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Exhibit (d)(5)
EXECUTION COPY
PLEDGE AGREEMENT
This Pledge Agreement (this "Agreement") is made as of January 30,
2000 between Xxxxxx Xxxxx ("Pledgor"), and Xxxxx Incorporated, a Wisconsin
corporation, (the "Company").
Pledgor holds 117,780 shares of the common stock, par value $0.10
per share of the Company (collectively, the "Pledged Shares"). Pledgor has an
economic and financial interest in Saw Mill (as defined below), Parent (as
defined below) and Merger Sub (as defined below), and as an inducement for the
Company to enter into the Merger Agreement (as defined below), Pledgor hereby
agrees to enter into this Agreement.
The Company, Saw Mill Capital Fund II, L.P., a Delaware limited
partnership ("Saw Mill"), Calendar Holdings, Inc., a Delaware corporation
("Parent") and Calendar Acquisition Corp., a Wisconsin corporation ("Merger
Sub") are among the parties to an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement). Certain capitalized terms used herein but
not otherwise defined herein have the meanings assigned to such terms in the
Merger Agreement.
In the event that the Merger Agreement is terminated pursuant to
Section 9.01(e) of the Merger Agreement, Saw Mill, Parent and Merger Sub have
agreed to pay to the Company the Company Reimbursable Expenses (such obligation,
the "Reimbursement Obligation") pursuant to Section 9.03(c) of the Merger
Agreement. This Agreement provides the terms and conditions upon which the
Reimbursement Obligation is secured by a pledge to the Company of the Pledged
Shares.
NOW, THEREFORE, in consideration of the premises contained herein
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged Pledgor and the Company hereby agree as follows:
1. Pledge. Pledgor hereby pledges and grants to the Company a
security interest in the Pledged Shares as security for the prompt and complete
payment, if and when due, of the Reimbursement Obligation pursuant to and in
accordance with the terms of the Merger Agreement.
2. Delivery of Pledged Shares. As soon as reasonably practicable
following the date hereof, Pledgor shall deliver to the Company the
certificate(s) representing the Pledged Shares, together with duly executed
forms of assignment or stock powers sufficient to transfer title thereto to the
Company.
3. Voting Rights; Cash Distributions. Notwithstanding anything to
the contrary contained herein, during the term of this Agreement, Pledgor shall
be entitled to all voting rights with respect to the Pledged Shares and shall be
entitled to receive all cash distributions or dividends paid in respect of the
Pledged Shares.
4. Stock Dividends; Distributions, etc. If, while this Agreement is
in effect, Pledgor becomes entitled to receive or receives any securities in
addition to, in substitution of, or in
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exchange for any of the Pledged Shares (whether as a distribution in connection
with any recapitalization, reorganization or reclassification, a stock
distribution or dividend, or otherwise), Pledgor shall accept such securities on
behalf of and for the benefit of the Company as additional security for the
Reimbursement Obligation and shall promptly deliver such additional security to
the Company together with duly executed forms of assignment or stock powers, and
such additional security shall be deemed to be part of the Pledged Shares
hereunder.
5. Default. If Saw Mill, Merger Sub and Parent default in the
payment of the Reimbursement Obligation, if and when it becomes due (a
"Default"), then at any time during the continuance of such Default, the Company
may exercise without demand any and all the rights and remedies granted to a
secured party upon default under the Uniform Commercial Code of Wisconsin or
otherwise available to the Company under applicable law. Without limiting the
foregoing, after and during the continuance of a Default, the Company is
authorized to sell, assign and deliver at its discretion, from time to time, all
or any part of the Pledged Shares at any private sale or public auction, on not
less than thirty days written notice to Pledgor, in a commercially reasonable
manner. At any such sale or auction, the Company may bid for, and become the
purchaser of, the whole or any part of the Pledged Shares offered for sale. In
case of any such sale, the proceeds of such sale shall be applied to payment of
the Reimbursement Obligation; provided, that after payment in full of the
Reimbursement Obligation, the balance of the proceeds of sale then remaining
shall be paid to Pledgor and Pledgor shall be entitled to the return of any of
the Pledged Shares remaining in the hands of the Company.
6. Release of Pledged Shares. The Company shall surrender the
Pledged Shares to Pledgor together with all forms of assignment or stock powers
upon the earlier to occur of (a) immediately prior to the Closing; (b) the
termination of the Merger Agreement (other than pursuant to Section 9.01(e)
thereof) and (c) in the event the Merger Agreement is terminated pursuant to
Section 9.01(e) thereof and Saw Mill, Merger Sub and Parent become obligated to
pay the Reimbursement Obligation in accordance with the terms of Section 9.03(c)
of the Merger Agreement, upon payment in full of the Reimbursement Obligation.
7. No Other Liens; No Sales or Transfers. Pledgor hereby represents
and warrants that he has good and valid title to all of the Pledged Shares, free
and clear of all liens, security interests and other encumbrances, and Pledgor
hereby covenants that, until such time as the Reimbursement Obligation shall
have been paid in full or the Pledged Shares shall have been released, Pledgor
shall not (i) create, incur, assume or suffer to exist any pledge, security
interest, encumbrance, lien or charge of any kind against the Pledged Shares,
other than pursuant to this Agreement, or (ii) without the prior written consent
of the Company, sell or otherwise transfer any Pledged Shares or any interest
therein other than to Saw Mill, Saw Mill Investments II, LLC, a Delaware limited
liability company, or SMC Partners II, LLC, a Delaware limited liability
company, immediately prior to the Closing.
8. Further Assurances. Pledgor agrees that at any time and from time
to time upon the written request of the Company, Pledgor shall execute and
deliver such further documents (including UCC financing statements and
collateral assignments) and do such further acts and things as the Company may
reasonably request in order to effect the purposes of this Agreement.
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9. Severability. 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.
10. No Waiver; Cumulative Remedies. The Company shall not by any
act, delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder, and no waiver shall be valid unless in writing, signed by
the Company, and then only to the extent therein set forth. A waiver by the
Company of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Company would otherwise have
on any future occasion. No failure to exercise nor any delay in exercising on
the part of the Company, any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided are cumulative and may be
exercised singly or concurrently, and are not exclusive of any rights or
remedies provided by law.
11. Amendments; Applicable Law. None of the terms or provisions of
this Agreement may be altered, modified or amended except by an instrument in
writing, duly executed by the parties hereto. This Agreement and all obligations
of the Pledgor hereunder shall together with the rights and remedies of the
Company hereunder, inure to the benefit of the Company and its successors and
assigns. This Agreement shall be governed by and construed in accordance with
the laws of the State of Wisconsin, without giving effect to any rules,
principles or provisions of choice of law or conflict of laws.
12. Disclaimer of Liability. Notwithstanding anything herein to the
contrary, the Company acknowledges and agrees that other than Pledgor's pledge
of the Pledged Shares pursuant to the terms hereof, the Pledgor shall have
absolutely no responsibility or liability to the Company or to any other person
and neither the Company nor or any other person shall have any recourse
whatsoever against the Pledgor or any of Pledgor's assets (other than the
Pledged Shares) with respect to any of the transactions contemplated by the
Merger Agreement or otherwise, including, without limitation, the Reimbursement
Obligation.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
XXXXX INCORPORATED
By: /s/ Xxxx Train
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Name: Xxxx Train
Title: Chief Executive Officer
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
