Exhibit 10.4
AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this "Agreement") is made as of
September 15, 2000 by XXXXXX X. XXXXXXXX ("Pledgor") in favor of IXYS
USA INC., a Delaware corporation ("Pledgee").
RECITALS
A. Pledgor and IXYS Corporation, a California corporation ("IXYS
California") entered into a Stock Purchase Agreement dated as of
November 18, 1995 (the "Stock Purchase Agreement") pursuant to which Pledgee
agreed to issue, and Pledgor agreed to purchase, common stock of the Pledgee.
B. In connection with the Stock Purchase Agreement, Pledgor executed in
favor of Pledgee a promissory note (as the same is being amended concurrently
herewith, and as it may be amended further, the "Note"), in the original
principal amount of $51,331.85 (the "Loan"), secured by a Pledge Agreement dated
November 18, 1995 (the "Original Pledge Agreement").
C. The Pledgee is the successor in interest to IXYS California, by virtue
of the merger of IXYS California with and into the Pledgee.
D. Pledgor and Pledgee desire to amend and restate the Original Pledge
Agreement in its entirety to provide for the automatic release of the Collateral
upon the satisfaction of certain conditions, to the extent, in the manner and
subject to the terms and conditions set forth herein.
E. Xxxxxx Xxxxxxxx (the "Pledgeholder") shall continue to serve as agent
for Pledgee, and as an escrow agent pursuant to a Joint Escrow Instructions and
Pledgeholder Agreement, dated November 18, 1995, among Pledgor, Pledgee and the
Pledgeholder (the "Joint Escrow Instructions").
AGREEMENT
Pledgor hereby agrees as follows:
1. SECURITY INTEREST.
As security for the full, prompt and complete payment and performance when
due (whether by stated maturity, by acceleration or otherwise) of all
indebtedness of Pledgor to Pledgee created under the Note (all such indebtedness
being the "Liabilities"), together with, without limitation, the prompt payment
of all expenses, including, without limitation, reasonable attorneys' fees and
legal expenses, incidental to the collection of the Liabilities and the
enforcement or protection of Pledgee's lien in and to the collateral pledged
hereunder, Pledgor hereby pledges to Pledgee, and grants to Pledgee a first
priority security interest in, all of the following (collectively, the
"Collateral"): (a) three million nine hundred forty eight thousand six hundred
four (3,948,604) shares of common stock of Pledgee (the "Old Shares")
represented by Certificate number C-256 or any certificate representing shares
of the Common Stock of IXYS Corporation, a Delaware corporation, into which the
Old Shares have been converted (the "Pledged Shares"), and all dividends, cash,
instruments, and other property or proceeds from time to time received,
receivable, or otherwise distributed in respect of or in exchange for any or all
of the Pledged Shares; (b) all voting trust certificates held by Pledgor
evidencing the right to vote any Pledged Shares subject to any voting trust; and
(c) all additional shares and voting trust certificates from time to time
acquired by Pledgor in any manner (which
1.
additional shares will be deemed to be part of the Pledged Shares), and the
certificates representing such additional shares, and all dividends, cash,
instruments, and other property or proceeds from time to time received,
receivable, or otherwise distributed in respect of or in exchange for any or all
of such shares. The term "indebtedness" is used herein in its most comprehensive
sense and includes any and all advances, debts, obligations and Liabilities
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether recovery upon such
indebtedness may be or hereafter becomes unenforceable.
2. USE OF COLLATERAL.
At any time, without notice, and at the expense of Pledgor, Pledgee in its
name or in the name of its nominee or of Pledgor may, but will not be obligated
to: (a) collect by legal proceedings or otherwise all dividends (except cash
dividends other than liquidating dividends), interest, principal payments and
other sums now or hereafter payable upon or on account of the Collateral; (b)
enter into any extension, reorganization, deposit, merger or consolidation
agreement, or any agreement in any wise relating to or affecting the Collateral,
and in connection therewith may deposit or surrender control of the Collateral
thereunder, accept other property in exchange for the Collateral and do and
perform such acts and things as it may deem proper, and any money or property
received in exchange for the Collateral will be applied to the indebtedness or
thereafter held by it pursuant to the provisions hereof; (c) insure, process and
preserve the Collateral; (d) cause the Collateral to be transferred to its name
or to the name of its nominee; and (e) exercise as to the Collateral all the
rights, powers and remedies of an owner, except that so long as no default
exists under the Note or hereunder Pledgor will retain all voting rights as to
the Pledged Shares.
