UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 4)
PHOTOCOMM, INC.
___________________________________________________________________
(Name of Issuer)
Common Stock Par Value $.10 Each
___________________________________________________________________
(Title of Class of Securities)
719319-10-5
___________________________________________________________________
(CUSIP Number)
Jill B. W. Sisson, Esq.
General Counsel and Secretary
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
(303) 271-7000
___________________________________________________________________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 18, 1997
___________________________________________________________________
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a Statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check
the following box / /.
Check the following box if a fee is being paid with the statement / /.
___________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ACX Technologies, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / X /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC; 00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e).
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Colorado
7 SOLE VOTING POWER
- 9,142,499 -*
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY - 0 -*
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING - 9,142,499 -*
PERSON
WITH 10 SHARED DISPOSITIVE POWER
- 0 -*
(See Item 5(b))
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,142,499-* (see Item 5(a))
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.4% (see Item 5)
14 TYPE OF REPORTING PERSON
CO
* Approximately 8,612,447 of the shares were acquired directly by
Golden Technologies Company, Inc., which is a wholly owned subsidiary
of ACX Technologies, Inc.
___________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Golden Technologies Company, Inc.*
* Golden Technologies Company, Inc. is a wholly owned subsidiary of
ACX Technologies, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / X /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC; 00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e).
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Colorado
7 SOLE VOTING POWER
- 0 -*
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 8,612,447 -*
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING - 0 -*
PERSON
WITH 10 SHARED DISPOSITIVE POWER
8,612,447 -*
* See Item 5(b)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,612,447 (see Item 5(a))
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
53.1% (see Item 5)
14 TYPE OF REPORTING PERSON
CO
___________________________________________________________________
ITEM 1. SECURITY AND ISSUER.
This Amendment No. 4, dated August 1, 1997 (this "Amendment"), amends
and restates the original Schedule 13D, dated August 26, 1996 (the
"Schedule 13D"), previously amended by Amendment No. 3, dated February
11, 1997, previously amended by Amendment No. 2, dated November 25,
1996, and previously amended by Amendment No. 1, dated November 20,
1996. This Amendment relates to the common stock par value $.10 (the
"Common Stock") of Photocomm, Inc. (the "Company"), whose principal
executive offices are located at 7681 E. Gray Road, Scottsdale,
Arizona 85260. The Company is engaged primarily in the development,
manufacturing and marketing of photovoltaic (solar electric) power
systems and related products.
Item 2. IDENTITY AND BACKGROUND
(a) ACX Technologies, Inc. ("ACX"), a Colorado corporation, is a
holding company that owns businesses that produce advanced technical
ceramic products and high performance consumer and industrial
packaging. ACX also owns all of the outstanding capital stock of
Golden Technologies Company, Inc. ("GTC").
GTC, a Colorado corporation, is primarily a development company that
currently focuses on two primary areas of development: biodegradable
plastics and solar photovoltaics.
ACX and GTC are making a single joint filing pursuant to Rule 13d-1(f)(2).
The directors and executive officers of ACX and GTC are:
ACX GTC
Jeffrey H. Coors Jeffrey H. Coors
William K. Coors Jill B. W. Sisson
Joseph Coors* Gail A. Constancio
Joseph Coors, Jr.
John K. Coors
John D. Beckett
Richard P. Godwin
John H. Mullin, III
John Hoyt Stookey
Jed J. Burnham
Jill B.W. Sisson
Gail A. Constancio
__________
*Director Emeritus.
(b) The address of the principal business and principal office of ACX
and GTC and business address of each of their respective directors and
officers is c/o ACX Technologies, Inc. and c/o Golden Technologies
Company, Inc., respectively, 16000 Table Mountain Parkway, Golden,
Colorado 80403.
(c) The present principal occupation or employment of each of the
directors and executive officers of ACX and GTC and the name,
principal business and address of any corporation or other
organization in which such employment is conducted is as follows:
ACX Directors and Officers:
Jeffrey H. Coors, President (member of the Office of the President)
and a Director of ACX; 16000 Table Mountain Parkway, Golden, Colorado
80403.
William K. Coors, Chairman of the Board of ACX; for principal business
and address, see above; Chairman of the Board and President of Adolph
Coors Company, a holding company for the Coors' beer business, Golden,
Colorado 80401.
Joseph Coors, Director Emeritus; Vice Chairman of the Board of Adolph
Coors Company, a holding company for the Coors' beer business, Golden,
Colorado 80401.
Joseph Coors, Jr., President (member of the Office of the President)
and a Director of ACX; for principal business and address, see above.
John K. Coors, Director of ACX; for principal business and address,
see above.
John D. Beckett, Director of ACX; for principal business and address,
see above.
Richard P. Godwin, Director of ACX; for principal business and
address, see above.
John H. Mullin, III, Director of ACX; for principal business and
address, see above.
John Hoyt Stookey, Director of ACX; for principal business and
address, see above.
Jed J. Burnham, Chief Financial Officer and Treasurer of ACX; for
principal business and address, see above.
Gail A. Constancio, Controller and Principal Accounting Officer of
ACX; for principal business and address, see above.
Jill B. W. Sisson, General Counsel and Secretary of ACX; for principal
business and address, see above.
GTC Directors and Officers:
Jeffrey H. Coors, President and Director of GTC; 16000 Table Mountain
Parkway, Golden, Colorado 80403.
Jill B. W. Sisson, Secretary; 16000 Table Mountain Parkway, Golden,
Colorado 80403.
Gail A. Constancio, Treasurer and Controller; 16000 Table Mountain
Parkway, Golden, Colorado 80403.
(d) and (e) None of the above named persons has, during the last five
years, (i) been convicted in a criminal proceeding or (ii) been a
party to a civil proceeding and as a result of which was or is subject
to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state
securities laws, or a judgment, decree or final order finding any
violations with respect to such laws.
