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EXHIBIT 3
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT is made effective the 28th day of November,
1997, (the "Effective Date") by XXXXXX XXXXX and XXXXXXX XXXXXXX, jointly and
severally as "Pledgors," KARNO, SCHWARTZ, XXXXXXXX, XXXXXXX & XXXXXX, A
Partnership Including Professional Corporations as "Pledge Holder," and XXXXXX
X. XXXXXXXXX and XXXXXXX MAY XXXXXXX as "Pledgees".
1. PLEDGE. Pledgors hereby deposit with Pledge Holder and do hereby, as
of the Effective Date, pledge to Pledgees, as collateral security for the
payment in full, faithful, true and exact performance and observance of all of
the covenants and conditions of Pledgors as Makers of that certain Promissory
Note of even date herewith in the original principal amount of $180,000,
including but not limited to the payment, in full, of all such indebtedness and
any interest thereon, and other sums payable to Pledgees upon or with respect to
such indebtedness (collectively, the "Obligations"), Pledgors' property (the
"Collateral") described as
All of Pledgors' shares, but not less than 399,901 shares, of
the common stock of Radius, Inc., a California corporation
("Radius"), whether held in the name of either of Pledgors or
held in the name of any other person or entity for the benefit
of Pledgors, or either of them, including but not limited to
any and all shares of Radius common stock acquired by Pledgors
or any other person or entity for the benefit of Pledgors, or
either of them at any time and from time to time after the
date hereof.
2. PRIORITY OF PLEDGE. The within pledge is, or will be upon the
acquisition of such shares by Pledgors, a first priority lien on such shares.
3. POWER OF SALE ON DEFAULT. Pledgors hereby authorize and empower
Pledgees, upon any default of any one or more of the Pledgors in the prompt
payment or due performance of any of the Obligations, at their option and
without notice to Pledgors, except as specifically herein provided, to collect,
sell, assign and deliver, the whole or any part of the Collateral, and to
execute, on Pledgors' behalf all documents required in connection therewith,
including but not limited to any Assignment Separate From Certificate, or any
substitute therefor, or any additional thereto, at public or private sale, for
cash, upon credit, or for future delivery, without the necessity of the
Collateral being present at any such sale, or in view of prospective purchasers
thereof, and without any presentment, demand for performance, protect, notice
of protest, or notice of dishonor, or advertisement, any such demand or
advertisement being expressly waived. Pledgees shall give Pledgors, and each of
them, and the Pledge Holder, ten (10) days' notice by United States mail,
postage prepaid, at the addresses specified herein, of the time and place of
any public or private sale. Upon such sale, Pledgees may become the purchaser
of the whole or any part of the Collateral sold, discharged from all claims and
free from any right of redemption. The foregoing is hereby made subject to the
following provisions, to wit: That Pledgees shall include in such notice of the
time and place of such sale a statement of the grounds upon which default(s) is
(are) based; and, that during such ten-day period, Pledgors, or any one
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or more of them, may cure such default, in which event said sale shall not be
held and it shall be deemed that no such default occurred.
4. APPLICATION OF PROCEEDS. In case of any sale, transfer or disposal
of the Collateral, whether pursuant to a sale by Pledgees under Paragraph 3
above, or any sale of all or any portion of Pledgors' interest in the Collateral
(including but not limited to the sale of any call option with respect to the
Collateral), Pledgors covenant and agree that the proceeds thereof shall first
be applied to the payment of the expenses of such sale, commissions, attorneys'
fees and all charges paid or incurred by Pledge Holder hereunder; second, to the
payment of the expenses of such sale, commissions, attorneys' fees and all
charges paid or incurred by Pledgees pertaining to sale, including any taxes or
other charges imposed by law upon the Collateral and/or the owning, holding or
transferring thereof; third, to pay, satisfy and discharge the Note and any
other indebtedness arising out of or under this Stock Pledge Agreement; fourth,
to pay, satisfy and discharge the duties and obligations of Pledgors pursuant to
any Stock Pledge Agreement hereafter executed by Pledgors with Pledgees'
consent, junior to this Stock Pledge Agreement, and the respective indebtedness
secured thereby, in the order of their respective priority; and fifth, to pay
the surplus, if any, to Pledgors.
