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EXHIBIT 10.26
GENENCOR INTERNATIONAL, INC.
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is made and entered into as of ______________,
2000 by ____________________ (the "Pledgor"), in favor of Genencor
International, Inc. (the "Secured Party").
RECITALS
A. The Pledgor and the Secured Party have entered into that certain
Genencor International, Inc. Secured Promissory Note, dated as of
______________, 2000 (as amended, modified and supplemented to date, the
"Promissory Note"). All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed to them in the Promissory Note.
B. The Pledgor is the owner of ___________ shares of common stock (the
"Pledged Stock") of the Secured Party.
C. As a condition to advancing funds to the Pledgor under the Promissory
Note, the Secured Party has required that the Pledgor grant to the Secured Party
a security interest in the Pledged Stock as security for the obligations of the
Pledgor under the Promissory Note and any documents executed in connection
therewith (collectively, the "Loan Documents").
AGREEMENT
NOW, THEREFORE, in consideration of the premises and in order to
induce the Secured Party to advance funds to the Pledgor, the Pledgor hereby
agrees with the Secured Party and grants as follows:
1. PLEDGE. The Pledgor hereby pledges and grants to the Secured
Party a security interest in the following collateral (the "Pledged
Collateral"):
(a) the Pledged Stock and the certificates representing
the Pledged Stock, and all dividends, cash, instruments, chattel paper
and other rights, property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
or all of the Pledged Stock; and
(b) all proceeds of the foregoing.
2. SECURITY FOR PERFORMANCE. This Pledge Agreement (and all of
the Pledged Collateral) secures the payment of the principal of and the interest
on the advances made under the Promissory Note and the performance of the
Pledgor's obligations pursuant to this Agreement and the other Loan Documents
(the "Obligations").
3. DELIVERY OF PLEDGED COLLATERAL. All certificates or
instruments representing or evidencing the Pledged Collateral shall be delivered
to and held by the Secured Party pursuant
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hereto and shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Secured
Party. The Secured Party shall have the right, at any time in its discretion and
without notice to Pledgor following the occurrence of an Event of Default, to
transfer to or to register in the name of the Secured Party or any of its
nominees any or all of the Pledged Collateral. In addition, the Secured Party
shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
4. REPRESENTATIONS AND WARRANTIES. Pledgor represents and
warrants as follows:
(a) The delivery of the Pledged Stock to the Secured
Party pursuant to this Pledge Agreement creates a valid and perfected
first priority security interest in the Pledged Collateral (other than
cash not in the possession of the Secured Party), securing the payment
of the principle of and the interest on advances made under the
Promissory Note and the performance of Pledgor's obligations pursuant to
this Agreement and the other Loan Documents.
(b) No consent of any other party (including, without
limitation, any creditor of the Pledgor) and no governmental approval is
required either (i) for the pledge by the Pledgor of the Pledged
Collateral pursuant to this Pledge Agreement or for the execution,
delivery or performance of this Pledge Agreement by Pledgor or (ii) for
the exercise by the Secured Party of the voting or other rights provided
for in this Pledge Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Pledge Agreement (except as may be required
in connection with such disposition by laws affecting the offering and
sale of securities generally).
5. FURTHER ASSURANCES. The Pledgor agrees that at any time and
from time to time the Pledgor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable or that the Secured Party may request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable the
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Pledged Collateral and to carry out the provisions and purposes
hereof.
6. ADMINISTRATION OF SECURITY. The following provisions shall
govern the administration of the Pledged Collateral:
(a) So long as no Event of Default shall have occurred:
(i) The Pledgor shall be entitled to exercise
any and all voting and other consensual rights pertaining to the
Pledged Collateral or any part thereof for any purpose not
inconsistent with the terms of this Pledge Agreement or the
Promissory Note; provided, however, that the Pledgor shall not
exercise or shall refrain from exercising any such right if, in
the Secured Party's sole judgment, such action or inaction would
have a material adverse effect on the value of the Pledged
Collateral or any part thereof; and provided, further, that the
Pledgor shall give the Secured
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Party at least thirty (30) days' written notice of the manner in
which he intends to exercise, and the reasons therefor, or the
reasons for refraining from exercising, any such right.
