Exhibit 10
DEMAND NOTE
$ 176,592.50 September 19, 1997
In consideration of the loan (hereinafter referred to as a "Loan") XXXXXXX
COMPUTER ASSOCIATES, INC., a Pennsylvania corporation (the "Lender"), has made
to XXXXXX X. XXXXXXXX (the "Borrower"), and for value received, the Borrower
hereby promises to pay to the order of the Lender, at the Lender's office
located at 00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000, or at such other place
in the continental United States as the Lender may designate in writing, in
lawful money of the United States of America, and in immediately available
funds, the principal sum of One Hundred Seventy Six Thousand and Five Hundred
Ninety Two and 50/100 Dollars ($ 176,592.50).
The unpaid principal balance of the Note shall be paid UPON DEMAND, but in
any event, it shall automatically become payable in Full within fifteen (15)
business days after the Borrower sells the Stock (as hereinafter defined).
The Borrower hereby further promises to pay to the order of the Lender
interest on the outstanding principal amount from the date hereof, at a per
annum rate equal to 5.81%. In
addition, the Borrower shall pay on demand interest on any overdue payment of
principal and interest (to the extent legally enforceable) at 7.81%.
Interest shall be payable in arrears on March 31st of each year and at
maturity.
This Note and all of the Borrower's obligations hereunder are secured by
the pledge by Borrower of certain options granted to Borrower to purchase shares
of Common Stock of the Lender (the "Pledged Securities") pursuant to the terms
and conditions of a Pledge Agreement (the "Pledge Agreement") of even date
herewith between the Borrower and the Lender. Notwithstanding the foregoing,
the Borrower shall remain liable to the Lender for any deficiency remaining
after any foreclosure of the pledge pursuant to the Pledge Agreement.
All payments made on this Note (including, without limitation, prepayments)
shall be applied, at the option of the Lender, first to late charges and
collection costs, if any, then to accrued interest and then to principal.
Interest payable hereunder shall be calculated for actual days elapsed on the
basis of a 360-day year. Accrued and unpaid interest shall be due and payable
upon maturity of this Note. After maturity or in the event of default, interest
shall continue to accrue on the Note at the rate set forth above and shall be
payable on demand of the Lender.
The outstanding principal amount of this Note may be prepaid in whole or in
part without any prepayment penalty or premium at any time or from time to time
by the Borrower upon notice to the Lender; provided, that upon such payment any
interest due to the date of such prepayment on such prepaid amount shall also be
paid.
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Notwithstanding anything in this Note, the interest rate charged hereon
shall not exceed the maximum rate allowable by applicable law. If any stated
interest rate herein exceeds the maximum allowable rate, then the interest rate
shall be reduced to the maximum allowable rate, and any excess payment of
interest made by the Borrower at any time shall be applied to the unpaid balance
of any outstanding principal of this Note.
An event of default hereunder shall consist of:
(i) a default in the payment by the Borrower to the Lender of principal or
interest under this Note as and when the same shall become due and payable;
(ii) an event of default by the Borrower under any other obligation,
instrument, note or agreement for borrowed money, beyond any applicable notice
and/or grace period;
(iii) institution of any proceeding by or against the Borrower under any
present or future bankruptcy or insolvency statute or similar law and, if
involuntary, if the same are not stayed or dismissed within 60 days, or the
Borrower's assignment for the benefit of creditors or the appointment of a
receiver, trustee, conservator or other judicial representative for the
Borrower or the Borrower's property or the Borrower's being adjudicated
bankrupt or insolvent.
Upon the occurrence of any event of default, interest shall accrue on the
outstanding balance of this Note at 7.81%, the entire unpaid principal amount of
this Note and all unpaid interest accrued thereon shall, at the sole option of
the Lender, without notice, become immediately due and payable, and the Lender
shall thereupon have all the rights and remedies provided hereunder or now or
hereafter available at law or in equity.
The Borrower hereby waives presentment, demand, protest and notice of
dishonor and protest, and also waives all other exemptions; and agrees that
extension or extensions of the time of payment of this Note or any installment
or part thereof may be made before, at or after maturity by agreement by the
Lender. Upon default hereunder the Lender shall have the right to offset the
amount owed by the Borrower against any amounts owed by the Lender in any
capacity to the Borrower, whether or not due, and the Lender shall be deemed to
have exercised such right of offset and to have made a charge against any such
account or amounts immediately upon the occurrence of an event of default
hereunder even though such charge is made or entered on the books of the Lender
subsequent thereto. The Borrower shall pay to the Lender, upon demand, all
costs and expenses, including, without limitation, attorneys' fees and legal
expenses, that may be incurred by the Lender in connection with the enforcement
of this Note.
