Exhibit 10.2
AMENDED AND RESTATED LOAN AND PLEDGE AGREEMENT
This Amended and Restated Loan and Pledge Agreement, dated as
of March 11, 1999, by and between Strategic Distribution, Inc., a Delaware
corporation (the "Company"), and Xxxx X. Xxxxxx ("Xxxxxx"), further amends and
restates the Amended Loan and Pledge Agreement, dated as of May 5, 1997, by and
between the Company and Xxxxxx.
1. The Company hereby agrees to loan to Xxxxxx an amount equal
to $1,000,000, which is equal to (a) the purchase price of shares of common
stock, par value $0.10 per share, of the Company ("Common Stock") purchased by
Xxxxxx pursuant to the Stock Purchase Agreement, dated as of April 11, 1997, as
amended, between Xxxxxx and the Company (collectively, the "Shares") less (b)
$700,000.
2. The loan shall be evidenced by an amended and restated
non-recourse promissory note in the form of Annex A attached hereto, dated the
date hereof (the "Amended Note), such Amended Note amending, restating and
replacing the non-recourse promissory note dated May 20, 1997 (the "Old Note"),
which Old Note will thereby be cancelled. The Amended Note shall be secured
solely by a pledge of the Shares as set forth below and the Company shall have
no recourse to any other property or assets of Xxxxxx.
3. The entire unpaid principal amount of the Amended Note
shall be due, together with all interest accrued but unpaid thereon, on May 1,
2003. Xxxxxx may prepay the Amended Note in whole or from time to time, in part,
without premium or penalty.
4. In the event Xxxxxx xxxxx any Shares or otherwise realizes
any cash or other consideration in respect of such Shares prior to repayment in
full of the Amended Note, whether pursuant to a dividend, private sale, public
offering, merger, recapitalization, liquidation or dissolution of the Company
(each, a "Realization Event"), Xxxxxx shall within ten days of the Realization
Event, make a mandatory prepayment of the Amended Note in an amount equal to the
lesser of (i) 100% of the net after tax proceeds received by or for the account
of Xxxxxx in respect of the Realization Event and (ii) the aggregate amount then
outstanding under the Amended Note, such amount to be applied pro rata to
accrued interest and principal on the Amended Note.
5. Xxxxxx hereby grants to the Company a first priority
security interest in the Shares, as collateral security for the due and punctual
payment of the Amended Note in accordance with its terms and the performance by
Xxxxxx of his obligations under the Amended Note (which Shares shall include any
other securities or property receivable or distributable with respect thereto
after the date hereof). The certificates representing the Shares, together with
a stock power attached thereto in blank, shall be delivered to the Company and
shall be retained by the Company until all obligations under the Amended Note
have been paid in full. At such time, the Company shall return to Xxxxxx the
certificates representing the Shares, together with the stock power attached
thereto.
6. Upon the occurrence of an Event of Default, the Company
shall have and may exercise all rights and remedies afforded to a secured party
under the New York Uniform Commercial Code applicable thereto, including,
without limitation, the right to sell the Shares at a public or private sale
(provided that the Company shall give Xxxxxx at least 15 days prior written
notice of the date in which any public sale is to be held or the date after
which any private sale may be made), at which sale the Company may purchase such
Shares (free from any right of redemption by Xxxxxx, which right is hereby
waived and released) and have the right to retain the Shares in partial or full
satisfaction of Sergey's obligations under the Amended Note in accordance with
the provisions of the New York Uniform Commercial Code. The Company's recovery
upon an Event of Default shall be limited to the Shares, and no judgment, order
or execution entered in any suit, action or proceeding, whether legal or
equitable, on this Agreement or the Amended Note shall be obtained or enforced
against Xxxxxx or any other property or asset of Xxxxxx. If there is a
foreclosure of the Company's lien on the Shares, by power of sale or otherwise,
no judgment for any deficiency shall be brought or obtained by the Company
against Xxxxxx or any other property or asset of Xxxxxx.
