SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
Exhibit
10.11
SECOND
AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
This
Second Amended and Restated Stock Pledge Agreement (this “Pledge Agreement”),
dated as of March 30, 2007, among Biometrics Investors, L.L.C. a Delaware
limited liability company ("Pledgee"), Sequiam Corporation, a California
corporation (the "Company"), and each of the other undersigned pledgors (the
Company and each such other undersigned pledgor, a "Pledgor”
and
collectively, the "Pledgors").
BACKGROUND
WHEREAS,
Pledgee is the holder of a note which was made by Pledgor and which has an
outstanding balance as of the date of this Pledge Agreement, including principal
and accrued interest, of $3,965,119.00 (the "Prior Note"). Subject to the terms
and conditions of that certain Agreement dated as of the date hereof among
Pledgee, as lender, and Pledgor, as borrower (the "Agreement"), Pledgee has
agreed to extend a term loan to Pledgor in the amount of $2,500,000 ("Term
Loan
A") which loan would be consolidated with the indebtedness evidenced by the
Prior Note and evidenced by a new note in the face amount of $6,500,000 ("Term
Note A").
WHEREAS,
subject to the terms and conditions of the Agreement, Pledgee is scheduled
to
extend a separate term loan to Pledgor in the amount of $5,000,000 ("Term Loan
B" and collectively with Term Loan A, the “Loans”) evidenced by a note in such
amount ("Term Note B").
WHEREAS,
in connection with extending credits to Pledgor, Pledgor shall also issue
warrants to Pledgee which, if both Term Loan A and Term Loan B are funded,
would
allow to purchase up to 40% of Pledgee’s fully diluted Common Shares, subject to
adjustments as set forth in the warrants.
WHEREAS,
as security for all Indebtedness (as defined below) of Pledgor owing to Pledgee
or any affiliate of Pledgee, pursuant to the Agreement and certain other related
agreements, Pledgor has granted to Pledgee a security interest in and to
substantially all of the assets of Pledgor.
WHEREAS,
as security for the Prior Note, the Company had executed that certain Amended
and Restated Stock Pledge Agreement in favor of Xxx Xxxxxxxx Xxxxxx, Attorney
in-Fact for the Trust Under the Will of Xxxx Xxxxxxxxxxx (the "Trust”) dated as
of May 18, 2005 (the “Prior Pledge Agreement”)
WHEREAS,
the Trust has assigned all of its rights under the Prior Pledge Agreement to
the
Lender such that the Lender now stands in place of the Trust thereunder.
WHEREAS,
in order to induce the Pledgee to provide or continue to provide the financial
accommodations described in the Agreement, Term Note A and Term Note B, each
Pledgor has agreed to pledge and grant a security interest in the collateral
described herein to the Pledgee on the terms and conditions set forth
herein.
WHEREAS,
the Pledgee and the Pledgor now wish to amend and restate the Prior Pledge
Agreement as provided herein.
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Defined
Terms.
All
capitalized terms used herein which are not defined shall have the meanings
given to them in the Agreement.
2. Pledge
and Grant of Security Interest.
