EXHIBIT 10.3
STOCK PLEDGE AGREEMENT
THIS AGREEMENT is between EUCENE WELDING COMPANY, a Michigan corporation
(the "Corporation" and the "Debtor") and XXXXXXX XXXXXXX (the "Secured Party"),
and XXXXXXX & CO., P.C., a Michigan professional corporation ("Escrow Agent").
This Agreement shall be effective April 2, 2004.
BACKGROUND:
Debtor and Secured Party are parties to a certain Stock Redemption
Agreement, dated April 2, 2004 (the "Redemption Agreement"). Debtor has issued
Secured Party a promissory note. To secure payment of the note and performance
of certain other obligations, Debtor is granting Secured Party a security
interest in certain shares of stock upon the terms and conditions of this
Agreement.
THEREFORE, the parties agree as follows:
1. Pledge of Stock. For valuable consideration, the receipt of which is
hereby acknowledged, Debtor hereby pledges and grants a security interest to
Secured Party in certain "Stock" described in Section 2 and the following
property, to secure Debtor's payment or performance of the "Obligations" defined
in Section 3: (a) all securities, security entitlements and other financial
assets, instruments, and other property ("additional property") at any time
received or receivable by Debtor by reason of any stock dividend, stock split,
recapitalization, reclassification, merger, consolidation, liquidation,
exchange, renewal, redemption, substitution, or other transaction regarding the
Stock or regarding any additional property; (b) all dividends, interest, and
other distributions at any time received or receivable by Debtor with respect to
any of the Stock or any additional property; and (c) all proceeds of the
foregoing. The foregoing properties and proceeds are referred to in this
agreement as "Collateral."
2. Stock. The "Stock" being pledged is six (6) shares of the common stock
of the Corporation which the Debtor redeemed from the Secured Party.
3. Obligations. For purposes of this Agreement, the "Obligations" of
Debtor are the following:
3.1 Debtor's obligation to pay a promissory note (the "Note") dated
effective April 2, 2004, issued to Secured Party, in the original principal
amount of Six Hundred Seventy Thousand ($670,000) according to its terms,
including any acceleration provisions; it shall be a default of the Note
obligations if any guaranty that now or in the future secures payment or
performance of the Note is terminated or limited for any reason, without the
written consent or agreement of Secured Party;
3.2 Debtor's representations, warranties, covenants and obligations
under the Redemption Agreement.
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XXX, XXXXXXX & GIARMARCO, P.C.
000 Xxxx Xxx Xxxxxx Xxxx, Xxxxx 0000, Xxxx, Xxxxxxxx 00000-0000
000-000-0000
3.3 Debtor's representations, warranties, covenants and obligations
under this Agreement.
4. Debtor's Representations, Warranties, and Covenants. Debtor represents,
warrants and covenants the following:
4.1 Authority to Grant Security interest. Debtor is a corporation
validly organized and existing under the Laws of the State of Michigan, and Its
Board of Directors has authorized Debtor to enter into this Agreement. The
pledge of the Collateral pursuant to this Agreement does not violate the terms
of any contract or agreement to which Debtor is a party, or any decision, order
or judgment of any court, administrative agency or other governmental body.
4.2 Title to, Condition, and Use of Collateral. Debtor owns the
Collateral free and clear of all encumbrances, security interests, liens,
adverse claims, or other claims in favor of any third party, or any right or
option of any third party to purchase or acquire any of the Collateral, and will
keep the Collateral free and clear of all encumbrances, security interests,
liens, adverse claims, or other claims in favor of any third party, or any right
or option of any third party to purchase or acquire any of the Collateral during
the term of this Agreement, except for the security interest granted under this
Agreement. Debtor has the unqualified right to transfer the Collateral to
Secured Party.
4.3 Miscellaneous. Debtor will periodically execute financing
statements (UCC-1), continuation statements, or other documents reasonably
requested by Secured Party, if necessary or appropriate to perfect, continue, or
maintain the priority of the security interest in the Collateral granted to
Secured Party under this Agreement or necessary to place the additional property
comprising the Collateral to the Escrow Agent.
5. Agreements of Debtor. Debtor agrees that:
5.1 Debtor will promptly sign and deliver to the Escrow Agent all
stock powers, bond powers, assignments, endorsements, powers of attorney,
agreements instructions to issuers, securities intermediaries, and other
parties, and other documents that Secured Party may from time to time request to
perfect Secured Party's security interest in the Collateral or to facilitate
transfer of the Collateral.
5.2 Debtor will not sell, lease, transfer, or assign any Collateral
or any interest in any Collateral or permit any Collateral to be transferred by
operation of law.
5.3 Debtor will pay promptly when due all taxes and assessments upon
the Collateral or for its use or ownership.
