EXHIBIT 10.10.4
STOCK PLEDGE AGREEMENT
(Stock In Imtek Acquisition Corporation,
Imtek Corporation, and Imtek Services Corporation)
THIS STOCK PLEDGE AGREEMENT ("PLEDGE AGREEMENT") is made this first
day of July, 1999, by IMTEK OFFICE SOLUTIONS, INC., a Delaware corporation
("PLEDGOR"), for the benefit of THE PROVIDENT BANK, an Ohio chartered banking
institution ("LENDER").
RECITALS
Imtek Corporation (AIMTEK@) and Barbera Business Systems, Inc.
(ABARBERA@) have requested that the LENDER provide them with certain credit
accommodations. As a condition precedent to the extension of the requested
credit accommodations, the LENDER has required that the PLEDGOR guaranty the
obligations of the IMTEK and BARBERA with respect to such credit accommodations,
and secure such guaranty with a pledge of certain collateral, including but not
limited to the assets of the PLEDGOR which are being pledged by the PLEDGOR
pursuant to the terms of this PLEDGE AGREEMENT. The PLEDGOR has executed and
delivered this PLEDGE AGREEMENT in order to induce the LENDER to provide such
credit accommodations.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the PLEDGOR agrees as follows:
Section 1. DEFINITIONS. As used in this PLEDGE AGREEMENT, the
following terms have the following meanings. Terms defined in this Section 1 or
elsewhere in this PLEDGE AGREEMENT are in all capital letters throughout this
PLEDGE AGREEMENT. The singular use of any defined term includes the plural and
the plural use includes the singular.
Section 1.1. ACCOUNTS, CHATTEL PAPER, DOCUMENTS, FINANCIAL ASSETS,
GENERAL INTANGIBLES, INSTRUMENTS, INVESTMENT PROPERTY, SECURITIES ACCOUNT AND
SECURITY ENTITLEMENTS. The terms "ACCOUNTS," "CHATTEL PAPER," "DOCUMENTS,"
"GENERAL INTANGIBLES," and "INSTRUMENTS" shall have the same respective meanings
as are given to those terms in Maryland Uniform Commercial Code - Secured
Transactions, Title 9 (Michie 1992 Repl. Vol.). The terms "FINANCIAL ASSETS,"
"INVESTMENT PROPERTY," "SECURITIES ACCOUNT," and "SECURITY ENTITLEMENTS" shall
have the same respective meanings as are given to the terms in Maryland Uniform
Commercial Code - Investment Securities, Title 8, and -Secured Transactions,
Title 9 (Michie 1992 Repl. Vol.).
Section 1.2. ACQUISITION. The term "ACQUISITION" means Imtek
Acquisition Corporation, a Maryland corporation.
Section 1.3. BORROWERS. The term "BORROWERS" means collectively IMTEK
and BARBERA.
1
Section 1.4. CAPITAL. The term "CAPITAL" means Imtek Capital
Corporation, a Maryland corporation.
Section 1.5. COLLATERAL. The term "COLLATERAL" collectively means: (a)
the PLEDGED STOCK and the proceeds, profits, and products of the PLEDGED STOCK;
(b) all dividends (cash and stock) and distributions of any kind made from time
to time with respect to the PLEDGED STOCK or which arise as a result of the
ownership of the PLEDGED STOCK; (c) all certificates representing the PLEDGED
STOCK and certificates representing any subsequent stock dividends or other
distributions of stock paid or made in connection with the PLEDGED STOCK; (d)
all distributions of cash or stock made or arising from any increase or
reduction of capital, reclassification, merger, consolidation, stock split or
other transactions involving any of the CORPORATIONS or the PLEDGED STOCK; (e)
all options, warrants or rights of the PLEDGOR with respect to any of the
CORPORATIONS and/or the PLEDGED STOCK, whether as an addition to or in
substitution or in exchange for any of the PLEDGED STOCK; (f) all ACCOUNTS,
CHATTEL PAPER, DOCUMENTS, FINANCIAL ASSETS, GENERAL INTANGIBLES, INSTRUMENTS,
INVESTMENT PROPERTY, SECURITIES ACCOUNTS, and SECURITY ENTITLEMENTS of the
PLEDGOR which arise out of or relate in any respect to the PLEDGED STOCK or the
ownership by the PLEDGOR of the PLEDGED STOCK; (g) the products and proceeds of
all of the foregoing; and (h) all RECORDS relating or pertaining to any of the
foregoing.
