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Exhibit 10.52
▇▇▇▇ NATIONAL CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (as amended, modified or otherwise supplemented
from time to time, the "AGREEMENT") is entered into as of January 18, 2000 (the
"EFFECTIVE DATE") between ▇▇▇▇ National Corporation, a Delaware corporation
("Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual residing in the State of Ohio (the
"Executive").
WHEREAS, the Company desires to retain the services of the Executive,
initially as President, Chief Operating Officer and a Member of the Board of
Directors;
WHEREAS, concurrently herewith, the Company and the Executive are entering
into a Restricted Stock Agreement (the "RESTRICTED STOCK AGREEMENT" attached
hereto as Exhibit A), pursuant to which the Company is granting the Executive an
award of restricted stock;
WHEREAS, concurrently herewith, the Company and the Executive are entering
into a Nonqualified Stock Option Agreement No.1 ("OPTION AGREEMENT NO.1"
attached hereto as Exhibit B), pursuant to which the Company is granting an
award for nonqualified stock options;
WHEREAS, concurrently herewith, the Company and the Executive are entering
into a Nonqualified Stock Option Agreement No.2 ("OPTION AGREEMENT NO.2"
attached hereto as Exhibit C), pursuant to which the Company is granting an
award for nonqualified stock options;
WHEREAS, the Executive will borrow money from the Company as evidenced by a
promissory note (the "SECURED PROMISSORY NOTE" attached hereto as Exhibit D)
pursuant to which the Company is making a recourse loan for a term of four (4)
years to the Executive which is secured by a related Stock Pledge Agreement (the
"STOCK PLEDGE AGREEMENT" attached hereto as Exhibit E); and
WHEREAS, the Executive desires to provide his services to the Company on
the terms and conditions herein provided.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS. In addition to terms defined elsewhere herein, the
following terms when used in this Agreement with initial capital letters shall
have the meanings set forth below:
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(a) "CAUSE" means that, prior to any termination of the Executive's
employment, the Executive shall have:
(i) committed any willful misconduct, fraud or criminal
activity (excluding traffic violations or other minor offenses) which
commission is materially inimical to the interests of the Company,
whether for his personal benefit or in connection with his duties for
the Company; or
(ii) intentionally or knowingly violated any anti-fraud
provision of the federal or state securities laws; or
(iii) wrongful]y disclosed secret processes or confidential
information of the Company or any Subsidiary; or
(iv) wrongfully engaged in any Competitive Activity.
Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for "Cause" hereunder unless and until there shall
have been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than a majority of the
Board then in office at a meeting of the Board called and held for such
purpose, after reasonable notice to the Executive and an opportunity
for the Executive, together with the Executive's counsel (if the
Executive chooses to have counsel present at such meeting), to be heard
before the Board, finding that, in the good faith opinion of the Board,
the Executive had committed an act constituting "Cause" as herein
defined and specifying the particulars thereof in detail. Nothing
herein will limit the right of the Executive or his beneficiaries to
contest the validity or propriety of any such determination.
(b) "CHANGE IN CONTROL" means the occurrence during the Term of any of
the following events:
(i) the Company merges into itself, or is merged or
consolidated with, another entity and as a result of such merger or
consolidation less than 51% of the voting power of the then-outstanding
voting securities of the surviving or resulting entity immediately
after such transaction are directly or indirectly beneficially owned in
the aggregate by the former stockholders of the Company immediately
prior to such transaction;
(ii) all or substantially all the assets accounted for on the
consolidated balance sheet of the Company are sold or transferred to
one or more entities or persons, and as a result of such sale or
transfer less than 51% of the voting power of the then-outstanding
voting securities of such entity or person immediately after such sale
or transfer is directly or indirectly beneficially held in the
aggregate by the former stockholders of the Company immediate]y prior
to such transaction or series of transactions, it being acknowledged
that a sale, transfer or other disposition of Things Remembered, Inc.
or its assets is not such a sale of all or substantially all of the
Company's assets;
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(iii) A person, within the meaning of Section 3(a)(9) or
13(d)(3) (as in effect on the date of this Agreement) of the Securities
Exchange Act of ▇▇▇▇, (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇") becomes the beneficial owner
(as defined in Rule 13d-3 of the Securities and Exchange Commission
pursuant to the Exchange Act) of (i) 15% or more but less than 35% of
the voting power of the then outstanding voting securities of the
Company without prior approval of the Company's Board, or (ii) 35% or
more of the voting power of the then-outstanding voting securities of
the Company; PROVIDED, HOWEVER, that the foregoing does not apply to
any such acquisition that is made by (w) any Subsidiary; (x) any
employee benefit plan of the Company or any Subsidiary; or (y) any
person or group of which employees of the Company or of any Subsidiary
control a greater than 25% interest unless the Board of Directors of
the Company determines that such person or group is making a "hostile
acquisition;" or (z) any person or group of which the Executive is an
affiliate; or
(iv) a majority of the members of the Board of Directors of
the Company are not Continuing Directors, where a "CONTINUING DIRECTOR"
is any member of the Board of Directors of the Company who (x) was a
member of the Board of Directors of the Company on the date of this
Agreement or (y) was nominated for election or elected to such Board of
Directors with the affirmative vote of a majority of the Continuing
Directors who were members of such Board at the time of such nomination
or election;
(c) "COMMON STOCK" means shares of common stock of the Company, par
value $.001 per share.
(d) "DISABILITY" or "DISABLED" means that (i) a physician selected by
the Company and reasonably satisfactory to the Executive certifies that the
Executive suffers from a physical or a mental disability; and (ii) as a result
of such disability the Board of Directors of the Company, in the exercise of its
reasonable judgment based on such physician's report, determines that the
Executive has been or is reasonably anticipated to be unable to perform his
duties under this Agreement for at least ninety (90) days out of a one hundred
twenty (120) successive day period. For the purpose of determining whether he is
disabled, the Executive agrees that, if requested by the Company, he will submit
to a physical examination by such physician, not more frequently than once a
year, the cost of such examination to be paid by the Company.
(e) "GOOD REASON" means:
(i) Following a Change in Control, either
(x) a majority of the members of the Board of
Directors of the Company immediately prior to the change in
control are not Continuing Directors; or
(y) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is terminated by the Company
other than for cause or voluntarily terminates his employment
other than for disability (or death) as Chairman of the Board
of the Company; or
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(ii) Whether or not a Change in Control has occurred, there
has been a substantial adverse change resulting in a reduction in the
nature or scope of the duties or titles of the Executive held
immediately prior to such change, or the Executive's principal office
is relocated to a location more than 50 miles from either Twinsburg,
Ohio or Shaker Heights, Ohio, it being acknowledged that a sale,
transfer or other disposition of Things Remembered, Inc. or its assets
is not such a substantial adverse change.