To
secure the full and punctual payment and performance of (the following clauses
(a) and (b), the “Indebtedness”) (a) the obligations under the Agreement and (b)
all other indebtedness, obligations and liabilities of each Pledgor to the
Pledgee whether now existing or hereafter arising, direct or indirect,
liquidated or unliquidated, absolute or contingent, due or not due and whether
under, pursuant to or evidenced by a note, agreement, guaranty, instrument
or
otherwise (in each case, irrespective of the genuineness, validity, regularity
or enforceability of such Indebtedness, or of any instrument evidencing any
of
the Indebtedness or of any collateral therefore or of the existence or extent
of
such collateral, and irrespective of the allowability, allowance or disallowance
of any or all of such in any case commenced by or against any Pledgor under
Xxxxx 00, Xxxxxx Xxxxxx Code, including, without limitation, obligations or
indebtedness of each Pledgor for post-petition interest, fees, costs and charges
that would have accrued or been added to the Indebtedness but for the
commencement of such case), each Pledgor hereby pledges, assigns, hypothecates,
transfers and grants a security interest to Pledgee in all of the following
(the
"Collateral"):
(a) the
shares of stock set forth on Schedule
A
annexed
hereto and expressly made a part hereof (together with any additional shares
of
stock or other equity interests acquired by any Pledgor, the "Pledged Stock"),
the certificates representing the Pledged Stock and all dividends, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all
of the Pledged Stock;
(b) all
additional shares of stock of any issuer (each, an "Issuer") of the Pledged
Stock from time to time acquired by any Pledgor in any manner, including,
without limitation, stock dividends or a distribution in connection with any
increase or reduction of capital, reclassification, merger, consolidation,
sale
of assets, combination of shares, stock split, spin-off or split-off (which
shares shall be deemed to be part of the Collateral), and the certificates
representing such additional shares, and all dividends, cash, instruments and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares;
and
(c) all
options and rights, whether as an addition to, in substitution of or in exchange
for any shares of any Pledged Stock and all dividends, cash, instruments and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all such options and
rights.
3. Delivery
of Collateral.
All
certificates representing or evidencing the Pledged Stock shall be delivered
to
and held by or on behalf of Pledgee pursuant hereto and shall be accompanied
by
duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to Pledgee. Each Pledgor hereby authorizes the Issuer
upon demand by the Pledgee to deliver any certificates, instruments or other
distributions issued in connection with the Collateral directly to the Pledgee,
in each case to be held by the Pledgee, subject to the terms hereof. Upon an
Event of Default (as defined below) under the Agreement that has occurred and
is
continuing beyond any applicable grace period, the Pledgee shall have the right,
during such time in its discretion and without notice to the Pledgor, to
transfer to or to register in the name of the Pledgee or any of its nominees
any
or all of the Pledged Stock. In addition, the Pledgee shall have the right
at
such time to exchange certificates or instruments representing or evidencing
Pledged Stock for certificates or instruments of smaller or larger
denominations.
4. Representations
and Warranties of each Pledgor.
Each
Pledgor jointly and severally represents and warrants to the Pledgee (which
representations and warranties shall be deemed to continue to be made until
all
of the Indebtedness has been paid in full and the Purchase Agreement and each
agreement and instrument entered into in connection therewith has been
irrevocably terminated) that:
(a) the
execution, delivery and performance by each Pledgor of this Pledge Agreement
and
the pledge of the Collateral hereunder do not and will not result in any
violation of any agreement, indenture, instrument, license, judgment, decree,
order, law, statute, ordinance or other governmental rule or regulation
applicable to any Pledgor;
(b) this
Pledge Agreement constitutes the legal, valid, and binding obligation of each
Pledgor enforceable against each Pledgor in accordance with its
terms;
(c) (i)
all
Pledged Stock owned by each Pledgor is set forth on Schedule A hereto and (ii)
each Pledgor is the direct and beneficial owner of each share of the Pledged
Stock;
(d) all
of
the shares of the Pledged Stock have been duly authorized, validly issued and
are fully paid and nonassessable;
(e) no
consent or approval of any person, corporation, governmental body, regulatory
authority or other entity, is or will be necessary for (i) the execution,
delivery and performance of this Pledge Agreement, (ii) the exercise by the
Pledgee of any rights with respect to the Collateral or (iii) the pledge and
