Exhibit 10.15
EXHIBIT C
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT dated __________, 200__ is entered into by and
between D. Xxxxxx Xxxx, a resident of the State of Minnesota (the "Pledgor") and
Active IQ Technologies, Inc., a Minnesota corporation (the "Pledgee").
WHEREAS, Pledgor and Pledgee have entered into that certain Stock
Option Agreement (the "Option Agreement") dated January 7, 2002, pursuant to
which Pledgor was granted an option to purchase up to 500,000 shares of
Pledgee's common stock;
WHEREAS, Pledgor has borrowed from Pledgee the sum of $_______ to
purchase shares of Pledgee's common stock in connection with the Option
Agreement;
WHEREAS, Pledgee's loan to Pledgor is evidenced by Pledgor's promissory
note of even date herewith (the "Note"); and
WHEREAS, the terms and conditions of the Option Agreement provide that
Pledgor shall secure any loan issued in connection with an exercise under the
Option Agreement with an interest in the securities purchased with the loan
proceeds.
NOW, THEREFORE, in order to secure payment of the Note, and any and all
amounts that may become owing thereunder (the "Obligations"), and in
consideration of the premises and the mutual covenants of the parties
hereinafter set forth, it is agreed:
1. Pledge. As collateral for the payment of the Obligations, Pledgor
hereby grants a security interest to Pledgee and deposits with Pledgee
(accompanied by a Medallion guaranteed stock power executed in blank) 500,000
shares of common stock of Active IQ Technologies, Inc. issued to Pledgor bearing
certificate number(s) ______ (which shares shall hereinafter be referred to as
the "Pledged Stock") and agrees to perform the obligations set forth herein. The
Pledged Stock shall be held and disposed of pursuant to the terms of this
Agreement.
2. Further Assurances. Pledgor agrees at any time, and from time to
time, to execute such other instruments as Pledgee may reasonably request to
establish, maintain, and perfect the security interest in the Pledged Stock
conveyed by this Agreement.
3. Rights of Pledgor. Prior to the occurrence of an Event of Default:
(a) Pledgor shall have the right to exercise all voting and
other powers pertaining to the Pledged Stock for all purposes;
(b) All dividends or other distributions with respect to the
Pledged Stock shall be payable to Pledgor; provided, however, that
following an Event of Default, Pledgor shall have no right to dividends
or other distributions with respect to the Pledged Stock.
4. Representations and Warranties. Pledgor represents and warrants as
follows:
(a) Pledgor has good and marketable title to the Pledged
Stock, free and clear of all security interests, liens, and
encumbrances, except the security interest granted hereunder and will
defend the Pledged Stock against all claims or demands of all persons
other than the Pledgee.
(b) Pledgor will not sell or otherwise dispose of any Pledged
Stock or any interest therein without the prior written consent of the
Pledgee;
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(c) Pledgor will keep the Pledged Stock free and clear of all
security interests, liens, and encumbrances, except the security
interest granted hereunder.
5. Adjustment. In the event that during the term of this Agreement any
share dividend, reclassification, readjustment, or other change is declared or
made in the capital structure of Pledgee, all new, substituted, and additional
shares, or other securities issued by reason of original issuance of the Pledged
Stock shall be subject to the terms of this Agreement in the same manner as, and
as a part of, the Pledged Stock.
6. Termination. Upon full performance of all of the Obligations,
Pledgee shall transfer to Pledgor all of the Pledged Stock and deliver any
assignments separate from certificate for cancellation, and all rights received
by Pledgee under this Agreement shall terminate.
7. Events of Default. An event of default under this Agreement ("Event
of Default") shall occur when an Event of Default shall occur under the Note or
when Pledgor shall fail to observe or perform any covenant or agreement herein
binding on Pledgor as set forth in the Option Agreement, this Agreement or the
Note; provided, however, that as to any default due to failure to observe or
perform any covenant or agreement hereunder, Pledgor shall have thirty (30) days
from the date of written notice by Pledgee of such default to cure such default.
8. Remedies. Upon the occurrence of an Event of Default and at any time
thereafter, Pledgee may exercise any one or more of the following rights or
remedies: (a) declare all unmatured Obligations to be immediately due and
payable, and the same shall thereupon be immediately due and payable, without
presentment or other notice or demand; (b) exercise and enforce any or all
rights and remedies available upon default to a secured party under the Uniform
Commercial Code, including the right to offer and sell the Pledged Stock
privately to purchasers who will agree to take the Pledged Stock for investment
and not with a view to distribution and who will agree to the imposition of
restrictive legends on any certificates representing the Pledged Stock, and the
right to arrange for a sale which would otherwise qualify as exempt from
registration under the Securities Act of 1933, as amended, and if notice to
Pledgor of any intended disposition of the Pledged Stock or any other intended
action is required by law in a particular instance, such notice shall be deemed
commercially reasonable if given at least ten (10) calendar days prior to the
date of intended disposition or other action; or (d) exercise or enforce any or
all other rights or remedies available to Pledgee by law or agreement against
the Pledged Stock, against Pledgor or against any other person or property.
9. Application of Proceeds. The proceeds of any sale of all or a part
of the Pledged Stock shall be applied as follows:
(a) First, to the payment of all costs and expenses incurred
by Pledgee in enforcing Pledgee's rights under this Agreement,
including without limitation, the fees of attorneys or other agents
employed by Pledgee in connection therewith;
(b) Second, to the payment of all of the Obligations;
(c) Third, any surplus remaining after application of the
proceeds pursuant to subsections (a) and (b) above shall be paid to
Pledgor or the successors or assigns thereof.
Pledgor shall remain liable to Pledgee for any deficiency.
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10. Miscellaneous. The parties agree as follows:
(a) No waiver of any of the provisions or conditions of this
Agreement shall be effective unless such waiver is in writing and
signed by the party claimed to have given, or consented to, such
waiver;
(b) No failure on the part of Pledgee to exercise, and no
delay on the part of Pledgee in exercising, any right, power, or remedy
pursuant to this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise by Pledgee of any right, power, or
remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or remedy. The remedies herein
provided are cumulative and shall not be exclusive of any other
remedies provided by law or agreement;
(c) The terms and conditions of this Agreement shall inure to
the benefit of, and be binding upon, the respective legal
representatives, successors, and assigns of the parties; provided,
however, that Pledgor may not assign this Agreement or Pledgor's
obligations, duties, or liabilities hereunder without the express prior
written consent of Pledgee;
(d) This Agreement is delivered and is intended to be
performed in the State of Minnesota and should be construed and
enforced in accordance with the laws of such state (without regard to
laws governing the conflict of laws);
(e) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument;
(f) This Agreement may not be amended except by written
agreement executed by all parties hereto;
(g) If any provision or application of this Agreement is held
unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications
which can be given effect, and this Agreement shall be construed as if
the unlawful or unenforceable provision or application had never been
contained herein or prescribed hereby;
(h) All representations and warranties contained in this
Agreement shall survive the execution, delivery, and performance of
this Agreement and any other documents or instruments executed or
delivered in connection with or pursuant to any of the foregoing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PLEDGOR:
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D. Xxxxxx Xxxx
ACTIVE IQ TECHNOLOGIES, INC.
By:
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Its:
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