EXHIBIT 3.13
DATED 1996
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XXXXX XXXXX
AND
XXXXXXXX XXX
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PLEDGE AGREEMENT
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THIS PLEDGE AGREEMENT is made the day of 1996
BETWEEN
(1) MR XXXXX XXXXX of 00 Xxxxxxxxxxxx Xxxx, Xxxxxx X0X 0XX (hereinafter
called "the Pledgor"); and
(2) XX XXXXXXXX XXX of 0 Xxxxxxxx Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000,
XXX (hereinafter called "the Pledgee")
WHEREAS:
A. Pursuant to a Guarantee dated 22 April 1996 made between the
Pledgor and the Pledgee ("the Guarantee"), the Pledgor agreed to
guarantee certain payments to the Pledgee under a loan agreement
dated 22 April 1996 between the Pledgee and the Company (as
hereinafter defined) and entered into a pledge as security for the
said payments.
B. Pursuant to a Share Exchange Agreement dated 20 June 1996 made
between the Pledgor, the Pledgee and the Parent (as hereinafter
defined) the Pledgor, with the consent of the Pledgee and the
termination of the pledge of 22 April 1996, agreed to sell his
shares in the Company to the Parent in exchange for the issue of
2,000,000 ordinary shares of 5p each by the Parent.
C. Pursuant to the Share Exchange Agreement the Pledgor agreed to
enter into a new pledge agreement with the Pledgee in respect of
the shares acquired under the Share Exchange Agreement in order to
preserve the security given by the Pledgor to the Pledgee in
relation to payments of the Company guaranteed by the Pledgor under
the Guarantee.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
In this Pledge Agreement, except where the context otherwise
requires:
"the Company" means Xxxxxxx.XX Limited, a company registered in
England under number 3069667.
"the Parent" means the parent company of Xxxxxxx.XX Limited being
the company known as Law 737 Limited (to be re-registered as
Xxxxxxx.XX Holdings plc) and registered in England under company
number 3194225.
"the Debt" means the debt guaranteed by the Pledgor in accordance
with the terms of the Guarantee.
"Loan Agreement" means the loan agreement dated 22 April 1996
between the Pledgee and the Company for an interest bearing loan of
US$210,000 by the Pledgee to the Company.
"Xxxxxxxxxx & Xxxxx" means Xxxxxxxxxx & Xxxxx xx 00 Xxxxxxxxxxxxx,
Xxxxxx XX0X 0XX.
"Pledge Agreement" means this Pledge Agreement as amended from time
to time.
"the Security" means all the two million Ordinary Shares of 5p each
in the capital of the Parent, the share certificates for which are
to be deposited by the Pledgor with Xxxxxxxxxx & Xxxxx and the
other property pledged under clauses 2.1 and 2.2 hereof.
2. PLEDGE
2.1 Pledge: As continuing security for the due and punctual payment
of the Debt the Pledgor as legal and beneficial owner of the
Security, hereby pledges, assigns, transfers, hypothecates,
mortgages, charges and encumbers (and with the intent also of
creating a security interest and a lien thereon) by way of first
equitable charge to and in favour of the Pledgee the Security
and all his present and future rights, title and interest
thereto and therein.
2.2 Other Property Pledged: The pledge, assignment, transfer,
hypothecation, mortgage, charge, encumbrance, security, interest
and lien hereby created shall affect, and the Security shall
include (i) all dividends and interest paid or payable thereon
(if any) and (ii) all stocks, shares, notes, bonds, debentures
and certificates of deposit or other securities (and in each
case the dividends and interest paid or payable thereon (if
any), rights, monies or other property paid, distributed,
accruing or offered at any time (by way of dividend, bonus,
redemption, rights, preference, option, warrant or otherwise)
on, to or in respect of or in substitution for any Security and
(iii) the proceeds of sale, repayment and redemption and any
payment or receipt of, on or in respect of any of the Security
all and any of which shall be promptly delivered to the Pledgee.
2.3 Non-Recourse: This pledge shall be without recourse to the
assets of the Pledgor other than the Security.
2.4 Custody; Resignation: Subject as otherwise provided in this
Agreement, the Security shall be held by Xxxxxxxxxx & Xxxxx and
the Pledgor shall immediately after the execution and delivery
of this Pledge Agreement deliver
or cause to be delivered to Xxxxxxxxxx & Xxxxx the Security with
duly executed blank transfers for all such shares. The Security
shall be kept thereafter in the custody of Xxxxxxxxxx & Xxxxx or
their nominee.
