PLEDGE AGREEMENT
This Pledge Agreement (the "Agreement") is entered into as of the 15th
day of March, 2002 between HydroChem Holding, Inc. ("Lender") and B. Xxx
Xxxxxx, Jr. ("Pledgor").
WHEREAS, Pledgor is indebted to Lender in the aggregate amount of Four
Hundred Thirty Four Thousand Three Hundred Sixty One and 95/100 Dollars
($434,361.95) for principal and accrued interest through the date hereof
pursuant to a certain Secured Promissory Note dated as of February 9, 2001
from Pledgor to Lender (the "Old Note"); and
WHEREAS, under a Pledge Agreement dated as of February 9, 2001 (the
"Old Pledge Agreement") between Pledgor and Lender, the Old Note was secured
by the pledge of Three Hundred Sixty Thousand One Hundred Four (360,104)
shares of the Lender's Class A Common Stock which shares were purchased at
various times pursuant to stock option exercises by Pledgor; and
WHEREAS, Pledgor has executed and delivered a Secured Promissory Note
to Lender dated as of the date hereof in the principal amount of Four Hundred
Thirty Four Thousand Three Hundred Sixty One and 95/100 Dollars ($434,361.95)
with interest as therein specified (the "Note") which is in substitution and
replacement of the Old Note; and
WHEREAS, Pledgor desires to pledge all of the Stock Collateral (as such
term is hereinafter defined) as collateral and security for Pledgor's
obligations and duties under the Note and this Agreement, and to enter into
this Pledge Agreement in replacement and substitution of the Old Pledge
Agreement.
NOW, THEREFORE, for and in consideration of the premises and the
covenants herein contained, and in consideration of the extension of credit
to Pledgor as evidenced by the Note, the parties hereto agree as follows:
1. Pledge of Stock Collateral. As collateral and security for the
prompt and full performance of all duties and obligations of Pledgor under
the Note and this Agreement, Pledgor hereby pledges, assigns and transfers
unto Lender, and grants a security interest to Lender in and to the following
property of Pledgor (collectively, the "Stock Collateral"):
(a) 360,104 shares of the Lender's Class A Common Stock
registered in the name of Pledgor and represented by the following stock
certificates:
Certificate Number Date of Certificate Number of Shares
------------------ ------------------- ----------------
CA-28 April 9, 1998 285,601
CA-31 April 30, 1999 43,539
CA-33 May 15, 2000 16,089
CA-35 February 9, 2001 14,875
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(b) All stock rights, rights to subscribe, dividends (including,
but not limited to, cash dividends, stock dividends, dividends paid in stock
and liquidating dividends), and any other rights and property interest
(including, but not limited to, accounts, contract rights, instruments and
general intangibles) arising out of, or relating to, the Shares;
(c) All other or additional (or less) stock or other securities
or property (including cash) paid or distributed in respect of the Shares by
way of stock split, spin off, reclassification, combination of shares or
similar corporate rearrangement;
(d) All other or additional (or less) stock or other securities
or property (including cash) paid or distributed in respect of the Shares by
reason of any consolidation, merger, exchange of stock, conveyance of assets,
liquidation or similar corporate reorganization; and
(e) All proceeds (both cash and non-cash) of the foregoing,
whether now or hereafter arising under the foregoing.
The above referenced certificates representing the Shares, together with
irrevocable stock powers executed in blank, are herewith delivered to Lender
to hold pursuant to the terms of this Agreement.
2. Dividends. So long as there exists no default by Pledgor under
the Note or this Agreement during the term hereof, all dividends and other
amounts with respect to the Stock Collateral shall be paid to the Pledgor.
3. Voting Rights. During the term of this Agreement, and so long as
Pledgor is not in default in the performance of any of the terms of the Note
or this Agreement, Pledgor shall have the sole and exclusive right to vote
the Stock Collateral on all corporate questions before the stockholders of
Lender, and Lender shall execute and deliver to Pledgor in a due and timely
manner proxies in favor of Pledgor to this end.
