EXHIBIT 10.21
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PLEDGE AGREEMENT
among
SIMTEK CORPORATION
and
RENAISSANCE CAPITAL GROWTH & INCOME FUND III, INC
and
RENAISSANCE US GROWTH & INCOME TRUST PLC
and
BFSUS SPECIAL OPPORTUNITIES TRUST PLC
Dated as of June 28, 2002
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THIS PLEDGE AGREEMENT, dated as of June 28, 2002 among SIMTEK CORPORATION,
a Colorado corporation ("Pledgor"), RENAISSANCE CAPITAL GROWTH & INCOME FUND
III, INC., a Texas corporation ("Renaissance III"), RENAISSANCE US GROWTH &
INCOME TRUST PLC, a public limited company registered in England and Wales
("RUSGIT"), BFSUS SPECIAL OPPORTUNITIES TRUST PLC, a public limited company
registered in England and Wales ("BFSUS") (Renaissance III, RUSGIT and BFSUS
collectively referred to as "Secured Party"), and RENAISSANCE CAPITAL GROUP,
INC., a Texas corporation, as Agent for the Lender (the "Agent").
RECITALS
A. Pledgor, Secured Party and Agent have entered into a Convertible Loan
Agreement of even date herewith (the "Convertible Loan Agreement"). Capitalized
terms used but not defined herein shall have the meanings set forth in the
Convertible Loan Agreement.
B. Pursuant to the terms of the Convertible Loan Agreement, Secured Party
will lend to Pledgor the aggregate principal amount of Three Million Dollars
($3,000,000) to be evidenced by the Pledgor's 7.50% Convertible Debentures of
even date herewith (the "Debentures").
C. Pledgor is the owner of the shares of capital stock hereto issued by the
Subsidiary described on Schedule A, and Pledgor has agreed to pledge and assign
to Secured Party a security interest in the Shares, together with any shares of
capital stock of any Subsidiary subsequently acquired or formed by Pledgor or an
affiliate (collectively, the "Shares"), to secure payment of the Obligations of
Pledgor under the Convertible Loan Agreement and Debentures. The Obligations
shall also consist of payment of the costs and expenses of that sale or
realization, including compensation to Secured Party and its agents and counsel,
and all expenses, liabilities, and advances made or incurred by Secured Party in
connection therewith, all as set forth in the Convertible Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, the parties agree as follows:
1. PLEDGE OF SHARES. Pledgor hereby pledges and, subject to the terms of
this Pledge Agreement, assigns to the Secured Party the Shares for the purpose
of securing the full and prompt payment, when due, by Pledgor of the
Obligations.
2. DELIVERY OF SHARES. Upon execution of this Pledge, Pledgor shall deliver
to Agent all the certificates representing the Shares, together with duly
executed stock powers, in blank. Agent shall hold all such certificates and
stock powers subject to the terms of this Pledge Agreement.
3. VOTING OF SHARES AND RECEIPT OF DIVIDENDS. Pledgor shall have the right
to vote the Shares, except as provided herein and in the Convertible Loan
Agreement and Debentures, upon the occurrence of an Event of Default or a
Default.
4. REPRESENTATIONS AND WARRANTIES. Pledgor hereby warrants, represents and
covenants as follows:
(i) Pledgor owns the Shares, free from any adverse claims and
Liens;
(ii) All Shares pledged in this Pledge Agreement are validly
authorized, issued, and outstanding, and are fully paid and nonassessable;
(iii) Pledgor will notify Secured Party of, and will defend the
Shares against, all claims and demands of all persons at any time claiming the
Shares or any interest therein;
(iv) Pledgor will pay all taxes and assessments upon the Shares
prior to the date of delinquency for payment of such taxes and assessments; and
5. PLEDGOR HAS THE FULL CORPORATE POWER, AUTHORITY AND CAPACITY TO GRANT
THE SECURITY INTEREST HEREUNDER. When the Obligations have been paid in full,
Agent shall promptly deliver the certificates representing the Shares then held
by it and all related stock powers to Pledgor.