Section 1.6. CORPORATIONS. The term "CORPORATIONS" means collectively
ACQUISITION, IMTEK, and SERVICES.
Section 1.7. EVENTS OF DEFAULT. The term "EVENTS OF DEFAULT"
collectively means: (a) the occurrence of any event authorizing the acceleration
of the PLEDGOR=S obligations under the GUARANTY; and (b) the occurrence of any
AEVENT OF DEFAULT,@ as such term is defined in the GUARANTY, or any other
default or violation by the PLEDGOR of any covenants, promises, or agreements of
the PLEDGOR set forth in the GUARANTY or this PLEDGE AGREEMENT, after the
expiration of any applicable notice and cure rights.
Section 1.8. FUNDING. The term "FUNDING" means Imtek Funding
Corporation, a Maryland corporation.
Section 1.9. GOVERNMENTAL AUTHORITY. The term "GOVERNMENTAL AUTHORITY"
means any nation or government, any state or other political subdivision thereof
and any municipality, court or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
Section 1.10. GUARANTY. The term "GUARANTY" means the Secured Guaranty
Agreement of even date herewith from the PLEDGOR, ACQUISITION, CAPITAL, FUNDING,
and SERVICES for the benefit of the LENDER, as amended from time to time.
Section 1.11. LAWS. The term "LAWS" means all ordinances, statutes,
rules, regulations, orders, injunctions, writs or decrees of any GOVERNMENTAL
AUTHORITY.
2
Section 1.12. LOAN AGREEMENT. The term "LOAN AGREEMENT" means the Loan
And Security Agreement between the BORROWERS and the LENDER of even date
herewith, as amended from time to time.
Section 1.13. OBLIGATIONS. The term "OBLIGATIONS" shall have the same
meaning as given to that term in the GUARANTY.
Section 1.14. PERSON. The term "PERSON" means any individual,
corporation, partnership, limited liability company, association, joint-stock
company, trust, business trust, unincorporated organization, joint venture,
court, or GOVERNMENTAL AUTHORITY.
Section 1.15. PLEDGED STOCK. The term "PLEDGED STOCK" means all shares
of stock of the CORPORATIONS owned by the PLEDGOR and all additional shares of
stock in the CORPORATIONS acquired by the PLEDGOR from time to time together
with all rights, options, and issuances therefrom, including but not limited to:
(a) 50,000 shares of the common stock of IMTEK, as evidenced by Certificate
No.1; (b) 100 shares of the common stock of SERVICES, as evidenced by
Certificate No.1; and (c) 1,000 shares of the common stock of ACQUISITION, as
evidenced by Certificate No. 1.
Section 1.16. RECORDS. The term "RECORDS" means correspondence,
memoranda, tapes, discs, papers, books and other documents, or transcribed
information of any type, whether expressed in ordinary, computer or machine
language.
Section 1.17. SERVICES. The term "SERVICES" means Imtek Services
Corporation, a Maryland corporation.
Section 2. PLEDGE; GRANT OF SECURITY INTERESTS AND LIENS. In order to
secure the payment and performance of the OBLIGATIONS when and as due, the
PLEDGOR hereby assigns, grants and pledges to the LENDER a continuing security
interest, pledge and lien in and to all of the COLLATERAL, whether now owned or
hereafter acquired by the PLEDGOR, together with all substitutions,
replacements, renewals, products and proceeds thereof. Future advances are
secured.
Section 3. DELIVERY OF CERTIFICATES. Except as may be otherwise agreed
to by the LENDER, the PLEDGOR shall deliver to the LENDER all of the
certificates representing the PLEDGED STOCK, together with stock powers duly
executed in blank by the PLEDGOR in accordance with the terms and purposes of
this PLEDGE AGREEMENT.
Section 4. FUTURE RECEIPT OF COLLATERAL. Except as expressly authorized
to the contrary by the terms of this PLEDGE AGREEMENT or as otherwise agreed to
by the LENDER, the PLEDGOR shall accept as the agent and in trust for the LENDER
all COLLATERAL received by the PLEDGOR after the date of this PLEDGE AGREEMENT,
and shall promptly deliver all of such COLLATERAL to the LENDER.
