PLEDGE AGREEMENT
This Pledge Agreement (the "Agreement") is entered into as of the 30th
day of April, 1999 between HydroChem Holding, Inc. ("Lender") and B. Xxx Xxxxxx,
Jr. ("Pledgor").
WHEREAS, Pledgor is indebted to Lender in the amount of Three Hundred
Two Thousand Eight Hundred Sixteen and 86/100 Dollars ($302,816.86) for
principal and accrued interest through the date hereof pursuant to that certain
Secured Promissory Note dated April 9, 1998 from Pledgor to Lender, as the
assignee of HydroChem Industrial Services, Inc. (the "Old Note"); and
WHEREAS, under a Pledge Agreement dated as of April 9, 1998 (the "Old
Pledge Agreement") between Pledgor and Lender as the assignee of HydroChem, the
Old Note is secured by the pledge of Two Hundred Eighty Five Thousand Six
Hundred One (285,601) shares of the Lender's Class A Common Stock (the "Existing
Shares") represented by stock certificate CA-28, which shares were purchased on
said date pursuant to the partial exercise by Pledgor of two certain stock
options; and
WHEREAS, as of the date hereof, Pledgor has further exercised the said
two stock options to purchase, for One Dollar ($1.00) per share, an additional
Forty Three Thousand Five Hundred Thirty Nine (43,539) shares of Lender's Class
A Common Stock (the "Additional Shares") represented by Stock Certificate CA-31;
and
WHEREAS, Pledgor has executed and delivered a Secured Promissory Note
to Lender dated as of the date hereof in the principal amount of Three Hundred
Forty Six Thousand Three Hundred Fifty Five and 86/100 Dollars ($346,355.86)
with interest as therein specified (the "Note") which is full payment for the
Additional Shares and in substitution and replacement of the Old Note; and
WHEREAS, Pledgor desires to pledge all of the Stock Collateral (as such
term is hereinafter defined) as collateral and security for Pledgor's
obligations and duties under the Note and this Agreement, and to enter into this
Pledge Agreement in replacement and substitution of the Old Pledge Agreement.
NOW, THEREFORE, for and in consideration of the premises and the
covenants herein contained, and in consideration of the extension of credit to
Pledgor as evidenced by the Note, the parties hereto agree as follows:
1. Pledge of Stock Collateral. As collateral and security for the
prompt and full performance of all duties and obligations of Pledgor under the
Note and this Agreement, Pledgor hereby pledges, assigns and transfers unto
Lender, and grants a security interest to Lender in and to the following
property of Pledgor (collectively, the "Stock Collateral"):
(a) The Existing Shares and the Additional Shares
(collectively, the "Shares")
(b) All stock rights, rights to subscribe, dividends
(including, but not limited to, cash dividends, stock dividends, dividends paid
in stock and liquidating dividends), and any other rights
and property interest (including, but not limited to, accounts, contract rights,
instruments and general intangibles) arising out of or relating to the Shares;
(c) All other or additional (or less) stock or other
securities or property (including cash) paid or distributed in respect of the
Shares by way of stock split, spin off, reclassification, combination of shares
or similar corporate rearrangement;
(d) All other or additional (or less) stock or other
securities or property (including cash) paid or distributed in respect of the
Shares by reason of any consolidation, merger, exchange of stock, conveyance of
assets, liquidation or similar corporate reorganization; and
(e) All proceeds (both cash and non-cash) of the foregoing,
whether now or hereafter arising under the foregoing.
The above referenced certificates representing the Shares, together with
irrevocable stock powers executed in blank, are herewith delivered to Lender to
hold pursuant to the terms of this Agreement.
2. Dividends. So long as there exists no default by Pledgor under the
Note or this Agreement during the term hereof, all dividends and other amounts
with respect to the Stock Collateral shall be paid to the Pledgor.
3. Voting Rights. During the term of this Agreement, and so long as
Pledgor is not in default in the performance of any of the terms of the Note or
this Agreement, Pledgor shall have the sole and exclusive right to vote the
Stock Collateral on all corporate questions before the stockholders of Lender,
and Lender shall execute and deliver to Pledgor in a due and timely manner
proxies in favor of Pledgor to this end.
