PLEDGE AND SECURITY AGREEMENT
Exhibit 10.2
Execution Version
THIS PLEDGE AND SECURITY AGREEMENT (this
“Agreement”),
dated as of June 29, 2020, is made by Talent Teams LLC, a Texas
limited liability company State of Texas (the “Pledgor”) in favor of Rekor
Systems, Inc., a Delaware corporation, (the “Secured Party”).
RECITALS
A.
Pledgor and Secured Party and the other parties thereto have
entered into that certain Stock Purchase Agreement dated as of June
29, 2020 pursuant to which Secured Party has agreed to sell and
Pledgor has agreed to buy from Secured Party, certain of the issued
and outstanding shares in Global Technical Services, Inc. (the
“Company”) (the
“Acquired
Shares”) of which Secured Party is the sole record and
beneficial owner (the “Transaction”);
B.
Following the Transaction the Acquired Shares will be 100% of the
issued and outstanding capital stock of the Company and Pledgor
will be the sole stockholder of the Company, and therefore receive
substantial benefits as a result of the Transaction.
C.
As partial consideration for the Transaction, the Company has
agreed to issue a promissory note to Secured Party (the
“Note”) which
Note and the obligations of the Company evidenced thereby are to be
secured by Pledgor’s pledge of the Acquired
Shares;
D.
To induce the Secured Party to enter into the Transaction and
execute all other documents related thereto, the Pledgor, by this
Agreement, intends to collaterally pledge and assign to the Secured
Party and grant the Secured Party a first priority security
interest in the Pledgor shares in the Company as more specifically
identified on Schedule
I attached hereto (the “Pledged Shares”), and the products
and proceeds thereof, both cash and non-cash, as security for
(among other things) the due and timely observance and performance
of all obligations of the Company under the Note.
NOW,
THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor hereby agrees as
follows:
1. Definitions.
(a) The
following terms have the following meanings:
“Acquired Shares” shall have the
meaning ascribed to such term in the Recitals to this
Agreement.
“Agreement” shall have the meaning
ascribed to such term in the preamble to this
Agreement.
“Articles of
Incorporation” shall mean the Articles of
Incorporation of the Company as in effect on the date
hereof.
“Collateral” shall have the meaning ascribed to
such term in Section
2(a).
“Company” shall have the meaning ascribed to
such term in the preamble to this Agreement.
“Event of Default” shall have the meaning ascribed to
such term in Section
9.
“Management Rights” shall have the meaning ascribed to
such term in Section
2(a).
“Note” shall have the meaning
ascribed to such term in the Recitals to this
Agreement.
“Obligations” shall mean and include all
obligations: (i) of the Company to the Secured Party under the
Note; and (ii) of the Pledgor to the Secured Party
hereunder.
“Person” shall mean any individual,
partnership, joint venture, corporation, trust, unincorporated
organization, limited liability company, governmental authority and
any other person or entity.
“Pledged Shares” shall have the
meaning ascribed to such term in the Recitals to this
Agreement.
“Secured Party” shall have the
meaning ascribed to such term in the preamble to this
Agreement.
“Transaction” shall have the
meaning ascribed to such term in the preamble to this
Agreement.
“UCC” shall mean the Uniform Commercial
Code as in effect in the State of Texas.
(b) Unless otherwise
expressly specified herein, defined terms denoting the singular
number shall, when in the plural form, denote the plural number of
the matter or item to which such defined terms refer, and
vice-versa.
(c) Words of the neuter
gender mean and include correlative words of the masculine and
feminine gender.
(d) The Section and
Schedule headings used in this Agreement are for conveyance only
and shall not affect the construction or meaning of any provisions
of this Agreement.
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(e)
Unless
otherwise specified, the words “hereof”, “herein”, “hereunder” and other similar words refer to
this Agreement as a whole and not just to the Section, subsection
or clause in which they are used.
(f)
References in this
Agreement to other instruments, agreements or documents shall be
references to such instruments, agreements or documents as they may
be amended, supplemented, restated or otherwise modified from time
to time, in accordance with the terms of, and to the extent
permitted by, such instruments, agreements or
documents.
(g)
All
references to statutes and regulations shall include any amendments
of same and any successor statutes and regulations.
(h) Unless otherwise
specified, references to Sections, Recitals and Schedules are
references to Sections of, and Recitals and Schedules to, this
Agreement.