Section 5. VOTING RIGHTS; RIGHTS INCIDENTAL TO COLLATERAL. Until the
occurrence of any EVENT OF DEFAULT and the written election of the LENDER
described below, the PLEDGOR shall retain all voting rights with respect to the
PLEDGED STOCK, not inconsistent with the terms of this PLEDGE AGREEMENT,
3
and, for that purpose, the LENDER shall execute and deliver to the PLEDGOR any
necessary proxies. Immediately upon the occurrence of an EVENT OF DEFAULT and
without regard as to whether the PLEDGED STOCK has been registered in the names
of the LENDER or the nominee of the LENDER, the LENDER shall have the right (but
not the obligation) to make a written election to exercise all voting rights as
to the PLEDGED STOCK, together with all conversion, exchange, subscription or
other rights, privileges or options pertaining thereto as if the LENDER were the
absolute owner thereof, including, without limitation, the right to exchange any
or all of the PLEDGED STOCK upon the merger, consolidation, reorganization,
recapitalization or other readjustment of any of the CORPORATIONS, or upon the
exercise by any of the CORPORATIONS of any right, privilege, or option
pertaining to any of the PLEDGED STOCK, and, in connection therewith, to deliver
any of the PLEDGED STOCK to any committee, depository, transfer agent, registrar
or other designated agency upon such terms and conditions as the LENDER may
determine to be appropriate, all without liability except to account for
property actually received by the LENDER or the nominee of the LENDER. The
LENDER shall have no duty to exercise any of the aforesaid rights, privileges or
options. The LENDER shall not be deemed or construed to have exercised any
voting rights with respect to the PLEDGED STOCK unless and until the LENDER has
made the above-described written election to exercise such voting rights.
Section 6. CASH DIVIDENDS AND CASH DISTRIBUTIONS. All cash dividends
and cash distributions made upon the PLEDGED STOCK shall be paid to the PLEDGOR
until the occurrence of an EVENT OF DEFAULT except to the extent otherwise
prohibited by the terms and conditions of the LOAN AGREEMENT, the GUARANTY, or
any other agreements between the LENDER and any of the BORROWERS, the PLEDGOR,
or the CORPORATIONS. During the continuance of any EVENT OF DEFAULT, all cash
dividends and cash distributions shall be paid to the LENDER, and if any such
dividends or distributions are paid to the PLEDGOR, the PLEDGOR shall accept the
same as the LENDER'S agent, in trust for the LENDER, and shall deliver such
dividends or distributions forthwith to the LENDER in exactly the form received
with, as applicable, the PLEDGOR'S endorsement thereon. During the continuance
of any EVENT OF DEFAULT, all cash dividends, cash distributions, and other
distributions paid with respect to the PLEDGED STOCK shall be applied to the
repayment of the OBLIGATIONS, in such order of application as the LENDER
determines, regardless of when the amounts due upon the OBLIGATIONS mature and
are due and payable.
Section 7. WARRANTIES AND REPRESENTATIONS. The PLEDGOR represents and
warrants to the LENDER that:
Section 7.1. AUTHORITY. The PLEDGOR has, and has duly exercised, all
requisite power and authority to enter into this PLEDGE AGREEMENT, to pledge the
PLEDGED STOCK for the purposes described herein and to carry out the
transactions contemplated by this PLEDGE AGREEMENT.
Section 7.2. OWNERSHIP. The PLEDGOR is the sole legal and beneficial
owner of the shares of PLEDGED STOCK set forth below, which shares of PLEDGED
STOCK constitute one hundred percent (100%) of the issued and outstanding common
stock of each of the CORPORATIONS. The PLEDGOR is the registered owner of such
PLEDGED STOCK.
IMTEK:
4
Certificate Number Of Date Of
Number Shares Issue
8 50,000 05/05/97
SERVICES:
Certificate Number Of Date Of
Number Shares Issue
1 100 10/11/97
ACQUISITION:
Certificate Number Of Date Of
Number Shares Issue
1 1,000 07/01/98
Section 7.3. STATUS OF PLEDGED STOCK. All of the shares of the
PLEDGED STOCK currently outstanding have been duly and validly issued, are fully
paid and nonassessable, and are owned by the PLEDGOR free of any pledge,
mortgage, hypothecation, lien, charge, encumbrance or security interest in such
shares or the proceeds thereof, except for the security interests and pledges
granted herein and a pledge to FINOVA Mezzanine Capital Inc. f/k/a Sirrom
Capital Corporation which is subordinated in all respects to the pledge to the
LENDER contained herein.