assignment of, and the grant of a security interest in, the Collateral
hereunder;
(f) there
are
no pending or, to the best of Pledgor’s knowledge, threatened actions or
proceedings before any court, judicial body, administrative agency or arbitrator
which may materially adversely affect the Collateral;
(g) each
Pledgor has the requisite power and authority to enter into this Pledge
Agreement and to pledge and assign the Collateral to the Pledgee in accordance
with the terms of this Pledge Agreement;
(h) each
Pledgor owns each item of the Collateral and, except for the pledge and security
interest granted to Pledgee hereunder, the Collateral shall be, immediately
following the closing of the transactions contemplated by the Purchase
Agreement, free and clear of any other security interest, pledge, claim, lien,
charge, hypothecation, assignment, offset or encumbrance whatsoever
(collectively, "Liens");
(i) there
are
no restrictions on transfer of the Pledged Stock contained in the certificate
of
incorporation or by-laws (or equivalent organizational documents) of the Issuer
or otherwise which have not otherwise been enforceably and legally waived by
the
necessary parties;
(j) none
of
the Pledged Stock has been issued or transferred in violation of the securities
registration, securities disclosure or similar laws of any jurisdiction to
which
such issuance or transfer may be subject;
(k) the
pledge and assignment of the Collateral and the grant of a security interest
under this Pledge Agreement vest in the Pledgee all rights of each Pledgor
in
the Collateral as contemplated by this Pledge Agreement;
(l) the
Pledged Stock constitutes one hundred percent (100%) of the issued and
outstanding shares of capital stock of each Issuer; and
(m) the
Prior
Pledge Agreement is in full force and effect and, as of the date hereof, the
enforcement of the Prior Pledge Agreement against the Pledgor is subject to
no
defenses of any kind.
5. Covenants.
Each
Pledgor jointly and severally covenants that, until the Indebtedness shall
be
satisfied in full and the Purchase Agreement and each agreement and instrument
entered into in connection therewith is irrevocably terminated (but subject
to
Section 18(i)):
(a) No
Pledgor will sell, assign, transfer, convey, or otherwise dispose of its rights
in or to the Collateral or any interest therein; nor will any Pledgor create,
incur or permit to exist any Lien whatsoever with respect to any of the
Collateral or the proceeds thereof other than that created hereby.
(b) Each
Pledgor will, at its expense, defend Pledgee’s right, title and security
interest in and to the Collateral against the claims of any other
party.
(c) Each
Pledgor shall at any time, and from time to time, upon the written request
of
Pledgee, execute and deliver such further documents and do such further acts
and
things as Pledgee may reasonably request in order to effect the purposes of
this
Pledge Agreement including, but without limitation, delivering to Pledgee upon
the occurrence of an Event of Default irrevocable proxies in respect of the
Collateral in form satisfactory to Pledgee. Until receipt thereof, upon an
Event
of Default that has occurred and is continuing beyond any applicable grace
period, this Pledge Agreement shall constitute Pledgor’s proxy to Pledgee or its
nominee to vote all shares of Collateral then registered in each Pledgor’s
name.
(d) No
Pledgor will consent to or approve the issuance of (i) any additional shares
of
any class of capital stock or other equity interests of the Issuer; or (ii)
any
securities convertible either voluntarily by the holder thereof or automatically
upon the occurrence or nonoccurrence of any event or condition into, or any
securities exchangeable for, any such shares, unless, in either case, such
shares are pledged as Collateral pursuant to this Pledge Agreement.
6. Voting
Rights and Dividends.
In
addition to the Pledgee’s rights and remedies set forth in Section 8 hereof, in
case an Event of Default shall have occurred and be continuing, beyond any
applicable cure period, the Pledgee shall (i) be entitled to vote the
Collateral, (ii) be entitled to give consents, waivers and ratifications in
respect of the Collateral (each Pledgor hereby irrevocably constituting and
appointing the Pledgee, with full power of substitution, the proxy and
attorney-in-fact of each Pledgor for such purposes) and (iii) be entitled to
collect and receive for its own use cash dividends paid on the Collateral.
No
Pledgor shall be permitted to exercise or refrain from exercising any voting
rights or other powers if, in the reasonable judgment of the Pledgee, such
action would have a material adverse effect on the value of the Collateral
or
any part thereof; and, provided,
further,
that
each Pledgor shall give at least five (5) days’ written notice of the manner in
which such Pledgor intends to exercise, or the reasons for refraining from
exercising, any voting rights or other powers other than with respect to any
election of directors and voting with respect to any incidental matters.
