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EXHIBIT 5
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT is made effective the 28th day of
November, 1997 (the "Effective Date") by XXXXXX X. XXXXXXXXX and XXXXXXX XXXX
XXXXXXX as "Pledgors," KARNO, SCHWARTZ, XXXXXXXX, XXXXXXX & XXXXXX, A
Partnership Including Professional Corporations as "Pledge Holder," and NORTON
X. XXXXX, TRUSTEE OF THE NORTON X. XXXXX, A PROFESSIONAL CORPORATION, AMENDED
AND RESTATED EMPLOYEES' RETIREMENT PLAN AND TRUST as "Pledgee".
1. PLEDGE. Pledgors hereby deposit with Pledge Holder and do
hereby, as of the Effective Date, pledge to Pledgee, as collateral security for
the payment in full, faithful, true and exact performance and observance of all
of the covenants and conditions of Pledgors as Makers of that certain
Promissory Note of even date herewith in the original principal amount of
$1,022,400, including but not limited to the payment, in full, of all such
indebtedness and any interest thereon, and other sums payable to Pledgee upon
or with respect to such indebtedness (collectively, the "Obligations"),
Pledgors' property (the "Collateral") described as
All of Pledgors' shares of and warrants to purchase shares of
the common stock of Radius, Inc., a California corporation
("Radius"), whether held in the name of either of Pledgors or
held in the name of any other person or entity for the
benefit of Pledgors, or either of them, including but not
limited to any and all shares of and warrants to purchase
shares of Radius common stock acquired by Pledgors or any
other person or entity for the benefit of Pledgors, or either
of them at any time and from time to time after the date
hereof.
2. PRIORITY OF PLEDGE. The within pledge is, or will be upon the
acquisition of such shares and warrants by Pledgors, a first priority lien on
such shares and warrants.
3. POWER OF SALE ON DEFAULT. Pledgors hereby authorize and
empower Pledgee, upon any default of any one or more of the Pledgors in the
prompt payment or due performance of any of the Obligations, at its option and
without notice to Pledgors, except as specifically herein provided, to collect,
sell, assign and deliver, the whole or any part of the Collateral, and to
execute, on Pledgors' behalf all documents required in connection therewith,
including but not limited to any Assignment Separate From Certificate, or any
substitute therefor, or any addition thereto, at public or private sale, for
cash, upon credit, or for future delivery, without the necessity of the
Collateral being present at any such sale, or in view of prospective purchasers
thereof, and without any presentment, demand for performance, protest, notice
of protest, or notice of dishonor, or advertisement, any such demand or
advertisement being expressly waived. Pledgees shall give Pledgors, and each of
them, and the Pledge Holder, ten (10) days' notice by United States mail,
postage prepaid, at the addresses specified herein, of the time and place of
any public or private sale. Upon such sale, Pledgees may become the
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purchaser of the whole or any part of the Collateral sold, discharged from all
claims and free from any right of redemption. The foregoing is hereby made
subject to the following provisions, to wit: That Pledgees shall include in
such notice of the time and place of such sale a statement of the grounds upon
which default(s) is (are) based; and, that during such ten-day period,
Pledgors, or any one or more of them, may cure such default, in which event
said sale shall not be held and it shall be deemed that no such default
occurred.
4. APPLICATION OF PROCEEDS. In case of any sale, transfer or
disposal of the Collateral, whether pursuant to a sale by Pledgees under
Paragraph 3 above, or any sale of all or any portion of Pledgors' interest in
the Collateral (including but not limited to the sale of any call option with
respect to the Collateral), Pledgors covenant and agree that the proceeds
thereof shall first be applied to the payment of the expenses of such sale,
commissions, attorneys' fees and all charges paid or incurred by Pledge Holder
hereunder; second, to the payment of the expenses of such sale, commissions,
attorneys' fees and all charges paid or incurred by Pledgees pertaining to
sale, including any taxes or other charges imposed by law upon the Collateral
and/or the owning, holding or transferring thereof; third, to the payment of
the expenses of such sale, commissions, attorneys' fees and all charges paid or
incurred by Pledgors pertaining to said sale but exclusive of any taxes or
other charges imposed by law upon the owning, holding or transferring of the
Collateral; fourth, to pay, satisfy and discharge the Note (and any other
indebtedness of Pledgors under any of the instruments securing the Note);
fifth, to pay, satisfy and discharge the duties and obligations of Pledgors
pursuant to the Stock Pledge Agreement, and the respective indebtedness secured
thereby, in the order of their respective priority; and sixth, to pay the
surplus, if any, to Pledgors.