3. ENFORCEMENT
3.1 Time for Enforcement: The security hereby created shall become
immediately enforceable upon the non-payment of the Debt or any
part of it and thereupon any sum payable under this Pledge
Agreement shall become immediately due and payable.
3.2 Rights of Pledgee: At any time after the security hereby created
shall become enforceable the Pledgee may (without notice to the
Pledgor) from time to time do any one or more of the following:
(a) take possession of the Security and hold and/or procure
that its nominees hold the Security to the order of the
Pledgee absolutely; and/or
(b) cause to be delivered to the Pledgee as the Pledgee may
direct the Security; and/or
(c) execute and do, and/or procure its nominees to execute
and do, (at the expense of the Pledgor) all such
conveyances, transfers, assignments, assurances, deeds,
acts and things as the Pledgee may require for the
perfecting or protecting the security hereby created or
intended to be created or for facilitating the
realisation of the Security and for exercising all or
any of the rights, powers and discretions conferred on
the Pledgee by or pursuant to this Pledge Agreement;
and/or
(d) exercise or direct the exercise of any powers or rights
incident to the ownership of the Security and the fact
of membership of the Parent; and/or
(e) collect and receive any and all interest, dividends,
proceeds of repayment or redemption (whether total or
partial) and other payments or receipts of, on or in
respect of the Security; and/or
(f) sell, exchange, convert into money or otherwise dispose
of or realise (or concur in selling, exchanging,
converting into money or otherwise disposing of or
realising) and Security and for this purpose complete
the blank transfers referred to in clause 2.4, either by
public offer or private contract for such consideration
and in such currency or currencies and on such terms as
it may think
fit and so that (without prejudice to the generality of
the foregoing) it may do any of those things for a
consideration consisting of cash, certificates of
deposit, debentures and any such considerations may be
payable or deliverable in a lump sum whether immediately
or on a deferred basis or by instalments spread over
such period as it may think fit and with full power to
buy in or rescind or vary any contract for the sale of
the Security and to resell the same, all without being
responsible for any loss which may be occasioned thereby
and with full power to compromise and effect
compositions; and/or
(g) generally act in relation to the Security as if the
Pledgee were the absolute beneficial owner of the same.
3.3 Application of Proceeds: Any monies arising from the enforcement
of the security hereby created shall be applied by the Pledgee
as follows:
(a) first, in or towards payment of all costs and expenses
incurred by the Pledgee in connection with this Pledge
Agreement and the exercise of all or any of the powers
hereby confirmed;
(b) secondly, in or towards payment of the Debt (the Pledgor
remaining liable for any shortfall), and
(c) thirdly, in payment of any surplus to the Pledgor, or
(d) other person entitled thereto.
3.4 Notice to Purchaser from Pledgor: Upon any sale of the Security
or any part of it which the Pledgee may make or purport to make
under the provisions hereof a statutory declaration made by the
Pledgee that the Pledgor has made default and that the power of
sale has become exercisable shall be conclusive evidence of the
fact in favour of any purchase or other person - to whom the
Security may be transferred under such sale or other
appropriation and the Pledgor or any part of it agrees to
indemnify the Pledgee against any claim which may be made
against the Pledgee by such purchaser or person by reason of any
defect in the title of the Pledgor to such Security or part
thereof.
3.5 Beneficial Owner Warranty: The Pledgor warrants that it is the
absolute and beneficial owner of the Security free from
encumbrances subject to the terms hereof and that it will be the
absolute and beneficial owner free from encumbrances of any
security which may hereafter become subject to the terms hereof.
3.6 Powers Non-Exclusive: The powers conferred on the Pledgee by
this Pledge Agreement are in addition to and not in substitution
for the powers conferred
on mortgagees under the Law of Property Xxx 0000, which shall
apply to the security hereby created except insofar as they are
expressly or impliedly excluded. Where there is any ambiguity or
conflict between the powers contained in that Act and those
conferred by the Pledge Agreement, the terms of this Pledge
Agreement shall prevail.
3.7 Exclusion of Statutory Rights: The restrictions contained in
Section 93 and Section 103 of the Law of Property Act 1925 shall
not apply to this Pledge Agreement.
