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Exhibit 10.2
STOCK PLEDGE AND SECURITY AGREEMENT
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THIS STOCK PLEDGE AGREEMENT (this "Agreement") dated as of November 17,
2000 is made by Jeffrey A. Cole, (the "Pledgor") to Cole National Corporation, a
Delaware corporation (the "Company").
RECITALS
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A. The Pledgor has borrowed from the Company the principal amount of
Six Hundred Sixty-Six Thousand Six Hundred Sixty-Six Dollars and 00/100
($666,666.00), and in consideration therefor, has delivered to the Company the
Secured Promissory Note ("Promissory Note") of the Pledgor, dated November 17,
2000, for such principal amount.
B. The Pledgor wishes to affirm the grant of security and assurance to
the Company in order to secure the payment of the principal of and interest on
the Promissory Note and to that effect to pledge to the Company the 123,750
shares of Common Stock, par value $0.001 per share (the "Shares") which are
restricted as set forth in that certain Restricted Stock Agreement dated
December 17, 1998.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
l. PLEDGE. The Pledgor hereby pledges, assigns, hypothecates,
transfers, and delivers to the Company, all the Shares (the "Pledged Stock") and
hereby grants to the Company, a first lien on, and security interest in, the
Pledged Stock and in all proceeds thereof, together with appropriate undated
stock powers duly executed in blank, as collateral security for the prompt and
complete payment when due (whether at the stated maturity, by acceleration or
otherwise) of the unpaid principal of and interest on the Promissory Note.
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2. ADMINISTRATION SECURITY. The following provisions shall govern the
administration of the Pledged Stock:
(a) So long as no Event of Default has occurred and is
continuing (as used herein, "Event of Default" shall mean the
occurrence of any Event of Default under the Promissory Note),
the Pledgor shall be entitled to act with respect to the Pledged
Stock in any manner not inconsistent with the provisions of this
Agreement, the Promissory Note or any document or instrument
delivered or to be delivered pursuant to or in connection with
the Promissory Note.
(b) (i) If, while this Agreement is in effect, the
Pledgor shall become entitled to receive or shall receive any
stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of
capital, or issued in connection with any reorganization),
option or rights, in substitution of, in exchange for, or in
respect of, any shares of any Pledged Stock, the Pledgor agrees
to accept the same as the Company's agent and to hold the same
in trust on behalf of and for the benefit of the Company and to
deliver the same forthwith to the Company in the exact form
received, with the endorsement of the Pledgor when necessary
and/or appropriate undated stock powers duly executed in blank,
to be held by the Company subject to the terms hereof, as
additional collateral security for the payment of the principal
of and interest on the Promissory Note. In case any distribution
of capital shall be made on or in respect of the Pledged Stock
or any property shall be distributed upon or with respect to the
Pledged Stock pursuant to the recapitalization or
reclassification of the capital of the Company or pursuant to
the reorganization of the Company, the property so distributed
shall be delivered to the Company to be held by it as additional
collateral security for the payment of the principal of and
interest on the Promissory Note. All sums of money and property
so paid or distributed in respect of the Pledged Stock which are
received by the Pledgor shall, until paid or delivered to the
Company, be held by the Pledgor in trust as additional
collateral security for the payment of the principal of and
interest on the Promissory Note.
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(ii) At any time, so long as no Event of Default has
occurred and is continuing, Borrower at his option may deliver
to the Company in substitution for the Pledged Stock Cole
National Group, Inc. 9-7/8% Senior Notes due 2006 or Cole
National Group, Inc. 8-5/8% Senior Notes due 2007 (collectively,
the "Bonds") in either case owned by the Borrower having a
principal amount equal to the unpaid principal amount and past
due interest of this Secured Promissory Note. In such event, the
Pledged Stock shall be returned to Borrower free of the lien of
this Stock Pledge and Security Agreement. Unless an Event of
Default shall have occurred and be continuing, all interest paid
on the Bonds shall belong to Borrower.
(iii) All property at any time pledged with the Company
hereunder (whether or not described herein) and all income
therefrom and proceeds thereof, are herein collectively
sometimes called the "Collateral."
(c) Notwithstanding paragraphs l and 2(b) hereof,
unless an Event of Default shall have occurred and be
continuing, the Pledgor shall be entitled to receive all cash or
stock dividends paid in respect of the Pledged Stock and, unless
the Company shall have given notice pursuant to paragraph 3 of
its intention to exercise all voting and stockholder rights with
respect to the Pledged Stock and any stock dividends thereof, to
vote the Pledged Stock and any stock dividends thereof and to
give consents, waivers and ratifications in respect of the
Pledged Stock or the Bonds and any stock dividends on the
Pledged Stock; PROVIDED, HOWEVER, that no vote shall be cast or
consent, waiver or ratification given or action taken which
would impair the Collateral or be inconsistent with or violate
any provision of this Agreement, the Promissory Note, or any
document or instrument delivered or to be delivered pursuant to
or in connection with the Promissory Note.
