Exhibit 10.81
C.P. CLARE CORPORATION
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of March 1, 1999 by and between C.P. CLARE
CORPORATION, a Massachusetts corporation having its principal place of business
and chief executive offices at 78 Cherry Hill Drive, Beverly, Massachusetts
01915-1048 (the "Pledgor"), and BANKBOSTON, N.A., a national banking association
with its head office at 100 Federal Street, Boston, Massachusetts 02110 ("the
Pledgee").
WHEREAS, Pledgor is the owner of 100% of the issued and outstanding
shares of Stock (as hereinafter defined) of each of the entities listed on
Exhibit A (individually, a "Subsidiary" and collectively, the "Subsidiaries");
and
WHEREAS, in order to induce the Pledgee to make loans and other
extensions of credit under a certain Loan Agreement dated March 1, 1999 by and
between the Pledgee, as lender, and the Pledgor, as borrower (as the same may be
amended from time to time, the "Loan Agreement"), and in consideration thereof,
the Pledgor wishes to pledge all of the Stock to the Pledgee on the terms and
conditions described herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following terms shall have the meanings set forth
below. Terms not otherwise defined herein shall have the meanings ascribed to
them in the Loan Agreement or under the Massachusetts Uniform Commercial Code.
1.1 "AGREEMENTS" means the Loan Agreement, the Credit Note, [the
Guaranties] and any documents, instruments or agreements referred to herein or
therein.
1.2 "COLLATERAL" means the Pledged Stock and all proceeds
thereof, dividends, distributions and other income relating thereto (except for
Restricted Payments expressly permitted to be made pursuant to Section 5.10 of
the Loan Agreement) and all other securities financial assets, investment
property and monies owned by the Pledgor and relating to the Pledged Stock
received and held by the Pledgee hereunder or in substitution for any of the
foregoing.
1.3 "DEFAULT" means any Event of Default as defined in the Loan
Agreement.
1.4 "DOMESTIC CORPORATION" means any Subsidiary incorporated
under the laws of the United States or any State or Territory thereof.
1.5 "FOREIGN CORPORATION" means any Subsidiary that is not a
Domestic Corporation.
1.6 "OBLIGATIONS" shall have the meaning ascribed to such term in
the Loan Agreement.
1.7 "PLEDGED STOCK" means all Stock at any time pledged or
required to be pledged hereunder.
1.8 "STOCK" means (a) with respect to Domestic Corporation, all
of the issued and outstanding capital stock of such Domestic Corporation at any
time owned by the Pledgor and (b) with respect to any Foreign Corporation, all
of the issued and outstanding capital stock of such Foreign Corporation at any
time owned by the Pledgor, PROVIDED THAT, the Pledgor shall not be required to
pledge hereunder stock representing more than 65% of the total combined voting
power of all classes of capital stock of any Foreign Corporation entitled to
vote.
2. PLEDGE; DELIVERY.
2.1 As security for the prompt and unconditional payment and
performance of the Obligations, the Pledgor hereby pledges, assigns and
transfers to the Pledgee and grants the Pledgee a security interest in the Stock
owned by the Pledgor on the date hereof as described in EXHIBIT A attached
hereto and in the Collateral, whether now owned or hereafter acquired. In
furtherance thereof, the Pledgor hereby delivers to the Pledgee certificates for
said Stock accompanied by stock powers duly executed in blank by the Pledgor and
hereby assigns, transfers and sets over to the Pledgee all of the Pledgor's
right, title and interest in and to such certificates to be held by the Pledgee
upon the terms and conditions set forth in this Pledge Agreement. If the Pledgor
shall acquire by purchase, stock dividend or otherwise any additional shares in
the capital stock of a Subsidiary at any time or from time to time after the
date hereof, the Pledgor will forthwith pledge and deposit the same with the
Pledgee hereunder and deliver to the Pledgee certificates therefor, accompanied
by stock powers duly executed in blank by the Pledgor. The Pledgor shall not be
required at any time to pledge hereunder any Stock which represents more than
65% of the total combined voting power of all classes of capital stock of any
Foreign Corporation entitled to vote.