7. Each of Xxxxxx and the Company has all power and authority
necessary to enter into and consummate the transactions contemplated by this
Agreement and this Agreement is valid and enforceable against each of the
Company and Xxxxxx in accordance with its terms. Xxxxxx has not created or
permitted any lien or encumbrance to attach to the Shares, other than the pledge
set forth in this Agreement.
8. If any of the following events ("Events of Default") shall
occur:
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(a) Xxxxxx shall default in the payment of interest
or principal on the Amended Note when the same shall become due and
payable, whether at maturity, by acceleration or otherwise and such
default continues for more than ten days after receipt of written
notice from the Company;
(b) Xxxxxx shall default in the performance or
compliance with any other term or provision contained in this Agreement
and such default continues for more than 30 days after receipt of
written notice from the Company; or
(c) If any of the Shares shall be encumbered,
pledged, attached or levied upon or seized at any legal proceeding,
except as contemplated by this Agreement, and such encumbrance, pledge,
attachment or levy remains uncured for more than 15 days;
then the holder of the Amended Note may at any time by written notice to Xxxxxx
(or without such notice with respect to subsection (c) above), declare the
entire unpaid principal of and the interest then accrued on the Amended Note to
be forthwith due and payable, without other notices or demands of any kind, all
of which are hereby waived by Xxxxxx.
9. (a) In the event that a Change in Control (as
hereinafter defined) occurs prior to May 1, 2001 and the fair market value of
the Common Stock on the date of such Change in Control is $6.00 per share or
less, then the amount of principal and interest due and payable under the
Amended Note shall be reduced to $0.0.
(b) In the event that a Change in Control occurs
prior to May 1, 2001 and the fair market value of the Common Stock on the
date of such Change in Control is greater than $6.00 per share, then the
amount of principal and interest due and payable under the Amended Note shall
be reduced by 50%.
(c) In the event that a Change in Control occurs on
or after May 1, 2001 but prior to May 1, 2003, and the fair market value of the
Common Stock on the date of such Change in Control is $9.00 per share or less,
then the amount of principal and interest due and payable under the Amended Note
shall be reduced by 50%.
(d) For purposes of this Section 9, the term "Change
in Control" means (i) a merger, reorganization or other business combination
involving the Company if the Company is not
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the surviving corporation, (ii) a sale of all or substantially all of the
Company's assets; or (iii) the acquisition by a person other than a shareholder
identified in the Company's most recent proxy statement of beneficial ownership
of twenty percent (20%) or more of the issued and outstanding Common Stock (a
"Control Acquisition") if, at any time during the twelve month period following
the Control Acquisition (the "Measurement Year") one of the following shall
occur: (A) there is a change in the composition of the Board of Directors of the
Company which results, on any date during the Measurement Year, in a majority of
the members of the Board being comprised of individuals who were not members of
the Board prior to the date of the Control Acquisition, or (B) there is a change
in the composition of the Executive Committee of the Board of Directors of the
Company which results, on any date during the Measurement Year, in a majority of
the members of the Executive Committee being comprised of individuals who were
not members of the Executive Committee prior to the date of the Control
Acquisition.
10. Xxxxxx will do, execute, acknowledge, deliver, file and
record all such further acts, conveyances, transfers and assurances as the
Company may deem necessary or advisable to perform, preserve, protect and
continue the pledge granted by this Agreement.
11. All notices and communications provided for herein shall
be delivered or mailed by registered or certified mail, postage prepaid, or
telegraphed, addressed as follows:
If to the Company:
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
If to Xxxxxx:
Xxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxx Xxxx
Xxx Xxxx, Xxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
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12. All representations and warranties made by Xxxxxx and the
Company herein shall survive the making of the loan and the delivery of the
Amended Note hereunder.
13. No delay on the part of the Company in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude other or further exercise thereof, or the exercise of any other right,
power or privilege.
14. This Agreement and the Amended Note shall be governed by
and interpreted and enforced in accordance with the laws of the State of
Delaware without giving effect to the choice-of-law provisions thereof.
15. This Agreement shall be binding upon the successors and
assigns of the parties hereto.
16. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered on and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
STRATEGIC DISTRIBUTION, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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