EXHIBIT 10.21
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT is made as of February 3, 1998, between Xxxxxx
Xxxxxxx ("Pledgor") and OneWave, Inc., a Massachusetts corporation ("Pledgee").
Section 1. PLEDGE OF STOCK. Pledgor hereby pledges, assigns, grants a
first priority security interest in, and delivers to Pledgee the Stock (as
hereinafter defined), to be held by Pledgee subject to the terms and
conditions hereinafter set forth, the certificates for which, accompanied by
stock powers or other appropriate instruments of assignment thereof duly
executed by Pledgor, have been delivered to Pledgee.
Section 2. DEFINITIONS.
(a) The term "STOCK" as used herein includes the shares of capital
stock described in EXHIBIT A attached hereto and any additional shares of
stock of any corporation or company at the time pledged with Pledgee
hereunder. The term "Stock" shall further include all cash or non-cash
income from the shares of Stock pledged hereunder, all increases therein and
proceeds thereof, other than income, increases or proceeds received by
Pledgor pursuant to Section 6 hereof, and any dividend paid in respect of the
Stock in the form of additional shares of stock, options to purchase stock,
warrants or convertible securities (a "Non-Cash Dividend").
(b) The term "OBLIGATIONS" as used herein means all indebtedness,
obligations and liabilities of Pledgor to Pledgee, whether now existing or
hereafter arising, under that certain Promissory Note in the face amount of
ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000) made by Pledgee in favor of
Pledgor on February 3, 1998 (the "Note") and all future advances or loans
given by Pledgee to Pledgor under any other arrangements.
(c) The term "Event of Default" as used herein shall mean the
occurrence of an event of default under the Note.
Section 3. SECURITY FOR OBLIGATIONS. This Agreement and the pledge of
the Stock hereunder is made in favor of Pledgee as security for the
Obligations.
Section 4. LIQUIDATION, RECAPITALIZATION, ETC. Any sums paid upon or
with respect to any of the Stock upon the liquidation or dissolution of the
issuer thereof shall be paid over to Pledgee to be held by it as security for
the Obligations; and in case any distribution of capital shall be made on or
in respect of any of the Stock or any property shall be distributed upon or
with respect to any of the Stock pursuant to the recapitalization or
reclassification of the capital
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of the issuer thereof or pursuant to the reorganization thereof, the capital
or property so distributed shall be delivered to Pledgee to be held by it as
security for the Obligations. All sums of money and property paid or
distributed in respect of the Stock upon such a liquidation, dissolution,
recapitalization or reclassification which are received by Pledgor shall,
until paid or delivered to Pledgee, be held in trust for Pledgee as security
for the Obligations.
Section 5. WARRANTY OF TITLE. Pledgor warrants that: (a) Pledgor is
the lawful, record and beneficial owner of the Stock; (b) the Stock is not
subject to any pledge, lien, security interest, charge, option, restrictions
or other encumbrances except the security interest created by this Agreement;
(c) Pledgor has the power, authority and legal right to pledge all of such
Stock pursuant to this Agreement; (d) no person has any present or future
right (conditional, preemptive or otherwise) to acquire, vote, register or
restrict the transfer of the Stock; and (d) the execution and delivery of
this Agreement and the pledging of the Stock hereunder do not contravene any
law or any rule or regulation thereunder or any judgment, decree or order of
any tribunal, or conflict with, or result in a breach of or default under, or
give a rise of acceleration under, any agreement or instrument to which
Pledgor is a party or any of Pledgor's property is bound.
Section 6. DIVIDENDS, VOTING, ETC., PRIOR TO MATURITY. So long as no
Event of Default has occurred and is continuing, Pledgor shall be entitled to
receive all cash dividends paid in respect of the Stock, to vote the Stock
and to give consents, waivers and ratifications in respect of the Stock,
PROVIDED that no vote shall be cast, or consent, waiver or ratification given
or action taken which would be inconsistent with or violate any provisions of
this Agreement, and PROVIDED FURTHER, that upon an Event of Default, Pledgee
may cause the Stock to be transferred into its own name as collateral
security. All such rights of Pledgor to receive cash dividends shall cease in
case an Event of Default shall have occurred and be continuing. All such
rights of Pledgor to vote and give consents, waivers and ratifications with
respect to the Stock shall, at Pledgee's option, as evidenced by Pledgee
notifying Pledgor of such election, cease in case an Event of Default shall
have occurred and be continuing. In the event that a Non-Cash Dividend shall
be paid in respect of the Stock, Pledgor shall promptly deliver to Pledgee
the certificates issued in connection with such Non-Cash Dividend, if any,
together with stock powers or other appropriate instruments of assignment
thereof duly executed by Pledgor.
