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Exhibit 10.2
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of July 31, 1998 made by and
between Xxxxxxx X. Xxxxxxxxxx, an individual with an address at 0000 Xxxxxx
Xxxxx, Xxx Xxxx, XX 00000-0000 (the "PLEDGOR"), in favor of SIPEX CORPORATION, a
Massachusetts Corporation, having its principal place of business at 00 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("SIPEX") (the "Agreement").
WHEREAS, that certain Pledge and Security Agreement dated July 31, 1997
is hereby canceled and superseded in its entirety by the Agreement.
WHEREAS, the Pledgor is the beneficial owner of shares of the Common
Stock, $.01 par value per share, of SIPEX (the "SHARES");
WHEREAS, SIPEX has agreed to loan to the Pledgor $55,000 pursuant to
this Agreement, and such loan is to be evidenced by a Promissory Note in the
principal amount of $55,000, issued by the Pledgor in favor of SIPEX as of the
date hereof and attached hereto as EXHIBIT A (the "NOTE");
WHEREAS, the Pledgor's obligations arising under the Note and this
Agreement are to be secured by certain Collateral (as defined herein); and
WHEREAS, the obligation of SIPEX to advance said loan to the Pledgor
under the Note is subject to the condition that the Pledgor execute and deliver
this Agreement and grant the security interest hereinafter described.
NOW, THEREFORE, in consideration of the covenants and conditions set
forth herein and to induce SIPEX to advance the loan to the Pledgor, the Pledgor
hereby agrees with SIPEX as follows:
SECTION 1. DEFINED TERMS. The following terms have the following
meanings:
"CODE" means the Uniform Commercial Code from time to time in effect in
the Commonwealth of Massachusetts.
"COLLATERAL" means the Pledged Stock and all Proceeds.
"FORECLOSURE DATE" means any date on which SIPEX sends to the Pledgor a
Foreclosure Notice.
"FORECLOSURE NOTICE" means written notice that SIPEX may give to the
Pledgor when an Event of Default occurs and is continuing, which notice shall
state (i) that SIPEX is exercising its rights under this Agreement and (ii) the
nature of the Event of Default.
"OBLIGATIONS" means the unpaid principal of and interest on the Note
and all other obligations and liabilities of the Pledgor to SIPEX, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under or in connection with the
Note or this Agreement, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise.
"PLEDGED STOCK" means the number of Shares that Pledgor may acquire,
whether by stock option exercise or otherwise.
"PROCEEDS" means all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the Commonwealth of
Massachusetts on the date hereof and, in any event, includes, without
limitation, all dividends or other income from the Pledged Stock, collections
thereon or distributions with respect thereto.
SECTION 2. PLEDGE; GRANT OF SECURITY INTEREST. The Pledgor hereby
pledges to SIPEX the Pledged Securities and hereby grants to SIPEX a first
priority security interest in the Collateral, as collateral security for the
prompt and complete payment and performance when due of the Obligations.
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SECTION 3. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants that:
(a) this Agreement has been duly executed by the Pledgor,
and constitutes a valid and binding obligation of the Pledgor enforceable in
accordance with its terms;
(b) no consent or authorization of, filing with, or other
act by or with respect to, any arbitrator or governmental authority and no
consent of any other person (including, without limitation, any creditor of the
Pledgor), is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement; and
(c) the Pledgor will be the record and beneficial owner
of any shares that become pledged securities after the date hereof, and the
Shares will be (in the case of Shares acquired after the date hereof), free of
any and all liens, pledges, security interests, encumbrances or options in favor
of, or claims of, any other person, except the lien created by this Agreement.
SECTION 4. COVENANTS. The Pledgor covenants and agrees with SIPEX that,
from and after the date of this Agreement until the Obligations are paid in
full:
(a) The Pledgor shall deliver within five (5) business
days of acquisition of any Shares the stock certificate or certificates
representing the Pledged Stock, together with an undated stock power or powers
covering such certificate or certificates, duly executed in blank, and with, if
SIPEX so requests, signature guaranteed.
(b) At any time and from time to time, upon the written
request of SIPEX, and at the sole expense of the Pledgor, the Pledgor shall
promptly and duly execute and deliver such further instruments and documents and
take such further actions as SIPEX may reasonably request for the purposes of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted. If any amount payable under or in connection with any
of the Collateral is or becomes evidenced by any promissory note, other
instrument or chattel paper, such note, instrument or chattel paper shall be
promptly delivered to SIPEX, duly endorsed in a manner satisfactory to SIPEX, to
be held as Collateral pursuant to this Agreement.
