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EXHIBIT 10.4.11
PLEDGE AGREEMENT
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Date August 10, 1998
1. To secure the prompt, punctual, and faithful performance of all and
each of the Liabilities (as that term is defined herein) of the undersigned
(hereinafter, the "Borrower") to BANKBOSTON, N.A., a national banking
association with its principal office at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (hereinafter, the "Bank"), the Borrower hereby grants to the Bank
a security interest in and to, and assigns, pledges, and delivers to the Bank
the following property, and all products, proceeds, substitutions, additions,
interest, dividends, and other distributions (including, without limitation,
stock splits) in respect thereto, and all books, records, and papers relating to
the foregoing (all of which is referred to hereinafter as the "Collateral"):
CASH AND CASH EQUIVALENTS (AS DEFINED HEREIN) CONTAINED IN BORROWER'S
ACCOUNT NO. 527000017 WITH THE BANK ENTITLED "BITSTREAM AS COLLATERAL TO
BKB - INTRADER"
2. The Borrower represents that the Collateral is held and owned by the
Borrower free and clear of all liens, encumbrances, attachments, security
interests, pledges, and charges, and if the Collateral is securities, is fully
paid for and nonassessable.
3. The Borrower shall
(1) execute all such instruments, documents, and papers, and will do
all such acts as the Bank may request from time to time to carry into
effect the provisions and intent of this Agreement, including, without
limitation, the execution of stop transfer orders, stock powers,
notifications to obligors on the Collateral, the providing of
notifications in connection with book entry securities or general
intangibles, and the providing of instructions to the issuers of
uncertificated securities, and will do all such other acts as the Bank
may request with respect to the perfection and protection of the
security interest granted herein and the assignment effected hereby;
(2) keep the Collateral free and clear of all liens, encumbrances,
attachments, security interests, pledges, and charges;
(3) deliver to the Bank, if and when received by the Borrower, any
item representing or constituting any of the Collateral, including,
without limitation, all cash dividends and all stock certificates
whether now existing or hereafter received as a result of any stock
dividends, stock splits or other transaction;
(4) upon the request of the Bank, cause the issuer of any
uncertificated securities comprising any of the Collateral to issue
certificates with respect thereto;
(5) upon the request of the Bank, cause certificated securities
comprising any of the Collateral to be issued in the name of the Bank,
as pledgee;
(6) not cause or permit any of the Collateral presently evidenced by
written certificates to be converted to uncertificated securities;
(7) not exercise any right with respect to the Collateral which
would dilute or adversely affect the Bank's rights in the Collateral;
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(8) not file any affidavit for replacement of lost stock
certificates or bonds with respect to the Collateral; and
(9) not vote the Collateral in favor of or consent to any resolution
which might
(1) impose any restrictions upon the sale, transfer, or disposition
of the Collateral; or
(2) result in the issuance of any additional shares of stock of any
class; or
(3) vest additional powers, privileges, preferences, or priorities
to any other class of stock; and
(10) maintain at all times the value of the Collateral at an amount
no less than One Million One Hundred Thousand Dollars ($1,100,000.00).
If the value of the Collateral at any time is less than $1,100,000.00,
the Borrower shall immediately furnish the Bank with additional
Collateral in the form of cash or Cash Equivalents (as defined herein)
acceptable to the Bank at an amount equal to said deficit.
