STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT dated as of April 24, 2000 is made
and entered into by and between BIOSPECIFICS TECHNOLOGIES CORP., a Delaware
corporation (the "Company"), and XXXXX X. XXXXXX (the "Pledgor").
RECITALS
A. The Company has loaned to Pledgor the principal sum of
eight hundred sixty five thousand three hundred ninety four dollars ($865,394)
(the "Principal Amount") and simultaneously herewith the Pledgor is delivering
to the Company a Recourse Secured Promissory Note of the Pledgor (the "Recourse
Note") evidencing such loan.
B. The Pledgor wishes to grant further security and assurance
to the Company in order to secure all of the Pledgor's obligations under the
Recourse Note, including, without limitation, the prompt payment when due of the
principal of and interest on the Recourse Note (collectively, the
"Obligations"), by pledging to the Company, simultaneously with the Pledgor's
delivery of the Recourse Note, the common stock of the Company owned by Pledgor
or his affiliates in the amount equal to 200% of the Principal Amount of the
Recourse Note (the "Shares"), based upon the closing price of the Company's
common stock ended on the date first above written.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Pledge. The Pledgor hereby delivers to the Company the
Shares and the certificates evidencing the same (together with any securities to
be delivered to the Pledgor pursuant to Section 2(b) hereof, the "Pledged
Securities"), and hereby grants to the Company a first priority security
interest in the Pledged Securities and in any other property to be delivered to
the Pledgor pursuant to Section 2(b) hereof (collectively, the "Pledged
Collateral") as collateral security for the prompt and complete payment when due
(whether at the stated maturity, acceleration or otherwise) of the Obligations.
1
The Pledgor hereby delivers to the Company appropriate undated
security transfer powers duly executed in blank for the Shares and will deliver
appropriate undated security transfer powers duly executed in blank for any
additional Pledged Securities to be pledged hereunder from time to time
hereafter.
The Pledgor shall immediately upon request by the Company and
in confirmation of the security interests hereby created, execute and deliver to
the Company such further instruments, deeds, transfers, assurances and
agreements in form and substance as the Company shall request, including any
financing statements and amendments thereto, or any other documents required
under New York law or any other applicable law, to protect the security
interests created hereunder.
2. Administration of Security. The following provisions shall
govern the administration of the Pledged Collateral:
(a) So long as no Event of Default has occurred and
is continuing (as used herein, "Event of Default" shall mean the occurrence of
any Event of Default under the Recourse Note), the Pledgor shall be entitled to
act with respect to the Pledged Collateral in any manner not inconsistent with
this Stock Pledge Agreement or the Recourse Note.
(b) If while this Stock Pledge Agreement is in
effect, the Pledgor shall become entitled to receive or shall receive any debt
or equity security certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital, or issued in connection with
any reorganization), option or right, or any other property, whether as a
dividend or distribution or other issuance in respect of, in substitution of, or
in exchange for any Pledged Securities, or any non-cash proceeds from any sale,
transfer or other disposition (collectively, a "Sale") of any Pledged Securities
or any non-cash proceeds from any Sale of any such non-cash proceeds or other
Pledged Collateral, the Pledgor agrees to accept the same as the Company's agent
and to hold the same in trust on behalf of and for the benefit of the Company
and to deliver the same forthwith to the Company in the exact form received,
with the endorsement of the Pledgor when necessary and/or appropriate undated
security transfer powers duly executed in blank, to be held by the Company,
subject to the terms of this Stock Pledge Agreement, as additional collateral
security for the Obligations.
2
Notwithstanding the foregoing, it is agreed that the Pledgor
may exercise any option or right received as contemplated in the preceding
sentence, and the Company will exercise any such option or right upon receipt of
written instructions to that effect and any required payments or documents from
the Pledgor, and the securities received upon such exercise of any such option
or right shall thereafter be held by the Company as contemplated by the
preceding sentence.
(c) Subject to any Sale by the Company of the Pledged
Collateral pursuant to this Stock Pledge Agreement, the Pledged Collateral shall
be returned to the Pledgor upon payment in full of all Obligations.
(d) The Company's sole duty with respect to the
custody, safekeeping and physical preservation of any of the Pledged Collateral
in its possession shall be to deal with them in the same manner as the Company
deals with similar securities and property for its own account. Neither the
Company nor any of its directors, officers, employees or agents shall be liable
for failure to demand, collect or realize upon any of the Pledged Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any of the Pledged Collateral upon the request of the Pledgor or
otherwise.
3. Remedies in Case of an Event of Default.
(a) In case an Event of Default shall have occurred
and be continuing, the Company shall have in each case all of the remedies of a
secured party under the New York Uniform Commercial Code, and, without limiting
the generality of the foregoing, shall have the right, in its sole discretion,
to sell, resell, assign and deliver all or, from time to time, any part of the
Pledged Collateral, or any interest in or option or right to purchase any part
thereof, on any securities exchange on which the Pledged Securities or any of
them may be listed (in the case of Pledged Securities), at any private sale or
at public auction, with or without demand of performance or other demand,
advertisement or notice of the time or place of sale or adjournment thereof or
otherwise (except that the Company shall give ten days' notice to the Pledgor of
the time and place of any sale pursuant to this Section 3), for cash, on credit
or for other property, for immediate or future delivery, and for such price or
prices and on such terms as the Company shall, in its sole discretion,
determine, the Pledgor hereby waiving and releasing any and all right or equity
of redemption whether before or after sale hereunder. At any such sale the
Company may bid for and purchase the whole or any part of the Pledged Collateral
so sold free from any such right or equity of redemption.