5. ADDITIONAL RIGHTS OF PLEDGEES. Pledgee specifically and
expressly reserve the right and remedy to disregard the security hereof, and to
xxx on the principal obligation secured hereby, and expressly declare that its
remedies upon this Stock Pledge Agreement, to cause the sale of the Collateral
at public or private sale in the manner as hereinabove set forth, or to bring
an action of foreclosure and have the Collateral sold at judicial sale, are
cumulative, and in addition to all other remedies that he may possess under the
Uniform Commercial Code. Pledgee shall have the right to recover, as a part of
any judgment in an action of foreclosure, commissions, attorneys' fees, and all
charges and expenses paid or incurred by him in connection with any such
foreclosure sale. Pledgee reserves the right to recover any deficiency judgment
arising from such sale or sales, whether judicial or by way of pledge sale.
However, Pledgee shall not be entitled to recover attorneys' fees and costs if
any default is cured within the ten-day notice period described in Paragraph 3
above.
6. ADDITIONS TO COLLATERAL. Any stock rights, and rights to
subscribe, cash dividends, liquidating dividends, stock dividends, dividends
paid in stock, new securities, or other property, which Pledgors may hereafter
become entitled to receive on account of the Collateral, shall be and become a
part of the Collateral, and in the event that Pledgors shall receive any such,
they represent, warrant, covenant and agree that they will immediately deliver
it to the Pledge Holder to be held by it in the same manner as the Collateral
originally pledged hereunder.
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7. INDEMNITY. In case of any adverse claims in respect to the
Collateral or any portions thereof, arising out of any act done or suffered by
Pledgors, the Pledgors promise and agree to hold harmless and to indemnify
Pledge Holder and Pledgee from and against any losses, liabilities, damages,
expenses, costs and reasonable attorneys' fees incurred in or about defending,
protecting, or prosecuting the security interests hereby created.
8. ADVANCES TO PROTECT COLLATERAL. Pledgors agree to pay, prior
to delinquency, all taxes, liens and assessments against the Collateral, and
upon their failure to do so, Pledgee, at his option, may pay any of them, and
shall be the sole judge of the legality or validity thereof and the amount
necessary to discharge same, and Pledgors' failure to pay same shall be a
default hereunder and the sums so advanced shall be due and payable to Pledgees
together with interest thereon at the rate of twelve percent (12%) per annum
until fully repaid.
9. NON-WAIVER. Any forbearance or failure or delay by Pledgee in
exercising any right, power or remedy hereunder shall not be deemed to be a
waiver of such right, power or remedy, and any single or partial exercise of
any right, power or remedy of Pledgee shall continue in full force and effect
until such right, power or remedy is specifically waived by an instrument in
writing, executed by Pledgee.
10. RELEASE OF COLLATERAL. When the Note shall have been fully
performed and satisfied and Pledgee shall have received payment in full of the
Note and all other sums due under the instruments securing the Note, then, and
only then, this Stock Pledge Agreement shall be canceled and of no further
force and effect, and Pledge Holder shall thereupon deliver to the respective
Pledgors the Collateral free and clear of the lien of this pledge.
11. VOTING RIGHTS. During the term of this Stock Pledge Agreement
and so long as the Pledgors, and each of them, are not in default under the
Obligations, the respective Pledgors shall have the right to vote any shares of
stock pledged hereby on all corporate questions. The foregoing notwithstanding,
Pledgors agree not to vote their shares of Radius stock, in any manner which
would result in a liquidation, dissolution or merger of Radius until such time
as the Obligations are wholly satisfied.
