EXHIBIT 10.22
7.34% SECURED NON-RECOURSE PROMISSORY NOTE
("Secured Non-Recourse Note")
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(September __, 1995)
FOR VALUE RECEIVED, the undersigned, Xxxx X. Xxxxx (the "Borrower"), hereby
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promises to pay to Corporate Software Incorporated, a Delaware corporation (the
"Company"), or to the legal holder of this Secured Non-Recourse Note at the time
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of payment, the principal sum of two million dollars ($2,000,000.) in lawful
money of the United States of America, and to pay simple interest (computed on
the basis of a 365 or 366 day year, as the case may be) on the principal amount
hereof from and after the date of this Secured Non-Recourse Note until the
entire principal amount hereof has been paid in full, at the rate of 7.34% per
annum. The entire principal amount of indebtedness evidenced by this note, to
the extent not theretofore prepaid as provided herein, shall be repaid on the
Maturity Date. Each payment of principal shall be accompanied by payment of any
accrued and unpaid interest thereon.
If the date set for any payment or prepayment of principal or interest
hereunder is a Saturday, Sunday or legal holiday, then such payment or
prepayment shall be made on the next preceding business day.
This Secured Non-Recourse Note has been delivered to evidence indebtedness
of the Borrower to the Company arising out of a loan made to the Borrower in
connection with his purchase of shares of Class A Common Stock, par value $.01
per Share, of Stream International Inc., a Delaware corporation and the parent
of the Company (the "Parent") in accordance with the terms of the Employment
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Agreement, dated as of April 21, 1995 (the "Employment Agreement"), between
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Stream International Inc. and the Borrower, and this Secured Non-Recourse Note
is the "Note" of the Borrower referred to in Section 4 of the Employment
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Agreement. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Employment Agreement. Payment of the
principal of and interest on this Secured Non-Recourse Note is secured pursuant
to the terms of a Stock Pledge Agreement, dated as of April 21, 1995, between
the Borrower and the Company (the "Pledge Agreement"), reference to which is
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made for a description of the collateral provided thereby and the rights of the
Company and any subsequent holder of this Secured Non-Recourse Note in respect
of such collateral.
Recourse of the holder of this Note for payment of the principal of and
interest on this Note or any claim based thereon shall be limited solely to the
collateral held pursuant to the Pledge Agreement, and the holder of this Note
shall have no recourse to any other assets of the Borrower for such payment,
whether before or after an Event of Default.
As used in this Note:
(a) the term "Maturity Date" means the earliest of (i) April 21,
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2000 or, at the election of the Parent's Board of Directors and as a result of
the completion of any public offering of shares of the Parent registered under
the Securities Act of 1933, as amended, in connection with which the Borrower is
given an opportunity to sell shares having a value equal to or greater than the
amount of borrowings evidenced by this Secured Non-Recourse Note outstanding at
the time of such offering, provided, that, such offering is completed prior to
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April 21, 2000, and (ii) the first date on which a Liquidity Event (as defined
below) shall occur, and
(b) the term "Liquidity Event" means any of the following: (i)
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any sale of a majority of the capital stock or assets of the Parent (including
without limitation a sale of a majority of the capital stock resulting from a
Disposition (as defined in the Parent's Restated Certificate of Incorporation)
or Total Disposition (as defined in the Parent's Restated Certificate of
Incorporation) by X.X. Xxxxxxxxx & Sons which triggers certain Tag Along (as
defined in the Parent's Restated Certificate of Incorporation) and Drag Along
Rights (as defined in the Parent's Restated Certificate of Incorporation), the
exercise by any stockholder of the Put Right (as defined in the Parent's
Restated Certificate of Incorporation) or the exercise by the Parent of its Call
Right (as defined in the Parent's Restated Certificate of Incorporation) all in
accordance with the provisions of Article Fifth of the Parent's Restated
Certificate of Incorporation), (ii) any liquidation or winding-up of the Parent
or distribution of a majority of the Parent's assets, other than to an Affiliate
of the Parent or (iii) any merger, consolidation or similar business combination
with or into any entity other than an entity controlled by Xxxx Capital Fund IV,
L.P., Xxxx Capital Fund IV-B, L.P. and Information Partners Capital Fund, L.P.
