Exhibit 10.2
EXECUTION COPY
SECURITIES PLEDGE AGREEMENT
Securities Pledge Agreement dated as of June 17, 2008 (this
"Agreement") made by Xxxxxx Corporation, a Massachusetts corporation having its
principal place of business at Xxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxx 00000
(the "Pledgor").
RECITALS:
X. Xxxxxx Technologies (Barbados) SRL, a corporation organized and
existing under the laws of Barbados having its principal place of business at
Fidelity House, Xxxxxx Business Park, St. Xxxxxxx, Barbados ("Rogers Barbados"),
and Xxxxxx N.V., a corporation organized and existing under the laws of Belgium
having its principal office at Xxxxxxxxxx 000, X-0000, Xxxx, Xxxxxxx ("Xxxxxx
Belgium") (Xxxxxx Barbados, and Xxxxxx Belgium are sometimes referred to
individually as a "Pledged Company" and collectively as the "Pledged Companies")
are subsidiaries of the Pledgor.
B. The Pledgor is the legal and beneficial owner of 99% of the
issued and outstanding common shares of Xxxxxx Belgium and is the legal and
beneficial owner of 99% of the issued and outstanding common shares of Xxxxxx
Barbados.
C. Pursuant to a certain Multicurrency Revolving Credit Agreement
dated as of November 13, 2006, as amended by Amendment No. 1 to Multicurrency
Revolving Credit Agreement dated as of November 10, 2007 and as amended by
Amendment No. 2 (the "Second Amendment") to Multicurrency Revolving Credit
Agreement dated as of the date hereof by and between the Pledgor and RBS
Citizens, National Association (the "Bank"), a national banking association,
(the "Credit Agreement") the Bank agreed, subject to the terms and conditions
set forth therein, to extend credit to the Pledgor.
D. As security for the Pledgor's obligations under the Credit
Agreement, the Bank is requiring the Pledgor to grant a security interest in
certain shares of the common stock of the Pledged Companies owned and held by
Pledgor, which shares constitute sixty-five percent (65%) of the common stock of
each of the Pledged Companies issued and outstanding as of the date hereof, the
stock certificate numbers of the same being listed on attached Schedule 1
hereto.
In consideration of the foregoing and other consideration, the
receipt and sufficiency of which are hereby acknowledged by the Pledgor, the
Pledgor agrees as follows:
ARTICLE 1
INTERPRETATION
Section 1.1 Capitalized Terms. All capitalized terms used but
not otherwise defined in this Agreement shall have the meanings attributed to
them in the Credit Agreement.
Section 1.2 Amendments, Restatements, etc. All references to
agreements (including this Agreement) and to other documents or instruments
herein shall be deemed to refer to that agreement, document or instrument as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
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Section 1.3 Laws, Statutes, etc. All references to laws,
statutes, acts or regulations in this Agreement shall be deemed to refer to the
same as such may be amended, restated, supplemented or otherwise modified and in
force from time to time.
Section 1.4 Recitals. Each of the Recitals and Schedule 1
shall, for all purposes hereof, form an integral part of this Agreement.
ARTICLE 2
SECURITY
Section 2.1 Pledge. (1) The Pledgor hereby assigns, mortgages,
charges, hypothecates and pledges to the Bank, and grants a security interest in
the securities in the capital of the Pledged Companies described on Schedule 1
hereto and hereby deposits with the Bank any and all security certificates
evidencing such securities (collectively, together with the securities referred
to in Sections 2.1(2) and 2.3(3), the "Securities") upon and subject to the
terms hereof.
(2) The Securities shall include any substitutions therefor,
additions thereto or proceeds thereof, arising out of any consolidation,
subdivision, reclassification, stock dividend or similar increase or decrease in
or alteration of the capital of the Pledged Companies or any other event.
(3) The Securities endorsed in blank for transfer shall forthwith be
delivered to and remain in the custody of the Agent or its nominee to be held by
the Agent or its nominee for the benefit of the Bank, as general and continuing
collateral security for the payment and performance of the Obligations. Any or
all Securities may, at the option of the Bank, be registered in the name of the
Bank or its nominee. The Pledgor covenants to deliver such stock powers and
similar documents with respect to the Securities as the Bank or its nominee may
reasonably from time to time request, satisfactory in form and substance to the
Bank. If the constating documents of either of the Pledged Companies restrict
the transfer of the Securities, then the Pledgor shall also deliver to the Bank
a certified copy of a resolution of the directors or shareholders of the
relevant Pledged Companies consenting to the transfer(s) contemplated by this
Pledge.