(ii) The Pledgor shall be entitled to receive
all cash dividends and other cash distributions paid or payable
with respect to any of the Pledged Collateral; provided,
however, that any such dividends or other distributions shall
first be applied by Pledgor toward the payment of the then
unpaid principal balance (and interest thereon) under the
Promissory Note. Any and all instruments and other property
(other than cash or checks) received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged
Collateral, shall be delivered to the Secured Party to hold as
Pledged Collateral and shall, if received by the Pledgor, be
received in trust for the benefit of the Secured Party, be
segregated from the other property or funds of Pledgor, and be
forthwith delivered to the Secured Party as Pledged Collateral
in the same form as so received (with any necessary
endorsement).
(b) Upon the occurrence of an Event of Default:
(i) All rights of the Pledgor to exercise the
voting and other consensual rights which he would otherwise be
entitled to exercise pursuant to Section 6(a)(i) and to receive
the dividends which he would otherwise be authorized to receive
and retain pursuant to Section 6(a)(ii) shall cease, and all
such rights shall, upon notice by the Secured Party to the
Pledgor, become vested in the Secured Party who shall thereupon
have the sole right to exercise such voting and other consensual
rights and the sole right to receive and hold as Pledged
Collateral such dividends (and to the extent permissible, apply
them to the Obligations of Pledgor).
(ii) All dividends which are received by the
Pledgor contrary to the provisions of paragraph (i) of this
Section 6(b) shall be received in trust for the benefit of the
Secured Party, shall be segregated from other funds of the
Pledgor and shall be forthwith paid over to the Secured Party as
Pledged Collateral in the same form as so received (with any
necessary endorsement).
7. TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES. The Pledgor
agrees that he will not, except as permitted by this Pledge Agreement or the
Promissory Note: (i) sell or otherwise dispose of, or grant any option with
respect to, any of the Pledged Collateral or (ii) enter into any other
contractual obligations which may restrict or inhibit the Secured Party's rights
or ability to sell or otherwise dispose of the Pledged Collateral or any part
thereof after the occurrence of an Event of Default.
8. THE SECURED PARTY APPOINTED ATTORNEY-IN-FACT. The Pledgor
hereby appoints the Secured Party the Pledgor's attorney-in-fact effective upon
the occurrence of an Event of Default, with full authority in the place and
stead of the Pledgor and in the name of the Pledgor or otherwise, from time to
time in the Secured Party's discretion to take any action and to execute any
instrument which the Secured Party may deem necessary or advisable to accomplish
the purposes of this Pledge Agreement, including, without limitation, to
receive,
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endorse and collect all instruments made payable to Pledgor
representing any dividend or other distribution in respect of the Pledged
Collateral or any part thereof.
9. THE SECURED PARTY'S DUTIES; REASONABLE CARE. The powers
conferred on the Secured Party hereunder are solely to protect its interest in
the Pledged Collateral and shall not impose any duty on it to exercise any such
powers. Except for the safe custody of any Pledged Collateral in its possession
and the accounting for monies actually received by it hereunder, the Secured
Party shall have no duty as to any Pledged Collateral. The Secured Party shall
be deemed to have exercised reasonable care in the custody and preservation of
the Pledged Collateral in its possession if the Pledged Collateral is accorded
treatment that is not materially less protective than that which the Secured
Party accords its own property, it being expressly agreed that the Secured Party
shall have no responsibility for (i) ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders or other matters relative
to any Pledged Collateral, whether or not the Secured Party has or is deemed to
have knowledge of such matters, or (ii) taking any necessary steps to preserve
rights against any parties with respect to any Pledged Collateral, but the
Secured Party may do so at its option and all expenses incurred in connection
therewith shall be payable by and for the sole account of the Secured Party.
10.DEFAULTS. The occurrence of any one or more of the following
events or conditions shall constitute an Event of Default under this Agreement:
(a) Failure to Perform. The Pledgor fails to make any
principal or interest payment required pursuant to the Promissory Note,
this Pledge Agreement or any other Loan Documents and fails to cure such
default within the grace period provided in the applicable Loan
Document.
(b) Representations and Warranties. The Pledgor makes or
has made or furnishes or has furnished, any material written warranty,
representation or statement to the Secured Party in connection with this
Agreement or any of the other Loan Documents which is or was false or
misleading when made or furnished.