(collectively, the "Funds") or by X.X. Xxxxxxxxx & Sons Company.
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Interest on the principal amount hereof outstanding from time to time shall
be payable quarterly on the last business day of March, June, September and
December of each year commencing June 30, 1995 and on the Maturity Date;
provided, however, that, so long as the Borrower remains an employee of the
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Parent and no Event of Default (as hereinafter defined) has occurred, interest
shall continue to accrue but shall not be payable until the Maturity Date.
This Secured Non-Recourse Note is subject to the following further terms
and conditions:
1. Mandatory Prepayments. If at any time the Borrower receives any
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proceeds from the sale by the Borrower of Shares to anyone (including the
Company), the proceeds from such sale of Shares shall be applied to the
prepayment first, of the prepayment of the accrued and unpaid interest on the
Tax Loan Note and then to the unpaid principal thereof and second, to the
prepayment of the accrued and unpaid interest hereon and then to the unpaid
principal hereof. For purposes of this Section 1, the term "sale" in the context
of a sale of Shares shall include, in addition to any direct sale of Shares, any
transaction (including, without limitation, a merger, consolidation or
recapitalization) pursuant to which Shares are converted into a right to
receive, in whole or partial exchange or substitution of Shares, cash or cash
equivalents.
In addition, until such time as the entire principal amount of this Secured
Non-Recourse Note is paid in full, together with all accrued and unpaid
interest, the Borrower shall pay to the Company, for application against such
principal and interest, 30% of any and all Bonus amounts that become payable to
the Borrower under the Employment Agreement.
The right of the Borrower to receive proceeds upon the sale of Shares is
subject to the prior right of the Company (or other holder of this Secured Non-
Recourse Note) (i) in the case of a sale of Shares to the Company (or other
holder of this Secured Non-Recourse Note), in lieu of the Company (or such other
holder) paying the proceeds from such sale to the Borrower or his heirs,
successors or permitted assigns to set off against this Secured Non-Recourse
Note an amount equal to the Net Proceeds of such sale, or (ii) in the case of a
sale of Shares to any other person or entity (collectively, the "Transfer
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Parties"), in lieu of any of such Transfer Parties paying the purchase price
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therefor to the Borrower or his heirs, successors or permitted assigns, to
direct such
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Transfer Parties to pay an amount equal to the Net Proceeds of such sale to the
Company (or other holder of this Secured Non-Recourse Note) which shall set off
such amount against this Secured Non-Recourse Note.
Concurrently with any prepayment (including by set-off) of any portion of
the principal amount of this Secured Non-Recourse Note pursuant to this Section
1 or Section 2 hereof, the Company (or other holder of this Secured Non-Recourse
Note) shall make a notation of such payment hereon. If full payment of the
principal of and accrued and unpaid interest on this Secured Non-Recourse Note
is made, this Secured Non-Recourse Note shall be cancelled. Any partial
prepayment (including by reason of set-off) shall be applied first to accrued
and unpaid interest hereon and then to the unpaid principal hereof.
If at any time, or from time to time, after the date hereof and following
the occurrence and during the continuance of an Event of Default (as hereinafter
defined), the Borrower shall receive or shall otherwise become entitled to
receive from the Company (or other holder of this Secured Non-Recourse Note) any
cash payments, cash dividends or other cash distributions in respect of any
Shares, then and in each case, the Borrower or any of his heirs, successors or
permitted assigns to whom such distribution may be made shall, upon the receipt
thereof, return to the Company (or other holder of this Secured Non-Recourse
Note) such payments, dividends and distributions, and the Company (or other
holder of this Secured Non-Recourse Note) shall apply such amount to the
prepayment of the accrued and unpaid interest on and unpaid principal of this
Secured Non-Recourse Note in the manner set forth in the first paragraph of this
Section 1, and the Company (or other holder of this Secured Non-Recourse Note)
shall not be obligated to make any such cash payment, cash dividend or other
cash distribution not theretofore made to which the Borrower or any of his
heirs, successor or permitted assigns are otherwise entitled in respect of their
Shares any may, in lieu of paying such amount to the Borrower, set off the
amount of such cash payment, cash dividend or other cash distribution against
the accrued and unpaid interest on and unpaid principal of this Secured Non-
Recourse Note in the manner set forth in the third paragraph of this Section 1.
