EXHIBIT 10.19
PLEDGE AGREEMENT
AGREEMENT made as of October 16, 2001, between Xxxxxx X. Xxxxxxx, Xx.
("PLEDGOR") and SAFETY HOLDINGS, INC., a Delaware corporation ("PLEDGEE" or the
"COMPANY").
WHEREAS, at the time of the execution of this Agreement the Pledgor is
indebted to the Pledgee in the principal amount of NINETY-FIVE THOUSAND DOLLARS
($95,000.00), as evidenced by the Recourse Promissory Note for such amount
executed in favor of the Pledgee by the Pledgor of even date herewith (the
"NOTE") a copy of which is attached hereto; and
WHEREAS, to induce the Pledgee to make the loan evidenced by the Note, the
Pledgor has agreed to pledge certain securities in favor of Pledgee as security
for the repayment of the Note.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed as follows:
1. PLEDGE. In consideration of the sum of $95,000.00 loaned to the
Pledgor by the Pledgee, receipt of which hereby is acknowledged, the Pledgor
hereby pledges to the Pledgee, and grants to the Pledgee a security interest in,
all of his right, title and interest in and to the following (the "PLEDGED
COLLATERAL"): (i) 9,500.000 shares of Common Stock of the Company, par value
$0.01 per share, presently owned by the Pledgor (the "COMMON STOCK"), (ii) any
other capital stock of the Company hereafter required by Pledgor, including any
shares of Common Stock acquired by Pledgor pursuant to the Company's 2001
Restricted Stock Plan, and (iii) all dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the stock referred to in clauses
(i), (ii) and (iii) to the extent not included above, all proceeds (as such term
is defined in the Uniform Commercial Code as in effect in the State of New York)
of the foregoing collateral.
2. SECURITY FOR OBLIGATIONS. This Agreement secures the payment of all
obligations of the Pledgor now or hereafter existing under the Note, whether for
principal, interest, fees, expenses or otherwise, and all obligations of the
Pledgor now or hereafter existing under this Agreement (the "OBLIGATIONS").
3. DELIVERY OF PLEDGED PROPERTY; REGISTRATION OF PLEDGE, TRANSFER, ETC.
All certificates or instruments representing or evidencing the Pledged
Collateral shall be delivered to and held by or on behalf of the Pledgee
pursuant hereto, shall be in suitable form for transfer by delivery, and shall
be accompanied by all necessary instruments of transfer or assignment, duly
executed in blank. The Pledgee shall have the right, at any time and without
notice to the Pledgor, to transfer to, or to register in the name of the Pledgee
or any of its nominees, any or all of the Pledged Collateral, subject only to
the revocable rights of the Pledgor specified in SECTION 5 hereof.
4. DIVIDENDS. During the term of this Agreement, within ten (10) days
after any payment of a dividend with respect to the Common Stock, such dividend
payment shall be applied to the payment first of accrued interest, then of
principal and then other Obligations under or in respect of the Note.
5. VOTING RIGHTS. Subject to the restrictions imposed upon the Pledgor by
the Management Subscription Agreement, dated as of October__, 2001, by and among
the Company and the management signatories thereto, and the Stockholder's
Agreement, dated as of October__, 2001, among the Company and its stockholders
(collectively, the "COMPANY STOCK AGREEMENTS"), during the term of this
Agreement, and so long as the Pledgor is not in default in the performance of
any of the terms of this Agreement or of the Note, the Pledgor shall be entitled
to exercise all of his voting and other consensual rights pertaining to the
Pledged Collateral or any part thereof, provided that the exercise of said
rights shall in no way jeopardize the Pledgee's security hereunder. To this end,
the Pledgee shall execute and deliver to the Pledgor all proxies and other
instruments as the Pledgor may reasonably request. Upon the occurrence and
during the continuance of a default under this Agreement or the Note, all rights
of the Pledgor to exercise the voting and other consensual rights which he would
otherwise be entitled to exercise pursuant to this SECTION 5 shall cease, and
all such rights shall thereupon become vested in the Pledgee, who shall
thereupon have the sole right to exercise such voting and other consensual
rights, subject to the restrictions imposed upon the Pledgee by the Company
Stock Agreements.
6. PAYMENT OF OBLIGATIONS; RELEASE OF COLLATERAL. Upon payment in full of
the Obligations, the Pledgee shall, upon the request of the Pledgor and at his
expense, cause the Company to make such entries upon its share register as are
necessary to vest in the Pledgor full right, title and interest in such of the
Pledged Collateral as shall not have been sold or otherwise applied pursuant to
the terms hereof.
