STOCK PLEDGE AGREEMENT
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This Stock Pledge Agreement (this "Agreement") dated as of July 31, 2003,
between Laurus Master Fund, Ltd. ("Pledgee"), and Xxxxxx Traffic Systems, Inc.,
a Delaware corporation ("Pledgor").
BACKGROUND
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Pledgee and Xxxxxx, Inc, the parent of Pledgor have entered or are entering
into a Securities Purchase Agreement dated as of July 31, 2003 (as amended,
modified, restated or supplemented from time to time, the "Purchase Agreement")
pursuant to which Pledgee provides or will provide certain financial
accommodations to Xxxxxx, Inc.
In order to induce Pledgee to provide or continue to provide the financial
accommodations described in the Purchase Agreement, Pledgor has agreed to pledge
and grant a security interest in the collateral described herein to Pledgee on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Defined Terms. All capitalized terms used herein which are not defined
shall have the meanings given to them in the Purchase Agreement.
2. Pledge and Grant of Security Interest. To secure the full and punctual
payment and performance of the (a) obligations under the Purchase Agreement
and (b) all other indebtedness, obligations and liabilities of Pledgor to
Pledgee whether now existing or hereafter arising, direct or indirect,
liquidated or unliquidated, absolute or contingent, due or not due and
whether under, pursuant to or evidenced by a note, agreement, guaranty,
instrument or otherwise ((a) and (b) collectively, the "Indebtedness"),
Pledgor hereby pledges, assigns, hypothecates, transfers and grants a
security interest to Pledgee in all of the following (the "Collateral"):
(a) the shares of stock set forth on Schedule A annexed hereto and
expressly made a part hereof (the "Pledged Stock"), the certificates
representing the Pledged Stock and all dividends, cash, instruments
and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of the Pledged Stock;
(b) all additional shares of stock of any issuer of the Pledged Stock (the
"Issuer") from time to time acquired by the Pledgor in any manner,
including, without limitation, stock dividends or a distribution in
connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination
of shares, stock split, spin-off or split-off (which shares shall be
deemed to be part of the Collateral), and the certificates
representing such additional shares, and all dividends, cash,
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instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of such shares; and
(c) all options and rights, whether as an addition to, in substitution of
or in exchange for any shares of the Pledged Stock and all dividends,
cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all such options and rights.
3. Delivery of Collateral. All certificates representing or evidencing the
Pledged Stock shall be delivered to and held by or on behalf of Pledgee
pursuant hereto and shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to
Pledgee. Pledgor hereby authorizes the Issuer upon demand by Pledgee to
deliver any certificates, instruments or other distributions issued in
connection with the Collateral directly to Pledgee, in each case to be held
by Pledgee, subject to the terms hereof. Upon an Event of Default under the
Note that has occurred and is continuing beyond any applicable grace
period, Pledgee shall have the right, during such time in its discretion
and without notice to the Pledgor, to transfer to or to register in the
name of Pledgee or any of its nominees any or all of the Pledged Stock. In
addition, Pledgee shall have the right at such time time to exchange
certificates or instruments representing or evidencing Pledged Stock for
certificates or instruments of smaller or larger denominations.
4. Representations and Warranties of Pledgor. Pledgor represents and warrants
to Pledgee (which representations and warranties (other than those in this
Section 4(m)) shall be deemed to continue to be made until all of the
Indebtedness has been paid in full and the Purchase Agreement has been
irrevocably terminated) that:
(a) The execution, delivery and performance by Pledgor of this Agreement
and the pledge of the Collateral hereunder do not and will not result
in any violation of any agreement, indenture, instrument, license,
judgment, decree, order, law, statute, ordinance or other governmental
rule or regulation applicable to Pledgor.
(b) This Agreement constitutes the legal, valid, and binding obligation of
Pledgor enforceable against Pledgor in accordance with its terms.
(c) Pledgor is the direct and beneficial owner of each share of the
Collateral.
(d) All of the shares of the Pledged Stock have been duly authorized,
validly issued and are fully paid and nonassessable.
(e) No consent or approval of any person, corporation, governmental body,
regulatory authority or other entity, is or will be necessary for (i)
the execution, delivery and performance of this Agreement, (ii) the
exercise by Pledgee of any rights with respect to the Collateral or
(iii) the pledge and assignment of, and the grant of a security
interest in, the Collateral hereunder.