2. Payment and Prepayment. All payments and prepayments of principal of and
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interest on this Secured Non-Recourse Note shall be made to the Company or its
order, or to the legal holder of this Secured Non-Recourse Note or such holder's
order,
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in lawful money of the United States of America at the principal offices of the
Company (or at such other place as the holder hereof shall notify the Borrower
in writing). The Borrower may, at his option, prepay this Secured Non-Recourse
Note in whole or in part at any time or from time to time without penalty or
premium. Any prepayments of any portion of the principal amount of this Secured
Non-Recourse Note shall be accompanied by payment of all interest accrued but
unpaid hereunder. Upon final payment of principal of the interest on this
Secured Non-Recourse Note it shall be surrendered for cancellation. The Pledge
Agreement requires payment or prepayment of all obligations under this Secured
Promissory Note as a condition precedent to the release of, or transfer of the
Borrower's interests in, the collateral subject to the Pledge Agreement, all as
described more fully in the Pledge Agreement.
3. Events of Default. Upon the occurrence of any of the following events
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("Events of Default"):
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(a) Failure to pay the principal of this Secured Non-Recourse Note,
including any prepayments required hereunder or under the Pledge Agreement which
shall remain unremedied for ten days following the date when such principal
payment was originally due hereunder;
(b) Failure to pay any interest installment due under this Secured
Non-Recourse Note which shall remain unremedied for ten days following the date
when such installment was originally due hereunder; or
(c) Failure of the Borrower to perform the Borrower's obligations (i)
under the Employment Agreement which shall remain unremedied for ten days
following notice from the Company or the Parent or (ii) under the Pledge
Agreement;
then, and in any such event, the holder of this Secured Non-Recourse Note may
declare, by notice of default given to the Borrower, the entire principal amount
of this Secured Non-Recourse Note to be forthwith due and payable, whereupon the
entire principal amount of this Secured Non-Recourse Note outstanding and any
accrued and unpaid interest hereunder shall become due and payable without
presentment, demand, protest, notice of dishonor and all other demands and
notices of any kind, all of which are hereby expressly waived. Upon the
occurrence of an Event of Default, the
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accrued and unpaid interest hereunder shall thereafter bear the same rate of
interest as on the principal hereunder, but in no event shall such interest be
charged which would violate any applicable usury law. If an Event of Default
shall occur hereunder, the Borrower shall pay costs of collection, including
reasonable attorneys' fees, incurred by the holder in the enforcement hereof.
No delay or failure by the holder of this Secured Non-Recourse Note in the
exercise of any right or remedy shall constitute a waiver thereof, and no single
or partial exercise by the holder hereof of any right or remedy shall preclude
other or future exercise thereof or the exercise of any other right or remedy.
4. Miscellaneous.
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(a) The provisions of this Secured Non-Recourse Note shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts, without regard to the conflicts of law rules thereof.
(b) All notices and other communications hereunder shall be in
writing and will be deemed to have been duly given if delivered or mailed in
accordance with the Employment Agreement.
(c) The headings contained in this Secured Non-Recourse Note are
for reference purposes only and shall not affect in any way the meaning or
interpretation of the provisions hereof.
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IN WITNESS WHEREOF, this Secured Non-Recourse Note has been duly executed
and delivered by the Borrower on the date first above written.
/s/ Xxxx X. Xxxxx
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(Signature of Borrower)
Witness
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STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT dated as of September __, 1995 (this "Stock Pledge
Agreement"), between Xxxx X. Xxxxx (the "Pledgor") both personally and in his
capacity as trustee under a Declaration of Trust dated as of April 21, 1995 and
known as the Xxxxx Stream Trust (the "Trust") and Corporate Software
Incorporated, a Delaware corporation (the "Company").
