Exh - 10.24
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated September 20, 1995 between Xxxx X. Xxxxxx
(the "Pledgor") and Uniquip Corporation, a Delaware corporation (the
"Pledgee").
WHEREAS, the Pledgee has made a loan to the Pledgor in order to permit
the Pledgor to acquire certain shares of common stock of the Pledgee
described in Schedule 1 hereto, which loan is evidenced by a Promissory Note
of the Pledgor of even date herewith;
WHEREAS, the Pledgee requires the Pledgor, as a condition to making the
aforementioned loan, to enter into this Stock Pledge Agreement.
NOW, THEREFORE, in consideration of the making of such loan, the
Pledgor hereby agrees with the Pledgee as follows:
SECTION 1. PLEDGE. To secure the due and punctual payment by the
Pledgor of the Liabilities (as hereinafter defined), the Pledgor hereby
pledges, hypothecates, assigns, transfers, sets over and delivers unto the
Pledgee and hereby grants to the Pledgee a security interest in the following:
(i) the shares of stock specified in Schedule 1 hereto and all
other shares of stock of the Pledgee hereafter acquired by the
Pledgor (herein collectively called the "Pledged Shares") and the
certificates representing the Pledged Shares, and all cash,
securities, interest, dividends, options, rights and other
property at any time and from time to time received, receivable
or otherwise distributed in respect of, or in exchange for, any
or all of the Pledged Shares;
(ii) all other property hereafter delivered to the Pledgee in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
property and all cash, securities, interest, dividends, options,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof; and
(iii) all proceeds of any of the foregoing (the Pledged Shares
and all such additional shares, certificates, instruments, cash,
securities, interest, dividends, options, rights and other
property being herein collectively called the "Collateral").
The term "Liabilities," as used herein shall mean all
obligations and liabilities of the Pledgor to the Pledgee under
the Promissory Note of the Pledgor of even date herewith.
SECTION 2. CERTAIN RIGHTS REGARDING COLLATERAL AND LIABILITIES.
(a) The Pledgee shall not be liable for its failure to collect or
realize upon the Liabilities or any collateral, security or guaranty
therefor, or any part thereof, or for any delay in so doing, nor shall the
Pledgee be under any obligation to take any action whatsoever with respect
thereto.
(b) The Pledgee may from time to time, after any portion of the
Liabilities shall become due and payable, without notice to the Pledgor, (i)
transfer all or any part of the Collateral into the name of the Pledgee or
its nominee, with or without disclosing that such Collateral is subject to
the lien and security interest granted hereby, (ii) enforce collection of any
of the Collateral, and surrender, release or exchange all or any part
thereof, or compromise or extend or renew for any period (whether or not
longer than the original period) any obligations of any nature of any party
with respect thereto, (iii) resort to the Collateral for payment of any
portion of the
Liabilities whether or not it shall have resorted to any other property
securing payment of any portion of the Liabilities or shall have proceeded
against any party primarily or secondarily liable on any portion of the
Liabilities and (iv) take control of any proceeds of the Collateral.
SECTION 3. DIVIDENDS, ETC.
(a) So long as no portion of the Liabilities shall be due and payable,
the Pledgor shall be entitled to vote the Pledged Shares, to give consents,
waivers and ratifications in respect of the Pledged Shares and to receive and
retain cash dividends made on or in respect of the Pledged Shares; provided,
however, that any and all cash, stock and/or liquidating dividends,
distributions in property, returns of capital or other distributions made on
or in respect of the Pledged Shares resulting from a subdivision, combination
or reclassification of the outstanding capital stock of the issuer thereof or
received in exchange for the Pledged Shares or any part thereof or as a
result of any merger, consolidation, acquisition or other exchange of assets
to which the issuer thereof may be a party or otherwise, and any and all cash
and other property received in exchange for any Collateral shall be and
become part of the Collateral pledged hereunder and, if received by the
Pledgor, shall be held by the Pledgor in trust on behalf of and for the
benefit of the Pledgee and shall forthwith be delivered to the Pledgee or its
designated nominee (accompanied, if appropriate, by proper instruments of
assignment and/or stock powers executed by the Pledgor in accordance with the
Pledgee's instructions) to be held subject to the terms of this Agreement;
and provided further that no vote shall be cast or consent, waiver or
ratification given or action taken which would impair the Collateral or the
security interests granted hereby.
(b) Upon the nonpayment, when due, of any portion of the Liabilities,
all rights of the Pledgor pursuant to Section 3(a) hereof shall, at the
election of the Pledgee, cease, and the Pledgee shall have the sole and
exclusive right and authority to vote, to give consents, waivers and
ratifications, and receive all dividends and distributions pursuant to
Section 3(a) hereof.
