EXHIBIT 10.38
PLEDGE AND SECURITY AGREEMENT
This Pledge and Security Agreement (the "Agreement"), is made as of the
____ day of May, 2001 by and among GLOBALTRON CORPORATION, a Florida
corporation (the "Buyer") and the Sellers listed on the signature page of this
Agreement (each a "Seller" and collectively, the "Sellers").
WHEREAS, the Sellers and the Buyer have entered on the date hereof into
a Purchase Agreement, dated May 15, 2001 (the "Purchase Agreement") pursuant to
which the Sellers are selling to the Buyer the Common Stock in exchange for the
sale and transfer by Buyer of the Globaltron Shares; and
WHEREAS, pursuant to the Purchase Agreement, the Sellers have
indemnification obligations to the Buyer (the "Obligations"); and
WHEREAS, each Seller has agreed to pledge to Buyer the number of
Globaltron Shares set forth opposite such Seller's name on Schedule A hereto
(the "Pledged Shares"), as a security for the Obligations; and
WHEREAS, capitalized terms used herein but not defined shall have the
meanings ascribed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, the parties hereto agree as follows:
1. Creation of Security Interest.
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As security for the Obligations, the Sellers hereby pledge and hereby
grant to the Buyer a first lien and security interest in the Pledged Shares.
Concurrently with the execution of this Agreement, the Sellers are delivering to
Proskauer Rose LLP, with address at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 (the
"Escrow Agent"), as holder of the Pledged Shares, (i) all stock certificates
representing the Pledged Shares and (ii) duly endorsed irrevocable stock powers
in blank therefor to be exercised only upon the determination of a Default, as
hereinafter defined.
2. Stock Dividends and Adjustments; Voting Rights.
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If, during the term of this Agreement, any reclassification of shares,
stock split, readjustment, exchange, substitution, warrant, option or right to
acquire additional securities, is effected or issued with respect to the Pledged
Shares or any part thereof, all shares or securities that the Sellers shall
become entitled to receive as a result thereof promptly shall be delivered to
the Escrow Agent and they shall constitute Pledged Shares. So long as a Default
(as hereinafter defined) shall not have occurred and be continuing, the Sellers
shall be entitled to receive all cash dividends payable with respect to, and to
exercise all rights to vote, the Pledged Shares. Upon the occurrence and during
the continuance of a Default, the Escrow Agent shall receive all such dividends
and neither party shall be entitled to exercise such voting rights.
3. Pledge Absolute.
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The liability of the Sellers and the Buyer under this Agreement shall
be absolute and unconditional irrespective of: (i) any lack of validity or
enforceability of the Purchase Agreement; and (ii) any circumstance which might
otherwise constitute a defense available to, or a discharge of, the Sellers or
the Buyer, as applicable.
4. Seller Representative.
----------------------
Unless otherwise specified herein, the Sellers shall act through a
person designated by Sellers (the "Sellers Representative") and the acts of the
Sellers Representative shall be binding upon the Sellers to the same extent as
if they committed or effectuated such acts. The Sellers Representative shall
initially be Xx. Xxxxx Xxxxxxxxx. The Sellers may change the Sellers
Representative by providing the Buyer and the Escrow Agent with written notice
signed by the holders of a majority or more of the Pledged Shares.
5. Assurances.
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The Sellers and the Buyer shall at the request of the other execute and
deliver all such further assignments and other documents and take all such
further action as the parties may reasonably request in order to effect the
purposes and provisions of this Agreement including to perfect, continue, better
assure or confirm the rights of the Buyer in the Pledged Shares provided for
hereunder.