WITNESSETH
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WHEREAS, Stream International Inc., a Delaware corporation and the parent
of the Company (the "Parent"), has entered into an agreement, dated as of April
21, 1995 (the "Employment Agreement"), between the Parent and the Pledgor
pursuant to which the Parent has agreed to sell shares of Class A Common Stock,
par value $.01 per share, of the Parent (the "Purchased Shares") to the Pledgor
and has further agreed that the Pledgor may assign his right to purchase the
Purchased Shares to the Trust. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Employment Agreement, and
the Pledgor hereunder is the "Executive" as such term is defined in the
Employment Agreement;
WHEREAS, in connection with the sale of the Purchased Shares to the
Pledgor, the Company has lent to the Pledgor $2,000,000. on a non-recourse basis
and, as evidence of the indebtedness created by such loan, the Pledgor is
delivering to the Company a duly executed 7.34% Secured Promissory Note (the
"Note") of the Pledgor in the principal amount of $2,000,000. dated as of the
date hereof;
WHEREAS, pursuant to the Employment Agreement, the Company has agreed to
make additional advances to the Pledgor to cover certain future tax obligations
of the Pledgor and the Pledgor has agreed to deliver to the Company a duly
executed 7.34% Secured Promissory Note (the "Tax Loan Note") on the date the
first installment of the Tax Loan is advanced;
WHEREAS, the Pledgor wishes to grant further security and assurance to the
Company in order to secure the payment of the principal of and interest on the
Note and the Tax Loan Note (hereinafter collectively referred to as the "Note
Obligations") and to pledge to the Company the Purchased Shares to be acquired
by such Pledgor (or at such Pledgor's election, by the Trust)
pursuant to the Employment Agreement, the New Options to be granted to Pledgor
pursuant to the Employment Agreement, certain additional shares of and/or
options to purchase additional shares of the Parent's capital stock and certain
Publicly Traded Securities described as to issuer, type and number of shares on
Exhibit A hereto, all as more particularly described herein;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Pledge. As collateral security for the full and timely payment of the
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principal of and interest on the Note Obligations and all other amounts payable
by the Pledgor thereunder or under this Stock Pledge Agreement (including,
without limitation, any and all reasonable fees and expenses, including
reasonable legal fees and expenses, incurred by the Company in connection with
any exercise of its rights under the Note Obligations or hereunder), the Pledgor
hereby delivers, deposits, pledges, transfers and assigns to the Company, in
form transferable for delivery, and creates in the Company a security interest
in:
(a) all Purchased Shares and all certificates evidencing the
Purchased Shares and other instruments or documents evidencing the same now
owned by the Pledgor and all dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the Purchased Shares;
(b) Zero shares of Class B Common Stock of the Parent (collectively,
the "Owned Shares") and all certificates evidencing the Owned Shares and other
instruments or documents evidencing the same and all dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Owned
Shares;
(c) options to purchase Zero shares of Class A Common Stock and
options to purchase Zero shares of Class B Common Stock of the Parent
(collectively, the "Options") and all certificates evidencing the Options and
other instruments or documents evidencing the same and all dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Options
including without limitation any shares of Class A Common Stock and Class B
Common Stock received upon the exercise of any Option; and
(d) The Publicly Traded Securities described on Exhibit A hereto (the
"Additional Securities") and all certificates evidencing the Additional
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Securities and other instruments or documents evidencing the same and all
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Additional Securities.
The Purchased Shares, Owned Shares, Additional Securities and Options (together
with any securities or property delivered to the Pledgor pursuant to Section
2(b) hereof) are hereinafter collectively referred to as the "Pledged
Securities".