(f) "SUBSIDIARY" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations (or a group of corporations that themselves are Subsidiaries) other
than the last corporation in the unbroken chain owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain. For purposes of this Agreement,
the continuous employment of the Executive with the Company or a Subsidiary will
not be deemed interrupted, and the Executive will not be deemed to have ceased
to be an employee of the Company or any Subsidiary, by reason of the transfer of
his employment among the Company and its Subsidiaries
(g) "TERMINATION DATE" means the date the Executive's employment with
the Company ends for any reason.
2. EMPLOYMENT. The Company hereby employs the Executive, and Executive
hereby accepts employment with the Company, on the terms and conditions set
forth in this Agreement.
3. TERM. The term (the "Term") of the Executive's employment under this
Agreement will be for four (4) years commencing on the date of this Agreement
(the "Effective Date") and ending on the fourth anniversary of such date.
4. POSITIONS AND DUTIES. (a) The Executive will serve as President and
Chief Operating Officer, and will be nominated to serve as a member of the Board
of Directors of the Company. The Executive will serve in such offices or
positions to which he is elected or appointed by the Board of Directors or the
Chief Executive Officer of the Company consistent with his duties as President
and Chief Operating Officer. The Executive's service as an officer or director
of the Company and of any of the direct or indirect, wholly or partially owned
subsidiaries of the Company or of any of the Subsidiaries, will be encompassed
within any reference made in this Agreement to employment with the Company.
(b) The Executive will report to the Chief Executive Officer of the
Company.
(c) The Executive will, subject to the powers and authority reserved in
or by the Board of Directors of the Company, have the authority and
responsibility customarily attending each corporate office held by him pursuant
to Section 4(a). In addition, the Executive will hold such other offices in and
perform such other executive and administrative duties for the Company as the
Board of Directors or Chief Executive Officer of the Company determine are
appropriate. The Executive shall devote substantially all of his time, energy,
and attention to the
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affairs and operations of the Company; provided, however, that the Executive may
devote reasonable periods of time during normal business hours to (i) serving as
a director or trustee in any organization or business so long as such activity
would not constitute a violation of Section 11 of this Agreement, or (ii)
engaging in charitable and community activities, or (iii) engaging in unrelated
business investments so long as such positions or activities do not, in the
opinion of the Company's Board of Directors, substantially detract from his
performance of his duties for the Company. The Executive may continue to serve
as a director of Borders Group, Inc., so long as such activity would not
constitute a violation of Section 11 of this Agreement. The Executive shall
obtain approval from the Compensation Committee of the Board of Directors prior
to accepting a position as a director of any public company.
(d) The Company shall cause the election of the Executive to its Board
of Directors no later than January 31, 2000, and shall thereafter cause his
nomination for re-election as a Director throughout the Term. In the event the
Executive's employment with the Company terminates, the Executive shall promptly
resign from the Board of Directors.
5. COMPENSATION. During the Term:
(a) SALARY. The Company will pay the Executive an aggregate annual base
salary of $50,000.
(b) BONUS. The Executive will receive an annual bonus equal to 100% of
the annual bonus paid to the Chief Executive Officer from time to time in
accordance with the existing annual bonus plan for senior management of the
Company or any future bonus plans adopted for senior management generally of the
Company, excluding discretionary bonuses and options and stock grants to the
Chief Executive Officer. Notwithstanding the foregoing, the Board of Directors
of the Company may, in its sole discretion without any obligation hereunder to
the Executive, consider the payment of a cash bonus to the Executive for the
first fiscal year of the Company commencing after the Effective Date.
(c) INVESTMENT IN COMPANY STOCK. The Executive agrees that he will
purchase for his own account 262,500 shares of Common Stock within one hundred
eighty (180) days of the Effective Date (the "PURCHASED SHARES"). The Company
shall grant such reasonable extensions, in light of the circumstances, as may be
requested by the Executive. In no event will Executive be required to expend
more than Two Million Six Hundred Thirty-Five Thousand Dollars ($2,635,000) for
the Purchased Shares. The Executive also may purchase for his own account an
additional 262,500 shares of Common Stock (the "ADDITIONAL SHARES"). The
Executive agrees that in no event will he, as a result of his own volition,
purchase or otherwise acquire, directly or indirectly, for his own account, more
than 525,000 shares (included in this total are the Purchased Shares, the
Additional Shares, any shares acquired as a result of the Executive's exercise
of Option No.2, and any shares acquired under Company sponsored stock based
plans, excluding shares acquired as a result of exercise in whole or in part of
Option No.1 and other options or stock purchase rights that may be granted to
the Executive by the Company in the future). In addition to the 525,000 shares,
the Executive may acquire shares of Common Stock through the exercise of Option
No. 1 and options and stock purchase rights that may be granted to the Executive
by the Company in the future. The required and permitted number or kind of
shares shall be adjusted by the Board of Directors of the Company or the
Compensation
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Committee of such Board, as such Board or Committee may in good faith determine
is equitably required to prevent dilution or enlargement of the rights of the
Executive under this Section 5(c) and otherwise would result from (i) any stock
dividend, stock split, combination of shares, recapitalization or other change
in the capital structure of the Company, or (ii) any merger, consolidation,
spin-off, split-off, spin-out, split up, reorganization, partial or complete
liquidation or other distribution of assets, or issuance of rights to purchase
securities, or (iii) any distribution of the holders of the Common Stock of
rights or warrants to purchase equity interests of the Company, or (iv) any
other corporation transaction or event having an effect similar to any of the
foregoing.
(d) RESTRICTED STOCK AWARD. The Company will award to the Executive
525,000 shares of restricted Common Stock (the "RESTRICTED STOCK AWARD"),
subject to the terms and conditions of the Restricted Stock Agreement.
(e) NONQUALIFIED STOCK OPTIONS.
(i) The Company will grant the Executive under the Option
Agreement No. 1 an option to purchase 262,500 shares of Common Stock
("OPTION NO. 1"), subject to the terms and conditions of the Option
Agreement No.1.
(ii) The Company will grant the Executive under Option
Agreement No.2 an option to purchase 100,000 shares of Common Stock
("OPTION NO.2"), subject to the terms and conditions of Option
Agreement No. 2.
