EXHIBIT 10.18
Pledge Agreement
In order to secure payment of the promissory note dated December 7,
1999 (the "Note") payable to AvantGo, Inc., a Delaware corporation (the
"Company"), at its principal offices in the principal amount of Ninety-Nine
Thousand Nine Hundred Ninety-Eight Dollars and Fifty Cents ($99,998.50), which
Note XXXXXX XXXXXX (the "Borrower") delivered in connection with a loan extended
to the Borrower by the Company, the Borrower hereby grants the Company a
security interest in, and assigns, transfers and pledges to the Company, the
following securities and other property:
Section 1. The Fifty-Seven Thousand One Hundred Forty-Two (57,142) shares
of the Company's Common Stock (the "Common Stock") delivered to and deposited
with the Company as collateral for the Note; and
Section 2. Any and all new, additional or different securities or other
property subsequently distributed with respect to the shares identified in
Subsection (a) above that are to be delivered to and deposited with the Company
pursuant to the requirements of Section 3 of this Agreement; and
Section 3. Any and all other property and money that is delivered to or
comes into the possession of the Company pursuant to the terms and provisions of
this Agreement; and
Section 4. The Individual Retirement Account (the "Account") maintained at
Solomon Xxxxx Xxxxxx in the name of Xxxxxx Xxxxxx, account number 000-00000-00;
and
Section 5. The proceeds of any sale, exchange or disposition of the
property and securities described in Subsection (a), (b), (c) or (d) above.
All securities, property and money to be assigned to, transferred to and pledged
with the Company shall be herein referred to as the "Collateral" and, in the
case of the securities, shall be accompanied by one or more stock power
assignments properly endorsed by the Borrower. The Company shall hold the
Collateral in accordance with the following terms and provisions:
(a) Warranties. The Borrower hereby warrants that the Borrower is the
owner of the Collateral and has the right to pledge the Collateral and that the
Collateral is free from all liens, advance claims and other security interests
(other than those created hereby).
(b) Rights and Powers. The Company may, without obligation to do so,
exercise one or more of the following rights and powers with respect to the
Collateral:
(i) Accept in its discretion, but subject to the applicable
limitations of Section 8, other property of the Borrower in exchange for all or
part of the Collateral and release Collateral to the Borrower to the extent
necessary to effect such exchange, and in such event the
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money, property or securities received in the exchange shall be held by the
Company as substitute security for the Note and all other indebtedness secured
hereunder;
(ii) Perform such acts as are necessary to preserve and protect
the Collateral and the rights, powers and remedies granted with respect to such
Collateral by this Agreement; and
(iii) Transfer record ownership of the Collateral to the Company
or its nominee and receive, endorse and give receipt for, or collect by legal
proceedings or otherwise, dividends or other distributions made or paid with
respect to the Collateral, but only if there exists at the time an outstanding
event of default under Section 9 of this Agreement.
Any action by the Company pursuant to the provisions of this Section 2
may be taken without notice to the Borrower. Expenses reasonably incurred in
connection with such action shall be payable by the Borrower and form part of
the indebtedness secured hereunder, as provided in Section 10.
So long as there exists no event of default under Section 9 of this
Agreement, the Borrower may exercise all shareholder voting rights and be
entitled to receive any and all regular cash dividends paid on the Collateral.
Accordingly, until such time as an event of default occurs under this Agreement,
all proxy statements and other shareholder materials pertaining to the
Collateral shall be delivered to the Borrower at the address indicated below.
Any cash sums that the Company may receive in the exercise of its
rights and powers under this Section 2 shall be applied to the payment of the
Note and any other indebtedness secured hereunder, in such order of application
as the Company deems appropriate. Any remaining cash shall be paid over to the
Borrower.
(c) Duty to Deliver. Any new, additional or different securities that
may now or hereafter become distributable with respect to the Collateral by
reason of (i) any stock dividend, stock split or reclassification of the capital
stock of the Company or (ii) any merger, consolidation or other reorganization
affecting the capital structure of the Company shall, upon receipt by the
Borrower, be promptly delivered to and deposited with the Company as part of the
Collateral hereunder. Such securities shall be accompanied by one or more
properly endorsed stock power assignments.
