Exhibit 10.15
PLEDGE AGREEMENT
THIS AGREEMENT, dated as of the 15th day of April, 1996, by and between
XXXXXXXXX X. XXXXXX (the "Pledgor") and ASECO CORPORATION, a Delaware
corporation (the "Company").
W I T N E S S E T H :
WHEREAS, the Company has agreed to make a loan as of the date hereof in
the principal amount of $140,000 to the Pledgor (the "Loan"), such Loan to be
evidenced by the Pledgor's Promissory Note, payable to the order of the
Company (the "Note"); and
WHEREAS, the obligation of the Company to make the Loan is subject to the
conditions, among others, that the Pledgor shall execute and deliver this
Agreement and grant the security interest hereinafter described;
NOW, THEREFORE, in consideration of the willingness of the Company to
make the Loan to the Pledgor, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is hereby
agreed as follows:
1. Security Interest. The Pledgor hereby deposits with and pledges to
the Company 15,000 shares of the Common Stock, $.01 par value, of the Company
(the "Pledged Stock"), and the Pledgor hereby grants to the Company a security
interest in the Pledged Stock as security for the due and punctual payment and
performance of the Secured Obligation described in section 2 hereof.
2. Secured Obligation. The security interest hereby granted shall
secure the due and punctual payment of the principal of and interest, if any,
on the Note (the "Secured Obligation").
3. Special Warranties and Covenants of the Pledgor. The Pledgor hereby
warrants and covenants to the Company that:
(a) The Pledged Stock is duly and validly pledged with the Company
in accordance with law and the Pledgor warrants and will defend the Company's
right, title and security interest in and to the Pledged Stock against the
claims and demands of all persons whomsoever.
(b) The Pledgor has good title to the Pledged Stock, free and clear
of all claims, mortgages, pledges, liens, security interests and other
encumbrances of every nature whatsoever.
(c) All of the Pledged Stock has been duly and validly issued and
is fully paid and nonassessable.
(d) The Pledgor will not sell, convey or otherwise dispose of any
of the Pledged Stock, nor will the Pledgor create, incur or permit to exist
any pledge, mortgage, lien, charge, encumbrance or any security interest
whatsoever with respect to any of the Pledged Stock or the proceeds thereof,
other than liens on and security interests in the Pledged Stock created
hereby.
4. Distributions. In case, upon the dissolution, winding up,
liquidation or reorganization of the Company, whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of the assets and liabilities of the
Company or otherwise, any sum shall be paid or any property shall be
distributed upon or with respect to any of the Pledged Stock, such sum shall
be paid over to the Company to be held as collateral security for the Secured
Obligation. In case any stock dividend shall be declared on the Pledged
Stock, or any share of stock or fraction thereof shall be issued pursuant to
any stock split involving the Pledged Stock, or any distribution of capital
(excluding ordinary cash dividends) shall be made on the Pledged Stock, or any
property shall be distributed upon or with respect to the Pledged Stock
pursuant to recapitalization or reclassification of the capital of the
Company, the shares or other property so distributed shall be delivered to the
Company to be held as collateral security for the Secured Obligation.
5. Events of Default. There shall exist a default under this Agreement
upon the default in the due and punctual payment of any principal of or
interest on the Secured Obligation as and when the same becomes due and
payable (herein called an "Event of Default").
6. Rights and Remedies of Company. Upon the occurrence of an Event of
Default, such default not having previously been remedied or cured, the
Company shall have all rights and remedies provided by law, including, without
limitation, those provided by the Uniform Commercial Code, and all rights and
remedies provided in this Agreement and the Note.
7. Right to Transfer into Name of Company, etc. In case there shall
exist an Event of Default, but subject to the provisions of the Uniform
Commercial Code or other applicable law, the Company may cause all or any of
the Pledged Stock to be transferred into its name or into the name of its
nominee or nominees. So long as no Event of Default shall exist, the Pledgor
shall be entitled to exercise as the Pledgor shall deem fit, but in a manner
not inconsistent with the terms hereof or of the Secured Obligation, the
voting power with respect to the Pledged Stock.
8. Right of Company to Exercise Voting Power, etc. In case there shall
exist an Event of Default, the Company shall be entitled to exercise the
voting power with respect to the Pledged Stock, to receive and retain, as
collateral security for the Secured Obligation, any and all dividends or other
distributions at any time and from time to time declared or made upon the
Pledged Stock, and to exercise any and all rights of payment, conversion,
exchange, subscription or 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 readjustment of the Company or, upon the exercise of
any such right, privilege or option pertaining to the Pledged Stock, and in
connection therewith, to deposit and deliver any and all of the Pledged Stock
with any committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as the Company may determine, all
without liability except to account for property actually received, but the
Company shall have no duty to exercise any of the aforesaid rights, privileges
or options and shall not be responsible for any failure to do so or delay in
so doing.