Section 7.4. NO VIOLATION OF RESTRICTIONS. The execution and
delivery of this PLEDGE AGREEMENT by the PLEDGOR and the consent by the
CORPORATIONS thereto, and the performance of this PLEDGE AGREEMENT in accordance
with its stated terms, will not result in any violation of any provision of the
Charters or Bylaws of the PLEDGOR or of any of the CORPORATIONS, or violate or
constitute a default under the terms of any agreement, restrictive shareholder's
agreement, indenture or other instrument, license, judgment, decree, order, or
LAWS applicable to the PLEDGOR, the CORPORATIONS, the PLEDGED STOCK, or any of
the property of the PLEDGOR or the CORPORATIONS.
Section 7.5. APPROVALS. No approvals, consents, orders,
authorizations, or licenses are required from any PERSON or GOVERNMENTAL
AUTHORITY for the execution and delivery by the PLEDGOR of this AGREEMENT and
the consummation of the transactions described herein.
Section 7.6. RESTRICTIONS. There are no restrictions upon the
voting rights or upon the transfer of any of the PLEDGED STOCK other than as
physically appear upon the face of the certificates evidencing the PLEDGED
STOCK.
Section 7.7. VALID AND BINDING OBLIGATION. This PLEDGE AGREEMENT
is the valid and binding obligation of the PLEDGOR, fully enforceable in
accordance with all stated terms, except as enforceability may
5
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect generally affecting creditors' rights, and subject to
general equity principles.
Section 8. NO DUTIES OTHER THAN CUSTODIAL DUTIES. The LENDER shall have
no duty with respect to any of the COLLATERAL other than the duty to use
reasonable care in maintaining the safe physical custody of the certificates
evidencing the PLEDGED STOCK.
Section 9. NO OBLIGATION TO MONITOR COLLATERAL. The LENDER shall have
no duty or responsibility for collecting or receiving any amounts payable on or
with respect to the PLEDGED STOCK or any of the other COLLATERAL or for
ascertaining, monitoring, or enforcing any maturities, calls, conversions,
exchanges, offers, tenders, or similar matters relating to the PLEDGED STOCK or
any of the other COLLATERAL or for informing the PLEDGOR with respect to any of
such matters. The LENDER shall have no liability to the PLEDGOR for any decline
in the value of the PLEDGED STOCK which may occur while the COLLATERAL is
subject to the terms of this PLEDGE AGREEMENT. The PLEDGOR represents to the
LENDER that the PLEDGOR has made its own arrangements for keeping informed of
changes or potential changes affecting the COLLATERAL, including, but not
limited to, rights to convert, rights to subscribe, payment of dividends,
reorganization or other exchanges, tender offers and voting rights.
Section 10. NO OBLIGATION TO PRESERVE RIGHTS. The LENDER shall be
under no obligation to take any steps to preserve rights or privileges in or to
the COLLATERAL against any PERSON.
Section 11. COVENANTS OF PLEDGOR. The PLEDGOR agrees that, until all of
the OBLIGATIONS have been paid, performed and satisfied in full, the PLEDGOR, in
addition to the covenants of the PLEDGOR set forth in the GUARANTY, will comply
with each of the following covenants:
Section 11.1. NO TRANSFERS. The PLEDGOR will not sell, convey, or
otherwise dispose of any of the COLLATERAL or any interest therein, or create,
incur, or permit to exist any pledge, mortgage, lien, charge, encumbrance or any
security interest whatsoever in or with respect to any of the COLLATERAL or the
proceeds thereof, except as may be expressly consented to by the LENDER in
writing.
Section 11.2. WARRANT TITLE. The PLEDGOR will, at the PLEDGOR'S sole
expense, warrant and defend the right, title, special property and security
interests and pledges of the LENDER in and to the COLLATERAL against the claims
of any PERSON, firm, CORPORATIONS or other entity.
Section 11.3. NO ADDITIONAL SHARES. The PLEDGOR will not consent to or
approve the issuance of any additional shares of any class of capital stock in
any of the CORPORATIONS or any securities convertible voluntarily by the holder
thereof or automatically upon the occurrence or non-occurrence of any event or
condition into, or exchangeable for, any such shares; or any warrants, options,
rights, or other commitments entitling any person to purchase or otherwise
acquire any such shares.