The Pledgor hereby delivers to the Company appropriate undated security
transfer powers duly executed in blank for the Pledged Securities set forth
above and will deliver appropriate undated security transfer powers duly
executed in blank for the Pledged Securities to be pledged hereunder from time
to time hereafter. The Pledgor agrees that all certificates evidencing the
Pledged Securities shall be marked with the following legend:
THE SHARES/OPTION TO PURCHASE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE PROVISIONS OF A STOCK PLEDGE AGREEMENT DATED AS OF APRIL 21, 1995
BY AND BETWEEN CORPORATE SOFTWARE INCORPORATED, A DELAWARE CORPORATION AND A
WHOLLY-OWNED SUBSIDIARY OF STREAM INTERNATIONAL INC., A DELAWARE CORPORATION
(THE "CORPORATION"), AND THE BORROWER NAMED THEREIN, A COPY OF WHICH IS ON FILE
AT THE OFFICES OF THE CORPORATION.
The Pledgor agrees to deliver to the Company all Pledged Securities currently
held by him in order that such legend may be placed thereon. The Pledgor further
agrees, with respect to the Additional Securities, to deliver written notice to
each issuer of an Additional Security of the pledge of such security to the
Company.
2. Administration of Security. The following provisions shall govern the
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administration of the Pledged Securities:
(a) So long as no Event of Default has occurred and is continuing (as
used herein, "Event of Default" shall mean the occurrence of any Event of
Default as defined in the Note Obligations), the Pledgor shall be entitled to
act with respect to the Pledged Securities in any manner not inconsistent with
this Stock Pledge Agreement, the Employment Agreement, the
Note Obligations or any document or instrument delivered or to be delivered
pursuant to or in connection with the Employment Agreement, including
transferring the Pledged Securities to a nominee for purposes of exercising the
Options, and/or voting the Pledged Securities and receiving all cash
distributions thereon and giving consents, waivers and ratifications in respect
thereof.
(b) If while this Stock Pledge Agreement is in effect, the Pledgor
shall become entitled to receive or shall receive any debt or equity security
certificate (including, without limitation, any certificates representing shares
of stock received in connection with the exercise of any Option, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital, or issued in connection with
any reorganization), option or right, whether as a dividend or distribution in
respect of, in substitution of, or in exchange for any Pledged Securities, the
Pledgor agrees to accept the same as the Company agent and to hold the same in
trust on behalf of and for the benefit of the Company and to deliver the same
forthwith to the Company in the exact form received, with the endorsement of the
Pledgor when necessary and/or appropriate undated security transfer powers duly
executed in blank, to be held by the Company, subject to the terms of this Stock
Pledge Agreement, as additional collateral security for the Note Obligations.
Notwithstanding the foregoing, it is agreed that the Pledgor may exercise any
option or right received as contemplated in the preceding sentence, and the
Company will exercise any such option or right upon receipt of written
instructions to that effect and any required payments or documents from the
Pledgor, and the securities received upon such exercise of any such option or
right shall thereafter be held by the Pledgor or the Company as contemplated by
the preceding sentence.
(c) The Pledgor shall immediately upon request by the Company and in
confirmation of the security interests hereby created, execute and deliver to
the Company such further instruments, deeds, transfers, assurances and
agreements, in form and substance as the Company shall request, including any
financing statements and amendments thereto, or any other documents, as required
under Massachusetts law and any other applicable law to protect the security
interests created hereunder.
(d) Subject to any sale by the Company or other disposition by the
Company of the Pledged Securities or other property pursuant to this Stock
Pledge Agreement and subject to Sections 5 and 6 below, the Pledged Securities
shall be returned to the Pledgor upon payment in full of the principal of and
accrued and unpaid interest on the Note Obligations.