Following the occurrence of an Event of Default, all dividends and all other
distributions in respect of any of the Collateral, shall be delivered to the
Pledgee to hold as Collateral and shall, if received by any Pledgor, be received
in trust for the benefit of the Pledgee, be segregated from the other property
or funds of any other Pledgor, and be forthwith delivered to the Pledgee as
Collateral in the same form as so received (with any necessary
endorsement).
7. Event
of Default.
An
Event of Default shall be deemed to have occurred and may be declared by the
Pledgee upon the happening of any of the following events:
(a) An
"Event
of Default" under the Agreement or any agreement or note related to the
Agreement shall have occurred and be continuing beyond any applicable cure
period;
(b) Any
Pledgor shall default in the performance of any of its obligations under any
agreement between any Pledgor and Pledgee, including, without limitation, this
Pledge Agreement, and such default shall not be cured for a period of thirty
(30) business days after the occurrence thereof;
(c) Any
representation or warranty of any Pledgor made herein, in the Agreement or
in
any agreement, statement or certificate given in writing pursuant hereto or
thereto or in connection herewith or therewith shall be false or misleading
in
any material respect and shall not be cured for a period of thirty (30) business
days after the occurrence thereof;
(d) Any
portion of the Collateral is subjected to levy of execution, attachment,
distraint or other judicial process; or any portion of the Collateral is the
subject of a claim (other than by the Pledgee) of a Lien or other right or
interest in or to the Collateral and such levy or claim shall not be cured,
disputed or stayed within a period of thirty (30) business days after the
occurrence thereof; or
(e) Any
Pledgor shall (i) apply for, consent to, or suffer to exist the appointment
of,
or the taking of possession by, a receiver, custodian, trustee, liquidator
or
other fiduciary of itself or of all or a substantial part of its property,
(ii)
make a general assignment for the benefit of creditors, (iii) commence a
voluntary case under any state or federal bankruptcy laws (as now or hereafter
in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a petition
seeking to take advantage of any other law providing for the relief of debtors,
(vi) acquiesce to, or fail to have dismissed, within ninety (60) days, any
petition filed against it in any involuntary case under such bankruptcy laws,
or
(vii) take any action for the purpose of effecting any of the
foregoing.
8. Remedies.
In case
an Event of Default shall have occurred and be declared by the Pledgee, the
Pledgee may:
(a) transfer
any or all of the Collateral into its name, or into the name of its nominee
or
nominees;
(b) exercise
all corporate rights with respect to the Collateral including, without
limitation, all rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to any shares of the Collateral as
if
it were the absolute owner thereof, including, but without limitation, the
right
to exchange, at its discretion, any or all of the Collateral upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
Issuer thereof, or upon the exercise by the Issuer of
any
right, privilege or option pertaining to any of the Collateral, and, in
connection therewith, to deposit and deliver any and all of the Collateral
with
any committee, depository, transfer agent, registrar or other designated agent
upon such terms and conditions as it may determine, all without liability except
to account for property actually received by it; and
(c) subject
to any requirement of applicable law, sell, assign and deliver the whole or,
from time to time, any part of the Collateral at the time held by the Pledgee,
at any private sale or at public auction, with or without demand, advertisement
or notice of the time or place of sale or adjournment thereof or otherwise
(all
of which are hereby waived, except such notice as is required by applicable
law
and cannot be waived), for cash or credit or for other property for immediate
or
future delivery, and for such price or prices and on such terms as the Pledgee
in its sole discretion may determine, or as may be required by applicable
law.
