EXHIBIT 10.21
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of ______ by and between ____________ (the
"Maker") and Xxxxxxxxx Technologies Inc. (the "Company").
W I T N E S S E T H:
WHEREAS, the Maker has purchased from the Company ____________ shares
(the "Shares") of the Company's Common Stock, par value $.01 per share ("Common
Stock"); and
WHEREAS, in connection with such purchase the Company has loaned to
the Maker the sum of $___________; such loan being evidenced by a non-recourse
secured promissory note (the "Note") in the principal amount of $__________ made
by the Maker in favor of the Company; and
WHEREAS, the loan to the Maker is to be secured by a pledge by the
Maker to the Company of the Shares and the other Collateral referenced herein;
and
WHEREAS, the parties hereto desire to set forth the terms of and to
evidence the Maker's grant to the Company of a security interest in the
Collateral.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Maker hereby agrees with the
Company as follows:
Section 1. Definitions. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Default" means the failure to make any payment of principal of or
interest on, or any other amounts due under, the Note when due, whether at
maturity, upon acceleration or otherwise.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from stock splits, reclassifications, warrants,
options, non-cash dividends and other distributions on or with respect to the
Shares, whether similar or dissimilar to the foregoing, but shall not include
Dividends.
"Dividends" means regular dividends declared with respect to the
Shares.
"Liabilities" means the Note, and all amounts becoming due thereunder,
and all other payment obligations of the Maker hereunder or thereunder or any
instrument executed pursuant hereto or thereto.
Section 2. Grant of Security Interest. As security for payment of all
Liabilities, the Maker hereby pledges, assigns and transfers to the Company, and
grants to the Company a continuing security interest in and to, the Shares,
together with all Dividends and Distributions, interest and other payments and
rights with respect thereto, together with all proceeds thereof (collectively,
the "Collateral"). The Maker further pledges, assigns and transfers to the
Company, and grants to the Company a continuing security interest in and to, and
agrees to duly endorse to the order of the Company, any additional Collateral,
together will all proceeds thereof, delivered by the Maker to the Company for
the purposes of pledge under this Agreement. Any Collateral delivered by the
Maker to the Company may be endorsed by the Company, in its own name or in the
name of the Maker, on behalf of the Maker to the order of the Company.
Section 3. Stock Powers, Endorsements, Etc. The Maker shall, from time
to time, upon request of the Company, promptly execute such endorsements and
deliver to the Company such stock powers and similar documents, satisfactory in
form and substance to the Company, with respect to the Collateral as the Company
may reasonably request and shall, from time to time, upon request of the
Company, promptly transfer any securities which are part of the Collateral into
the name of any nominee designated by the Company on the books of the
corporation or other entity issuing such securities; provided, however, that the
Company shall not be entitled to effect or demand a transfer of the Collateral
into the name of the Company or the Company's nominee without the consent of the
Maker unless and until a Default shall have occurred.
Section 4. Certain Other Agreements Regarding Collateral. The Maker
shall deliver (properly endorsed where necessary) to the Company:
(a) after a Default shall have occurred and be continuing, promptly
upon receipt thereof by the Maker and without any request therefor by the
Company, all Dividends and Distributions, and other proceeds of the Collateral,
all of which shall be held by the Company as additional Collateral; and
(b) at any time after a Default shall have occurred and be continuing,
promptly upon request of the Company, such consents or proxies and other
documents as may be necessary to allow the Company to exercise any voting power
or other right with respect to any securities included in the Collateral;
provided, however, that unless a Default shall have occurred and be continuing,
the Maker shall be entitled:
(i) to exercise, as the Maker shall deem appropriate, all voting
or other powers with respect to securities pledged hereunder (including but
not limited to the Shares); and
(ii) to receive and retain for the Maker's own account any and
all Dividends paid in cash.
Section 5. Actions Upon Default. Whenever a Default shall have
occurred and be continuing, the Company may exercise from time to time any and
all rights and remedies available to it under applicable law, including but not
limited to all rights of a secured party available to it under the Uniform
Commercial Code. Without limiting the above, the Company may from time to time,
whether before or after any of the Liabilities shall become due and payable, but
only if a Default shall have occurred, without notice to the Maker, take any or
all of the following actions:
(a) transfer all or any part of the Collateral into the name of the
Company or its nominee; and
(b) execute (in the name, place and stead of the Maker) any or all
endorsements, assignments, stock powers and other instruments of conveyance or
transfer with respect to all or any of the Collateral.
The Maker understands that compliance with the Federal securities
laws, applicable blue sky or other state securities laws or similar laws
analogous in purpose or effect may strictly limit the course of conduct of the
Company if the Company were to attempt to dispose of all or any part of the
Collateral and may also limit the extent to which or the manner in which any
subsequent transferee of the Collateral may dispose of the same. Accordingly,
the Maker agrees that IF ANY COLLATERAL IS SOLD AT ANY PUBLIC OR PRIVATE SALE,
THE COMPANY MAY ELECT TO SELL ONLY TO A BUYER WHO WILL GIVE FURTHER ASSURANCES,
SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY, RESPECTING COMPLIANCE WITH
THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY AND ALL
APPLICABLE STATE SECURITIES LAWS; AND A SALE SUBJECT TO SUCH CONDITION SHALL BE
DEEMED COMMERCIALLY REASONABLE. The Company shall have the right to bid upon or
purchase the Shares, or any other part of the Collateral, or all of the
foregoing, at any such sale, less any and all amounts owing to the Company by
the Maker under the Note, this Agreement or otherwise, and that any such
purchase is commercially reasonable.