3. Remedies in Case of an Event of Default.
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(a) In case an Event of Default shall have occurred and be
continuing, the Company shall have in each case all of the remedies of a secured
party under the Massachusetts Uniform Commercial Code, and, without limiting the
foregoing, shall have the right, in its sole discretion, to sell, resell, assign
and deliver all or, from time to time, any part of the Pledged Securities, or
any interest in or option or right to purchase any part thereof, on any
securities exchange on which the Pledge Securities or any of them may be listed,
at any private sale or at public auction, with or without demand of performance
or other demand, advertisement or notice of the time or place of sale or
adjournment thereof or otherwise (except that the Company shall give ten days'
notice to the Pledgor of the time and place of any sale pursuant to this Section
3), for cash, on credit or for other property, for immediate or future delivery,
and for such price or prices and on such terms as the Company shall, in its sole
discretion, determine, the Pledgor hereby waiving and releasing any and all
right or equity of redemption whether before or after sale hereunder. At any
such sale the Company may bid for and purchase the whole or any part of the
Pledged Securities so sold free from any such right or equity of redemption. The
Company shall apply the proceeds of any such sale first to the payment of
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all costs and expenses, including reasonable attorneys' fees, incurred by the
Company in enforcing its rights under this Stock Pledge Agreement, second to
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the payment of accrued and unpaid interest on (i) the Tax Loan Note and (ii) the
Note and third to the payment of unpaid principal of the (i) the Tax Loan Note
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and (ii) the Note.
(b) The Pledgor recognizes that the Company may be unable to effect
a public sale of all or a part of the Pledged Securities by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), or in the rules and regulations promulgated thereunder or in
applicable state securities or "blue sky" laws, but may be compelled to resort
to one or more private sales to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire the Pledged Securities for
their own account, for investment and not with a view to the distribution or
resale thereof. The Pledgor understands that private sales so made may be at
prices and on other terms less favorable to the seller than if the Pledged
Securities were sold at public sale, and agrees that the Company has no
obligation to delay the sale of the Pledged Securities for the period of time
necessary to permit the registration of the Pledged Securities for public sale
under the Securities Act and under applicable state securities or "blue sky"
laws. The Pledgor agrees that a private sale or sales made under the foregoing
circumstances shall be deemed to have been made in a commercially reasonable
manner.
(c) If any consent, approval or authorization of any state, municipal
or other governmental department, agency or authority should be necessary to
effectuate any sale or disposition by the Company pursuant to this Section 3 of
the Pledged Securities, the Pledgor will execute all such applications and other
instruments as may be required in connection with securing any such consent,
approval or authorization, and will otherwise use his or her best efforts to
secure the same.
(d) Neither failure nor delay on the part of the Company to exercise
any right, remedy, power or privilege provided for herein or by statute or at
law or in equity shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
4. Xxxxxxx's Obligations Not Affected. The obligations of the Pledgor
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under this Stock Pledge Agreement shall remain in full force and effect without
regard to, and shall not be impaired or affected by: (a) any subordination,
amendment or modification of or addition or supplement to the Employment
Agreement or the Note Obligations, or any assignment or transfer of any thereof;
(b) any exercise or non-exercise by the Company of any right, remedy, power or
privilege under or in respect of this Stock Pledge Agreement, the Employment
Agreement or the Note Obligations, or any waiver of any such right, remedy,
power or privilege; (c) any waiver, consent, extension, indulgence or other
action or inaction in respect of this Stock Pledge Agreement, the Employment
Agreement or the Note Obligations, or any assignment or transfer of any thereof;
or (d) any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or the like, of the Company, whether or not the Pledgor
shall have notice or knowledge of any of the foregoing.
5. Transfer by Pledgor. The Pledgor will not sell, assign, transfer or
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otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber (collectively, a "Disposition") the Pledged Securities or any
interest therein except as permitted by the Company's Restated Certificate of
Incorporation (the "Charter"), the Employment Agreement and any Stockholders
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Agreement to which Pledgor and the Company or its stockholders may be or become
bound. In the event of any Disposition of Pledged Securities pursuant to and in
accordance with the terms and conditions of the Charter, the Employment
Agreement and any such Stockholders Agreement, the Company shall release such
Pledged Securities from the pledge hereunder to permit consummation of such
transaction solely to the extent that, after such release, the sum (the
"Coverage Amount") of (i) the product of the number of shares of Class A Common
Stock owned by the Pledgor and subject to this Stock Pledge Agreement multiplied
by $30 (the "Class A Calculated Value") plus (ii) the product of the number of
shares of Class B Common Stock owned by the Pledgor and subject to this Stock
Pledge Agreement multiplied by $30 (the "Class B Calculated Value") exceeds 150%
of the aggregate principal amount of the Note Obligations of the Pledgor then
outstanding (the "Note Amount") is greater than zero. Notwithstanding the
foregoing, (i) upon the written request of the Pledgor, the Company shall
release Additional Securities from the pledge hereunder to permit consummation
of a Disposition solely to the extent that, after such release, the Value (as
defined below) of the Additional Securities subject to this Stock Pledge
Agreement exceeds 125% of the difference between the Note Amount and a fraction,
the numerator of which is the Coverage Amount and the denominator of which is
1.5, and (ii) in the case of any Disposition in connection with the occurrence
of a Trigger Event (as such term is defined in the Employment Agreement), the
Company shall release such Pledged Securities regardless of whether the Coverage
Amount is greater than zero, provided, that any proceeds received upon such
Disposition are either pledged to the Company as additional collateral and/or
used to reduce the Note Amount so that the foregoing collateral coverage test
continues to be satisfied after giving effect to such Disposition.