3. PAYMENT OF TAXES.
Pledgor will pay, prior to delinquency, all taxes, charges, liens and
assessments against the Collateral, and upon the failure of Pledgor to do so,
Pledgee at its option may pay any of them and will be the sole judge of the
legality or validity thereof and the amount necessary to discharge the same.
4. ACCELERATION.
At the option of Pledgee and without necessity of demand or notice, all or
any part of the indebtedness of Pledgor will immediately become due and payable
irrespective of any agreed maturity, upon the happening of any of the following
events: (a) failure to keep or perform any of the terms or provisions of this
Agreement; (b) failure to pay any installment of principal or interest on the
Note when due; (c) the levy of any attachment, execution or other process
against the Collateral; or (d) the insolvency, commission of an act of
bankruptcy, general assignment for the benefit of creditors, filing of any
petition in bankruptcy or for relief under the provisions of Title 11 of the
United States Code of, by, or against Pledgor.
2.
5. FORECLOSURE.
In the event of the nonpayment of any indebtedness when due, whether by
acceleration or otherwise, or upon the happening of any of the events specified
in the last preceding paragraph, Pledgee may then, or at any time thereafter, at
its election, apply, set off, collect or sell in one or more sales, or take such
steps as may be necessary to liquidate and reduce to cash in the hands of
Pledgee in whole or in part, with or without any previous demands or demand of
performance or notice or advertisement, the whole or any part of the Collateral
in such order as Pledgee may elect, and any such sale may be made either at
public or private sale at its place of business or elsewhere, or at any broker's
board or securities exchange, either for cash or upon credit or for future
delivery; provided, however, that if such disposition is at private sale, then
the purchase price of the Collateral will be equal to the public market price
then in effect, or, if at the time of sale no public market for the Collateral
exists, then, in recognition of the fact that the sale of the Collateral would
have to be registered under the Securities Act of 1933, as amended, and that the
expenses of such registration are commercially unreasonable for the type and
amount of collateral pledged hereunder, Pledgee and Pledgor hereby agree that
such private sale will be at a purchase price mutually agreed to by Pledgee and
Pledgor or, if the parties cannot agree upon a purchase price, then at a
purchase price established by a majority of three independent appraisers
knowledgeable of the value of the Collateral, one named by Pledgor within ten
(10) days after written request by the Pledgee to do so, one named by Pledgee
within such ten (10) day period, and the third named by the two appraisers so
selected, with the appraisal to be rendered by such body within thirty (30) days
of the appointment of the third appraiser. The cost of such appraisal,
including all appraiser's fees, will be charged against the proceeds of sale as
an expense of such sale. Pledgee may be the purchaser of any or all Collateral
so sold and hold the same thereafter in its own right free from any claim of
Pledgor or right of redemption. Demands of performance, notices of sale,
advertisements and presence of property at sale are hereby waived, and Pledgee
is hereby authorized to sell hereunder any evidence of debt pledged to it. Any
sale hereunder may be conducted by any officer or agent of Pledgee.
In the event of the nonpayment of any indebtedness when due, whether by
acceleration or otherwise, Pledgeholder will, at the direction of Pledgee,
either deliver the Collateral to Pledgee or follow Pledgee's instructions
regarding transfer of the Collateral. Pledgor hereby appoints Pledgeholder and
any successor of Pledgeholder as escrow agent under the Joint Escrow
Instructions as his or her lawful attorney-in-fact to take such action as may be
necessary or appropriate to cause the Collateral to be transferred to Pledgee or
to any purchaser, including, without limitation, (a) to date and filling any
stock assignments necessary for the transfer in question, (b) to deliver same
together with the certificate(s), if any, evidencing the Collateral to be
transferred to the Pledgee or the purchaser.