5. ADDITIONAL RIGHTS OF PLEDGEES. Pledgees specifically and expressly
reserve the right and remedy to disregard the security hereof, and to xxx on the
principal obligation secured hereby, and expressly declare that their remedies
upon this Stock Pledge Agreement, to cause the sale of the collateral at public
or private sale in the manner as hereinabove set forth, or to bring an action of
foreclosure and have the Collateral sold at judicial sale, are cumulative, and
in addition to all other remedies that they may possess under the Uniform
Commercial Code. Pledges shall have the right to recover, as a part of any
judgment in an action of foreclosure, commissions, attorneys' fees, and all
charges and expenses paid or incurred by them in connection with any such
foreclosure sale. Subject to the provisions of paragraph 8 of the Promissory
Note secured hereby, Pledgees reserve the right to recover any deficiency
judgment arising from such sale or sales, whether judicial or by way of pledge
sale.
6. ADDITIONS TO COLLATERAL. Any stock rights, and rights to subscribe,
cash dividends, liquidating dividends, stock dividends, dividends paid in stock,
new securities, or other property, which Pledgors may hereafter become entitled
to receive on account of the Collateral, shall be and become a part of the
Collateral, and in the event that Pledgors shall receive any such, they
represent, warrant, covenant and agree that they will immediately deliver it to
the Pledge Holder to be held by it in the same manner as the Collateral
originally pledged hereunder.
7. INDEMNITY. In case of any adverse claims in respect to the
Collateral or any portions thereof, arising out of any act done or suffered by
Pledgors, the Pledgors promise and agree to hold harmless and to indemnify
Pledge Holder and Pledgees from and against any losses, liabilities, damages,
expenses, costs and reasonable attorneys' fees incurred in or about defending,
protecting, or prosecuting the security interests hereby created.
8. ADVANCES TO PROTECT COLLATERAL. Pledgors agree to pay, prior to
delinquency, all taxes, liens and assessments against the Collateral, and upon
their failure to do so, Pledgees, at their option, may pay any of them, and
shall be the sole judge of the legality or validity thereof and the amount
necessary to discharge same, and Pledgors' failure to pay same shall be a
default hereunder and the sums so advanced shall be due and payable to Pledgees
together with interest thereon at the rate of twelve percent (12%) per annum
until fully repaid.
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9. NON-WAIVER. Any forbearance or failure or delay by Pledgees in
exercising any right, power or remedy hereunder shall not be deemed to be a
waiver of such right, power or remedy, and any single or partial exercise of any
right, power or remedy of Pledgees shall continue in full force and effect until
such right, power or remedy is specifically waived by an instrument in writing,
executed by Pledgees.
10. RELEASE OF COLLATERAL. When the Obligations shall have been fully
performed and satisfied and Pledgees shall have received payment in full of all
other sums owed hereunder, then, and only then, this Stock Pledge Agreement
shall be canceled and of no further force and effect, and Pledge Holder shall
thereupon deliver to the respective Pledgors the Collateral free and clear of
the lien of this pledge.
11. VOTING RIGHTS. During the term of this Stock Pledge Agreement and
so long as the Pledgors, and each of them, are not in default under the
Obligations, the respective Pledgors shall have the right to vote any shares of
stock pledged hereby on all corporate questions. The foregoing notwithstanding,
Pledgors agree not to vote their shares of Radius stock, in any manner which
would result in a liquidation, dissolution or merger of Radius until such time
as the Obligations are wholly satisfied.