SECTION 4. REMEDIES. In the event that any portion of the Liabilities
is not paid when due, the Pledgee, without demand of performance or other
demand, advertisement or notice of any kind (except the notice specified
below of time and place of public or private sale) to or upon the Pledgor or
any other person (all and each of which demands, advertisements, and/or
notices being hereby expressly waived by the Pledgor), may forthwith collect,
receive, appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, assign, give options to purchase, contract to sell
or otherwise dispose of and deliver the Collateral, or any part thereof, in
one or more parcels at public or private sales, at any exchange or broker's
board or at any of the Pledgee's offices or elsewhere, upon such terms and
conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery, without assumption of any
credit risk, with the right upon any such sale, public or private, to
purchase the whole or any part of the Collateral so sold, free of any right
or equity of redemption in the Pledgor, which right or equity is hereby
expressly waived and released by the Pledgor. The Pledgee shall apply the
net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of
every kind incurred therein or incidental to the care, safekeeping or
otherwise of any and all of the Collateral or in any way relating to the
rights of the Pledgee hereunder (including reasonable attorney's fees and
legal expenses), to the payment in whole or in part of the Liabilities in
such order as it may elect, and only after such application of such net
proceeds and after the payment in full of the Liabilities by the Pledgee and
any other amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the Uniform Commercial Code, need the
Pledgee account for the surplus, if any, to the Pledgor. The Pledgor agrees
that the Pledgee need not give more than ten days' notice of the time and
place of any public sale or of the time after which a private sale or other
intended disposition is to take place and that such notice is reasonable
notification of such matters. No
2
notification need be given the Pledgor if, after any portion of the
Liabilities is not paid when due, it shall have signed a statement renouncing
or modifying any right to notification of any sale or other intended
disposition. The Pledgee shall not be obligated to make any sale pursuant to
any such notice. The Pledgee may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be
made at any time or place to which the same may be so adjourned. In case of
any sale of all or any part of the Collateral on credit or for future
delivery, the Collateral so sold may be retained by the Pledgee until the
selling price is paid by the purchaser thereof, but the Pledgee shall incur
no liability in the case of the failure of such purchaser to take up and pay
for the Collateral so sold and in case of any such failure such Collateral
may again be sold on like notice. The Pledgee, however, instead of
exercising the power of sale herein conferred upon it, may proceed by a suit
at law or in equity to foreclose the pledge and security interest under this
Agreement and sell the Collateral, or any part thereof, under a judgment or
decree of a court of competent jurisdiction. In addition to the rights and
remedies granted to it in this Agreement and in any other instrument or
agreement securing, evidencing or relating to any portion of the Liabilities,
the Pledgee shall have all the rights and remedies of a secured party under
the Uniform Commercial Code. The Pledgor further agrees to waive and agrees
not to assert any rights or privileges which it may acquire under Section
9-112 of the Uniform Commercial Code.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Pledgor
represents and warrants that (a) the Pledgor is the legal record and
beneficial owner of, and has good and marketable title to, the Pledged
Shares, subject to no perfected lien whatsoever except the lien created by
this Agreement; (b) no consent of any other person (including, without
limitation, his creditors) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing
or declaration with, any governmental authority, domestic or foreign, is
required to be obtained by him in connection with the execution, delivery or
performance of this Agreement; (c) the execution, delivery and performance of
this Agreement will not violate any provision of any applicable law or
regulation, or of any order, judgment, writ, award or decree of any court,
arbitrator or governmental authority, domestic or foreign, or of any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking to which the Pledgor is a party or which purports to be binding
upon the Pledgor or upon any of the Pledgor's assets, and will not result in
the creation or imposition of any lien on any of the Pledgor's assets except
as contemplated by this Agreement; and (d) the Pledgor has delivered to the
Pledgee the Pledged Shares, with the certificates therefor duly endorsed in
blank or accompanied by stock powers duly endorsed in blank, and the pledge,
assignment and delivery of the Pledged Shares pursuant to this Agreement
creates a valid lien on and a perfected security interest in the Pledged
Shares, and the proceeds thereof, subject to no prior lien, or to any
agreement purporting to grant to any third party a security interest in the
Pledgor's property or assets which would include the Pledged Shares. The
Pledgor covenants and agrees that the Pledgor will not sell, assign,
transfer, exchange or otherwise dispose of, or grant any option with respect
to, the Collateral, nor will the Pledgor create, incur or permit to exist any
perfected lien with respect to any part of the Collateral, or any interest
therein, or any proceeds thereof, except for the lien created by this
Agreement, without the prior written consent of the Pledgee; and the Pledgor
further covenants and agrees that the Pledgor will defend the Pledgee's
right, title and security interest in and to the Collateral and the proceeds
thereof against the claims and demands of all persons; and the Pledgor
further covenants and agrees to deliver to the Pledgee from time to time on
request such stock powers and similar documents, satisfactory in form and
substance to the Pledgee, with respect to the Collateral as the Pledgee may
request.
3
SECTION 6. SALE OF THE PLEDGED SHARES.
(a) The Pledgor recognizes that the Pledgee may be unable to effect a
public sale of any or all of the Pledged Shares by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, but may be compelled
to resort to one or more private sales thereof to a restricted group of
purchasers who 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. The Pledgor acknowledges and agrees that any
such private sale may result in prices and other terms less favorable to the
seller than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall not be deemed to have
been made in commercially unreasonable manner by virtue of its private
nature. The Pledgee shall be under no obligation to delay a sale of any of
the Pledged Shares for the period of time necessary to permit the issuer
thereof to register such securities for public sale under the Securities Act
or under applicable state securities laws even if the issuer would agree to
do so.