9. Right of Company to Dispose of Pledged Stock, etc. Upon the
occurrence of an Event of Default, such default not having previously been
remedied or cured, the Company shall have the right at any time or times
thereafter to sell, resell, assign and deliver all or any of the Pledged Stock
in one or more parcels at any exchange or broker's board or at public or
private sale. The Company will give the Pledgor at least ten (10) days' prior
written notice at the address of the Pledgor specified in section 16 hereof of
the date on which and manner in which any private or any other intended
disposition thereof is to be made. Any such notice shall be deemed to meet
any requirement hereunder or under any applicable law (including the Uniform
Commercial Code) that reasonable notification be given of the time and place
of such sale or other disposition. Such notice may be given without any
demand of performance or other demand, all such demands being hereby expressly
waived by the Pledgor. All such sales shall be at such commercially
reasonable price or prices as the Company shall deem best. Upon any such sale
or sales the Pledged Stock so purchased shall be held by the purchaser
absolutely free from any claims or rights of whatsoever kind or nature,
including any equity of redemption and any similar rights, all such equity of
redemption and any similar rights being hereby expressly waived and released
by the Pledgor. The proceeds of any such sale or sales, together with any
other additional collateral security at the time received and held hereunder,
shall be received and applied: first, to the payment of all costs and
expenses of such sale, including reasonable attorneys' fees; second, to the
payment of the Secured Obligation, and any surplus thereafter remaining shall
be paid to the Pledgor or to whomever may be legally entitled thereto
(including, if applicable, any subordinated creditor of the Pledgor).
The Pledgor recognizes that the Company may be unable to effect a
public sale of all or a part of the Pledged Stock by reason of certain
prohibitions contained in the Securities Act of 1933, but may be compelled to
resort to one or more private sales to a restricted group of purchasers, each
of whom will be obligated to agree, among other things, to acquire such
Pledged Stock for its own account, for investment and not with a view to the
distribution or resale thereof. The Pledgor acknowledges that private sales
so made may be at prices and upon other terms less favorable to the seller
than if such Pledged Stock were sold at public sales, and that the Company has
no obligation to delay sale of any such Pledged Stock for the period of time
necessary to permit such Pledged Stock to be registered for public sale under
the Securities Act of 1933. The Pledgor agrees that any such private sales
shall not be deemed to have been made in a commercially unreasonable manner
solely because they shall have been made under the foregoing circumstances.
10. Collection of Amounts Payable on Account of Pledged Stock, etc.
Upon the occurrence of any Event of Default, the Company may, but without
obligation to do so, demand, xxx for and/or collect any money or property at
any time due, payable or receivable, to which it may be entitled hereunder, on
account of or in exchange for any of the Pledged Stock and shall have the
right, for and in the name, place and stead of the Pledgor, to execute
endorsements, assignments or other instruments of conveyance or transfer with
respect to all or any of the Pledged Stock.
11. Care of Pledged Stock in Company's Possession. Beyond the exercise
of reasonable care to assure the safe custody of the Pledged Stock while held
hereunder, the Company shall have no duty or liability to collect any sums due
in respect thereof or to protect or preserve rights pertaining thereto, and
shall be relieved of all responsibility for the Pledged Stock upon
surrendering the same to the Pledgor.
12. Waivers, etc. The Pledgor hereby waives presentment, demand,
notice, protest and, except as is otherwise provided herein, all other demands
and notices in connection with this Agreement or the enforcement of the
Company's rights hereunder or in connection with the Secured Obligation or any
Pledged Stock; consents to and waives notice of the granting of renewals,
extensions of time for payment or other indulgences to the Company or the
Pledgor or to any third party, or substitution, release or surrender of any
collateral security for the Secured Obligation, the addition or release of
persons primarily or secondarily liable on the Secured Obligation or on any
collateral security for the Secured Obligation, the acceptance of partial
payments on the Secured Obligation or on any collateral security for the
Secured Obligation and/or the settlement or compromise thereof. No delay or
omission on the part of the Company in exercising any right hereunder shall
operate as a waiver of such right or of any other right hereunder. Any waiver
of any such right on any one occasion shall not be construed as a bar to or
waiver of any such right on any future occasion. The Pledgor further waives
any right he may have under the constitution of The Commonwealth of
Massachusetts or under the Constitution of the United States of America, to
notice (other than any requirement of notice provided herein) or to a judicial
hearing prior to the exercise of any right or remedy provided by this
Agreement to the Company and waives his rights, if any, to set aside or
invalidate any sale duly consummated in accordance with the foregoing
provisions hereof on the grounds (if such be the case) that the sale was
consummated without a prior judicial hearing. The Pledgor's waivers under
this section have been made voluntarily, intelligently and knowingly and after
the Pledgor has been apprised and counseled by his attorneys as to the nature
thereof and his possible alternative rights.
