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[CERPROBE LOGO (R)] Exhibit 10(ppp)
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement ("Agreement") is made and entered into
effective as of August 24, 1999 by and between _____________________ as pledgor
("Pledgor"), and Cerprobe Corporation, a Delaware corporation ("Lender"), as
pledgee.
A. Lender intends to loan to Pledgor the sum of $_______________
("Loan") pursuant to the terms of that certain Secured Promissory Note of this
same date, between Lender and Pledgor ("Note"). Any defined term in this
Agreement that is not specifically defined shall have the meaning given to it in
the Note.
B. Pursuant to the terms of the Note, in order to induce the Lender to
make the Loan, the Pledgor must provide certain deliveries to the Lender, one of
which is the delivery of this Agreement executed by Pledgor.
C. Pledgor was granted an option to purchase _______ shares of Cerprobe
Corporation Common Stock pursuant to the Cerprobe Corporation Nonqualified Stock
Option Plan ("Option Shares"). In consideration for the purchase price for the
exercise of the Option Shares, Pledgor executed the Note and grants the Lender a
security interest in the Option Shares, subject to the terms in this Agreement.
AGREEMENT
In consideration of the mutual covenants contained in the Note, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. PLEDGE. As security for the payment and performance of the Secured
Obligations, Pledgor hereby grants to Lender a security interest in the Option
Shares, together with any proceeds therefrom, and hereby pledges and assigns the
Certificate(s) representing the Option Shares to Lender. Pledgor has delivered
stock powers with respect to the Certificate(s) endorsed in blank ("Stock
Powers") to Lender and hereby authorizes Lender, upon the occurrence and
continuation of an Event of Default, to transfer the Certificates to Lender.
Lender hereby acknowledges receipt of the Certificate(s) as security for the
payment and performance of the Secured Obligations. Lender agrees not to
transfer, sell, encumber, or otherwise dispose of the Option Shares, except in
accordance with the provisions of this Agreement. For purposes of this
Agreement, the "Secured Obligations" are the obligations of the Pledgor under
the Note.
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2. DIVIDENDS, VOTING RIGHTS, AND PROXY. The Pledgor, as record owner of
the Option Shares, is entitled, prior to the occurrence of any Event of Default
and the exercise of Lender's rights hereunder, to (i) retain all cash dividends
paid on account of the Option Shares, (ii) exercise all voting rights of the
Option Shares, and (iii) exercise all other shareholders' rights and privileges
attributable to the Option Shares, except and unless as otherwise provided
herein. The Pledgor grants to Lender an irrevocable proxy with respect to all of
the Option Shares. This irrevocable proxy provides Lender with the right, upon
an Event of Default, to exercise all rights, powers, and authority of the
Pledgor with respect to the Stock for purposes of calling or convening meetings
of Cerprobe Corporation, voting the Option Shares, and exercising any other
rights with respect to the Option Shares. The rights being transferred from the
Pledgor to Lender pursuant to this irrevocable proxy are acquired by Lender to
the fullest extent permitted by the laws or regulations governing the rights and
powers of stockholders of a Delaware corporation. Pledgor agrees that this
irrevocable proxy is coupled with an interest. Pledgor irrevocably makes,
constitutes, and appoints Lender, or any of its officers, the true and lawful
attorney for Pledgor with full power of substitution, coupled with an interest,
to execute in the name of Pledgor any documents necessary to effectuate this
irrevocable proxy. This irrevocable proxy shall remain in full force and effect
until satisfaction in full of the Secured Obligations.
3. ADJUSTMENTS. As additional security for the Secured Obligations,
Pledgor grants to Lender a security interest in all securities, money, funds, or
other property received by Pledgor on account of, or in exchange for, the Option
Shares whether as a result of any share dividend, share split, reclassification,
merger or consolidation, reorganization, or otherwise and agrees to promptly
pledge and deliver such securities, together with the appropriate certificates
and stock powers endorsed in blank to Lender.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR. Pledgor
represents, warrants, and covenants to Lender, which representations,
warranties, and covenants will survive the execution and delivery of this
Agreement, as follows:
(a) The execution, delivery, and performance of this Agreement
will not conflict with any order, writ, injunction, or decree of any
court or arbitrator presently in effect having applicability to
Pledgor, or with any agreement to which Pledgor is a party that
prohibits or would be violated by the execution and carrying out of
this Agreement.
(b) Pledgor owns the Option Shares free and clear of all liens
and encumbrances (other than those granted to Lender) and there are no
other restrictions on the transfer or sale of any of the Option Shares,
except as disclosed on the Certificate(s).