(f) SECURED RESTRICTED STOCK LOAN. If the Executive makes a timely
Section 83(b) election for federal income tax purposes, the Company will enter
into a secured recourse loan with the Executive evidenced by the Secured
Promissory Note for a term of four (4) years in an amount equal to the tax on
the Restricted Stock Award resulting from such election, subject to the terms
and conditions of Secured Promissory Note and the Stock Pledge Agreement.
(g) EXPENSES AND ALLOWANCES. The Executive is authorized in carrying
out his responsibilities and duties under this Agreement, to incur reasonable
business expenses for the benefit of the Company, including business expenses
for transportation, entertainment, travel, lodging and similar items. The
Executive will be provided with a current model company automobile, in
accordance with policies applicable to other senior executives generally, or an
equivalent cash allowance. All such expenses referred to above will either be
paid directly by the Company or the Company shall promptly reimburse the
Executive for expenditures upon the submission, from time to time, of itemized
accountings for such expenditures.
(h) VACATIONS. The Executive will be entitled to 5 weeks of vacation in
each calendar year or such greater amount of vacation as may be permitted under
the employment policies of the Company in accordance with its policies
applicable to other senior executive employees generally.
(i) EMPLOYEE BENEFIT PLANS. The Executive will be eligible to
participate in the employee pension and welfare benefit plans maintained by the
Company for
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senior executives, as the same may be modified, supplemented or replaced from
time to time; provided, however, the Executive shall not participate in the ▇▇▇▇
National Group, Inc. 1999 Supplemental Retirement Benefit Plan. The option
grants and restricted stock grant hereunder shall not be treated as compensation
for purposes of any Company sponsored employee pension benefit plans.
(j) OTHER AGREEMENTS. The rights and obligations of the parties under
the Restricted Stock Agreement, Option Agreement ▇▇. ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇,
the Secured Promissory Note and the Stock Pledge Agreement (collectively the
"OTHER AGREEMENTS") will be governed by the terms and conditions of such Other
Agreements and will not be enlarged or affected hereby, unless otherwise
provided herein.
6. DEATH OR DISABILITY DURING EMPLOYMENT. If the Executive dies or is
disabled during the term of this Agreement, Company shall pay to the Executive,
in case of his Disability, or to the beneficiary or beneficiaries designated by
the Executive in case of his death, or if the Executive is legally incompetent
or no such designation of death beneficiary has been made, then to the
Executive's personal representative, the compensation that would otherwise be
payable to the Executive pursuant to Section 5(a) and 5(b) of this Agreement for
the period of time up to the date of his death or Disability.
7. TERMINATION WITHOUT CAUSE OR FOR GOOD REASON PRIOR TO A CHANGE IN
CONTROL. (a) If the Executive's employment is terminated by the Company without
Cause or by the Executive for Good Reason prior to a Change in Control and on or
before the first anniversary of the Effective Date, the Company will forgive
seventy-five percent (75%) of the principal on the then unpaid balance of the
Secured Promissory Note and will make a cash payment of one million dollars
($1,000,000) to the Executive.
(b) If the Executive's employment is terminated by the Company without
Cause or by the Executive for Good Reason prior to a Change in Control and after
the first anniversary and on or before the second anniversary of the Effective
Date, the Company will forgive twenty-five percent (25%) of the principal on the
then unpaid balance of the Secured Promissory Note.
(c) Notwithstanding any other provisions of this Section 7, if for any
reason 100% of the Restricted Stock becomes nonforfeitable under the provisions
of the Restricted Stock Agreement, no portion of the principal on the Secured
Promissory Note will be forgiven.
(d) If, prior to the second anniversary of the Effective Date, either
(i) a majority of the members of the Board of Directors
of the Company are not Continuing Directors, or
(ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is terminated by the Company or
voluntarily resigns as Chairman of the Board of the
Company,
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and no Change in Control has occurred, then, if Executive voluntarily terminates
his employment with the Company other than for Good Reason, the Company will
forgive one hundred percent (100%) of the principal on the then unpaid balance
of the Secured Promissory Note.
(e) The foregoing are in addition to and do not modify benefits under
the Restricted Stock Agreement, Option Agreement No.1 and Option Agreement No.2.
8. TERMINATION WITHOUT CAUSE OR FOR GOOD REASON FOLLOWING A CHANGE IN
CONTROL. (a) If the Executive's employment is terminated by the Company without
Cause or by the Executive for Good Reason following a Change in Control and on
or before the first anniversary of the Effective Date, the Company will forgive
fifty percent (50%) of the principal on the then unpaid balance of the Secured
Promissory Note.
(b) If the Executive's employment is terminated by the Company without
Cause or by the Executive for Good Reason following a Change in Control and
after the first anniversary and on or before the second anniversary of the
Effective Date, the Company will forgive twenty-five percent (25%) of the
principal of the then unpaid balance of the Secured Promissory Note.
(c) Notwithstanding any other provisions of this Section 8, if for any
reason 100% of the Restricted Stock becomes nonforfeitable under the provisions
of the Restricted Stock Agreement, no portion of the principal on the Secured
Promissory Note will be forgiven.
(d) The foregoing are in addition to and do not modify benefits under
the Restricted Stock Agreement, Option Agreement No.1 and Option Agreement No.2.
9. TERMINATION FOR CAUSE. Upon termination of the Executive's employment
with the Company for Cause the Company shall pay to the Executive his base
salary up to his Termination Date. The Executive will forfeit any bonus payments
and any unvested Restricted Stock and unvested Options.
10. STOCK SALES AND REGISTRATION RIGHTS. (a) Executive shall retain full
legal and beneficial ownership of the Purchased Shares and the Restricted Shares
for the duration of the Term, except that:
(i) upon shares of restricted Common Stock becoming
nonforfeitable under the Restricted Stock Agreement, and subject to the
pledge of shares under the Stock Pledge Agreement, the Executive may
reduce his ownership of shares of Purchased Shares and nonforfeitable
shares under the Restricted Stock Agreement to an amount that, in the
aggregate, equals the then forfeitable shares under the Restricted
Stock Award; and
(ii) upon a Change in Control, all restrictions under this
provision lapse.
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(b) Upon the shares of restricted Common Stock becoming nonforfeitable
under the Restricted Stock Agreement, at the request of the Executive, the
Company shall register for resale under the Securities Act of 1933 the number of
shares of Purchased Shares and nonforfeitable shares under the Restricted Stock
Agreement that the Executive is then entitled to sell under Section 12(a);
provided, however, that:
(i) the Company is only obligated to register the shares using
a short-form registration statement on Form S-3 or any equivalent
successor form that the Company is then eligible to use and only one
such registration;
(ii) the Company's Board of Directors, in their sole
discretion, may impose reasonable black-out periods surrounding
material events;
(iii) the Company will have no obligation to register any
shares that the Executive is able to resell pursuant to the terms of
Rule 144 within three months of the date of the Executive's request for
registration;
(iv) the Executive, if he is then an employee of the Company,
shall cooperate with the Company in reasonable efforts to minimize the
impact on the Company of his trading; and
(v) the Company will use its best efforts to register the
shares that may be acquired through exercise of the options granted
under the Option Agreement No. 1 on Form S-8.