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(f) There are no pending or, to the best of Pledgor's knowledge,
threatened actions or proceedings before any court, judicial body,
administrative agency or arbitrator which may materially adversely
affect the Collateral.
(g) Pledgor has the requisite power and authority to enter into this
Agreement and to pledge and assign the Collateral to Pledgee in
accordance with the terms of this Agreement.
(h) Pledgor owns each item of the Collateral and, except for the pledge
and security interest granted to Pledgee hereunder, the Collateral is
free and clear of any other security interest, pledge, claim, lien,
charge, hypothecation, assignment, offset or encumbrance whatsoever
(collectively, "Liens").
(i) There are no restrictions on transfer of the Pledged Stock contained
in the certificate of incorporation or by-laws of the Issuer or
otherwise which have not otherwise been enforceably and legally waived
by the necessary parties.
(j) None of the Pledged Stock has been issued or transferred in violation
of the securities registration, securities disclosure or similar laws
of any jurisdiction to which such issuance or transfer may be subject.
(k) The pledge and assignment of the Collateral and the grant of a
security interest under this Agreement vest in Pledgee all rights of
Pledgor in the Collateral as contemplated by this Agreement.
(l) The Pledged Stock constitutes one hundred percent (100%) of the issued
and outstanding shares of capital stock of the respective Issuer.
5. Covenants. Pledgor covenants that, until the Indebtedness shall be
satisfied in full and the Purchase Agreement is irrevocably terminated:
(a) Pledgor will not sell, assign, transfer, convey, or otherwise dispose
of its rights in or to the Collateral or any interest therein; nor
will Pledgor create, incur or permit to exist any Lien whatsoever with
respect to any of the Collateral or the proceeds thereof other than
that created hereby.
(b) Pledgor will, at its expense, defend Pledgee's right, title and
security interest in and to the Collateral against the claims of any
other party.
(c) Pledgor shall at any time, and from time to time, upon the written
request of Pledgee, execute and deliver such further documents and do
such further acts and things as Pledgee may reasonably request in
order to effect the purposes of this Agreement including, but without
limitation, delivering to Pledgee upon the occurrence of an Event of
Default irrevocable proxies in respect of the Collateral in form
satisfactory to Pledgee. Until receipt thereof, upon an Event of
Default under the Note that has occurred and is continuing beyond any
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applicable grace period, this Agreement shall constitute Pledgor's
proxy to Pledgee or its nominee to vote all shares of Collateral then
registered in Pledgor's name.
(d) Pledgor will not consent to or approve the issuance of (i) any
additional shares of any class of capital stock of the Issuer; (ii)
any securities convertible either voluntarily by the holder thereof or
automatically upon the occurrence or nonoccurrence of any event or
condition into, or any securities exchangeable for, any such shares.
6. Voting Rights and Dividends. In addition to Pledgee's rights and remedies
set forth in Section 8 hereof, in case an Event of Default under the Note
shall have occurred and be continuing, beyond any applicable cure period
Pledgee shall (i) vote the Collateral (ii) be entitled to give consents,
waivers and ratifications in respect of the Collateral (Pledgor hereby
irrevocably constituting and appointing Pledgee, with full power of
substitution, the proxy and attorney-in-fact of Pledgor for such purposes)
and (iii) be entitled to collect and receive for its own use cash dividends
p aid on the Collateral. Pledgor shall not be permitted to exercise or
refrain from exercising any voting rights or other powers if, in the
reasonable judgment of Pledgee, such action would have a material adverse
effect on the value of the Collateral or any part thereof; and, provided,
further, that Pledgor shall give at least five (5) days' written notice of
the manner in which Pledgor intends to exercise, or the reasons for
refraining from exercising, any voting rights or other powers other than
with respect to any election of directors and voting with respect to any
incidental matters. Following the occurrence of an Event of Default, all
dividends and all other distributions in respect of any of the Collateral,
shall be delivered to Pledgee to hold as Collateral and shall, if received
by the Pledgor, be received in trust for the benefit of Pledgee, be
segregated from the other property or funds of the Pledgor, and be
forthwith delivered to Pledgee as Collateral in the same form as so
received (with any necessary endorsement).