(i) Unless otherwise
defined herein, terms used herein that are defined in the UCC shall
have the meanings assigned to them in the UCC. However, if a term
is defined in Article 9 of the UCC differently than in another
Article of the UCC, the term has the meaning specified in Article
9.
2. Grant
of Security Interest, Etc.
(a) As
continuing collateral security for the full and punctual payment
and performance of the Obligations (whether upon stated maturity,
by acceleration or otherwise), Pledgor hereby irrevocably grants,
pledges and assigns, subject to the terms of this Agreement, a
continuing first priority lien on and security interest in, and, as
a part of such grant, pledge and assignment, hereby assigns to the
Secured Party, as collateral security all of the following (whether
now owned or at any time hereafter acquired or now existing or
hereafter existing or created): (x) all of the Pledged Shares
including without limitation: (i) Pledgor’s interest in all
profits, distributions and other amounts to which Pledgor shall at
any time be entitled to in respect of the Pledged Shares; (ii) all
of Pledgor’s rights (including control rights), powers and
remedies, arising from its ownership of the Pledged Shares (the
rights described in this subsection (ii) shall be referred to as
“Management
Rights”); and (y) to the extent not
otherwise included, additions to, accessions to, substitutions of,
products or proceeds of any or all of the foregoing collateral
(collectively, (x) and (y) shall be referred to as the
“Collateral”).
(b) Pledgor hereby
acknowledges and consents (i) in the event of a foreclosure of the
Collateral pursuant to Section 10 to the transfer and
assignment to Secured Party, its designee, nominee or transferee of
the Collateral subject to this Pledge Agreement, and (ii) to the
exercise on one or more occasions of any rights or remedies by the
Secured Party pursuant to Section 10 or as allowed by
law.
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(c) Rights
of Secured Party. The
security created by this Agreement shall be held by Secured Party
as continuing security for the payment and performance of the
Obligations (whether existing on the date of this Agreement or
arising from time to time thereafter). Each and every right,
remedy, power and privilege conferred on or reserved to Secured
Party hereunder shall be cumulative and in addition to, and not in
limitation of, each and every right, remedy, power or privilege
conferred on or reserved to Secured Party under the
Note.
3. Distributions.
So long as no Event of Default shall have occurred and be
continuing, the Pledgor shall be entitled to receive and retain and
otherwise deal with any and all distributions paid to Pledgor from
proceeds in respect of the Collateral. Upon the occurrence and
during the continuance of an Event of Default all rights of the
Pledgor to receive the distributions and other payments which they
would otherwise be authorized to receive and retain pursuant to
this Section 3
shall cease, and all such rights shall thereupon become vested in
the Secured Party which shall thereupon have the sole right to
receive and hold as Collateral such distributions and other
payments.
4. Registration
of Pledge. The
Pledgor hereby represents and warrants that as of the date hereof
no Pledged Share in the Company is represented by any instrument or
certificate, other than instruments or certificates that have been
or are concurrently herewith being delivered to the Secured Party.
In the event that at any time after the date hereof any Collateral
shall be evidenced by an instrument or a certificate, the Pledgor
shall or shall cause the Company to promptly deliver such
instrument or certificate, duly endorsed or subscribed by the
Pledgor or accompanied by appropriate instruments of transfer or
assignment duly executed in blank by the Pledgor, to the Secured
Party as additional Collateral.