3
The Company shall apply the proceeds of any such sale first to
the payment of all costs and expenses, including reasonable attorneys' fees,
incurred by the Company in enforcing its rights under this Stock Pledge
Agreement, and second to the payment of accrued and unpaid interest on and then
of unpaid principal of the Recourse Note, and thereafter to the payment of any
other Obligations, and the Pledgor shall continue to be liable for any
deficiency.
(b) The Pledgor recognizes that the Company may be
unable to effect a public sale of all or a part of any Pledged Securities
constituting part of the Pledged Collateral by reason of certain prohibitions
contained in the Securities Act of 1933 or in the rules and regulations
promulgated thereunder or in applicable state securities or "blue sky" laws, but
may be compelled to resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire the
Pledged Securities for their own account, for investment and not with a view to
the distribution or resale thereof. The Pledgor agrees that private sales so
made may be at prices and on other terms less favorable to the seller than if
the Pledged Securities were sold at public sale, and that the Company has no
obligation to delay the sale of the Pledged Securities for the period of time
necessary to permit the registration of the Pledged Securities for public sale
under the Securities Act of 1933 and under applicable state securities or "blue
sky" laws. The Pledgor agrees that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(c) If any consent, approval or authorization of any
state, municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or disposition by the Company pursuant to this
Section 3 of the Pledged Collateral, the Pledgor will execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization and will otherwise use the
Pledgor's best efforts to secure the same.
4. Pledgor's Obligations Not Affected. The obligations of the
Pledgor under this Stock Pledge Agreement shall remain in full force and effect
without regard to, and shall not be impaired or affected by: (a) any
subordination, amendment or modification of or addition or supplement to the
Recourse Note, or any assignment or transfer of any thereof; (b) any exercise or
non-exercise by the Company or any affiliate of the Company of any right,
remedy, power or privilege under or in respect of this Stock Pledge Agreement,
the Recourse Note, or any waiver of any such right, remedy, power or privilege;
4
(c) any waiver, consent, extension, indulgence or other action
or inaction in respect of this Stock Pledge Agreement, the Recourse Note, or any
assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, of the Company, whether or
not the Pledgor shall have notice of any of the foregoing.
5. Transfer by Pledgor. The Pledgor will not sell, assign,
transfer or otherwise dispose of, grant any option with respect to, or mortgage,
pledge or otherwise encumber any of the Pledged Collateral or any interest
therein. In the event of a sale, assignment, or transfer, the Pledged Securities
so sold, assigned, transferred or otherwise disposed of shall be released from
the pledge hereunder and the proceeds shall be applied as set forth in the
Recourse Note and in this Stock Pledge Agreement.
6. Attorney-in-Fact. The Company is hereby appointed the
attorney-in-fact of the Pledgor for the purpose of carrying out the provisions
of this Stock Pledge Agreement and taking any action and executing any
instrument which the Company reasonably may deem necessary or advisable to
accomplish the purposes hereof, including, without limitation, the execution of
the agreements, financing statements and other instruments described in Section
1 hereof, which appointment as attorney-in-fact is irrevocable as one coupled
with an interest.
7. Termination. Upon payment in full of all Obligations and
upon the due performance of and compliance with and subject to all the
provisions of the Recourse Note, this Stock Pledge Agreement shall terminate and
the Pledgor shall be entitled to the return of such of the Pledged Collateral as
has not theretofore been sold, released or otherwise applied pursuant to the
provisions of this Stock Pledge Agreement, and the Company shall file UCC-3
termination statements terminating its security interest in any Pledged
Collateral with respect to which any financing statement had been filed by the
Company.
8. Notices. All notices or other communications required or
permitted to be given hereunder shall be delivered, if to the Pledgor or to the
Company, c/o BioSpecifics Technologies Corporation, 00 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxx Xxxx 00000, or to such other address as an addressee may hereafter specify
for such purpose to the other party.
9. Binding Effect, Successors and Assigns. This Stock Pledge
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors.
5
10. Miscellaneous. The Company shall have no obligation in
respect of the Pledged Collateral under this Stock Pledge Agreement, except to
hold and dispose of the same in accordance with the terms of this Stock Pledge
Agreement. Neither this Stock Pledge Agreement nor any provision hereof may be
amended, modified, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
amendment, modification, waiver, discharge or termination is sought. The
captions in this Stock Pledge Agreement are for convenience of reference only
and shall not define or limit the provisions hereof. This Stock Pledge Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of New York, without regard to the conflicts of law rules thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Stock
Pledge Agreement to be executed and delivered on the date first above written.
BIOSPECIFICS TECHNOLOGIES
CORP.
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary, Treasurer
PLEDGOR
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
6
