PLEDGE AGREEMENT
Exhibit 10.4
THIS PLEDGE AGREEMENT, made as of this
21st day
of July, 2017 (this “Agreement”),
is between Friendable, Inc., a Nevada corporation (the
“Pledgor”), and
Alpha Capital Anstalt, on its own behalf and in its capacity as
collateral agent for the Buyers identified below (in such capacity,
together with its successors and assigns, the “Pledgee”).
WHEREAS:
A.
Friendable, Inc., a Nevada corporation (the “Company”),
has executed and delivered to each of the Buyers (as defined below)
those certain senior notes, dated as of the date hereof, in an
original aggregate principal amount of $300,000 (such notes,
together with any promissory notes or other securities issued in
exchange or substitution therefor or replacement thereof, and as
any of the same may be amended, supplemented, restated or modified
and in effect from time to time, the “Notes”). The
Notes were issued pursuant to that certain Securities Purchase
Agreement dated as of July 21, 2017 (as the same may be amended,
restated, supplemented or otherwise modified, the
“Loan
Agreement”), among the Company and the buyers listed
on the signature pages thereto (together with their respective
successors and assigns, the “Buyers”), and
pursuant to which the Buyers have made certain loans
(“Loans”) to the
Company.
B. The
Pledgor is a shareholder of the Company and has agreed to enter
into a Guaranty dated the date hereof (the “Guaranty”) in
favor of the Pledgee, guaranteeing all present and future
obligations of the Company under the Loan Agreement, the Notes, and
the other Transaction Agreements (as defined in the Loan Agreement)
on such terms and conditions as are set forth therein and has also
agreed to pledge the Pledged Collateral (as defined below) to
secure all of his obligations under the Guaranty as further
described herein.
C. It
is a condition precedent to the Buyers’ purchase of the Notes
that the Pledgor shall have executed and delivered to the Pledgee
for the benefit of the Buyers this Agreement.
NOW, THEREFORE, in consideration of the
premises and in order to induce the Buyers to purchase the Notes
under the Loan Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor hereby agrees with the Pledgee as
follows:
1. Defined Terms. Unless otherwise
defined herein, all capitalized terms used herein shall have the
meanings given them in the Loan Agreement.
2. Pledge. As collateral security
for all of the Obligations (as defined in the Guaranty), the
Pledgor hereby pledges and assigns and grants to the Pledgee, for
the benefit of the Buyers, a continuing first priority perfected
security interest in, and first lien on, all of his right, title
and interest in and to the following (collectively, the
“Pledged
Collateral”):
(a) [REQUIRES
COMPLETION] shares of common stock of its subsidiary, Fan
Pass, Inc. owned by the Pledgor, as further described in
Exhibit A (as such
Schedule may be amended from time to time in accordance with the
terms hereof), and any and all future, issued and outstanding
shares of capital stock, or other equity or investment securities
of, or partnership, membership, or joint venture interests in, Fan
Pass, Inc., whether now owned or hereafter acquired by the Pledgor
and whether or not evidenced or represented by any stock
certificate, certificated security or other instrument, together
with the certificates representing such equity interests, all
options and other rights, contractual or otherwise, in respect
thereof and all dividends, distributions, cash, instruments,
investment property and any other property (including, but not
limited to, any stock dividend and any distribution in connection
with a stock split) from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
of the foregoing and all cash and noncash proceeds thereof
(collectively, the “Pledged
Shares”),
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(b) all present and
future increases, profits, combinations, reclassifications, and
substitutes and replacements for all or part of the foregoing
Pledged Collateral heretofore described;
(c) all investment
property, financial assets, securities, capital stock, other equity
interests, stock options and commodity contracts of the Pledgor,
all notes, debentures, bonds, promissory notes or other evidences
of indebtedness payable or owing to the Pledgor, and all other
assets now or hereafter received or receivable with respect to the
foregoing Pledged Collateral heretofore described;
(d) all securities
entitlements of the Pledgor in any and all of the foregoing Pledged
Collateral heretofore described; and
(e) all proceeds
(including proceeds of proceeds) of any and all of the foregoing
Pledged Collateral heretofore described;
in each
case, whether now owned or hereafter acquired by the Pledgor and
howsoever its interest therein may arise or appear (whether by
ownership, security interest, lien, claim or otherwise). All of the
Pledged Shares now owned by the Pledgor which are presently
represented by certificates are listed on Exhibit A hereto, which
certificates, with undated assignments separate from certificates
or stock powers duly executed in blank by the Pledgor and
irrevocable proxies, are being delivered to the Pledgee
simultaneously herewith. Upon the creation or acquisition of any
new Pledged Shares, the Pledgor shall execute an Addendum in the
form of Exhibit B
attached hereto (a “Pledge
Addendum”). Any Pledged Collateral described in a
Pledge Addendum executed by the Pledgor shall thereafter be deemed
to be listed on Exhibit
A hereto. The Pledgee shall maintain possession and custody
of the certificates representing the Pledged Shares and any
additional Pledged Collateral.