6. Default; Remedies.
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(a) In the event that, at any time, Buyer shall, reasonably and in good
faith, determine that a Default (as defined in subparagraph (b) hereof) by the
Sellers exists, Buyer shall cause the Escrow Agent to deliver to each of the
Sellers a written notice (the "Default Notice"), which Default Notice shall
specify, in detail, (i) the alleged Default and (ii) if the claim of Buyer is
for a fixed and ascertainable amount only, the aggregate amount of such
indemnification obligation (after taking into account any deductible) together
with any estimate for fees and costs related to such claim (the "Indemnity
Amount"). If the actual damages are determined to be greater than the fixed and
ascertainable amount or if the costs and expenses are greater than estimated,
the Buyer shall not be limited in its remedies to what is set forth in the
Default Notice. The Sellers Representative shall have a period of fifteen (15)
business days following the provision of the Default Notice within which to
deliver to Buyer a written notice (the "Response Notice"), which Response Notice
shall advise Buyer (a) that the Sellers agree with the alleged Default and, if
the claim of Buyer is for a fixed and ascertainable amount,
with the Indemnity Amount set forth in the Default Notice, or (b) that the
Sellers do not agree with the alleged Default or, if the claim of Buyer is for a
fixed and ascertainable amount, with the Indemnity Amount set forth in the
Default Notice. If (i) the Sellers shall advise the Buyer, in the Response
Notice, that they agree with the alleged Default and the Indemnity Amount set
forth in the Default Notice or (ii) if the Sellers Representative fails to send
to Buyer a Response Notice, within the fifteen-days period described above, then
no dispute shall exist and the Escrow Agent shall proceed, if so instructed by
Buyer ("Buyer Instruction"), to deliver to Buyer an aggregate number of Pledged
Shares equal to the Indemnity Amount divided by the "Share Value" on the date of
the Buyer Instruction. The Share Value shall mean the greater of (i) $2.00 per
share and (ii) the average of the final trading price of a share of Buyer's
common stock during the 30-days period preceding the date of the Buyer
Instruction. If, on the other hand, the Sellers Representative shall advise the
Buyer in the Response Notice that the Sellers do not agree with the alleged
Default or, if the claim of Buyer is for a fixed and ascertainable amount, with
the Indemnity Amount set forth in the Default Notice (specifying in detail
Sellers' disagreement), a dispute (the "Dispute") shall be deemed to exist
between the Buyer and the Sellers. The Buyer and the Seller Representative shall
endeavor in good faith to resolve the Dispute by direct consultation and
negotiation with each other. In the event Buyer and Sellers Representative are
unable to resolve the Dispute within ten (10) business days after the provision
to the Buyer of the Response Notice, the Dispute shall be resolved by a court as
provided in Section 9 (a) hereof. From and after that point in time that a
Dispute shall be deemed to exist, if any cash or stock dividend,
reclassification of shares, stock split, readjustment, exchange, substitution,
warrant, option or right to acquire additional securities is effected or issued
with respect to the Pledged Shares, all shares or securities that the Sellers
shall become entitled to receive as a result thereof shall promptly be delivered
to the Escrow Agent and shall constitute Pledged Shares to be held until the
Dispute is resolved as provided herein (together with appropriate instruments of
transfer duly endorsed in blank).
If, in accordance with the terms and provisions of Section 10 (a) hereof, such a
court enters a final judgment determining indemnification proceeds, or any other
proceeds related thereto, to be paid to the Buyer by the Sellers, the Buyer, in
addition to any other remedies available at law, shall be entitled to exercise
all of the rights and remedies with respect to the Pledged Shares of a secured
party under the Uniform Commercial Code or any other applicable law.
(b) For purposes of this Agreement, a default ("Default") shall be
deemed to have occurred hereunder if (i) the Sellers are obligated to indemnify
the Buyer pursuant to Section 7.1 of the Purchase Agreement, subject to the
provisions of Section 7.2 thereof; and (ii) the Sellers sell, assign, transfer
or otherwise dispose of, or xxxxx x xxxx on or security interest in or option or
right with respect to, or otherwise encumber the Pledged Shares or any part
thereof or any interest therein.