5. RELEASE OF SECURITY INTEREST. Upon satisfaction in full of the
Secured Obligations, Lender agrees to promptly cancel all Stock Powers with
respect to the Certificate(s), release its security interest in the Option
Shares, and deliver all of the Certificate(s) to Pledgor.
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6. DEFAULT. The occurrence of an Event of Default (as defined in the
Note), shall constitute an "Event of Default" hereunder. Upon the occurrence and
continuation of such an Event of Default, the Lender shall have all rights and
remedies provided by law, including without limitation, those under the Uniform
Commercial Code as adopted in Arizona ("UCC"), and may sell the Option Shares in
any manner that is not inconsistent with the provisions of the UCC. These rights
shall be in addition to other remedies now or hereafter existing at law or in
equity including, without limitation, Lender's right, at its discretion, to
retain the Option Shares. Any failure or delay by Lender to exercise any right
under this Agreement shall not be construed as a waiver of the right to exercise
the same or any other right at any time.
7. SUCCESSORS AND ASSIGNS. The terms and provisions of this Agreement
will bind and inure to the benefit of the respective heirs, successors, and
assigns of the parties.
8. CONTROLLING LAW; SEVERABILITY. The various provisions of this
Agreement will be construed under, and the respective rights and obligations of
the parties will be determined with reference to, the laws of the State of
Arizona (without giving effect to conflict of laws principles). If and to the
extent that any court of competent jurisdiction holds any provision (or any part
thereof) of this Agreement to be invalid, such holding will in no way affect the
validity of the remainder of this Agreement.
9. WAIVER OF JURY TRIAL; CONSENT TO VENUE. Pledgor and Lender, after
consulting, or having had the opportunity to consult, with counsel, knowingly,
voluntarily, and intentionally waive any right either of them may have to a
trial by jury in any litigation based upon or arising out of this Agreement or
any related instrument or agreement, or any of the transactions contemplated by
this Agreement, or any course of conduct, dealing, statements (whether oral or
written), or actions of either of them. Neither Pledgor nor Lender shall seek to
consolidate, by counterclaim or otherwise, any action in which a jury trial has
been waived with any other action in which a jury trial cannot be or has not
been waived. In the event of a dispute under this Agreement, the parties agree
that exclusive jurisdiction and venue lies in a court of competent jurisdiction
in Maricopa County, Arizona. These provisions shall not be deemed to have been
modified in any respect or relinquished by either the Pledgor or Lender except
by a written instrument executed by each of them.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first set forth above.
LENDER: PLEDGOR:
CERPROBE Corporation, _______________________
a Delaware corporation
By:____________________________ By:____________________
Xxxxxx X. Xxxxxx
Secretary
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SECURED PROMISSORY NOTE
Phoenix, Arizona
August 24, 1999
$____________
1. FUNDAMENTAL PROVISIONS.
The following terms will be used as defined terms in this Secured
Promissory Note ("Note"):
Lender: Cerprobe Corporation, a Delaware corporation.
Borrower: ___________________
Principal Amount: _____________________ ($___________).
Interest Rate: Six percent (6%) per annum.
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Interest Rate: Ten percent (10%) per annum above the Interest Rate.
Maturity Date: August 24, 2002.
Business Day: Any day of the year other than Saturdays, Sundays and legal holidays.
Loan: The loan from Lender to Borrower in the Principal Amount and
evidenced by this Note.
Loan Documents: The Note, the Stock Pledge Agreement and any other documents securing
the repayment of the Note.
Option Shares: The shares of Cerprobe Corporation Common Stock held by the Lender as
security for this Loan, as specified in the Stock Pledge Agreement.
Stock Pledge Agreement: That certain Stock Pledge Agreement of this same date between
Borrower, as pledgor, and Lender, as pledgee.
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2. PROMISE TO PAY.
For value received, Borrower promises to pay to the order of Lender, at
its office at 0000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx, 00000, or
at such other place as the Lender may from time to time designate in
writing, the Principal Amount, together with accrued interest from the
date of disbursement on the unpaid principal balance at the Interest
Rate.
3. INTEREST; PAYMENTS.
(a) Absent an Event of Default hereunder or under the Stock Pledge
Agreement, the Principal Amount shall bear interest at the
Interest Rate. Throughout the term of this Note, interest
shall be computed by applying the ratio of the annual interest
rate over a year of 365 days, multiplied by the outstanding
principal balance, multiplied by the actual number of days the
principal balance is outstanding.
(b) All payments of principal and interest due hereunder shall be
made (i) without deduction of any present and future taxes,
levies, imposts, deductions, charges, or withholdings, which
amounts shall be paid by Borrower, and (ii) without any other
set off. Borrower will pay the amounts necessary such that the
gross amount of the principal and interest received by the
Lender is not less than that required by this Note.