(f) All of the above named individuals are citizens of the United
States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
GTC, a wholly-owned subsidiary of ACX, obtained funds to acquire the
8,612,447 shares of the Company from its own cash and by advances from
ACX. ACX purchased the remaining 530,052 shares of Common Stock and
advanced funds to GTC from funds from its operations and from an
existing line of credit.
ITEM 4. PURPOSE OF TRANSACTION
As previously reported on November 19, 1996, GTC signed a Stock
Purchase Agreement (the "Agreement") with the Company and The New
World Power Corporation ("NWP") pursuant to which GTC agreed to
acquire, subject to conditions set forth in the Agreement, 6,612,447
shares of Common Stock of the Company from NWP and 2,000,000 shares of
Common Stock directly from the Company or, if the Company elected, up
to 1,000,000 shares from certain senior executives of the Company and
Programmed Land, Inc. ("PLI"), a shareholder and the balance from the
Company.
On November 21, 1996, NWP sold 6,612,447 shares for an aggregate price
of $11,292,500; 1,000,000 shares were sold by the Company and 450,000
shares of Common Stock were sold by each of Robert Kauffman and PLI
and 50,000 shares were sold by each of Thomas C. LaVoy and Myron
Anduri to GTC. All shares were purchased for $2.75 per share.
Following the acquisition of the Common Stock pursuant to the
Agreement, GTC owned approximately 53.1 percent of the issued and
outstanding Common Stock. ACX also directly owns 30,000 shares of
Common Stock that were purchased on the open market in September 1996.
At the Annual Meeting of Shareholders held on January 31, 1997, four
designees of GTC, Jed J. Burnham, Jeffrey H. Coors, John K. Coors and
Gerrit J. Wolfaardt and three designees of the Company were elected to
the Board of Directors. Jeffrey H. Coors was elected Chairman of the
Board. In addition, the following GTC designees were elected as
officers of the Company: John K. Coors, President and Chief Executive
Officer; Jeffrey C. Brines, Vice President, Chief Financial Officer
and Secretary; and J. Michael Davis, Vice President. J. Michael Davis
was appointed Chief Operating Officer on May 20, 1997.
On February 3, 1997, the Board of Directors changed its certifying
accountant by appointing Price Waterhouse LLP as independent
accountants and the Company changed its fiscal year end to a calendar
year ending on December 31 of each year. The transition period from
September 1, 1996 to December 31, 1996 will be reported on Form 10-QSB.
On July 18, 1997, pursuant to a settlement agreement with Robert
Kauffman and Thomas LaVoy, ACX purchased 197,000 shares of Common
Stock and 35,763 shares of Series A 12% Convertible Preferred Stock
("Series A") and 40,000 shares of Series AA 11% Convertible Preferred
Stock ("Series AA") at $2.75 per common share or common share
equivalent from Robert Kauffman. Each share of the Series A and the
Series AA is convertible into 4 shares of Common Stock at ACX's option
at any time. As a part of the settlement agreement, ACX also made a
3-year $2 million non-recourse loan to Mr. Kauffman secured by his
remaining 1 million shares of Common Stock. Mr. Kauffman has resigned
from the Board of Directors of the Company.
Except as described herein, GTC and ACX have no present plan or
proposal that relates or would result in:
(a) the acquisition by any person of additional securities of the
Company, or the disposition of securities by the Company, except as
referenced above;
(b) an extraordinary corporate transaction, involving the Company or
any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Company
or any of its subsidiaries;
(d) any change in the present board of directors of the Company or
management of the Company, except as referenced above;
(e) any material change in the present capitalization or dividend
policy of the Company;
(f) any material change in the Company's business or corporate
structure;
(g) any change in the Company's Charter or bylaws, or other action
which may impede the acquisition of control of the Company by any
person;
(h) causing a class of securities of the Company to be delisted from
a national securities exchange;
(i) a class of equity securities of the company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Act;
or
(j) any action similar to any of the foregoing.
ITEM 5 INTEREST IN SECURITIES OF THE ISSUER
(a) ACX
As of July 18, 1997, ACX beneficially owned an aggregate number of
9,142,499 of shares of Common Stock, which includes the number of
shares of Common Stock that ACX would receive upon the conversion of
the Series A and Series AA. ACX beneficially owns approximately 56.4%
of the outstanding shares of Common Stock, based on 16,209,744 shares
of Common Stock outstanding as of April 30, 1997, as set forth in the
Company's Form 10-QSB for the quarter ended March 31, 1997.
GTC
As of July 18, 1997, GTC beneficially owned an aggregate number of
8,612,447 shares of Common Stock equaling a 53.1% of the outstanding
shares of Common Stock based on 16,209,744 shares of Common Stock
outstanding as of April 30, 1997, as set forth in the Company's Form
10-QSB for the quarter ended March 31, 1997.
DIRECTORS AND EXECUTIVE OFFICERS
John D. Beckett owns 8,000 shares of Common Stock that were acquired
on August 26, 1996. Jed J. Burnham owns 1,000 shares of Common Stock
that were acquired May 20, 1997.
(b) ACX
ACX, as the parent company of GTC, has sole voting power and sole
dispositive power of the 8,612,447 shares of Common Stock owned
directly by GTC and the 530,052 shares beneficially owned directly by
ACX, which includes the number of shares of Common Stock that ACX
would receive upon the conversion of the shares of Series A and Series
AA.
GTC
GTC, as a wholly owned subsidiary of ACX, does not have sole voting
power or sole dispositive power of the 8,612,447 shares of Common
Stock owned by it but has shared voting power and shared dispositive
power of such shares with ACX.
DIRECTORS AND EXECUTIVE OFFICERS
John D. Beckett has sole voting power and sole dispositive power of
8,000 shares of Common Stock. Jed J. Burnham has shared voting power
and shared dispositive power with the person with whom he owns the
1,000 shares of Common Stock as tenants-in-common.