2.2 The Pledgee may, in its sole discretion and at any time or
times, after the occurrence and during the continuance of a Default, cause the
Pledged Stock and any other securities constituting Collateral to be transferred
into its own name or the name or names of its nominee or nominees or successor
in interest on the books of the issuer of such securities, and the Pledgor
hereby constitutes and appoints the Pledgee, its employees, agents, successors
and assigns to be the attorney-in-fact of the Pledgor to effect any such
transfer.
-2-
2.3 The Pledgee may, in its sole discretion and at any time or
times (whether or not a Default shall have occurred), collect, receive and hold
as additional Collateral all dividends, distributions and other income on the
Pledged Stock and the other Collateral, except for Restricted Payments expressly
permitted to be made pursuant to Section 5.10 of the Loan Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. The Pledgor
represents and warrants to the Pledgee as follows:
3.1 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 in Section 2, and to carry out the transactions
contemplated by this Agreement.
3.2 The Pledgor is the legal and beneficial owner of all of the
Pledged Stock.
3.3 EXHIBIT A attached hereto accurately sets forth as to each
Foreign Corporation (i) the total number of shares of each class of stock of
such Foreign Corporation issued and outstanding and (ii) the total number of
shares of each such class of stock that have been pledged hereunder. With
respect to each Foreign Corporation, the Borrower has pledged stock representing
65% of the total combined voting power of all classes of capital stock of such
Foreign Corporation entitled to vote.
3.4 All of the shares of the Stock 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 that granted
hereunder.
3.5 Upon delivery of the Pledged Stock to the Pledgee or its
agent, this Pledge Agreement shall create a valid first lien upon and perfected
security interest in the Pledged Stock and the proceeds thereof, subject to no
prior security interest, lien, charge or encumbrance, or to any agreement
purporting to grant to any third party a security interest in the property or
assets of the Pledgor which would include the Pledged Stock.
4. VOTING. Unless an Event of Default shall have occurred and be
continuing, the Pledgor shall be entitled to vote any and all shares of the
Pledged Stock and to give consents, waivers or ratifications in respect thereof,
PROVIDED THAT no vote shall be cast or consent, waiver or ratification given or
action taken which would violate or be inconsistent with any of the terms of
this Pledge Agreement or the other Agreements or which would have the effect of
impairing the position or interests of the Pledgee. Upon the occurrence and
during the continuance of an Event of Default, the Pledgee shall have the right
to vote, and to give consents, waivers and ratifications with respect to, the
Pledged Stock, PROVIDED THAT if the Pledgee elects not to exercise such rights
at any time, the Pledgor may continue to exercise such rights, PROVIDED THAT the
Pledgor shall not take
-3-
any vote or other action with respect to such Pledged Stock that would have an
adverse effect on the Pledgee.
5. REMEDIES UPON DEFAULT.
5.1 In case a Default shall have occurred and be continuing, the
Pledgee shall be entitled to exercise all of its rights, powers and remedies
(whether vested in it by this Pledge Agreement, the other Agreements or by law)
for the protection and enforcement of its rights in respect of the Collateral,
and the Pledgee shall be entitled, without limitation, to exercise the following
rights (in addition to the rights and remedies of a secured party under the
Uniform Commercial Code of Massachusetts) which Pledgor hereby agrees shall be
commercially reasonable:
(a) to vote all or any part of the Pledged Stock (whether or
not transferred into the name of the Pledgee) and give all consents, waivers and
ratifications in respect of the Collateral and otherwise act with respect
thereto as though it were the outright owner thereof (the Pledgor hereby
irrevocably constituting and appointing the Pledgee, its employees, agents,
successors and assigns the proxy and attorney-in-fact of Pledgor, with full
power of substitution to do so); and
(b) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale without demand of performance,
advertisement or notice of intention to sell or of the time or place of sale or
adjournment thereof or to redeem or otherwise, all of which are hereby waived by
the Pledgor, for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or prices and
on such terms as the Pledgee in its absolute discretion may determine, PROVIDED
THAT at least ten (10) days prior notice of the time and place of any such sale
shall be given to Pledgor.
5.2 If any of the Collateral is sold by the Pledgee upon credit
or for future delivery, the Pledgee shall not be liable for the failure of the
purchaser to pay for the same and in such event the Pledgee may resell such
Collateral. The Pledgee may buy any part or all of the Collateral at any public
sale and if any part or all of the Collateral is of a type customarily sold in a
recognized market or is of the type which is the subject of widely-distributed
standard price quotations, the Pledgee may buy at a private sale and may make
payment therefor by any means including, without limitation, cancellation of
indebtedness secured thereby.