Section 2.2 Obligations Secured. (1) The assignments,
mortgages, charges, hypothecations and pledges granted hereby (collectively, the
"Pledge") secure the payment and the performance by the Pledgor of the
Obligations.
(2) All expenses, costs and charges incurred by or on behalf of the
Bank in connection with, the preservation of the Pledge or the realization of
the Securities, including all legal fees, court costs, receiver's or agent's
remuneration and other expenses of taking possession of, protecting, insuring,
preparing for disposition, realizing, registering, collecting, selling,
transferring, delivering, enforcing or obtaining payment of the Securities shall
be added to and form a part of the Obligations.
Section 2.3 Attachment. (1) The Pledgor and the Bank hereby
acknowledge that (i) value has been given by the Bank to the Pledgor; (ii) the
Pledgor has rights in the Securities; (iii) the Pledgor has not agreed to
postpone the time of attachment of the Pledge; and (iv) the Pledgor has received
a duplicate original copy of this Agreement.
(2) If the Securities are now or at any time hereafter become
evidenced in whole or in part by uncertificated securities registered or
recorded in records maintained by or on behalf of a Pledged Company in the name
of a clearing agency or a custodian or of a nominee of either, the Pledgor
shall, at the request of the Bank, cause the Pledge to be entered in the records
of the clearing agency.
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(3) If the Pledgor acquires any certificates evidencing the
Securities not already delivered to the Bank after the date hereof, the Pledgor
will, forthwith upon receipt by the Pledgor, deliver to the Bank such
certificates and shall, at the request of the Bank: (i) cause the transfer
thereof to the Bank to be registered wherever, in the opinion of the Bank, such
registration may be required or advisable; (ii) duly endorse the same for
transfer in blank or as the Bank may direct; and (iii) forthwith deliver to the
Bank any and all consents or other instruments or documents which may be
necessary to effect the transfer of the Securities to the Bank or any third
party, as the Bank may direct.
Section 2.4 Bank's Care and Custody of Securities. (1) The Bank
shall not be bound to collect, dispose of, realize, protect or enforce any of
the Pledgor's right, title and interest in and to the Securities, to institute
proceedings for the purpose thereof or to take any steps necessary to preserve
rights against prior parties in respect thereof.
(2) The Bank need not see to the collection of dividends on or
exercise any option or right in connection with the Securities and need not
protect or preserve them from any loss of value and is hereby released from all
responsibility for loss of value. The Bank shall be bound to exercise in the
keeping of the Securities only the same degree of care as it would exercise with
respect to its own securities kept at the same place.
Section 2.5 Rights of the Pledgor. (1) Until (i) an Event of
Default has occurred and is continuing, (ii) the Pledge has become enforceable,
and (iii) the Bank has delivered written notice to the Pledgor suspending the
Pledgor's right to vote the Securities, the Pledgor shall be entitled to vote
the Securities and to receive all dividends, payments or other distributions in
respect thereof.
(2) Except as otherwise provided in the Loan Documents, whenever the
Pledge has become enforceable and the Bank has delivered written notice to the
Pledgor suspending the Pledgor's right to vote the Securities, all rights of the
Pledgor to exercise the voting and other rights or to receive the dividends,
payments and other distributions it would otherwise be entitled to exercise or
receive shall cease, and all such rights shall thereupon become vested solely
and absolutely in the Bank.
(3) Any dividends, payments or other distributions received hereunder
by (i) the Bank prior to the Pledge becoming enforceable in accordance with
Section 2.5(1); or (ii) the Pledgor contrary to Section 2.5(2) or any other
moneys or other property which may be received by the Pledgor at any time for or
in respect of the Securities contrary thereto shall, in each case, be received
by such party as trustee for the party entitled hereunder to receive such
amounts and shall be forthwith paid over thereto.