4. Upon the occurrence of any one or more of the following events of
default (herein, "Events of Default"), any and all Liabilities of the Borrower
to the Bank shall become immediately due and payable at the option of the Bank
and without notice or demand, in addition to which the Bank may exercise the
Bank's rights and remedies upon default. The occurrence of any such Event of
Default shall also constitute, without notice or demand, a default under all
other agreements between the Bank and the Borrower and instruments and papers
given the Bank by the Borrower, whether now existing or hereafter arising: (a)
The failure by the Borrower to pay upon demand (or when due, if not payable on
demand) any of the Liabilities; (b) The failure by the Borrower to promptly,
punctually, and faithfully perform, discharge, or comply with any Liability; (c)
The determination by the Bank that any representation or warranty heretofore,
now or hereafter made by the Borrower to the Bank, in any document, instrument,
agreement, or paper was not true or accurate when given; (d) The occurrence of
any event such that any indebtedness of the Borrower from any lender other than
the Bank could be accelerated, notwithstanding that such acceleration has not
taken place; (e) The occurrence of any event of default under any agreement
between the Bank and the Borrower or instrument or paper given the Bank by the
Borrower, whether such agreement, instrument, or paper now exists or hereafter
arises (notwithstanding that the Bank may not have exercised its rights upon
default under any such other agreement, instrument or paper); (f) Any act by,
against, or relating to the Borrower, or its property or assets, which act
constitutes the application for, consent to, or sufferance of the appointment of
a receiver, trustee, or other person, pursuant to court action or otherwise,
over all, or any part of the Borrower's property; the granting of any trust
mortgage or execution of an assignment for the benefit of the creditors of the
Borrower, or the occurrence of any other voluntary or involuntary liquidation or
extension of debt agreement for the Borrower; the failure by the Borrower to
generally pay the debts of the Borrower as they mature; adjudication of
bankruptcy or insolvency relative to the Borrower; the entry of an order for
relief or similar order with respect to the Borrower in any proceeding pursuant
to the Bankruptcy Reform Act of 1978 (commonly referred to as the Bankruptcy
Code) or any other federal bankruptcy law; the filing of any complaint,
application, or petition by or against the Borrower initiating any matter in
which the Borrower is or may be granted any relief from the debts of the
Borrower pursuant to the Bankruptcy Code or any other insolvency statute or
procedure; the calling or sufferance of a meeting of creditors of the Borrower;
the meeting by the Borrower with a formal or informal creditors' committee; the
offering by or entering into by the Borrower of any composition, extension or
any other arrangement seeking relief or extension for the debts of the Borrower,
or the initiation of any other judicial or non-judicial proceeding or agreement
by, against, or including the Borrower which seeks or intends to accomplish a
reorganization or arrangement with creditors; (g) The imposition of any lien
upon any assets of the Borrower or the entry of any judgment against the
Borrower, which lien is not discharged or judgment is not satisfied or appealed
from (with execution or similar process stayed) within fifteen (15) days of its
imposition or entry; (h) The occurrence of any event or circumstance with
respect to the Borrower such that the Bank deems itself insecure; (i) The entry
of any court order which enjoins, restrains or in any way prevents the Borrower
from conducting all or any part of its business affairs in the ordinary course;
(j) The service
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of any process upon the Bank seeking to attach by mesne or trustee process any
funds of the Borrower on deposit with the Bank; (k) Any material change in the
identity, authority, or responsibilities of any person having management or
policy authority with respect to the Borrower from that existing at the
execution of this Agreement; (l) The occurrence of any loss, theft, damage,
destruction, sale (other than sales in the ordinary course of business) or
encumbrance to or of any of the assets of the Borrower; (m) Any act by, against,
or relating to the Borrower or its assets pursuant to which any creditor of the
Borrower seeks to reclaim or repossess or reclaims or repossesses all or any
portion of the Borrower's assets; (n) The death, termination of existence,
dissolution, winding up, or liquidation of the Borrower; (o) The merger or
consolidation of the Borrower with or into any other corporation or other
entity; (p) The occurrence of any of the foregoing Events of Default with
respect to any guarantor, endorser, or surety to the Bank of the Liabilities, or
the occurrence of any of the foregoing Events of Default with respect to any
parent (if the Borrower is a corporation), subsidiary, or affiliate of the
Borrower, as if such guarantor, endorser, surety, parent, subsidiary, or
affiliate were the "Borrower" described therein; (q) The termination of any
guaranty by any guarantor of the Liabilities.