3. Representations and Warranties of the
Pledgor. The Pledgor represents and warrants to
the Pledgee, and covenants with the Pledgee, that:
(a) the Pledgor is the
record and beneficial owner of, and has good and marketable title
to, the Pledged Shares, and such shares or other equity interests
are and will remain free and clear of all pledges, liens, security
interests and other encumbrances and restrictions whatsoever,
except the liens and security interests in favor of the Pledgee
created by this Agreement;
(b) there are no
outstanding options, warrants or other similar agreements with
respect to the Pledged Shares or any of the other Pledged
Collateral;
(c) this Agreement is
the legal, valid and binding obligation of the Pledgor, enforceable
against the Pledgor in accordance with its terms;
(d) the Pledged Shares
have been duly and validly authorized and issued, are fully paid
and non-assessable and the holders thereof are not entitled to any
preemptive first refusal or similar rights;
(e) no consent,
approval or authorization of or designation or filing with any
governmental or regulatory authority on the part of the Pledgor is
required in connection with the pledge and security interest
granted under this Agreement;
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(f) the execution,
delivery and performance of this Agreement will not violate any
provision of any applicable law or regulation or of any order,
judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, or any mortgage,
indenture, lease, contract, or other agreement, instrument or
undertaking to which the Pledgor is a party or which purports to be
binding upon the Pledgor or upon any of the assets of the Pledgor,
and will not result in the creation or imposition of any lien,
charge or encumbrance on or security interest in any of the assets
of the Pledgor or Fan Pass, Inc., except as otherwise contemplated
by this Agreement; and
(g) the pledge,
assignment and delivery of the Pledged Shares and the other Pledged
Collateral pursuant to this Agreement creates a valid first lien on
and perfected first priority security interest in such Pledged
Shares and Pledged Collateral and the proceeds thereof in favor of
the Pledgee, 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 Shares or any other Pledged Collateral. The
Pledgor covenants and agrees that it will defend, for the benefit
of the Pledgee, the Pledgee’s right, title and security
interest in and to the Pledged Shares, the other Pledged Collateral
and the proceeds thereof against the claims and demands of all
other persons or entities.