11. (a) CONFIDENTIALITY. During the Term and at any time thereafter,
the Executive shall not disclose, furnish, disseminate, make available, or,
except in the ordinary course of performing his duties on behalf of the Company,
use any trade secrets or confidential business and technical information of the
Subsidiaries, the Company, any direct or indirect, wholly or partially owned
subsidiaries of the Company or any of the Subsidiaries, or customers of any of
the Subsidiaries, without limitation as to when it was acquired by him or
whether it was compiled or obtained by or furnished to him while he was employed
by the Company. Such trade secrets and confidential business and technical
information are considered to include, without limitation, the vendor lists,
vendor terms and programs, merchandise costs, financial statistics, research
data, or any other statistics and plans contained in monthly and annual review
books, profit plans, capital plans, critical issues, annual plans, strategic
plans, or merchandising, marketing, real estate, or store operations plans. The
Executive specifically acknowledges that all such information, whether reduced
to writing or maintained in his mind or memory and whether compiled by the
Subsidiaries and/or the Company and/or him, derives independent economic value
from not being readily known to or ascertainable by proper means by others who
can obtain economic value from its disclosure or use, that reasonable efforts
have been put forth by the Subsidiaries or the Company to maintain the secrecy
of such information, that such information is and will remain the sole property
of the Subsidiaries or the Company and that any retention and use of such
information during or after the termination of his employment relationship with
the Subsidiaries or the Company (except in the course of performing his duties)
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under this Agreement will constitute a misappropriation of the trade secrets of
the Subsidiaries or the Company; PROVIDED, HOWEVER, that his restriction will
not apply to information which is in the public domain or otherwise made public
by other through no fault of the Executive, or as may be required by law.
(b) NON-COMPETITION. Except as may otherwise be approved in advance by
the Company's Board of Directors, during the Term and for a period of two (2)
years (the "NON-COMPETE PERIOD") after the termination of his employment either
for Cause, without Cause or by his voluntary resignation, the Executive shall
not compete, directly or indirectly with any of the Subsidiaries or the Company.
Without limiting the generality of the foregoing, the Executive shall not:
(i) enter into or engage in any business which competes with
business of any of the Subsidiaries or the Company;
(ii) solicit customers, business, patronage, or orders for, or
sell, any products in competition with, or for any business that
competes with, the business of any of the Subsidiaries or the Company;
or
(iii) divert, entice, or otherwise take away any customers,
business, patronage or orders of any of the Subsidiaries or the Company
or attempt to do so; or
(iv) promote or assist, financially or otherwise, any person,
firm, association, partnership, corporation, or any other entity
engaged in any business which he competes with the business of any of
the Subsidiaries or the Company.
For the purposes of this Section 11(b), the Executive understands, acknowledges
and agrees that he will be competing if he engages in any or all of the
activities set forth in this Section 11(b) directly as an individual for his own
account, or indirectly as a partner, joint venture, employee, agent, salesman,
consultant, officer and/or director of any firm, association, corporation, or
other entity, or as a stockholder of any corporation in which he owns, directly
or indirectly, individually or in the aggregate, more than one percent (1%) of
the outstanding stock.
(c) NON-SOLICITATION. The Executive shall not directly or indirectly
solicit or induce or attempt to solicit or induce any employees) or any sales
representative(s), agent(s) or consultant(s) of any of the Subsidiaries, the
Company or any direct or indirect, wholly or partially owned subsidiaries of the
Company or any of the Subsidiaries to terminate their employment, representation
or other association with such entity.
(d) COOPERATION AND ASSISTANCE. During the Term and thereafter, the
Executive will provide reasonable cooperation to the Company and the
Subsidiaries in litigation and regulatory matters that relate to events that
occurred during his periods of employment with the Company, the Subsidiaries and
its or their predecessors, and will provide reasonable assistance to the Company
and the Subsidiaries with matters relating to their corporate history from the
periods of his employment with them or their predecessors. The Executive will be
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entitled to reasonable additional compensation and reimbursement of reasonable
costs and expenses relating to any such cooperation or assistance that occurs
following the Term.
(e) REMEDIES. The Executive expressly acknowledges and agrees that the
remedy at law for any breach by him of his obligations under this Section 11
will be inadequate and that the damages flowing from such breach are not readily
susceptible to being measured in monetary terms. Accordingly, he acknowledges
and agrees that upon his violation of any obligation in this Section 11, the
Subsidiaries and/or Company will be entitled to immediate injunctive relief and
may obtain a temporary order restraining any threatened or further breach
without the necessity of proof of actual damage. Nothing in this Agreement will
be deemed to limit the remedies of the Subsidiaries or the Company at law or in
equity for any breach by the Executive of any of the obligations in this Section
11 that may be pursued or availed of by the Subsidiaries or the Company.
12. STANDSTILL AGREEMENT.
(a) During the Non-Compete Period, the Executive agrees that he will
vote all shares directly or indirectly beneficially owned by him for the
election of the slate of nominees for election to the Board of Directors of the
Company selected by a majority of the members of the Board of Directors, and for
the approval of all matters recommended by a majority of the members of the
Company's Board of Directors, if any recommendation is made.
(b) The Executive shall be present in person or by proxy at any meeting
of Stockholders so that all shares of Common Stock owned by the Executive may be
counted for the purposes of determining the presence of a quorum at such
meeting.
(c) The Executive further agrees that he will not join in any group or
contest to acquire the Company's shares during the Non-Compete Period.
