the day on which the Pledged Collateral, or portion thereof, will first be
offered for sale at such exchange. Any such public sale shall be held at such
time or times within ordinary business hours and at such place or places as the
Pledgee may fix and shall state in the notice or publication (if any) of such
sale. At any such sale, the Pledged Collateral, or portion thereof to be sold,
may be sold in one lot as an entirety or in separate parcels, as the Pledgee
may determine in its sole and absolute discretion. The Pledgee shall not be
obligated to make any sale of the Pledged Collateral if it shall determine not
to do so regardless of the fact that notice of sale of the Pledged Collateral
may have been given. The Pledgee may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In case the sale of all or any part of the Pledged Collateral is
made on credit or for future delivery, the Pledged Collateral so sold may be
retained by the Pledgee until the sale price is paid by the purchaser or
purchasers thereof, but the Pledgee shall not incur any liability to the
Pledgor in case any such purchaser or purchasers shall fail to take up and pay
for the Pledged Collateral so sold and, in case of any such failure, such
Pledged Collateral may be sold again upon like notice. At any public sale made
pursuant to this Agreement, the Pledgee, to the extent permitted by Applicable
Law, may bid for or purchase, free from any right of redemption, stay and/or
appraisal on the part of the Pledgor (all said rights being also hereby waived
and released to the extent permitted by Applicable Law), any part of or all the
Pledged Collateral offered for sale and may make payment on account thereof by
using any claim then due and payable to the Pledgee from the Pledgor as a
credit against the purchase price, and the Pledgee may, upon compliance with
the terms of sale and to the extent permitted by Applicable Law, hold, retain
and dispose of such property without
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further accountability to the Pledgor therefor. For purposes hereof, a written
agreement to purchase all or any part of the Pledged Collateral shall be
treated as a sale thereof; the Pledgee shall be free to carry out such sale
pursuant to such agreement and the Pledgor shall not be entitled to the return
of any Pledged Collateral subject thereto, notwithstanding the fact that after
the Pledgee shall have entered into such an agreement all Events of Default may
have been remedied or the Obligations may have been paid in full as herein
provided. The Pledgor hereby waives any right to require any marshaling of
assets and any similar right.
(b) In addition to exercising the power of sale herein conferred
upon it, the Pledgee shall also have the option to proceed by suit or suits at
law or in equity to foreclose this Agreement and sell the Pledged Collateral or
any portion thereof pursuant to judgment or decree of a court or courts having
competent jurisdiction.
(c) The rights and remedies of the Pledgee under this Agreement
are cumulative and not exclusive of any rights or remedies which it would
otherwise have.
SECTION 9. APPLICATION OF PROCEEDS OF SALE AND CASH. The proceeds of
any sale of the whole or any part of the Pledged Collateral, together with any
other moneys held by the Pledgee under the provisions of this Agreement, shall
be applied by the Pledgee in the following order:
(a) First: to the payment of all costs and expenses incurred in
connection with such sale or other realization, including reasonable attorneys'
fees incurred if the Pledgee endeavored to collect the Obligations by or
through an attorney at law;
(b) Second: to the payment of the interest due upon any of the
Obligations, in any order which the Pledgee may elect;
(c) Third: to the payment of the principal due upon any of the
Obligations in any order which the Pledgee may elect; and
(d) Fourth: the balance (if any) of such proceeds shall be paid
to the Pledgor or to whomsoever may be legally entitled thereto.
The Pledgor shall remain liable and will pay, on demand, any deficiency
remaining in respect of the Obligations.