ARTICLE 3
ENFORCEMENT
Section 3.1 Default. The Pledge shall be and become enforceable
against the Pledgor following the occurrence and during the continuance of an
Event of Default.
Section 3.2 Remedies. Whenever the Pledge has become
enforceable, the Bank may at any time, in its sole discretion, realize upon or
otherwise dispose of or contract to dispose of the Securities by sale, transfer
or delivery or may exercise and enforce all rights and remedies of a holder of
the Securities as if the Bank were the absolute owner thereof (including, if
necessary, causing the Securities to be registered in the name of the Agent or
its nominee), without demand of performance or other demand, advertisement or
notice of any kind to or upon the Pledgor and any such remedy may be exercised
separately or in combination and shall be in addition to and not in substitution
for any other rights the Bank, or either of them, may have, however created. The
Bank shall not be bound to exercise any such right or remedy, and the exercise
of such rights and remedies shall be without prejudice to the rights of the Bank
in respect of the Obligations.
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Section 3.3 Appointment of Attorney. The Pledgor hereby
irrevocably appoints the Bank (and any officer thereof) as attorney of the
Pledgor (with full power of substitution) to exercise in the name of and on
behalf of the Pledgor at any time after the Pledge has become enforceable any of
the Pledgor's right (including the right of disposal), title and interest in and
to the Securities, including the execution, endorsement, delivery and transfer
of the Securities to the Bank, their respective nominees or transferees, and the
Bank and its respective nominees or transferees are hereby empowered to exercise
all rights and powers and to perform all acts of ownership with respect to the
Securities at any time after the Pledge has become enforceable to the same
extent as the Pledgor might do. The power of attorney herein granted is in
addition to, and not in substitution for, any stock power of attorney delivered
by the Pledgor and such powers of attorney may be relied upon by the Bank
severally or in combination. All acts of any such attorney are hereby ratified
and approved, and such attorney shall not be liable for any act, failure to act
or any other matter or thing in connection therewith, except for its own
negligence or willful misconduct.
Section 3.4 Dealing with the Securities and the Pledge. (1) The
Bank shall not be obliged to exhaust its recourse against the Pledgor or any
other Person or Persons or against any other security or guarantees it may hold
in respect of the Obligations before realizing upon or otherwise dealing with
the Securities in such manner as it may consider desirable.
(2) The Bank may grant extensions or other indulgences, take and give
up securities, accept compositions, grant releases and discharges and otherwise
deal with the Pledgor and with other parties, sureties or securities as the Bank
may see fit without prejudice to the Obligations or the rights of the Bank in
respect of the Securities.
(3) The Bank shall not be (i) liable or accountable for any failure
to collect, realize or obtain payment in respect of the Securities; (ii) bound
to institute proceedings for the purpose of collecting, enforcing, realizing or
obtaining payment of the Securities or for the purpose of preserving any rights
of the Bank, the Pledgor or any other parties in respect thereof; (iii)
responsible for any loss occasioned by any sale or other dealing with the
Securities or by the retention of or failure to sell or otherwise deal
therewith, other than loss occasioned by gross negligence or wilful misconduct;
or (iv) bound to protect the Securities from depreciating in value or becoming
worthless.
Section 3.5 Standards of Sale. Without prejudice to the ability
of the Bank to dispose of the Securities in any other manner which is
commercially reasonable, the Pledgor acknowledges that a disposition of
Securities by the Bank which takes place substantially in accordance with the
following provisions shall be deemed to be commercially reasonable:
(a) Securities may be disposed of in whole or in part;
(b) Securities may be disposed of by public sale, private contract or
otherwise, with or without advertising and without any other
formality, except as required by law;
(c) if permitted by law, any purchaser of such Securities may be the
Bank or a customer of the Bank;
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(d) any sale conducted by the Bank shall be at such time and place,
on such notice and in accordance with such procedures as the
Bank, in its sole discretion, may deem advantageous;
(e) Securities may be disposed of in any manner and on any terms
necessary to avoid violation of applicable law (including,
without limitation, compliance with such procedures as may
restrict the number of prospective bidders and purchasers,
require that such prospective bidders and purchasers have certain
qualifications, and restrict such prospective bidders and
purchasers to persons who will represent and agree that they are
purchasing for their own account for investment and not with a
view to the distribution or resale of the Securities) or in order
to obtain any required approval of the disposition (or of the
resulting purchase) by any governmental or regulatory authority
or official;
(f) a disposition of Securities may be on such terms and conditions
as to credit or otherwise as the Bank, in its sole discretion,
may deem advantageous; and
(g) the Bank may establish an upset or reserve bid or price in
respect of the Securities.
