1
Exhibit 10.2
NONRECOURSE GUARANTY AND PLEDGE AGREEMENT
This NONRECOURSE GUARANTY AND PLEDGE AGREEMENT ("Pledge Agreement") is by
and between ZBIGNIEW MATULANIEC ("Matulaniec") in favor of EDAC TECHNOLOGIES
("EDAC") of Farmington, Connecticut, and GROS-ITE INDUSTRIES, INC. ("Gros-ite"),
of Farmington, Connecticut (EDAC and Gros-ite collectively, "Secured Party").
STATEMENT OF FACTS
A. Gros-ite Engineered Components Division of TOMZ, Inc., TOMZ Corporation,
Gros-ite Industries, Inc. and EDAC Technologies Corporation entered into an
Asset Purchase Agreement ("Purchase Agreement") dated March 29, 2001 pursuant to
which Gros-ite Engineered Components Division of Tomz, Inc. ("Buyer") is
purchasing certain of Secured Party's assets.
B. Matulaniec has agreed to guarantee Buyer's obligations under the
Purchase Agreement pursuant to this Agreement.
In order to secure the payment and performance by the Buyer of its
obligations under the Purchase Agreement and in consideration of the foregoing
premises and the mutual agreements, representations, warranties and covenants
contained herein,
AGREEMENT
1. Nonrecourse Guaranty. Matulaniec hereby guarantees to the Secured Party
as of the date of the Agreement the payment and performance of the obligations
of Buyer under the Purchase Agreement; PROVIDED HOWEVER, THAT MATULANIEC'S
GUARANTY SHALL BE NONRECOURSE TO MATULANIEC AND THE SECURED PARTY'S RIGHTS
AGAINST MATULANIEC SHALL BE SOLELY LIMITED TO THE COLLATERAL PLEDGED PURSUANT TO
THIS AGREEMENT and shall be subject to the terms and conditions of this
Agreement. Matulaniec's guaranty shall terminate upon the termination of this
Agreement as set forth below.
2. Collateral. Matulaniec hereby pledges to the Secured Party the following
publicly traded securities owned by Matulaniec and registered in his or his
nominee's name:
(a) $100,000 Conn. St. G.O. Tax Exempt Bond
(b) 5,000 shs. Cooper Tire & Rubber
(c) 1,370 shs. Dime Bank
(d) 20,000 shs. First Australian
(e) 5,700 shs. Hercules Trust Pfd.
which securities, as of the date hereof, have a value of not less than Four
Hundred Thousand and 00/100 Dollars ($400,000.00) ("Pledged Stock"). The Pledged
Stock is pledged to secure Matulaniec's guaranty set forth in Paragraph 1 above.
Matulaniec agrees to take all actions with
2
respect to the Pledged Stock reasonably necessary to perfect the Secured Party's
security interest in the Pledged Stock.
3. Covenant of Matulaniec. If at any time the aggregate market value of the
Pledge Stock is less than $360,000, Matulaniec shall, within three (3) days of
determination by Secured Party of such shortfall, pledge additional publicly
traded securities to the Pledged Stock to eliminate such shortfall. In the event
that Secured Party exercises its rights hereunder at a time when the Pledge
Stock is less than $400,000 in value, but prior to the time that Matulaniec is
obligated to pledge additional publicly traded securities, Matulaniec personally
agrees to make up the difference between the value of the Pledge Stock and
$400,000.
4. Delivery of Pledge Stock. Concurrent with his execution of this
Agreement, Matulaniec has caused to be delivered to an account established at
Tucker Anthony Incorporated in Hartford, Connecticut in the name of EDAC
Technologies Corporation the Pledge Stock.
5. Covenant of Secured Party. If at any time the aggregate market value of
the Pledge Stock is greater than $440,000, Secured Party shall, within three (3)
days of determination by Matulaniec of such windfall, return such part of the
Pledged Stock to eliminate the windfall.
6. Termination. In the absence of a default as described in the Purchase
Agreement, the escrow shall terminate upon the Escrow Agent's earlier receipt of
notice from Secured Party that the obligations of Buyer under the Purchase
Agreement have been satisfied, which notice shall be promptly given to the
Escrow Agent by Secured Party upon such satisfaction of the obligations of Buyer
under the Purchase Agreement.
7. Representations. Matulaniec warrants and represents that he is the
beneficial owner of each share of the Pledged Stock and has the right to pledge,
grant a security interest in or otherwise transfer the Pledged Stock.
8. Responsibility of Secured Party. Matulaniec hereby acknowledges and
agrees that:
(a) Preservation of Collateral. The Secured Party shall have no duty
as to the preservation or protection of the Pledged Stock nor any
duty to preserve any of the rights pertaining to the Pledged
Stock.
(b) Changes Effecting the Collateral. Matulaniec has made
arrangements to keep informed of changes or potential changes of
the circumstances that affect or may affect the Pledged Stock and
the Secured Party shall have no responsibility or liability for
informing the Matulaniec of any such changes or potential changes
or for taking any action or omitting to take any action with
respect to the changes or potential changes.
9. Default. An event of default ("Event of Default") shall be deemed to
have occurred under the Purchase Agreement in the event Buyer shall fail to make
any payment due thereunder and, following sixty (60) days written notice thereof
by Secured Party to Buyer, TOMZ Corporation and Matulaniec, Buyer and/or TOMZ
Corporation shall fail to cure said default.