4. Dividends, Distributions,
Etc. If, while
this Agreement is in effect, the Pledgor shall become entitled to
receive or shall receive any certificate (including, without
limitation, any certificate representing a dividend or a
distribution in connection with any reclassification, increase or
reduction of capital, or issued in connection with any
reorganization, merger or consolidation), or any options or rights,
whether as an addition to, in substitution for, or in exchange for
any of the Pledged Shares or otherwise, the Pledgor agrees, in each
case, to accept the same as the Pledgee’s agent and to hold
the same in trust for the Pledgee, and to deliver the same promptly
(but in any event within three days) to the Pledgee in the exact
form received, with the endorsement of the Pledgor when necessary
and/or with appropriate undated assignments separate from
certificates or stock powers duly executed in blank, to be held by
the Pledgee subject to the terms hereof, as additional Pledged
Collateral. The Pledgor shall promptly deliver to the Pledgee (a) a
Pledge Addendum with respect to such additional certificates, and
(b) any financing statements or amendments to financing statements
as requested by the Pledgee. The Pledgor hereby authorizes the
Pledgee to attach each Pledge Addendum to this Agreement. In case
any distribution of capital shall be made on or in respect of the
Pledged Shares or any property shall be distributed upon or with
respect to the Pledged Shares pursuant to the recapitalization or
reclassification of the capital of the issuer thereof or pursuant
to the reorganization thereof, the property so distributed shall be
delivered to the Pledgee to be held by it as additional Pledged
Collateral. Except as provided in Section 5(b) below, all sums of
money and property so paid or distributed in respect of the Pledged
Shares which are received by the Pledgor shall, until paid or
delivered to the Pledgee, be held by the Pledgor in trust as
additional Pledged Collateral.
5. Voting Rights; Dividends;
Certificates.
(a) So long as no Event
of Default (as defined in the Notes) has occurred and is
continuing, the Pledgor shall be entitled (subject to the other
provisions hereof, including, without limitation, Section 8 below) to exercise
its voting and other consensual rights with respect to the Pledged
Shares and otherwise exercise the incidents of ownership thereof in
any manner not inconsistent with this Agreement or the Loan
Agreement and the other Transaction Agreements. The Pledgor hereby
grants to the Pledgee or its nominee, an irrevocable proxy to
exercise all voting and corporate rights relating to the Pledged
Shares in any instance, which proxy shall be effective, at the
discretion of the Pledgee, upon the occurrence and during the
continuance of an Event of Default. Upon the request of the Pledgee at
any time, the Pledgor agrees to deliver to the Pledgee such further
evidence of such irrevocable proxy or such further irrevocable
proxies to vote the Pledged Shares as the Pledgee may
request.
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(b) In the event that
the Pledgor, as record and beneficial owner of the Pledged Shares,
shall have received or shall have become entitled to receive, any
cash dividends or other distributions in the ordinary course, the
Pledgor shall deliver to the Pledgee, and the Pledgee shall be
entitled to receive and retain, for the benefit of the Pledgee and
the Buyers, all such cash or other distributions as additional
security for the Obligations.
(c) Subject to any sale
or other disposition by the Pledgee of the Pledged Shares, any
other Pledged Collateral or other property pursuant to this
Agreement, upon the indefeasible full payment in cash, satisfaction
and termination of all of the Obligations and the termination of
this Agreement pursuant to Section 11 hereof and of the
liens and security interests hereby granted, the Pledged Shares,
the other Pledged Collateral and any other property then held as
part of the Pledged Collateral in accordance with the provisions of
this Agreement shall be returned to the Pledgor or to such other
persons or entities as shall be legally entitled
thereto.
(d) The Pledgor shall
cause all Pledged Shares to be certificated at all times while this
Agreement is in effect.
6. Rights of the Pledgee. The
Pledgee shall not be liable for failure to collect or realize upon
the Obligations or any collateral security or guaranty therefor, or
any part thereof, or for any delay in so doing, nor shall the
Pledgee be under any obligation to take any action whatsoever with
regard thereto. Any or all of the Pledged Shares held by the
Pledgee hereunder may, if an Event of Default has occurred and is
continuing, without notice, be registered in the name of the
Pledgee or its nominee, and the Pledgee or its nominee may
thereafter without notice exercise all voting and corporate rights
at any meeting with respect to Fan Pass, Inc. and exercise any and
all rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to any of the Pledged
Shares as if it were the absolute owner thereof, including, without
limitation, the right to vote in favor of, and to exchange at its
discretion any and all of the Pledged Shares upon, the merger,
consolidation, reorganization, recapitalization or other
readjustment with respect to Fan Pass, Inc. or upon the exercise by
Fan Pass, Inc., the Pledgor or the Pledgee of any right, privilege
or option pertaining to any of the Pledged Shares, and in
connection therewith, to deposit and deliver any and all of the
Pledged Shares with any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions
as the Pledgee may reasonably determine, all without liability
except to account for property actually received by the Pledgee,
but the Pledgee 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.