6. OCCURRENCE OF EVENT OF DEFAULT. If an Event of Default or a Default
occurs, Agent or Secured Party shall have the right to exercise any rights and
remedies provided in the Convertible Loan Agreement, as Secured Party or Agent,
in its or their sole discretion, may deem necessary or appropriate. Secured
Party or Agent shall further have the right to exercise any remedies afforded a
secured party under the Uniform Commercial Code of Texas or any other applicable
law with respect to the Shares.
7. DURATION OF PLEDGE. This Pledge shall be terminated upon the earlier of:
(i) foreclosure by Secured Party of the security interest granted hereunder upon
the occurrence of a Default or an Event of Default, or (ii) the payment of the
Obligations.
8. APPLICATION OF PROCEEDS. The proceeds of any sale of, or other
realization upon, all or any part of the Shares, and any other monies held by
Secured Party under this Pledge Agreement, shall be applied in the following
order of priority:
(a) First, to payment of the costs and expenses of that sale or
realization, including compensation to Secured Party and its agents and counsel,
and all expenses, liabilities, and advances made or incurred by Secured Party in
connection therewith;
(b) Second, to payment of the interest in full on the Debentures;
(c) Third, to payment of the Principal Amount; and
(d) Finally, to payment of any surplus then remaining from such
proceeds and other monies to Pledgor or its successors or assigns, or as a court
of competent jurisdiction may direct.
If the proceeds of the Shares shall not suffice to pay all items specified
in clauses a. and b. above, Pledgor shall remain liable for the deficiency.
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9. MISCELLANEOUS.
a. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Upon the occurrence and
continuation of a Default, Secured Party is hereby appointed Pledgor's
attorney-in-fact, for the purpose of carrying out the provisions of this Pledge
Agreement and taking any action and executing any instruments which Secured
Party may deem necessary or advisable to accomplish the purposes hereof. This
appointment as attorney-in-fact is irrevocable and coupled with an interest.
Without limiting the generality of this appointment, upon such Default(i)
Secured Party shall have the right and power to receive, endorse, and collect
all checks made payable to the order of Pledgor which represent any dividend,
interest, or other payment or distribution in respect of all or any of the
Obligations and to give full discharge for the same, and (ii) Secured Party
shall have the right to exercise, as Pledgor's proxy, the powers of voting and
consent pertaining to the Obligations or any part thereof.
b. EXPENSES. Pledgor agrees to pay to Secured Party all expenses
(including expenses for legal service of every kind) relating to the enforcement
of any of the provisions of this Pledge Agreement, or any actual or attempted
sale or any exchange, enforcement, compromise, or settlement respecting any of
the Obligations, and any defense or assertion of Secured Party's rights and
claims, by litigation or otherwise, including expenses of insurance. All such
expenses will be Obligations secured under this Pledge Agreement.
c. ADDITIONAL COLLATERAL. In the event that any shares of capital stock
of any issuer shall hereafter be acquired by or otherwise issued to Pledgor,
Pledgor shall promptly (and in any event within ten (10) days after such
acquisition) deliver the certificates evidencing the same to Secured Party, to
be held as additional collateral to secure the payment of the Obligations,
together with the stock powers duly executed by Pledgor according to Secured
Party's instructions, at Secured Party's office as stated herein, or at such
other place as Secured Party may request.
d. GOVERNING LAW. This Pledge shall be governed by and construed and
enforced in accordance with the substantive laws of the State of Texas, without
regard to the conflicts of laws provisions thereof, and the applicable laws of
the United States. Venue and jurisdiction shall be in the state or federal
courts in Dallas County, Texas.
e. BINDING EFFECT. All of the terms, covenants, representations,
warranties and conditions herein shall be binding upon, and inure to the benefit
of, and be enforceable by the parties and their respective successors and
assignees.