4. Representations and Warranties. Pledgor represents and warrants
to Lender (i) that the Shares are validly issued, fully paid and
nonassessable, (ii) that the Shares are validly pledged to Lender in
accordance with law, and (iii) that Pledgor has, and will have, good and
marketable title to the Shares, free and clear of all liens and encumbrances
(other than the security interest granted herein).
5. Covenants. Until full performance of Pledgor's duties and
obligations under the Note and this Agreement, Pledgor shall (i) deliver to
Lender (a) immediately upon Pledgor's receipt of any stock or other
securities paid or distributed in respect of the Shares, the certificates
representing such stock or securities, and (b) irrevocable stock powers
executed in blank for all such stock or securities; (ii) defend, at Pledgor's
sole expense, the title to the Stock Collateral or any part thereof; and
(iii) promptly, upon request by Lender, execute, acknowledge and deliver any
financing statement, endorsement, renewal, affidavit, deed, assignment,
continuation statement, security agreement, certificate or other document as
Lender may require in order to perfect, preserve, maintain, protect, continue
and/or extend the lien and security interest of Lender under this Agreement
and the priority thereof.
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6. Full Performance. Upon full performance of Pledgor's duties and
obligations under the Note and this Agreement, Lender shall deliver to
Pledgor all of the Stock Collateral that remains pledged hereunder and this
Agreement shall thereupon terminate.
7. Default. Pledgor shall be in default under this Agreement on the
occurrence of any of the following events or conditions:
(a) Failure to make any payment in accordance with the
terms of the Note; or
(b) Pledgor's failure to observe, keep or perform any
covenant, agreement or condition required by this Agreement to be observed,
kept or performed; or
(c) Pledgor's insolvency, or the appointment of an
assignee for the benefit of creditors or of a receiver for Pledgor, or in the
event that a petition under any provision of the Federal Bankruptcy Act is
filed either by or against Pledgor.
8. Remedies. Upon the occurrence of any event of default, in
addition to any other right or remedy that Lender may then have under the
Texas Business and Commerce Code or otherwise, Lender may sell, assign and
deliver, in its sole discretion, all or any part of the Stock Collateral in
one or more parcels, and all right, title and interest, claim and demand
therein, at public or private sale, for cash or other property, upon credit
or for future delivery, Pledgor hereby waiving and releasing any and all
equity or right of redemption.
9. No Waiver of Rights or Remedies. No failure or delay by Lender
in exercising any right, power or privilege under the Note or this Agreement
shall operate as a waiver thereof, and no single or partial exercise thereof
shall preclude any other or future exercise of any other right, power or
privilege.
10. Notice. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effective when delivered in person or when
deposited in the U.S. mail, postage prepaid, for delivery as registered or
certified mail, return receipt requested, and addressed as follows:
If to Pledgor: B. Xxx Xxxxxx, Jr.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
If to Lender:
HydroChem Industrial Services, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxx 00000
Attention: General Counsel
(or to such other address as may be stated in written notices furnished by
any party to the other party).
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11. Governing Law. This Agreement shall be governed by and construed
under and in accordance with the Texas Business and Commerce Code and other
applicable laws of the State of Texas.
12. Parties Bound. This Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, representatives, successors and assigns.
13. Severability. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
14. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof,
and it supersedes all other prior or contemporaneous agreements,
understandings, restrictions warranties or representations between the
parties including, but not limited to, the Old Pledge Agreements which are
hereby cancelled. This Agreement may be amended or waived in the future only
by a written instrument signed by both parties.
15. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning of this
Agreement or its interpretation.
16. Stockholders Agreement. Notwithstanding any other provision of
this Agreement, Lender hereby acknowledges that is takes the Stock Collateral
subject to the terms and conditions of that certain Stockholders Agreement
dated as of December 15, 1993, as amended, by and among Lender and certain
holders of Lender's capital stock.
IN WITNESS WHEREOF, the parties have executed this Agreement and
caused the same to be duly delivered on the day and year hereinabove first
set forth.
PLEDGOR:
/s/ B. Xxx Xxxxxx
-----------------
B. Xxx Xxxxxx, Jr.
LENDER:
HydroChem Holding, Inc.
By:/s/ Xxxxxx Xxxxxxx
-------------------
Xxxxxx Xxxxxxx, Vice President and
Chief Financial Officer
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