7. PROTECTION OF PLEDGED COLLATERAL. The Pledgor shall pay all taxes,
charges and assessments against the Pledged Collateral and do all acts necessary
and appropriate to preserve and maintain the value thereof. Without limiting the
generality of the foregoing, the Pledgor shall not grant a security interest in
the Pledged Collateral to any other person or entity without the prior written
consent of the Pledgee thereto. Upon the failure of the Pledgor to comply with
any of the foregoing, the Pledgee may make such payments and take such actions
on account thereof as it, in its discretion, deems desirable. The Pledgor shall
reimburse the Pledgee immediately on demand for each and all such payments and
any costs so incurred.
8. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. The Pledgor represents
and warrants that as of the date hereof:
(a) The Pledgor is the legal, record and beneficial owner of and has
good and marketable title to the Pledged Collateral;
(b) This Agreement constitutes a valid, legal and binding obligation
of the Pledgor enforceable in accordance with its terms. The
execution, delivery and performance of this Agreement by the
Pledgor are not in contravention of any prior obligation of the
Pledgor or of any obligation with respect to the Pledged
Collateral;
(c) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement creates a valid lien and a security
interest in the Pledged Collateral;
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(d) No material statement made by the Pledgor in this Agreement or
any document delivered hereunder is untrue as of the date hereof
or omits to state a material fact, necessary in order to make
the statements made, in the light of the circumstances under
which they were made, not misleading; and
(e) There are no restrictions upon the transfer of any of the Common
Stock other than those imposed pursuant to federal and state
securities laws and by the terms of the Company Stock Agreements
and the Note.
9. COVENANTS OF THE PLEDGOR. The Pledgor covenants and agrees that he
will defend the Pledgee's right, title and security interest in and to the
Pledged Collateral and the proceeds thereof against the claims of all persons.
10. DEFAULT. In the event that the Pledgor defaults in the performance of
any of the terms of this Agreement or of the Note, the Pledgee shall have the
rights and remedies provided in the Uniform Commercial Code in force in the
State of New York at the date of this Agreement; PROVIDED, HOWEVER, that if the
Pledgee decides to foreclose on the Pledged Collateral, it shall be governed by
and do so pursuant to the terms of the Company Stock Agreements. Out of the
proceeds of any sale the Pledgee may retain an amount equal to the principal and
interest then due under the Note, plus the amount of the expenses of the sale,
and shall pay any balance of such proceeds to the Pledgor.
11. WAIVERS. The Pledgor assents to any extension or waiver of any
obligation of the Pledgor secured hereby. The Pledgee shall have no duty with
respect to the preservation or protection of the Pledged Collateral or any
income thereof or the preservation or protection of any rights against other
parties with respect thereto. The Pledgee may exercise any rights it may have
hereunder against the Pledgor or the Pledged Collateral, after having given
notice to the Pledgor, whether or not it has given any other party any notice or
otherwise taken any action against any other party or assets for the enforcement
of such rights.
No waiver or modification of any of the provisions hereof shall be binding
upon the Pledgee unless in writing and signed by a duly authorized
representative thereof, and no waiver by the Pledgee of any right it may have
hereunder shall be deemed a waiver of any other rights it may have. All rights
and remedies of the Pledgee shall be cumulative and may be exercised singly or
concurrently.
12. ASSIGNMENT. The Pledgor shall not pledge, assign or otherwise transfer
any or all of its rights in the Pledged Collateral or hereunder, without the
prior written consent of the Pledgee.
13. COSTS. The Pledgor shall pay all costs, including without limitation,
reasonable attorneys' fees, incurred by the Pledgee in protecting, enforcing or
releasing any of the Pledgee's rights hereunder.
14. ADDITIONAL DOCUMENTS. Upon the request of the Pledgee, the Pledgor
will execute and deliver such further documents and take such further action as
the Pledgee may reasonably request in order to give full effect to the purposes
of this Agreement.
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15. MISCELLANEOUS. This Agreement shall be interpreted under and construed
in accordance with the laws of the State of New York, without regard to the
principles of conflicts of laws. The parties hereby irrevocably submit on a
non-exclusive basis to the jurisdiction of the federal courts of the United
States of America, the courts of the State of New York and any courts competent
to hear appeals therefrom. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by confirmed facsimile transmission,
confirmed courier service, or by registered or certified mail (postage prepaid,
return receipt requested) to the last known address of the addressee.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors and permitted
assigns, and may not be changed or modified except by an instrument in writing,
executed by both parties.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
on the date first written above.
PLEDGOR:
/s/Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx.
HOME ADDRESS:
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PLEDGEE: SAFETY HOLDINGS, INC.
/s/A. Xxxxxxx Xxxxxx, Xx.
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Name: A. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
WITNESS:
/s/Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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