Exhibit 10.2
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT is made as of July 21, 2000, by and between
Xxxxxx Xxxxxxx ("Pledgor") and Primix Solutions Inc., a Delaware corporation
("Pledgee").
Section 1. PLEDGE OF STOCK. Pledgor hereby pledges, assigns, grants a
first priority security interest in, and delivers to Pledgee the Stock (as
hereinafter defined), to be held by Pledgee subject to the terms and conditions
hereinafter set forth, the certificates for which, accompanied by stock powers
or other appropriate instruments of assignment thereof duly executed by Pledgor,
have been delivered to Pledgee.
Section 2. DEFINITIONS.
(a) The term "STOCK" as used herein includes the shares of
capital stock described in EXHIBIT A attached hereto. The term "Stock" shall
further include all cash or non-cash income from the shares of Stock pledged
hereunder, all increases therein and proceeds thereof, other than income,
increases or proceeds received by Pledgor pursuant to ss.6 hereof, and any
dividend paid in respect of the Stock in the form of additional shares of stock,
options to purchase stock, warrants or convertible securities (a "Non-Cash
Dividend").
(b) The term "OBLIGATIONS" as used herein means all
indebtedness, obligations and liabilities of Pledgor to Pledgee, whether now
existing or hereafter arising, under that certain Promissory Note in the face
amount of EIGHT HUNDRED THOUSAND DOLLARS ($800,000) made by Pledgee in favor of
Pledgor on July 21, 2000 (the "Note") and all future advances or loans given by
Pledgee to Pledgor under any other arrangements.
(c) The term "Event of Default" as used herein shall mean the
occurrence of an event of default under the Note.
Section 3. SECURITY FOR OBLIGATIONS. This Agreement and the pledge of
the Stock hereunder is made in favor of Pledgee as security for the Obligations.
Upon a prepayment of the principal amount of the Note made by Pledgor to the
Pledgee from time to time the number of shares of Stock pledged hereunder shall
be proportionately reduced by the amount of such prepayment relative to the
original principal amount of the Note.
Section 4. LIQUIDATION, RECAPITALIZATION, ETC. Any sums paid upon or
with respect to any of the Stock upon the liquidation or dissolution of the
issuer thereof shall be paid over to Pledgee to be held by it as security for
the Obligations; and in case any distribution of capital shall be made on or in
respect of any of the Stock or any property shall be distributed upon or with
respect to any of the Stock pursuant to the recapitalization or reclassification
of the capital of the issuer thereof or pursuant to the reorganization thereof,
the capital or property so distributed shall be delivered to Pledgee to be held
by it as security for the Obligations. All sums of money and property paid or
distributed in respect of the Stock upon such a liquidation,
dissolution, recapitalization or reclassification which are received by Pledgor
shall, until paid or delivered to Pledgee, be held in trust for Pledgee as
security for the Obligations.
Section 5. WARRANTY OF TITLE. Pledgor warrants that: (a) Pledgor is the
lawful, record and beneficial owner of the Stock; (b) the Stock is not subject
to any pledge, lien, security interest, charge, option, restrictions or other
encumbrances except the security interest created by this Agreement; (c) Pledgor
has the power, authority and legal right to pledge all of such Stock pursuant to
this Agreement; (d) no person has any present or future right (conditional,
preemptive or otherwise) to acquire, vote, register or restrict the transfer of
the Stock; and (d) the execution and delivery of this Agreement and the pledging
of the Stock hereunder do not contravene any law or any rule or regulation
thereunder or any judgment, decree or order of any tribunal, or conflict with,
or result in a breach of or default under, or give a rise of acceleration under,
any agreement or instrument to which Pledgor is a party or any of Pledgor's
property is bound.
Section 6. DIVIDENDS, VOTING, ETC., PRIOR TO MATURITY. So long as no
Event of Default has occurred and is continuing, Pledgor shall be entitled to
receive all cash dividends paid in respect of the Stock, to vote the Stock and
to give consents, waivers and ratifications in respect of the Stock, PROVIDED
that no vote shall be cast, or consent, waiver or ratification given or action
taken which would be inconsistent with or violate any provisions of this
Agreement, and PROVIDED FURTHER, that upon an Event of Default, Pledgee may
cause the Stock to be transferred into its own name as collateral security. All
such rights of Pledgor to receive cash dividends shall cease in case an Event of
Default shall have occurred and be continuing. All such rights of Pledgor to
vote and give consents, waivers and ratifications with respect to the Stock
shall, at Pledgee's option, as evidenced by Pledgee notifying Pledgor of such
election, cease in case an Event of Default shall have occurred and be
continuing. In the event that a Non-Cash Dividend shall be paid in respect of
the Stock, Pledgor shall promptly deliver to Pledgee the certificates issued in
connection with such Non-Cash Dividend, if any, together with stock powers or
other appropriate instruments of assignment thereof duly executed by Pledgor.