(c) The Pledgor agrees to pay, and to save SIPEX harmless
from, any and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral or in connection
with any of the transactions contemplated by this Agreement.
(d) The Pledgor shall not transfer, dispose of or
otherwise alienate his rights in the Collateral, except that the Pledgor may at
any time and from time to time sell a portion of the Shares, PROVIDED that upon
completion of each sale of Shares, the Pledgor shall remit the proceeds of such
sale to SIPEX in payment of the principal of the Note.
(e) Without the prior written consent of SIPEX, the
Pledgor shall not create, incur or permit to exist any lien or option in favor
of, or any claim of any person or entity with respect to, any of the Collateral
or any interest therein.
SECTION 5. CASH DIVIDENDS; VOTING RIGHTS. Until an Event of Default has
occurred and SIPEX has given a Foreclosure Notice in accordance with Section 11
hereof to the Pledgor, the Pledgor shall be permitted to receive all cash
dividends paid by SIPEX with respect to the Pledged Stock and to exercise all
voting and corporate rights with respect to the Pledged Stock.
SECTION 6. DEFAULT. The occurrence of any Event of Default (as defined
in the Note) shall constitute a default hereunder (an "EVENT OF DEFAULT").
SECTION 7. RIGHTS OF SIPEX. (a) If an Event of Default occurs and SIPEX
gives a Foreclosure Notice to the Pledgor (i) SIPEX shall have the right to
receive any and all cash dividends paid with respect to the Pledged Stock and
make application thereof to the Note in such order as it may determine, and (ii)
all shares of the Pledged Stock shall be registered in the name of SIPEX or its
nominee, and SIPEX or its nominee may thereafter exercise (A) all voting,
corporate and other rights pertaining to such shares of the Pledged Stock at any
meeting of
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shareholders of SIPEX or otherwise and (B) any and all rights of conversion,
exchange, subscription and any other rights, privileges or options pertaining to
the option or any shares of the Pledged Stock as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Stock upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of
SIPEX, or upon the exercise by the Pledgor or SIPEX of any right, privilege or
option pertaining to such shares of the Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the Pledged Stock
with any committee, depository, transfer agent, registrar or other designated
agency upon such terms and conditions as it may determine), all without
liability except to account for property actually received by it, but SIPEX
shall have no duty to exercise any such right, privilege or option and shall not
be responsible for any failure to do so or delay in so doing.
(b) SIPEX shall not be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Pledgor or any other
person or to take any other action whatsoever with regard to the Collateral or
any part thereof.
(c) When the Obligations have been paid in full, the
pledge of the Collateral shall cease, and the Collateral shall revert to the
Pledgor free and clear of all liens securing any obligation or liability of the
Pledgor to SIPEX, and SIPEX's rights, title, and interest therein shall cease
and become void.
SECTION 8. SEVERABILITY. Any provision of this Agreement that 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.
SECTION 9. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise, nor
any delay in exercising, on the part of SIPEX, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
SECTION 10. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS; GOVERNING
LAW. None of the terms or provisions of this Agreement, may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Pledgor and SIPEX, PROVIDED that any provision of this Agreement may be
waived by SIPEX in a letter or agreement executed by SIPEX in favor of the
Pledgor and delivered to the Pledgor in accordance with Section 11. This
Agreement shall be binding upon the successors and assigns of the Pledgor and
shall inure to the benefit of SIPEX and its successors and assigns. This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the Commonwealth of Massachusetts. Each party hereto consents
to the jurisdiction of the state courts of the Commonwealth of Massachusetts and
the United States courts for the District of Massachusetts with respect to the
transactions contemplated hereby.
SECTION 11. NOTICES. Notices under this Agreement may be given by
express overnight courier service or by facsimile transmission, addressed to the
parties hereto at their respective addresses set forth in the first paragraph to
this Agreement and shall be effective when sent. Either party may change their
respective addresses by written notice to the other party.
SECTION 12. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one agreement.
SECTION 13. OTHER AGREEMENTS. This Agreement replaces and supersedes
that certain Pledge and Security Agreement dated July 31, 1997 by and between
SIPEX and the Pledgor.
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IN WITNESS WHEREOF, the undersigned has caused this Pledge and Security
Agreement to be duly executed and delivered as of the date first above.
PLEDGOR:
/s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
SIPEX CORPORATION
By: /s/ Xxxxx X Xxxxxxxx
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Title: Executive Vice President Finance &
Chief Financial Officer
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