3.8 No Duty to Enquire etc.: No person dealing with the Pledgee
shall be concerned to enquire whether the security hereby
created has become enforceable or whether any event has happened
upon which any of the powers, authorities and discretions
conferred by or pursuant to this Pledge Agreement are or may be
exercisable by the Pledgee or otherwise as to the propriety or
regularity of acts purporting or intended to be in exercise of
any such powers and authorities and all the protection to
purchasers contained in Sections 104 and 107 of the Law of
Property Xxx 0000 shall apply to any person purchasing from or
dealing with the Pledgee.
3.9 Avoidance of Payments: No assurance, security or payment which
may be avoided under any law relating to bankruptcy or
insolvency, and no release, settlement or discharge given or
made by the Pledgee on the faith of any such assurance, security
or payment, shall prejudice or affect the right of the Pledgee
to enforce the security hereby created in respect of the full
extent of the monies thereby secured.
4. GENERAL
4.1 Further Assurances: The parties hereto hereby agree to execute
and do all such further deeds and documents (at the expense of
the requesting party) as may reasonably be required by the
requesting party to give full force and effect to this Pledge
Agreement.
4.2 Power of Attorney: The Pledgor hereby irrevocably and by way of
security appoints the Pledgee to be its attorney and agent and
on its behalf and in its name or otherwise to execute and do (at
the expense of the Pledgee) all such conveyances, transfers,
assignments, assurances, deeds, acts and things which it ought
to execute or do under the provisions of this Pledge Agreement
and generally in its name or otherwise and on its behalf to
exercise all or any of the powers, authorities and discretions
conferred on the pledgee by or pursuant to this Pledge Agreement
or the Law of Property Xxx 0000 and (without prejudice to the
generality of the foregoing) to seal and deliver and otherwise
perfect any conveyance, transfer, assignment, assurance, deed,
act or thing
which the Pledgee may deem proper in or for the purpose of
exercising any of such powers, authorities and discretions.
4.3 Security Additional: The security hereby created shall be in
addition to and shall not in any way prejudice or be prejudiced
by any other security, guarantee, indemnity, right of set-off,
remedy or lien of whatever nature which the Pledgee may now or
at any time hereafter have or to which the Pledgee may at any
time be entitled, whether by law or otherwise, for or in respect
of all or any part of the sum due under the Guarantee.
4.4 Illegality: If at any time any provision hereof is or becomes
illegal, invalid or unenforceable in any respect under the law
of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under the
laws of any other jurisdiction shall in any way be affected or
impaired thereby.
4.5 Waivers: No failure or delay on the part of the Pledgee in
exercising any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any
right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy. The rights and
remedies provided in this Pledge Agreement are cumulative and
not exclusive of any rights or remedies which the Pledgee would
otherwise have.
4.6 Counterparts: This Agreement may be executed in any number of
counterparts each of which when executed by one or more of the
parties hereto shall constitute an original but all of which
shall constitute one and the same instrument.
4.7 Successors: This Pledge Agreement and the security evidenced
shall be binding on each of the successors and assigns of the
Pledgor.
5. NOTICE
Any notice demand or other communication to be given hereunder by
either of the parties shall be addressed to the parties at their
respective addresses shown in this Pledge Agreement or such other
address as the party shall previously have specified in writing to the
other for such purpose and may be given in person or sent by
first-class pre-paid post or airmail if overseas or facsimile
transmission or telex and shall be deemed to have been served if hand
delivered at the time of delivery or if posted at the expiration of
forty-eight (48) hours or (in the case of airmail) seven days after the
envelope containing the same was put into the post or if sent by
facsimile or telex transmission at the end of the transmission provided
that if the original communication is not transmitted between the hours
of 9.00am to 6.00pm on a day when banks are open for business in London
then on the next such day at 9.00am.
6. GOVERNING LAW
This Pledge Agreement shall be governed by and construed in accordance
with the laws of England and the Pledgor in relation to any legal
action or proceedings arising out of or in connection with this Pledge
Agreement unconditionally submits to the non-exclusive jurisdiction of
the High Court of Justice in England.
IN WITNESS whereof this Pledge Agreement has been duly executed as a deed and
delivered the day and year first above written.
SIGNED as a Deed by XXXXX XXXXX )
in the presence of: )
SIGNED as a Deed by XXXXXXXX )
MOE in the presence of: )