7. Rights, Duties and Immunities of the Escrow Agent.
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(a) Acceptance by the Escrow Agent of its duties under this Agreement
is subject to the following terms and conditions, which all parties to this
Agreement hereby agree shall govern and control the rights, duties and
immunities of the Escrow Agent:
(i) The duties and obligations of the Escrow Agent are purely
ministerial in nature and are determined solely by the express provisions of
this Agreement. The Escrow Agent shall not be deemed to have any knowledge of or
responsibility for the terms of any other agreement, including the Purchase
Agreement, and the Escrow Agent shall not be required to construe any agreement
or document in connection herewith.
(ii) The Escrow Agent shall not be responsible in any manner
whatsoever for any failure or inability of the parties to this Agreement, or of
anyone else, to honor any of the provisions of this Agreement.
(iii) The parties hereto will reimburse and indemnify the
Escrow Agent for, and hold it harmless against, any loss, liability, damage or
expense, including but not limited to counsel fees and expenses arising out of
or in connection with its acceptance of, or the performance of its duties and
obligations under, this Agreement, except for losses, liabilities, damages and
expenses caused by the willful misconduct or gross negligence of the Escrow
Agent. The Buyer shall be responsible for 50% of the reimbursement and
indemnification obligations under this Section 7(a)(iii) and the Sellers,
jointly and severally, shall be responsible for 50% of the reimbursement
obligations under this Section 7(a)(iii). In no event will the Escrow Agent be
liable for any loss of asset value, consequential, indirect or special damages.
(iv) The Escrow Agent may act in reliance upon any signature
believed by it to be genuine and may assume that any person who has been
designated by the buyer or the Sellers to give written instructions, notice of
receipt or make any statements in connection with the provisions hereof is
authorized to do so. The Escrow Agent shall have no duty to make inquiry as to
the genuineness, accuracy or validity of any statements or instruments or any
signatures on any statements or instructions. The Buyer and the Sellers agree
that, for the purposes of this Agreement, the names and true signatures of each
individual authorized to act on behalf of each of them will be set forth on a
separate writing as drafted by the parties if either of them elects to have
another person or entity to act on their behalf. Subject to the provisions of
this Agreement, in the event that the Escrow Agent is uncertain as to its duties
or the manner in which any of its duties shall be performed, the Escrow Agent
shall notify the Buyer and the Sellers, and the Escrow Agent need not take any
action or perform any act until the uncertainty is resolved to the satisfaction
of the Escrow Agent.
(v) The Escrow Agent shall not be liable for any error of
judgment, or for any act done or step taken or omitted by it, or for anything
which it may do or refrain from doing in connection herewith, except its own
willful misconduct or gross negligence.
(vi) The Escrow Agent may seek the advice of such legal
counsel as it deems necessary in the event of any dispute or question as to the
construction of any of the provisions of this Agreement or its duties hereunder,
and it shall incur no liability and
shall be fully protected in respect of any action taken, omitted or suffered by
it in accordance with the opinion of such counsel.
(vii) The Escrow Agent makes no representation as to the
validity, value, genuineness or collectibility of any security, document or
instrument held by or delivered to it.
(viii) Sellers expressly agree that the Escrow Agent shall not
be precluded from or restricted in any manner whatsoever from representing the
Buyer or otherwise acting as attorneys for the Buyer in any matter, including
without limitation any court proceeding or other matter related to the Purchase
Agreement or this Agreement, whether or not there is a dispute between the Buyer
and the Sellers with respect thereto.
(b) If the Escrow Agent has any doubts as to whether or not it should
release the Pledged Shares, the Escrow Agent may, at the Escrow Agent's option,
deposit the Stock with the clerk of the United States District Court for the
Southern District of New York or the Supreme Court of the State of New York,
County of New York upon commencement of an action in the nature of an
interpleader and the Escrow Agent shall thereupon be released and discharged
from any and all further obligations arising in connection with this Agreement.
