Exhibit 99.8
STOCK PLEDGE AGREEMENT
THIS AGREEMENT, dated this 29th day of September, 1999 by and
between UNITED XXXXXXX CORPORATION, a Colorado corporation (the
"Pledgor"), the only shareholder of PITTSFIELD MOLD & TOOL, INC.,
a Massachusetts corporation (the "Company") and the XXXXXXXX
FAMILY NOMINEE TRUST, Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx,
Trustees, under Declaration of Trust dated February 6, 1996 and
recorded with the Berkshire County (Middle District) Registry of
Deeds in Book 910, Page 800 (collectively referred to as the
"Secured Party");
W I T N E S S E T H :
WHEREAS, the Pledgor and the Secured Party are parties to a
certain Stock Purchase Agreement dated August 27, 1999 (the "Stock
Purchase Agreement") relating to the sale of all of the issued and
outstanding shares (the "Stock") of capital stock of the Company,
pursuant to which Pledgor and the Company are obligated to the
Secured Party;
WHEREAS, the Stock Purchase Agreement provides for the Company
(the "Borrower") to execute a Promissory Note in the principal
amount of $1,750,000.00 and a promissory note in the principal sum
of $2,200,000.00 (collectively referred to as the "Note") and for
the Pledgor to guarantee the Note; and
WHEREAS, Section 8.8 (iii) of the Stock Purchase Agreement
requires Pledgor to execute and deliver this stock pledge
agreement (the "Agreement") and to grant the security interest
hereinafter described.
NOW THEREFORE, in consideration of the willingness of the Secured
Party to enter into the Stock Purchase Agreement and for good and
other valuable consideration the receipt of which is hereby
acknowledged, it is hereby agreed as follows:
1. Security Interest. The Pledgor hereby pledges to the Secured
Party four hundred (400) shares of capital stock of the Company
(the "Pledged Stock"), representing forty (40%) of the Stock,
listed at Schedule "A" attached hereto and does hereby deposit the
Pledged Stock and the certificates representing them with Xxxx X.
Xxxxxx, Xx., as pledge trustee, and the Pledgor hereby grants to
the Secured Party a security interest in the Pledged Stock as
security for due and punctual payment and performance of the
secured obligations described in Section 2 hereof.
2. Secured Obligations. The security interest hereby created shall
secure the due and punctual performance of the following
liabilities and obligations of Borrower, the Company and Pledgor
("Secured Obligations"):
(a) Principal of, and interest on the Note;
(b) Any and all other obligations of the Company or the Pledgor to
the Secured Party under the Stock Purchase Agreement or interest
relating thereto; and
(c) Any and all other indebtedness or obligations of the
Company or the Pledgor to the Secured Party, whether direct or
indirect, absolute or contingent, due or to become due or now
existing or hereafter arising.
3. Special Warranties and Covenants of the Pledgor. The Pledgor
hereby warrants and covenants to the Secured Party that:
(a) The Pledged Stock is duly and validly pledged with the Secured
Party in accordance with law and the Pledgor warrants and will
defend the Secured Party's right, title and security interest in
and to the Pledged Stock against the claims and demands of all
persons whomsoever;
(b) The Pledgor has good title to the Pledged Stock, free and
clear of all claims, mortgages, pledges, liens, security
interests and other encumbrances of every nature whatsoever;
(c) All of the Pledged Stock has been duly and validly issued and
is fully paid and nonassessable;
(d) The Pledged Stock constitutes forty (40%) percent of the
presently issued and outstanding capital stock of the Company;
(e) If any additional shares of capital stock of any class of the
Company (other than the initial acquisition of the six hundred
(600) shares simultaneously acquired) are acquired by the Pledgor
after the date hereof, forty (40%) percent of the same shall
constitute Pledged Stock and shall be deposited and pledged with
the Secured Party as provided in Section 1 simultaneously with
such acquisition;
(f) The Pledgor will not sell, convey or otherwise dispose of any
of the Pledged Stock, nor will the Pledgor create, incur or permit
to exist any pledge, mortgage, lien, charge, encumbrance or any
security interest whatsoever with respect to any of the Pledged
Stock, of the proceeds thereof, other than liens on and security
interests in the Pledged Stock created hereby; and
(g) The Pledgor will not consent to or approve the issuance of
any additional shares of capital stock of any class of the
Company, except to the extent that any such additional shares of
capital stock shall be deposited and pledged with the Secured
Party simultaneously with such issuance as provided in Section 1
hereof.