7. Remedies. Upon the occurrence and during the
continuance of an Event of Default, the Pledgee may exercise in
respect of the Pledged Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the
rights and remedies of a secured party under the Uniform Commercial
Code (“UCC”) in
effect in the State of New York from time to time, whether or not
the UCC applies to the affected Pledged Collateral (or the Uniform
Commercial Code as in effect in any other relevant jurisdiction).
The Pledgee also, without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified
below of time and place of public or private sale) to or upon the
Pledgor or any other person or entity (all and each of which
demands, advertisements and/or notices are hereby expressly
waived), may forthwith collect, receive, appropriate and realize
upon the Pledged Collateral, or any part thereof, and/or may
forthwith date and otherwise fill in the blanks on any assignments
separate from certificates or stock power or otherwise sell,
assign, give an option or options to purchase, contract to sell or
otherwise dispose of and deliver said Pledged Collateral, or any
part thereof, in one or more portions at one or more public or
private sales or dispositions, at any exchange or broker’s
board or at any of the Pledgee’s offices or elsewhere upon
such terms and conditions as the Pledgee may deem advisable and at
such prices as it may deem best, for any combination of cash and/or
securities or other property or on credit or for future delivery
without assumption of any credit risk, with the right to the
Pledgee upon any such sale, public or private, to purchase the
whole or any part of said Pledged Collateral so sold, free of any
right or equity of redemption in the Pledgor, which right or equity
is hereby expressly waived or released. The Pledgee shall apply the
net proceeds of any such collection, recovery, receipt,
appropriation, realization, sale or disposition, after deducting
all costs and expenses of every kind incurred therein or incidental
to the safekeeping of any and all of the Pledged Collateral or in
any way relating to the rights of the Pledgee hereunder, including
attorneys’ fees and legal expenses, to the payment, in whole
or in part, of the Obligations, in such order as the Pledgee may
elect. The Pledgor shall remain liable for any deficiency remaining
unpaid after such application. Only after so paying over such net
proceeds and after the payment by the Pledgee of any other amount
required by any provision of law, including, without limitation,
Section 9-608 of the UCC, need the Pledgee account for the surplus,
if any, to the Pledgor. The Pledgor agrees that the Pledgee will
give reasonable notice (such reasonable notice to be determined by
the Pledgee in its sole and absolute discretion) 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. 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.
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8. No Disposition, Etc. The
Pledgor agrees that it will not sell, assign, transfer, exchange,
or otherwise dispose of, or grant any option with respect to, the
Pledged Shares or any other Pledged Collateral, nor will the
Pledgor 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 Pledged Shares or any
other Pledged Collateral, or any interest therein, or any proceeds
thereof, except for the lien and security interest of the Pledgee
provided for by this Agreement.
9. Sale of Pledged
Shares.
(a) The Pledgor
recognizes that the Pledgee may be unable to effect a public sale
or disposition (including, without limitation, any disposition in
connection with a merger of the Company) of any or all the Pledged
Shares by reason of certain prohibitions contained in the
Securities Act of 1933, as amended (the “1933 Act”),
and applicable state securities laws, but may be compelled to
resort to one or more private sales or dispositions thereof to a
restricted group of purchasers who will be obliged to agree, among
other things, to acquire such securities for their own account, for
investment and not with a view to the distribution or resale
thereof. The Pledgor acknowledges and agrees that any such private
sale or disposition may result in prices and other terms (including
the terms of any securities or other property received in
connection therewith) less favorable to the seller than if such
sale or disposition were a public sale or disposition and,
notwithstanding such circumstances, agrees that any such private
sale or disposition shall be deemed to be reasonable and affected
in a commercially reasonable manner. The Pledgee shall be under no
obligation to delay a sale or disposition of any of the Pledged
Shares in order to permit Fan Pass, Inc. to register such
securities for public sale under the 1933 Act, or under applicable
state securities laws, even if Fan Pass, Inc. would agree to do
so.