(c) The parties agree that in the event that the Escrow Agent becomes
unable to perform its duties under this Agreement, Buyer, with prior written
notice to the Sellers, shall designate a new Escrow Agent (who must be an
attorney or law firm licensed to practice in the States of New York or Florida,
or a financial entity licensed as a commercial bank under the laws of New York
or Florida or by authority of the Federal Reserve System) to perform the
obligations under this Agreement.
8. Termination; Distribution of Pledged Shares.
--------------------------------------------
(a) The security interest and assignment created and granted hereunder
shall terminate 12 months after the Closing Date; provided, however, that in the
event that a Dispute(s) exists, this Agreement shall remain in effect until the
resolution of such Dispute(s).
(b) If no Dispute exists as of 12 months after the date hereof, then
the Pledged Shares, stock powers and other instruments related thereto shall be
returned to the Sellers, the security interest in the Pledged Shares shall
terminate and all obligations of the Escrow Agent, Sellers and the Buyer under
this Agreement shall terminate.
(c) If a Dispute exists as of 12 months after the Closing Date and the
claim of the Buyer shall be for a fixed and determinable amount only, the
Pledged Shares other than the Disputed Shares (as hereinafter defined), together
with the stock powers and other instruments related thereto shall be returned to
Sellers and the security interest in such shares shall terminate. The Disputed
Shares held shall be held by the Escrow Agent
hereunder until resolution of the Dispute. For purposes of this Agreement, the
Disputed Shares shall mean the number of Pledged Shares resulting from dividing
the fixed and determinable claim for indemnification of Buyer together with any
Buyer's reasonable estimate for fees and costs related to such claim by the
Disputed Share Value (as herein defined), such calculation to be made on the one
year anniversary from the Closing Date.
(d) If a Dispute exists as of 12 months after the Closing Date and the
claim of the Buyer shall not be for a fixed and determinable amount, then all of
the Pledged Shares shall be held by the Escrow Agent hereunder until resolution
of the Dispute.
(e) A Dispute shall be resolved upon the earlier of (a) an agreement,
duly executed between Buyer and each of the Sellers specifying the resolution of
such Dispute or (b) by final court order in accordance with Section 10(a). For
purposes of determining the number of Pledged Shares that will be transferred to
Buyer in connection with the resolution of a Dispute, the value of each share
shall be the Disputed Share Value, which is herein defined as the greater of
(i)$2,00 per share and (ii) the average of the final trading price of a share of
Buyer's common Stock during the 30-days period preceding the one year
anniversary of the Closing Date.
9. Notices.
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All notices and other communications provided for herein shall be dated
and in writing and shall be deemed to have been duly given (x) on the date of
delivery, if delivered personally or by telecopier, receipt confirmed, (y) on
the second following business day, if delivered by a recognized overnight
courier service, or (z) seven days after mailing, if sent by registered or
certified mail, return receipt requested, postage prepaid, in each case, to the
party to whom it is directed at the following address (or at such other address
as any party hereto shall hereafter specify by notice in writing to the other
parties hereto):
(i) If to the Buyer, to it at the following address:
Globaltron Corporation
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx Xxx, Esq.
(ii) If to any Sellers or the Escrow Agent, to it at the address
set forth below its name on the
signature page hereto.
10. Miscellaneous.
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(a) This Agreement shall be governed by and construed and enforced in
accordance with, the laws of the State of Florida, without regard to conflicts
of law principles. Any disputes with respect to the interpretation of this
Agreement or the rights and obligations of the parties hereto shall be
exclusively brought in the U.S. District Court for the Southern District of
Florida or, if such Court lacks subject matter jurisdiction, in the court of
general jurisdiction in Dade County, Miami, Florida. Each of the parties waives
any right to object to the jurisdiction or venue of either of such Courts or to
claim that such Courts are an inconvenient forum.