5.3 The Pledgor recognizes that the Pledgee may be unable to
effect a public sale of the Pledged Stock by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, or in other applicable
laws, regulations, or agreements to which such Stock may be subject but may be
compelled to resort to one or more private sales thereof to a restricted group
of purchasers. The Pledgor agrees that any such private sales may be at prices
and other terms less favorable to the seller than if
-4-
sold at public sales and that such private sales shall be deemed to have been
made in a "commercially reasonable" manner within the meaning of Section
9-504(3) of the Uniform Commercial Code of the Commonwealth of Massachusetts,
PROVIDED THAT the notice specified in Section 5.1 shall have been given to the
Pledgor. The Pledgee shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the issuer of such
securities to register such securities for public sale under the Securities Act
of 1933, as amended, even if the issuer would agree to do so.
5.4 At any sale of Collateral, unless prohibited by applicable
law, the Pledgee or any holder of the Obligations may bid for and purchase all
or any part of the Collateral so sold free from any such right or equity of
redemption.
6. REMEDIES CUMULATIVE. Each right, power and remedy of the Pledgee
or any holder of the Obligations provided for in this Pledge Agreement, the
other Agreements or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other such
right, power or remedy. The exercise or beginning of the exercise by the Pledgee
or any holder of the Obligations of any one or more of such rights, powers or
remedies shall not preclude the simultaneous or later exercise by the Pledgee or
any holder of the Obligations of all such other rights, powers or remedies (or
the later exercise of the same right, power or remedy), and no failure or delay
on the part of the Pledgee or any holder of the Obligations to exercise any such
right, power or remedy shall operate as a waiver thereof.
7. APPLICATION OF MONEYS BY THE PLEDGEE. All moneys collected upon
any sale of the Collateral hereunder, together with all other moneys received by
the Pledgee hereunder, shall be applied as follows: (i) first, to the payment of
all reasonable costs and expenses incurred by the Pledgee in connection with
such sale, the delivery of the Collateral or the collection of any such moneys
(including, without limitation, attorneys' fees and expenses reasonably
incurred); (ii) second, to satisfy the Obligations; and (iii) third, to the
Pledgor to the extent of any surplus proceeds.
8. TRANSFER BY THE PLEDGOR. The Pledgor will not sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge (except
pursuant to this Pledge Agreement or as otherwise permitted by the Agreements)
or otherwise encumber any of the Collateral, any shares in the capital stock of
any Subsidiary, or any interest therein. The Pledgor will not consent to or
approve the issuance of (i) any additional shares of any class of capital stock
of any Subsidiary; (ii) any securities convertible voluntarily by the holder
thereof or automatically upon the occurrence or nonoccurrence of any event or
condition into, or exchangeable for, any such shares; or (iii) any warrants,
options, rights, or other commitments entitling any person to purchase or
otherwise acquire any such shares.
9. THE PLEDGOR'S OBLIGATIONS ABSOLUTE. The Obligations of the Pledgor
under this Pledge Agreement shall be absolute and unconditional and shall remain
in full force and effect without regard to, and shall not be released,
suspended, discharged,
-5-
terminated or otherwise affected by any circumstance or occurrence whatsoever,
including, without limitation: (a) any renewal, extension, amendment or
modification of or addition or supplement to or deletion from the other
Agreements, or any assignment or transfer of the other Agreements; (b) any
waiver, consent, extension, indulgence or other action or inaction under or in
respect of the Agreements; (c) any furnishing of any additional security to the
Pledgee or its assignee or any acceptance thereof or any release of any security
by the Pledgee or its assignee; (d) any limitation on any party's liability or
obligations under the Agreements or any invalidity or unenforceablity, in whole
or in part, of the same; or (e) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to the Pledgor, or any Subsidiary or any action taken with respect to
this Pledge Agreement by any trustee or receiver or by any court, in any such
proceeding; whether or not the Pledgor shall have notice or knowledge of any of
the foregoing.
10. FURTHER ASSURANCES. The Pledgor at its expense will execute,
acknowledge and deliver all such instruments and take all such action as the
Pledgee from time to time may reasonably request in order to further effectuate
the purposes of this Pledge Agreement and to carry out the terms hereof.