5. Representations
of Pledgor. Pledgor
represents and warrants to the Secured Party that:
(a) Pledgor
has the power and authority and the legal right to execute, deliver
and perform this Agreement and to grant the lien on the Collateral
contemplated hereby in favor of the Secured Party;
(b) the
execution, delivery and performance of this Agreement by the
Pledgor and the granting of the lien on the Collateral contemplated
hereby has been duly authorized by all necessary action and does
not and will not (i) violate any applicable law, rule or regulation
or any provision relating to the Pledgor, (ii) conflict with,
result in a breach of, or constitute a default under any provision
of the Articles of Incorporation or any agreement, indenture,
mortgage or other agreement or instrument to which the Pledgor are
a party or by which they or any of their properties or assets is
bound or subject or any license, judgment, order or decree of any
governmental authority having jurisdiction over the Pledgor or its
activities, properties or assets or (iii) result in or require the
creation or imposition of any lien upon or with respect to any
properties or assets now or hereafter owned by the Pledgor (other
than the liens created hereunder);
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(c) this
Agreement has been duly executed and delivered by the Pledgor and
constitutes a legal, valid and binding obligation of the Pledgor
enforceable against the Pledgor in accordance with its terms except
as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
enforceability of creditors’ rights generally and except as
specific performance may be subject to equitable principles of
general applicability;
(d) no
consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or governmental authority and no consent
of any other Person is required (i) for the execution, delivery and
performance of this Agreement by the Pledgor, (ii) for the pledge
by the Pledgor of the Collateral to the Secured Party pursuant to
this Agreement, or (iii) for the exercise by the Secured Party of
the rights provided for in this Agreement or the remedies in
respect of the Collateral pursuant to this Agreement, except (1)
such as have been obtained, made or taken and are in full force and
effect, or (2) such as may be required under federal or state
securities laws in connection with any sale of the
Collateral;
(e) the
Pledgor is the legal and beneficial owner of, and has good title to
the Collateral free and clear of all liens or security interests
other than the lien in favor of the Secured Party created by this
Agreement;
(f) there
are no outstanding options, warrants or other agreements with
respect to the Collateral; and
(g) Pledgor’s
principal address and the principal place where the Pledgor’s
records concerning the Collateral are kept is located at its
address set forth in Section 15. Pledgor will not
change the location of its principal address without giving the
Secured Party thirty (30) days prior written notice
thereof.
6. Covenants
of Pledgor. Pledgor
further represents, warrants, and covenants to the Secured Party
that:
(a) The
Pledgor will not sell, transfer, convey or otherwise dispose of any
interest in the Collateral.
(b) The
Pledgor will not suffer or permit any lien to exist on or with
respect to the Collateral except the lien created under this Pledge
Agreement.
(c) The
Pledgor hereby authorizes the Secured Party to file one or more
financing or continuation statements and amendments thereto
relating to all or part of the Collateral without the
Pledgor’s signature and Pledgor hereby ratifies its
authorization with respect to any such filings made prior to the
date hereof.
(d) The
Pledgor shall not permit or consent to: (i) any issuance of capital
stock or securities convertible into any capital stock of the
Company; or (ii) any amendment of the Articles of Incorporation
other than amendments or modifications that could not reasonably be
expected to adversely affect the Collateral, Secured Party or the
Pledgor’s duty or ability to perform any of its Obligations
under this Agreement, without the prior written consent of Secured
Party.
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7. Management
Rights of Pledgor. So
long as no Event of Default has occurred and is continuing and the
Secured Party has not elected to exercise its remedies pursuant to
Section 10, the
Pledgor shall be entitled to exercise all Management Rights with
respect to the Collateral. Upon the occurrence and during the
continuance of an Event of Default, the Secured Party, upon
delivering written notice to the Pledgor that it has elected to
exercise its remedies pursuant to Section 10, shall have the
exclusive right to exercise such Management Rights with respect to
the Collateral.
8. Additional
Rights of the Secured Party.
(a) If
the Pledgor fails to perform any agreement contained herein, the
Secured Party may (but shall not be obligated or required to)
perform, or cause the performance, of such agreement.
(b) At
any time upon the occurrence and during the continuance of an Event
of Default, the Secured Party may (but shall not be obligated or
required to):
i. cause the
Collateral to be transferred to its name or to the name of its
nominee or nominees and thereafter exercise as to such Collateral
all of the rights, powers and remedies of an owner;
and
ii. ask for, demand,
collect, xxx for, recover, compromise, receive and give
acquittances and receipts for monies due or to become due under or
in respect of any of the Collateral and hold the same as part of
the Collateral, or apply the same to any of the Obligations in such
manner as the Secured Party may direct in its sole
discretion.
All
amounts advanced by, or on behalf of, Secured Party in exercising
its rights under this Section 8 (including, but not
limited to, reasonable legal expenses and disbursements incurred in
connection therewith), shall be payable by Pledgor to Secured Party
on demand and shall be secured by the Collateral.
9. Event
of Default. An
“Event of
Default” shall exist if Pledgor breaches
any of its Obligations hereunder or any Event of Default, as
defined in the Note, shall have occurred and be continuing beyond
any applicable cure or notice period.