5.4 Debtor will furnish Secured Party with such information
regarding the Collateral as Secured Party may request and will allow Secured
Party at any reasonable time to inspect Debtor's records regarding the
Collateral.
5.5 Debtor will promptly deliver to the Escrow Agent all
certificates and other instruments or documents evidencing title or rights to
the Collateral, including certificates and other instruments and documents that
Debtor receives in the future.
5.6 Debtor will immediately notify Secured Party in writing of any
change in Debtor's name, identity, or corporate structure and of any change in
the location of Debtor's chief executive office or state of incorporation.
6. Holding and Delivery of the Collateral.
6.1 Pursuant to the Redemption Agreement, the Secured Party shall
assign the Stock to Debtor by means of an assignment separate from certificate.
Debtor shall, in turn, execute an assignment separate from certificate for
purposes of this stock pledge to transfer the Stock to the
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XXX, XXXXXXX & GIARMARCO, P.C.
000 Xxxx Xxx Xxxxxx Xxxx, Xxxxx 0000, Xxxx, Xxxxxxxx 00000-0000
000-000-0000
Page 3
Debtor in the event of a default. Debtor shall also execute and deliver to the
Escrow Agent all stock powers, bond powers, assignments, endorsements, powers of
attorney, agreements instructions to issuers, securities intermediaries, and
other parties, and other documents that Secured Party may from time to time
request to perfect Secured Party's security interest in the Collateral or to
facilitate transfer of the Collateral. The stock certificate representing the
Stock (the "Certificate"), both assignments of stock separate from certificate,
and all other documents executed by the Debtor regarding the Collateral
(collectively the "Documents") shall be delivered to the Escrow Agent. Escrow
Agent shall hold and deliver the Documents pursuant to the terms and conditions
of this Agreement.
6.2 Escrow Agent shall hold and deliver the Documents as follows:
(a) Upon full payment or performance of the Obligations,
Debtor shall deliver written notice to Escrow Agent and Secured Party of the
full payment or performance of the Obligations by Debtor. Unless Escrow Agent
shall have received a written statement from Secured Party contesting the full
payment or performance of the Obligations within 30 days of the date Debtor
delivered written notice to the Secured Party, Escrow Agent deliver the
Documents to Debtor, free and clear of the restrictions of this Agreement.
(b) Upon written notice by Secured Party delivered to Escrow
Agent and Debtor that Debtor is in default under any of the Obligations and that
the default has continued beyond any applicable cure period, and demand for
delivery by Secured Party, Escrow Agent shall deliver the Documents to Secured
Party unless Escrow Agent shall have received a written statement contesting
these facts from Debtor within 30 days of the date Secured Party delivered
written notice to Debtor.
6.3 If either Debtor or Secured Party objects to the delivery of the
Documents under Subsection 6.2, Escrow Agent shall be entitled to continue to
hold the Documents until the dispute is resolved either by the written agreement
of the parties or by order of a court of competent jurisdiction.
6.4 While Escrow Agent holds the Documents, and prior to any notice
of Debtor's default under any of the Obligations, Debtor shall be deemed the
owner of the Stock and it shall be treated as redeemed and canceled by the
Corporation.
6.5 Upon the delivery of the Documents, this Agreement and the
security interest in the Collateral shall terminate.
6.6 Escrow Agent is acting merely as a depository. Escrow Agent
shall have no responsibility for the authenticity of any notice, protest, or
other document presented to it, or any signatures on any such notice, protest,
or other document. Escrow Agent shall have no liability for its performance or
failure to perform under this Agreement, except for its gross negligence or
intentional misconduct and failure to exercise good faith.
6.7 Escrow Agent shall be paid no fee for its services rendered
under this Agreement.
6.8 Debtor and Secured Party, jointly and severally, agree to
reimburse Escrow Agent for all expenses it incurs as a result of any litigation
or other legal proceedings related to the Collateral or this Agreement,
including actual attorney fees.
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XXX, XXXXXXX & GIARMARCO, P.C.
000 Xxxx Xxx Xxxxxx Xxxx, Xxxxx 0000, Xxxx, Xxxxxxxx 00000-0000
000-000-0000
Page 4
7. Remedies. Secured Party shall have all of the rights and remedies of a
secured party under applicable laws. Without limiting those rights and remedies,
if all or any part of the Obligations are not performed including the Note being
paid at maturity:
7.1 Secured Party will have the right, but no obligation, without
notice to Debtor and without Debtor's consent, to vote or give any consent with
regard to any of the Collateral consisting of securities and to enter into
extensions, reorganizations, mergers, consolidations, or other agreements
relating to the securities and, in connection with the transaction, to deposit
or surrender control of any of the securities, to accept other property or money
in exchange for them, and to take any other actions regarding the securities
that Secured Party considers desirable.
