EXHIBIT 10.32
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement") is made as of __________,
2002 by and between __________ (the "Pledgor") and NexPrise, Inc., a Delaware
corporation ("Secured Party").
RECITALS
A. Pledgor has borrowed money from Secured Party, and delivered to
Secured Party a Secured Promissory Note, dated as of the date hereof (the
"Note") to evidence such loan. Pledgor desires to secure the obligations under
the Note with the property described on attached Exhibit A (the "Pledged
Collateral").
B. Capitalized terms not otherwise defined herein have the meanings
given to them in the Note, and if not defined in the Note, such terms shall have
the meanings given to those terms in the California Uniform Commercial Code (the
"UCC").
NOW, THEREFORE, Pledgor and Secured Party agree as follows:
1. Pledge of Collateral.
(a) Pledgor hereby pledges to Secured Party and grants to
Secured Party a security interest in the Pledged Collateral, as security for the
prompt performance of all of Pledgor's obligations with respect to, or arising
out of, the Note and this Agreement (the "Obligations").
(b) Any certificate or certificates for the securities included
in the Pledged Collateral, accompanied by an instrument of assignment duly
executed in blank by Pledgor, have been, or will be immediately upon the receipt
thereof by Pledgor, delivered by Pledgor to Secured Party.
(c) Pledgor hereby irrevocably authorizes Secured Party at any
time and from time to time to file in any filing office in any Uniform
Commercial Code jurisdiction any initial financing statements and amendments
thereto that (a) indicate the Pledged Collateral regardless of whether any
particular asset comprised in the Pledged Collateral falls within the scope of
Division 9 of the UCC or the Uniform Commercial Code of such jurisdiction, and
(b) contain any other information required by part 5 of Division 9 of the UCC or
the Uniform Commercial Code of such other jurisdiction for the sufficiency or
filing office acceptance of any financing statement or amendment.
2. Representations, Warranties and Covenants. Pledgor represents and
warrants to and covenants with Secured Party that:
(a) The Pledged Collateral is owned by Pledgor free and clear of
any security interests, liens, encumbrances, options or other restrictions,
except for the security interest in favor of Secured Party created hereby;
(b) Pledgor has full power and authority to create a first
priority lien on and security interest in the Pledged Collateral in favor of
Secured Party and no disability or contractual obligation exists that would
prohibit Pledgor from pledging the Pledged Collateral pursuant to this
Agreement;
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(c) Pledgor is the sole owner of the Pledged Collateral and has
not and will not assign, create or permit to exist any other claim to, lien or
encumbrance upon, security interest in or any interest in any of the Pledged
Collateral;
(d) Pledgor's rights in the Pledged Collateral are fully vested;
(e) The current market value of the Pledged Collateral
consisting of Stock, as defined in Exhibit A hereto, as of the date hereof, is
$___________;
(f) No portion of the proceeds of the Note, have been, or will
at any time be, used, directly or indirectly, for personal, family, or household
purposes;
(g) Pledgor is solvent and is able to pay Pledgor's debts as
they mature or become due;
(h) All certificates or instruments representing or evidencing
the Pledged Collateral together with an undated but executed stock transfer form
shall be promptly delivered to Secured Party and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to
Secured Party;
(i) Pledgor agrees that at any time and from time to time,
Pledgor will promptly execute and deliver all further instruments and documents,
and take all further action, as may be reasonably requested by Secured Party to
effect the purposes of this Agreement, including in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Pledged Collateral; and
(j) Pledgor shall use Pledgor's best efforts to obtain financing
from a third party, including Pledgor's broker, for the purpose of refinancing
the Obligations prior to October 31, 2002.
3. Voting Rights, Dividends, etc.
During the term of this Agreement, and as long as no Event of
Default has occurred and is continuing:
(a) Voting Rights. Pledgor shall be entitled to exercise any and
all voting and other consensual rights pertaining to any of the Stock or any
part thereof for any purpose not inconsistent with the terms of this Agreement;
provided, however, no vote shall be cast or any consent, waiver or ratification
given or any action taken which could have the effect of impairing the value of
the Collateral or any part thereof or the position or interest of Secured Party
therein.
(b) Dividends. Pledgor shall be entitled to receive and retain
any and all dividends and distributions paid in respect of the Stock
(collectively, the "Distributions"); provided, however, that any and all:
(i) dividends and distributions paid or payable other
than in cash in respect of, and any and all additional shares or instruments and
other property received, receivable, or otherwise distributed in respect of, or
in exchange for, any Stock;
(ii) dividends and distributions paid or payable in cash
in respect of any Stock in connection with a partial or total liquidation or
dissolution, merger, consolidation or
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reorganization of any Corporation or any exchange of stock, conveyance of
assets, or similar corporate reorganization; and
(iii) cash paid with respect to, payable, or otherwise
distributed on redemption of, or in exchange for, any Stock,
shall be forthwith delivered to Secured Party to hold as Collateral and shall,
if received by Pledgor, be received in trust for the benefit of the Secured
Party, be segregated from the other property or funds of Pledgor, and be
forthwith delivered to Secured Party as Collateral in the same form as so
received (with any necessary endorsement), and, if deemed appropriate by Secured
Party, Pledgor shall take such actions as Secured Party may require.
