Exhibit 10.26
STOCK PLEDGE AGREEMENT
For good and valuable consideration, receipt whereof is hereby
acknowledged, each of the undersigned, intending to be legally bound, hereby
agree as follows:
1. The Collateral.
1.1. To secure the prompt payment and performance of all the
obligations of Dynamic Materials Corporation (the "Pledgor") owing to SNPE Inc.
(the "Pledgee") under that certain Term Loan Agreement of even date herewith
(the "Loan Agreement") including, without limitation, the term loan of $
4,000,000 made by Pledgee to Pledgor pursuant to the Loan Agreement (such loan
to include principal, interest and other fees owing in connection therewith) and
all other charges for the maintenance, preservation, protection or enforcement
of or realization upon the Collateral, as such term is hereinafter defined (all
such indebtedness costs, expenses being hereinafter collectively called the
"Obligations"), Pledgee shall have and Pledgor hereby pledges, grants to, and
creates in favor of Pledgee a lien and security interest under the Uniform
Commercial Code, as in effect in the State of New York (the "UCC"), in and to
all the issued and outstanding shares of any class of the capital stock of NOBEL
CLAD Europe S.A., up to a maximum amount of 65% of this capital stock
(hereinafter called the "Collateral").
1.2. Pledgor represents, warrants and covenants that:
(1) 65% of the capital stock of NOBEL CLAD Europe S.A. is represented
by a total of shares of ______________ common stock without par value.
(2) There are no other classes of stock otherwise issued or
outstanding of said company and Pledgor undertakes that it shall cause said
company not to issue any additional stock of any class without the prior written
consent of Pledgee.
(3) Pledgor has a valid and marketable title to all the Collateral
free and clear of any claims, liens or other encumbrances.
(4) Pledgor will not sell, assign, transfer, pledge or otherwise
encumber in any manner any of the Collateral or suffer to exist any encumbrances
in the Collateral except for the lien created under this Agreement.
(5) The Collateral will be delivered to Pledgee with all necessary
instruments of transfer, duly executed in blank, and Pledgee shall have the
right at any time after and during the continuance of an Event of Default (as
hereinafter defined) to have the Collateral registered in its own name or in the
name of its nominee.
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1.3 Pledgor will do all such acts and things and execute and deliver
all such documents and instruments, including, without limitation, further
pledges, assignments, financing statements, and continuation statements, as
Pledgee in its reasonable discretion may deem necessary or advisable from time
to time in order to preserve, protect, and perfect such security interest in the
Collateral. Cash dividends accrued and paid on the Collateral shall forthwith be
delivered to Pledgee (up to an amount equal to 65% of total dividends paid) at
the same time as principal amounts owing under the Loan Agreement are paid by
Pledgor Stock dividends and other distributions on account of the Collateral
(excluding cash dividends) shall be deemed additional Collateral hereunder.
2. Preservation of Collateral.
Pledgor assumes full responsibility for taking any and all necessary
steps to preserve rights with respect to the Collateral against prior parties.
Pledgee shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral held by Pledgee pursuant hereto if Pledgee takes
such action for a purpose requested (in writing) by Pledgor; provided, that such
requested action will not, in the reasonable judgement of Pledgee, impair
Pledgee's security interest in the Collateral or the proceeds thereof or its
rights in, or the value of, the Collateral or such proceeds; provided, further,
that such written request is received by Pledgee in sufficient time to permit
Pledgee to take the requested action.
3. Remedies on Event of Default.
3.1. If (a) an Event of Default (as defined in the Loan Agreement)
shall occur under the Loan Agreement, or (b) Pledgor shall default in the due
performance or observance of any of the covenants or agreements contained in
this Agreement and such default shall continue unrememdied for a period of ten
(10) business days following written notice thereof from Pledgee, (each an
"Event of Deafult" under this Agreement) then, and only then, Pledgee shall have
such rights and remedies with respect to the Collateral or any part thereof and
the proceeds thereof as are provided by the UCC and such other rights and
remedies with respect thereto which it may have at law or in equity or under
this Agreement including, without limitation, to the extent not inconsistent
with the provisions of the UCC or other applicable law, the right to (i)
transfer into Pledgee's name or into the name of its nominee or nominees or
account at a Depository Trust Company, for the benefit of Pledgee, all or any
portion of the Collateral and thereafter receive all interest and cash dividends
accruing and paid thereon, vote the same, give all consents, waivers and
ratifications in respect thereof and otherwise act with respect thereto as
though it were the outright owner thereof and (ii) sell all or any portion of
the Collateral at any broker's board or at public or private sale (in compliance
with the terms of the UCC), each without prior notice to Pledgor or any other
person, except as otherwise required by law (and if notice is required by law,
after 10 business days prior written notice), at such place or places and
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at such time or times and in such manner and for such consideration as Pledgee
may determine in its reasonable discretion, and apply the proceeds so received,
first to the payment of the reasonable costs and expenses incurred by Pledgee in
connection with such sale, including reasonable attorneys' fees and legal
expenses, second to the repayment of the Obligations, whether on account of
principal, interest, premium, or otherwise as Pledgee in its reasonable
discretion may elect, and then to pay the balance, if any, to Pledgor or as
otherwise required by law. If such proceeds are insufficient to pay the
Obligations in full, Pledgor shall be liable for the deficiency.