7. Event of Default. An Event of Default shall be deemed to have occurred and
may be declared by Pledgee upon the happening of any of the following
events:
(a) An "Event of Default" under the Note shall have occurred and be
continuing beyond any applicable cure period;
(b) Pledgor shall default in the performance of any of its obligations
under any agreement between Pledgor and Pledgee, including, without
limitation, this Agreement, and such default shall not be cured for a
period of twenty (20) business days after written notice thereof is
received by the Pledgor from Pledgee;
(c) Any material representation or warranty of the Pledgee made herein, in
the Purchase Agreement, or in any agreement, statement or certificate
given in writing pursuant hereto or in connection therewith shall be
false or misleading and shall not be cured for a period of twenty (20)
business days after written notice thereof is received by the Pledgor
from Pledgee;
(d) The Collateral is subjected to levy of execution, attachment,
distraint or other judicial process; or the Collateral is the subject
of a claim (other than by Pledgee) of a Lien or other right or
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interest in or to the Collateral and such levy or claim shall not be
cured, disputed or stayed within a period of thirty (30) days after
written notice thereof; or
(e) Pledgor shall (i) apply for, consent to, or suffer to exist the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, liquidator or other fiduciary of itself or of all or a
substantial part of its property, (ii) make a general assignment for
the benefit of creditors, (iii) commence a voluntary case under any
state or federal bankruptcy laws (as now or hereafter in effect), (iv)
be adjudicated a bankrupt or insolvent, (v) file a petition seeking to
take advantage of any other law providing for the relief of debtors,
(vi) acquiesce to, or fail to have dismissed, within ninety (90) )
days, any petition filed against it in any involuntary case under such
bankruptcy laws, or (vii) take any action for the purpose of effecting
any of the foregoing.
8. Remedies. In case an Event of Default shall have occurred and be declared
by Pledgee, Pledgee may:
(a) Transfer any or all of the Collateral into its name, or into the name
of its nominee or nominees;
(b) Exercise all corporate rights with respect to the Collateral
including, without limitation, all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to
any shares of the Collateral as if it were the absolute owner thereof,
including, but without limitation, the right to exchange, at its
discretion, any or all of the Collateral upon the merger,
consolidation, reorganization, recapitalization or other readjustment
of the Issuer thereof, or upon the exercise by the Issuer of any
right, privilege or option pertaining to any of the Collateral, and,
in connection therewith, to deposit and deliver any and all of the
Collateral with any committee, depository, transfer agent, registrar
or other designated agent upon such terms and conditions as it may
determine, all without liability except to account for property
actually received by it; and
(c) Subject to any requirement of applicable law, sell, assign and deliver
the whole or, from time to time, any part of the Collateral at the
time held by Pledgee, at any private sale or at public auction, with
or without demand, advertisement or notice of the time or place of
sale or adjournment thereof or otherwise (all of which are hereby
waived, except such notice as is required by applicable law and cannot
be waived), for cash or credit or for other property for immediate or
future delivery, and for such price or prices and on such terms as
Pledgee in its sole discretion may determine, or as may be required by
applicable law.
Pledgor hereby waives and releases any and all right or equity of
redemption, whether before or after sale hereunder. At any such sale,
unless prohibited by applicable law, Pledgee may bid for and purchase
the whole or any part of the Collateral so sold free from any such
right or equity of redemption. All moneys received by Pledgee
hereunder whether upon sale of the Collateral or any part thereof or
otherwise shall be held by Pledgee and applied by it as provided in
Section 10 hereof. No failure or delay on the part of Pledgee in
exercising any rights hereunder shall operate as a waiver of any such
rights nor shall any single or partial exercise of any such rights
preclude any other or future exercise thereof or the exercise of any
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other rights hereunder. Pledgee shall have no duty as to the
collection or protection of the Collateral or any income thereon nor
any duty as to preservation of any rights pertaining thereto, except
to apply the funds in accordance with the requirements of Section 10
hereof. Pledgee may exercise its rights with respect to property held
hereunder without resort to other security for or sources of
reimbursement for the Indebtedness. In addition to the foregoing,
Pledgee shall have all of the rights, remedies and privileges of a
secured party under the Uniform Commercial Code of New York regardless
of the jurisdiction in which enforcement hereof is sought.