(d) Notwithstanding any payment or payments made by the
Pledgor hereunder, or the receipt of any amounts by the Company
with respect to the Collateral, or any set-off or application of
funds of the Pledgor by the Company, the Pledgor shall not be
entitled to be subrogated to any of the rights of the Company
against
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any Collateral held by the Company for the payment of the
principal of and interest on the Promissory Note until the
principal of and interest on the Promissory Note are paid in
full.
(e) The Pledgor shall immediately upon request by the
Company and in confirmation of the security interests hereby
created, execute and deliver to the Company such further
instruments, deeds, transfers, assurances and agreements, in
form and substance satisfactory to the Company, as the Company
shall request, including any financing statement and amendments
thereto, or any other documents, as required under Delaware law
and any other applicable law to protect the security interests
created hereunder.
(f) Subject to any sale by the Company or other
disposition by the Company of the Pledged Stock or any stock
dividends thereon or other property Collateral pursuant to this
Agreement and subject to Section 6 below, the Pledged Stock, the
Bonds and any other Collateral shall be returned to the Pledgor
upon full payment of the principal of and interest on the
Promissory Note.
3. RIGHTS OF HOLDING. The Company shall not be liable for
failure to collect or realize upon the principal of and interest on the
Promissory Note or any collateral security therefor, or any part thereof, or for
any delay in so doing nor shall the Company be under any obligation to take any
action whatsoever with regard thereto. Any or all shares of the Pledged Stock
and any stock dividends thereon held by the Company hereunder may, if an Event
of Default has occurred and is continuing, provided that the Company shall have
given prior written notice of its intention to do so to the Pledgor, be
registered in the name of the Company or its nominee, and the Company or its
nominee may thereafter exercise all voting and stockholder rights at any meeting
of the Company and exercise any and all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to any shares
of the Pledged Stock and any stock dividends thereon as if it were the absolute
owner thereof, including without limitation, the right to exchange at its
discretion, any and all of the Pledged Stock and any stock dividends thereon
upon the merger, consolidation, reorganization, recapitalization or other
readjustment of the Company or upon the exercise by the Company of any right,
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privilege or option pertaining to any shares of the Pledged Stock and any stock
dividends thereon, and in connection therewith, to deposit and deliver any and
all of the Pledged Stock and any stock dividends thereon with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as it may determine, all without liability except to account for
property actually received by it, but the Company shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure to do so or delay in so doing.
4. REMEDIES IN CASE OF AN EVENT OF DEFAULT.
(a) In case an Event of Default shall have occurred and
be continuing, the Company shall have all of the remedies of a
secured party under the Delaware Uniform Commercial Code, and,
without limiting the foregoing, shall have the right, subject to
any necessary regulatory approvals, to sell, assign and deliver
the whole or, from time to time, any part of the Collateral or
any interest in any part thereof, at any private sale or at
public auction, with or without demand of performance or other
demand, advertisement or notice of the time or place of sale or
adjournment thereof or otherwise, each of which demands,
advertisements and/or notices are hereby expressly waived
(except the Company shall give 10 days' notice to the Pledgor of
the time and place of any sale pursuant to this Section 4), for
cash, on credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as the
Company shall, in its sole discretion, determine, the Pledgor
hereby waiving and releasing any and all right or equity of
redemption whether before or after sale hereunder. At any such
sale the Company may bid for and purchase the whole or any part
of the Collateral so sold free from any such right or equity of
redemption. The Company shall apply the net proceeds of any such
sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care, safekeeping or
otherwise of any and all of the Collateral or in any way
relating to its rights hereunder, including reasonable
attorney's fees and legal expenses, to the payment in whole or
in part of the principal of and interest on the Promissory Note,
in such order as the Company may elect, the Pledgor
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remaining liable for any deficiency remaining unpaid after such
application, and only after so applying such net proceeds and
after the payment by the Company of any other amount required by
any provision of law, including, without limitation, Section
9-504(l)(c) of the Uniform Commercial Code, need the Company
account for the surplus, if any, to the Pledgor. The Pledgor
agrees that the Company need not give more than ten days' notice
of the time and place of any public sale or of the time after
which a private sale or other intended disposition is to take
place and that such notice is reasonable notification of such
matters. No notification need be given to the Pledgor if it has
signed after default a statement renouncing or modifying any
right to notification of sale or other intended disposition.
(b) The Pledgor recognizes that the Company may be
unable to effect a public sale of all or a part of the Pledged
Stock or other securities held as part of the Collateral by
reason of certain prohibitions contained in the Securities Act
of 1933 (the "Act"), or in the rules and regulations promulgated
thereunder, but may be compelled to resort to one or more
private sales to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire the Pledged
Stock or such other securities for their own account, for
investment and not with a view to the distribution or resale
thereof. The Pledgor agrees that private sales so made may be at
prices and on other terms less favorable to the seller than if
the Pledged Stock or such other securities were sold at public
sale, and that the Company has no obligation to delay the sale
of the Pledged Stock or such other securities for the period of
time necessary to permit the registration of the Pledged Stock
or such other securities for public sale under the Act. The
Pledgor agrees that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner.