(b) The Pledgor further
agrees to do or cause to be done all such other acts and things as
may be reasonably necessary to make such sales or dispositions of
the Pledged Shares valid and binding and in compliance with any and
all applicable laws, regulations, orders, writs, injunctions,
decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having
jurisdiction over any such sales or dispositions, all at the
Pledgor’s expense. The Pledgor further agrees that a breach
of any of the covenants contained in Sections 4, 5(a), 5(b), 8, 9 and 24 will cause irreparable
injury to the Pledgee and that the Pledgee has no adequate remedy
at law in respect of such breach and, as a consequence, agrees,
without limiting the right of the Pledgee to seek and obtain
specific performance of other obligations of the Pledgor contained
in this Agreement, that each and every covenant referenced above
shall be specifically enforceable against the Pledgor, and the
Pledgor hereby waives and agrees not to assert any defenses against
an action for specific performance of such covenants.
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(c) The Pledgor further
agrees to indemnify and hold harmless the Buyers, the Pledgee and
their respective successors and assigns, their respective officers,
directors, employees, attorneys and agents, and any person or
entity in control of any thereof, from and against any loss,
liability, claim, damage and expense, including, without
limitation, legal fees and expenses (in this paragraph collectively
called the “Indemnified
Liabilities”), under federal and state securities laws
or otherwise insofar as such Indemnified Liability (i) arises out
of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in any registration
statement, prospectus or offering memorandum or in any preliminary
prospectus or preliminary offering memorandum or in any amendment
or supplement to any thereof or in any other writing prepared in
connection with the offer, sale or resale of all or any portion of
the Pledged Collateral unless such untrue statement of material
fact was provided by the Pledgee, in writing, specifically for
inclusion therein, or (ii) arises out of or is based upon any
omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements therein
not misleading, such indemnification to remain operative regardless
of any investigation made by or on behalf of the Pledgee or any
successor thereof, or any person or entity in control of any
thereof. In connection with a public sale or other distribution,
the Pledgor will provide customary indemnification to any
underwriters, their successors and assigns, officers and directors
and each person or entity who controls any such underwriter (within
the meaning of the 1933 Act). If and to the extent that the
foregoing undertakings in this paragraph may be unenforceable for
any reason, the Pledgor agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. The obligations of the
Pledgor under this paragraph (c) shall survive any
termination of this Agreement.
(d) The Pledgor further
agrees to waive any and all rights of subrogation it may have
against Fan Pass, Inc. upon the sale or disposition of all or any
portion of the Pledged Collateral by the Pledgee pursuant to the
terms of this Agreement until the termination of this Agreement in
accordance with Section
11 below.
10. No Waiver; Cumulative Remedies.
The Pledgee shall not by any act, delay, omission or otherwise be
deemed to have waived any of its remedies hereunder, and no waiver
by the Pledgee shall be valid unless in writing and signed by the
Pledgee, and then only to the extent therein set forth. A waiver by
the Pledgee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the
Pledgee would otherwise have on any further occasion. No course of
dealing between the Pledgor and the Pledgee and no failure to
exercise, nor any delay in exercising on the part of the Pledgee or
the Buyers of, any right, power or privilege hereunder shall impair
such right or remedy or operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and may be exercised singly
or concurrently, and are not exclusive of any rights or remedies
provided by law or in the Loan Agreement.