4. Distributions. In case, upon the dissolution, winding up,
liquidation or reorganization of the Company whether in
bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling
of the assets and liabilities of the Company or otherwise, if any
sum shall be paid or any property shall be distributed upon or
with respect to any of the Pledged Stock, such sum shall be paid
over to the Secured Party to be held as collateral security of the
Secured Obligations. In case any stock dividend shall be
declared on any of the Pledged Stock, or any share of stock or
fraction thereof shall be issued pursuant to any stock split
involving any of the Pledged Stock, or any distribution of capital
(excluding ordinary cash dividends) shall be made on any of the
Pledged Stock, or any property shall be distributed upon or with
respect to the Pledged Stock pursuant to recapitalization or
reclassification of the capital of the Company, the shares or
other property so distributed shall be delivered to the Secured
Party to be held as collateral security for the Secured
Obligations.
5. Events of Default. There shall exist a default under this
Agreement upon the happening of any of the following events or
conditions (herein called "Events or Defaults"):
(a) Default shall be made in the due and punctual payment of any
principal or interest on any of the Secured Obligations as and
when the same shall become due and payable (whether at maturity or
at a date fixed for any prepayment or installment or by
declaration or acceleration or otherwise) and such default shall
continue beyond the expiration of the applicable period of grace,
if any; or
(b) Any other Event of Default (as defined or provided in the
Stock Purchase Agreement or the Note) shall occur; or
(c) A "USC Default" (as defined per a certain Cross-Default Cross-
Collateral Agreement of even date executed by Pledgor and Secured
Party) shall occur; or
(d) A "Change of Control". A Change of Control of Company shall
be deemed to have occurred if: (i) any "person" (as such term is
used in Section 13 (d) and 14 (d) (2) of the Securities Exchange
Act of 1934, as amended) other than Pledgor becomes the beneficial
owner, directly or indirectly, of securities of the Company
representing more than fifty (50%) percent of the aggregate voting
power of all classes of the Company's then outstanding voting
securities; or (ii) the shareholder(s) of the Company approve(s)
(A) a plan of merger, consolidation or share exchange between the
Company and any person or entity other than a merger,
consolidation or other business combination with Pledgor or with
another wholly-owned subsidiary of Pledgor, or (B) a proposal with
respect to the sale, lease, exchange or other disposal of all, or
substantially all, of the Company's property.
6. Rights and Remedies of Secured Party. Upon the occurrence of
any Event of Default, such default not having previously been
remedied or cured, the Secured Party shall have the following
rights and remedies:
(a) All rights and remedies provided by law, including, without
limitation, those provided by the Uniform Commercial Code;
(b) All rights and remedies provided in this Agreement;
(c) All rights and remedies provided in the Stock Purchase
Agreement, or in any other agreement, document or instrument
pertaining to the Secured Obligations, including without
limitation the Cross-Default Cross-Collateral Agreement;
(d) A release of the obligations of Xxxxx X. Xxxxxxxx and Xxxxxxx
X. Xxxxxxxx under the Non Competition Agreements;
(e) Prosecution of the $250,000.00 Letter of Credit referred to
at Section 8.8 (i) of the Stock Purchase Agreement;
(f) Xxxxxx X. Xxxxxxxx shall be entitled to a release of his
obligations under the Employment Agreement; and
(g) All reasonable costs of collection and reasonable attorneys'
fees paid or incurred by Secured Party in enforcing their rights
hereunder.
In addition, Pledgor's breach of this Agreement shall constitute
an Event of Default and a breach by the Company under the
Promissory Note.