Section 11.4. DELIVERY OF NOTICES CONCERNING COLLATERAL. The PLEDGOR
agrees to promptly forward to the LENDER, copies of any written
6
notices or other communications received by the PLEDGOR which relate or pertain
to the COLLATERAL.
Section 11.5. FURTHER ASSURANCES AND POWER OF ATTORNEY. The PLEDGOR
shall execute and delivery from time to time such writings, and documents which,
in the reasonable opinion of the LENDER or the LENDER'S counsel, may be
necessary to perfect, confirm, establish, reestablish, continue, or complete the
security interests, pledges and liens of the LENDER in the COLLATERAL, it being
the intention of the PLEDGOR to provide hereby a full and absolute warranty of
further assurance to the LENDER. If the PLEDGOR fails to execute any such
document within five (5) business days of being requested to do so by the
LENDER, the PLEDGOR hereby appoints the LENDER or any officer of the LENDER as
the PLEDGOR'S attorney in fact for purposes of executing such documents in the
PLEDGOR'S name, place and stead, which power of attorney shall be considered as
coupled with an interest and irrevocable.
Section 11.6. COOPERATION WITH ENFORCEMENT ACTIVITIES. The PLEDGOR,
upon the occurrence of an EVENT OF DEFAULT and the written request therefor by
the LENDER, will promptly execute and deliver to the LENDER such documents,
letters, or written representations as may reasonably be requested by the LENDER
or any broker, from time to time in order to accomplish the sale of all or any
part of the COLLATERAL, including but not limited to, all forms and documents
required under any applicable LAWS.
Section 12. WAIVERS. No course of dealing between the PLEDGOR and the
LENDER, nor any failure to exercise, nor any delay in exercising, any right,
power or privilege of the LENDER hereunder or under any other agreement between
the PLEDGOR and the LENDER, or under any agreement between the LENDER and any of
the CORPORATIONS, shall operate as a waiver of any term or condition of this
PLEDGE AGREEMENT; nor shall any single or partial exercise of any right, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
Section 13. SALE OF COLLATERAL.
Section 13.1. TERMS OF SALE. In addition to all other rights
and remedies available to the LENDER pursuant to any other agreements with the
PLEDGOR or as otherwise provided by applicable LAWS, the LENDER, may upon the
occurrence of an EVENT OF DEFAULT sell or otherwise dispose of and deliver all
or any portion of the PLEDGED STOCK, in one or more parcels, at public or
private sale or sales, at any exchange, broker's board or at any location
selected by the LENDER, at such prices and on such terms as the LENDER may deem
best for cash or on credit, or for future delivery without assumption of any
credit risk. Any such sale shall be in compliance with all applicable LAWS. Any
purchaser of the PLEDGED STOCK, including the LENDER, shall purchase the PLEDGED
STOCK in whole or in part free of any right or equity of redemption in the
PLEDGOR, which right or equity is hereby expressly waived and released by the
PLEDGOR, to the extent permitted by applicable LAWS. The PLEDGOR acknowledges
that the terms of sale for the PLEDGED STOCK may include: (a) a requirement that
the PLEDGED STOCK be sold to only one individual purchaser for such purchaser's
own account and not as a representative of any purchaser; (b) a requirement that
any purchaser of
7
all or any part of the PLEDGED STOCK represent in writing that such purchase is
purchasing the shares constituting the PLEDGED STOCK for investment purposes
only and without any intention to make a distribution thereof; (c) a requirement
that the certificates for any PLEDGED STOCK bear a legend to the effect that the
stock may not be resold without compliance with applicable federal and state
securities laws; and (d) a requirement that any purchaser of the PLEDGED STOCK
make such representations and warranties to the LENDER as deemed necessary by
the LENDER.