(c) Neither ACX nor GTC has effected any transactions in shares of
the Common Stock during the past 60 days.
To the best of the knowledge of each of ACX and GTC, none of the
directors and officers named in Item 2 has effected any transaction in
any shares of the Common Stock during the past 60 days.
(d) Each of ACX and GTC affirms that, to the best of their knowledge,
no other person has the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, the
Common Stock.
(e) Not applicable.
ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
The purchase of the stock by ACX on July 18, 1997, described herein is
in connection with the previously disclosed agreement between ACX and
Robert Kauffman regarding ACX's purchase of shares of Common Stock
from Mr. Kauffman upon his termination of employment with the Company.
ACX has made a 3-year $2 million non-recourse loan to Mr. Kauffman
secured by his remaining 1 million shares of Common Stock. A copy of
the promissory note is attached hereto as Exhibit 3 and a copy of the
stock pledge agreement is attached hereto as Exhibit 4.
Except as otherwise described herein, no filing person is a party to
any contract, arrangement or understanding with respect to the Common
Stock of the Company.
ITEM 7 MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 - Stock Purchase Agreement dated August 16, 1996, between
Golden Technologies Company, Inc. and the New World Power Corporation
(See Exhibit 1 filed with Schedule 13D).
Exhibit 2 - Form of Executive Compensation Agreement between the
Company and Robert R. Kauffman (See Exhibit 2 filed with Amendment No.
1 to Schedule 13D).
Exhibit 3 - Promissory Note, dated July [15], 1997 by and between ACX
and Robert Kauffman.
Exhibit 4 - Stock Pledge Agreement, dated July 15, 1997, by and
between ACX and Robert Kauffman.
Exhibit 5 - Joint Filing Statement (included in signature page).
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true,
complete and correct.
Pursuant to Rule 13d-1(f)(2) this Schedule 13D is filed jointly on
behalf of each of ACX Technologies, Inc. and Golden Technologies
Company, Inc.
Dated: August 1, 1997
/s/ Jill B.W. Sisson
____________________________________
ACX Technologies, Inc.
By: Jill B.W. Sisson
Secretary
/s/ Jill B.W. Sisson
____________________________________
Golden Technologies Company, Inc.
By: Jill B.W. Sisson
Secretary
Exhibit 3
NONRECOURSE PROMISSORY NOTE
$2,000,000.00 As of July 15, 1997
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned, ROBERT R. KAUFFMAN
("Maker"), promises to pay to ACX TECHNOLOGIES, INC., a Colorado
corporation ("Holder"), at Phoenix, Arizona, or such place as the
Holder designates in writing, the principal sum of TWO MILLION DOLLARS
($2,000,000.00) in lawful money of the United States of America,
together with interest on the unpaid principal balance at the rate in
effect for three-year U.S. Treasury Notes on the date of this Note and
on each anniversary of the date of this Note.
All principal and accrued interest, if not sooner paid, shall be
payable at maturity, on or before the third (3rd) anniversary of the
date of this Note. Maker shall have the right at any time or from
time to time to pay all or a portion of the principal and accrued
interest without premium or penalty ("Prepayment"). Prepayments shall
apply first to accrued interest and then to principal.
Time is of the essence of this Note and each and every term and
provision hereof.
This Note is delivered pursuant to a Settlement Agreement and
Mutual Release between Maker, Holder, Photocomm, Inc. and Golden
Technologies Company, Inc., dated as of July 7, 1997 (the "Settlement
Agreement") and is secured by Stock Pledge Agreement (the "Pledge
Agreement") by Maker to Holder, executed of even date herewith.
In the event garnishment, attachment, levy or execution is issued
against any of the property or assets of Maker, or upon the happening
of any event which constitutes a default pursuant to the terms of this
Note, the Pledge Agreement and Direction to Recognize Pledge executed
in connection therewith, or in the event the Maker shall file a
petition in bankruptcy or any petition or application for any relief
under any provision of the Bankruptcy Act or to take advantage of any
law pertaining to reorganization, insolvency or readjustment of debt,
or if the Maker shall make an assignment for the benefit of creditors,
admit in writing the inability to pay debts as they become due, be
adjudicated a bankrupt or insolvent, commit any act of bankruptcy, or
answer a petition filed against Maker in any proceeding under the
Bankruptcy Act or any law pertaining to reorganization, insolvency or
readjustment of debt admitting the material allegations thereof, or if
a court of competent jurisdiction shall enter an order, judgment or
decree appointing a receiver for the assets or affairs of Maker, this
Note shall become immediately due and payable without notice to Maker.
Should suit be brought to recover on this Note, or should the same be
placed in the hands of an attorney for collection, Maker promises to
pay all attorney fees and costs incurred in connection therewith.
This Note shall be governed by and construed in accordance with the
laws of the State of Arizona, and suit hereon may be brought in
Superior Court, Maricopa County, Arizona, and for this purpose Maker
hereby expressly consents to the jurisdiction of said court.
No offset or claim of any kind or nature that Maker now has or
may in the future have against the Holder shall constitute a defense
to the payment of, or relieve Maker from paying to Holder or Holder's
order, any amount required to be paid by Maker under this Note, and
Maker hereby waives any right to assert such offset or claim as a
defense to its obligations under this Note.
Failure of Holder to exercise any option hereunder shall not
constitute a waiver of the right to exercise the same in the event of
any subsequent default or in the event of continuance of any existing
default after demand for strict performance hereof.