7. Right to Transfer into Name of Secured Party, etc.. In case
there shall exist an Event of Default, but subject to the
provisions of the Uniform Commercial Code or other applicable law
the Secured Party may cause all or any of the Pledged Stock to be
transferred into its name or into the name of its nominee or
nominees. So long as no Event of Default shall exist, the
Pledgor shall be entitled to exercise as the Pledgor shall deem
fit, but in a manner not inconsistent with the terms hereof or of
the Secured Obligations, the voting power with respect to the
Pledged Stock.
8. Right of Secured Party to Exercise Voting Power, etc.. In
case there shall exist an Event of Default, the Secured Party
shall be entitled to exercise the voting power with respect to the
Pledged Stock, to receive and retain, as collateral security of
the Secured Obligations, any and all dividends or other
distributions at any time and from time to time declared or made
upon any of the Pledged Stock, and to exercise any and all rights
of payment, conversions, exchange, subscription or any other
rights, privileges or options pertaining to the Pledged Stock as
if it were the absolute owner thereof, including without
limitation, the right to exchange, at its discretion, any and all
of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other readjustment of the
Company or, upon the exercise of any such right, privilege or
option pertaining to the Pledged Stock, and in connection
therewith, to deposit and deliver any and all of the Pledged Stock
with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Secured
Party may determine, all without liability except to account for
property actually received, but the Secured Party shall have no
duty to exercise any of the aforesaid rights, privileges or
options and shall not be responsible for any failure to do so or
delay in so doing.
9. Right of Secured Party to Dispose of Collateral, etc.. Upon
the occurrence of an Event of Default, such default not having
previously been remedied or cured, the Secured Party shall have
the right at any time or times thereafter to sell, resell, assign
and deliver all or any of the Pledged Stock in one or more parcels
at any exchange or broker's board or at public or private sale.
Unless the Pledged Stock is perishable or threatens to decline
speedily in value or is of a type customarily sold at a recognized
market, the Secured Party will give the Pledgor at lest ten (10)
days prior written notice at the address of the Pledgor specified
in Section 16 hereof, of the time and place of any public sale
thereof or of the time after which any private sale or any other
intended disposition thereof is to be made. Any such notice shall
be deemed to meet any requirement hereunder or under any
applicable law (including the Uniform Commercial Code) that
reasonable notification be given of the time and place of such
sale or other disposition. Such notice may be given without any
demand of performance or other demand, all such demands being
hereby expressly waived by the Pledgor. All such sales shall be
at such commercially reasonable price or prices as the Secured
Party shall deem best and either for cash or on credit or for
future delivery (without assuming any responsibility for credit
risk). At any such sale or sales the Secured Party may purchase
any or all of the Pledge Stock to be sold thereat upon such terms
as the Secured Party may deem best. Upon any such sale or sales
the Pledged Stock so purchased shall be held by the purchaser
absolutely free from any claims or rights of whatsoever kind or
nature, including any equity of redemption and any similar rights,
all such equality of redemption and any similar rights being
hereby expressly waived and released by the Pledgor. In the event
any consent, approval or authorization of any governmental agency
will be necessary to effectuate any such sale or sales, the
Pledgor shall execute, and hereby agrees to cause the Company to
execute, all such applications or other instruments as may be
required. The proceeds of any such sale or sales, together with
any other additional collateral security at the time received and
held hereunder shall be received and applied: first, to the
payment of all costs and expenses of such sale, including
reasonable attorneys' fees; second, to the payment of the Secured
Obligations in such order or priority as the Secured Party shall
determine, and any surplus thereafter remaining shall be paid to
the Pledgor or to whomever may be legally entitled thereto
(including, if applicable, any subordinated creditor of the
Company or the Pledgor).