(c) The entire unpaid principal balance, all accrued interest and
any other amounts payable hereunder shall be paid in full on
or before the Maturity Date.
4. PREPAYMENT.
Borrower may prepay the Loan, in whole or in part, at any time
without penalty or premium.
5. LAWFUL MONEY.
Principal and interest are payable in lawful money of the United States
of America.
6. APPLICATION OF PAYMENTS/LATE CHARGE/DEFAULT INTEREST.
(a) Unless otherwise agreed to, in writing, or otherwise required
by applicable law, payments will be applied first to accrued,
unpaid interest, then to principal, and any remaining amount
to any unpaid collection costs, late charges, and other
charges, provided, however, upon delinquency or other
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default, Lender reserves the right to apply payments among
principal, interest, late charges, collection costs, and other
charges at its discretion. All prepayments shall be applied to
the indebtedness owing hereunder in such order and manner as
Lender may from time to time determine in its sole discretion.
(b) If any payment of interest and/or principal is not received by
the holder hereof when such payment is due, then in addition
to the remedies conferred upon the holder hereof pursuant to
this Note, a late charge of five percent of the amount of the
regularly scheduled payment or $25.00, whichever is greater,
up to the maximum amount of $1,500.00 per late charge will be
added to the delinquent amount to compensate the holder hereof
for the expense of handling the delinquency for any payment
past due in excess of ten days, regardless of any notice and
cure periods.
(c) Upon the occurrence of an Event of Default, including the
failure to pay upon final maturity, Lender, at its option, may
also, if permitted under applicable law, do one or both of the
following: (i) increase the applicable Interest Rate on this
Note to the Default Interest Rate, and (ii) add any unpaid
accrued interest to principal and such sum will bear interest
therefrom until paid at the rate provided in this Note
(including any increased rate). The interest rate will not
exceed the maximum rate permitted by applicable law.
7. SECURITY.
This Note is secured by the Stock Pledge Agreement, which creates a
lien on that certain stock described therein.
8. EVENT OF DEFAULT.
The occurrence of any of the following shall be deemed to be an event
of default ("Event of Default") hereunder:
(a) default in the payment of principal or interest when due
pursuant to the terms hereof and the expiration of five days
after written notice of such default from Lender to Borrower;
(b) if the Borrower is an employee of the Lender, the Borrower's
termination of employment with "Cause" or the Borrower's
voluntary resignation without "Good Reason" as such terms are
defined in Section 9 below;
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(c) if the Borrower is a non-employee director of the Company, the
Borrower's ceasing to provide services as a director to the
Company;
(d) if Borrower sells, gifts, transfers, or assigns the Option
Shares in anyway; or
(e) an event of default under the Stock Pledge Agreement.
9. DEFINITION OF CAUSE AND GOOD REASON
(a) Cause. For purposes of this Loan, a termination of employment
for "Cause" means a termination of employment resulting from a
determination by the Lender that the Borrower has: (i) been
convicted of a felony involving dishonesty, fraud, theft, or
embezzlement; (ii) repeatedly failed or refused, in a material
respect, to follow reasonable policies or directives
established by the Lender and after written notice thereof
from the Lender, and a reasonable opportunity by the Borrower
to cure such failures or refusals after having been given
reasonable written notice of such failures or refusals; (iii)
willfully and persistently failed to attend to the material
duties or obligations imposed upon Borrower after reasonable
written notice from the Lender and a reasonable opportunity by
the Borrower to cure such failure; (iv) performed an act or
failed to act, which, if the Borrower were prosecuted and
convicted, would constitute a felony involving $1,000 or more
of money or property of the Lender, or (v) intentionally
misrepresented or concealed a material fact for purposes of
securing employment with the Lender.
(b) Good Reason. For purposes of this Loan, a termination of
employment for "Good Reason" means any of the following
events: (i) the assignment to the Borrower of any duties that
are inconsistent with, or the reduction of powers or functions
associated with, the Borrower's position, duties, or
responsibilities with the Lender, or an adverse change in the
Borrower's titles, authority, or reporting responsibilities,
or in conditions of the Borrower's employment, (ii) the
Borrower's base salary is reduced or the potential incentive
compensation (or bonus) to which the Borrower may become
entitled to at any level of performance by the Borrower or the
Lender is reduced, (iii) the failure of the Lender to cause
any successor to expressly assume and agree to be bound by the
terms of this Agreement, (iv) any purported termination by the
Lender of the Borrower's employment for grounds other than for
"Cause," (v) the Lender relieving the Borrower of the
Borrower's duties other than for "Cause," (vi) the Borrower is
required to relocate to an employment location that is more
than fifty (50) miles from Gilbert, Arizona.