Section 7. REMEDIES. If an Event of Default shall have occurred and be
continuing, Pledgee shall thereafter have the following rights and remedies
(to the extent permitted by applicable law) in addition to the rights and
remedies of a secured party under the Uniform Commercial Code of
Massachusetts, all such rights and remedies being cumulative, not exclusive,
and enforceable alternatively, successively or concurrently, at such time or
times as Pledgee deems expedient:
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(a) if Pledgee so elects and gives notice of such election to
Pledgor, Pledgee may vote any or all shares of the Stock and give all consents,
waivers and ratifications in respect of the Stock and otherwise act with respect
thereto as though it were the outright owner thereof (Pledgor hereby irrevocably
constituting and appointing Pledgee the proxy and attorney-in-fact of Pledgor,
with full power of substitution, to do so);
(b) Pledgee may demand, xxx for, collect or make any compromise or
settlement Pledgee deems suitable in respect of the Stock;
(c) Pledgee may sell, resell, assign and deliver, or otherwise
dispose of any or all of the Stock, for cash and/or credit and upon such terms
at such place or places and at such time or times and to such persons, firms,
companies or corporations as Pledgee thinks expedient, all without demand for
performance by Pledgor or any notice or advertisement whatsoever except such as
may be required by law; and
(d) Pledgee may cause all or any part of the Stock held by it to be
transferred into its name or the name of its nominee or nominees.
Pledgee may enforce its rights hereunder without any other notice and
without compliance with any other condition precedent now or hereunder
imposed by statute, rule of law or otherwise (all of which are hereby
expressly waived by Pledgor, to the fullest extent permitted by law).
Pledgor acknowledges that ten (10) calendar days' notice of any public sale
or of that date on or after which a private sale may be effected is
reasonable notice. Pledgee may buy any part or all of the Stock at any
public sale, and if any part or all of the Stock is of a type customarily
sold in a recognized market or is of the type which is the subject of
widely-distributed standard price quotations, Pledgee may buy at a private
sale and may make payments thereof by any means. Pledgee may apply the cash
proceeds actually received from any sale or other disposition of the Stock to
the reasonable expenses of retaking, holding, preparing for sale, selling and
the like, to reasonable attorneys' fees, and all legal expenses, travel and
other expenses which may be incurred by Pledgee in attempting to collect the
Obligations or to enforce this Agreement or in the prosecution or defense of
any action or proceeding related to the subject matter of this Agreement; and
then to the Obligations, and any surplus shall be paid to Pledgor.
Pledgor recognizes that Pledgee may be unable to effect a public sale of
the Stock by reason of certain prohibitions contained in the Securities Act
of 1933, as amended, but may be compelled to resort to one or more private
sales thereof to a restricted group of purchasers or to a public sale which
is restricted to residents of the Commonwealth of Massachusetts. Pledgor
agrees that any such private sales or such restricted public sales may be at
prices and other terms less favorable to the seller than if sold at public
sales and that such private sales or such restricted public sales shall not
by reason thereof be deemed not to have been made in a
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commercially reasonable manner. Pledgee shall be under no obligation to
delay a sale of any of the Stock for the period of time necessary to permit
the issuer of such securities to register such securities for public sale
under the Securities Act of 1933, as amended, even if the issuer would agree
to do so.
In all events, Pledgee shall give Pledgor not less than ten (10) calendar
days' written notice of any proposed disposition of the Stock.
Section 8. MARSHALLING. Pledgee shall not be required to marshal any
present or future security for (including but not limited to this Agreement
and the Stock pledged hereunder), or guarantees of, the Obligations, or to
resort to such security or guarantees in any particular order; and all of its
rights hereunder and in respect of such security and guarantees shall be
cumulative and in addition to all other rights, however existing or arising.
To the extent that he lawfully may, Pledgor hereby agrees that he will not
invoke any law relating to the marshalling of collateral which might cause
delay in or impede the enforcement of Pledgee's rights under this Agreement
or under any other instrument evidencing any of the Obligations or under
which any of the Obligations is outstanding or by which any of the
Obligations is secured or guaranteed, and to the extent that it lawfully may
Pledgor hereby irrevocably waives the benefits of all such laws.
Section 9. PLEDGOR'S OBLIGATIONS NOT AFFECTED. The obligations of Pledgor
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by: (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of Pledgee; (b) any exercise
or nonexercise, or any waiver, by Pledgee of any right, remedy, power or
privilege under or in respect of the Obligations or any of any security therefor
(including this Agreement); (c) any amendment to or modification of any
instrument (other than this Agreement) securing any of the Obligations; or (d)
the taking of additional security for, or any guaranty of, any of the
Obligations or the release or discharge or termination of any security or
guaranty for any of the Obligations; whether or not Pledgor shall have notice or
knowledge of any of the foregoing.
Section 10. TRANSFER, ETC., BY PLEDGOR. Without the prior written
consent of Pledgee, Pledgor will not sell, assign, transfer or otherwise
dispose of, grant any option with respect to, or pledge or grant any security
interest in or otherwise encumber any of the Stock or any interest therein,
except for the pledge thereof provided for in this Agreement.