Section 3.6 Application of Moneys. Any proceeds of the
Securities may be held in lieu of the Securities realized upon and may, as and
when the Bank sees fit, be applied or appropriated as the Bank may elect on
account of the Obligations and the balance, if any, shall be paid to the Pledgor
or as a court of competent jurisdiction may direct. If there shall be a
deficiency after such application, then the Pledgor shall remain liable for such
deficiency and shall pay the amount of such deficiency to the Bank forthwith.
Section 3.7 Dealings by Third Parties. (1) No person dealing
with the Bank or its agent or a receiver shall be required to determine (i)
whether the Pledge has become enforceable; (ii) whether the powers which the
Bank or its agent is purporting to exercise have become exercisable; (iii)
whether any money remains due to the Bank by the Pledgor; (iv) the necessity or
expediency of the stipulations and conditions subject to which any sale shall be
made; (v) the propriety or regularity of any sale or of any other dealing by the
Bank with the Securities; or (vi) to see to the application of any money paid to
the Bank.
(2) Any purchaser of Securities from the Bank shall hold the
Securities absolutely, free from any claim or right of whatever kind, including
any equity of redemption, of the Pledgor, which it hereby specifically waives
(to the fullest extent permitted by law) as against any such purchaser, all
rights of redemption, stay or appraisal which the Pledgor has or may have under
any rule of law or statute now existing or hereafter adopted.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties. The Pledgor
represents and warrants to the Bank that:
(a) Schedule 1 correctly sets forth the percentage of the issued and
outstanding securities of each class of the equity interests of
the Pledged Companies represented by such Securities;
(b) the Securities have been duly and validly authorized and issued
by each Pledged Company and are fully paid and nonassessable;
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(c) except for the security interests granted hereunder the Pledgor
(i) is and, subject to any transfers made in compliance with this
Agreement or the Credit Agreement, will continue to be the direct
owner, beneficially and of record, of the Securities indicated on
Schedule 1, (ii) holds the same free and clear of all Liens,
(iii) will make no assignment, pledge, hypothecation or transfer
of, or create or permit to exist any security interest in or
other Lien on, the Securities, other than Liens created by this
Agreement, and transfers made in compliance with this Agreement,
and (iv) will cause any and all Securities, whether for value
paid by the Pledgor or otherwise, to be forthwith deposited with
the Bank and pledged or assigned hereunder;
(d) except for restrictions and limitations imposed by the Loan
Documents, the constating documents of each Pledged Company, or
securities laws generally, the Securities are and will continue
to be freely transferable and assignable, and none of the
Securities are or will be subject to any option, right of first
refusal or contractual restriction of any nature that might
prohibit, impair, delay or otherwise affect the pledge of such
Securities hereunder, the sale or disposition thereof pursuant
hereto or the exercise by the Bank of rights and remedies
hereunder;
(e) the Pledgor (i) has the power and authority to pledge the
Securities pledged by it hereunder 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), however arising, of all Persons whomsoever;
(f) no consent or approval of any governmental authority, any
securities exchange or any other Person was or is necessary to
the validity of the pledge effected hereby (other than such as
have been obtained and are in full force and effect);
(g) subject to any security interests granted under, when any
certificates evidencing Securities are delivered to the Bank in
accordance with this Agreement, the Bank will obtain a legal,
valid and perfected first-priority lien upon and security
interest in the Securities as security for the payment and
performance of the Obligations; and
(h) the pledge effected hereby is effective to vest in the Bank the
rights of the Bank in the Securities as set forth herein.