(b) The Pledgor further agrees to do or cause to be done all such other
acts and things as may be necessary to make such sale or sales of any portion
or all of the Pledged Shares valid and binding and in compliance with any and
all applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales, all at
the Pledgor's expense.
SECTION 7. FURTHER ASSURANCE. The Pledgor agrees that, at any time and
from time to time upon the written request of the Pledgee, it will execute
and deliver such further documents and do such further acts and things as the
Pledgee may reasonably request in order to effect the purposes of the
Agreement.
SECTION 8. AUTHORITY OF PLEDGEE.
(a) The Pledgee is hereby appointed the attorney-in-fact of the Pledgor
for the purpose of carrying out the provisions of this Agreement and taking
any action and executing any instruments which the Pledgee may deem necessary
or advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest, provided that
no action may be taken by the Pledgee pursuant to such appointment so long as
the Liabilities are not yet due and payable. Without limiting the generality
of the foregoing, the Pledgee shall have the right and power to receive,
endorse and collect all checks made payable to the order of the Pledgor
representing any dividend or other distribution in respect of the Collateral
or any part thereof and to give full discharge for the same.
(b) The Pledgee shall have and be entitled to exercise all such powers
hereunder as are specifically delegated to the Pledgee by the terms hereof,
together with such powers as are incidental thereto. The Pledgee may execute
any of its duties hereunder by or through agents or employees and shall be
entitled to retain counsel and to act in reliance upon the advice of such
counsel concerning all matters pertaining to its duties hereunder. Neither
the Pledgee, nor any director, officer or employee of the Pledgee, shall be
liable for any action taken or omitted to be taken by it or them hereunder or
in connection herewith, except for its or their own gross negligence or
willful misconduct. The Pledgor hereby agrees to reimburse the Pledgee, on
demand, for all reasonable expenses incurred by the Pledgee in connection
with the enforcement of this Agreement (including expenses incurred by any
agent employed by the Pledgee) and agrees to indemnify and hold harmless the
Pledgee and/or any such agent from and against any and all liability incurred
by the Pledgee or such agent hereunder or in connection herewith, unless such
liability shall be due to willful misconduct or negligence on the part of the
Pledgee or such agent.
4
SECTION 9. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10. NO WAIVER, CUMULATIVE REMEDIES. The Pledgee shall not by
any act, delay, omission or otherwise be deemed to have waived any of its
rights, powers or remedies hereunder and no waiver shall be valid unless in
writing, signed by the Pledgee, and then only to the extent therein set
forth. A waiver by the Pledgee of any right, power or remedy hereunder on
any one occasion shall not be construed as a bar to the exercise of any
right, power or remedy which the Pledgee would otherwise have on any future
occasion. No failure to exercise, nor any delay in exercising, on the part
of the Pledgee any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The rights, powers and
remedies herein provided are cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights, powers or remedies
provided by law.
SECTION 11. NOTICES. All notices, demands, requests and other
communications provided for or permitted under this Agreement shall be in
writing, either delivered in hand or sent by registered first class mail,
postage prepaid, or by facsimile with answer-back, addressed, if to the
Pledgor, to Xxxx X. Xxxxxx at his address as reflected in the records of the
Pledgee and, if to the Pledgee, to Chairman, Uniquip Corporation, 0000
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 or to such other
address as the party to receive any such notice, demand, request or
communication may have designated by written notice to the other party, which
notice complies as to delivery with the terms of this Section 11.
SECTION 12. TERMINATION. Upon payment in full of the Liabilities in
accordance with their terms and the performance by the Pledgor of all of the
Pledgor's obligations under this Agreement, this Agreement shall terminate
and the Pledgor shall be entitled to the return, at the Pledgor's expense, of
such of the Collateral in the possession or control of the Pledgee as may
have been pledged by the Pledgor under this Agreement and which has not
theretofore been disposed of pursuant to the provisions hereof.
SECTION 13. MISCELLANEOUS. This Agreement and all obligations of the
Pledgor hereunder shall be binding upon his successors and assigns, and
shall, together with the rights, powers and remedies of the Pledgee
hereunder, inure to the benefit of the Pledgee and its successors and assigns.
SECTION 14. AMENDMENTS; APPLICABLE LAW. None of the terms or provisions
of this Agreement may be amended except by an instrument in writing, duly
executed by the Pledgee. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without regard to the
conflicts of laws principles of such jurisdiction.
5
IN WITNESS WHEREOF, the Pledgor and the Pledgee have duly executed and
delivered this Agreement on the day and year first above written.
PLEDGOR
/s/ Xxxx X. Xxxxxx
-----------------------------
Xxxx X. Xxxxxx
PLEDGEE
UNIQUIP CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: VP
6
SCHEDULE 1
ISSUER OF CERTIFICATE NUMBER OF
PLEDGED SHARES CLASS NUMBER SHARES
-------------- ----- ----------- ---------
Uniquip Corporation Common 7 7,500
Stock
7