SECTION 10. PLEDGEE APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
constitutes and appoints the Pledgee as the attorney-in-fact of the Pledgor
with full power of substitution either in the Pledgee's name or in the name of
the Pledgor to do any of the following after the occurrence of an Event of
Default and for so long as there are unsatisfied Obligations: (a) to perform
any obligation of the Pledgor hereunder in the Pledgor's name or otherwise; (b)
to ask for, demand, ▇▇▇ for, collect, receive, receipt and give acquittance for
any and all moneys due or to become due under and by virtue of any
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Pledged Collateral; (c) to prepare, execute, file, record or deliver notices,
assignments, financing statements, continuation statements, applications for
registration or like papers to perfect, preserve or release the Pledgee's
security interest in the Pledged Collateral or any of the documents,
instruments, certificates and agreements described in Section 11.(b); (d) to
verify facts concerning the Pledged Collateral in its own name or a fictitious
name; (e) to endorse checks, drafts, orders and other instruments for the
payment of money payable to the Pledgor, representing any interest or dividend
or other distribution payable in respect of the Pledged Collateral or any part
thereof or on account thereof and to give full discharge for the same; (f) to
exercise all rights, powers and remedies which the Pledgor would have, but for
this Agreement, under the Pledged Collateral; and (g) to carry out the
provisions of this Agreement and to take any action and execute any instrument
which the Pledgee may deem necessary or advisable to accomplish the purposes
hereof, and to do all acts and things and execute all documents in the name of
the Pledgor or otherwise, deemed by the Pledgee as necessary, proper and
convenient in connection with the preservation, perfection or enforcement of
its rights hereunder. Nothing herein contained shall be construed as requiring
or obligating the Pledgee to make any commitment or to make any inquiry as to
the nature or sufficiency of any payment received by it, or to present or file
any claim or notice, or to take any action with respect to the Pledged
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken by the Pledgee or
omitted to be taken with respect to the Pledged Collateral or any part thereof
shall give rise to any defense, counterclaim or offset in favor of the Pledgor
or to any claim or action against the Pledgee. The power or attorney granted
herein is irrevocable and coupled with an interest.
SECTION 11. REIMBURSEMENT OF PLEDGEE. The Pledgor agrees to pay upon
demand to the Pledgee the amount of any and all reasonable expenses, including
the reasonable fees, disbursements and other charges of its counsel and of any
experts or agents, and its fully allocated internal costs, that the Pledgee may
incur in connection with (i) the custody or preservation of, or any sale of,
collection from, or other realization upon, any of the Pledged Collateral, (ii)
the exercise or enforcement of any of the rights of the Pledgee hereunder, or
(iii) the failure by the Pledgor to perform or observe any of the provisions
hereof. Any such amounts payable as provided hereunder shall be additional
obligations secured hereby and by the other Loan Documents.
SECTION 12. FURTHER ASSURANCES. The Pledgor shall, at its sole cost
and expense, take all action that may be necessary or desirable in the
Pledgee's sole discretion, so as at all times to maintain the validity,
perfection, enforceability and priority of the Pledgee's security interest in
the Pledged Collateral, or to enable the Pledgee to exercise or enforce its
rights hereunder, including without limitation (a) delivering to the Pledgee,
endorsed or accompanied by such instruments of assignment as the Pledgee may
specify, any and all chattel paper, instruments, letters of credit and all
other advices of guaranty and documents evidencing or forming a part of the
Pledged Collateral and (b) executing and delivering financing statements,
pledges, designations, notices and assignments, in each case in form and
substance satisfactory to the Pledgee, relating to the creation, validity,
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perfection, priority or continuation of the security interest granted
hereunder. The Pledgor agrees to take, and authorizes the Pledgee to take on
the Pledgor's behalf, any or all of the following actions with respect to any
Pledged Collateral as the Pledgee shall deem necessary to perfect the security
interest and pledge created hereby or to enable the Pledgee to enforce its
rights and remedies hereunder: (i) to register in the name of the Pledgee any
Pledged Collateral in certificated or uncertificated form; (ii) to endorse in
the name of the Pledgee any Pledged Collateral issued in certificated form; and
(iii) by book entry or otherwise, identify as belonging to the Pledgee a
quantity of securities that constitutes all or part of the Pledged Collateral
registered in the name of the Pledgee. Notwithstanding the foregoing, the
Pledgor agrees that Pledged Collateral which is not in certificated form or is
otherwise in book-entry form shall be held for the account of the Pledgee. The
Pledgor hereby authorizes the Pledgee to execute and file in all necessary and
appropriate jurisdictions (as determined by the Pledgee) one or more financing
or continuation statements (or any other document or instrument referred to in
the immediately preceding clause (b)) in the name of the Pledgor and to sign
the Pledgor's name thereto. The Pledgor authorizes the Pledgee to file any
such financing statement, document or instrument without the signature of the
Pledgor to the extent permitted by Applicable Law. To the extent permitted by
Applicable Law, a carbon, photographic, xerographic or other reproduction of
this Agreement or any financing statement is sufficient as a financing
statement. Any property comprising part of the Pledged Collateral required to
be delivered to the Pledgee pursuant to this Agreement shall be accompanied by
proper instruments of assignment duly executed by the Pledgor and by such other
instruments or documents as the Pledgee may reasonably request.