-2-
3
10. Secured Party's Rights and Remedies. Upon the occurrence of an Event of
Default, Secured Party shall have the following rights and remedies:
(a) Register the Pledged Stock. The Secured Party may transfer or
register the Pledged Stock or any part thereof into its or its
nominee's name with or without any indication the Pledged Stock
is the subject matter of the security interest granted by this
Pledge Agreement.
(b) Exercise of Rights. The Secured Party may exercise all rights
with respect to the Pledged Stock as if it were the absolute
owner thereof.
(c) Cash Dividends. The Secured Party may require that all cash
dividends payable with respect to any part of the Pledged Stock
to be paid to the Secured Party.
(d) Sale of Collateral. After an Event of Default, and provided that
the notice has been given to Buyer, TOMZ Corporation and
Matulaniec, the Secured Party may sell the Pledged Stock, and any
additions or substitutions therefore, or any part thereof, at
public or private sale, in one or more sales or lots, for cash or
on credit or for future delivery, without the assumption of any
credit risk, and for such price or prices as the Secured Party
may determine. Unless the Pledged Stock threatens to decline
speedily in value, the Secured Party will give Matulaniec
reasonable notice of the time and place of any public sale
thereof, or of the time at which any private sale or other
intended disposition is to be made. Any sale of the Pledged Stock
conducted in conformity with reasonable commercial practices of
banks, insurance companies or other financial institutions
disposing of property similar to the Pledged Stock shall be
deemed to be commercially reasonable. Written notice of the
intended sale or disposition of the Pledged Stock shall be mailed
to Matulaniec at least ten (10) days prior to the time of such
sale or disposition. Any other requirement of notice, demand or
advertisement for sale is, to the extent permitted by law,
waived. Unless prohibited by applicable law, the Secured Party
may bid for and purchase all or any part of the Pledged Stock.
The Secured Party shall have the right to execute any document or
form, in its name or the name of Matulaniec, which may be
necessary or desirable in connection with such sale or
disposition.
(e) Commercial Code Remedies. The Secured Party may exercise any one
or more of the rights and remedies given a secured party under
the Uniform Commercial Code as enacted in the State of
Connecticut.
11. Matulaniec's Rights and Remedies. Matulaniec shall have the right at
any time and from time to time during the term of this Agreement to substitute
cash in the amount of Four Hundred Thousand Dollars ($400,000) for the Pledged
Stock. Upon delivery of such cash to Secured Party, Secured Party shall
immediately take all steps necessary to have the Pledged Stock immediately
delivered to Matulaniec.
-3-
4
12. Termination. Upon complete payment of all obligations of Buyer under
the Purchase Agreement, this Nonrecourse Guaranty and Pledge Agreement shall
terminate and the Secured Party shall, without recourse, representation or
warranty, transfer and deliver to Matulaniec the Pledged Stock.
13. Entire Agreement. This Pledge Agreement contains the entire
understanding of the parties. There are no oral understandings, terms or
conditions, and no party has relied upon any representation, express or implied,
not contained in this Pledge Agreement.
14. Amendments. This Agreement may not be amended in any respect whatsoever
except by a further agreement, in writing, fully executed by each of the
parties.
15. Successors. This Pledge Agreement shall be binding upon and inure to
the benefit of the parties and to their respective heirs, executors, legal and
personal representatives, successors and assigns.
16. Joint Effort. Preparation of this Pledge Agreement has been a joint
effort of the parties, and the resulting document shall not be construed more
severely against one of the parties than the other.
17. Captions. The captions of this Pledge Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision contained in this
Agreement.
18. Notices. All written communications to parties required hereunder shall
be in writing and (i) delivered in person, (ii) mailed by registered or
certified mail, return receipt requested, (such mailed notice to be effective
four days after the date it is mailed) or (iii) sent by facsimile transmission,
with confirmation sent by way of one of the above methods, to the party at the
address given below for such party (or to such other address as such party shall
designate in a writing complying with this Section, delivered to the other
parties):
If to a Secured Party, addressed to:
EDAC Technologies Corporation
1806 New Britain Avenue
Farmington, CT 06032-3114
Attention: Chief Executive Officer
-4-
5
With a copy to:
Reinhart Boerner Van Deuren Norris & Rieselbach, S.C.
1000 North Water Street
P.O. Box 514000
Milwaukee, Wisconsin 53203-3400
Attention: Daniel J. Brink, Esquire
Telephone: (414) 298-1000
Telecopier: (414) 298-8097
If to Buyer, TOMZ Corporation or Matulaniec, addressed to:
TOMZ Corporation
47 Episcopal Road
Berlin, Connecticut 06037-1522
Attention: Zbigniew Matulaniec
With a copy to:
Eisenberg, Anderson, Michalik & Lynch LLP
136 West Main Street
P.O. Box 2950
New Britain, Connecticut 06050-2950
Attention: Stephen J. Anderson, Esq.
Telephone: (860) 229-4855
Telecopier: (860) 223-4026
19. Applicable Law. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CONNECTICUT.
Dated this 29th day of March, 2001 MATULANIEC:
/s/ Zbigniew Matulaniec
------------------------------
Zbigniew Matulaniec
Dated this 29th day of March, 2001 SECURED PARTY: EDAC:
EDAC Technologies Corp.
By: /s/ Ricahrd Dandurand
------------------------------
Richard Dandurand
Its President
-5-
6
Dated this 29th day of March, 2001 SECURED PARTY: GROS-ITE:
Gros-Ite Industries, Inc.
By: /s/ Richard Dandurand
------------------------------
Richard Dandurand
Its President
-6-