Any failure by the Lender to exercise any right hereunder shall not be
construed as a waiver of the right to exercise the same or any other right at
any time. No amendment to or modification of this Note shall be binding upon
the Lender unless in writing and signed by it.
Notices required to be given hereunder shall be deemed validly given (i)
three business days after sent, postage prepaid, by certified mail, return
receipt requested, (ii) one business day
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after sent, charges paid by the sender, by Federal Express Next Day Delivery
or other guaranteed delivery service, (iii) when sent by facsimile
transmission or (iv) when delivered by hand:
If to the Lender, to:
Xxxxxxx Computer Associates, Inc.
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
If to the Borrower, to:
Xxxxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxx
Xxxxx, XX 19087
(Mark "Personal and Confidential")
or to such other address, or in care of such other person, as the holder or the
Borrower shall hereafter specify to the other from time to time by due notice.
Any provision hereof found to be illegal, invalid or unenforceable for any
reason whatsoever shall not affect the validity, legality or enforceability of
the remainder hereof.
This Note shall apply to and bind the successors of the Borrower and shall
inure to the benefit of the Lender, its successors and assigns.
The Note shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Pennsylvania.
The Borrower has duly executed this Note as of the date first above
written.
/S/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
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PLEDGE AGREEMENT
For good and valuable consideration and intending to be legally bound,
XXXXXX X. XXXXXXXX ("Pledgor") hereby assigns, pledges and grants to XXXXXXX
COMPUTER ASSOCIATES, INC, a Pennsylvania corporation ("Pledgee"), a security
interest in the options granted pursuant to certain Option Agreements with
Pledgor to purchase shares of capital stock of Pledgee ("Option Agreements") in
which Pledgor has a legal or beneficial interest as described on Schedule A
attached hereto and made a part hereof, as the same may from time to time be
amended in writing by the parties hereto (all such options and securities being
hereinafter referred to as the "Securities," and such Securities together with
all additions thereto, substitutions or exchanges therefor, proceeds thereof and
distributions thereon being hereinafter referred to collectively as the
"Collateral"), as collateral security for the payment and performance of all
indebtedness, liability and obligations of Pledgor to Pledgee, whether for
principal, interest, fees, expenses or otherwise, now existing or hereafter
created or arising under the Note (the "Note") of even date herewith issued by
Pledgor to Pledgee, and any other documents, agreements and instruments executed
thereunder or in connection therewith including this Pledge Agreement
(collectively, the "Obligations," and such agreements, documents and instruments
evidencing and documenting the Obligations being hereinafter referred to
collectively as the "Documents"), all on the following terms and conditions.
X. Xxxxxxx represents and warrants that:
1. Pledgor has good title to the Securities free and clear of all
liens and encumbrances except the security interest created hereby and as
described on Schedule A.
2. The Securities are not subject to any statutory, contractual or
other restrictions governing their issuance, transfer, ownership or control
except as indicated in the Option Agreements for the Securities and as described
on Schedule A.
3. Pledgor has delivered to Pledgee all stock certificates,
promissory notes, bonds, debentures or other instruments or documents
representing or evidencing the Securities, together with corresponding
assignment or transfer powers duly executed in blank by Pledgor, and this Pledge
Agreement and such powers have been duly and validly executed and are binding
and enforceable against Pledgor in accordance with their terms; and the pledge
of the Securities in accordance with the terms hereof creates a valid and
perfected first priority security interest in the Securities securing payment of
the Obligations.
4. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required either
(i) for the pledge by Pledgor of the Securities pursuant to this Pledge
Agreement or for the execution, delivery or performance of this Pledge Agreement
by Pledgor or (ii) for the exercise by Pledgee of the voting or other rights
provided for in this Pledge Agreement or the remedies in respect of the
Collateral
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pursuant to this Pledge Agreement (except as may be required in connection
with such disposition by laws affecting the offering and sale of securities
generally).