The Pledgor recognizes that the Secured Party may be unable to
effect a public sale of all or a part of the Pledged Stock by
reason or certain prohibitions contained in the Securities Act of
1933, but may be compelled to resort to one or more private sales
to a restricted group of purchasers, each of whom will be
obligated to agree, among other things, to acquire such Pledged
Stock for its own account, for investment and not with a view to
the distribution or resale thereof. The Pledgor acknowledges that
private sales so made may be at prices Pledged Stock were sold at
public sales, and that the Secured Party has no obligation to
delay sale of any such Pledged Stock for the period of time
necessary to permit such Pledged Stock to be registered for public
sale under the Securities Act of 1933. The Pledgor agrees that
any such private sales shall not be deemed to have been made in an
commercially unreasonable manner solely because they shall have
been made under the foregoing circumstances.
10. Collection of Amounts Payable on Account of Pledged
Collateral, etc.. Upon the occurrence of any Event of Default the
Secured Party may, but without obligation to do so, demand, xxx
for and/or collect any money or property at any time due, payable
or receivable, to which it may be entitled hereunder, on account
of or in exchange for any of the Pledged Stock and shall have the
right for an in the name, place and stead of the Pledgor, to
execute endorsements, assignments or other instruments of
conveyance or transfer with respect to all or any of the Pledged
Stock.
11. Care of Pledged Collateral in Secured Party's Possession.
Beyond the exercise of reasonable care to assure the safe custody
of the Pledged Stock while held hereunder, the Secured Party shall
have no duty or liability to collect any sums due in respect
thereof or to protect or preserve the rights pertaining thereto,
and shall be relieved of all responsibility for the Pledged Stock
upon surrendering the same to the Pledgor.
12. Waivers, etc. The Pledgor hereby waives presentment, demand,
notice, protest and, except as is otherwise provided herein, all
other demands and notices in connection with this Agreement or the
enforcement of the Secured Party's rights hereunder or in
connection with any Secured Obligations or any Pledged Stock;
consents to and waive notice of the granting of renewals,
extensions of time for payment or other indulgences to the Company
or the Pledgor or to any third party, or substitution, release or
surrender of any collateral security for any Secured Obligation,
the addition or release of persons primarily or secondarily liable
on any Secured Obligation or on any collateral security for any
Secured Obligation, the acceptance of partial payments on any
Secured Obligation or on any collateral Security of any Secured
Obligation and/or the settlement or compromise thereof. No delay
or omission on the part of the Secured Party in exercising any
right hereunder shall operate as a waiver of such right or of any
other right hereunder. Any waiver of any such right on any one
occasion shall not be construed as a bar to or waiver of any such
right on any future occasion. The Pledgor further waives any
right the Pledgor may have under the constitution of the State of
Ohio (or under the constitution of any other state in which any of
the Pledged Stock may be located), or under the constitution of
the United States of America, to notice (other than any
requirement of notice provided herein) or to a judicial hearing
prior to the exercise of any right or remedy provided by this
Agreement to the Secured Party and waive their rights, if any, to
set aside or invalidate any sale duly consummated in accordance
with the foregoing provisions hereof on the grounds (if such be
the case) that the sale was consummated without prior judicial
hearing. The Pledgor's waivers under this section have been made
voluntarily, intelligently and knowingly and after the Pledgor
has been apprised and counseled by the Pledgor's attorneys as to
the nature thereof and its possible alternative rights.
13. Termination' Assignment, etc. This Agreement and the
security interest in the Pledged Stock created hereby shall
terminate when all of the Secured Obligations have been paid and
finally discharged in full. No waiver of the Secured Party or by
any other holder of Secured Obligations of any default shall be
effective unless in writing nor operate as a waiver of any other
default or of the same default on a future occasion. The Secured
Party may not assign or transfer its rights and interest under
this Agreement in whole or in part to a purchaser or purchasers.
14. Reinstatement. Notwithstanding the provisions of Section 13,
this Agreement shall continue to be effective or be reinstated, as
the case may be, if at any time any amount received by the Secured
Party in respect of the Secured Obligations is rescinded or must
otherwise be restored or returned by the Secured Party upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization
of the Borrower, the Company or the Pledgor or upon the
appointment of any intervener or conservator of, or trustee or
similar official for, the Borrower, the Company or the Pledgor or
any substantial part of their respective properties, or otherwise,
all as though such payments had not been made.
