STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT, dated September 20, 1995 between X. Xxxxx Stiff
(the "Pledgor") and Uniquip Corporation, a Delaware corporation (the "Pledgee").
WHEREAS, the Pledgee has made a loan to the Pledgor in order to permit
the Pledgor to acquire certain shares of common stock of the Pledgee described
in Schedule 1 hereto, which loan is evidenced by a Promissory Note of the
Pledgor of even date herewith;
WHEREAS, the Pledgee requires the Pledgor, as a condition to making the
aforementioned loan, to enter into this Stock Pledge Agreement.
NOW, THEREFORE, in consideration of the making of such loan, the Pledgor
hereby agrees with the Pledgee as follows:
SECTION 1. PLEDGE. To secure the due and punctual payment by the
Pledgor of the Liabilities (as hereinafter defined), the Pledgor hereby
pledges, hypothecates, assigns, transfers, sets over and delivers unto the
Pledgee and hereby grants to the Pledgee a security interest in the following:
(i) the shares of stock specified in Schedule 1 hereto and all other
shares of stock of the Pledgee hereafter acquired by the Pledgor
(herein collectively called the "Pledged Shares") and the
certificates representing the Pledged Shares, and all cash,
securities, interest, dividends, options, rights and other
property at any time and from time to time received, receivable
or otherwise distributed in respect of, or in exchange for, any
or all of the Pledged Shares;
(ii) all other property hereafter delivered to the Pledgee in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
property and all cash, securities, interest, dividends, options,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof; and
(iii) all proceeds of any of the foregoing (the Pledged Shares and all
such additional shares, certificates, instruments, cash,
securities, interest, dividends, options, rights and other
property being herein collectively called the "Collateral").
The term "Liabilities," as used herein shall mean all obligations and
liabilities of the Pledgor to the Pledgee under the Promissory Note of the
Pledgor of even date herewith.
SECTION 2. CERTAIN RIGHTS REGARDING COLLATERAL AND LIABILITIES.
(a) The Pledgee shall not be liable for its failure to collect or
realize upon the Liabilities or any collateral, security or guaranty therefor,
or any part thereof, or for any delay in so doing, nor shall the Pledgee be
under any obligation to take any action whatsoever with respect thereto.
(b) The Pledgee may from time to time, after any portion of the
Liabilities shall become due and payable, without notice to the Pledgor,
(i) transfer all or any part of the Collateral into the name of the Pledgee or
its nominee, with or without disclosing that such Collateral is subject to the
lien and security interest granted hereby, (ii) enforce collection of any of the
Collateral, and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer than the
original period) any obligations of any nature of any party with respect
thereto, (iii) resort to the Collateral for payment of any portion of the
Liabilities whether or not it shall have resorted to any other property securing
payment of any portion of the Liabilities or shall have proceeded against any
party primarily or secondarily liable on any portion of the Liabilities and
(iv) take control of any proceeds of the Collateral.
SECTION 3. DIVIDENDS, ETC.
(a) So long as no portion of the Liabilities shall be due and
payable, the Pledgor shall be entitled to vote the Pledged Shares, to give
consents, waivers and ratifications in respect of the Pledged Shares and to
receive and retain cash dividends made on or in respect of the Pledged Shares;
provided, however, that any and all cash, stock and/or liquidating dividends,
distributions in property, returns of capital or other distributions made on or
in respect of the Pledged Shares resulting from a subdivision, combination or
reclassification of the outstanding capital stock of the issuer thereof or
received in exchange for the Pledged Shares or any part thereof or as a result
of any merger, consolidation, acquisition or other exchange of assets to which
the issuer thereof may be a party or otherwise, and any and all cash and other
property received in exchange for any Collateral shall be and become part of the
Collateral pledged hereunder and, if received by the Pledgor, shall be held by
the Pledgor in trust on behalf of and for the benefit of the Pledgee and shall
forthwith be delivered to the Pledgee or its designated nominee (accompanied, if
appropriate, by proper instruments of assignment and/or stock powers executed by
the Pledgor in accordance with the Pledgee's instructions) to be held subject to
the terms of this Agreement; and provided further that no vote shall be cast or
consent, waiver or ratification given or action taken which would impair the
Collateral or the security interests granted hereby.
(b) Upon the nonpayment, when due, of any portion of the
Liabilities, all rights of the Pledgor pursuant to Section 3(a) hereof shall, at
the election of the Pledgee, cease, and the Pledgee shall have the sole and
exclusive right and authority to vote, to give consents, waivers and
ratifications, and receive all dividends and distributions pursuant to Section
3(a) hereof.
SECTION 4. REMEDIES. In the event that any portion of the Liabilities
is not paid when due, the Pledgee, without demand of performance or other
demand, advertisement or notice of any kind (except the notice specified below
of time and place of public or private sale) to or upon the Pledgor or any other
person (all and each of which demands, advertisements, and/or notices being
hereby expressly waived by the Pledgor), may forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give options to purchase, contract to sell or otherwise
dispose of and deliver the Collateral, or any part thereof, in one or more
parcels at public or private sales, at any exchange or broker's board or at any
of the Pledgee's offices or elsewhere, upon such terms and conditions as it may
deem advisable and at such prices as it may deem best, for cash or on credit or
for future delivery, without assumption of any credit risk, with the right upon
any such sale, public or private, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in the Pledgor,
which right or equity is hereby expressly waived and released by the Pledgor.