Section 6. Application of Moneys. Any moneys received by the Company
upon payment to it of any Collateral held by it or as proceeds of any of the
Collateral may be applied by the Company first to the payment of any expenses
incurred by it in connection with the Collateral, including, without limitation,
reasonable attorneys' fees and legal expenses, and all other amounts payable to
the Company by the Maker, and any balance of such moneys so received by the
Company may be applied to all Liabilities of the Maker (including, without
limitation, the principal amount of the Note outstanding whether or not such
principal amount is at that time due and payable) in such order of application
as the Company in its sole discretion may determine. Any amounts remaining after
payment of the Liabilities may be applied by the Company to the payment of any
and all other amounts owing, whether or not then due, to the Company from the
Maker and any remaining balance thereafter shall be paid to the Maker.
Section 7. Release of Collateral. Upon the indefeasible payment in
full of the Liabilities, the Company shall, upon the request of the Maker,
promptly reassign and redeliver to the Maker the Collateral which has not been
sold, disposed of, retained or applied by the Company in accordance with the
terms hereof, together with such endorsements, stock powers and similar
documents as the Maker may reasonably request. Such reassignment and redelivery
shall be without warranty by or recourse to the Company, except as to the
absence of any prior assignments by the Company of its interest in the
Collateral. In the event that the Maker proposes to sell, transfer or otherwise
dispose of all or a portion of the Shares, upon the request of the Maker, the
Company shall release from its security interest the Shares to be sold by the
Maker and, at the sole expense of the Maker, shall deliver such Shares as
directed by the Maker, free and clear of any security interest hereunder,
subject to repayment of a portion of the Obligations as provided in the Note.
Section 8. Non-Recourse Nature of Liabilities. The Company's sole
recourse for the payment of the Liabilities shall be limited to the Collateral
securing the Note. THE COMPANY SHALL NOT HAVE THE RIGHT TO ENFORCE THE
LIABILITIES AGAINST THE MAKER, HIS HEIRS, ASSIGNS AND LEGAL REPRESENTATIVES OR
ANY OF THE OTHER ASSETS OR PROPERTY OF ANY OF THE FOREGOING.
Section 9. Miscellaneous.
(a) To the fullest extent permitted by applicable law, this Agreement
shall continue to be effective or be reinstated, as the case may be, if at any
time any amount received by the Company in respect of the Liabilities is
rescinded or must otherwise be restored or returned by the Company upon the
insolvency or bankruptcy of the Maker or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for the Maker or any
substantial part of his assets, or otherwise, all as though such payments had
not been made.
(b) No remedy herein conferred is intended to be exclusive of any
other remedy herein conferred or otherwise available to the Company, but every
such remedy shall be cumulative and in addition to every other remedy herein
conferred, or conferred on the Company by any other agreement or instrument or
now or hereafter existing at law, in equity or by statute.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction, shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(d) Except as otherwise expressly provided herein, no term or
provision of this Agreement may be amended, waived, discharged or terminated
orally, but only by an instrument in writing signed by the parties.
(e) THIS AGREEMENT AND ALL RIGHTS HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF. THE MAKER HEREBY
CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE
COURTS LOCATED IN THE STATE OF NEW JERSEY HAVING SUBJECT MATTER JURISDICTION IN
CONNECTION WITH ANY AND ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THIS
Agreement, THE NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. FURTHER,
THE MAKER HEREBY CONSENTS AND AGREES THAT SERVICE OF PROCESS BY THE COMPANY, OR
ANY PARTY ACTING ON BEHALF OF THE COMPANY, SHALL BE DEEMED VALIDLY AND PROPERLY
EFFECTED AGAINST THE MAKER UPON THE MAILING OF A COPY OF SUCH PROCESS BY
CERTIFIED MAIL, POSTAGE PREPAID, TO THE MAKER AT HIS ADDRESS AS IT APPEARS IN
THE PERSONNEL RECORDS OF THE COMPANY.
(f) No course of dealing and no delay on the part of any party hereto
in exercising any right, power, or remedy conferred by this Agreement shall
operate as a waiver thereof or otherwise prejudice such party's rights, powers
and remedies hereunder or in connection herewith. No single or partial exercise
of any power or remedy conferred by this Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
(g) This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors, assigns and legal
representatives.
(h) This Agreement constitutes the entire agreement among the parties
with respect to the matters covered hereby and supersedes all previous written,
oral or implied agreements and understandings among the parties with respect to
such matters.
(i) All notices or other communications required or permitted
hereunder shall be in writing and shall be delivered personally, by facsimile or
sent by certified, registered or express air mail, postage prepaid, and shall be
deemed given which so delivered personally, or by facsimile, or if mailed, five
days after the date of mailing, (i) if to the Maker at his address as it appears
in the records of the Company, and (ii) if to the Company at the address set
forth below:
00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000,
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Secretary
or at such other addresses as shall be furnished in writing to the other party
hereto.
(j) The headings in this Agreement are for reference purposes only,
and shall not in any way affect the meaning or interpretation
(k) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original agreement, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
Witness:
_____________________________ ___________________________
Name: Name:
XXXXXXXXX TECHNOLOGIES INC.
By: _________________________
Name:
Title:
