Exhibit 10.22
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PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of October 27, 1997 by and between Xxxx X.
Xxxxxxx, an individual with an address at 00 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Pledgor"), in favor of Endogen, Inc., a Massachusetts
corporation, having its principal place of business at 00 Xxxxxxxx Xxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("Endogen").
WHEREAS, the Pledgor has the right to purchase 12,000 shares of the
Common Stock, $.01 par value per share, of Endogen (the "Shares");
WHEREAS, Endogen has agreed to lend to the Pledgor $16,320.00 (the
"Loan") to purchase the Shares, which Loan is evidenced by a promissory note in
the principal amount of $16,320.00 of the Pledgor to Endogen dated as of the
date hereof (the "Note"); and
WHEREAS, the obligation of Endogen to grant the Loan is subject to the
condition that the Pledgor execute and deliver this Pledge Agreement and grant
the security interest hereinafter described.
NOW, THEREFORE, in consideration of the covenants and conditions set
forth herein and to induce Endogen to grant the Loan, the Pledgor hereby agrees
with Endogen as follows:
Section 1. Defined Terms. The following terms have the following
meanings:
"Code" means the Uniform Commercial Code from time to time in effect in
the Commonwealth of Massachusetts.
"Collateral" means the Pledged Stock and all Proceeds.
"Foreclosure Date" means any date on which Endogen sends to the Pledgor
a Foreclosure Notice.
"Foreclosure Notice" means notice that Endogen may give to the Pledgor
when an Event of Default occurs and is continuing, which notice shall state (i)
that Endogen is exercising its rights under this Pledge Agreement, (ii) the
nature of the Event of Default, (iii) the number of shares of Pledged Stock
calculated in accordance with this Section 1.
"Loan" means the loan by Endogen of $16,320.00 in favor of the Pledgor.
"Pledge Agreement" means this Pledge Agreement, as amended,
supplemented or otherwise modified from time to time.
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"Pledged Stock" means the number of Shares determined by dividing the
amount of unpaid principal and interest outstanding under the Note on the
Foreclosure Date by the purchase price per share paid by the Pledgor under that
certain Non-Qualified Stock Option Agreement dated August 21, 1991 by and
between Pledgor and Endogen (the "Stock Option Agreement").
"Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the Commonwealth of
Massachusetts on the date hereof and, in any event, includes, without
limitation, all dividends or other income from the Pledged Stock, collections
thereon or distributions with respect thereto.
Section 2. Pledge; Grant of Security Interest; Escrow of Pledged Stock.
The Pledgor grants to Endogen a first security interest in the Collateral, as
collateral security for the prompt and complete payment of the Note in
accordance with its terms. The Pledgor shall deliver to Endogen the stock
certificate or certificates representing the Pledged Stock to be held in escrow
by Endogen until the Note is paid in full, together with an undated stock power
or powers covering such certificate or certificates, duly executed in blank.
Section 3. Representations and Warranties. The Pledgor represents and
warrants that:
(a) this Pledge Agreement has been duly executed by the
Pledgor, and constitutes a legal, valid and binding obligation of the Pledgor
enforceable in accordance with its terms;
(b) no consent or authorization of, filing with, or other act
by or with respect to, any arbitrator or governmental authority and no consent
of any other person (including, without limitation, any creditor of the
Pledgor), is required in connection with the execution, delivery, performance,
validity or enforceability of this Pledge Agreement; and
(c) the Pledgor is the record and beneficial owner of the
Shares, and the Shares are free of any and all liens, pledges, security
interests, encumbrances or options in favor of, or claims of, any other person,
except the lien created by this Pledge Agreement.
Section 4. Covenants. The Pledgor covenants and agrees with Endogen
that, from and after the date of this Pledge Agreement until the Note is paid in
full:
(a) At any time and from time to time, upon the written
request of Endogen, and at the sole expense of the Pledgor, the Pledgor shall
promptly and duly execute and deliver such further instruments and documents and
take such further actions as Endogen may reasonably request for the purposes of
obtaining or preserving the full benefits of this Pledge Agreement and of the
rights and powers herein granted. If any amount payable under or in connection
with any of the Collateral is or becomes evidenced by any promissory note, other
instrument or chattel paper, such note, instrument or chattel paper shall be
promptly delivered to Endogen, duly endorsed in a manner satisfactory to
Endogen, to be held as Collateral pursuant to this Pledge Agreement.
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(c) The Pledgor agrees to pay, and to save Endogen harmless
from, any and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral or in connection
with any of the transactions contemplated by this Pledge Agreement.
Section 5. Cash Dividends; Voting Rights. Unless an Event of Default
has occurred and is continuing and Endogen has given a Foreclosure Notice to the
Pledgor, the Pledgor shall be permitted to receive all cash dividends paid by
Endogen with respect to the Pledged Stock and shall possess all rights to vote
the Pledged Stock at any meeting of shareholders of Endogen or otherwise.
Section 6. Default. The failure by the Pledgor to pay any amount due
and payable under the Note within ten (10) business days after such amount
becomes due and payable shall constitute a default hereunder (an "Event of
Default").
Section 7. Rights of Endogen. (a) If an Event of Default occurs and is
continuing and Endogen gives a Foreclosure Notice to the Pledgor (i) Endogen
shall have the right to receive any and all cash dividends paid with respect to
the Pledged Stock and make application thereof to the Note in such order as it
may determine, and (ii) all shares of the Pledged Stock shall be registered in
the name of Endogen or its nominee, and Endogen or its nominee may thereafter
exercise (A) all voting, corporate and other rights pertaining to such shares of
the Pledged Stock at any meeting of shareholders of Endogen or otherwise and (B)
any and all rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to the Pledged Stock as if it were the absolute
owner thereof (including, without limitation, the right to exchange at its
discretion any and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of Endogen, or upon the exercise by the Pledgor or Endogen of any
right, privilege or option pertaining to such shares of the Pledged Stock, and
in connection therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depository, transfer agent, registrar or other
designated agency upon such terms and conditions as it may determine), all
without liability except to account for property actually received by it, but
Endogen shall have no duty to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
Upon the occurrence of an Event of Default, Endogen shall have
the rights and remedies set forth in this Section 7 and in any other instrument
or agreement evidencing or relating to the Loan, and all rights and remedies of
a secured party under the Code or other applicable law. The Pledgor shall remain
personally liable to the Company with respect to all of the obligations under
that certain "full recourse" Note of even date herewith.
(b) Endogen shall not be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Pledgor or any other
person or to take any other action whatsoever with regard to the Collateral or
any part thereof.
(c) When the Note has been paid in full, the pledge of the
Collateral shall cease, and the Collateral shall revert to the Pledgor free and
clear of all liens securing any
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obligation or liability of the Pledgor to Endogen, and Endogen's rights, title,
and interest therein shall cease and become void.
Section 8. Severability. Any provision of this Pledge Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 9. No Waiver; Cumulative Remedies. No failure to exercise, nor
any delay in exercising, on the part of Endogen, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
Section 10. Waivers and Amendments; Successors and Assigns; Governing
Law. None of the terms or provisions of this Pledge Agreement, may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Pledgor and Endogen, provided, that any provision of this Pledge
Agreement may be waived by Endogen in a letter or agreement executed by Endogen.
This Pledge Agreement shall be binding upon the successors and assigns of the
Pledgor and shall insure to the benefit of Endogen and its successors and
assigns. This Pledge Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the Commonwealth of Massachusetts.
Each party hereto consents to the jurisdiction of the state courts of the
Commonwealth of Massachusetts and the United States courts for the District of
Massachusetts with respect to the transactions contemplated hereby.
Section 11. Notices. Notices under this Pledge Agreement may be given
by express overnight courier service or by facsimile transmission, addressed to
the Parties at their respective addresses set forth in the first paragraph to
this Pledge Agreement and shall be effective when sent. Either party may change
their respective addresses by written notice to the other party.
Section 12. Counterparts. This Pledge Agreement may be executed in
several counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one agreement.
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IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to
be duly executed and delivered as of the date first above.
PLEDGOR:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
ENDOGEN, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President of Finance and CFO
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