Maker, each individual and entity signing this Note, whether or
not as a Maker, agree to be jointly and severally bound for all
purposes with full recourse, severally waive any homestead exemption
right against the debt evidenced hereby and any mortgage securing the
same, and severally waive demand, diligence, presentment for payment,
protest and notice of demand, protest, nonpayment and exercise of any
option hereunder. Maker, each individual and entity signing this
Note, whether or not as a Maker, further agree that the granting
without notice of any extension or extensions of time for payment of
any sum or sums due hereunder, or under any security agreement or
other instrument securing this Note, or for the performance of any
covenant, condition or Agreement hereof or thereof or the taking or
release of other or additional security shall in no way release or
discharge the liability of the Maker or any signor hereof.
Notwithstanding any other term or provision hereof, Maker shall
have no personal liability to pay any amounts due or to perform any
obligations hereunder, Holder's sole recourse in the event of default
shall be to proceed against the collateral subject to the Pledge
Agreement, and Holder shall not seek or obtain a deficiency judgment
or order against Maker personally based upon the indebtedness
represented hereby; provided, however, that nothing contained in this
paragraph shall affect or impair the validity of the indebtedness
evidenced by this Note or the lien of the Pledge Agreement, or the
right of the Holder to proceed against the collateral subject to the
Pledge Agreement following default in (a) the making of any payment
required to be made pursuant to this Note, or (b) the performance of
any of the obligations of Maker under this Note or the Pledge
Agreement; and provided further, that notwithstanding the foregoing,
if Holder shall notify Maker after default that Holder proposes to
retain the collateral subject to the Pledge Agreement in satisfaction
of the obligations under this Note and Maker objects to such proposal
or otherwise acts to prevent Holder's retention of such collateral,
then Maker shall be and remain liable for any deficiency remaining
after disposition of such collateral in accordance with the Uniform
Commercial Code and Holder may seek and obtain a deficiency judgment
against Maker personally therefor.
/s/ Robert R. Kauffman
_________________________
Robert R. Kaufman
"MAKER"
Exhibit 4
STOCK PLEDGE AGREEMENT
(Brokerage Account)
THIS STOCK PLEDGE AGREEMENT, dated as of July 15, 1997, made by
Robert R. Kauffman ("Pledgor"), to ACX Technologies, Inc., a Colorado
corporation ("Pledgee").
RECITALS
A. Pledgor is the owner of One Million (1,000,000) shares of
Common Stock ("Common Stock") of Photocomm, Inc., an Arizona
corporation (the "Company"), (collectively, the "Pledged Shares").
B. Pledgor is the owner of a brokerage account at Merrill,
Lynch, Pierce, Fenner & Smith, Incorporated ("Broker"), No. ________
(the "Brokerage Account") which contains the Common Stock and all
securities entitlements with respect thereto.
C. Concurrently with the execution of this Agreement, Pledgee is
loaning Pledgor the sum of $2,000,000 (the "Loan") on the terms and
conditions set forth in the Nonrecourse Promissory Note executed
concurrently with this Agreement and delivered by Pledgor to Pledgee
in the form attached hereto (the "Note"). The Loan, the Note and this
Agreement are made and entered into pursuant to a Settlement Agreement
and Mutual Release dated as of July 7, 1997, between Pledgor, Pledgee,
the Company and Golden Technologies, Company, Inc. (the "Settlement
Agreement").
D. It is a condition precedent to Pledgee's making of the Loan
that Pledgor pledge to Pledgee the Pledged Shares, as security for
Pledgor's obligations under the Note.
NOW, THEREFORE, in consideration of the premises, the Pledgor
hereby agrees with Pledgee as follows:
SECTION 1. Pledge. The Pledgor pledges to Pledgee and grants to
Pledgee a security interest in the Pledged Shares, the Brokerage
Account and the certificates and securities entitlements representing
the Pledged Shares, and all cash and/or stock dividends, cash,
instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of the Pledged Shares and the Brokerage Account, and all proceeds of
the foregoing (collectively, the "Collateral").
SECTION 2. Security for Obligations. This Agreement secures the
payment of all obligations of Pledgor now or hereafter existing under
the Note, whether for principal, interest, fees, expenses or
otherwise, and all obligations of the Pledgor now or hereafter
existing under this Agreement (collectively, the "Obligations").
SECTION 3. Delivery of Collateral. All shares of the Common
Stock shall be held and maintained in the Brokerage Account subject to
the terms and security interest of this Agreement and the Pledged
Collateral Account Agreement executed and delivered by the parties in
the form attached hereto (the "Broker's Agreement"). If any Event of
Default (as defined below) occurs, Pledgee shall have the right, at
any time in its discretion and without notice to Pledgor, to transfer
to or to register in the name of Pledgee or any of its nominees any or
all of the Collateral. For purposes of this Agreement, "Event of
Default" means any default by Pledgor of its obligations under this
Agreement or the Note.
SECTION 4. Representations and Warranties. Pledgor represents
and warrants as follows:
(a) The pledge of the Collateral pursuant to this Agreement
creates a valid and perfected first priority security interest in the
Collateral, securing the payment of the Obligations.
(b) Pledgor is the legal and beneficial owner of the Collateral
free an clear of any lien, security interest, option or other charge
or encumbrance except for the security interest created by this
Agreement.
(c) No authorization, approval, or other action by, and no
notice to or filing with, any governmental authority, regulatory body
or third party is required either (i) for the pledge by Pledgor of the
Collateral pursuant to this Agreement or for the execution, delivery
or performance of this Agreement by Pledgor or (ii) for the exercise
by Pledgee of the voting or other rights provided for in this
Agreement or the remedies in respect of the Collateral pursuant to
this Agreement (except as may be required in connection with
disposition of the Collateral by laws affecting the offering and sale
of securities generally).
(d) Contemporaneously with the execution of this Agreement, and
subject to the provisions hereof, Pledgor has duly executed and
delivered to Pledgee a UCC-1 Financing Statement with respect to the
Collateral.
(e) The pledge of the Pledged Shares and the Brokerage Account
is not intended to be, and is not a pledge of "Margin Stock" as that
term is used in Regulations of the Board of Governors of the Federal
Reserve System.