(d) Care of Collateral. The Company shall exercise reasonable care in
the custody and preservation of the Collateral but shall have no obligation to
initiate any action with respect to, or otherwise inform the Borrower of, any
conversion, call, exchange right, preemptive right, subscription right, purchase
offer or other right or privilege relating to or affecting the Collateral;
provided, however, that the Company will notify the Borrower of any such rights
of the Borrower to protect against adverse claims or to protect the Collateral
against the possibility of a decline in market value. The Company shall not be
obligated to take any action with respect to the Collateral requested by the
Borrower unless the request is made in writing and the Company determines that
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the requested action will not unreasonably jeopardize the value of the
Collateral as security for the Note and other indebtedness secured hereunder.
The Company may at any time release and deliver all or part of the
Collateral to the Borrower, and the receipt thereof by the Borrower shall
constitute a complete and full acquittance for the Collateral so released and
delivered. The Company shall accordingly be discharged from any further
liability or responsibility for the Collateral, and the released Collateral
shall no longer be subject to the provisions of this Agreement. However, any
and all releases of the Collateral shall be effected in compliance with the
applicable limitations of Section 8(a) and (c).
(e) Payment of Taxes and Other Charges. The Borrower shall pay, prior
to the delinquency date, all taxes, liens, assessments and other charges against
the Collateral, and in the event of the Borrower's failure to do so, the Company
may at its election pay any or all of such taxes and charges without contesting
the validity or legality thereof. The payments so made shall become part of the
indebtedness secured hereunder and, until paid, shall bear interest at the
minimum per annum rate, compounded annually, required to avoid the imputation of
interest income to the Company and compensation income to the Borrower under the
federal tax laws.
(f) Covenants of Borrower. Borrower will not (a) sell, assign,
convey, lease or otherwise transfer or permit the transfer of the Collateral, or
any interest therein; or (b) create, permit or suffer to exist any mortgage,
pledge, hypothecation, assignment, security interest, lien charge or encumbrance
or preference, priority or other security agreement or arrangement of any kind
or nature whatsoever, in the Collateral, or any interest therein.
(g) Transfer of Collateral. In connection with the transfer or
assignment of the Note (whether by negotiation, discount or otherwise), the
Company may transfer all or any part of the Collateral, and the transferee shall
thereupon succeed to all the rights, powers and remedies granted the Company
hereunder with respect to the Collateral so transferred. Upon such transfer, the
Company shall be fully discharged from all liability and responsibility for the
transferred Collateral.
(h) Release of Collateral. Provided (i) all indebtedness secured
hereunder (other than payments not yet due and payable under the Note) shall at
the time have been paid in full or cancelled and (ii) there does not otherwise
exist any event of default under Section 8, the pledged shares of Common Stock,
together with any additional Collateral that may hereafter be pledged and
deposited hereunder, shall be released from pledge and returned to the Borrower
in accordance with the following provisions:
(i) Upon payment or prepayment of principal under the Note,
together with payment of all accrued interest to date, one or more shares of
Common Stock held as Collateral hereunder shall (subject to the limitation of
Subsection (d) below) be released to the Borrower within three days after such
payment or prepayment. The number of shares to be so released shall be equal to
the number obtained by multiplying (i) the total number of shares of Common
Stock held under this Agreement at the time of the payment or prepayment by (ii)
a fraction, the numerator of which shall be the amount of the principal paid or
prepaid and the denominator of which shall be the unpaid
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principal balance of the Note immediately prior to such payment or prepayment.
In no event, however, shall any fractional shares be released.
(ii) One or more shares of Common Stock held as Collateral
hereunder shall (subject to the limitation of Subsection (d) below) be released
to a stockbroker designated in writing by the Borrower and acceptable to the
Company for the sole purpose of effecting an immediate sale of the released
shares, provided that such stockbroker agrees to forward any proceeds (up to the
balance of principal and interest due under the Note) directly to the Company to
be used to satisfy the Note.
(iii) Any additional Collateral that may hereafter be pledged
and deposited with the Company (pursuant to the requirements of Section 3) with
respect to the shares of Common Stock pledged hereunder shall be released at the
same time the particular shares of Common Stock to which the additional
Collateral relates are to be released in accordance with the applicable
provisions of Subsection (a) or (b) above. Under no circumstances, however,
shall any shares of Common Stock or any other Collateral be released if
previously applied to the payment of any indebtedness secured hereunder.
(iv) In no event shall any shares of Common Stock be released
pursuant to the provisions of Subsections (a), (b) and (c) above if, and to the
extent, the fair market value of the Common Stock and all other Collateral that
would otherwise remain in pledge hereunder after such release is effected would
be less than the unpaid balance of the Note (principal and accrued interest).