(d) The Executive agrees that for a period commencing on the Effective
Date through the end of the Non-Compete Period, except within the terms of a
specific request from the Company, the Executive may not as a principal, or
agent of another person, propose or publicly announce or otherwise disclose an
intent to propose, or enter into or agree to enter into, singly or with any
other person or directly or indirectly, (i) any form of business combination,
acquisition, or other transaction relating to the Company or any majority-owned
affiliate thereof, (ii) any form of restructuring, recapitalization or similar
transaction with respect to the Company or any such affiliate, or (iii) any
demand, request or proposal to amend, waive or terminate any provision of this
Section 12(d) of this Agreement, nor except as aforesaid during such period will
the Executive, as a principal, or agent of another person, (1) make, or in any
way participate in, any solicitation of proxies with respect to any securities
entitled to vote generally in the election of directors of the Company (together
with direct or indirect options or other rights to acquire any such securities,
"Voting Securities"), (including by the execution of action by written consent),
become a participant in any election contest with respect to the Company, seek
to influence any person with respect to any Voting Securities or demand a copy
of the Company's list of its shareholders or other books and records, (2)
participate in or encourage the formation of any partnership, syndicate, or
other group which owns or seeks or offers to acquire beneficial ownership of any
Voting Securities or which seeks to affect control
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of the Company or for the purpose of circumventing any provision of this
Agreement, or (3) otherwise act, alone or in concert with others (including by
providing financing for another person), to seek or to offer to control or
influence, in any manner, the management, Board of Directors, or policies of the
Company, except in his capacity as an officer or director of the Company.
13. ENTIRE AGREEMENT: CONTINUING INDEMNIFICATION RIGHTS. (a) This Agreement
and the Other Agreements shall constitute the entire agreements between the
parties hereto with respect to the subject matters covered by this Agreement and
the Other Agreements, and shall supersede all prior verbal or written
agreements, covenants, communications, understandings, commitments,
representations or warranties, whether oral or written, by any party hereto or
any of its representatives pertaining to such subject matter. The Executive
shall not be entitled to any other payments or benefits, or damages, except as
expressly provided for in this Agreement and the Other Agreements.
(b) This Agreement shall not affect any indemnification or other rights
under any indemnification agreement between the Executive and the Company or the
Company's by-laws. The Company shall provide coverage for the Executive under
the directors' and officers' liability coverage maintained by Company, as in
effect from time to time, to the same extent as other current senior executive
officers and directors of the Company.
14. CHOICE OF LAW. This Agreement was entered into, and the negotiations
proceeding this Agreement were conducted in Cleveland, Ohio, and this Agreement
is intended to be performed within the State of Ohio, which is the principal
residence of the Executive. Accordingly, the validity and interpretation of this
Agreement will be determined in accordance with the internal laws of the State
of Ohio without giving effect to the choice of law provision thereof.
15. NOTICES. Any notices required or permitted to the given under this
Agreement is to be in writing and either given by personal delivery or deemed to
be delivered three (3) days after deposit, postage pre-paid, in the U.S.
certified or registered mail, return receipt requested, or one (1) business day
after deposit, prepaid, with a guaranteed overnight delivery service, addressed
as follows:
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13
If to the Company: ▇▇▇▇ National Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Executive: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
or at such other address as is specified in written notice given in the manner
required in this Agreement.
16. WAIVER OF BREACH. The waiver by either the Company or the Executive of
a breach of any provisions of this Agreement will not operate or be construed as
a waiver of any subsequent breach by either party.
17. BINDING EFFECT. This Agreement will be binding upon and shall inure to
the benefit of both the Executive and the Company and their respective
successors, heirs and legal representatives, but neither this Agreement nor any
rights under this Agreement may be assigned by the Executive or Company without
the written consent of the other.
18. SEVERABILITY. If any portion of this Agreement is invalid or illegal,
such invalidity or illegality will not render this Agreement invalid or illegal
as a whole but the invalid or illegal portions are to be stricken herefrom and
the remainder of this Agreement will be binding on the parties and their
successors and assigns as if such invalid or illegal provisions were never
included in this Agreement from the first instance.
19. AMENDMENTS. No amendment or variation of the terms of this Agreement
will be valid unless the same are in writing signed by all parties.
20. SECTION REFERENCES. Unless otherwise specified, all references in this
Agreement to section will be construed to refer to sections of this Agreement.
This Employment Agreement has been executed by the parties on the date and
year first above written.
▇▇▇▇ NATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------------
Title:
By: Chairman, CEO
----------------------------------------------
Title:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
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The following exhibits to this agreement have been separately filed with
the following reference numbers:
Exhibit Description Exhibit Reference
------- ----------- -----------------
A Restricted Stock Agreement 10.53
B Nonqualified Stock Option Agreement No. 1 10.54
C Nonqualified Stock Option Agreement No. 2 10.55
15
EXHIBIT D
---------
SECURED PROMISSORY NOTE
-----------------------
$____________ Date: _____________, 2000
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Borrower"), hereby
unconditionally promises to pay to the order of ▇▇▇▇ National Corporation, a
Delaware corporation (the "Company"), the principal sum of__________________
($______) in lawful money of the United States of America and in immediately
available funds, on January ___, 2004(1) unless earlier required by the terms of
this Secured Promissory Note and to pay simple interest (computed on the basis
of a 365 day year) on the unpaid principal amount hereof from and after the date
of this Secured Promissory Note until the entire principal amount hereof has
been paid in full, at the rate of____% per annum.(2) Interest is payable on each
anniversary of the date of this Secured Promissory Note with respect to the
period ending on such anniversary, and at maturity or upon full prepayment of
the principal hereof. Not later than five business days prior to the date on
which payment of interest is due, the Company shall give written notice to the
Borrower of the amount of the payment due on such date.
For purposes of this Promissory Note, a "business day" shall mean any day
other than a Saturday, Sunday or federal holiday and shall consist of the time
period from 12:01 a.m. through 12:00 Midnight Eastern time.
This Secured Promissory Note is delivered in consideration of a loan by the
Company to the Borrower in connection with the award by the Company of 525,000
shares of Class A Common Stock, par value $.001 per share (such shares being the
"Common Stock"), of the Company in accordance with the terms of a certain
Restricted Stock Agreement (the "Agreement") dated as of January 19, 2000
between the Company and the Borrower. Payment of the principal of and interest
on this Secured Promissory Note is secured pursuant to the terms of the Stock
Pledge Agreement dated this date between Borrower and the Company. This Secured
Promissory Note is subject to the following further terms and conditions:
1. PAYMENT AND PREPAYMENT.
---------------------
1 The 4th anniversary of the date of the Employment Agreement.
2 Applicable AFR as of date of Note.
16
(a) All payments of principal and interest on this Secured Promissory
Note shall be made to the Company or its order in lawful money of the
United States of America and in immediately available funds at the
offices of the Company at its then principal place of business (or at
such other place as the holder hereof shall notify Borrower in
writing). Borrower may, at his option, prepay this Secured Promissory
Note in whole or in part at any time or from time to time without
penalty or premium. Any prepayments of any portion of the principal
amount of this Secured Promissory Note shall be accompanied by payment
of all interest accrued but unpaid hereunder.