15. Restrictions on Transfer, etc. To the extent that any
restrictions imposed by the charter or by-laws of the Company or
any other document or instrument would in any way affect or impair
the pledge of the Pledged Stock hereunder or the exercise by the
Secured Party of any right granted hereunder, including, without
limitation, the right of the Secured Party to dispose of the
Pledged Stock upon the occurrence of any Event of Default, the
Pledgor hereby waives such restrictions, and represents and
warrants that they have caused the Company to take all necessary
action to waive such restrictions, and the Pledgor hereby agrees
that the Pledgor will take any further action which the Secured
Party may reasonably request in order that the secured Party may
obtain and enjoy the full rights and benefits granted to the
Secured Party may reasonably request in order that the Secured
Party may obtain and enjoy the full rights and benefits granted to
the Secured Party by this Agreement free of any such restrictions.
16. Notices. Except as otherwise provided herein, all notices to
the Pledgor or to the Secured Party shall be in writing and shall
be deemed to have been sufficiently given or served for all
purposes hereof if personally delivered or mailed by first class
mail, postage prepaid, as follows:
(a) if to the Pledgor;
United Xxxxxxx Corporation
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: President
Facsimile No. (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esquire
Xxxxxxxx & Shohl LLP
1900 Chemed Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
(b) if to the Secured Party:
c/o Xxxxx X. and Xxxxxxx X. Xxxxxxxx
00 Xxxxxxxx Xxxx
Post Office Box 2140
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
with a copy to:
Xxxx X. Xxxxxx, Xx., Esquire
Xxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
or at such other address as the party to whom such notice I
directed may have designated in writing to the other party hereto.
A notice shall be deemed to have been given upon the earlier to
occur of (i) three (3) days after the date on which it is
deposited in the U. S. mail or (ii) receipt by the party to whom
such notice is directed.
17. Miscellaneous. This Agreement shall inure to the benefit of
and be binding upon the Secured Party and the Pledgor and their
respective successors and assigns, and the term "Secured Party"
shall be deemed to include any other holder or holders of any of
the Secured Obligations. In case any provision in this Agreement
shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby . This Agreement may be
executed in any number of counterparts and by the difference
parties hereto on separate counterparts, each of which shall be an
original, but all of which together shall constitute an
instrument.
18. Governing Law; Jurisdiction. This Agreement, including the
validity hereof and the rights and obligations of the parties
hereunder, shall be construed in accordance with and governed by
the laws of the State of Ohio. Pledgor and Company, to the
extent that they may lawfully do so, hereby consents to service of
process, and to be sued, in the State of Ohio and consent to the
jurisdiction of the courts of the State of Ohio as well as to the
jurisdiction of all courts from which an appeal may be taken from
such courts, for the purpose of any suit, action or other
proceeding arising out of any of its obligations hereunder or with
respect to the transactions contemplated hereby, and expressly
waive any and all objections it may have as to venue in any such
courts. Pledgor and Company further agrees that a summons and
complaint commencing an action or proceeding in any of such courts
shall be properly served and shall confer personal jurisdiction if
served personally or by certified mail to it at its address
provided herein or as otherwise provided under the laws of the
State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement as a
sealed instrument as of the date first above written.
PLEDGOR:
UNITED XXXXXXX CORPORATION:
/s/ By: /s/Xxxxxx X. Xxxxxxxxx, Xx.
Witness Xxxxxx X. Xxxxxxxxx, Xx.
SECURED PARTY:
XXXXXXXX FAMILY NOMINEE TRUST
/s/ By: /s/ Xxxxx X. Xxxxxxxx
Witness Xxxxx X. Xxxxxxxx, Trustee
/s/ By: /s/ Xxxxxxx X. Xxxxxxxx
Witness Xxxxxxx X. Xxxxxxxx, Trustee
SCHEDULE "A"
TO STOCK PLEDGE AGREEMENT
PLEDGED STOCK
Owner and Address No. of Shares Cert. No.
United Xxxxxxx Corporation 400 3
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxx 00000