5. Upon the occurrence of any Event of Default, and at any time
thereafter, the Bank shall have all of the rights and remedies of a secured
party upon default under the Uniform Commercial Code as adopted in
Massachusetts, in addition to which the Bank may sell or otherwise dispose of
the Collateral and/or enforce and collect the Collateral (including, without
limitation, the liquidation of debt instruments or securities and the exercise
of conversion rights with respect to convertible securities, whether or not such
instruments or securities have matured and whether or not any penalties or other
charges are imposed on account of such action), for application towards (but not
necessarily in complete satisfaction of) the Liabilities. The Borrower shall
remain liable to the Bank for any deficiency remaining following such
application. Unless the Collateral is perishable, threatens to decline speedily
in value, or is of a type customarily sold on a recognized market (in which
event the Bank shall give the Borrower such notice as may be practicable under
the circumstances), the Bank shall give the Borrower at least the greater of the
minimum notice required by law or seven (7) days prior written notice of the
date, time, and place of any public sale thereof or of the time after which any
private sale or any other intended disposition is to be made. The Borrower
acknowledges that any exercise by the Bank of the Bank's rights upon default may
be subject to compliance by the Bank with any statute, regulation, ordinance,
directive, or order of any federal, state, municipal, or other governmental
authority, including, without limitation, any of the foregoing restricting the
sale of securities. The Bank, in its sole discretion at any such sale, may
restrict the prospective bidders or purchasers as to their number, nature of
business and investment intention, and impose without limitation, a requirement
that the persons making such purchases represent and agree, to the satisfaction
of the Bank, that they are purchasing the Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. The
proceeds of any collection or of any sale or disposition of the Collateral held
pursuant to this Agreement shall be applied towards the Liabilities in such
order and manner as the Bank determines in its sole discretion, any statute,
custom, or usage to the contrary notwithstanding.
6. The Borrower hereby designates the Bank as and for the attorney-in-
fact of the Borrower to: endorse in favor of the Bank any of the Collateral;
cause the transfer of any of the Collateral in such name as the Bank may, from
time to time, determine; cause the issuance of certificates for book entry
and/or uncertificated securities; renew, extend, or roll over any Collateral;
and make demand and initiate actions to enforce any of the Collateral. The Bank
may take such action with respect to the Collateral as the Bank may reasonably
determine to be necessary to protect and preserve its interest in the
Collateral. The Bank shall also have and may exercise at any time all rights,
remedies, powers, privileges, and discretions of the Borrower with respect to
and under the Collateral, provided, however, the Bank shall have no right to
exercise any voting rights available to holders of the Collateral at any time
the Collateral is held by the Bank solely as pledgee hereunder, and whether or
not an Event of Default has occurred. All of the rights, remedies, powers,
privileges and discretions included in this Paragraph 6, may be exercised by the
Bank whether or not any of the Liabilities are then due and whether or not an
Event of Default has occurred. The within designation, being coupled with an
interest, is irrevocable until the within instrument is terminated by a written
instrument executed by a duly authorized officer of the Bank. The power of
attorney shall not be affected by subsequent disability or incapacity of the
Borrower. The Bank shall not be liable for any act or omission to act pursuant
to this Paragraph except for any act or omission to act which is in actual bad
faith.
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7. The rights, remedies, powers, privileges, and discretions of the
Bank hereunder (hereinafter, the "Bank's Rights and Remedies") shall be
cumulative and not exclusive of any rights, remedies, powers, privileges or
discretions which it otherwise may have. No delay or omission by the Bank in
exercising or enforcing any of the Bank's Rights and Remedies shall operate as,
or constitute, a waiver thereof. No waiver by the Bank of any Event of Default
or of any default under any other agreement shall operate as a waiver of any
other default hereunder or under any other agreement. No exercise of any of the
Bank's Rights and Remedies and no other agreement or transaction of whatever
nature entered into between the Bank and the Borrower at any time shall preclude
any other exercise of the Bank's Rights and Remedies. No waiver by the Bank of
any of the Bank's Rights and Remedies on any one occasion shall be deemed a
waiver on any subsequent occasion, nor shall it be deemed a continuing waiver.
All of the Bank's Rights and Remedies and all of the Bank's rights, remedies,
powers, privileges, and discretions under any other agreement or transaction are
cumulative and not alternative or exclusive and may be exercised by the Bank at
such time or times and in such order of preference as the Bank in its sole
discretion may determine.