13. Termination; Assignment, etc. This Agreement and the security
interest in the Pledged Stock created hereby shall terminate when the Secured
Obligation has been paid and finally discharged in full. No waiver by the
Company or by any other holder of the Secured Obligation of any default shall
be effective unless in writing nor operate as a waiver of any other default or
of the same default on a future occasion. In the event of a sale or
assignment by the Company of all or any of the Secured Obligation held by it,
the Company may assign or transfer its rights and interest under this
Agreement in whole or in part to the purchaser or purchasers thereof,
whereupon such purchaser or purchasers shall become vested with all of the
powers and rights of the Company hereunder, and the Company shall thereafter
be forever released and fully discharged from any liability or responsibility
hereunder with respect to the rights and interest so assigned.
14. Reinstatement. Notwithstanding the provisions of section 13, this
Agreement shall continue to be effective or be reinstated, as the case may be,
if at any time any amount received by the Company in respect of the Secured
Obligation is rescinded or must otherwise be restored or returned by the
Company upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or the Pledgor or upon the appointment of any
intervenor or conservator of, or trustee or similar official for, the Company
or the Pledgor or any substantial part of their respective properties, or
otherwise, all as though such payments had not been made.
15. Restrictions on Transfer, etc. To the extent that any restrictions
imposed by the charter or by-laws of the Company or any other document or
instrument would in any way affect or impair the pledge of the Pledged Stock
hereunder or the exercise by the Company of any right granted hereunder,
including, without limitation, the right of the Company to dispose of the
Pledged Stock upon the occurrence of an Event of Default, the Pledgor hereby
waives such restrictions and the Pledgor hereby agrees that he will take any
further action which the Company may reasonably request in order that the
Company may obtain and enjoy the full rights and benefits granted to the
Company by this Agreement free of any such restrictions.
16. Notices. Except as otherwise provided herein, all notices to the
Pledgor or to the Company shall be in writing and shall be deemed to have been
sufficiently given or served for all purposes hereof if personally delivered
or mailed by first class mail, postage prepaid, as follows:
(a) if to the Pledgor:
Xxxxxxxxx X. Xxxxxx
c/o Aseco Corporation
000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Company:
Aseco Corporation
000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Xx.
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
or at such other address as the party to whom such notice is directed may have
designated in writing to the other party hereto. A notice shall be deemed to
have been given upon the earlier to occur of (i) three (3) days after the date
on which it is deposited in the U.S. mails or (ii) receipt by the party to
whom such notice is directed.
17. Miscellaneous. This Agreement shall inure to the benefit of and be
binding upon the Company and the Pledgor and their respective successors and
assigns, and the term "Company" shall be deemed to include any other holder or
holders of the Secured Obligation. In case any provision in this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
18. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement,
including the validity hereof and the rights and obligations of the parties
hereunder, shall be construed in accordance with and governed by the laws of
The Commonwealth of Massachusetts. The Pledgor, to the extent that he may
lawfully do so, hereby consents to service of process, and to be sued, in The
Commonwealth of Massachusetts and consents to the jurisdiction of the courts
of The Commonwealth of Massachusetts and the United States District Court for
the District of Massachusetts, as well as to the jurisdiction of all courts to
which an appeal may be taken from such courts, for the purpose of any suit,
action or other proceeding arising out of any of his obligations hereunder or
with respect to the transactions contemplated hereby, and expressly waives any
and all objections he may have as to venue in any such courts. The Pledgor
further agrees that a summons and complaint commencing an action or proceeding
in any of such courts shall be properly served and shall confer personal
jurisdiction if served personally or by certified mail to him at his address
provided in section 16 hereof or as otherwise provided under the laws of The
Commonwealth of Massachusetts. The Pledgor irrevocably waives all right to a
trial by jury in any suit, action or other proceeding instituted by or against
the Pledgor in respect of his obligations hereunder or the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument as of the date first above written.
By:_________________________________
Xxxxxxxxx X. Xxxxxx
ASECO CORPORATION
By:_________________________________
Xxxx X. Xxxxxx, Xx., President
DS1-255696