(c) Proxy Statements. Secured Party shall execute and deliver
(or cause to be executed and delivered) to Pledgor all such proxies and other
instruments as Pledgor may reasonably request for the purposes of enabling
Pledgor to exercise those voting and other rights that Pledgor is entitled to
exercise and to receive those dividends or distributions that Pledgor is
authorized to receive and retain.
PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS SECURED PARTY THE
PROXY AND ATTORNEY-IN-FACT OF PLEDGOR, COUPLED WITH AN INTEREST, WITH FULL POWER
OF SUBSTITUTION TO DO SO; SUCH PROXY SHALL CONTINUE IN FULL FORCE AND EFFECT AND
TERMINATE ONLY UPON THE INDEFEASIBLE PAYMENT IN FULL OF THE OBLIGATIONS.
4. Events of Default. Each of the following shall constitute an
event of default ("Event of Default") hereunder:
(a) The occurrence of an event of default under the Note as
defined therein; or
(b) The breach of any provision of this Agreement by Pledgor or
the failure by Pledgor to observe or perform any of the provisions of this
Agreement.
5. Secured Party's Remedies Upon Default.
(a) If an Event of Default shall have occurred and be
continuing, (i) Secured Party shall have the right to receive any and all cash
dividends, payments or other Proceeds paid in respect of the Pledged Collateral
and make application thereof to the Obligations, and (ii) any or all of the
Pledged Collateral shall be registered in the name of Secured Party or its
nominee, and Secured Party or its nominee may thereafter exercise (x) all rights
pertaining to such Pledged Collateral at any meeting of shareholders of the
relevant issuer or issuers or otherwise and (y) any and all rights of
conversion, exchange and subscription and any other rights, privileges or
options pertaining to such Pledged Collateral as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Collateral upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any issuer, or upon the exercise by Pledgor or Secured Party of any
right, privilege or option pertaining to such Pledged Collateral, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Collateral with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as Secured Party may
determine), all without liability except to account for property actually
received by it, but Secured Party shall have no duty to Pledgor to exercise any
such right, privilege or option and shall not be responsible for any failure to
do so or delay in so doing. Secured Party shall have all of the rights of a
secured party under the UCC in effect from time to time in the relevant
jurisdiction.
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(b) Pledgor recognizes that Secured Party may be unable to
effect a public sale of any or all the Pledged Collateral, by reason of certain
prohibitions contained in federal securities laws and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof.
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. Secured Party
shall be under no obligation to delay a sale of any of the Pledged Collateral
for the period of time necessary to permit the issuer thereof to register such
securities for public sale under federal securities laws or under applicable
state securities laws, even if such issuer would agree to do so.
(c) After the disposal of any of the Pledged Collateral, Secured
Party may deduct all reasonable legal and other expenses and attorney's fees for
protecting its interests and enforcing its remedies under the Notes and this
Agreement and shall apply the residue of the proceeds to, or hold as a reserve
against, the Obligations in such manner as Secured Party in its reasonable
discretion shall determine, and shall pay the balance, if any to Pledgor.
6. Power of Attorney. Pledgor hereby appoints Secured Party, its
attorney-in-fact to prepare, sign (if applicable) and file or record, for
Pledgor in Pledgor's name, any financing statements, applications for
registration and like papers and to take any other action deemed by Secured
Party necessary or desirable in order to perfect the security interest of
Secured Party hereunder, to dispose of any Pledged Collateral, and to perform
any obligations of Pledgor hereunder, but without obligation to do so.
7. Choice Of Law And Venue; Jury Trial Waiver.
This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of California, without regard to principles of
conflicts of laws. Each of Pledgor and Secured Party hereby submits to the
jurisdiction of the state and Federal courts located in the County of Santa
Xxxxx, State of California. PLEDGOR AND SECURED PARTY EACH HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREIN, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES
AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO
ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.
8. General Provisions.
(a) Successors and Assigns. This Agreement shall bind and inure
to the benefit of the respective successors and permitted assigns of each of the
parties; provided, however, that neither this Agreement nor any rights hereunder
may be assigned by Pledgor without Secured Party's prior written consent.
(b) Amendments in Writing, Integration. This Agreement cannot be
amended or terminated orally. All prior agreements, understandings,
representations, warranties, and negotiations
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between the parties hereto with respect to the subject matter of this Agreement,
if any, are merged into this Agreement and the Note.
(c) Counterparts. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, shall be deemed to be an original, and all
of which, when taken together, shall constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
Secured Party:
NEXPRISE, INC.
By: ________________________________________
Xxx Xxxxxxxx
Title: President and Chief Executive Officer
Pledgor:
_____________________________
____________________________________________
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EXHIBIT A
All present and future rights and interests in, to and under:
1. _______________ shares of the Common Stock of NexPrise, Inc., a Delaware
corporation, represented by Certificate No. CS-______ (the "Stock"),
2. all interest, dividends (including cash dividends), increases, profits,
new financial assets or other increments, distributions, property or
rights of any kind received by Pledgor on account of the Stock
(including redemption proceeds) whether by way of dividends,
recapitalizations, mergers, consolidations, split-ups, combinations or
exchanges of shares or otherwise;
3. all other income received in connection therewith and all substitutions,
products and proceeds of the foregoing (whether cash or non-cash
proceeds).
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