Section 13.2. DELAYS IN SALE; PRIVATE SALES. The PLEDGOR acknowledges
that it will be commercially reasonable for the LENDER to: (a) defer disposing
of all or any portion of the PLEDGED STOCK after an EVENT OF DEFAULT has
occurred for as long as any of the CORPORATIONS or the LENDER may require to
comply with any requirements of applicable LAWS, notwithstanding the fact that
the value of the PLEDGED STOCK may decline during the time that disposition is
deferred; and (b) sell all or any part of the PLEDGED STOCK at private sale,
subject to investment letter or in any other manner which will not require the
PLEDGED STOCK, or any part thereof, to be registered in accordance with the
SECURITIES ACT OF 1933, as amended, or the rules and regulations promulgated
thereunder, or any other applicable LAW. The PLEDGOR acknowledges that the
LENDER may, in the LENDER'S sole and absolute discretion, approach a restricted
number of potential purchasers and that a sale under such circumstances may
yield a lower price for the PLEDGED STOCK or any portions thereof than would
otherwise be obtainable if the PLEDGED STOCK were registered and sold in the
open market. The PLEDGOR acknowledges that a private sale of the PLEDGED STOCK
would be a commercially reasonable sale.
Section 13.3. LIQUIDATION AS AN ALTERNATIVE TO SALE. As an alternative
to public or private sale of the PLEDGED STOCK, the LENDER may, in the LENDER'S
sole and absolute discretion, elect to dispose of the PLEDGED STOCK after an
EVENT OF DEFAULT by causing any or all of the CORPORATIONS to dissolve,
liquidate, and make liquidating distributions to their stockholders, and such
dissolution and liquidation are hereby acknowledged to be a commercially
reasonable manner of disposing of the PLEDGED STOCK.
Section 13.4. APPLICATION OF PROCEEDS OF DISPOSITION. The proceeds from
any sale or from any other disposition of the COLLATERAL shall be applied as
follows:
a. FIRST, to the costs and expenses incurred in connection
with the sale or disposition of the COLLATERAL, including but not limited to all
costs incurred in the care or safekeeping of the COLLATERAL, reasonable
attorneys' fees, broker's commissions, appraiser's fees and other expenses
incurred by the LENDER.
b. SECOND, to the satisfaction of the OBLIGATIONS regardless
of when the amounts due upon the OBLIGATIONS mature and are due and payable,
c. THIRD, to the payment of any other amounts required by
applicable LAWS (including, without limitation the requirements of Md. Code
Ann., Commercial Law I ' 9-504(1)(c) (Michie 1992 Repl. Vol.).
8
d. FOURTH, to the PLEDGOR to the extent of any surplus
proceeds.
Section 13.5. NOTICE; PROCEDURES OF SALE. The LENDER need not give more
than twenty (20) business days notice of the time and place of any public sale
or of the time after which a private sale of any or all of the COLLATERAL may
take place, which notice the PLEDGOR hereby agrees to be commercially
reasonable. The LENDER shall be entitled to purchase any or all of the
COLLATERAL in any sale in the name or names of the LENDER, or in the name of any
designee or nominee of the LENDER. In connection with any sale or transfer of
any or all of the COLLATERAL, the nominee of the LENDER shall have the right to
execute any document or form, in the name of the LENDER or in the name of the
PLEDGOR, which may be necessary or desirable in order to implement such sale,
including without limitation any forms required pursuant to RULE 144 promulgated
by the Securities And Exchange Commission. The PLEDGOR hereby agrees to
cooperate fully with the LENDER in order to permit the LENDER to sell, at
foreclosure or other private sale, any or all of the COLLATERAL in compliance
with all applicable LAWS.
Section 14. REMEDIES AND RIGHTS CUMULATIVE. The rights and remedies
provided in this PLEDGE AGREEMENT and in the GUARANTY or otherwise provided by
any other agreement between the PLEDGOR and the LENDER shall be cumulative, and
the exercise of any particular right or remedy shall not preclude the exercise
of any other rights or remedies.
Section 15. INVALIDITY OF ANY PART. If any provision or part of any
provision of this PLEDGE AGREEMENT shall for any reason be held invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions or the remaining part of
any effective provisions of this PLEDGE AGREEMENT, and this PLEDGE AGREEMENT
shall be construed as if such invalid, illegal, or unenforceable provision or
part thereof had never been contained herein, but only to the extent of its
invalidity, illegality, or unenforceability.
Section 16. AMENDMENT OR WAIVER. This PLEDGE AGREEMENT may be amended
only by a writing duly executed by the PLEDGOR and by the LENDER. No waiver by
the LENDER of any of the provisions of this PLEDGE AGREEMENT or of any of the
rights or remedies of the LENDER with respect hereto shall be considered
effective or enforceable unless in writing.