B. Pledgor agrees not to (i) sell or otherwise dispose of, or grant any
option with respect to, any of the Collateral, or (ii) create or permit to exist
any lien, security interest, or other charge or encumbrance upon or with respect
to any of the Collateral, except the security interest under this Pledge
Agreement.
C. Prior to the full payment and performance of the Obligations, Pledgee
shall be entitled to receive, as additional Collateral any and all additional
shares of stock or any other property of any kind distributable on or by reason
of the Securities pledged hereunder, whether in the form of or by way of stock
dividends, warrants, partial liquidation, conversion, prepayments or redemptions
(in whole or in part), liquidation or otherwise, with the sole exception of
normal, regularly declared cash dividends or cash interest payments as the case
may be. If any of such property, other than such cash dividends or interest,
shall come into the possession or control of Pledgor, Pledgor shall hold or
control the same for the benefit of Pledgee and forthwith transfer and deliver
the same to Pledgee subject to the provisions hereof.
D. So long as no default has occurred under any of the Obligations or
Documents and Pledgor is in full compliance with the terms hereof:
1. Pledgor shall be entitled to receive and retain any normal,
regularly declared cash dividends or interest payments (as the case may be) paid
on the Securities pledged hereunder.
2. Pledgor may exercise all voting rights, if any, pertaining to the
Securities for any purpose not inconsistent with the terms hereof or of the
Obligations or Documents. In the event the Securities have been transferred
into the name of Pledgee or a nominee or nominees of Pledgee prior to default,
Pledgee or its nominee will execute and deliver upon request of Pledgor an
appropriate proxy in order to permit Pledgor to vote, if applicable, the same.
E. Pledgor shall take all actions (and execute and deliver from time to
time all instruments and documents) necessary or appropriate or requested by
Pledgee, to continue the validity, enforceability and perfected status of the
pledge of Securities hereunder.
F. Pledgee shall be under no obligation to take any actions and shall
have no liability (except for gross negligence or willful misconduct) with
respect to the preservation or protection of the pledged Securities or any
underlying interests represented thereby as against any prior or other parties.
In the event Pledgor requests that Pledgee take or omit to take action(s) with
respect to the Collateral, Pledgee may refuse to do so with impunity if Pledgor
does not, upon request of Pledgee, post sufficient, creditworthy indemnities
with Pledgee which, in Xxxxxxx's sole discretion, are sufficient to hold it
harmless from any possible liability of any kind in connection therewith.
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G. After the occurrence of a default under any of the Obligations or the
Documents or if any representation, warranty or agreement of Pledgor hereunder
is breached or proves to be false:
1. Pledgee may exercise or cause to be exercised any of the Pledged
Securities and transfer or cause to be transferred any of the shares issued upon
such exercise into its own or a nominee's or nominees' names.
2. Pledgee shall be entitled to receive and apply in payment of the
Obligations any cash dividends, interest or other payment on the pledged
Securities.
3. Pledgee shall be entitled to exercise in Pledgee's discretion all
voting rights, if any, pertaining thereto and in connection therewith and at the
written request of Pledgee, Pledgor shall execute any appropriate dividend,
payment or brokerage orders or proxies.
4. Pledgor shall take any action necessary or required or requested
by Pledgee, in order to allow Pledgee fully to enforce the pledge of the
Securities hereunder and realize thereon to the fullest possible extent,
including but not limited to the filing of any claims with any court, liquidator
or trustee, custodian, receiver or other like person or party.
5. Pledgee shall have all the rights and remedies granted or
available to it hereunder, under the Uniform Commercial Code as in effect from
time to time in the Commonwealth of Pennsylvania, under any other statute or the
common law, or under any of the Documents, including the right to sell the
pledged Securities or any portion thereof at one or more public or private sales
upon fifteen days' written notice and to bid thereat or purchase any part or all
thereof in its own or a nominee's or nominees' names, free and clear of any
equity of redemption; and to apply the net proceeds of the sale, after deduction
for any expenses of sale, including the payment of all Pledgee's reasonable
attorneys' fees in connection with the Obligations and the sale, to the payment
of the Obligations in any manner or order which Pledgee in its sole discretion
may elect, without further notice to or consent of Pledgor and without regard to
any equitable principles of marshaling or other like equitable doctrines.