For purposes of this Section 5, (i) fully vested Options shall be treated
as exercised in determining whether any Pledged Securities shall be released,
provided, however, that the Calculated Value applicable to each share of stock
for which the Option may be exercised shall be reduced by the per share exercise
price of such Option and (ii) the Value of the Additional Securities shall be
the market value of such securities determined by reference to the per share
closing price on the date prior to the requested release of such securities as
reported by the New York Stock Exchange, American Stock Exchange or the National
Association of Securities Dealers Automatic Quotation National Market System, as
the case may be.
6. Adjustments to Calculated Value. In the event of any stock dividend,
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stock split, stock issuance, reverse stock split, subdivision, combination,
recapitalization, reclassification, merger, consolidation or other change in any
class of common stock of the Company, the dollar value used to determine the
Calculated Value applicable to such class of common stock shall be appropriately
adjusted to reflect such dividend, split, issuance, subdivision, combination,
recapitalization, reclassification, merger, consolidation or other change.
7. Attorney-in-Fact. The Company is hereby appointed the
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attorney-in-fact of the Pledgor and the Pledgor's transferees for the purpose of
carrying out the provisions of this Stock Pledge Agreement and taking any action
and executing any instrument which the Company
reasonably may deem necessary or advisable to accomplish the purposes hereof,
including without limitation, the execution of the applications and other
instruments described in Section 3(c) hereof, which appointment as
attorney-in-fact is irrevocable as one coupled with an interest.
8. Termination. Upon payment in full of the principal of and accrued and
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unpaid interest on the Note Obligations and upon the due performance of and
compliance with all the provisions of the Note Obligations, this Stock Pledge
Agreement shall terminate and the Pledgor shall be entitled to the return of
such of the Pledged Securities as have not theretofore been sold, released
pursuant to Sections 5 and 6 hereof or otherwise applied pursuant to the
provisions of this Stock Pledge Agreement.
10. Notices. All notices or other communications required or permitted to
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be given hereunder shall be delivered as provided in the Employment Agreement.
11. Binding Effect, Successors and Assigns. This Stock Pledge Agreement
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shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns and nothing herein is intended or shall be
construed to give any other person any right, remedy or claim under, to or in
respect of this Stock Pledge Agreement.
12. Miscellaneous. The Company and its assigns shall have no obligation in
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respect of the Pledged Securities, except to hold and dispose of the same in
accordance with the terms of this Stock Pledge Agreement. Neither this Stock
Pledge Agreement nor any provision hereof may be amended, modified, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the amendment, modification, waiver,
discharge or termination is sought. The provisions of this Stock Pledge
Agreement shall be binding upon the heirs, representatives, successors and
permitted assigns of the Pledgor. The captions in this Stock Pledge Agreement
are for convenience of reference only and shall not define or limit the
provisions hereof. This Stock Pledge Agreement shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts, without regard to the conflicts of law rules thereof. This Stock
Pledge Agreement may be executed simultaneously in several counterparts, each of
which is an original, but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Pledge
Agreement to be executed and delivered as of the date first above written.
CORPORATE SOFTWARE INCORPORATED
By /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Title: Chief Executive Officer
PLEDGOR
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