(b) Concurrently with any payment of any portion of this Secured
Promissory Note pursuant to paragraph 1(a) hereof or any prepayment of
any portion of the principal amount of this Secured Promissory Note
pursuant to paragraph 1(b) hereof, the Company shall make a notation
of such application or payment on this Secured Promissory Note. If
full payment of all unpaid principal of and accrued and unpaid
interest on this Secured Promissory Note is made, this Secured
Promissory Note shall be cancelled. Any partial payment or prepayment
shall be applied first to accrued and unpaid interest hereon and then
to the unpaid installments of principal hereof in the inverse order of
their maturity.
2. CONVERSION TO DEMAND NOTE. In the event that the Borrower shall cease to
be employed by the Company or any of its subsidiaries, then the unpaid principal
of and accrued and unpaid interest on this Secured Promissory Note shall, upon
demand by the Company given in writing to the Borrower, become immediately due
and payable, subject, however, to the terms of the Employment Agreement dated as
of January 19, 2000 between Borrower and the Company.
3. EVENTS OF DEFAULT. Upon the occurrence of any of the following events
("Events of Default"):
(a) Failure to pay any principal of this Promissory Note, including
any prepayments required hereunder, when due which shall remain
unremedied for thirty (30) days; or
(b) Failure to pay any interest due under this Secured Promissory Note
which shall remain unremedied for thirty (30) days following the date
when such installment was originally due hereunder, provided, however,
that the notice required to be given pursuant to the last sentence of
the first paragraph of this Secured Promissory Note has been given in
accordance with the terms thereof, or
(c) A petition is filed by or against the Borrower seeking the entry
of an order for relief under the bankruptcy laws of the United States,
as now or hereafter amended or supplemented, or there is an
appointment of a permanent receiver or a permanent trustee of all or
substantially all the
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property of the Borrower or an assignment is made by the Borrower for
the benefit of creditors;
then, and in any such event, the holder of this Secured Promissory Note may
declare, by notice of default given to Borrower, the entire principal amount of
this Secured Promissory Note to be forthwith due and payable, whereupon the
entire principal amount of this Secured Promissory Note outstanding shall become
due and payable without presentment, demand, protest and notices of any kind or
of dishonor, all of which are hereby expressly waived. Upon the occurrence of an
Event of Default, the accrued and unpaid interest hereunder shall thereafter
bear the same rate of interest as the principal hereunder, but in no event shall
such interest be charged which would violate any applicable usury law. If an
Event of Default shall occur hereunder, Borrower shall pay costs of collection,
including reasonable attorneys' fees, incurred by the holder in the enforcement
hereof.
No delay or failure by the holder of this Secured Promissory Note in the
exercise of any right or remedy shall preclude other or future exercise thereof
or the exercise of any other right or remedy.
4. ADDITIONAL RESTRICTIONS UPON OCCURRENCE OF AN EVENT OF DEFAULT. In case
an Event of Default shall occur and be continuing, the Borrower agrees that he
will not, without the prior written consent of the Company (which consent shall
not be unreasonably withheld), sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, any shares of Common Stock then
beneficially owned or thereafter acquired by the Borrower, nor will he create,
incur or permit to exist any pledge, lien, mortgage, hypothecation, security
interest, charge, option or any other encumbrances with respect to any shares of
Common Stock, or any interest therein, or any proceeds thereof.
5. MISCELLANEOUS:
(a) The provisions of this Secured Promissory Note shall be governed by
and construed in accordance with the laws of the State of Ohio, without
regard to the conflicts of laws rules thereof.
(b) All notices and other communication hereunder shall be in writing
and will be deemed to have been duly given if delivered in person or
mailed by certified mail or guaranteed overnight delivery service to
the Company at its principal executive offices and to the Borrower at
the last address reflected in the Company's records.
(c) The paragraph headings contained in this Promissory Note are for
reference purposes only and shall not affect in any way the meaning or
interpretations of the provisions thereof.
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IN WITNESS WHEREOF, this Secured Promissory Note has been duly executed
and delivered by Borrower on the date first written above.
-----------------------------------
Borrower: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Witness:
---------------------------------------
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EXHIBIT E
---------
STOCK PLEDGE AGREEMENT
THIS AMENDED AND RESTATED STOCK PLEDGE AGREEMENT (this "Agreement") dated
as of______________ 2000(1) is made by ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Pledgor") to ▇▇▇▇
National Corporation, a Delaware corporation (the "Company").
RECITALS
--------
A. Pledgor has entered into a Restricted Stock Agreement with the Company,
pursuant to which the Pledgor has been granted 525,000 restricted shares of
common stock, par value $.001 of the Company (such shares being the "Common
Stock" or the "Shares").
B. In connection with a Section 83(b) election for federal income tax
purposes, the Pledgor has borrowed from the Company the principal amount of
___________________ ($_______), and in consideration therefor, has delivered to
the Company the Secured Promissory Note of the Pledgor, dated January 19, 2000,
for such principal amount (the "Promissory Note").
C. The Pledgor wishes to affirm the grant of security and assurance to the
Company in order to secure the payment of the principal of and interest on the
Promissory Note and to that effect to pledge to the Company the Shares.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. PLEDGE.
(a) The Pledgor hereby pledges, assigns, hypothecates, transfers, and
delivers to the Company, all the Shares (the "Pledged Stock") and hereby
grants
----------------------------
1 Date will be the same as that of the Promissory Note.
20
to the Company, a first lien on, and security interest in, the Pledged
Stock and in all proceeds thereof, together with appropriate undated stock
powers duly executed in blank, as collateral security for the prompt and
complete payment when due (whether at the stated maturity, by acceleration
or otherwise) of the unpaid principal of and interest on the Promissory
Note. In the event any Shares are forfeited under the Restricted Stock
Agreement, such Shares shall be returned to the Company, and shall no
longer be subject to the pledge of this Stock Pledge Agreement.
(b) On or after January 18, 2002, the Company shall release, at
Pledgor's written request, that number of shares that exceed a number of
shares that, multiplied by the per share closing trading price for the
Common Stock on the New York Stock Exchange on the date of release, equals
two hundred percent (200%) of the balance (principal and interest) then due
on the Promissory Note.
2. ADMINISTRATION SECURITY. The following provisions shall govern the
administration of the Pledged Stock:
(a) So long as no Event of Default has occurred and is continuing (as
used herein, "Event of Default" shall mean the occurrence of any Event of
Default under the Promissory Note), the Pledgor shall be entitled to act
with respect to the Pledged Stock in any manner not inconsistent with the
provisions of this Agreement, the Promissory Note or any document or
instrument delivered or to be delivered pursuant to or in connection with
the Promissory Note.
