EXHIBIT 10.2
Number_119___of the Roll of Deeds for 1999
[LOGO]
Transacted in Frankfurt am Main
on June, 24th,1999
Before me, the undersigned
Notary
DIETER HEITBAUM
with business residence in Frankfurt am Main
appeared today
1. Rechtsanwalt Ralph Hummel,
having his office at Wiesenau 1, 60323 Frankfurt am Main, Federal
Republic of Germany, personally known to the notary, not acting in his
own name and behalf, but, excluding any personal liability, according
to powers of attorney presented, in the name and on behalf of
a) BMC Industries, Inc,
One Meridian Crossings,
Suite 850, Minneapolis MN 55423
hereinafter called the "Pledgor"
b) Buckbee-Mears Europe
Gesellschaft mit beschrankter Haftung
Renkenrunsstra(beta)e 24-26
Industriegebiet West
79379 Mullheim
hereinafter called the "Company"
2. Rechtsanwalt Guido Zoller
Fasanenweg 18 A, 56235 Ransbach-Baumbach
identified by passport No. 2117132650 (Ransbach-Baumbach)
not acting in his own name but in his capacity as Vice-President of
Bankers Trust Company
One Bankers Trust Plaza, 14th Floor
130 Liberty Street
New York, New York 10006
USA
acting as Collateral Agent for the Bank Creditors as listed unter
a) - h) below
hereinafter called the "Agent"
and acting on behalf of:
a) Wachovia Bank N.A., 191 Peachtree Street, NE,
MC 370-28th Fl., Atlanta, GA 30303
b) Norwest Bank Minnesota, Norwest Center,
6th & Marquette-MS 0085, Minneapolis, MN 55479
c) First National Bank of Chicago, Mail Suite ILI 0088
One First National Plaza Chicago, IL 60670
d) Credit Agricole Indosuez, 55 East Monroe Street,
Ste. 4700, Chicago, IL 60601
e) Bankers Trust Company
14th Floor, 130 Liberty Street, New York, NY 10006
f) Harris Bank & Trust, 111 W. Monroe Street, Chicago, IL 60690
g) Union Bank of California, 350 California Street, 6th Floor
San Francisco, CA 94104
h) U.S. Bank National Association, 601 Second Avenue South,
6th Floor, Minneapolis, MN 55402
hereinafter called the "Pledgees"
The persons appearing stated that the parties represented by them have requested
that this instrument be recorded in the English language. As the Notary and the
persons appearing have command of the English language, this recording is done
in English.
The Notary asked the persons appearing whether they, or any member of their
respective firms had acted in the matter which is the subject of this
instrument, except in a notarial capacity. The persons appearing replied in the
negative.
The persons appeared asked the notary to record the following
SHARE PLEDGE AGREEMENT
(Verpfandungsvereinbarung uber GmbH-Geschaftsanteile)
1. Pledgor is the legal and beneficiary owner of all shares of
Buckbee-Mears Europe Gesellschaft mit beschrankter Haftung, a company
with limited liability organized and existing under laws of the Federal
Republic of Germany and registered at the Commercial Register of the
Lower Court in Freiburg im Breisgau under number HRB 60Mu with a
registered share capital of DM 6,100,000.-- (the "Company") which
comprises of:
1 share of DM 2.000.000
1 share of DM 1.500.000
1 share of DM 1.000.000
1 share of DM 980.000
1 share of DM 600.000
1 share of DM 19.000
1 share of DM 1.000
All of the share capital has been fully paid; an obligation for
additional contribution to the share capital does not exist ("keine
Nachschu(beta)pflicht"). None of the shares is certificated.
2.1 Pledgor has entered into a written Pledge Agreement on June 25, 1998,
which is governed by the laws of the State of New York, U.S.A. with the
Agent as Collateral Agent for the Pledgees and the Agent as lenders
under a Credit Agreement dated as of June 25, 1998, under which the
Pledgor besides other collateral such as the pledge of shares in other
non-German subsidiaries is required to pledge 65% of the issued and
outstanding shares in the Company. To comply with the formal
requirements of valid share pledges under Section 15 GmbHG (German law
on limited liability companies) the parties have decided to enter into
this notarial Share Pledge Agreement.