6. APPLICATION OF SALE PROCEEDS.
The proceeds of the sale of any of the Collateral and all sums received or
collected by Pledgee from or on account of the Collateral will be applied by
Pledgee to the payment of expenses incurred or paid by Pledgee in connection
with any sale, transfer or delivery of the Collateral, to the payment of any
other costs, charges, attorneys' fees or expenses mentioned herein, and to the
payment of the indebtedness or any part hereof, all in such order and manner as
Pledgee in its discretion may determine. Pledgee will then pay any balance to
Pledgor.
3.
7. TRANSFER OF COLLATERAL.
Upon the transfer of all or any part of the indebtedness Pledgee may
transfer all or any part of the Collateral and will be fully discharged
thereafter from all liability and responsibility with respect to the Collateral
so transferred, and the transferee will be vested with all the rights and powers
of Pledgee hereunder with respect to the Collateral so transferred; but with
respect to any Collateral not so transferred Pledgee will retain all rights and
powers hereby given.
8. RELEASE OF COLLATERAL.
8.1 Partial Release. Pledgee agrees that so long as no default exists
under the Note or hereunder, Pledged Shares shall, upon the request of Pledgor,
be released from the Collateral as follows: upon receipt of a written
undertaking from Pledgor to (i) sell the Pledged Shares so released for cash and
(ii) to pay the Pledgee as a payment under the Note an amount equal to thirty
percent (30%) of the proceeds of such sale within fifteen (15) days of the
release, Pledged Shares shall be released from the Collateral in the amount
requested by Pledgor.
8.2 Optional Release. Pledgee, or Pledgeholder at the direction of
Pledgee, may at any time deliver the Collateral or any part thereof to Pledgor
and the receipt thereof by Pledgor will be a complete and full acquittance for
the Collateral so delivered, and Pledgee and Pledgeholder will thereafter be
discharged from any liability or responsibility therefor.
9. PRESERVATION OF RIGHTS, POWERS AND REMEDIES.
Until all indebtedness will have been paid in full the power of sale and
all other rights, powers and remedies granted to Pledgee hereunder will continue
to exist and may be exercised by Pledgee at any time and from time to time
irrespective of the fact that the indebtedness or any part thereof may have
become barred by any statute of limitations, or that the personal liability of
Pledgor may have ceased. The rights, powers and remedies given to Pledgee by
this Agreement will be in addition to all rights, powers and remedies given to
Pledgee by virtue of any statute or rule of law. Any forbearance or failure or
delay by Pledgee in exercising any right, power or remedy hereunder will not be
deemed to be a waiver of such right, power or remedy, and any single or partial
exercise of any right, power or remedy hereunder will not preclude the further
exercise thereof; and every right, power and remedy of Pledgee will continue in
full force and effect until such right, power or remedy is specifically waived
by an instrument in writing executed by Pledgee.
10. MISCELLANEOUS.
10.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and no party will be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein.
4.
10.2 Successors And Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement will inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
10.3 Governing Law. This Agreement will be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
10.4 Titles And Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
10.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement will be given in writing and will be deemed
effectively given upon personal delivery to the party to be notified by hand or
professional courier service, by telecopy or by facsimile, one (1) day after
deposit with Federal Express or other overnight delivery service, or two (2)
days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate by five (5) days' advance written notice to
the other parties.
10.6 Amendments And Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely), with the written
consent of Pledgee and Pledgor.
10.7 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision will be excluded
from this Agreement and the balance of the Agreement will be interpreted as if
such provision were so excluded and will be enforceable in accordance with its
terms. In case any provision of this Agreement will be invalid, illegal or
unenforceable, it will to the extent practicable, be modified so as to make it
valid, legal and enforceable and to retain as nearly as practicable the intent
of the parties, and the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
5.
IN WITNESS WHEREOF, Pledgor has executed this Amended and Restated Pledge
Agreement as of the date first above written.
/s/ Xxxxxx X. Xxxxxxxx
_________________________________________
Xxxxxx X. Xxxxxxxx
ACKNOWLEDGED AND ACCEPTED BY:
IXYS USA, INC.
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
President and Chief Executive Officer
6.
