STOCK PLEDGE AGREEMENT
This is a Stock Pledge Agreement (this "Pledge Agreement") dated as of
September 18, 1995, between Xxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxxx (the
"Shareholders"), and UniDial Incorporated, a Kentucky corporation (the
"Lender").
Recitals
The Shareholders wish to secure the payment and performance of their
obligations under the Loan Agreement, the Revolving Credit Note (as that term is
defined in the Loan Agreement), the Security Agreement, and the other documents
listed in Section 3 of this Pledge Agreement by granting to the Lender a
security interest in the Pledged Shares (as defined below).
1. Definitions. As used in this Agreement, unless otherwise defined in
this Agreement, the terms defined in the Loan Agreement shall have the
meaning given them there; and the following terms shall have the
following meanings:
(a) "Loan Agreement" shall mean the loan agreement dated as of
September 18, 1995, between the Lender and UniQuest.
(b) "Lender" shall mean UniDial Incorporated.
(c) "Loan" shall mean the loan made by the Lender to UniQuest on the
terms and conditions of the Loan Agreement.
(d) "Pledged Shares" shall mean all of the shares in which the
Lender has a security interest pursuant to Section 2 (a) of this
Agreement and any proceeds and products thereof.
(e) "Secured Obligations" shall mean the obligations secured by this
Agreement and described in Section 3 of this Agreement
(f) "UniQuest" shall mean UniQuest Communications, Inc.
2. Grant of Security Interest.
(a) The Shareholders grant to the Lender a security interest in and
pledge to the Lender all of their right, title and interest in
and to 9300 shares (representing 93%) of the authorized, issued
and outstanding shares of UniQuest common stock, and any capital
stock of UniQuest issued in the future. The Shareholders further
grant to the Lender a security interest in any stock rights,
rights to subscribe, liquidating dividends, stock dividends,
dividends paid in stock, new securities, or any other property
to which the Shareholders are or may hereafter become entitled
to receive on account of the Pledged Shares. If the Shareholders
receive additional property of such nature, they shall
immediately deliver such property to the Lender to be held by
the Lender in the same manner as the Pledged Shares, pledged
previously pursuant to this Pledge Agreement.
(b) The Shareholders grant a further security interest to the Lender
in the proceeds or products by any sale or other disposition of
the Pledged Shares.
3. Obligations Secured. The security interests created hereby secure the
payment and performance of all of the following Secured Obligations:
(a) any and all indebtedness of UniQuest to the Lender evidenced by the
Revolving Credit Note, and all obligations contained in the Revolving
Credit Note; (b) all of the obligations, agreement, covenants and
representations of UniQuest contained in the Loan Agreement, (c) all of
the obligations, agreements, covenants and representations of UniQuest
contained in the Security Agreement, and any other related document,
whether or not now or hereafter evidenced by any note, instrument or
other writing; (d) any and all indebtedness of the Shareholders
contained in and evidenced by the Guaranty Agreements, and (e) any and
all indebtedness, obligation or liability of the Shareholders and/or
UniQuest to the Lender, however evidenced, direct or indirect, absolute
or contingent, whether now existing or hereafter arising.
4. Representations and Warranties. To induce the Lender to enter into the
Loan Agreement and this Agreement, the Shareholders represent and
warrant as follows:
(a) The Shareholders have full right, power and authority to enter
into and perform their obligations under this Agreement, and
this Agreement has been duly entered into and delivered and
constitutes a legal, valid and binding obligation of the
Shareholders enforceable in accordance with its terms.
(b) The Shareholders have good and marketable title to the Pledged
Shares subject to no lien, charge, pledge, encumbrance, claim or
security interest other than the security interest created by
this Agreement and the Security Agreement.
(c) The Pledged Shares are properly issued and constitute 93% of the
issued and outstanding shares of UniQuest.
(d) The Shareholders have not entered into any stock restriction or
purchase agreement with respect to the Pledged Shares which
would in any way restrict the sale, pledge or other transfer of
the Pledged Shares of or any interest in or to the Pledged
Shares.
5. Duration of Security Interest. The Lender and its successors and
assigns shall hold the Pledged Shares and security interest created
hereby upon the terms of this Agreement, and this security interest
shall continue until the Secured Obligations have been paid in full.