(b) If any term or provision of this Agreement shall, for any reason,
be held to be illegal, invalid or unenforceable under the laws of any
Governmental Authority to which this Agreement is subject, the term or provision
shall be deemed severed from this Agreement, and the remaining terms and
provisions shall be enforceable, to the fullest extent, permitted by law.
(c) This Agreement shall inure to the benefit of and shall be binding
upon the respective successors, assigns and legal representatives of the parties
hereto.
(d) Captions used herein are inserted for reference purposes only and
shall not affect the interpretation or meaning of this Agreement.
(e) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
(f) This Agreement may not be changed, modified or, except as provided
in Section 5 hereof, terminated, in whole or in part, except by a written
instrument signed by the party against whom any such change, modification or
termination is sought to be enforced.
(g) If the Buyer and the Sellers are involved in a dispute arising
under this Agreement, then the prevailing party in such dispute shall be
entitled to recover from the losing party all costs in connection with such
dispute, including without limitation attorney's fees, expenses and costs
reasonably incurred in connection with litigation or other costs arising in
connection with the enforcement of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
THE BUYER:
GLOBALTRON CORPORATION
By:
------------------------------------------
Name:
Title:
SELLERS:
XXXXXXX LIMITED.
By:
------------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Aleman, Cordero, Xxxxxxx & Xxx Trust
(Panama) S.A.
0xx Xxxxx, Xxxxx Bank Building
East 53rd Street, Marbella
X.X. Xxx 0-0000 Xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx of Panama
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
XXXXXX OVERSEAS, S.A..
By:
------------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Aleman, Cordero, Xxxxxxx & Xxx Trust
(Panama) S.A.
0xx Xxxxx, Xxxxx Bank Building
East 53rd Street, Marbella
X.X. Xxx 0-0000 Xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx of Panama
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
NERCOL INVESTMENTS, S.A..
By:
------------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Aleman, Cordero, Xxxxxxx & Xxx Trust
(Panama) S.A.
0xx Xxxxx, Xxxxx Bank Building
East 53rd Street, Marbella
X.X. Xxx 0-0000 Xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx of Panama
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
BRISCORD TRADING, S.A..
By:
------------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Aleman, Cordero, Xxxxxxx & Xxx Trust
(Panama) S.A.
0xx Xxxxx, Xxxxx Bank Building
East 53rd Street, Marbella
X.X. Xxx 0-0000 Xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx of Panama
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
TRENSOR INVETMENTS, S.A.
By:
------------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Aleman, Cordero, Xxxxxxx & Xxx Trust
(Panama) S.A.
0xx Xxxxx, Xxxxx Bank Building
East 53rd Street, Marbella
X.X. Xxx 0-0000 Xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx of Panama
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
BONING INTERNATIONAL, S.A..
By:
------------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Aleman, Cordero, Xxxxxxx & Xxx Trust
(Panama) S.A.
0xx Xxxxx, Xxxxx Bank Building
East 53rd Street, Marbella
X.X. Xxx 0-0000 Xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx of Panama
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
SANDBAY INC.
By:
------------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Loeb Block & Partners LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
HEBRON LIMITED (BVI)
By:
------------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Loeb Block & Partners LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
OCEAN SPRAY INVESTMENTS S.A.
By:
------------------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Loeb Block & Partners LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
ESCROW AGENT:
PROSKAUER ROSE LLP
By:
------------------------------------------
Name:
Title:
Address: 0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000.0000
Schedule A
Seller Aggregate number of Globaltron Shares pledged to
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the Buyer Closing
-----------------
Xxxxxxx Limited 5,745,600
Xxxxxx Overseas, S.A. 216,000
Nercol Investments, S.A. 216,000
Briscord Trading, S.A. 216,000
Trensor Investments, S.A. 216,000
Boning International, S.A. 216,000
Sandbay Inc. 72,000
Hebron Limited (BVI) 57,600
Ocean Spray Investments S.A. 244,800
Total 7,200,000