(c) If any consent, approval or authorization of any
state, municipal or other governmental department, agency or
authority should be necessary to effectuate any sale or
disposition by the Company pursuant to this Section 4 of the
Pledged Stock or other securities held as part of the
Collateral, the Pledgor will execute all
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such applications and other instruments as may be required in
connection with securing any such consent, approval or
authorization, and will otherwise use his best effort to secure
the same.
(d) Neither failure nor delay on the part of the
Company to exercise any right, remedy, power or privilege
provided for herein or by statute or at law or in equity shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such right, remedy, power or privilege preclude
any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege.
5. PLEDGOR'S OBLIGATIONS NOT AFFECTED. The obligations of the
Pledgor under this Agreement shall remain in full force and effect with regard
to, and shall not be impaired or affected by: (a) any subordination, amendment
or modification of or addition or supplement to the Promissory Note, or any
assignment or transfer thereof: (b) any exercise or non-exercise by the Company
of any right, remedy, power or privilege under or in respect of this Agreement,
the Promissory Note, or any waiver of any such right, remedy, power or
privilege; (c) any waiver, consent, extension, indulgence or other action or
inaction in respect of this Agreement or the Promissory Note, or any assignment
or transfer of any thereof; or (d) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like, of the Company
or its successors, whether or not the Pledgor shall have notice or knowledge of
any of the foregoing.
6. TRANSFER BY PLEDGOR. Without the prior written consent of the
Company, the Pledgor agrees that he will not sell, assign, transfer, exchange,
or otherwise dispose of, or grant any option with respect to, the Collateral,
nor will he create, incur or permit to exist any pledge, lien, mortgage,
hypothecation, security interest, charge, option or any other encumbrance with
respect to any of the collateral, or any interest therein, or any proceeds
thereof, except for the lien and security interest provided for by this
Agreement.
7. REPRESENTATION, WARRANTIES AND COVENANTS OF THE PLEDGOR. The
Pledgor represents and warrants that (a) he is the legal, record and beneficial
owner of, and has good and marketable title to, the Pledged Stock, subject to no
pledge, lien, mortgage, hypothecation, security interest, charge, option
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or other encumbrance whatsoever, except the lien and security interest created
by this Agreement; (b) he has the authority and legal right to pledge all the
Pledged Stock pursuant to this Agreement; and (c) the pledge, assignment and
delivery of such Pledged Stock pursuant to this Agreement creates a valid first
lien on and a first perfected security interest in such shares of the Pledged
Stock, and the proceeds thereof, subject to no prior pledge, lien, mortgage,
hypothecation, security interest, charge, option or encumbrance or to any
agreement purporting to grant to any third party a security interest in the
property or assets of the Pledgor which would include the Pledged Stock. The
Pledgor covenants and agrees that he will defend the Company's right, title and
security interest in and to the Pledged Stock and the proceeds thereof against
the claims and demands of all persons whomsoever; and covenants and agrees that
he will have like title to and right to pledge any other property at any time
hereafter pledged to the Company as Collateral hereunder and will likewise
defend the Company's right thereto and security interest therein.
8. ATTORNEY-IN-FACT. The Company or its successor is hereby
appointed the attorney-in-fact of the Pledgor for the purpose of carrying out
the provisions of this Agreement and taking any action and executing any
instrument which the Company reasonably may deem necessary or advisable to
accomplish the purposes hereof, including without limitation, the execution of
the applications and other instruments described in Section 4(c), which
appointment as attorney-in-fact is irrevocable as one coupled with an interest.
9. TERMINATION. Upon payment in full of the principal of and
interest on the Promissory Note and upon the due performance of and compliance
with all the provisions of the Promissory Note, this Agreement shall terminate
and the Pledgor shall be entitled to the return of such of the Collateral as has
not theretofore been sold, released from this Agreement pursuant to Section 6 or
otherwise applied pursuant to the provisions of this Agreement.
10. NOTICES. All notices or other communications required or
permitted to be given hereunder shall be in writing and will be deemed to have
been duly given if delivered in person or mailed by certified mail or guaranteed
overnight delivery service to the Company at its principal executive offices and
to the Pledgor at the last address reflected in the Company's records.
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11. MISCELLANEOUS. The Company and its assigns shall have no
obligation in respect of the Collateral, except to hold and dispose of the same
in accordance with the terms of this Agreement. Neither this Agreement nor any
provisions hereof may be amended, modified, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against which
enforcement of the amendment, modification, waiver, discharge or termination is
sought. The provisions of this Agreement shall be binding upon the successors
and assigns of the Pledgor. The captions in this Agreement are for convenience
of reference only and shall not define or limit the provisions hereof. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware, without regard to the rules of conflicts of laws
thereof. This Agreement may be executed in multiple counterparts, each of which
shall be an original, but all of which taken together shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of November 17, 2000.
COLE NATIONAL CORPORATION
By /s/ Leslie D. Dunn
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Its: Sr. Vice President
PLEDGOR
/s/ Jeffrey A. Cole
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Name: Jeffrey A. Cole
Name of Pledgor: Jeffrey A. Cole
Number of Shares pledged: 123,750
Principal amount of Promissory Note: $666,666.00