(f) Pledgor is not a party to and has no knowledge of any
agreements, except for this Agreement, restricting the transfer of the
Pledged Shares.
(g) Pledgor has duly executed and delivered to the Broker the
Broker's Agreement and the Broker has duly executed and delivered the
Acknowledgment thereof.
SECTION 5. Further Assurances.
(a) Pledgor agrees that at any time and from time to time, at
the expense of Pledgor, Pledgor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary, or that pledgee may reasonably request, in order to
perfect and protect any security interest granted or purported to be
grated by this Agreement or to enable Pledgee to exercise and enforce
is rights and remedies under this Agreement with respect to any
Collateral.
(b) Without limiting the generality of the foregoing, Pledgor
agrees that in the event Pledgor, by virtue of the ownership of any
applicable portion of the Collateral, now is, or hereafter becomes,
entitled (with or without additional consideration) to additional
securities as the result of any corporate reorganization, merger,
consolidation, stock split, stock dividend, conversion or preemptive
right or otherwise, Pledgor shall (i)cause the issuer of such
additional securities to deliver to the Brokerage Account the
certificates or securities entitlements evidencing Pledgor's ownership
thereof or to deposit the same in the Brokerage Account and Pledgor
hereby authorizes and empowers Pledgee to demand the same from such
issuer or Broker, and agrees if such certificates are delivered to
Pledgor, to take possession thereof in trust for Pledgee and to
deposit he same in the Brokerage Account; (ii) deliver to Pledgee a
certificate executed by Pledgor and dated the date Pledgor receives
such additional securities, as to the truth and correctness on such
date of the warranties set forth in Section 4 hereof; and (iii)
deliver to Pledgee such other certificates, forms and other
instruments as Pledgee may request in connection with the pledge of
such additional securities to Pledgee.
(c) Pledgor agrees that such additional securities shall
constitute a portion of the Collateral and be subject to this
Agreement in the same manner and to the same extent as the Pledged
Shares pledged hereby on the date hereof.
SECTION 6. Voting Rights; Dividends; Etc.
(a) As long as no Event of Default has occurred and is
continuing:
(i) Pledgor shall be entitled to receive and retain any and all
dividends, interest and other payments and distributions paid in
respect of the Collateral, provided, however, that any and all
(A) such distributions paid or payable other than in cash in
respect of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any
Collateral,
(B) such distributions paid or payable in cash in respect of any
Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital
surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in redemption
of, or in exchange for, any Collateral,
shall be, and shall be forthwith delivered to Pledgee to hold as,
Collateral and shall, if received by Pledgor, be received in trust for
the benefit of Pledgee, be segregated from the other property or funds
of Pledgor, and be forthwith delivered to Pledgee as Collateral in the
same form as so received (with any necessary endorsement).
(ii) Pledgee shall execute and deliver to Pledgor all such
instruments as Pledgor may reasonably request for the purpose of
enabling Pledgor to receive the distributions or payments which
Pledgor is authorized to receive and retain pursuant to Section
6(a)(i) above.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) All rights of Pledgor to receive the distributions and
payments which Pledgor would otherwise be authorized to receive and
retain pursuant to Section 6(a)(ii) shall cease, and all such rights
shall automatically become vested in Pledgee who shall then have the
sole right to receive and hold such distributions and payments as
Collateral.
(ii) All distributions and payments which are received by
Pledgor contrary to the provisions of Section 6(b)(i) shall be
received in trust for the benefit of Pledgee, shall be segregated from
other funds of Pledgor and shall be forthwith paid over to Pledgee as
Collateral in the same form as so received, with any necessary
endorsement.
(c) During the term of this Agreement:
(i) Pledgee and Pledgor each shall be entitled to exercise any
and all voting and other consensual rights pertaining to one-half of
the Collateral subject to this Agreement from time to time; provided,
that upon the occurrence and during the continuance of an Event of
Default, all rights of Pledgor to exercise any such voting or other
consensual rights which Pledgor would otherwise be authorized to
exercise shall cease, and all such rights shall automatically become
vested in Pledgee, who shall then have the sole right to exercise such
rights.
(ii) Pledgor and Pledgee each shall execute and deliver to the
other all such proxies and other instruments as Pledgor and Pledgee
each may reasonably request for the purpose of enabling Pledgor and
Pledgee to exercise the voting and consensual rights which Pledgor and
Pledgee are entitled to exercise pursuant to Section 6(c)(i) above.
SECTION 7. Transfers and Other Liens.
(a) Restrictions. Pledgor agrees that it will not during the
term of this Agreement (i) sell or otherwise dispose of, or grant any
option with respect to, any of the Collateral, except as expressly
permitted in this Agreement, or (ii) create or permit to exist any
lien, security interest, or other charge or encumbrance upon or with
respect to any of the Collateral, except for the security interest
under this Agreement.
(b) Partial Releases. Pledgor may cause Common Stock held in
the Brokerage Account to be sold, with a portion of the proceeds
thereof to be remitted to Pledgee and a portion of such proceeds to be
released from this Agreement and remitted to Pledgor, as expressly
provided in this Section 7 and the Broker's Agreement, whereupon the
proceeds received by Pledgee shall be treated as a prepayment of
principal under the Note. Pledgor shall not instruct the Broker to
sell Common Stock pursuant to the Broker's Agreement unless (i) the
sale price per share is not less than $2.00 per share, plus any and
all brokerage commissions and other expenses and charges incurred in
connection with such sale, and (ii) Pledgor shall have made prior
arrangements satisfactory to Pledgee to pay all accrued interest on
the amount of such prepayment under the Note through the date such
prepayment is received by Pledgee, and (iii) Pledgor simultaneously
delivers to the Broker an irrevocable written instruction to the
Broker to remit promptly to Pledgee from the proceeds of such sale an
amount equal to $2.00 per share ("Release Price") for each Pledged
Share sold (the "Pledgee Proceeds"). Until the Pledgee Proceeds are
received by Pledgee, all proceeds of any such sale shall remain
Collateral subject to this Agreement. Upon remittance of the Pledgee
Proceeds for a sale to Pledgee, Pledgee shall promptly deliver an
irrevocable written instruction to the Broker to remit the balance of
the proceeds of such sale (the "Pledgor Proceeds") as instructed by
Pledgor, and such Pledgor Proceeds shall be automatically released
from the security interest of this Agreement.
