EXHIBIT 10.35
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT is made as of the 7th day of March, 2002 by
and between Xxxx X. Xxxxxxxxxxx, an individual residing at 00 Xxxxxx Xxxx, Xxxxx
Xxxxxxx, Xxx Xxxxxxxxx (the "Pledgor"), and BayCorp Holdings, Ltd., a Delaware
corporation, with a principal place of business at 00 Xxx Xxxxxxx, Xxxx 0,
Xxxxx, Xxxxx (the "Company").
WHEREAS, the Pledgor is exercising certain nonstatutory stock options
to acquire shares of the Company's common stock;
WHEREAS, the Pledgor is exercising 94,184 options at an exercise price
of Four Dollars and Ninety Cents ($4.90) per share for a total number of 94,184
shares of the Company's common stock (the "Shares") at an aggregate purchase
price of Four Hundred Sixty-One Thousand Five Hundred One Dollars and Sixty
Cents ($461,501.60) ("Purchase Price");
WHEREAS, the Pledgor is borrowing the Purchase Price from the Company
pursuant to the terms of the Pledgor's promissory note dated as of the date
hereof (the "Note");
WHEREAS, as the sole collateral for the Note, the Pledgor has agreed to
pledge the Shares pursuant to the terms hereof; and
WHEREAS, the Company shall take possession of the Shares pursuant to
the terms of this Pledge Agreement.
NOW THEREFORE, in consideration of the covenants and mutual promises
set forth herein, the parties agree as follows:
1. PLEDGE. The Pledgor hereby pledges the Shares to secure the
payment of the Note.
2. DEPOSIT. The Pledgor hereby deposits with the Company
certificates evidencing the Shares and stock transfer powers for the Shares
which are endorsed in blank (the "Stock Powers"). The Company shall hold such
Shares and Stock Powers subject to the terms of this Pledge Agreement.
3. ENCUMBRANCE; HOLDING CERTIFICATES. The Company shall not
encumber or dispose of the Shares except as provided in this Pledge Agreement.
The Company shall keep and preserve the certificates until such time that the
Company is required to deliver the certificates to the Pledgor in accordance
with Section 8, 10, or 11, or until such time that the Company is required or
allowed to otherwise dispose of the certificates in accordance with the terms of
this Pledge Agreement.
4. DIVIDENDS. During the term of this Pledge Agreement, and so
long as the Pledgor is not in default under the Note, all dividends and other
amounts payable with respect to the
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Shares shall be collectible by the Pledgor for his own use and benefit, unless
otherwise provided herein.
5. VOTING. During the term of this Pledge Agreement, and so long
as the Pledgor is not in default under the Note, the Pledgor shall have the
right to vote the Shares on all corporate questions and may exercise all rights
and privileges of ownership thereof, provided, however, the Pledgor shall not
further pledge the equity in the Shares as collateral or otherwise encumber the
Shares in any way.
6. SHARE DIVIDENDS. In the event that, during the term of this
Pledge Agreement, any share dividend, reclassification, readjustment, or other
change is declared or made in the capital structure of the Company, all new,
substituted, and additional shares, or other securities, issued by reason of any
such change shall be immediately delivered to and held by the Company under the
terms of this Pledge Agreement in the same manner as the Shares held hereunder.
7. WARRANTS. In the event that during the term of this Pledge
Agreement subscription warrants or any other rights or options of any kind shall
be issued in connection with the Shares held hereunder, such warrants, rights
and options shall be immediately assigned by the Pledgor to the Company under
this Pledge Agreement.
8. SALE OF SHARES. Notwithstanding any other provision of this
Pledge Agreement, the Pledgor may sell the Shares held pursuant to this Pledge
Agreement during the term hereof so long as the proceeds of such sale are first
applied to pay the outstanding amount due under the Note. Upon notice that the
Pledgor desires to sell the Shares, the Company shall release the certificates
to the Pledgor so that the Pledgor can consummate a sale of the Shares in
accordance with this Section 8. In the event that the sale is not consummated,
the Pledgor shall return the certificates to the Company to be held subject to
the terms of this Pledge Agreement.