12. SUCCESSOR PLEDGE HOLDER-LIMITATION ON LIABILITY. In the event that
the Pledge Holder becomes incapacitated due to dissolution or disability so that
it is no longer able to act as Pledge Holder, Xxxxxxx X. Xxxxxxxx, A
Professional corporation, shall thereupon be the Successor Pledge Holder.
Pledgors hereby acknowledge that the Pledge Holder and the Successor Pledge
Holder are affiliated with one another and have heretofore acted as legal
counsel to one or both of Pledgees and after consulting with independent legal
counsel, hereby waive all conflicts of interest arising out of Pledge Holder's
and/or the Successor Pledge Holder's performance of its obligations hereunder.
Pledge Holders shall only be liable to Pledgors for its acts of gross negligence
or willful misconduct.
13. PLEDGORS' REPRESENTATION AND WARRANTIES. Pledgors each represent
and warrant that (i) Pledgors now own the collateral, (ii) Pledgors have not
heretofore sold, transferred, conveyed, hypothecated or otherwise assigned any
of their interest in the Collateral to any other person or entity, (iii) unless
and until the Obligations have been fully discharged, each of them will not (a)
issue any replacement stock certificate with respect to the Collateral, or (b)
make any further assignment or pledge of the Collateral, all without Pledgees'
prior written consent.
14. CONSTRUCTION. This Agreement, and all of the rights and duties in
connection therewith, shall be governed by the laws of the State of Florida,
the state in which the loan evidenced by the Note was made, and the state in
which Pledgors maintain their principal residences.
15. NOTICE. Any notice, report or writing required or permitted to be
given hereunder shall be in writing and shall be served by delivering the same
personally either to the other party, or to the agents, officers or other
representatives thereof hereinbelow designated, if any, or by depositing the
notice, contained in a sealed envelope, postage prepaid, in the United States
Postal System as registered or certified mail, with return receipt requested or
as Express Mail. Any and all such notices shall be delivered to the parties at
their respective addresses specified in this paragraph. Any such notice
deposited in the mail shall be conclusively deemed delivered to and received by
the addressee two (2) business days after the deposit in the mail as registered
or certified mail, return receipt requested, or one (1) business day after
deposit in the mail as Express Mail if all of the foregoing conditions of notice
shall
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have been satisfied and if such notice shall at the time of mailing have been
contained in an envelope addressed as follows:
To Pledgors: Xxxxxx Xxxxx and Xxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx, #0
Xxxxxxxxxx, Xxxxxxx 00000
To Pledgee: Xxxxxx X. Xxxxxxxxx and Xxxxxxx Xxxx Xxxxxxx
0000 Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
To Pledge Holder: Karno, Schwartz, Xxxxxxxx, Xxxxxxx & Xxxxxx
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Any party hereto may change its address for the purposes of this paragraph by
giving such other party notice, as provided for herein, of the new address.
16. COUNTERPARTS. This Stock Pledge Agreement may be executed in
counterparts; each thereof is hereby declared to be an original; all, however,
shall constitute but one and the same agreement.
17. HEIRS AND SUCCESSORS. This Stock Pledge Agreement and all of its
terms and provisions shall be binding upon the heirs, successors, transferees
and assigns of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Stock Pledge
Agreement effective the date first hereinabove set forth.
PLEDGORS:
/s/ Xxxxxx Xxxxx
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XXXXXX XXXXX
/s/ Xxxxxxx Xxxxxxx
--------------------------
XXXXXXX XXXXXXX
PLEDGEE:
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------
XXXXXX X. XXXXXXXXX
/s/ Xxxxxxx Xxxx Xxxxxxx
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XXXXXXX XXXX XXXXXXX
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PLEDGE HOLDER:
KARNO, SCHWARTZ, XXXXXXXX,
XXXXXXX & XXXXXX, A Partnership
Including Professional Corporations
By: XXXXXXX X. XXXXXXXX, A
Professional Corporation,
General Partner
By:/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX,
President
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