SECTION 13. SECURITIES ACT. In view of the position of the Pledgor
in relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar Applicable Law hereafter enacted analogous
in purpose or effect (such Act and any such similar Applicable Law as from time
to time in effect being called the "Federal Securities Laws") with respect to
any disposition of the Pledged Collateral permitted hereunder. The Pledgor
understands that compliance with the Federal Securities Laws might very
strictly limit the course of conduct of the Pledgee if the Pledgee were to
attempt to dispose of all or any part of the Pledged Collateral in accordance
with the terms hereof, and might also limit the extent to which or the manner
in which any subsequent transferee of any Pledged Collateral could dispose of
the same. Similarly, there may be other legal restrictions or limitations
affecting the Pledgee in any attempt to dispose of all or part of the Pledged
Collateral in accordance with the terms hereof under applicable Blue Sky or
other state securities laws or similar Applicable Law analogous in purpose or
effect. The Pledgor recognizes that in light of the foregoing restrictions and
limitations the Pledgee may, with respect to any sale of the Pledged
Collateral, limit the purchasers to those who will agree, among other things,
to acquire such Pledged Collateral for their own account, for investment, and
not with a view to the distribution or resale thereof. The Pledgor
acknowledges and agrees that in light of the foregoing restrictions and
limitations, the Pledgee, in its sole and absolute discretion, may, in
accordance with Applicable Law, (a) proceed to make such a sale whether or not
a registration statement for the purpose of
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registering such Pledged Collateral or part thereof shall have been filed under
the Federal Securities Laws and (b) approach and negotiate with a single
potential purchaser to effect such sale. The Pledgor acknowledges and agrees
that any such sale might result in prices and other terms less favorable to the
seller than if such sale were a public sale without such restrictions. In the
event of any such sale, the Pledgee shall incur no responsibility or liability
for selling all or any part of the Pledged Collateral in accordance with the
terms hereof at a price that the Pledgee, in its sole and absolute discretion,
may in good ▇▇▇▇▇ ▇▇▇▇ reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if the
sale were deferred until after registration as aforesaid or if more than a
single purchaser were approached. The provisions of this Section will apply
notwithstanding the existence of public or private market upon which the
quotations or sales prices may exceed substantially the price at which the
Pledgee sells.
SECTION 14. INDEMNIFICATION. The Pledgor agrees to indemnify and
hold the Pledgee and any corporation controlling, controlled by, or under
common control with, the Pledgee and any officer, attorney, director,
shareholder, agent or employee of the Pledgee or any such corporation (each an
"Indemnified Person"), harmless from and against any claim, loss, damage,
action, cause of action, liability, cost and expense or suit of any kind or
nature whatsoever (collectively, "Losses"), brought against or incurred by an
Indemnified Person, in any manner arising out of or, directly or indirectly,
related to or connected with this Agreement, including without limitation, the
exercise by the Pledgee of any of its rights and remedies under this Agreement
or any other action taken by the Pledgee pursuant to the terms of this
Agreement; provided, however, the Pledgor shall not be liable to an Indemnified
Person for any Losses to the extent that such Losses result from the gross
negligence or willful misconduct of such Indemnified Person. The Pledgor's
obligations under this section shall survive the termination of this Agreement
and the payment in full of the Obligations until the third anniversary of the
date of this Agreement.
SECTION 15. CONTINUING SECURITY INTEREST. This Agreement shall
create a continuing security interest in the Pledged Collateral and shall
remain in full force and effect until it terminates in accordance with its
terms. The Pledgor and the Pledgee hereby agree that the security interest
created by this Agreement in the Pledged Collateral shall not terminate and
shall continue and remain in full force and effect notwithstanding the transfer
to the Pledgor or any person designated by it of all or any portion of the
Pledged Collateral.