Section 11. FURTHER ASSURANCES. Pledgor will, from time to time, execute
and deliver to Pledgee all such other and further instruments and documents
and take or cause to be taken all such other and further action as Pledgee
may reasonably request in order to effect and confirm more securely in
Pledgee all rights contemplated in this Agreement.
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Section 12. PLEDGEE'S EXONERATION. Under no circumstances shall Pledgee
be deemed to assume any responsibility for or obligation or duty with respect
to the Stock or any matter or proceedings arising out of or relating thereto,
other than to exercise reasonable care in the physical custody of the Stock.
Pledgee shall not be required to take any action of any kind to collect,
preserve or protect its or Pledgor's rights in the Stock or against other
parties thereto, other than to exercise reasonable care in the physical
custody of the Stock.
Section 13. NO WAIVER, ETC. No act, failure or delay by Pledgee shall
constitute a waiver of its rights and remedies hereunder or otherwise. No
single or partial waiver by Pledgee of any default or right or remedy which
it may have shall operate as a waiver of any other default, right or remedy
or of the same default, right or remedy on a future occasion. Pledgor hereby
waives presentment, notice of dishonor and protest of all instruments,
included in or evidencing any of the Obligations, and any and all other
notices and demands whatsoever (except as expressly provided herein).
Section 14. NOTICE, ETC. All communications herein provided shall be in
writing and shall be sufficient if sent by United States mail, registered or
certified, postage prepaid, delivered by messenger, overnight delivery
service or telecopier, addressed as follows:
If to Pledgor, at the address set forth below Pledgor's signature.
If to Pledgee: OneWave, Inc.
Xxx Xxxxxxx Xxxxxxxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Chief Financial Officer
or to such other address as the party to receive any such communication or
notice may have designated by written notice to the other party.
Any notice given pursuant to this Section shall be deemed to have been
given and received when actually delivered, upon receipt of electronic
confirmation if by telecopier, one business day after dispatch by a recognized
overnight delivery service, or three business days after mailing by certified or
registered mail with proper postage affixed and return receipt requested.
Section 15. TERMINATION. This Agreement shall terminate at such time as
all of the Obligations shall have been paid in full, and upon such
termination, Pledgor shall be entitled to the return of such Stock in the
possession or control of Pledgee as has not theretofore been disposed of
pursuant to the provisions hereof and as to which Pledgee has not received
notice
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of a junior pledge, together with any moneys and other property of Pledgor at
the time held by Pledgee hereunder.
Section 16. MISCELLANEOUS PROVISIONS.
(a) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a written instrument expressly
referring to this Agreement and to the provisions so modified or limited, and
executed by the party to be charged.
(b) This Agreement is personal and may not be assigned by Pledgor.
This Agreement and all obligations of Pledgor hereunder shall be binding upon
his heirs, executors and administrators. Pledgee shall have the right to assign
this Agreement, without any restriction, and Pledgee's rights and remedies under
this Agreement shall inure to the benefit of its assigns and successors by way
of merger, consolidation or sale of substantially all of the assets or stock of
Pledgee.
(c) This Agreement and the obligations of Pledgor hereunder shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
(d) The descriptive section headings have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
If any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall be in no way
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein.
(e) This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall be deemed to be one
and the same instrument.
(f) To the extent permitted by applicable law, Pledgor hereby waives
trial by jury in any proceeding brought for the interpretation or enforcement of
this Agreement or for a determination of the rights of the parties hereunder.
Section 17. CONSENT TO JURISDICTION. PLEDGOR AND PLEDGEE IRREVOCABLY
CONSENT AND SUBMIT TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS, AND THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS IN CONNECTION WITH ANY ACTION, PROCEEDING OR CLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT AND/OR ANY INSTRUMENT OR DOCUMENT REQUIRED
HEREBY OR INCIDENT OR COLLATERAL HERETO.
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IN WITNESS WHEREOF, Pledgor and Pledgee have caused this Agreement to be
duly executed as of the date first above written.
"PLEDGOR"
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Address: 8 Country Squire Dr.
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Xxxxxxx, XX 00000
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"PLEDGEE"
ONEWAVE, INC.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
SPOUSE'S CONSENT:
I, as the spouse of Xxxxxx Xxxxxxx,
acknowledge that I have read the
foregoing Stock Pledge Agreement,
that I understand the contents thereof,
and that I hereby waive any and all
rights to the Stock described therein,
to the extent such rights conflict with
rights of Pledgee thereunder.
_________________________
Name:
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EXHIBIT A
Issuer Class of Stock Certificate Number Number of Shares
------ -------------- ------------------ ----------------
OneWave, Inc. Common Stock ________ 100,000
DOCSC\592817.1