Each
Pledgor hereby waives and releases any and all right or equity of redemption,
whether before or after sale hereunder. At any such sale, unless prohibited
by
applicable law, the Pledgee may bid for and purchase the whole or any part
of
the Collateral so sold free from any such right or equity of redemption. All
moneys received by the Pledgee hereunder whether upon sale of the Collateral
or
any part thereof or otherwise shall be held by the Pledgee and applied by it
as
provided in Section 10 hereof. No failure or delay on the part of the Pledgee
in
exercising any rights hereunder shall operate as a waiver of any such rights
nor
shall any single or partial exercise of any such rights preclude any other
or
future exercise thereof or the exercise of any other rights hereunder. The
Pledgee shall have no duty as to the collection or protection of the Collateral
or any income thereon nor any duty as to preservation of any rights pertaining
thereto, except to apply the funds in accordance with the requirements of
Section 10 hereof. The Pledgee may exercise its rights with respect to property
held hereunder without resort to other security for or sources of reimbursement
for the Indebtedness. In addition to the foregoing, Pledgee shall have all
of
the rights, remedies and privileges of a secured party under the Uniform
Commercial Code of Illinois regardless of the jurisdiction in which enforcement
hereof is sought.
9. Private
Sale.
Each
Pledgor recognizes that the Pledgee may be unable to effect (or to do so only
after delay which would adversely affect the value that might be realized from
the Collateral) a public sale of all or part of the Collateral by reason of
certain prohibitions contained in the Securities Act, and may be compelled
to
resort to one or more private sales to a restricted group of purchasers who
will
be obliged to agree, among other things, to acquire such Collateral for their
own account, for investment and not with a view to the distribution or resale
thereof. Each Pledgor agrees that any such private sale may be at prices and
on
terms less favorable to the seller than if sold at public sales and that such
private sales shall be deemed to have been made in a commercially reasonable
manner. Each Pledgor agrees that the Pledgee has no obligation to delay sale
of
any Collateral for the period of time necessary to permit the Issuer to register
the Collateral for public sale under the Securities Act.
10. Proceeds
of Sale.
The
proceeds of any collection, recovery, receipt, appropriation, realization or
sale of the Collateral shall be applied by the Pledgee as follows:
(a) First,
to
the payment of all costs, reasonable expenses and charges of the Pledgee and
to
the reimbursement of the Pledgee for the prior payment of such costs, reasonable
expenses and charges incurred in connection with the care and safekeeping of
the
Collateral (including, without limitation, the reasonable expenses of any sale
or any other disposition of any of the Collateral), the expenses of any taking,
attorneys’ fees and reasonable expenses, court costs, any other fees or expenses
incurred or expenditures or advances made by Pledgee in the protection,
enforcement or exercise of its rights, powers or remedies
hereunder;
(b) Second,
to the payment of the Indebtedness, in whole or in part, in such order as the
Pledgee may elect, whether or not such Indebtedness is then due;
(c) Third,
to
such persons, firms, corporations or other entities as required by applicable
law including, without limitation, Section 9-504(1)(c) of the UCC;
and
(d) Fourth,
to the extent of any surplus to the Pledgors or as a court of competent
jurisdiction may direct.
In
the
event that the proceeds of any collection, recovery, receipt, appropriation,
realization or sale are insufficient to satisfy the Indebtedness, each Pledgor
shall be jointly and severally liable for the deficiency plus the costs and
fees
of any attorneys employed by Pledgee to collect such deficiency.
11. Waiver
of Marshaling.
Each
Pledgor hereby waives any right to compel any marshaling of any of the
Collateral.
12. No
Waiver.
Any and
all of the Pledgee’s rights with respect to the Liens granted under this Pledge
Agreement shall continue unimpaired, and Pledgor shall be and remain obligated
in accordance with the terms hereof, notwithstanding (a) the bankruptcy,
insolvency or reorganization of any Pledgor, (b) the release or substitution
of
any item of the Collateral at any time, or of any rights or interests therein,
or (c) any delay, extension of time, renewal, compromise or other indulgence
granted by the Pledgee in reference to any of the Indebtedness. Each Pledgor
hereby waives all notice of any such delay, extension, release, substitution,
renewal, compromise or other indulgence, and hereby consents to be bound hereby
as fully and effectively as if such Pledgor had expressly agreed thereto in
advance. No delay or extension of time by the Pledgee in exercising any power
of
sale, option or other right or remedy hereunder, and no failure by the Pledgee
to give notice or make demand, shall constitute a waiver thereof, or limit,
impair or prejudice the Pledgee’s right to take any action against any Pledgor
or to exercise any other power of sale, option or any other right or
remedy.