(c) Additional Liens; Attachment. Any lien or
encumbrance other than that created by this Pledge Agreement is placed
on, or any levy is made on the Collateral, or any portion thereof; or
the Collateral, or any portion thereof, is seized or attached pursuant
to legal process, and such lien, encumbrance, levy, seizure, or
attachment is not removed or released within sixty (60) days from the
time such lien or encumbrance was placed thereon or such levy, seizure
or attachment was effected; provided, however, that neither the
imposition of any lien, encumbrance or levy on the Collateral, nor the
seizure of the Collateral, shall constitute an Event of Default under
this Pledge Agreement unless such imposition or seizure occurs as a
direct result of actions taken by the Pledgor.
(d) Voluntary Bankruptcy. The Pledgor commences or
proposes to commence any bankruptcy, reorganization or insolvency
proceeding, or other proceeding under any federal, state or other law
for the relief of debtors;
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(e) Involuntary Bankruptcy. The Pledgor fails to obtain
dismissal, within ninety (90) days after commencement thereof, of any
bankruptcy, insolvency, or reorganization proceeding or other proceeding
for relief under any bankruptcy law, including, without limitation, the
Federal Bankruptcy Code, or any law for the relief of debtors,
instituted against the Pledgor by one or more third parties, fails to
oppose actively such proceeding, or, in any such proceeding defaults or
files an answer admitting the material allegations upon which the
proceeding was based, or alleges its willingness to have an order for
relief entered or its desire to seek liquidation, reorganization or
adjustment of its debts; and
(f) Receiver Appointed. Any receiver, trustee or
custodian is appointed by a court of competent jurisdiction to take
possession of all or any substantial portion of the assets of Pledgor.
11.REMEDIES UPON DEFAULT. If any Event of Default shall have
occurred:
(a) The Secured Party may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies provided
for herein or otherwise available to it, all the rights and remedies of
a secured party under the applicable state Uniform Commercial Code in
effect at that time, and the Secured Party may also, without notice
except as specified below, sell the Pledged Collateral or any part
thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of the Secured Party's offices or
elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Secured Party may deem commercially reasonable. The
Pledgor acknowledges and agrees that any such private sale may result in
prices and other terms less favorable to the seller than if such sale
were a public sale. The Pledgor agrees that, to the extent notice of
sale shall be required by law, at least ten (10) days' notice to the
Pledgor of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification.
The Secured Party shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. The Secured
Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) Any cash held by the Secured Party as Pledged
Collateral and all cash proceeds received by the Secured Party in
respect of any sale of, collection from, or other realization upon all
or any part of the Pledged Collateral may, in the discretion of the
Secured Party, be held by the Secured Party as collateral for, and/or
then or at any time thereafter applied in whole or in part by the
Secured Party for its benefit against, all or any part of the
Obligations of the Pledgor pursuant to the Note or this Agreement. Any
surplus of such cash or cash proceeds held by the Secured Party and
remaining after payment in full of all the Obligations shall be paid
over to the Pledgor or to whomsoever may be lawfully entitled to receive
such surplus or as a court of competent jurisdiction may direct;
provided, that in the event that all of the conditions to the
termination of this Pledge Agreement pursuant to Section 13 shall not
have been fulfilled, such balance shall
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be held and applied from time to time as provided in this subsection
11(b) until all such conditions shall have been fulfilled.
12.REMEDIES CUMULATIVE. Each right, power and remedy of the
Secured Party provided in this Pledge Agreement or now or hereafter existing at
law or in equity or by statute or otherwise shall be cumulative and concurrent
and shall be in addition to every other right, power or remedy provided for in
this Pledge Agreement or now or hereafter existing at law or in equity or by
statute or otherwise. The exercise or partial exercise by the Secured Party of
any one or more of such rights, powers or remedies shall not preclude the
simultaneous or later exercise by the Secured Party of all such other rights,
powers or remedies, and no failure or delay on the part of the Secured Party to
exercise any such right, power or remedy shall operate as a waiver thereof.
13.RELEASE; TERMINATION.