The Lender may at any time deliver the Pledged Shares or other
collateral, or any part thereof, to the Shareholders. The receipt
thereof by the Shareholders shall be a complete and full discharge of
the Lender concerning the Pledged Shares so delivered, and the Lender
shall thereafter be discharged from any liability or responsibility
therefore.
6. Maintaining Freedom from Liens. UniQuest and the Shareholders shall
keep the Pledged Shares free and clear of liens and shall pay all
amounts, including taxes, assessments or charges, which might result in
a lien against the Pledged Shares if left unpaid, unless the
Shareholders at their own expense are contesting such amount in good
faith by an appropriate proceeding timely instituted which shall
operate to prevent the collection or satisfaction of the lien or amount
so contested. If the Shareholders fail to pay such amounts and are not
contesting the validity or amount thereof in accordance with the next
preceding sentence, the Lender may, but is not obligated to, pay such
amounts, and such payment shall be conclusive evidence of the legality
or validity thereof. The Shareholders shall promptly reimburse the
Lender for any such payments, and until reimbursement, such payments
shall be a part of the Secured Obligations.
7. Certain Rights and Obligations Respecting Pledged Shares.
(a) The Shareholders shall continue to be the owners of the Pledged
Shares so long as no Default has occurred, and during that time
may exercise their voting rights with respect to the Pledged
Shares (but only for purposes not inconsistent with the
covenants, obligations and purposes of this Agreement) and
receive distributions with respect to the Pledged Shares.
(b) The Shareholders shall not sell, transfer or attempt to sell or
transfer any of the Pledged Shares, or any part thereof or
interest therein, without the express prior written consent of
the Lender. Any such consent of the Lender shall not constitute
the release by the Lender of its interest in the Pledged Shares.
Any such sale or transfer shall transfer the Pledged Shares
subject to the security interest of the Lender.
(c) Without the Lender's prior written consent, which will not be
unreasonably withheld, the Shareholders shall not permit or
cause UniQuest to issue any capital stock other than the capital
stock issued and outstanding on the date of this Agreement. If
for any reason any Person (including the Shareholders) acquires
any interest in any capital stock of any of UniQuest in addition
to the Pledged Shares, the Shareholders shall, and shall cause
the acquiror to immediately deliver to the Lender certificates
representing the shares acquired, together with stock powers
relating to those shares (properly executed in blank), to be
held by the Lender pursuant to Sections 2(a) and 2(b) of this
Agreement. If any such Person has not entered into a pledge
and/or security agreement on terms identical to this Agreement,
such Person shall do so concurrently with his delivery to the
Lender of those certificates.
(d) Upon a Default, the Lender may, without notice to the
Shareholders, exercise all voting rights and privileges
whatsoever with respect to the Pledged Shares, and collect and
retain all dividends or other sums and/or distributions now or
hereafter payable on or on account of any of the Pledged Shares.
To that end the Shareholders hereby constitute any officer of
the Lender as their proxy and attorney-in-fact for all purposes
of voting the Pledged Shares at any annual, regular or special
meeting of the shareholders of UniQuest. This appointment shall
be deemed coupled with an interest and is and shall be
irrevocable until all of the Secured Obligations have been fully
paid and terminated. All personas shall be conclusively entitled
to rely upon the Lender's oral or written certification that it
is entitled to vote the Pledged Shares hereunder. The
Shareholders shall execute and deliver to the Lender any
additional proxies and powers of attorney that the Lender may
desire in order to vote more effectively the Pledged Shares in
its own name. In addition to any other voting rights, the Lender
may (1) vote the Pledged Shares to remove one or more of the
directors and/or officers of UniQuest; (2) vote the Pledged
Shares to elect new directors and officers of any UniQuest who
shall thereafter manage the affairs of UniQuest and operate its
properties and carry on its business and otherwise take any
action with respect hereto as it shall deem necessary and
appropriate; (3) vote the Pledged Shares to liquidate UniQuest
and/or any of its subsidiaries and/or businesses; and (4) vote
the Pledged Shares to authorize the borrowing of money in the
name of UniQuest and the pledge of the assets to secure any such
borrowings.
8. Default. The happening of any Event of Default (as defined in the Loan
Agreement), or the Shareholder's breach of any obligation, covenant or
condition of this Agreement, shall constitute a Default under this
Agreement.