ARTICLE 5
GENERAL
Section 5.1 Discharge. This Pledge shall be released and
discharged upon, but only upon (i) the irrevocable and unconditional payment in
full of the Obligations under the Credit Agreement and the other Loan Documents;
and (ii) the request in writing for such discharge. Upon such release and
discharge, the Bank shall deliver the Securities to the Pledgor with all powers
of attorney or transfers duly signed so as to permit completion of the transfer
of the Securities of the Pledgor. Upon request in writing by, and at the expense
of, the Pledgor, the Bank shall execute and deliver to the Pledgor such deeds,
releases, discharges or other instruments as shall be reasonably required to
evidence the discharge and release of this Pledge and the security interest
hereby constituted.
Section 5.2 No Representations, etc. There are no other
representations, collateral agreements, covenants or conditions with respect to
this Agreement or affecting the Pledgor's liability hereunder other than as
referenced in this Agreement or as contained in the Credit Agreement and the
other Loan Documents.
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Section 5.3 No Merger, etc. No judgment recovered by the Agent
shall operate by way of merger of or in any way affect the Pledge, which is in
addition to and not in substitution for any other security now or hereafter held
by the Agent in respect of the Obligations.
Section 5.4 Amendments, Waivers, etc. (1) No amendment or
waiver of any provision of this Agreement, nor consent to any departure by the
Pledgor from such provisions, shall be effective unless approved in writing by
the Bank. Any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(2) No amendment, waiver or consent shall, unless in writing and
signed by the Bank and the Pledgor, affect the rights or duties of the Bank and
the Pledgor under this Agreement.
(3) No failure on the part of the Bank to exercise, and no delay in
exercising, any right under any of this Agreement shall operate as a waiver of
such right; nor shall any single or partial exercise of any right under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right.
Section 5.5 Further Assurances. The Pledgor shall from time to
time, whether before or after the Pledge shall have become enforceable, do all
such acts and things and execute and deliver all such deeds, transfers,
assignments and instruments as the Bank may reasonably require for protecting
the Securities or perfecting the Pledge and for exercising all powers,
authorities and discretions hereby conferred upon the Bank, and the Pledgor
shall, from time to time after the Pledge has become enforceable, do all such
acts and things and execute and deliver all such deeds, transfers, assignments
and instruments as the Bank may require for facilitating the sale of the
Securities in connection with any realization thereof or otherwise giving effect
to the rights and remedies of the Bank pursuant hereto.
Section 5.6 Successors and Assigns. This Agreement shall be
binding upon and shall enure to the benefit of the parties and their respective
successors and permitted assigns. The Pledgor shall not have the right to assign
its rights or obligations hereunder or any interest herein without the prior
written consent of the Bank. The Bank may assign any of its rights or
obligations hereunder without the prior written consent of the Pledgor.
Section 5.7 Headings, etc. The division of this Agreement into
articles, sections and subsections and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation thereof.
Section 5.8 Severability. If any provision of this Agreement
shall be deemed by any court of competent jurisdiction to be invalid or void,
the remaining provisions shall remain in full force and effect.
Section 5.9 Conflict. In the event of a conflict or
inconsistency between the provisions of this Agreement and the provisions of the
Credit Agreement or any other Loan Documents, the provisions giving the Bank
greater rights or remedies shall govern (to the maximum extent permitted by
applicable law), it being understood that the purpose of this Agreement, the
Credit Agreement and the other Loan Documents is to add to, and not detract
from, the rights granted to the Bank under the Credit Agreement and the other
Loan Documents.
Section 5.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an original and all
of which taken together will be deemed to constitute one and the same
instrument. Counterparts may be executed either in original or faxed form and
the parties adopt any signatures received by a receiving fax machine as original
signatures of the parties.
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Section 5.11 Notices. Any demand, notice, request, consent,
approval or other communication required or permitted to be made or given by any
party hereto to any other party hereto in connection with this Agreement shall
be made in accordance with the notice procedures set out in the Credit
Agreement.
Section 5.12 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF the Pledgor has duly executed this Agreement
as of the day set forth above.
XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Vice President - Finance and
Chief Financial Officer
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Schedule 1
Pledged Securities
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Security Number of Certificate Percentage of Issued and
Issuer Securities Number(s) Outstanding Shares
------ ---------- --------- ------------------
Xxxxxx Barbados
Xxxxxx Belgium