(c) Adjustment of Release Price. The Release Price shall be
proportionately adjusted for any increase or decrease in the number of
issued and outstanding shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or
decrease in the number of issued and outstanding shares of Common
Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt
of consideration."
SECTION 8. Pledgee Appointed Attorney-in-Fact. Pledgor appoints
Pledgee as Pledgor's attorney-in-fact with full authority in the place
and stead of Pledgor and in the name of Pledgor or otherwise, from
time to time in Pledgee's discretion, to take any action and to
execute any instrument which Pledgee may deem necessary or advisable
to accomplish the purposes of this Agreement, including, without
limitation, and subject to the provisions of Section 6 hereof, to
receive, endorse and collect all instruments made payable to Pledgor
representing any dividend, interest payment or other distribution in
respect of the Collateral or any part thereof and to give full
discharge for the same.
SECTION 9. Pledgee May Perform. If any Event of Default occurs,
Pledgee may itself cure such Event of Default at Pledgor's sole
expense. Any expenses of Pledgee incurred under this Section 9 shall
be payable by Pledgor under Section 13.
SECTION 10. Reasonable Care. Pledgee shall be deemed to have
exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which Pledgee accords its own property, it
being understood that Pledgee shall have no responsibility for (i)
ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not Pledgee 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 Collateral.
SECTION 11. Remedies upon Default. If any Event of Default has
occurred and is continuing:
(a) Pledgee may exercise, in respect of the Collateral, all the
rights and remedies of a secured party under the Uniform Commercial
Code (the "Code") in effect in the State of Arizona at that time, in
addition to other rights and remedies provided for herein or otherwise
available to Pledgee, and Pledgee may also, without notice except as
specified below, cause the Collateral to be registered in the name of
Pledgee or its nominee, take possession of and sell the Collateral or
any part thereof in one or more lots at public or private sale, at any
exchange, broker's board or at any of Pledgee's offices or elsewhere,
for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as are commercially reasonable.
Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten (10) days' notice to 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. Pledgee shall not be
obligated to make any sale of Collateral regardless of notice of sale
having been given. Pledgee 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) All cash proceeds received by Pledgee in respect of any sale
of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of Pledgee, be held by Pledgee as
collateral for, and/or then or at any time thereafter be applied
(after payment of any amounts payable to Pledgee pursuant to Section
13) in whole or in part against, all or any part of the Obligations in
such order as Pledgee shall elect. Any surplus of such cash or cash
proceeds held by Pledgee and remaining after payment in full of all
the Obligations shall be paid over to Pledgor or to whomsoever may be
lawfully entitled to receive such surplus.
(c) Pledgor agrees that in any sale of any of the Collateral,
Pledgee is thereby authorized to comply with any limitation or
restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including, without limitation, compliance with such procedures as may
restrict the number or suitability of prospective bidders and
purchasers and/or further restrict such prospective bidders or
purchasers to persons who will represent and agree that they are
purchasing for their own account for investment and not with a view to
the distribution or resale of such Collateral), or in order to obtain
any required approval of the sale or of the purchase by any
governmental regulatory authority or official, and Pledgor further
agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially
reasonable manner, nor shall Pledgee be liable or accountable to
Pledgor for any discount allowed by reason of the fact that such
collateral is sold in compliance with any such limitation or
restriction.
(d) Each and every right, remedy and power granted to Pledgee
hereunder shall be cumulative and in addition to any other right,
remedy or power specifically granted herein or now or hereafter
existing in equity, at law, by virtue of statute or otherwise and may
be exercised by Pledgee, from time to time, concurrently or
independently and at often and in such order as Pledgee may deem
expedient. Any failure or delay on the part of Pledgee in exercising
any such right, remedy or power, or abandonment or discontinuance of
steps to enforce the same, shall not operate as a waiver thereof or
affect the right of Pledgee thereafter to exercise the same, and any
single or partial exercise of any such right, remedy or power shall
not preclude any other or further exercise thereof or the exercise of
any other right, remedy or power, and no such failure, delay,
abandonment or single or partial exercise of rights of Pledgee
hereunder shall be deemed to establish a custom or course of dealing
or performance between the parties hereto.
SECTION 12. Cooperation With Sale. If Pledgee shall determine
to exercise Pledgee's right to sell all or any of the Collateral
pursuant to Section 11, Pledgor agrees that, upon request of Pledgee,
Pledgor will do or cause to be done all such other acts and things as
may be necessary to make such sale of the Collateral or any part
thereof valid and binding and in compliance with applicable law,
including, but not limited to, all applicable federal and state
securities laws.
SECTION 13. Expenses. Pledgor will upon demand pay to Pledgee
the amount of any and all reasonable expenses, including the
reasonable fees and expenses of Pledgee's counsel and of any experts
and agents, which Pledgee may incur in connection with (i) the custody
or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (ii) the exercise or
enforcement of any of the rights of Pledgee or (iii) the failure by
Pledgor to perform or observe any of the provisions hereof.
SECTION 14. Security Interest Absolute. All rights of Pledgee
and security interests under this Agreement, and all obligations of
Pledgor under this Agreement, shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the Note or any
other agreement of instrument relating thereto;
(ii) any change in the time, manner or placer of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Note
or this Agreement;
(iii) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations; or
(iv) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, Pledgor in respect of the
Obligations of this Agreement.