11. Termination. This Agreement and the liens and
security interests granted hereunder shall terminate and the
Pledgee shall return any Pledged Shares or other Pledged Collateral
then held by the Pledgee in accordance with the provisions of this
Agreement to the Pledgor at such time as the earliest of (a)
subject to Purchaser’s approval, between 5% of the
Company’s ownership of the Fan Pass Securities (as disclosed
on Schedule 2.1 to the Securities Purchase Agreement) and up to 46%
of the Company’s ownership of the Fan Pass Securities (as
disclosed on Schedule 2.1 to the Securities Purchase Agreement) of
the Pledged Shares will have been distributed to Pledgor’s
shareholders as a non-taxable dividend or asset distribution, (b)
all Obligations under the Notes shall be finally and irrevocably
paid in full in cash or otherwise satisfied pursuant to the terms
of the Notes, (c) no Notes shall remain outstanding, (d) all
commitments to lend under the Loan Agreement shall have terminated,
and (e) there shall exist no other outstanding payment or
reimbursement obligations (other than contingent indemnification
obligations for which no claims shall have been asserted) of the
Company or the Pledgor to the Buyers and the Pledgee under any of
the Transaction Agreements.
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12. Possession of
Collateral. Beyond the exercise of reasonable
care to assure the safe custody of the Pledged Shares in the
physical possession of the Pledgee pursuant hereto, neither the
Pledgee, nor any nominee of the Pledgee, shall have any duty or
liability to collect any sums due in respect thereof or to protect,
preserve or exercise any rights pertaining thereto (including any
duty to ascertain or take action with respect to calls,
conversions, exchanges, maturities, tenders or other matters
relating to the Pledged Collateral and any duty to take any
necessary steps to preserve rights against any parties with respect
to the Pledged Collateral), and shall be relieved of all
responsibility for the Pledged Collateral upon surrendering them to
the Pledgor. The Pledgor assumes the responsibility for being and
keeping itself informed of the financial condition of Fan Pass,
Inc. and of all other circumstances bearing upon the risk of
non-payment of the Obligations, and the Pledgee shall have no duty
to advise the Pledgor of information known to the Pledgee regarding
such condition or any such circumstance. The Pledgee shall have no
duty to inquire into the powers of Fan Pass, Inc. or its officers,
directors, managers, members, partners or agents thereof acting or
purporting to act on its behalf.
13. Taxes and Expenses. The Pledgor
will upon demand pay to the Pledgee, (a) any taxes (excluding
income taxes, franchise taxes or other taxes levied on gross
earnings, profits or the like of the Pledgee) payable or ruled
payable by any governmental authority in respect of this Agreement,
together with interest and penalties, if any, and (b) all expenses,
including the fees and expenses of counsel for the Pledgee and of
any experts and agents that the Pledgee may incur in connection
with (i) the administration, modification or amendment of this
Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Pledged
Collateral, (iii) the exercise or enforcement of any of the rights
of the Pledgee hereunder, or (iv) the failure of the Pledgor to
perform or observe any of the provisions hereof.
14. The Pledgee Appointed
Attorney-In-Fact. The Pledgor hereby irrevocably appoints
the Pledgee as the Pledgor’s attorney-in-fact, with full
authority in the place and stead of the Pledgor and in the name of
the Pledgor or otherwise, from time to time in the Pledgee’s
discretion, to take any action and to execute any instrument that
the Pledgee deems reasonably necessary or advisable to accomplish
the purposes of this Agreement, including, without limitation, (i)
to receive, endorse and collect all instruments made payable to the
Pledgor representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part
thereof and to give full discharge for the same, when and to the
extent permitted by this Agreement and (ii) to complete any
assignment separate from the certificates delivered hereunder;
provided that the power of attorney granted hereunder shall only be
exercised by the Pledgee after the occurrence and during the
continuance of an Event of Default.