(i) Events of Default. The occurrence of one or more of the following
events shall constitute an event of default under this agreement:
(i) The failure of the Borrower to pay the principal and
accrued interest when due under the Note;
(ii) The failure of the Borrower to perform a material
obligation imposed upon the Borrower by reason of this Agreement; or
(iii) The breach of any covenant, representation or warranty of
the Borrower contained in this Agreement.
Upon the occurrence of any such event of default, the Company may, at
its election, declare the Note and all other indebtedness secured hereunder to
be immediately due and payable and may exercise any or all of the rights and
remedies granted to a secured party under the provisions of the California
Uniform Commercial Code (as now or hereafter in effect), including (without
limitation) the power to dispose of the Collateral by public or private sale or
to accept the Collateral in full payment of the Note and all other indebtedness
secured hereunder.
Any proceeds realized from the disposition of the Collateral pursuant
to the foregoing power of sale shall be applied first to the payment of
reasonable expenses incurred by the Company in connection with the disposition,
then to the payment of the Note and finally to any other indebtedness secured
hereunder. Any surplus proceeds shall be paid over to the Borrower.
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However, in the event such proceeds prove insufficient to satisfy all
obligations of the Borrower under the Note, then the Borrower shall remain
personally liable for the resulting deficiency.
(j) Other Remedies. The rights, powers and remedies granted to the
Company and the Borrower pursuant to the provisions of this Agreement shall be
in addition to all rights, powers and remedies granted to the Company and the
Borrower under any statute or rule of law. Any forbearance, failure or delay by
the Company or the Borrower in exercising any right, power or remedy under this
Agreement shall not be deemed to be a waiver of such right, power or remedy. Any
single or partial exercise of any right, power or remedy under this Agreement
shall not preclude the further exercise thereof, and every right, power and
remedy of the Company and the Borrower under this Agreement shall continue in
full force and effect, unless such right, power or remedy is specifically waived
by an instrument executed by the Company or the Borrower, as the case may be.
(k) Costs and Expenses. All reasonable costs and expenses (including
reasonable attorneys fees) incurred by the Company in the exercise or
enforcement of any right, power or remedy granted it under this Agreement shall
become part of the indebtedness secured hereunder and shall constitute a
personal liability of the Borrower payable immediately upon demand and bearing
interest until paid at the Company's bank interest rate then being earned by the
Company on its deposits.
(l) Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California and shall be binding upon
the executors, administrators, heirs and assigns of the Borrower.
(m) Arbitration. Any controversy between the parties hereto involving
the construction or application of any terms, covenants or conditions of this
Agreement or the Note, or any claims arising out of or relating to this
Agreement or the Note, or the breach hereof or thereof, will be submitted to and
settled by final and binding arbitration in San Francisco, California, in
accordance with the rules of the American Arbitration Association then in
effect, and judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. In the event of any arbitration under
this Agreement or the Note, the prevailing party shall be entitled to recover
from the losing party reasonable expenses, attorneys' fees and costs incurred
therein or in the enforcement or collection of any judgment or award rendered
therein. The "prevailing party" means the party determined by the arbitrator to
have most nearly prevailed, even if such party did not prevail in all matters,
not necessarily the one in whose favor a judgment is rendered.
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(n) Severability. If any provision of this Agreement is held to be
invalid under applicable law, then such provision shall be ineffective only to
the extent of such invalidity, and neither the remainder of such provision nor
any other provisions of this Agreement shall be affected thereby.
IN WITNESS WHEREOF, this Agreement has been executed by the Borrower
on this 7/th/ day of December, 1999.
/s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX
Address:________________________
________________________
Agreed to and Accepted by:
AVANTGO, INC.
By: /s/ Xxxxx Xxx
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Xxxxx Xxx, Chief Executive Officer
Dated: December 1, 1999
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, _________________ hereby sell(s), assign(s) and
transfer(s) to AVANTGO, INC. (the "Corporation") _______________________
(________) shares of the Common Stock of the Corporation standing in
his/her/their name on the books of the Corporation and represented by
Certificate(s) No. ___________________ herewith and does hereby irrevocably
constitute and appoint __________________ as attorney-in-fact to transfer said
stock on the books of the Corporation with full power of substitution.
Dated: ____________________, ________.
Signature /s/ Xxxxxx Xxxxxx
---------------------------------
Xxxxxx Xxxxxx
Spouse's Signature /s/ Xxxxx Xxxxxx
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Instruction: Please do not fill in any blanks other than the signature
line. Please sign exactly as you would like your name to appear on the issued
stock certificate.
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