SECTION 15. Amendments, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by Pledgor
from the terms of this Agreement, shall be effective unless it is in
writing and signed by Pledgee, and then such waiver or consent shall
be effective only in the specific instance and for the specific
purpose for which given.
SECTION 16. Notices. Any and all notices required by this
Agreement shall be personally delivered or sent by certified mail,
return receipt requested, or sent by machine confirmed facsimile
transmission, addressed to a party at his address set forth below, or
at such other address as he may designate to the other party in
accordance with this Paragraph. A notice shall be deemed effective
when delivered if personally delivered, four (4) business days
following mailing if sent by certified mail, return receipt requested,
and upon machine confirmation of transmission when sent by facsimile.
If to Pledgee:
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
Attention: Jill B.W. Sisson, Esq.
with a copy to:
Scott W. Rodgers, Esq.
Osborn Maledon
2929 North Central Avenue
21st Floor
Phoenix, Arizona 85012-2794
If to Pledgor:
Robert R. Kauffman
13670 North 85th Place
Scottsdale, Arizona 85260
with a copy to
Ronald Cohen, Esq.
Cohen and Cotton, P.C.
400 East Van Buren, Suite 400
Phoenix, Arizona 85004-2232
SECTION 17. Continuing Security Interest; Transfer of Notes.
This Agreement shall create a continuing security interest in the
Collateral and remain in full force and effect until payment in full
of the Note. This Agreement shall be binding upon Pledgor, and its
successors and assigns, and inure to the benefit of Pledgee and its
successors, transferees and assigns. Without limiting the generality
of the preceding sentence, Pledgee may assign or otherwise transfer
its interest in this Agreement to a transferee of the Note, in which
case such transferee shall automatically become vested with all of the
benefits of this Agreement. Upon the payment in full of the
Obligations, Pledgor shall be entitled to the prompt return, upon its
request and at its expense, of such of the Collateral as shall not
have been sold or otherwise applied pursuant to the terms hereof.
SECTION 18. Governing Law; Terms. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Arizona. Unless otherwise defined herein or in the Note, terms
defined in Article 9 of the Uniform Commercial Code as adopted in the
State of Arizona are used herein as defined therein.
SECTION 19. Nonrecourse Obligation. Notwithstanding any other
term or provision hereof, Pledgor shall have no personal liability to
pay any amounts due or to perform any obligations hereunder, Pledgee's
sole recourse, in the event of default, shall be to proceed against
the Collateral subject to this Pledge Agreement, and Pledgee shall not
seek or obtain a deficiency judgment or order against Pledgor
personally based upon the indebtedness secured hereby; provided,
however, that nothing contained in this paragraph shall affect or
impair the validity of the indebtedness evidenced by the Note or the
lien of this Agreement, or the right of the Pledgee to proceed against
the collateral subject to this Agreement following default in (a) the
making of any payment required to be made pursuant to the Note, or (b)
the performance of any of the obligations of Pledgor under the Note or
this Agreement; and provided, further, that notwithstanding the
foregoing, if Pledgee shall notify Pledgor after default that Pledgee
proposes to retain the collateral subject to this Agreement in
satisfaction of the obligations under the Note and Pledgor objects to
such proposal or otherwise acts to prevent Pledgee's retention of such
collateral, then Pledgor shall be and remain liable for any
deficiencies remaining after disposition of such collateral in
accordance with the Code and Pledgee may seek and obtain a deficiency
judgment against Pledgor personally therefor.
IN WITNESS WHEREOF, Pledgor and Pledgee have executed this
Agreement on the date hereof.
_______________________________
Robert R. Kauffman
Witness:
_______________________________
ACX Technologies, Inc.,
a Colorado corporation
By:______________________________
Its__________________<PAGE>
SPOUSAL CONSENT
The undersigned, Elizabeth W. Kauffman, hereby confirms that she
has read and understands the foregoing Stock Pledge Agreement and
consents and agrees to the terms to the extent that she may have any
interest therein and agrees that her spousal and community property
interest, as well as her sole and separate property, is irrevocably
bound by the Agreement.
Dated as of July 15, 1997.
_______________________________
ELIZABETH W. KAUFFMAN
<PAGE>
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this, the ____ day of July, 1997, before me, the undersigned
Notary Public, personally appeared Robert R. Kauffman, known to me to
be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_______________________________
Notary Public
My Commission Expires:
_______________________________
STATE OF COLORADO )
) ss.
County of Jefferson )
On this, the ____ day of July, 1997, before me, the undersigned
Notary Public, personally appeared ______________, the __________ of
ACX Technologies, Inc., a Colorado corporation, known to me to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_______________________________
Notary Public
My Commission Expires:
_______________________________
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this, the ____ day of July, 1997, before me, the undersigned Notary
Public, personally appeared Elizabeth W. Kauffman, known to me to be
the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_______________________________
Notary Public
My Commission Expires:
_______________________________
<PAGE>
Merrill Lynch Account Number _____________________
(To be assigned when the account is established with Merrill Lynch)
Merrill Lynch
Pledged Collateral Account Agreement
Note: This agreement is subject to the review and acceptance by
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
Date: July 15, 1997
Gentlemen:
Simultaneously with the execution of this agreement, the
undersigned Robert R. Kauffman (hereinafter "Assignor") and ACX
Technologies, Inc. (hereinafter "Assignee") entered into an agreement
pursuant to which a security interest in certain rights and assets of
the Assignor is granted by the Assignor to the Assignee (the
"Assignment"). In connection therewith, the Assignor hereby instructs
you to:
1) establish a cash security account, which is to be known as the
"Robert R. Kauffman Pledged Collateral Account for ACX Technologies,
Inc. ("Cash Account"); and
2) place the assets listed in Exhibit A attached hereto and made a
part hereof into the Cash Account.