The Pledgee shall apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization or 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 the rights of the Pledgee hereunder (including reasonable attorney's fees and
legal expenses), to the payment in whole or in part of the Liabilities in such
order as it may elect, and only after such application of such net proceeds and
after the payment in full of the Liabilities by the Pledgee and any other amount
required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Uniform Commercial Code, need the Pledgee account for the
surplus, if any, to the Pledgor. The Pledgor agrees that the Pledgee 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
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notification need be given the Pledgor if, after any portion of the Liabilities
is not paid when due, it shall have signed a statement renouncing or modifying
any right to notification of any sale or other intended disposition. The
Pledgee shall not be obligated to make any sale pursuant to any such notice.
The Pledgee may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any time or
place to which the same may be so adjourned. In case of any sale of all or any
part of the Collateral on credit or for future delivery, the Collateral so sold
may be retained by the Pledgee until the selling price is paid by the purchaser
thereof, but the Pledgee shall incur no liability in the case of the failure of
such purchaser to take up and pay for the Collateral so sold and in case of any
such failure such Collateral may again be sold on like notice. The Pledgee,
however, instead of exercising the power of sale herein conferred upon it, may
proceed by a suit at law or in equity to foreclose the pledge and security
interest under this Agreement and sell the Collateral, or any part thereof,
under a judgment or decree of a court of competent jurisdiction. In addition to
the rights and remedies granted to it in this Agreement and in any other
instrument or agreement securing, evidencing or relating to any portion of the
Liabilities, the Pledgee shall have all the rights and remedies of a secured
party under the Uniform Commercial Code. The Pledgor further agrees to waive
and agrees not to assert any rights or privileges which it may acquire under
Section 9-112 of the Uniform Commercial Code.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Pledgor
represents and warrants that (a) the Pledgor is the legal record and beneficial
owner of, and has good and marketable title to, the Pledged Shares, subject to
no perfected lien whatsoever except the lien created by this Agreement; (b) no
consent of any other person (including, without limitation, his creditors) and
no consent, license, permit, approval or authorization of, exemption by, notice
or report to, or registration, filing or declaration with, any governmental
authority, domestic or foreign, is required to be obtained by him in connection
with the execution, delivery or performance of this Agreement; (c) the
execution, delivery and performance of this Agreement will not violate any
provision of any applicable law or regulation, or of any order, judgment, writ,
award or decree of any court, arbitrator or governmental authority, domestic or
foreign, or of any mortgage, indenture, lease, contract or other agreement,
instrument or undertaking to which the Pledgor is a party or which purports to
be binding upon the Pledgor or upon any of the Pledgor's assets, and will not
result in the creation or imposition of any lien on any of the Pledgor's assets
except as contemplated by this Agreement; and (d) the Pledgor has delivered to
the Pledgee the Pledged Shares, with the certificates therefor duly endorsed in
blank or accompanied by stock powers duly endorsed in blank, and the pledge,
assignment and delivery of the Pledged Shares pursuant to this Agreement creates
a valid lien on and a perfected security interest in the Pledged Shares, and the
proceeds thereof, subject to no prior lien, or to any agreement purporting to
grant to any third party a security interest in the Pledgor's property or assets
which would include the Pledged Shares. The Pledgor covenants and agrees that
the Pledgor will not sell, assign, transfer, exchange or otherwise dispose of,
or grant any option with respect to, the Collateral, nor will the Pledgor
create, incur or permit to exist any perfected lien with respect to any part of
the Collateral, or any interest therein, or any proceeds thereof, except for the
lien created by this Agreement, without the prior written consent of the
Pledgee; and the Pledgor further covenants and agrees that the Pledgor will
defend the Pledgee's right, title and security interest in and to the Collateral
and the proceeds thereof against the claims and demands of all persons; and the
Pledgor further covenants and agrees to deliver to the Pledgee from time to time
on request such stock powers and similar documents, satisfactory in form and
substance to the Pledgee, with respect to the Collateral as the Pledgee may
request.
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SECTION 6. SALE OF THE PLEDGED SHARES.
(a) The Pledgor recognizes that the Pledgee may be unable to effect
a public sale of any or all of the Pledged Shares by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, but may be compelled to
resort to one or more private sales thereof to a restricted group of purchasers
who will be obliged to agree, among other things, to acquire such securities for
their own account for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges and agrees that any such private sale
may result in prices and other terms less favorable to the seller than if such
sale were a public sale and, notwithstanding such circumstances, agrees that any
such private sale shall not be deemed to have been made in commercially
unreasonable manner by virtue of its private nature. The Pledgee shall be under
no obligation to delay a sale of any of the Pledged Shares for the period of
time necessary to permit the issuer thereof to register such securities for
public sale under the Securities Act or under applicable state securities laws
even if the issuer would agree to do so.