13. Expenses.
The
Collateral shall secure, and each Pledgor shall pay to Pledgee on demand, from
time to time, all reasonable costs and expenses, (including but not limited
to,
reasonable attorneys’ fees and costs, taxes, and all transfer, recording, filing
and other charges) of, or incidental to, the custody, care, transfer,
administration of the Collateral or any other collateral, or in any way relating
to the enforcement, protection or preservation of the rights or remedies of
the
Pledgee under this Pledge Agreement or with respect to any of the
Indebtedness.
14. Pledgee
Appointed Attorney-In-Fact and Performance by the Pledgee.
Upon
the occurrence of an Event of Default, each Pledgor hereby irrevocably
constitutes and appoints the Pledgee as such Pledgor’s true and lawful
attorney-in-fact, with full power of substitution, to execute, acknowledge
and
deliver any instruments and to do in such Pledgor’s name, place and stead, all
such acts, things and deeds for and on behalf of and in the name of such
Pledgor, which such Pledgor could or might do or which the Pledgee may deem
necessary, desirable or convenient to accomplish the purposes of this Pledge
Agreement, including, without limitation, to execute such instruments of
assignment or transfer or orders and to register, convey or otherwise transfer
title to the Collateral into the Pledgee’s name. Each Pledgor hereby ratifies
and confirms all that said attorney-in-fact may so do and hereby declares this
power of attorney to be coupled with an interest and irrevocable. If any Pledgor
fails to perform any agreement herein contained, the Pledgee may itself perform
or cause performance thereof, and any costs and expenses of the Pledgee incurred
in connection therewith shall be paid by the Pledgors as provided in Section
10
hereof.
15. Waivers.
(a) EACH
PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS PLEDGE AGREEMENT OR
ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OTHER AGREEMENT EXECUTED OR DELIVERED
BY
THEM IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HERETO HEREBY AGREES AND CONSENTS
THAT ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR
A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH
PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
16. Recapture.
Notwithstanding anything to the contrary in this Pledge Agreement, if the
Pledgee receives any payment or payments on account of the Indebtedness, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to
a
trustee, receiver, or any other party under the United States Bankruptcy Code,
as amended, or any other federal or state bankruptcy, reorganization, moratorium
or insolvency law relating to or affecting the enforcement of creditors’ rights
generally, common law or equitable doctrine, then to the extent of any sum
not
finally retained by the Pledgee, each Pledgor’s obligations to the Pledgee shall
be reinstated and this Pledge Agreement shall remain in full force and effect
(or be reinstated) until payment shall have been made to Pledgee, which payment
shall be due on demand.
17. Captions.
All
captions in this Pledge Agreement are included herein for convenience of
reference only and shall not constitute part of this Pledge Agreement for any
other purpose.
18. Miscellaneous.
(a) This
Pledge Agreement constitutes the entire and final agreement among the parties
with respect to the subject matter hereof and may not be changed, terminated
or
otherwise varied except by a writing duly executed by the parties
hereto.
(b) No
waiver
of any term or condition of this Pledge Agreement, whether by delay, omission
or
otherwise, shall be effective unless in writing and signed by the party sought
to be charged, and then such waiver shall be effective only in the specific
instance and for the purpose for which given.