Section 17. FEES AND EXPENSES; INDEMNIFICATION. The PLEDGOR shall pay
all fees, expenses, costs and charges, including reasonable attorney's fees,
which may be incurred by the LENDER in connection with enforcing any term or
provision of this PLEDGE AGREEMENT. The PLEDGOR shall indemnify and hold the
LENDER harmless from and against, and reimburse the LENDER with respect to, any
and all loss, damage, liability, cost or expense (including reasonable
attorneys' fees) incurred by the LENDER from time to time which in any manner
relate or pertain to this PLEDGE AGREEMENT and the actions and transactions
contemplated herein. The foregoing indemnification obligation shall include, but
is not limited to, indemnification of the LENDER with respect to all claims
brought against the LENDER based upon allegations that any prospectus,
memorandum or other disclosure document furnished to the purchaser of any of the
COLLATERAL contains any untrue or allegedly untrue statement of a
9
material fact which statement is derived from statements or representations made
by the PLEDGOR.
Section 18. NOTICES. Any notice required or permitted by or in
connection with this AGREEMENT shall be in writing and shall be made by
facsimile (confirmed on the date the facsimile is sent by one of the other
methods of giving notice provided for in this Section) or by hand delivery, by
Federal Express, or other similar overnight delivery service, or by certified
mail, unrestricted delivery, return receipt requested, postage prepaid,
addressed to the LENDER or the PLEDGOR at the appropriate address set forth
below or to such other address as may be hereafter specified by written notice
by the LENDER or the PLEDGOR. Notice shall be considered given as of the date of
the facsimile or the hand delivery, one (1) calendar day after delivery to
Federal Express or similar overnight delivery service, or three (3) calendar
days after the date of mailing, independent of the date of actual delivery or
whether delivery is ever in fact made, as the case may be, provided the giver of
notice can establish the fact that notice was given as provided herein. If
notice is tendered pursuant to the provisions of this Section and is refused by
the intended recipient thereof, the notice, nevertheless, shall be considered to
have been given and shall be effective as of the date herein provided.
If to the LENDER:
THE PROVIDENT BANK
One E. Fourth Street
Cincinnati, Ohio 45202
Attn: Barry Peterson, Vice President
Facsimile: (513) 763-8069
And to:
THE PROVIDENT BANK
1340 Smith Avenue, Suite 200
Baltimore, Maryland 21209
Attn: J. David Kommalan, Vice President
Facsimile: (410) 779-1337
If to the PLEDGOR:
IMTEK OFFICE SOLUTIONS, INC.
8003 Corporate Drive, Suite C
Baltimore, MD 21236
Attn: Brad C. Thompson, Chief Financial Officer
Facsimile: (410) 931-2731
With A Courtesy Copy To:
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P.
7 St. Paul Street, Suite 1000
Baltimore, Maryland 21202-1626
Attn.: Patrick M. Shelley, Esquire
Fax No.: (410) 659-4599
10
The failure of the LENDER to send the above courtesy copy shall not impair the
effectiveness of notice given to the PLEDGOR in the manner provided herein.
Section 19. BINDING EFFECT. This PLEDGE AGREEMENT shall inure to the
benefit of and shall be binding upon the respective heirs, successors and
assigns of the parties hereto.
Section 20. CHOICE OF LAW. The laws of the State of Maryland
(excluding, however, conflict of law principles) shall govern and be applied to
determine all issues relating to this PLEDGE AGREEMENT and the rights and
obligations of the parties hereto, including the validity, construction,
interpretation, and enforceability of this PLEDGE AGREEMENT and its various
provisions and the consequences and legal effect of all transactions and events
which resulted in the execution of this PLEDGE AGREEMENT or which occurred or
were to occur as a direct or indirect result of this PLEDGE AGREEMENT having
been executed.
Section 21. CONSENT TO JURISDICTION; AGREEMENT AS TO VENUE. The PLEDGOR
irrevocably consents to the non-exclusive jurisdiction of the courts of the
State of Maryland and, if a basis for federal jurisdiction exists, of the United
States District Court For The District Of Maryland. The PLEDGOR agrees that
venue shall be proper in any circuit court of the State of Maryland selected by
the LENDER or in the United States District Court For The District Of Maryland
if a basis for federal jurisdiction exists and waives any right to object to the
maintenance of a suit in any of the state or federal courts of the State of
Maryland on the basis of improper venue or of inconvenience of forum.