(b) If, while this Agreement is in effect, the Pledgor shall become
entitled to receive or shall receive any stock certificate (including,
without limitation, any certificate representing a stock dividend or a
distribution in connection with any reclassification, increase or reduction
of capital, or issued in connection with any reorganization), option or
rights, in substitution of, in exchange for, or in respect of, any shares
of any Pledged Stock, the Pledgor agrees to accept the same as the
Company's agent and to hold the same in trust on behalf of and for the
benefit of the Company and to deliver the same forthwith to the Company in
the exact form received, with the endorsement of the Pledgor when necessary
and/or appropriate undated stock powers duly executed in blank, to be held
by the Company subject to the terms hereof, as additional collateral
security for the payment of the principal of and interest on the Promissory
Note. In case any distribution of capital shall be made on or in respect of
the Pledged Stock or any property shall be distributed upon or with respect
to the Pledged Stock pursuant to the recapitalization or reclassification
of the capital of the Company or pursuant to the reorganization of the
Company, the property so distributed shall be delivered to the Company to
be held by it as additional collateral security for the payment of the
principal of and interest on the Promissory Note. All sums of money and
property so paid or distributed in respect of the Pledged Stock which are
received by the Pledgor shall, until paid or delivered to the Company, be
held by the Pledgor in trust as additional collateral security for the
payment of the principal of and interest on the Promissory Note.
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21
All property at any time pledged with the Company hereunder (whether or not
described herein) and all income therefrom and proceeds thereof, are herein
collectively sometimes called the "Collateral."
(c) Notwithstanding paragraphs 1 and 2(b) hereof, unless an Event of
Default shall have occurred and be continuing, the Pledgor shall be
entitled to receive all cash or stock dividends but not stock splits paid
in respect of the Pledged Stock and, unless the Company shall have given
notice pursuant to paragraph 3 of its intention to exercise all voting and
stockholder rights with respect to the Pledged Stock and any stock
dividends thereof, to vote the Pledged Stock and any stock dividends
thereof and to give consents, waivers and ratifications in respect of the
Pledged Stock and any stock dividends thereof; PROVIDED, HOWEVER, that no
vote shall be cast or consent, waiver or ratification given or action taken
which would impair the Collateral or be inconsistent with or violate any
provision of this Agreement, the Promissory Note, or any document or
instrument delivered or to be delivered pursuant to or in connection with
the Promissory Note.
(d) Notwithstanding any payment or payments made by the Pledgor
hereunder, or the receipt of any amounts by the Company with respect to the
Collateral, or any set-off or application of funds of the Pledgor by the
Company, the Pledgor shall not be entitled to be subrogated to any of the
rights of the Company against any Collateral held by the Company for the
payment of the principal of and interest on the Promissory Note until the
principal of and interest on the Promissory Note are paid in full.
(e) The Pledgor shall immediately upon request by the Company and in
confirmation of the security interests hereby created, execute and deliver
to the Company such further instruments, deeds, transfers, assurances and
agreements, in form and substance satisfactory to the Company, as the
Company shall request, including any financing statement and amendments
thereto, or any other documents, as required under Ohio law and any other
applicable law to protect the security interests created hereunder.
(f) Subject to any sale by the Company or other disposition by the
Company of the Pledged Stock or any stock dividends thereon or other
property pursuant to this Agreement and subject to Section 6 below, the
Pledged Stock and any other Collateral shall be returned to the Pledgor
upon full payment of the principal of and interest on the Promissory Note.
3. RIGHTS OF THE COMPANY. The Company shall not be liable for failure to
collect or realize upon the principal of and interest on the Promissory Note or
any collateral security therefor, or any part thereof, or for any delay in so
doing nor shall the Company be under any obligation to take any action
whatsoever with regard thereto. Any or all shares of the Pledged Stock and any
stock dividends thereon held by the Company hereunder may, if an Event of
Default has occurred and is continuing, provided that the Company shall have
given prior written notice of its intention to do so to the Pledgor, be
registered in the name of the Company
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or its nominee, and the Company or its nominee may thereafter exercise all
voting and stockholder rights at any meeting of the Company and exercise any
and all rights of conversion, exchange, subscription or any other rights,
privileges or options pertaining to any shares of the Pledged Stock and any
stock dividends thereon 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 and any stock dividends thereon upon the merger, consolidation,
reorganization, recapitalization or other readjustment of the Company or upon
the exercise by the Company of any right, privilege or option pertaining to any
shares of the Pledged Stock and any stock dividends thereon, and in connection
therewith, to deposit and deliver any and all of the Pledged Stock and any stock
dividends thereon with any committee, depositary, 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
the Company shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure to do so or
delay in so doing.
4. REMEDIES IN CASE OF AN EVENT OF DEFAULT.
(a) In case an Event of Default shall have occurred and be continuing,
the Company shall have all of the remedies of a secured party under the
Ohio Uniform Commercial Code, and, without limiting the foregoing, shall
have the right, subject to any necessary regulatory approvals, to sell,
assign and deliver the whole or, from time to time, any part of the
Collateral or any interest in any part thereof, at any private sale or at
public auction, with or without demand of performance or other demand,
advertisement or notice of the time or place of sale or adjournment thereof
or otherwise, each of which demands, advertisements and/or notices are
hereby expressly waived (except the Company shall give 10 days' notice to
the Pledgor of the time and place of any sale pursuant to this Section 4),
for cash, on credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as the Company
shall, in its sole discretion, determine, the Pledgor hereby waiving and
releasing any and all right or equity of redemption whether before or after
sale hereunder. At any such sale the Company may bid for and purchase the
whole or any part of the Collateral so sold free from any such right or
equity of redemption. The Company shall apply the net proceeds of any such
sale, after deducting all reasonable costs and expenses of every kind
incurred therein or incidental to the care, safekeeping or otherwise of any
and all of the Collateral or in any way relating to its rights hereunder,
including reasonable attorney's fees and legal expenses, to the payment in
whole or in part of the principal of and interest on the Promissory Note,
in such order as the Company may elect, the Pledgor remaining liable for
any deficiency remaining unpaid after such application, and only after so
applying such net proceeds and after the payment by the Company of any
other amount required by any provision of law, including, without
limitation, Section 9-504(l)(c) of the Uniform Commercial Code, need the
Company account for the surplus, if any, to the Pledgor The Pledgor agrees
that the Company need not give more than ten days' notice of the time and
place of any public sale or of the time after which a private sale or other
intended disposition is to take place and that such notice is reasonable
notification of such matters. No notification need
4
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be given to the Pledgor if it has signed after default a statement
renouncing or modifying any right to notification of sale or other intended
disposition.