4. Representations and Warranties. Pledgor represents and warrants to
Lender (i) that the Shares are validly issued, fully paid and nonassessable,
(ii) that the Shares are validly pledged to Lender in accordance with law, and
(iii) that Pledgor has, and will have, good and marketable title to the Shares,
free and clear of all liens and encumbrances (other than the security interest
granted herein).
5. Covenants. Until full performance of Pledgor's duties and
obligations under the Note and this Agreement, Pledgor shall (i) deliver to
Lender (a) immediately upon Pledgor's receipt of any stock or other securities
paid or distributed in respect of the Shares, the certificates representing such
stock or securities, and (b) irrevocable stock powers executed in blank for all
such stock or securities; (ii) defend, at Pledgor's sole expense, the title to
the Stock Collateral or any part thereof; and (iii) promptly, upon request by
Lender, execute, acknowledge and deliver any financing statement, endorsement,
renewal, affidavit, deed, assignment, continuation statement, security
agreement, certificate or other document as Lender may require in order to
perfect, preserve, maintain, protect, continue and/or extend the lien and
security interest of Lender under this Agreement and the priority thereof.
6. Full Performance. Upon full performance of Pledgor's duties and
obligations under the Note and this Agreement, Lender shall deliver to Pledgor
all of the Stock Collateral that remains
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pledged hereunder and this Agreement shall thereupon terminate.
7. Default. Pledgor shall be in default under this Agreement on the
occurrence of any of the following events or conditions:
(a) Failure to make any payment in accordance with the
terms of the Note; or
(b) Pledgor's failure to observe, keep or perform any
covenant, agreement or condition required by this Agreement to be observed, kept
or performed; or
(c) Pledgor's insolvency, or the appointment of an
assignee for the benefit of creditors or of a receiver for Pledgor, or in the
event that a petition under any provision of the Federal Bankruptcy Act is
filed either by or against Pledgor.
8. Remedies. Upon the occurrence of any event of default, in addition
to any other right or remedy that Lender may then have under the Texas Business
and Commerce Code or otherwise, Lender may sell, assign and deliver, in its sole
discretion, all or any part of the Stock Collateral in one or more parcels, and
all right, title and interest, claim and demand therein, at public or private
sale, for cash or other property, upon credit or for future delivery, Pledgor
hereby waiving and releasing any and all equity or right of redemption.
9. No Waiver of Rights or Remedies. No failure or delay by Lender in
exercising any right, power or privilege under the Note or this Agreement shall
operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or future exercise of any other right, power or privilege.
10. Notice. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effective when delivered in person or when
deposited in the U.S. mails, postage prepaid, for delivery as registered or
certified mail, return receipt requested, and addressed as follows:
If to Pledgor: B. Xxx Xxxxxx, Jr.
0000 Xxxxxx Xxxx
Xxxxx #000
Xxxxxx, Xxxxx 00000
If to Lender:
HydroChem Industrial Services,Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxx 00000
Attention: General Counsel
(or to such other address as may be stated in written notices furnished by any
party to the other party).
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11. Governing Law. This Agreement shall be governed by and construed
under and in accordance with the Texas Business and Commerce Code and other
applicable laws of the State of Texas.
12. Parties Bound. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, representatives, successors and assigns.
13. Severability. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
14. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof, and
it supercedes all other prior or contemporaneous agreements, understandings,
restrictions warranties or representations between the parties including, but
not limited to, the Old Pledge Agreement which is hereby cancelled. This
Agreement may be amended or waived in the future only by a written instrument
signed by both parties.
15. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning of this
Agreement or its interpretation.
16. Stockholders Agreement. Notwithstanding any other provision of this
Agreement, Lender hereby acknowledges that is takes the Stock Collateral subject
to the terms and conditions of that certain Stockholders Agreement dated as of
December 15, 1993, as amended, by and among Lender and all holders of Lender's
capital stock.
IN WITNESS WHEREOF, the parties have executed this Agreement
and caused the same to be duly delivered on the day and year hereinabove first
set forth.
PLEDGOR:
/s/ B. Xxx Xxxxxx, Jr.
----------------------
B. Xxx Xxxxxx, Jr.
LENDER:
HydroChem Holding, Inc.
By: /s/ Pelham X.X. Xxxxx
--------------------------
Pelham X.X. Xxxxx,
Vice President
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