8. As used herein, the following terms have the following meanings:
(1) "Liability" and "Liabilities" include, without limitation, any
and all liabilities, debts, and obligations of the Borrower to the Bank
and any and all liabilities, debts, and obligations of every endorser,
guarantor, and surety of the Borrower to the Bank, each of every kind,
nature and description now existing or hereafter arising, whether under
this Agreement or otherwise. "Liabilities" also includes, without
limitation, each obligation to repay all loans, advances, indebtedness,
notes, obligations, overdrafts, and amounts now or hereafter at any
time owing by the Borrower to the Bank (including all future advances
or the like whether or not given pursuant to a commitment by the Bank),
whether or not any of such are liquidated, unliquidated, primary,
secondary, secured, unsecured, direct, indirect, absolute, contingent,
or of any other type, nature, or description, or by reason of any cause
of action which the Bank may hold against the Borrower. "Liabilities"
also includes, without limitation, all notes and other obligations of
the Borrower now or hereafter assigned to or held by the Bank, each of
every kind, nature, and description. "Liabilities" also includes,
without limitation, all interest and other amounts which may be charged
to the Borrower and/or which may be due from the Borrower to the Bank
from time to time; all fees and charges in connection with any account
maintained by the Borrower with the Bank or any service rendered by the
Bank; and all costs and expenses incurred or paid by the Bank in
respect of this and any other agreement between the Borrower and the
Bank or instrument furnished by the Borrower to the Bank (including,
without limitation, Costs of Collection, attorneys' reasonable fees,
and all court and litigation costs and expenses). "Liabilities" also
includes, without limitation, any and all obligations of the Borrower
to act or to refrain from acting in accordance with the terms,
provisions, and covenants of this Agreement and of any other agreement
between the Borrower and the Bank or instrument furnished by the
Borrower to the Bank. As used herein, the term "indirect" includes,
without limitation, all obligations and liabilities which the Bank may
incur or become liable for, on account of, or as a result of any
transactions between the Bank and the Borrower including, without
limitation, any which may arise out of any Letter of Credit or
acceptance, or similar instrument issued or obligation incurred by the
Bank for the account of the Borrower; any which may arise out of any
action brought or threatened against the Bank by the Borrower, any
guarantor or endorser of the Liabilities of the Borrower, or by any
other person in connection with the Liabilities; and any obligation of
the Borrower which may arise as endorser or guarantor of any third
party, or as obligor to any third party which obligation has been
endorsed, participated, or assigned to the Bank. The term "indirect"
also refers to any direct or contingent liability of the Borrower to
make payment towards any obligation held by the Bank (including,
without limitation, on account of any industrial revenue bond) to the
extent so held by the Bank. The Bank's books and records shall be prima
facie evidence of the Borrower's indebtedness to the Bank.
(2) "Costs of Collection" includes, without limitation, all
attorneys' reasonable fees, and out-of-pocket expenses incurred by the
Bank's attorneys, and all costs incurred by the Bank in the
administration of the Liabilities, this Agreement, and all other
instruments and agreements executed in
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connection with or relating to the Liabilities including, without
limitation, costs and expenses associated with travel on behalf of the
Bank. Costs of Collection also includes, without limitation, all
attorneys' fees, out-of-pocket expenses incurred by the Bank's
attorneys, and all costs and expenses incurred by the Bank, including,
without limitation, costs and expenses associated with travel on behalf
of the Bank, which costs and expenses are directly or indirectly
related to or in respect of the Bank's efforts to preserve, protect,
collect, or enforce the Collateral, the Liabilities and/or the Bank's
Rights and Remedies or any of the Bank's rights and remedies against or
in respect of the any guarantor or other person liable in respect of
the Liabilities (whether or not suit is instituted in connection with
such efforts). The Costs of Collection shall be added to the
Liabilities of the Borrower to the Bank, as if such had been lent,
advanced, and credited by the Bank to, or for the benefit of, the
Borrower.
(3) "Cash Equivalents" shall mean, as of any date of determination,
(i) marketable securities (a) issued or directly and unconditionally
guaranteed as to interest and principal by the United States Government
or (b) issued by any agency of the United States the obligations of
which are backed by the full faith and credit of the United States, in
each case maturing within one year after such date; (ii) marketable
direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public
instrumentally thereof, in each case maturing within one year after
such date and having, at the time of the acquisition thereof, the
highest rating obtainable from either Standard & Poor's ("S&P") or
Moody's; (iii) commercial paper maturing no more than one year from the
date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing
within one year after such date and issued or accepted by the Bank or
by any commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia having, at the
time of acquisition thereof, a rating of at least A-1 from S&P and at
least P-1 from Moody's; (v) shares of any money market mutual fund that
(a) has at least 95% of its assets invested continuously in the types
of investments referred to in clauses (i), (ii), (iii), and (iv) above,
(b) has net assets of not less than $500,000,000; and (c) has the
highest rating obtainable from either S&P or Moody's; (vi) repurchase
agreements collateralized by investments referred to in clause (i)
above; and (vii) loan participations maturing within one year of
acquisition thereof of obligors having, at the time of acquisition
thereof, a rating of at least A-1 from S&P and at least P-1 from
Moody's.