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10. REMEDIES.
Upon the occurrence of an Event of Default, then at the option of the
holder hereof, the entire balance of principal together with all
accrued interest thereon, and all other amounts payable by Borrower
under the Loan Documents shall, without demand or notice, immediately
become due and payable. Upon the occurrence of an Event of Default (and
so long as such Event of Default shall continue), the entire balance of
principal hereof, together with all accrued interest thereon, all other
amounts due under the Loan Documents, and any judgment for such
principal, interest, and other amounts shall bear interest at the
Default Interest Rate, subject to the limitations contained in Section
15 hereof. No delay or omission on the part of the Lender in exercising
any right under this Note or under any of the other Loan Documents
hereof shall operate as a waiver of such right.
11. WAIVER.
Borrower, endorsers, guarantors, and sureties of this Note hereby waive
diligence, demand for payment, presentment for payment, protest, notice
of nonpayment, notice of protest, notice of intent to accelerate,
notice of acceleration, notice of dishonor, and notice of nonpayment,
and all other notices or demands of any kind (except notices
specifically provided for in the Loan Documents) and expressly agree
that, without in any way affecting the liability of Borrower,
endorsers, guarantors, or sureties, the Lender may extend any maturity
date or the time for payment of any installment due hereunder,
otherwise modify the Loan Documents, accept additional security,
release any person liable, and release any security or guaranty.
Borrower, endorsers, guarantors, and sureties waive, to the full extent
permitted by law, the right to plead any and all statutes of
limitations as a defense.
12. CHANGE, DISCHARGE, TERMINATION, OR WAIVER.
No provision of this Note may be changed, discharged, terminated, or
waived except in a writing signed by the party against whom enforcement
of the change, discharge, termination, or waiver is sought. No failure
on the part of the Lender to exercise and no delay by the Lender in
exercising any right or remedy under this Note or under the law shall
operate as a waiver thereof.
13. ATTORNEYS' FEES.
If this Note is not paid when due or if any Event of Default occurs,
Borrower promises to pay all costs of enforcement and collection and
preparation therefor, including but not limited to, reasonable
attorneys' fees, whether or not any action or proceeding is brought to
enforce the provisions hereof (including, without
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limitation, all such costs incurred in connection with any bankruptcy,
receivership, or other court proceedings (whether at the trial or
appellate level)).
14. SEVERABILITY.
If any provision of this Note is unenforceable, the enforceability of
the other provisions shall not be affected and they shall remain in
full force and effect.
15. INTEREST RATE LIMITATION.
Borrower hereby agrees to pay an effective rate of interest that is the
sum of the interest rate provided for herein, together with any
additional rate of interest resulting from any other charges of
interest or in the nature of interest paid or to be paid in connection
with the Loan, including, without limitation, any other fees to be paid
by Borrower pursuant to the provisions of the Loan Documents. Lender
and Borrower agree that none of the terms and provisions contained
herein or in any of the Loan Documents shall be construed to create a
contract for the use, forbearance, or detention of money requiring
payment of interest at a rate in excess of the maximum interest rate
permitted to be charged by the laws of the State of Arizona. In such
event, if any holder of this Note shall collect monies which are deemed
to constitute interest which would otherwise increase the effective
interest rate on this Note to a rate in excess of the maximum rate
permitted to be charged by the laws of the State of Arizona, all such
sums deemed to constitute interest in excess of such maximum rate
shall, at the option of the Lender, be credited to the payment of other
amounts payable under the Loan Documents or returned to Borrower.
16. HEADINGS.
Headings at the beginning of each numbered section of this Note are
intended solely for convenience and are not part of this Note.
17. CHOICE OF LAW.
This Note shall be governed by and construed in accordance with the
laws of the State of Arizona without giving effect to conflict of laws
principles.
18. INTEGRATION.
The Loan Documents contain the complete understanding and agreement of
the Lender and Borrower and supersede all prior representations,
warranties, agreements, arrangements, understandings, and negotiations.
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19. BINDING EFFECT.
The Loan Documents will be binding upon, and inure to the benefit of,
the Lender, Borrower, and their respective successors and assigns.
Borrower may not delegate its obligations under the Loan Documents.
20. TIME OF THE ESSENCE.
Time is of the essence with regard to each provision of the Loan
Documents as to which time is a factor.
21. SURVIVAL.
The representations, warranties, and covenants of the Borrower in the
Loan Documents shall survive the execution and delivery of the Loan
Documents and the making of the Loan.
BORROWER:
By: __________________
Name: __________________
Title: __________________
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