10. Remedies.
Upon the occurrence and during the continuance of an Event of
Default:
(a) The
Secured Party shall have all the rights and remedies of a secured
party under the UCC. In addition, the Secured Party shall have the
right, without demand of performance or other demand, advertisement
or notice of any kind, except as specified below, to or upon the
Pledgor or any other Person (all and each of which demands,
advertisements and/or notices are hereby expressly waived to the
extent permitted by law), to proceed forthwith to collect, receive,
appropriate and realize upon the Collateral, or any part thereof
and to proceed forthwith to sell, assign, give an option or options
to purchase, contract to sell, or otherwise dispose of and deliver
the Collateral or any part thereof in one or more parcels at public
or private sale or sales at any stock exchange, broker’s
board or at any of the Secured Party’s offices or elsewhere
at such prices and on such terms and restrictions (including,
without limitation, a requirement that any purchaser of all or any
part of the Collateral shall be required to purchase any securities
constituting the Collateral solely for investment and without any
intention to make a distribution thereof) as the Secured Party may
deem appropriate without any liability for any loss due to decrease
in the market value of the Collateral during the period held. If
any notification to the Pledgor of the intended disposition of the
Collateral is required by law, such notification shall be deemed
reasonable and properly given if given in the manner required by
Section 15 at least
ten (10) business days’ prior to such
disposition.
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(b) All
of the Secured Party’s rights and remedies under this
Agreement and under applicable law, including but not limited to
the foregoing, shall be cumulative and not exclusive and shall be
enforceable alternatively, successively or concurrently as the
Secured Party may deem expedient.
(c) Upon
any sale or other disposition, the Secured Party shall have the
right to deliver, endorse, assign and transfer to the purchaser
thereof the Collateral so sold or disposed of. Each purchaser at
any such sale or other disposition, including the Secured Party,
shall hold the Collateral free from any claim or right of whatever
kind, including any equity or right of redemption.
11. Disposition
of Proceeds. The
proceeds of any sale or disposition of all or any part of the
Collateral shall be applied (after payment of any amounts payable
to the Secured Party pursuant to Section 13) by the Secured
Party to the payment of the Obligations in such order as the
Secured Party may elect. Any surplus thereafter remaining shall be
paid to the Pledgor.
12. Duration
and Scope. This
Agreement shall remain in full force and effect until the
Obligations have been repaid in full, and until such time, this
Agreement shall:
(a) create
a continuing security interest in the Collateral;
(b) be
binding upon the Pledgor and their permitted successors and assigns
with respect to the Collateral or this Agreement; and
(c) inure
to the benefit of the Secured Party and its successors, transferees
and assigns.
13. Expenses
of the Secured Party.
All reasonable expenses (including, without limitation, reasonable
attorneys’ fees and disbursements) actually incurred by the
Secured Party in connection with the failure by the Pledgor to
perform or observe any provision of this Agreement, the exercise or
enforcement of any rights of the Secured Party under this Agreement
and the custody or preservation of any of the Collateral and any
actual or attempted sale or exchange of, or any enforcement,
collection, compromise or settlement respecting, the Collateral, or
any other action taken by the Secured Party hereunder, shall be
deemed an obligation of Pledgor and shall be deemed an Obligation
for all purposes of this Agreement and the Secured Party may apply
the Collateral to payment of or reimbursement of itself for such
liability.
14. Survival
and Continuation of Obligations.
(a) No
failure on the part of the Secured Party to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise by
the Secured Party of any right, power or remedy hereunder preclude
any other or future exercise thereof, or the exercise of any other
right, power or remedy. The representations, covenants and
agreements of the Pledgor herein contained shall survive the date
hereof.
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(b) No
amendment or waiver of any provision of this Agreement nor consent
to any departure by the Pledgor herefrom nor release of all or any
part of the Collateral shall in any event be effective unless the
same shall be in writing, signed by the Secured Party and the
Pledgor. Any such waiver or consent or release shall be effective
only in the specific instance and for the specific purpose for
which it is given.
(c) The
Obligations of the Pledgor under this Agreement shall remain in
full force and effect without regard to, and shall not be impaired
or affected by any amendment or modification or addition or
supplement to the Note, any document or instrument delivered in
connection therewith or any assignment or transfer
thereof.
15. Notices.
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (or by telex, fax or
similar electronic transfer confirmed in writing), and, unless
otherwise expressly provided herein, shall be deemed to have been
duly given or made (a) when delivered by hand or (b) if given by
mail, three business days after deposited in the mails by certified
mail, return receipt requested, postage prepaid, or (c) if by
telex, fax or similar electronic transfer, when sent and receipt
has been confirmed, addressed as follows.