2.2 Agent has been appointed to act as Agent hereunder by Pledgees pursuant
to the Credit Agreement. All actions, whether corporate or other,
options, rights, notices or other acts or things to be taken,
exercised, given or done by the Pledgees hereunder shall exclusively be
taken, exercised, given or done by the Agent as representative on
behalf of each Pledgee and the Pledgor shall direct all actions,
declarations, exercises of rights, notices or other acts or things to
be taken solely to the Agent.
3. Pledgor hereby pledges ("verpfandet") to Pledgees 65% of its shares in
the entire capital stock of the Company in the total amount of DM
3,965,000 constituting 65% of the issued and outstanding capital stock
of the Company which 65% shall comprise off:
_ 1 share of DM 2.000.000;
_ 1 share of DM 1.000.000 and
_ 1 split share of DM 965.000 (out of the share of DM 980.000
described under 2. above)
as well as 65% of all shares in the Company which the Pledgor may
acquire or create in the future in the event of any increase of the
statutary share capital of the Company or otherwise.
3.1 The Pledge shall secure Pledgor's current and future obligations
arising from the above mentioned Credit Agreement and other Loan
Documents and any Interest Rate Protection and Other Hedging Agreement
with the Pledgees (collectively, the "Secured Debt Agreements"),
whether now in existence or hereafter arising as amended and restated
and all further defined in the Pledge Agreement dated June 25, 1998 in
its Section 1 and therein collectively called the Secured Obligations.
The parties to this Agreement understand that, if the Pledges created
hereunder lapse during the time the Secured Debt Agreements are in
effect because all Secured Obligations have been repaid in full, the
Pledges will again be created if due to another drawdown or request for
extension of credit by the Pledgor under the Secured Debt Agreement
again Secured Obligations are created.
Upon the assignment of any of the Secured Obligations or any part
thereof by any of the Pledgees, the respective assignee will, by
operation of law, obtain a pledge (Pfandrecht) over the Shares or
become a joint holder of a pledge over the Shares. So long as any
rights or obligations hereunder do not pass to the assignee by
operation of law, each Pledgee may, to the extent possible under German
law, upon assignment of any of the Secured Obligations or any portion
thereof, assign or otherwise transfer all or any portion of its rights
or obligations hereunder in accordance with the provisions in this
regard set out in the Credit Agreement but not otherwise.
3.2 Unless an Event of Default as defined in the Secured Debt Agreements
shall have occurred and be continuing and the Pledgees have not
exercised enforcement rights under Section 5. hereof all cash dividends
and distributions payable in respect of the Pledged Shares shall be
paid to the Pledgor which owns such Pledged Shares, PROVIDED, that all
cash dividends payable in respect of the Pledged Shares that represent
in whole or in part an extraordinary, liquidating or other distribution
in return of capital shall be paid, to the extent representing an
extraordinary, liquidating or other distribution in return of capital,
to the Pledgees and retained by them as part of the collateral.
4. As long as no Event of Default as defined in the Secured Debt
Agreements shall have occurred and be continuing and the Pledgees have
not exercised enforcement rights provided for in Section 5 hereof, the
Pledgor shall be entitled to exercise all voting rights attached to the
Shares for any purpose not inconsistent with the terms of this
Agreement or the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default,
the Pledgees shall, notwithstanding any other rights or remedies that
they may have, be entitled to exercise, after giving the Pledgor at
least five days prior written notice, all of the voting rights
thereafter; and the Pledgor hereby irrevocably grants a power of
attorney to the Agent on behalf of the Pledgees (and their successors)
to vote the Shares at any shareholders' meeting thereafter and to
exercise any other voting rights the Pledgors may have with respect to
the Shares. Upon receipt of such notification, the Pledgor shall no
longer be permitted to exercise any of the voting rights. The right of
the Pledgees to exercise such voting rights shall be for the duration
of this Agreement only and shall lapse upon the curing of the Event of
Default and in any case upon complete satisfaction of the Secured
Obligations.