9. The Borrower (a) waives presentment, demand, notice, and protest
with respect to the Liabilities and the Collateral; and (b) waives any delay on
the part of the Bank without notice to or consent from the Borrower; (c) assents
to any indulgence or waiver which the Bank may grant or give any other person
liable or obliged to the Bank for or on the Liabilities without notice to or
consent from the Borrower; and (d) authorizes the Bank to alter, amend, cancel,
waive, or modify any term or condition of the obligations of any other person
liable or obligated to the Bank for or on the Liabilities, without notice to or
consent from the Borrower; and (e) agrees that no release of any property
securing the Liabilities, without notice to or consent from the Borrower, shall
affect the rights of the Bank with respect to the Collateral hereunder; and if
entitled thereto, (f) waives the right to notice and/or hearing prior to the
Bank's exercising of the Bank's rights and remedies hereunder upon default.
10. The Bank shall have no duty as to the collection or protection of
the Collateral or any income or distribution thereon, beyond the safe custody of
such of the Collateral as may come into the possession of the Bank and shall
have no duty as to the preservation of rights against prior parties or any other
rights pertaining thereto. The Bank's Rights and Remedies may be exercised
without resort or regard to any other source of satisfaction of the Liabilities.
11. This Agreement shall be binding upon the Borrower and upon the
Borrower's heirs, executors, administrators, representatives, successors, and
assigns, and shall inure to the benefit of the Bank and the Bank's successors
and assigns.
12. This Agreement and all other instruments executed in connection
with the Liabilities incorporate all discussions and negotiations between the
Borrower and the Bank concerning the matters included herein and in
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such other instruments. No such discussions or negotiations shall limit, modify,
or otherwise affect the provisions hereof. No modification, amendment, or waiver
of any provision of the within Agreement or of any provision of any other
agreement between the Borrower and the Bank shall be effective unless executed
in writing by the party to be charged with such modification, amendment of
waiver, and if such party be the Bank, then by a duly authorized officer
thereof.
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13. This Agreement and all other documents in the Bank's possession
which relate to the Liabilities may be reproduced by the Bank by any
photographic, photostatic, microfilm, micro-card, miniature photographic,
xerographic, or similar process, and, with the exception of instruments
constituting the Collateral, the Bank may destroy the original from which any
document was so reproduced. Any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and any enlargement,
facsimile, or further reproduction shall likewise be admissible in evidence.
14. This Agreement, and all rights and obligations hereunder, including
matters of construction, validity, and performance, shall be governed by the
laws of The Commonwealth of Massachusetts. The Borrower submits to the
jurisdiction of the courts of said Commonwealth for all purposes with respect to
the within Agreement and the Borrower's relationships with the Bank.
15. The Borrower shall indemnify, defend, and hold the Bank harmless of
and from any claim brought or threatened against the Bank by the Borrower, any
guarantor or endorser of the Liabilities, or any other person (as well as from
attorneys' reasonable fees and expenses in connection therewith) on account of
the Bank's relationship with the Borrower or any other guarantor or endorser of
the Liabilities (each of which may be defended, compromised, settled, or pursued
by the Bank with counsel of the Bank's selection, but at the expense of the
Borrower). The within indemnification shall survive payment of the Liabilities,
and/or any termination, release, or discharge executed by the Bank in favor of
the Borrower.
16. It is intended that this Agreement take effect as a sealed
instrument.
Signed in my Presence BITSTREAM INC.
("Borrower")
/s/ Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxxx
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Print Name: Xxxx Xxxxxxxxxx Print Name: Xxxx Xxxxxxx
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Title: Vice President, Finance And
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Administration
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