15. Governing Law; Jurisdiction; Jury
Trial. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other
than the State of New York. Each party hereby irrevocably submits
to the non-exclusive jurisdiction of the state and federal courts
sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law.
Notwithstanding the foregoing, the Pledgee may enforce its rights
and remedies in any other jurisdiction applicable to the Pledged
Collateral. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
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16. Counterparts. This Agreement
may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and
delivered to the other party; provided that a facsimile, .pdf or
similar electronically transmitted signature shall be considered
due execution and shall be binding upon the signatory thereto with
the same force and effect as if the signature were an original
signature.
17. Headings. The headings of this
Agreement are for convenience of reference and shall not form part
of, or affect the interpretation of, this Agreement.
18. Severability. If any provision
of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect
the validity or enforceability of the remainder of this Agreement
in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
19. Entire Agreement; Amendments.
This Agreement supersedes all other prior oral or written
agreements between the Pledgor, the Pledgee, the Buyers and their
affiliates and persons acting on their behalf with respect to the
matters discussed herein, and this Agreement and the Transaction
Agreements and instruments referenced herein and therein contain
the entire understanding of the parties with respect to the matters
covered herein and therein.
20. Notices. Any notices, consents,
waivers or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be
deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one
Business Day (as defined in the Loan Agreement) after deposit with
a nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall
be:
If to
the Pledgor:
000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX
00000
Attn:
Xxxxxx X. Xxxxxxxx, Xx., Chief Executive Officer
Fax:
(000) 000-0000
Email:
xxxxxx@xxxxxxxxxxxxx.xxx
With a
copy by fax only to (which shall not constitute
notice):
Lucosky
Xxxxxxxx LLP
000
Xxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX
00000
Attn:
Xxxxxx X. Xxxxxxxx, Esq.
Fax:
(000) 000-0000
Email:
xxxxxxxxx@xxxxxx.xxx
8
If to
the Pledgee:
Alpha
Capital Anstalt
Xxxxxxxxxxx
00
0000
Xxxxx, Xxxxxxxxxxxxx
Attn:
Xxxxxx Xxxxxxxxx, Director
Fax:
000-000-0000000
21. Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns, including any
Buyers of the Notes. The Pledgor shall not assign this Agreement or
any rights or obligations hereunder without the prior written
consent of the Pledgee. The Pledgee may assign its rights hereunder
without the consent of the Pledgor, in which event such assignee
shall be deemed to be the Pledgee hereunder with respect to such
assigned rights.
22. No Third Party Beneficiaries.
This Agreement is intended for the benefit of the parties hereto
and their respective successors and permitted assigns, and is not
for the benefit of, nor may any provision hereof be enforced by,
any other person or entity.
23. Survival. All representations,
warranties, covenants and agreements of the Pledgor and the Pledgee
shall survive the execution and delivery of this
Agreement.
24. Further Assurances. The Pledgor
agrees that at any time and from time to time upon the written
request of the Pledgee, the Pledgor will execute and deliver all
assignments separate from certificates or stock powers, financing
statements and such further documents and do such further acts and
things as the Pledgee may reasonably request consistent with the
provisions hereof in order to carry out the intent and accomplish
the purpose of this Agreement and the consummation of the
transactions contemplated hereby.
25. No Strict Construction. The
language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any
party.
26. Pledgee Authorized. The Pledgor
hereby authorizes the Pledgee to file one or more financing or
continuation statements and amendments thereto (or similar
documents required by any laws of any applicable jurisdiction)
relating to all or any part of the Pledged Shares or other Pledged
Collateral without the signature of the Pledgor.
27. Pledgee Acknowledgement. The
Pledgor acknowledges receipt of an
executed copy of this Agreement. The Pledgor waives the right to
receive any amount that it may now or hereafter be entitled to
receive (whether by way of damages, fine, penalty, or otherwise) by
reason of the failure of the Pledgee to deliver to the Pledgor a
copy of any financing statement or any statement issued by any
registry that confirms registration of a financing statement
relating to this Agreement.