9. Private Sale. Pledgor recognizes that Pledgee may be unable to effect (or
to do so only after delay which would adversely affect the value that might
be realized from the Collateral) a public sale of all or part of the
Collateral by reason of certain prohibitions contained in the Securities
Act, and 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 such Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. Pledgor agrees
that any such private sale may be at prices and on terms less favorable to
the seller than if sold at public sales and that such private sales shall
be deemed to have been made in a commercially reasonable manner. Pledgor
agrees that Pledgee has no obligation to delay sale of any Collateral for
the period of time necessary to permit the Issuer to register the
Collateral for public sale under the Securities Act.
10. Proceeds of Sale. The proceeds of any collection, recovery, receipt,
appropriation, realization or sale of the Collateral shall be applied by
Pledgee as follows:
(a) First, to the payment of all costs, expenses and charges of Pledgee
and to the reimbursement of Pledgee for the prior payment of such
costs, expenses and charges incurred in connection with the care and
safekeeping of the Collateral (including, without limitation, the
expenses of any sale or any other disposition of any of the
Collateral), the expenses of any taking, attorneys' fees and expenses,
court costs, any other fees or expenses incurred or expenditures or
advances made by Pledgee in the protection, enforcement or exercise of
its rights, powers or remedies hereunder;
(b) Second, to the payment of the Indebtedness, in whole or in part, in
such order as Pledgee may elect, whether or not such Indebtedness is
then due;
(c) Third, to such persons, firms, corporations or other entities as
required by applicable law including, without limitation, Section
9-504(1)(c) of the UCC; and
(d) Fourth, to the extent of any surplus to Pledgor or as a court of
competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery, receipt,
appropriation, realization or sale are insufficient to satisfy the Indebtedness,
Pledgor shall be liable for the deficiency plus the costs and fees of any
attorneys employed by Pledgee to collect such deficiency.
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11. Waiver of Marshaling. Pledgor hereby waives any right to compel any
marshaling of any of the Collateral.
12. No Waiver. Any and all of Pledgee's rights with respect to the Liens
granted under this Agreement shall continue unimpaired, and Pledgor shall
be and remain obligated in accordance with the terms hereof,
notwithstanding (a) the bankruptcy, insolvency or reorganization of
Pledgor, (b) the release or substitution of any item of the Collateral at
any time, or of any rights or interests therein, or (c) any delay,
extension of time, renewal, compromise or other indulgence granted by
Pledgee in reference to any of the Indebtedness. Pledgor hereby waives all
notice of any such delay, extension, release, substitution, renewal,
compromise or other indulgence, and hereby consents to be bound hereby as
fully and effectively as if Pledgor had expressly agreed thereto in
advance. No delay or extension of time by Pledgee in exercising any power
of sale, option or other right or remedy hereunder, and no failure by
Pledgee to give notice or make demand, shall constitute a waiver thereof,
or limit, impair or prejudice Pledgee's right to take any action against
Pledgor or to exercise any other power of sale, option or any other right
or remedy.
13. Expenses. The Collateral shall secure, and Pledgor shall pay to Pledgee on
demand, from time to time, all costs and expenses, (including but not
limited to, attorneys' fees and costs, taxes, and all transfer, recording,
filing and other charges) of, or incidental to, the custody, care,
transfer, administration of the Collateral or any other collateral, or in
any way relating to the enforcement, protection or preservation of the
rights or remedies of Pledgee under this Agreement or with respect to any
of the Indebtedness.
14. Pledgee Appointed Attorney-In-Fact and Performance by Pledgee. Upon the
occurrence of an Event of Default, Pledgor hereby irrevocably constitutes
and appoints Pledgee as Pledgor's true and lawful attorney-in-fact, with
full power of substitution, to execute, acknowledge and deliver any
instruments and to do in Pledgor's name, place and stead, all such acts,
things and deeds for and on behalf of and in the name of Pledgor, which
Pledgor could or might do or which Pledgee may deem necessary, desirable or
convenient to accomplish the purposes of this Agreement, including, without
limitation, to execute such instruments of assignment or transfer or orders
and to register, convey or otherwise transfer title to the Collateral into
Pledgee's name. Pledgor hereby ratifies and confirms all that said
attorney-in-fact may so do and hereby declares this power of attorney to be
coupled with an interest and irrevocable. If Pledgor fails to perform any
agreement herein contained, Pledgee may itself perform or cause performance
thereof, and any costs and expenses of Pledgee incurred in connection
therewith shall be paid by Pledgor as provided in Section 10 hereof.