9. Remedies. Upon any Default the Lender may at its option declare any and
all of the Secured Obligations to be immediately due and payable, and
in addition to exercising all other rights or remedies, proceed to
exercise with respect to the Pledged Shares all rights, options and
remedies of a secured party upon default as provided for under the
Uniform Commercial Code as then in effect in the Commonwealth of
Kentucky. The rights of the Lender upon a Default shall include,
without limitation, the following:
(a) The right to immediate possession of any Pledged Shares not then
in the Lender's possession, without requirement of notice or
demand or any legal process. In exercising this right, the
Lender may enter into the premises of UniQuest without
requirement of any legal process.
(b) The right to sell part or all of the Pledged Shares at public or
private sale in one or more lots. The Lender shall be entitled
to apply the proceeds of any such sale to the satisfaction of
the Secured Obligations and to expenses incurred in realizing
upon the Pledged Shares in accordance with the Uniform
Commercial Code.
(i) In the case of any sale by the Lender of the Pledged
Shares or any portion thereof on credit for future
delivery, which may be elected at the sole option and in
the complete discretion of the Lender, the Pledged
Shares so sold may, at Lender's option, either be
delivered to the purchaser or retained by the Lender
until the selling price is paid by the purchaser, but in
either event the Lender shall incur no liability in case
of failure of the purchaser to take up and pay for the
Pledged Shares so sold. In case of any such failure,
such Pledged Shares may again be sold by the Lender in
the manner provided in this Section.
(ii)After deducting all its reasonable costs and expenses
of every kind, including without limitation, legal fees,
registration fees required by law (Securities and
Exchange Commission and other) and expenses, if any, the
Lender shall apply the residue of the proceeds of any
sale or sales of the Pledged Shares to the Revolving
Credit note and other obligations of the shareholders to
the Lender under this Agreement, the Loan Agreement, the
Security Agreement or the other related documents, in
the order or priority elected by the Lender. The Lender
shall not incur any liability as a result of the sale of
the Pledged Shares at any private sale or sales, and the
Shareholders hereby waive any claim arising by reason of
(A) the fact that the price or prices for which the
Pledged Shares, or any portion thereof, is sold at such
public sale or sales is less than the price which would
have been obtained at a private sale or sales, or is
less than the amount due and the Lender accepted the
first offer received and did not offer the Pledged
Shares, or portion thereof, to more than one offeree; or
(B) any delay by the Lender in selling the Pledged
Shares following a Default hereunder, even if the value
of the Pledged Shares thereafter declines; or (C) the
immediate sale of the Pledged Shares upon the occurrence
of a Default hereunder even if the holder shall remain
jointly and severally liable for any deficiency
remaining due under this Agreement or other related
documents.
(c) The right to recover the reasonable expenses of preparing for
the sale of and selling the Pledged Shares, and other like
expenses, together with court costs and reasonable attorney's
fees incurred.
(d) The right to transfer the Pledged Shares, or any part of them,
into the Lender's name to facilitate the Lender's exercise of
other rights or remedies with respect to them.
(e) The right to proceed by appropriate legal process at law or in
equity (i) to enforce any provision of this Agreement or in aid
of the execution of any power of sale; or (ii) for foreclosure
of the security interest of the Lender; or (iii) for the sale of
any of the Pledged Shares under the judgment or decree of any
court.
10. Remedies Cumulative. The rights and remedies of the Lender shall be
deemed to be cumulative, and any exercise of any right or remedy shall
not be deemed to be an election of that right or remedy to the
exclusion of any other right or remedy
11. Delivery of Pledged Shares. The Shareholders shall deliver to the
Lender certificates representing all of the Pledged Shares, together
with stock powers properly executed in blank upon execution of this
Agreement, and the Shareholders shall deliver to the Lender all other
Pledged Shares hereinafter acquired to the Lender immediately upon
receipt thereof.
12. Further Assurances. The Shareholders shall sign such financing
statements, assignments of stock separate from certificate, or other
documents or instruments as the Lender may reasonably request from time
to time to more fully create, perfect, continue, maintain or terminate
the rights and security interest intended to be granted or created
pursuant to this Pledge Agreement.