6. Pledgee may increase, in its sole discretion, but shall not be
required to do so, the Obligations by making additional advances or incurring
expenses for the account of Pledgor deemed appropriate or desirable by Pledgee
in order to protect, enhance, preserve or otherwise further the sale or
disposition of the Collateral or any other property it holds as security for the
Obligations.
X. Xxxxxxx recognizes that Pledgee may be unable to effect a sale to the
public of all or part of the Securities by reason of certain prohibitions or
restrictions in the federal or state securities laws and regulations (herein
collectively called the "Securities Laws"), or the provisions of other federal
and state laws, regulations or rulings, but may be compelled to resort
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to one or more sales to a restricted group of purchasers who will be required
to agree to acquire the Securities for their own account, for investment and
not with a view to the further distribution or resale thereof without
restriction. Pledgor agrees that any sales(s) so made may be at prices and
on other terms less favorable to Pledgor than if the Securities were sold to
the public, and that Pledgee has no obligation to delay sale of the
Securities for period(s) of time necessary to permit the issuer thereof to
register the Securities for sale to the public under any of the Securities
Laws. Xxxxxxx agrees that negotiated sales whether for cash or credit made
under the foregoing circumstances shall not be deemed for that reason not to
have been made in a commercially reasonable manner. Pledgor shall cooperate
with Pledgee and shall satisfy any requirements under the Securities Laws
applicable to the sale or transfer of the Securities by Pledgee.
In connection with any sale or disposition of the Collateral, Pledgee
is authorized to comply with any limitation or restriction as it may be advised
by its counsel is necessary or desirable in order to avoid any violation of
applicable law or to obtain any required approval of the purchaser(s) by any
governmental regulatory body or officer and it is agreed that such compliance
shall not result in such sale being considered not to have been made in a
commercially reasonable manner nor shall Pledgee be liable or accountable by
reason of the fact that the proceeds obtained at such sale(s) are less than
might otherwise have been obtained.
Pledgee may elect to obtain the advice of any reputable independent
investment banking firm or investment advisor with respect to the method and
manner of sale or other disposition of any of the Collateral, the best price
reasonably obtainable therefor, the consideration of cash and/or credit terms,
or any other details concerning such sale or disposition.
I. Pledgor will pay Pledgee the amount of any reasonable expenses
including counsel fees and expenses incurred by Pledgee in connection with (i)
the administration of this Pledge Agreement, (ii) the custody, preservation,
sale or collection or realization of the Collateral, (iii) the exercise or
enforcement of Pledgee's rights hereunder, or (iv) the failure of Pledgor to
perform hereunder.
J. Notwithstanding any other provision hereof, Pledgor shall remain
liable to Pledgee for any deficiency remaining after any sale, transfer or other
disposition of the Collateral hereunder.
K. This Pledge Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns and shall be governed as to its
validity, interpretation and effect by the laws of the Commonwealth of
Pennsylvania; and any terms used herein which are defined in the Uniform
Commercial Code as enacted in the Commonwealth of Pennsylvania shall have the
meanings therein set forth.
L. If Pledgee shall waive any rights or remedies arising hereunder or
under any applicable law, such waiver shall not be deemed to be a waiver upon
the later occurrence or
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recurrence of any of said events. No delay by Pledgee in the exercise of any
right or remedy shall under any circumstances constitute or be deemed to be a
waiver, express or implied, of the same and no course of dealing between the
parties hereto shall constitute a waiver of Pledgee's rights or remedies.
X. Xxxxxxx hereby irrevocably appoints Pledgee as its attorney-in-fact to
execute, deliver and record, if appropriate, from time to time any instruments
or documents in connection with the Collateral, in Pledgor's or Xxxxxxx's name.
N. This Pledge Agreement represents the entire understanding of the
parties with respect to the subject matter and no modification or change herein
shall be effective unless contained in a writing signed by the parties hereto.
O. If more than one Pledgor signs this Pledge Agreement, all references
herein to Pledgor shall include all such Pledgors and each shall be jointly and
severally bound by the terms and provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Pledge Agreement
as of the 19th day of September, 1997.
PLEDGOR:
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
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SCHEDULE A TO PLEDGE AGREEMENT
THE SECURITIES
Options to purchase 25,000 shares of Common Stock, no par value per
share, of Xxxxxxx Computer Associates, Inc. pursuant to certain Option
Agreements dated April 28, 1997.
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