Section 7. REMEDIES. If an Event of Default shall have occurred and be
continuing, Pledgee shall thereafter have the following rights and remedies (to
the extent permitted by applicable law) in addition to the rights and remedies
of a secured party under the Uniform Commercial Code of Massachusetts, all such
rights and remedies being cumulative, not exclusive, and enforceable
alternatively, successively or concurrently, at such time or times as Pledgee
deems expedient:
(a) If Pledgee so elects and gives notice of such election to
Pledgor, Pledgee may vote any or all shares of the Stock and give all consents,
waivers and ratifications in respect of the Stock and otherwise act with respect
thereto as though it were the outright owner thereof (Pledgor hereby irrevocably
constituting and appointing Pledgee the proxy and attorney-in-fact of Pledgor,
with full power of substitution, to do so);
(b) Pledgee may demand, xxx for, collect or make any
compromise or settlement Pledgee deems suitable in respect of the Stock;
(c) Pledgee may sell, resell, assign and deliver, or otherwise
dispose of any or all of the Stock, for cash and/or credit and upon such terms
at such place or places and at such time or times and to such persons, firms,
companies or corporations as Pledgee thinks expedient, all without demand for
performance by Pledgor or any notice or advertisement whatsoever except such as
may be required by law; and
(d) Pledgee may cause all or any part of the Stock held by it
to be transferred into its name or the name of its nominee or nominees.
Pledgee may enforce its rights hereunder without any other notice and
without compliance with any other condition precedent now or hereunder imposed
by statute, rule of law or otherwise (all of which are hereby expressly waived
by Pledgor, to the fullest extent permitted by law). Pledgor acknowledges that
ten (10) calendar days' notice of any public sale or of that date on or after
which a private sale may be effected is reasonable notice. Pledgee may buy any
part or all of the Stock at any public sale, and if any part or all of the Stock
is of a type customarily sold in a recognized market or is of the type which is
the subject of widely-distributed standard price quotations, Pledgee may buy at
a private sale and may make payments thereof by any means. Pledgee may apply the
cash proceeds actually received from any sale or other disposition of the Stock
to the reasonable expenses of retaking, holding, preparing for sale, selling and
the like, to reasonable attorneys' fees, and all legal expenses, travel and
other expenses which may be incurred by Pledgee in attempting to collect the
Obligations or to enforce this Agreement or in the prosecution or defense of any
action or proceeding related to the subject matter of this Agreement; and then
to the Obligations, and any surplus shall be paid to Pledgor.
Pledgor recognizes that Pledgee may be unable to effect a public sale
of the Stock by reason of certain prohibitions contained in the Securities Act
of 1933, as amended, but may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers or to a public sale which is
restricted to residents of the Commonwealth of Massachusetts. Pledgor agrees
that any such private sales or such restricted public sales may be at prices and
other terms less favorable to the seller than if sold at public sales and that
such private sales or such restricted public sales shall not by reason thereof
be deemed not to have been made in a commercially reasonable manner. Pledgee
shall be under no obligation to delay a sale of any of the Stock for the period
of time necessary to permit the issuer of such securities to register such
securities for public sale under the Securities Act of 1933, as amended, even if
the issuer would agree to do so.
In all events, Pledgee shall give Pledgor not less than ten (10)
calendar days' written notice of any proposed disposition of the Stock.
Section 8. MARSHALLING. Pledgee shall not be required to marshal any
present or future security for (including but not limited to this Agreement and
the Stock pledged hereunder), or guarantees of, the Obligations, or to resort to
such security or guarantees in any particular order; and all of its rights
hereunder and in respect of such security and guarantees shall be cumulative and
in addition to all other rights, however existing or arising. To the extent that
he lawfully may, Pledgor hereby agrees that he will not invoke any law relating
to the marshalling of collateral which might cause delay in or impede the
enforcement of Pledgee's rights under this Agreement or under any other
instrument evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
guaranteed, and to the extent that it lawfully may Pledgor hereby irrevocably
waives the benefits of all such laws.
Section 9. PLEDGOR'S OBLIGATIONS NOT AFFECTED. The obligations of
Pledgor hereunder shall remain in full force and effect without regard to, and
shall not be impaired by: (a) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of Pledgee; (b)
any exercise or nonexercise, or any waiver, by Pledgee of any right, remedy,
power or privilege under or in respect of the Obligations or any of any security
therefor (including this Agreement); (c) any amendment to or modification of any
instrument (other than this Agreement) securing any of the Obligations; or (d)
the taking of additional security for, or any guaranty of, any of the
Obligations or the release or discharge or termination of any security or
guaranty for any of the Obligations; whether or not Pledgor shall have notice or
knowledge of any of the foregoing.