11. THE PLEDGEE'S EXONERATION. Under no circumstances shall the
Pledgee be deemed to assume any responsibility for or obligation or duty with
respect to any part or all of the Collateral of any nature or kind, or any
matter or proceedings arising out of or relating thereto, but the same shall be
at the Pledgor's sole risk at all times. The Pledgee shall not be required to
take any action of any kind to collect, preserve or protect its or the Pledgor's
rights in the Collateral or against other parties thereto. The Pledgee's prior
recourse to any part or all of the Collateral shall not constitute a condition
of any demand, suit or proceeding for payment or collection of the Obligations.
12. NO WAIVER, ETC. The Pledgee may exercise its rights with respect
to the Collateral without resorting or regard to other collateral or sources of
reimbursement. The Pledgee shall not be deemed to have waived any of its rights
upon or under the Obligations or the Collateral unless such waiver be in writing
and signed by the Pledgee. No delay or omission on the part of the Pledgee in
exercising any right under this Pledge Agreement shall operate as a waiver of
such right or any other right. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right on any future occasion. All rights
and remedies of the Pledgee on the Obligations or the Collateral, whether
evidenced hereby or by any other instrument or papers, shall be cumulative and
may be exercised separately or concurrently.
13. TERMINATION. Unless sooner terminated in accordance with Section
5.28 of the Loan Agreement, when all Obligations have been paid, performed and
determined by the Pledgee to have been indefeasibly discharged in full, and if
at such time the Pledgee is not committed to extend any credit to the Pledgor
under the Loan Agreement or any other Loan Document, this Pledge Agreement shall
terminate and the Pledgee, at the expense of the Pledgor, will duly assign,
transfer and deliver to the Pledgor, or its successors or
-6-
assigns, as the case may be, such of the Collateral as has not theretofore been
sold or otherwise applied or released pursuant to this Pledge Agreement.
14. MISCELLANEOUS.
14.1 SUCCESSORS AND ASSIGNS. This Pledge Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
successors and assigns whether or not an express assignment of rights hereunder
is made. No other person shall acquire or have any right under or by virtue of
this Pledge Agreement.
14.2 PROVISIONS TO SURVIVE. All representations, warranties,
covenants and agreements contained in this Pledge Agreement shall survive the
execution and delivery of the Agreements and shall continue until payment in
full of all Obligations.
14.3 SEVERABILITY. If any provision of this Pledge Agreement shall
be held invalid or unenforceable by any court of competent jurisdiction, that
holding shall not invalidate or render unenforceable any other provision hereof.
14.4 AMENDMENTS. This Pledge Agreement may be amended, modified
and supplemented only by written agreement of the parties hereto.
14.5 EXECUTION AND COUNTERPARTS. This Pledge Agreement may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute one and the same instrument.
14.6 CAPTIONS. Captions and headings in this Pledge Agreement are
for convenience only and in no way define, limit or describe the scope or intent
of the provisions hereof.
14.7 NOTICES. All notices, certificates or other communications
hereunder shall be in writing and shall be sufficiently given and shall be
deemed given when hand delivered or mailed by registered or certified mail,
postage prepaid, addressed to a party at its address set forth at the beginning
of this Pledge Agreement or to such other address as a party shall furnish by
notice to the other parties.
14.8 GOVERNING LAW. This Pledge Agreement shall be governed by,
and construed in accordance with, the laws of the Commonwealth of Massachusetts
without regard to principles of conflicts of laws.
-7-
IN WITNESS WHEREOF, the parties have caused this Pledge Agreement to be
duly executed and sealed by their duly authorized officers or representatives,
all as of the date first above written.
C.P. CLARE CORPORATION
By:
--------------------------------
Name: Harry Andersen
Title: Senior Vice President and
Chief Financial Officer
BANKBOSTON, N.A.
By:
--------------------------------
Name: Peter McCarthy
Title: Vice President
-8-
EXHIBIT A TO
PLEDGE AGREEMENT
OF
C.P. CLARE CORPORATION
Name/address Jurisdiction No. of Shares No. of Shares
of Subsidiary of Incorporation Class of Stock Outstanding Pledged
------------- ---------------- -------------- ----------- -------
-9-