5. The Pledgees may, at any time after any Event of Default, as defined in
the Secured Debt Agreements, has occurred and is continuing, avail
themselves of all rights and remedies that a Pledgee has upon default
of a Pledgor under the law of the Federal Republic of Germany. Unless
otherwise provided herein, Section 1273 et seq. of the German Civil
Code (BGB) shall apply. Notwithstanding anything herein to the
contrary, such rights and remedies shall be exercised solely by the
Agent acting on behalf of the Pledgees in accordance with the terms of
the Credit Agreement. The Pledgees shall be entitled to have the
Pledged Shares sold at public auction, provided that the Pledgees have
requested in writing to fulfill the Secured Obligations within a period
of 15 days and further provided that the Pledgor does not satisfy these
Secured Obligations within the time limit set.
6. Pledgor hereby represents and warrants that its shares as well as any
further rights and claims resulting from its participation in the
Company are neither assigned nor pledged or encumbered with any other
rights of third parties in priority to those of the Pledgees.
7. Shareholders Resolution
The Pledgor, being the only shareholder of the Company, waiving all
forms and requirements of the calling and holding of a shareholders'
meeting, hereby holds a shareholders' meeting and resolves unanimously
as follows:
(1) The split-up of the share in the amount of DM 980.000 into one
split share in the amount of DM 965.000 which is subject to
the Pledge under the Share Pledge Agreement and the
transactions contemplated hereby, and one remaining split
share in the amount of DM 15.000 is, for the purposes of this
Agreement and the transactions contemplated hereby, herewith
resolved. It is further resolved that, for the pledges of
future shares under this Agreement, any additional share
capital of the Company, in whatever nominal value, which the
Pledgor may acquire or create in the future in the event of
any increase of the stated capital of the Company or
otherwise, shall be split into one split share in the nominal
value equal to 65% of the nominal value of any additional
share capital (such split share being a future share
hereunder) and one remaining split share in a nominal amount
equal to 35% of such additional share capital;
provided, that if due to the German law provisions on the
nominal amount of shares, a split share equaling 65% of any
additional share capital may not be formed, this split share
shall be deemed to have such a nominal amount permissible,
under German law, which is lower than, but comes as close as
possible to, 65% of the additional share capital, and provided
further, that a split share equaling less 65% of any
additional share capital may not be formed, the split share
shall be deemed to have such nominal amount permissible under
German law which is higher than, but comes as close as
possible to, 65% of the additional share capital. The same
procedure shall apply upon the upcoming conversion of the
Company's share capital in the European Currency Euro.
(2) The management of the Company is hereby instructed to grant
the consent to the Pledges and each of the share splits under
Section 7 (1) above according to Section 17 subsection 1 of
the German Law on Limited Liability Companies (GmbHG) on
behalf of the Company.
8. The approval to the Pledge of the pledged shares under the Agreement
which under Section 8 of the articles of association of the Company
requires the Company's approval is hereby granted by the Company.
Furthermore, the approval to the share-splits resolved under Section 7
above is approved.
9. The fees for this notarial deed and its execution shall be borne by
Pledgor.
10. If a provision of this Agreement is or becomes invalid, the validity of
the remaining provisions shall remain unaffected thereby; the parties
undertake to replace the invalid provision by a valid provision which
comes as near as possible to the economic purpose of the invalid
provision.
11. This Agreement shall be governed by German law.
The persons appearing instructed the Notary to notify the Company of the
execution of this instrument pursuant to Section 16 GmbH AcT (GmbHG) and
Section 1280 German Civil Code (BGB) by delivery of a certified copy of this
instrument.
The Notary advised the persons appearing
(1) that a first priority pledge interest will not be created unless the
Pledgor is the lawful owner of the shares and has not previously
disposed of or encumbered such shares, and that there is no bona fide
acquisition of shares or pledge of shares under German law;
(2) that a pledge interest will not be created unless the Pledgee is
creditor of the Secured Obligations and unless and as long as the
Secured Obligations by this Pledge legally exist;
(3) that the parties hereto will be liable as joint and several debtors for
all notarial fees and taxes, if any, by operation of law, irrespective
of whatever internal agreement has been made in that respect.
The persons appearing stated that the value of the shares of the Company is
DM 3.965.000.
This instrument was read to the persons appearing, approved by them and
personally signed by them and the notary as follows:
/s/ Ralph Hummell
/s/ Guido Zoller
Notarized by: /s/ Dieter Heitbaum