12. SUCCESSOR PLEDGE HOLDER-LIMITATION ON LIABILITY. In the event
that the Pledge Holder becomes incapacitated due to dissolution or disability
so that it is no longer able to act as Pledge Holder, Xxxxxxx X. Xxxxxxxx, A
Professional Corporation, shall thereupon be the Successor Pledge Holder.
Pledgors hereby acknowledge that the Pledge Holder and the Successor Pledge
Holder are affiliated with one another and with Pledgee and after consulting
with independent legal counsel or, having had the opportunity to do so, having
elected not to so consult such counsel, hereby waive all conflicts of interest
arising out of Pledge Holder's and/or the Successor Pledge Holder's performance
of its obligations hereunder. Pledge Holders shall only be liable to Pledgors
for its acts of gross negligence or willful misconduct.
13. PLEDGORS' REPRESENTATION AND WARRANTIES. Pledgors each
represent and warrant that (i) Pledgors now own the Collateral, (ii) Pledgors
have not heretofore
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sold, transferred, conveyed, hypothecated or otherwise assigned any of their
interest in the Collateral to any other person or entity, (iii) unless and
until the Obligations have been fully discharged, each of them will not (a)
issue any replacement stock certificate with respect to the Collateral, or (b)
make any further assignment or pledge of the Collateral, all without Pledgees'
prior written consent.
14. CONSTRUCTION. This Agreement, and all of the rights and
duties in connection therewith, shall be governed by the laws of the State of
Florida, the state in which the loan evidenced by the Note was made, and the
state in which Pledgors maintain their principal residences.
15. NOTICE. Any notice, report or writing required or permitted
to be given hereunder shall be in writing and shall be served by delivering the
same personally either to the other party, or to the agents, officers or other
representatives thereof hereinbelow designated, if any, or by depositing the
notice, contained in a sealed envelope, postage prepaid, in the United States
Postal System as registered or certified mail, with return receipt requested or
as Express Mail. Any and all such notices shall be delivered to the parties at
their respective addresses specified in this paragraph. Any such notice
deposited in the mail shall be conclusively deemed delivered to and received by
the addressee two (2) business days after the deposit in the mail as registered
or certified mail, return receipt requested, or one (1) business day after
deposit in the mail as Express Mail if all of the foregoing conditions of
notice shall have been satisfied and if such notice shall at the time of
mailing have been contained in an envelope addressed as follows:
To Pledgors: Xxxxxx X. Xxxxxxxxx and Xxxxxxx Xxxx Xxxxxxx
0000 Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
To Pledgee: Norton X. Xxxxx, Trustee
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
To Pledge Holder: Karno, Schwartz, Xxxxxxxx, Xxxxxxx & Xxxxxx
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Any party hereto may change its address for the purposes of this paragraph by
giving such other party notice, as provided for herein, of the new address.
16. COUNTERPARTS. This Stock Pledge Agreement may be executed in
counterparts; each thereof is hereby declared to be an original; all, however,
shall constitute but one and the same agreement.
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17. HEIRS AND SUCCESSORS. This Stock Pledge Agreement and all of
its terms and provisions shall be binding upon the heirs, successors,
transferees and assigns of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Stock Pledge
Agreement effective the date first hereinabove set forth.
PLEDGORS:
/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
/s/ Xxxxxxx Xxxx Xxxxxxx
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XXXXXXX XXXX XXXXXXX
PLEDGEE: /s/ Norton X. Xxxxx
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NORTON X. XXXXX, TRUSTEE OF THE
NORTON X. XXXXX, A PROFESSIONAL
CORPORATION, AMENDED AND RESTATED
EMPLOYEES' RETIREMENT PLAN AND
TRUST
PLEDGE HOLDER:
KARNO, SCHWARTZ, XXXXXXXX,
XXXXXXX & XXXXXX, A Partnership
Including Professional Corporations
By: XXXXXXX X. XXXXXXXX, A
Professional Corporation,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX,
President
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