SECTION 16. SECURITY INTEREST ABSOLUTE. All rights of the Pledgee
hereunder, the grant of a security interest in the Pledged Collateral and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Note, any
agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner
or place of the payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any
departure from the Note, or
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any other agreement or instrument relating to any of the foregoing, or (c) any
exchange, release or nonperfection of any other collateral, or any release or
amendment or waiver of or consent to or departure from any guaranty, for all or
any of the Obligations.
SECTION 17. NO WAIVER. Neither the failure on the part of the
Pledgee to exercise, nor the delay on its part in exercising any right, power
or remedy hereunder, nor any course of dealing between the Pledgee and the
Pledgor shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power, or remedy hereunder preclude any other or
the further exercise thereof or the exercise of any other right, power or
remedy.
SECTION 18. NOTICES. Notices, requests and other communications
required or permitted hereunder shall be in writing and shall be made by
personal delivery, telecopy or certified or registered mail, return receipt
requested, addressed as follows:
(a) If to the Pledgor: Zynaxis, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Pledgee: CytRx Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address a party may specify to the other party by like notice.
All such notices and other communications shall be effective (i) if mailed,
when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered.
SECTION 19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 20. AMENDMENTS. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the Pledgor herefrom shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 21. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and
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11
assigns, except that the Pledgor shall not be permitted to assign this
Agreement or any interest herein or in the Pledged Collateral, or any part
thereof, or any cash or property held by the Pledgee as collateral under this
Agreement.
SECTION 22. TERMINATION. Upon indefeasible payment in full of all of
the Obligations, this Agreement shall terminate. Upon termination of this
Agreement in accordance with its terms the Pledgee agrees to take such actions
as the Pledgor may reasonably request, and at the sole cost and expense of the
Pledgor, (a) to return the Pledged Collateral to the Pledgor, and (b) to
evidence the termination of this Agreement, including, without limitation, the
filing of any releases or any termination statements under the Uniform
Commercial Code.
SECTION 23. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under Applicable Law, but if any provision of this Agreement shall be
prohibited by or invalid under Applicable Law, such provisions shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Agreement.
SECTION 24. HEADINGS. Section headings used herein are for
convenience only and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
SECTION 25. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which shall constitute but one agreement.
SECTION 26. DEFINITIONS. Terms not otherwise defined herein are used
herein with the respective meanings given to them in (i) the Security Agreement
of even date herewith between Pledgor and Pledgee and (ii) the Senior Secured
Note of even date herewith executed by the Pledgor in favor of the Pledgee, as
the case may be.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity (including, without
limitation, the Federal Deposit Insurance Corporation, the Comptroller of the
Currency or the Federal Reserve Board, any central bank or any comparable
authority) or any arbitrator with authority to bind a party at law.
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IN WITNESS WHEREOF, the Pledgor has executed and delivered this Pledge
Agreement under seal as of this the date first written above.
ZYNAXIS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Chairman, President and
Chief Executive Officer
-----------------------------
Agreed to, accepted and acknowledged
as of the date first written above.
CYTRX CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Chairman, President and
Chief Executive Officer
----------------------------------
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SCHEDULE 1 TO PLEDGE AGREEMENT
PLEDGED SHARES
======================================================================================================
Issuer No. of Securities Type of Securities Certificate Nos.
------ ----------------- ------------------- ----------------
Zynaxis Vaccine Technologies, Inc. 100 Shares Common Stock 1
------------------------------------------------------------------------------------------------------
Zynaxis Holdings, Inc. 200 shares Common Stock $1 par(1) 4 and 5
------------------------------------------------------------------------------------------------------
======================================================================================================
14
SCHEDULE 2 TO PLEDGE AGREEMENT
CAPITAL STRUCTURE OF ISSUER(S)
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COMMON SHARES ZYNAXIS VACCINE TECHNOLOGIES ZYNAXIS HOLDINGS, INC.
------------------------------------------------------------------------------
Authorized 100 200
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Issued 100 200
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Outstanding 100 200
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Par Value per Share $.01 $1.00
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