[Signature Page Follows]
9
IN
WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their duly
authorized officers on the date first above written.
PLEDGOR:
/s/ Xxxxxx Xxxxxxxx
By:
_____________________________________
Xxxxxx
Xxxxxxxx, Xx.
Chief
Executive Officer
PLEDGEE:
ALPHA
CAPITAL ANSTALT
/s/ Xxxxxx Xxxxxxxxx
By:
_____________________________________
Name: Xxxxxx
Xxxxxxxxx
Title:
Director
10
ACKNOWLEDGEMENT
Each of
the undersigned hereby (i) acknowledges receipt of a copy of the
foregoing Pledge Agreement, (ii) waives any rights or requirement
at any time hereafter to receive a copy of such Pledge Agreement in
connection with the registration of any Pledged Shares (as defined
therein) in the name of the Pledgee or its nominee or the exercise
of voting rights by the Pledgee and (iii) agrees promptly to note
on its books and records the grant of the security interest in the
stock or other equity interests of the undersigned as provided in
such Pledge Agreement.
Dated:
July 21, 2017
|
|
/s/ Xxxxxx Xxxxxxxx
By:
_____________________________________
Xxxxxx
Xxxxxxxx, Xx.
Chief
Executive Officer
|
11
EXHIBIT A
DESCRIPTION OF CAPITAL STOCK OR EQUITY INTERESTS OF PLEDGE
ENTITIES
|
Name
of
Pledge
Entity
|
Class
of Stock or Other Equity Interests
|
Authorized No.
of
Shares
or Units
|
Issued
and Outstanding Shares or Units
|
Percentage of
Shares or Units
Held
by Pledgor
|
|
|
Common
Stock
|
|
|
|
|
|
|
|
|
|
DESCRIPTION OF PLEDGED SHARES OR UNITS
|
Name
of
Pledge
Entity
|
Class
of Stock or Other Equity Interests
|
Stock
or Unit Certificate No.
|
No. of
Shares or Units
Represented
by
Certificate
|
|
|
Common
Stock
|
|
|
|
|
|
|
|
12
EXHIBIT B
Addendum to Pledge Agreement
The
undersigned, being the Pledgor pursuant to that certain Pledge
Agreement dated as of July ___, 2017(as amended, restated,
supplemented or otherwise modified from time to time, the
“Pledge
Agreement”) in favor of [_______________________], a
Delaware limited partnership, as collateral agent (the
“Pledgee”), by
executing this Addendum, hereby acknowledges that the Pledgor has
acquired and legally and beneficially owns all of the issued and
outstanding [ shares of capital
stock ] of [__________________, a _______ corporation
] (the “Company”)
described below (the “Shares”). The
Pledgor hereby agrees and acknowledges that the Shares shall be
deemed Pledged Shares pursuant to the Pledge Agreement. The Pledgor
hereby represents and warrants to the Pledgee that (i) all of the
[ capital stock ] of the
Company now owned by the Pledgor is presently represented by the
certificates listed below, which certificates, with undated
assignments separate from certificate or stock powers duly executed
in blank by the Pledgor, are being delivered to the Pledgee,
simultaneously herewith (or have been previously delivered to the
Pledgee), and (ii) after giving effect to this addendum, the
representations and warranties set forth in Section 3 of the Pledge
Agreement are true, complete and correct as of the date
hereof.
Pledged Shares
|
Name
of
the
Pledged Entity
|
Class
of Equity Interest
|
Certificate
No.
|
No. of
Shares
Represented
by
Certificate
|
|
|
|
|
|
|
|
|
|
|
IN
WITNESS WHEREOF, the Pledgor has executed this Addendum this _____
day of ______.
|
|
PLEDGOR:
By:________________________________
Name:
____________________________
Title:
____________________________
|
13