7.2 Secured Party shall have the right, but no obligation, to revoke
and terminate any or all rights that Secured Party shall have given to Debtor or
permitted Debtor to retain, to control any uncertificated security, security
entitlement, or securities account included in the Collateral.
7.3 Secured Party will have the right, but no obligation, to
exercise and enforce any or all of Debtor's rights and remedies with respect to
the Collateral, including, but not limited to, the right to demand, enforce
payment of, collect, and receive all dividends, interest, principal payments,
and other sums at any time owing with respect to any of the Collateral, and to
apply the sums to the indebtedness in the manner that Secured Party determines.
7.4 Secured Party may sell or otherwise dispose of the Collateral in
any commercially reasonable manner. Any notification required to be given by
Secured Party to Debtor regarding any sale or other disposition of Collateral
shall be considered reasonable if mailed at least ten days before the sale or
other disposition.
7.5 The proceeds of any collection or disposition of collateral
shall be applied first to Secured Party's attorney fees and expenses, as
provided in Section 8, and then to the Obligations, in the manner that Secured
Party shall determine, and Debtor shall be liable for any remaining deficiency.
7.6 All rights and remedies of Secured Party shall be cumulative
and may be exercised from time to time.
8. Expenses. Debtor shall reimburse Secured Party on demand for all
attorney fees, legal expenses, and other expenses that Secured Party incurs in
protecting and enforcing Secured Party's rights under this agreement. This
includes fees and expenses incurred in trying to obtain possession of the
Collateral, a trustee or receivor in bankruptcy, or any other person. Secured
Party may apply any proceeds of collection or disposition of the collateral to
Secured Party's reasonable attorney fees, legal expenses, and other expenses.
9. Miscellaneous.
9.1 Notices. Any notice under this Agreement shall be in writing,
and shall be deemed sufficient if delivered personally, mailed by certified or
registered mail, return receipt requested, or sent via facsimile if receipt is
acknowledged. Notice shall be deemed to have been given when personally
delivered, two business days after having been mailed by certified or registered
mail, return receipt requested, or one business day after acknowledgment of
receipt of notice via facsimile transmission.
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XXX, XXXXXXX & GIARMARCO, P.C.
000 Xxxx Xxx Xxxxxx Xxxx, Xxxxx 0000, Xxxx, Xxxxxxxx 00000-0000
000-000-0000
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9.2 Governing Law. This Agreement shall be governed by Michigan law.
9.3 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective heirs, personal
representatives, successors and any permitted assigns.
9.4 Extensions, Modifications and Waivers. This Agreement may be
modified or amended only by the written agreement of the parties. No waiver of
any breach of any provision of this Agreement shall constitute a waiver of any
preceding or succeeding breach of the same provision. No extension of the time
for performance of any obligation or other act shall be deemed to be an
extension of the time for the performance of any other obligation or any other
act.
9.5 Number and Gender. Where appropriate, words that reflect the
masculine, feminine, or neuter gender shall be construed to also reflect the
other genders; and words that reflect either the singular or plural shall also
be construed to reflect the other.
9.6 Attorney Fees. The prevailing party in any litigation or
arbitration under this Agreement shall be entitled to its reasonable costs,
including attorney fees.
SECURED PARTY AND DEBTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES HIS AND ITS
RIGHT TO A TRIAL BY JURY IN ANY ACTION, INCLUDING ANY CLAIM, COUNTERCLAIM,
CROSS-CLAIM OR THIRD-PARTY CLAIM ("CLAIM") THAT IS BASED UPON, ARISES OUT OF, OR
RELATES TO THIS PLEDGE AGREEMENT OR THE OBLIGATIONS, INCLUDING, WITHOUT
LIMITATION, ANY CLAIM BASED UPON, ARISING OUT OF, OR RELATING TO ANY ACTION OR
INACTION OF SECURED PARTY IN CONNECTION WITH ANY ACCELERATION OF THE NOTE OR ANY
ENFORCEMENT OF SECURED PARTY'S SECURITY INTEREST IN THE COLLATERAL.
Date: April 2, 2004
CORPORATION & DEBTOR: SECURED PARTY:
XXXXXX WELDING COMPANY
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
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By: Xxxxxxx Xxxxxxx
Its: President & CEO
ESCROW AGENT:
XXXXXXX & CO., P.C.
/s/ Xxxxx Xxxxxx
--------------------------------
By: Xxxxx Xxxxxx
Its: PRINCIPAL
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XXX, XXXXXXX & GIARMARCO, P.C.
000 Xxxx Xxx Xxxxxx Xxxx, Xxxxx 0000, Xxxx, Xxxxxxxx 00000-0000
000-000-0000