3.2. Pledgor recognizes that Pledgee, after the occurrence and during
the continuance of an Event of Default by Pledgor, may be unable to effect
public sale of all or a portion of the Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, 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 such Collateral for their own account for investment
and not to engage in a distribution or resale thereof. Pledgor agrees that
private sales so made may be at prices and on other terms less favorable to the
seller than if such Collateral were sold at public sale and that Pledgee has no
obligation to delay sale of any such Collateral for the period of time necessary
to permit the issuers of such Collateral, even if such issuers would agree, to
register or qualify such Collateral for public sale under the Securities Act of
1933, as amended, and applicable state securities laws. Pledgor agrees that
private sales made under the foregoing circumstances and in compliance with
applicable Federal and state securities laws shall be deemed to have been made
in a commercially reasonable manner under the UCC.
4. Payment of Pledgee's Expenses.
Pledgor agrees to promptly pay to Pledgee all reasonable custody
charges pertaining to the Collateral and all reasonable costs and expenses,
including, without limitation, all attorneys' fees, related or incidental to the
preparing for sale, selling, or realization upon any of the Collateral or to the
establishment of any of the rights of Pledgee hereunder.
5. Assignment.
Pledgee may assign or otherwise transfer all or any of its rights and
obligations hereunder and may deliver all or any of the Collateral to one or
more transferees who thereupon shall become vested with all the rights,
interests and obligations in respect thereof given to or held by Pledgee
hereunder and Pledgee shall thereafter be forever relieved and fully discharged
from any liability or responsibility with respect thereto, all without prejudice
to the retention by Pledgee of all rights, interests or obligations not so
transferred. Pledgor may not assign or transfer its rights hereunder without the
prior written consent of Pledgee.
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6. Continuing Agreement.
This Agreement shall remain in full force and effect until all the
Obligations have been paid in full. Upon the occurrence of the payment in full
of all said Obligations, the security interest granted hereunder shall
automatically terminate and all rights to the Collateral shall immediately
revert to Pledgor. Upon any such termination, Pledgee will, at Pledgor's
expense, deliver all certificates and instruments representing or evidencing the
Collateral, together with any other Collateral hereunder, and execute and
deliver to Pledgor, at Pledgor's expense, such documents as Pledgor shall
reasonably request to evidence such termination. This Agreement shall bind each
of Pledgor, Pledgee, and each such party's respective successors and assigns.
7. Miscellaneous.
7.1. No delay or failure on the part of Pledgee in exercising any
right, remedy, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise thereof or the exercise of any
other right, remedy power or privilege. The rights and remedies of Pledgee
hereunder are cumulative and not exclusive of any rights or remedies which it
would otherwise have.
7.2. Any waiver, permit, consent or approval of any kind or character
on the part of Pledgee of any breach, default or Event of Default under this
Agreement or any such waiver of any provision or condition of this Agreement
must be in writing and shall be effective only to the extent specifically set
forth in such writing. In the event of any action at law or suit in equity in
relation to this Agreement or the Obligations or the Collateral, Pledgor, in
addition to all other sums which it may be required to pay, will pay the
reasonable costs of such action or suit and a reasonable sum for attorneys' fees
incurred by Pledgee or its successors or assigns in connection with such action
or suit. Notwithstanding the foregoing, in the event Pledgee shall bring such an
action or suit against Pledgor and Pledgee shall lose such action or suit,
Pledgor shall not be obligated to pay the costs and fees (including attorney's
fees) associated therewith. All rights of Pledgee hereunder shall continue
unimpaired and Pledgor shall be and remain bound by the Obligations in
accordance with the terms hereof and thereof notwithstanding the release or
substitution of any of the Collateral or of any rights or interests therein.
Pledgee shall not be obligated to assert or enforce any rights or security
interests hereunder or to take any action in reference thereto and Pledgee may,
in its discretion at any time, relinquish its rights as to certain Collateral
without thereby affecting or invalidating its rights hereunder as to other
Collateral.
7.3. This Agreement shall take effect immediately upon execution by
each of the undersigned. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same instrument. All notices
delivered in connection with this Agreement shall comply with the notice
provisions of the Loan Agreement
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8. Governing Law.
This Agreement shall be deemed a contract entered into under the laws
of the State of New York and for all purposes shall be governed by and construed
in accordance with the laws, including the conflict of laws and rules of the
State of New York. Any legal action or proceeding arising out of or relating to
this Agreement will be instituted in the courts of the State of New York, and
each of the undersigned hereby irrevocably submits to the jurisdiction of each
such court in any such action or proceeding.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement as of the day of , 2001.
Dynamic Materials Corporation
By:
---------------------------
Name:
Title:
SNPE Inc.
By:
---------------------------
Name:
Title:
STATE OF ___________ )
) ss.
COUNTY OF __________ )
On this ____ day of ______, 200__, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that he is the __________________ of DYNAMIC MATERIALS
CORPORATION, the corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
board of directors of said corporation, and that he signed his name thereto by
like order.
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NOTARY PUBLIC
STATE OF ___________ )
) ss.
COUNTY OF __________ )
On the _____ day of ______, 200__, before me personally came
___________________, to me known, who being by me duly sworn, did depose and say
that he is a _________________ of SNPE, Inc., the corporation described in and
which executed the above instrument; and that he was authorized to sign his name
thereto on behalf of said corporation.
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Notary Public