The Assignor and the Assignee consent and agree that the only
Instructions that shall be given to Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") in regard to or in connection
with the Cash Account shall be given by an Authorized Officer of
Assignor (as such term is hereafter defined), except as otherwise
provided herein.
An Authorized Officer of Assignor may give instructions of any
kind or character in regard to the Cash Account, oral or written,
except that:
1) any instruction to Merrill Lynch to deliver cash and/or
securities, or proceeds from the sale or, or distributions on, such
securities out of the Cash Account shall be made by a written
instrument on such effect which shall be executed by (a) an Authorized
Officer of Assignee and an Authorized Officer of Assignor or (b) an
Authorized Officer of Assignee who shall certify in writing that an
"Event of Default" exists as of the date thereof under the Assignment
(it being understood and agreed that Merrill Lynch shall have no duty
or obligation whatsoever of any kind or character to determine whether
or not an Event of Default exists) and provided further that Assignee
hereby agrees to indemnify and hold harmless Merrill Lynch, its
affiliates, officers and employees from and against any and all
claims, causes of action, liabilities, lawsuits, demands and/or
damages, including, without limitation, any and all court costs and
reasonable attorney's fees, that may result by reason of Merrill Lynch
complying with such instructions.
The Authorized Officer of Assignor who shall give oral
instructions hereunder shall confirm the same in writing to Merrill
Lynch within five (5) days after such oral instructions are given. So
long as this agreement remains in effect, Assignee shall be entitled
to receive duplicates of any and all notices and statements of account
that the Assignor of such a Cash Account is entitled to receive.
For purposes of this agreement, the term "Authorized Officer of
Assignor" shall refer to Robert R. Kauffman and the term "Authorized
Officer of Assignee" shall refer in the singular to either Jed Burnham
(who is, on the date hereof, Chief Financial Officer of the Assignee)
or Jill B.W. Sisson (who is, on the date hereof, Secretary of the
Assignee). If the Assignor or Assignee is a natural person then such
term shall mean the Assignor or Assignee respectively and, if more
than one natural person is the Assignor or Assignee, such natural
persons may act severally. In the even that either Assignor or
Assignee shall find it advisable to designate a replacement of either
of its Authorized Officers, written notice of any such replacement
shall be given to Merrill Lynch; provided, however, that such
replacement shall be either the President or then acting chief
executive officer of Assignor or Assignee, as the case may be, or such
other officer of the respective parties hereto as Merrill Lynch may
approve, which approval shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained herein or in
the Assignment, this agreement shall not impose or create any
obligations or duties upon Merrill Lynch greater than or in addition
to the customary and usual obligations and duties of Merrill Lynch to
Assignor except and to the extent that Merrill Lynch shall henceforth
accept instructions in connection with the Cash Account as provided in
this agreement.
Assignor hereby agrees to indemnify and hold harmless Merrill
Lynch, its affiliates, officers and employees from and against any and
all claims, causes of action, liabilities, lawsuits, demands and/or
damages, including, without limitation, any and all court costs and
reasonable attorney's fees, in any way related to or arising out of or
in connection with the Assignment, this agreement and/or the Cash
Account.
This agreement shall be binding upon and inure to the benefit of
the successors and assigns of the respective parties hereto and shall
be construed in accordance with the laws of the State of New York
without regard to its conflict of law principles and the rights and
remedies of the parties shall be determined in accordance with such
laws.
Assignor and Assignee understand and acknowledge that this
agreement in and of itself does not create or perfect the Assignee's
security interest in the rights and assets of the Assignor.
Assignor and Assignee represent and warrant to Merrill Lynch that
the agreement and arrangement are in compliance with applicable law,
including, without limitation, the federal securities credit
regulations.
The Assignor acknowledges that this agreement supplements the
Assignor's existing agreement(s) with Merrill Lynch and in no way is
this agreement intended to abridge any rights that Merrill Lynch might
otherwise have.
IN WITNESS WHEREOF, the Assignor and Assignee have caused this
agreement to be executed by their duly authorized officers all as of
the day first above written.
Assignor:
By: Robert R. Kauffman
Title:_________________________
Signature:_____________________
Date: 7/15/97
Assignee:
By: ACX Technologies, Inc.
Title: Chief Financial Officer
Signature:_____________________
Date: 7/15/97
(Affix Corporate/Bank Seal)
ATTEST:
By:____________________________
Title:_________________________
RECEIPT ACKNOWLEDGED:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:____________________________ Date: ______________
Resident Vice President
By:____________________________ Date: ______________
Regional Administrative Manager
<PAGE>
ADDENDUM TO THE PLEDGED COLLATERAL ACCOUNT
AGREEMENT
The Assignor and Assignee consent and agree that any interest
and/or dividends earned in pledged collateral account number
_______________ are not required to be held as collateral and can be
released to the Assignor. Therefore, please transfer all interest
and/or dividends as it accrues, in this account, to account number
_____________. All parties understand and acknowledge that this
addendum is subject to revocation by either party.
Assignor:
By: Robert R. Kauffman
Title:_________________________
Signature:_____________________
Date: 7/15/97
Assignee:
By: ACX Technologies, Inc.
Title: Chief Financial Officer
Signature:_____________________
Date: 7/15/97
(Affix Corporate/Bank Seal)
ATTEST:
By:____________________________
Title:_________________________
RECEIPT ACKNOWLEDGED:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:____________________________
Resident Vice President
Regional Administrative Manager
<PAGE>
Exhibit A
The Assignor has placed the following assets into the Robert R.
Kauffman Pledged Collateral Account for ACX Technologies, Inc.,
account number __________________ (account number to be assigned when
the account is established with Merrill Lynch).
Quantity Description
1,000,000 shares of Common Stock of Photocomm, Inc.
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