(a) So long as no Event of Default shall have occurred
and the requirements of payment set forth in the Promissory Note are
satisfied, the Pledgor may sell or dispose of any Pledged Collateral, if
such sale or disposition is not prohibited by any terms or conditions of
this Pledge Agreement, the Promissory Note or any other agreement
including, without limitation that certain Restricted Stock Purchase
Agreement between the Pledgor and the Secured Party relating to the
Pledged Collateral (the "Restricted Stock Purchase Agreement"). The
Secured Party shall upon request of the Pledgor execute and deliver to
the Pledgor a release or releases in form reasonably satisfactory to the
Secured Party to release the lien of this Pledge Agreement with respect
to such Pledged Collateral and assign, transfer and deliver such Pledged
Collateral to the Pledgor. Such releases and assignments shall be
without warranty by or recourse to the Secured Party, except as to the
absence of any prior assignments by the Secured Party of its interest in
the Pledged Collateral, and shall be at the expense of the Pledgor.
(b) This Pledge Agreement shall terminate upon full and
complete payment in full of all Obligations on the Promissory Note and
the other Loan Documents. The Secured Party, at the time of such
termination and at its expense, will execute and deliver to the Pledgor
a proper instrument or instruments acknowledging the termination of this
Pledge Agreement, and will duly assign, transfer and deliver to the
Pledgor such of the Pledged Collateral as has not yet theretofore been
sold or otherwise applied or released pursuant to this Pledge Agreement,
together with any moneys at the time held by the Secured Party
hereunder, subject to any other agreement including, without limitation,
the Restricted Stock Purchase Agreement. Such assignment and delivery
shall be without warranty by or recourse to the Secured Party, except as
to the absence of any prior assignments by the Secured Party of its
interest in the Pledged Collateral.
14.CONTINUING SECURITY INTEREST. This Pledge Agreement shall
create a continuing security interest in the Pledged Collateral and shall (i)
remain in full force and effect until terminated pursuant to Section 13(b), (ii)
be binding upon the Pledgor and its heirs, successors and assigns, and (iii)
inure, together with the rights and remedies of the Secured Party hereunder, to
the benefit of the Secured Party, its successors, transferees and assigns.
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15.WAIVER. To the fullest extent he may lawfully so agree, the
Pledgor agrees that he will not at any time insist upon, claim, plead, or take
any benefit or advantage of any appraisement, valuation, stay, extension,
moratorium, redemption or similar law now or hereafter in force in order to
prevent, delay, or hinder the enforcement hereof or the absolute sale of any
part of the Pledged Collateral; the Pledgor for itself and all who claim through
him, so far as he or they now or hereafter lawfully may do so, hereby waive the
benefit of all such laws, and all right to have the Pledged Collateral marshaled
upon any foreclosure hereof, and agree that any court having jurisdiction to
foreclose this Pledge Agreement may order the sale of the Pledged Collateral as
an entirety.
16. REINSTATEMENT. This Pledge Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the Secured Party in respect of Pledgor's Obligations pursuant to
the Promissory Note and the other Loan Documents is rescinded or must otherwise
be restored or returned by the Secured Party upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Pledgor or upon the
appointment of any intervenor or conservator of, or trustee or similar official
for, the Pledgor or any substantial part of its assets, or otherwise, all as
though such payments had not been made.
17.SEVERABILITY. The provisions of this Pledge Agreement are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction and shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision of this Pledge
Agreement in any jurisdiction.
18.SURVIVAL OF PROVISIONS. All representations, warranties and
covenants of the Pledgor contained herein shall survive the execution and
delivery of this Pledge Agreement, and shall terminate only upon the full and
final payment and performance by the Pledgor of its indebtedness and obligations
secured hereby.
19.COUNTERPARTS. This Pledge Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
shall together constitute one and the same agreement.
20.GOVERNING LAW. This Pledge Agreement shall be construed in
accordance with and all disputes hereunder shall be governed by the laws of the
State of Delaware, without regard to principles of conflicts of laws.
21.GENDER. As used throughout this Pledge Agreement, references
to the masculine gender shall be deemed to include references to the feminine,
unless the context clearly indicates otherwise.
22.AMENDMENTS. This Agreement may be amended, modified or
supplemented only by a written instrument signed by the Pledgor and the Secured
Party.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered as of the date first above written.
By:
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Name
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Title:
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GENENCOR INTERNATIONAL, INC.
By:
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Name
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Title:
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