If to
Pledgor:
Talent
Teams LLC
Attn:
Xxxxx Xxxxxxxxxx
0000
Xxxxxxxxx Xxxxx
Xxxx
Xxxxx, XX 00000
Email:
xxxxxxxx@xxxxxxxxxx.xxx
with a
copy, which shall not constitute notice, to:
Xxxxxx
Xxxxx, P.C.
Attn:
Xxxxxx Xxxxxxx
000
Xxxxxx Xx. #46
Xxxxxxx
Plaza, Ste. 2000
Xxxx
Xxxxx, XX 00000
Email:
xxxxxxxx@xxxxxxxxxxx.xxx
If to
Secured Party:
Attn:
Eyal Hen
0000
Xxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX
00000
E-mail:
xxxx@xxxxxxxxxxxx.xxx and xxxxx@xxxxxxxxxxxx.xxx
with a
copy, which shall not constitute notice, to:
Xxxxxxx
& Xxxxxx LLP
Attn:
Xxx Xxxx
0000
Xxxxxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX
00000-0000
Email:
xxxxx@xxxxxxx.xxx
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Any
party may change its address for notices by notice to the other
parties hereto in the manner provided in this
subsection.
16. Severability;
Automatic Reformation.
(a) All
rights, powers and remedies provided herein may be exercised only
to the extent that the exercise thereof does not violate any
applicable law, and are intended to be limited to the extent
necessary so that they will not render this Agreement invalid or
unenforceable. If any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, but
the balance of this Agreement shall be construed as if such
invalid, illegal or unenforceable provision or provisions had never
been included.
(b) If
any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable, such provision shall be
automatically reformed and construed so as to be valid, operative
and enforceable to the maximum extent permitted by the law while
most nearly preserving its original intent. The invalidity of any
part of this Agreement shall not render invalid the remainder of
this Agreement.
17. Further
Assurances. Pledgor
shall, at the Pledgor’s cost and expense, at any time and
from time to time after the execution and delivery of this
Agreement, promptly after request by Secured Party, execute,
acknowledge and deliver such further conveyances, assignments,
agreements and instruments of further assurances and other
documents and do such further acts and things as Secured Party may
reasonably request and are reasonably necessary in order to carry
into effect the purposes of this Agreement or to further assure and
confirm unto Secured Party its rights, powers and remedies
hereunder. Pledgor hereby consents and agrees that Company or any
registrar or transfer agent for any of the Collateral shall be
entitled to accept the provisions hereof as conclusive evidence of
the right of Secured Party to effect any transfer pursuant to this
Agreement, notwithstanding any other notice or direction to the
contrary heretofore or hereafter given by the Pledgor or any other
Person to Company or to any such registrar or transfer
agent.
18. Governing
Law; Entire Agreement. This Agreement and the rights and
Obligations of the Pledgor and the Secured Party under this
Agreement shall be governed by, and construed and interpreted in
accordance with, the law of the State of Maryland without regard to
principles of conflict of laws thereunder. This Agreement, together
with the Note, set forth the entire understanding of the parties
hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, whether oral or written,
relating thereto.
19. Waiver
of Trial by Jury.
EACH OF PLEDGOR AND SECURED PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN AND THAT PLEDGOR OR SECURED PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 19 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF PLEDGOR AND SECURED PARTY TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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20. Counterparts;
Section Headings.
(a) This Agreement may
be executed in counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts
taken together shall constitute but one and the same instrument.
Any signature delivered by a party by facsimile transmission, and
any signature on a pdf. copy of a document delivered by electronic
transmission, shall be deemed to be an original signature
hereto.
(b) The section
headings in this Agreement are for convenience of reference only
and shall not affect the interpretation thereof.
21. No
Waiver; Cumulative Remedies. No course of dealing between Pledgor
and Secured Party, no failure on the part of Secured Party to
exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right, power or remedy by Secured
Party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. All remedies
hereunder are cumulative and not exclusive of any other remedies
provided by law to the extent not inconsistent with the provisions
hereof, including without limitation the rights and remedies of a
secured party under the Uniform Commercial Code.
[Signature page follows]
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IN WITNESS WHEREOF, Pledgor has caused
this Agreement to be executed as of the day and year first above
written.
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PLEDGOR:
TALENT
TEAMS LLC
By:
/s/ Xxxxx
Xxxxxxxxxx
Name:
Xxxxx Xxxxxxxxxx
Title:
Member
By:
/s/ Xxxx
Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Member
SECURED
PARTY:
By:
/s/ Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Chief Executive Officer
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[Signature Page to Pledge and Security
Agreement]