(b) The Pledgor further agrees to do or cause to be done all such
other acts and things as may be necessary to make such sale or sales of any
portion or all of the Pledged Shares valid and binding and in compliance with
any and all applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales, all at the
Pledgor's expense.
SECTION 7. FURTHER ASSURANCE. The Pledgor agrees that, at any time and
from time to time upon the written request of the Pledgee, it will execute and
deliver such further documents and do such further acts and things as the
Pledgee may reasonably request in order to effect the purposes of the Agreement.
SECTION 8. AUTHORITY OF PLEDGEE.
(a) The Pledgee 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 instruments which the Pledgee may deem
necessary or advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest, provided that no
action may be taken by the Pledgee pursuant to such appointment so long as the
Liabilities are not yet due and payable. Without limiting the generality of the
foregoing, the Pledgee shall have the right and power to receive, endorse and
collect all checks made payable to the order of the Pledgor representing any
dividend or other distribution in respect of the Collateral or any part thereof
and to give full discharge for the same.
(b) The Pledgee shall have and be entitled to exercise all such
powers hereunder as are specifically delegated to the Pledgee by the terms
hereof, together with such powers as are incidental thereto. The Pledgee may
execute any of its duties hereunder by or through agents or employees and shall
be entitled to retain counsel and to act in reliance upon the advice of such
counsel concerning all matters pertaining to its duties hereunder. Neither the
Pledgee, nor any director, officer or employee of the Pledgee, shall be liable
for any action taken or omitted to be taken by it or them hereunder or in
connection herewith, except for its or their own gross negligence or willful
misconduct. The Pledgor hereby agrees to reimburse the Pledgee, on demand, for
all reasonable expenses incurred by the Pledgee in connection with the
enforcement of this Agreement (including expenses incurred by any agent employed
by the Pledgee) and agrees to indemnify and hold harmless the Pledgee and/or any
such agent from and against any and all liability incurred by the Pledgee or
such agent hereunder or in connection herewith, unless such liability shall be
due to willful misconduct or negligence on the part of the Pledgee or such
agent.
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SECTION 9. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10. NO WAIVER, CUMULATIVE REMEDIES. The Pledgee shall not by
any act, delay, omission or otherwise be deemed to have waived any of its
rights, powers or remedies hereunder and no waiver shall be valid unless in
writing, signed by the Pledgee, and then only to the extent therein set forth.
A waiver by the Pledgee of any right, power or remedy hereunder on any one
occasion shall not be construed as a bar to the exercise of any right, power or
remedy which the Pledgee would otherwise have on any future occasion. No
failure to exercise, nor any delay in exercising, on the part of the Pledgee any
right, power or remedy hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy. The rights, powers and remedies herein provided are cumulative and
may be exercised singly or concurrently, and are not exclusive of any rights,
powers or remedies provided by law.
SECTION 11. NOTICES. All notices, demands, requests and other
communications provided for or permitted under this Agreement shall be in
writing, either delivered in hand or sent by registered first class mail,
postage prepaid, or by facsimile with answer-back, addressed, if to the Pledgor,
to X. Xxxxx Stiff at his address as reflected in the records of the Pledgee and,
if to the Pledgee, to Chairman, Uniquip Corporation, 0000 Xxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 or to such other address as the party to
receive any such notice, demand, request or communication may have designated by
written notice to the other party, which notice complies as to delivery with the
terms of this Section 11.
SECTION 12. TERMINATION. Upon payment in full of the Liabilities in
accordance with their terms and the performance by the Pledgor of all of the
Pledgor's obligations under this Agreement, this Agreement shall terminate and
the Pledgor shall be entitled to the return, at the Pledgor's expense, of such
of the Collateral in the possession or control of the Pledgee as may have been
pledged by the Pledgor under this Agreement and which has not theretofore been
disposed of pursuant to the provisions hereof.
SECTION 13. MISCELLANEOUS. This Agreement and all obligations of the
Pledgor hereunder shall be binding upon his successors and assigns, and shall,
together with the rights, powers and remedies of the Pledgee hereunder, inure to
the benefit of the Pledgee and its successors and assigns.
SECTION 14. AMENDMENTS; APPLICABLE LAW. None of the terms or
provisions of this Agreement may be amended except by an instrument in writing,
duly executed by the Pledgee. This Agreement shall be governed by and construed
in accordance with the laws of the State of Missouri, without regard to the
conflicts of laws principles of such jurisdiction.
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have duly executed and
delivered this Agreement on the day and year first above written.
PLEDGOR
/s/ X. Xxxxx Stiff
--------------------------------------
X. Xxxxx Stiff
PLEDGEE
UNIQUIP CORPORATION
BY: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: VP
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SCHEDULE 1
ISSUER OF CERTIFICATE NUMBER OF
PLEDGED SHARES CLASS NUMBER SHARES
Uniquip Corporation Common Stock 8.00 20,000
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