f. WAIVER. This Pledge may not be amended, modified, superseded or
canceled, nor may any of the terms, covenants, representations, warranties or
conditions hereof be waived, except by a written instrument executed by the
party against whom such amendment, modification, supersedure, cancellation or
waiver is charged. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by any party of any condition, or of
any breach of any term, covenant, representation or warranty contained herein,
in any one or more instances, shall be deemed to be or construed as a further or
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continuing waiver of any such condition or breach or waiver of any other
condition or of any breach of any other term, covenant, representation or
warranty.
g. ATTORNEYS' FEES. If any party brings an action in connection with
the performance, breach or interpretation of this Pledge, or in any action
related to the transaction contemplated hereby, the prevailing party in such
action shall be entitled to recover from the losing party in such action all
reasonable costs and expenses of such litigation, including attorneys' fees,
court costs, costs of investigation, accounting and other costs reasonably
incurred or related to such litigation.
h. SEVERABILITY. If any provision hereof is determined to be illegal or
unenforceable, such determination shall not affect the validity or
enforceability of the remaining provisions hereof, all of which shall remain in
full force and effect.
i. FURTHER DOCUMENTS. Each party covenants and agrees that, from time
to time, after the date hereof, at the reasonable request of any other party,
and without further consideration, such party will execute and deliver such
other documents and take such other action reasonably required to carry out, in
all respects, the transactions contemplated and intended by this Pledge.
j. NOTICES. Any notices or other communications required or permitted
to be given by this Agreement or any other documents and instruments referred to
herein must be (i) given in writing and personally delivered, mailed by prepaid
certified or registered mail or sent by overnight service, such as FedEx, or
(ii) made by telex or facsimile transmission delivered or transmitted to the
party to whom such notice or communication is directed, with confirmation
thereupon given in writing and personally delivered or mailed by prepaid
certified or registered mail.
If to Pledgor: Simtek Corporation
000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: Holme Xxxxxxx & Xxxx LLP
1700 Lincoln, Suite 4100
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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If to Secured Party: Renaissance Capital Growth & Income Fund III, Inc.
c/o Renaissance Capital Group, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000-XX00
Xxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxx
Senior Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Renaissance US Growth & Income Trust PLC
c/o Renaissance Capital Group, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000-XX00
Xxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxx
Senior Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
BFSUS Special Opportunities Trust PLC
c/o Renaissance Capital Group, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000-XX00
Xxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxx
Senior Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
0000 X. Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Agent: Renaissance Capital Group, Inc.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000-XX 00
Xxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxx
Senior Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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with a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
0000 X. Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any notice delivered personally in the manner provided herein will be
deemed given to the party to whom it is directed upon the party's (or its
agent's) actual receipt. Any notice addressed and mailed in the manner provided
herein will be deemed given to the party to whom it is addressed at the close of
business, local time of the recipient, on the fourth business day after the day
it is placed in the mail, or, if earlier, the time of actual receipt.
(v) Parties in Interest. Nothing in this Pledge, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Pledge on any persons other than the parties and their respective successors and
assigns, nor is anything in this Pledge intended to relieve or discharge the
obligation or liability of any third persons to any party to this Pledge, nor
shall any provision give any third persons any right of subrogation or action
over or against any party to this Pledge.
(vi) Defined Terms. All capitalized terms, unless otherwise specified,
have the same meanings assigned to them in the Convertible Loan Agreement and
Debentures.
[Signature page follows.]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
and year written above.
PLEDGOR:
SIMTEK CORPORATION
By: /s/Xxxxxxx Xxxxxxxx
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Chief Executive Officer and President
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LENDER:
BFSUS SPECIAL OPPORTUNITIES TRUST PLC
By: /s/Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx,
President and CEO
RENAISSANCE US GROWTH & INCOME TRUST PLC
By: /s/Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx,
President and CEO
RENAISSANCE CAPITAL GROWTH & INCOME FUND III, INC.
By: Renaissance Capital Group, Inc.,
Investment Adviser
By: /s/Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
President and CEO
AGENT:
RENAISSANCE CAPITAL GROUP, INC.
By: /s/Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx,
President and CEO
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SCHEDULE A
Subsidiaries No. of Shares
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Q-DOT, Inc. 216,515