9. DEFAULT. If the Pledgor is in default under the Note, the
Company, after giving the Pledgor prior written notice, may retain or sell the
Shares. If the Company retains the Shares, it may execute the Stock Powers in
its own name. The Company shall calculate the total value of the retained Shares
based on the then current and readily ascertainable market price and shall remit
to the Pledgor the excess of the total value of the Shares over the amount due
under the Note. Alternatively, the Company shall use commercially reasonable
efforts to sell the Shares. In the event of a sale, the Company may execute the
Stock Powers in favor of the person or entity purchasing the Shares. The Company
shall account to the Pledgor for the proceeds of such sale and shall remit to
the Pledgor the excess of the sale proceeds over the amount due under the Note
plus the reasonable costs of the sale. The decision whether to retain or sell
the Shares shall be made in the Company's sole discretion.
10. SATISFACTION OF NOTE. If the Pledgor has not reacquired
possession of the certificates as provided in Section 8 above, upon the
Pledgor's satisfaction of the Note, the Company shall deliver the certificates
and Stock Powers to the Pledgor.
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11. PARTIAL SATISFACTION OF NOTE. If the Pledgor pays a portion of
the outstanding principal amount due under the Note, the Pledgor shall be
entitled to receive from the Company a portion of the Shares pledged hereunder.
Upon such partial payment of the Note, the Company shall retain that number of
Shares having an aggregate fair market value equal to two times the Pledgor's
remaining indebtedness, and the Company shall release to the Pledgor a
certificate or certificates evidencing the excess Shares. The Company shall
calculate the number of Shares to be released hereunder and it shall not be
obligated to release fractional Shares. The Shares released to Pledgor in
accordance with this Section 11 shall no longer be subject to the provisions of
this Pledge Agreement.
12. DISPUTE. In the event of a dispute between the Pledgor and the
Company as to the disposition of Shares and/or any funds and/or any other rights
held by the Company from time to time acquired in connection with this Pledge
Agreement, or as to the propriety of any acts or refusal to act by the Company
under this Pledge Agreement, the Company may, following the giving of ten (10)
days prior written notice to the Pledgor, in the form and the manner described
for giving notice in this Agreement, deposit in a court of competent
jurisdiction, the certificates, Stock Powers and any funds then held thereunder.
13. NOTICES. All notices or communications provided for herein or
incidental to the transactions contemplated hereby shall be in writing and shall
be deemed duly given if delivered personally or sent by certified or registered
mail, return receipt requested, to the parties at the following addresses or
such other addresses as a party may theretofore have specified by notice in
writing as aforesaid:
To Pledgor: Xxxx X. Xxxxxxxxxxx
00 Xxxxxx Xxxx
Xxxxx Xxxxxxx, Xxx Xxxxxxxxx 00000
To the Company: BayCorp Holdings, Ltd.
00 Xxx Xxxxxxx, Xxxx 0
Xxxxx, Xxxxx 00000
14. GOVERNING LAW; JURISDICTION. This Pledge Agreement shall be
construed and interpreted according to the laws of the State of New Hampshire.
The parties agree that any suit or action shall only be brought and maintained
in the New Hampshire state courts and the federal courts sitting in New
Hampshire, and the parties hereby consent to such jurisdiction.
15. AMENDMENT. This Agreement may only be amended by a writing
signed by both of the parties hereto.
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IN WITNESS WHEREOF, the undersigned have placed their hands and seals
on the date first above-written.
COMPANY:
BAYCORP HOLDINGS, LTD.
By: /s/ Xxxxx X. Xxxxxx Xx.
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Name: Xxxxx X. Xxxxxx Xx.
Title: President
PLEDGOR:
/s/ Xxxx X. Xxxxxxxxxxx
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Xxxx X. Xxxxxxxxxxx