15. Waivers.
(a) EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY
OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY
OTHER AGREEMENT EXECUTED OR DELIVERED BY THEM IN CONNECTION HEREWITH,
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OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE AND EACH PARTY HERETO HEREBY AGREES AND CONSENTS
THAT ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF EACH PARTY TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
16. Recapture. Notwithstanding anything to the contrary in this Agreement, if
Pledgee receives any payment or payments on account of the Indebtedness,
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver, or any other party under the United States
Bankruptcy Code, as amended, or any other federal or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors' rights generally, common law or equitable
doctrine, then to the extent of any sum not finally retained by Pledgee,
Pledgor's obligations to Pledgee shall be reinstated and this Agreement
shall remain in full force and effect (or be reinstated) until payment
shall have been made to Pledgee, which payment shall be due on demand.
17. Captions. All captions in this Agreement are included herein for
convenience of reference only and shall not constitute part of this
Agreement for any other purpose.
18. Miscellaneous.
(a) This Agreement constitutes the entire and final agreement among the
parties with respect to the subject matter hereof and may not be
changed, terminated or otherwise varied except by a writing duly
executed by the parties hereto.
(b) No waiver of any term or condition of this Agreement, whether by
delay, omission or otherwise, shall be effective unless in writing and
signed by the party sought to be charged, and then such waiver shall
be effective only in the specific instance and for the purpose for
which given.
(c) In the event that any provision of this Agreement or the application
thereof to Pledgor or any circumstance in any jurisdiction governing
this Agreement shall, to any extent, be invalid or unenforceable under
any applicable statute, regulation, or rule of law, such provision
shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform to such statute,
regulation or rule of law, and the remainder of this Agreement and the
application of any such invalid or unenforceable provision to parties,
jurisdictions, or circumstances other than to whom or to which it is
held invalid or unenforceable shall not be affected thereby, nor shall
same affect the validity or enforceability of any other provision of
this Agreement.
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(d) This Agreement shall be binding upon Pledgor, and Pledgor's successors
and assigns, and shall inure to the benefit of Pledgee and its
successors and assigns.
(e) Any notice or other communication required or permitted pursuant to
this Agreement shall be given in accordance with the Purchase
Agreement.
(f) This Agreement shall be governed by and construed and enforced in all
respects in accordance with the laws of the State of New York applied
to contracts to be performed wholly within the State of New York.
(g) PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF EACH COURT
OF COMPETENT JURISDICTION LOCATED IN THE STATE OF NEW YORK FOR ALL
PURPOSES IN CONNECTION WITH THIS AGREEMENT. ANY JUDICIAL PROCEEDING BY
PLEDGOR AGAINST PLEDGEE INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER
OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS
AGREEMENT SHALL BE BROUGHT ONLY IN A STATE COURT LOCATED IN THE COUNTY
OF NEW YORK, STATE OF NEW YORK. PLEDGOR FURTHER CONSENTS THAT ANY
SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT
LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO EITHER OF THE
AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN CONNECTION
WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF THE
STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED
OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE
PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH
OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS.
PLEDGOR WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION
INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
(h) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which when taken together
shall constitute one and the same agreement. Any signature delivered
by a party by facsimile transmission shall be deemed an original
signature hereto.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first written above.
XXXXXX TRAFFIC SYSTEMS, INC.
By:/s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: President & CEO
LAURUS MASTER FUND, LTD.
By:/s/ Xxxxx Grin
--------------------------
Name: Xxxxx Grin
Title: Partner
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SCHEDULE A
Pledged Stock
------------------------------------- ------------------- ----------------------- ------------------ ------------------
Issuer Class of Stock Stock Certificate Par Value Number of Shares
------ -------------- ------------------ --------- ----------------
Number
------
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Crossing Guard, Inc. Common
------------------------------------- ------------------- ----------------------- ------------------ ------------------
------------------------------------- ------------------- ----------------------- ------------------ ------------------
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