13. Notice.
(a) Any requirement of the Uniform Commercial Code of reasonable
notice (not waived pursuant to this Agreement) shall be met if
such notice is mailed, postage prepaid, to UniQuest or, as the
case may be, to such other party to whom notice is required, at
least five days before the time of sale, disposition or other
event or thing giving rise to the requirement of notice.
(b) All notices or communications under this Agreement shall be in
writing and shall be delivered or mailed to the parties
addressed as follows, and any notices so addressed and mailed by
registered mail shall be deemed to have been given when mailed.
(i) If to UniQuest Communications, Inc.:
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxxxx
With a copy to:
Xxx X. Xxxxxx, Esq.
Suite 700
000 Xxxx Xxxxxxxx
Xxxx Xxxx Xxxx, XX 00000
(ii) If to the Lender:
UniDial Incorporated
00000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
With a copy to:
Xxxxx, Xxxx & Heyburn PLLC
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Mr. C. Xxxxxx Xxxxxxxxx
14. Waiver. Any forbearance, failure or delay by the Lender in the exercise
of any right, power or remedy hereunder shall not be deemed a waiver of
that right, power or remedy, and any single or partial exercise of any
right, power or remedy shall not preclude the further exercise thereof.
Every right, power and remedy of the Lender shall continue in full
force and effect until such right, power or remedy is specifically
waived in a written instrument signed by the Lender.
15. Severability. If any part, term or provision of this Agreement is held
by any court to be illegal or in conflict with any law applicable to
this Agreement, the rights and obligations of the parties shall be
construed and enforced as if this Agreement did not contain that
particular part, term or provision.
16. Headings. The headings in this Agreement have been included for ease of
reference only, and shall not be considered in the construction or
interpretation of this Agreement.
17. Benefit. This Pledge Agreement shall inure to the benefit of the Lender
and its successors and assigns, and all obligations of the Shareholders
shall bind their respective successors and assigns.
18. Governing Law/Forum. This Pledge Agreement shall be governed by and
construed in accordance with the laws, including without limitation the
conflicts of laws rules, of the Commonwealth of Kentucky. Any legal
action or proceeding with respect to this Pledge Agreement may be
brought in the Courts of the State of Kentucky in and for the County of
Jefferson or the United States of America for the Eastern District of
Kentucky. By execution of this Agreement, both UniDial and UniQuest
hereby submit to such jurisdiction, hereby expressly waiving whatever
rights may correspond to either of them by reason of their present or
future domicile.
19. Pledge Agreement Governs. If any term, condition or provision of this
Pledge Agreement conflicts in any way with any term, condition or
provision of the Loan Agreement, the term, condition or provision of
this Pledge Agreement shall govern.
20. Counterparts.
(a) This Agreement may be signed by each party upon a separate copy,
and in such case one counterpart of this Agreement shall consist
of enough of such copies to reflect the signature of each party.
(b) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms thereof
to produce or account for more than one of such counterparts.
IN WITNESS WHEREOF, the Shareholders and the Lender have signed this Agreement
as of the date set forth in the Preamble hereto, but actually on the date(s) set
forth below.
SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxx
Date: 2/24/96
---------------------
STATE OF UTAH
COUNTY OF SALT LAKE
The foregoing instrument was acknowledged before me by Xxxxxx X. Xxxxxxxxx, on
February 24, 1996.
/s/ Xxxx Xxxxxxx
-------------------------------
Notary Public
Commission expires: May 30, 1999
/s/ Xxxxx X. Xxxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxxx
Date: 2/24/96
--------------------------
STATE OF UTAH
COUNTY OF SALT LAKE
The foregoing instrument was acknowledged before me by Xxxxx X. Xxxxxxxxxx, on
February 24, 1996.
/s/ Xxxx Xxxxxxx
----------------------------------
Notary Public
Commission expires: May 30, 1999
LENDER:
UNIDIAL INCORPORATED
By /s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxxx
Date: 2/6/96
STATE OF KENTUCKY
COUNTY OF JEFFERSON
The foregoing instrument was acknowledged before me by Xxxxxxx X. Xxxxxx the
Secretary/Treasurer of UniDial Incorporated, a Kentucky corporation, on behalf
of the Corporation, on March 6, 1996.
/s/ Xxxxxx X. Xxxx
-----------------------------
Notary Public
Commission expires: August 26, 1998