(b) The Pledgor recognizes that the Company may be unable to effect a
public sale of all or a part of the Pledged Stock or other securities held
as part of the Collateral by reason of certain prohibitions contained in
the Securities Act of 1933 (the "Act"), or in the rules and regulations
promulgated thereunder, but 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 the Pledged Stock or such other
securities for their own account, for investment and not with a view to the
distribution or resale thereof. The Pledgor agrees that private sales so
made may be at prices and on other terms less favorable to the seller than
if the Pledged Stock or such other securities were sold at public sale, and
that the Company has no obligation to delay the sale of the Pledged Stock
or such other securities for the period of time necessary to permit the
registration of the Pledged Stock or such other securities for public sale
under the Act. The Pledgor agrees that a private sale or sales made under
the foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner.
(c) If any consent, approval or authorization of any state, municipal
or other governmental department, agency or authority should be necessary
to effectuate any sale or disposition by the Company pursuant to this
Section 4 of the Pledged Stock or other securities held as part of the
Collateral, the Pledgor will execute all such applications and other
instruments as may be required in connection with securing any such
consent, approval or authorization, and will otherwise use his best effort
to secure the same.
(d) Neither failure nor delay on the part of the Company to exercise
any right, remedy, power or privilege provided for herein or by statute or
at law or in equity shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, remedy, power or privilege preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
5. PLEDGOR'S OBLIGATIONS NOT AFFECTED. The obligations of the Pledgor under
this Agreement shall remain in full force and effect with regard to, and shall
not be impaired or affected by: (a) any subordination, amendment or modification
of or addition or supplement to the Promissory Note, or any assignment or
transfer thereof: (b)any exercise or non-exercise by the Company of any right,
remedy, power or privilege under or in respect of this Agreement, the Promissory
Note, or any waiver of any such right, remedy, power or privilege; (c) any
waiver, consent, extension, indulgence or other action or inaction in respect of
this Agreement or the Promissory Note, or any assignment or transfer of any
thereof; or (d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, of the Company or its
successors, whether or not the Pledgor shall have notice or knowledge of any of
the foregoing.
6. TRANSFER BY PLEDGOR. Without the prior written consent of the Company,
the Pledgor agrees that he will not sell, assign, transfer, exchange, or
otherwise dispose of, or
5
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grant any option with respect to, the collateral, nor will he create, incur or
permit to exist any pledge, lien, mortgage, hypothecation, security interest,
charge, option or any other encumbrance with respect to any of the collateral,
or any interest therein, or any proceeds thereof, except for the lien and
security interest provided for by this Agreement.
7. REPRESENTATION, WARRANTIES AND COVENANTS OF THE PLEDGOR. The Pledgor
represents and warrants that (a) he is the legal, record and beneficial owner
of, and has good and marketable title to, the Pledged Stock, subject to no
pledge, lien, mortgage, hypothecation, security interest, charge, option or
other encumbrance whatsoever, except the lien and security interest created by
this Agreement and the terms of the Restricted Stock Agreement; (b)he has the
authority and legal right to pledge all the Pledged Stock pursuant to this
Agreement; and (c) the pledge, assignment and delivery of such Pledged Stock
pursuant to this Agreement creates a valid first lien on and a first perfected
security interest in such shares of the Pledged Stock, and the proceeds thereof,
subject to no prior pledge, lien, mortgage, hypothecation, security interest,
charge, option or encumbrance or to any agreement purporting to grant to any
third party a security interest in the property or assets of the Pledgor which
would include the Pledged Stock. The Pledgor covenants and agrees that he will
defend the Company's right, title and security interest in and to the Pledged
Stock and the proceeds thereof against the claims and demands of all persons
whomsoever; and covenants and agrees that he will have like title to and right
to pledge any other property at any time hereafter pledged to the Company as
Collateral hereunder and will likewise defend the Company's right thereto and
security interest therein.
8. ATTORNEY-IN-FACT. The Company or its successor is hereby appointed the
attorney-in-fact of the Pledgor for the purpose of carrying out the provisions
of this Agreement and taking any action and executing any instrument which the
Company reasonably may deem necessary or advisable to accomplish the purposes
hereof, including without limitation, the execution of the applications and
other instruments described in Section 4(c), which appointment as
attorney-in-fact is irrevocable as one coupled with an interest.
9 TERMINATION. Upon payment in full of the principal of and interest on the
Promissory Note and upon the due performance of and compliance with all the
provisions of the Promissory Note, this Agreement shall terminate and the
Pledgor shall be entitled to the return of such of the Collateral as has not
theretofore been sold, released from this Agreement pursuant to Section 6 or
otherwise applied pursuant to the provisions of this Agreement.
10. NOTICES. All notices or other communications required or permitted to
be given hereunder shall be in writing and will be deemed to have been duly
given if delivered in person or mailed by certified mail or guaranteed overnight
delivery service to the Company at its principal executive offices and to the
Pledgor at the last address reflected in the Company's records.
11. MISCELLANEOUS. The Company and its assigns shall have no obligation in
respect of the Collateral, except to hold and dispose of the same in accordance
with the terms of this Agreement. Neither this Agreement nor any provisions
hereof may be amended, modified, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against which enforcement
of the amendment, modification, waiver, discharge or termination is sought. The
provisions of this Agreement shall be binding upon the successors and assigns of
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25
the Pledgor. The captions in this Agreement are for convenience of reference
only and shall not define or limit the provisions hereof. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of Delaware, without regard to the rules of conflicts of laws thereof.
This Agreement may be executed in multiple counterparts, each of which shall be
an original, but all of which taken together shall constitute one instrument.
12. OBLIGATION TO PROVIDE SUBSTITUTE COLLATERAL. In the event that the
number of Shares that may become nonforfeitable is reduced pursuant to Section
4(b)(i) of the Restricted Stock Agreement, and the Company's Board of Directors,
in its sole discretion, determines that the pledge of Shares under this
Agreement is inadequate collateral for the obligations of the Pledgor under the
Promissory Note, the Company may request, and Pledgor shall promptly deliver, as
security, such additional shares of Common Stock or other collateral as the
Board of Directors may reasonably determine is sufficient to secure the
Pledgor's obligations under the Promissory Note.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of January ___, 2000.
▇▇▇▇ NATIONAL CORPORATION
By:_____________________________
Its:
PLEDGOR
________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Number of Shares pledged: 525,000
Principal amount of Promissory Note: $___________
7