Section 10. TRANSFER, ETC., BY PLEDGOR. Without the prior written
consent of Pledgee, Pledgor will not sell, assign, transfer or otherwise dispose
of, grant any option with respect to, or pledge or grant any security interest
in or otherwise encumber any of the Stock or any interest therein, except for
the pledge thereof provided for in this Agreement.
Section 11. FURTHER ASSURANCES. Pledgor will, from time to time,
execute and deliver to Pledgee all such other and further instruments and
documents and take or cause to be taken all such other and further action as
Pledgee may reasonably request in order to effect and confirm more securely in
Pledgee all rights contemplated in this Agreement.
Section 12. PLEDGEE'S EXONERATION. Under no circumstances shall Pledgee
be deemed to assume any responsibility for or obligation or duty with respect to
the Stock or any matter or proceedings arising out of or relating thereto, other
than to exercise reasonable care in the physical custody of the Stock. Pledgee
shall not be required to take any action of any kind to collect, preserve or
protect its or Pledgor's rights in the Stock or against other parties thereto,
other than to exercise reasonable care in the physical custody of the Stock.
Section 13. NO WAIVER, ETC. No act, failure or delay by Pledgee shall
constitute a waiver of its rights and remedies hereunder or otherwise. No single
or partial waiver by Pledgee of any default or right or remedy which it may have
shall operate as a waiver of any other default,
right or remedy or of the same default, right or remedy on a future occasion.
Pledgor hereby waives presentment, notice of dishonor and protest of all
instruments, included in or evidencing any of the Obligations, and any and all
other notices and demands whatsoever (except as expressly provided herein).
Section 14. NOTICE, ETC. All communications herein provided shall be in
writing and shall be sufficient if sent by United States mail, registered or
certified, postage prepaid, delivered by messenger, overnight delivery service
or facsimile, addressed as follows:
If to Pledgor, at the address set forth below Pledgor's signature.
If to Pledgee: Primix Solutions Inc.
Xxx Xxxxxxx Xxxxxxxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
or to such other address as the party to receive any such communication or
notice may have designated by written notice to the other party.
Any notice given pursuant to this Section shall be deemed to have been
given and received when actually delivered, upon receipt of electronic
confirmation if by facsimile, one business day after dispatch by a recognized
overnight delivery service, or three business days after mailing by certified or
registered mail with proper postage affixed and return receipt requested.
Section 15. TERMINATION. This Agreement shall terminate at such time as
all of the Obligations shall have been paid in full, and upon such termination,
Pledgor shall be entitled to the return of such Stock in the possession or
control of Pledgee as has not theretofore been disposed of pursuant to the
provisions hereof and as to which Pledgee has not received notice of a junior
pledge, together with any moneys and other property of Pledgor at the time held
by Pledgee hereunder.
Section 16. MISCELLANEOUS PROVISIONS.
(a) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a written instrument expressly
referring to this Agreement and to the provisions so modified or limited, and
executed by the party to be charged.
(b) This Agreement is personal and may not be assigned by
Pledgor. This Agreement and all obligations of Pledgor hereunder shall be
binding upon his heirs, executors and administrators. Pledgee shall have the
right to assign this Agreement, without any restriction, and Pledgee's rights
and remedies under this Agreement shall inure to the benefit
of its assigns and successors by way of merger, consolidation or sale of
substantially all of the assets or stock of Pledgee.
(c) This Agreement and the obligations of Pledgor hereunder
shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts.
(d) The descriptive section headings have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
If any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall be in no way
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein.
(e) This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall be deemed to
be one and the same instrument.
(f) To the extent permitted by applicable law, Pledgor hereby
waives trial by jury in any proceeding brought for the interpretation or
enforcement of this Agreement or for a determination of the rights of the
parties hereunder.
Section 17. CONSENT TO JURISDICTION. Pledgor and Pledgee irrevocably
consent and submit to the jurisdiction of the United States District Court for
the District of Massachusetts, and the Courts of the Commonwealth of
Massachusetts in connection with any action proceeding of claim arising our of
or relating to this Agreement and/or any instrument or document required hereby
or incident or collateral hereto.
IN WITNESS WHEREOF, Pledgor and Pledgee have caused this Agreement to be duly
executed as of the date first above written.
"PLEDGOR"
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Xxxxxx Xxxxxxx
Address:
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"PLEDGEE"
PRIMIX SOLUTIONS INC.
By:
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Name:
Title:
SPOUSE'S CONSENT:
I, as the spouse of Xxxxxx Xxxxxxx, acknowledge that I have read the foregoing
Stock Pledge Agreement, that I understand the contents thereof, and that I
hereby waive any and all rights to the Stock described therein, to the extent
such rights conflict with rights of Pledgee thereunder.
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Name:
EXHIBIT A
ISSUER CLASS OF STOCK NUMBER OF SHARES
Primix Solutions Inc. Common Stock 200,000