Section 22. PHOTOCOPIES SUFFICIENT. The PLEDGOR agrees that the LENDER
may record photographic or carbon copies of this PLEDGE AGREEMENT or any
financing statement executed by the PLEDGOR in connection with this transaction,
and that such copies shall be as fully effective and valid as original
documents.
Section 23. NUMBER, GENDER AND CAPTIONS. As used herein, the singular
shall include the plural and the plural may refer to only the singular. The use
of any gender shall be applicable to all genders. The captions contained herein
are for purposes of convenience only and are not a part of this PLEDGE
AGREEMENT.
Section 24. FINAL AGREEMENT. This PLEDGE AGREEMENT contains the final
and entire understanding of the parties relating to the pledge and assignment of
the PLEDGED STOCK and any terms and conditions not set forth in this PLEDGE
AGREEMENT relating to the pledge and assignment of the PLEDGED STOCK are not a
part of this PLEDGE AGREEMENT and the understandings of the parties.
Section 25. ACTIONS AGAINST LENDER. Any action brought by the PLEDGOR
against the LENDER which is based, directly or indirectly, upon this PLEDGE
AGREEMENT or any matter related to this PLEDGE AGREEMENT or any action taken by
the LENDER in enforcing or construing this PLEDGE AGREEMENT shall be brought
only in the courts of the State of Maryland. The PLEDGOR agrees that any forum
other than the State of Maryland is an inconvenient forum and that
11
a suit brought by the PLEDGOR against the LENDER in a court of any state other
than the State of Maryland should be forthwith dismissed or transferred to a
court located in the State of Maryland by that court.
Section 26. WAIVER OF TRIAL BY JURY. The PLEDGOR and the LENDER, by
their execution and acceptance, respectively, of this PLEDGE AGREEMENT, agree
that any suit, action, or proceeding, whether claim or counterclaim, brought or
instituted by any party hereto or any successor or assign of any party on or
with respect to this PLEDGE AGREEMENT or which in any way relates, directly or
indirectly, to this PLEDGE AGREEMENT or any event, transaction, or occurrence
arising out of or in any way connected with this PLEDGE AGREEMENT, or the
dealings of the parties with respect thereto, shall be tried only by a court and
not by a jury. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY SUCH SUIT, ACTION, OR PROCEEDING.
IN WITNESS WHEREOF, the parties have duly executed this PLEDGE
AGREEMENT under seal as of the date first above written.
WITNESS/ATTEST: THE PLEDGOR:
IMTEK OFFICE SOLUTIONS, INC.,
A Delaware Corporation
By: (Seal)
-----------------------------
Robert W. Hoover, President
Date: July ____, 1999
12
ACKNOWLEDGMENT OF ISSUERS
Imtek Acquisition Corporation, Imtek Corporation, and Imtek Services
Corporation (collectively, "CORPORATIONS") each acknowledge this first day of
July, 1999, the receipt of an executed copy of the Stock Pledge Agreement
("AGREEMENT") of even date herewith from Imtek Office Solutions, Inc., a
Delaware corporation ("PLEDGOR"), for the benefit of THE PROVIDENT BANK, an Ohio
chartered banking institution, and agree to evidence such receipt and
acknowledgment upon their stock registries and books and records. Each of the
CORPORATIONS further agrees not to make any payments or to take any actions
which would cause the PLEDGOR to be in violation of the terms of the AGREEMENT,
or which would otherwise not be in compliance with the AGREEMENT.
WITNESS/ATTEST: IMTEK ACQUISITION CORPORATION,
A Maryland Corporation
By: /S/ ROBERT W. HOOVER (SEAL)
-----------------------------------------
Robert W. Hoover, Vice President
Date: July 1, 1999
IMTEK CORPORATION,
A Maryland Corporation
By: /S/ ROBERT W. HOOVER (SEAL)
----------------------------------------
Robert W. Hoover, Vice President
Date: July 1, 1999
IMTEK SERVICES CORPORATION,
A Maryland Corporation
By: /S/ ROBERT W. HOOVER (SEAL)
---------------------------------------
Robert W. Hoover, Vice President
Date: July 1, 1999
13