(c) In
the
event that any provision of this Pledge Agreement or the application thereof
to
any Pledgor or any circumstance in any jurisdiction governing this Pledge
Agreement shall, to any extent, be invalid or unenforceable under any applicable
statute, regulation, or rule of law, such provision shall be deemed inoperative
to the extent that it may conflict therewith and shall be deemed modified to
conform to such statute, regulation or rule of law, and the remainder of this
Pledge Agreement and the application of any such invalid or unenforceable
provision to parties, jurisdictions, or circumstances other than to whom or
to
which it is held invalid or unenforceable shall not be affected thereby, nor
shall same affect the validity or enforceability of any other provision of
this
Pledge Agreement.
(d) This
Pledge Agreement shall be binding upon each Pledgor, and each Pledgor’s
successors and assigns, and shall inure to the benefit of the Pledgee and its
successors and assigns.
(e) Any
notice or other communication required or permitted pursuant to this Pledge
Agreement shall be given in accordance with the Purchase Agreement.
(f) This
Pledge Agreement shall be governed by and construed and enforced in all respects
in accordance with the laws of the State of Illinois applied to contracts to
be
performed wholly within the State of Illinois.
(g) EACH
PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF EACH COURT OF
COMPETENT JURISDICTION LOCATED IN THE STATE OF ILLINOIS FOR ALL PURPOSES IN
CONNECTION WITH THIS PLEDGE AGREEMENT. ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED
TO
OR CONNECTED WITH THIS PLEDGE AGREEMENT SHALL BE BROUGHT ONLY IN A STATE COURT
LOCATED IN THE COUNTY OF XXXX, STATE OF ILLINOIS. EACH PLEDGOR FURTHER CONSENTS
THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT
LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO EITHER OF THE
AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN CONNECTION WITH
ANY
PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF THE STATE OF ILLINOIS
OR THE NORTHERN DISTRICT OF ILLINOIS BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A REASONABLE TIME FOR
APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE PERMISSIBLE UNDER
THE
RULES OF SAID COURTS. EACH PLEDGOR WAIVES ANY OBJECTION TO JURISDICTION AND
VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED
ON
LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
(h) This
Pledge Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which when taken together shall
constitute one and the same agreement. Any signature delivered by a party by
facsimile transmission shall be deemed an original signature
hereto.
(i) This
Pledge Agreement and the security interests granted by the Pledgors hereunder
shall terminate upon the provision by Pledgee of written confirmation to the
Company that (x) all indebtedness obligations owed by any Pledgor to Pledgee
have been repaid (including, without limitation, all principal, interest and
fees related to the Term Note A, Term Note B, any indebtedness referred to
in
the Agreement, any other Obligations (as defined in the Master Security
Agreement) and any other indebtedness outstanding at such time and owed to
the
Pledgee) and (y) all commitments by the Pledgee to fund any indebtedness have
been terminated in their entirety.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties have duly executed this Pledge Agreement as of
the
day and year first written above.
SEQUIAM
CORPORATION
By:
Name: Xxxxxxxx
XxxxxxXxxxxx
Title: CEO
CONSTELLATION
BIOMETRICS CORPORATION
By:
Name: Xxxxxxxx
XxxxxxXxxxxx
Title: CEO
BIOMETRICS
INVESTORS, L.L.C.
By:
Name: Xxxxx
Xxxxx
Title: Manager
SCHEDULE
A
Pledged
Stock
|
Pledgor
|
Issuer
|
Class
of Stock
|
Stock
Certificate Number
|
Par
Value
|
Number
of Shares
|
|
Sequiam
Corporation
|
Sequiam
Software, Inc.
|
Common
|
1
|
$0.001
|
2,000
|
|
Sequiam
Corporation
|
Sequiam
Biometrics, Inc.
|
Common
|
1
|
NO
PAR
|
1,000
|
|
Sequiam
Corporation
|
Sequiam
Sports, Inc.
|
Common
|
10,000
|
$0.0001
|
12,153,261
|
|
Sequiam
Corporation
|
Sequiam
Education, Inc.
|
Common
|
1
|
NO
PAR
|
1,000
|
|
Sequiam
Corporation
|
Fingerprint
Detection Technologies, Inc.
|
Common
|
2
|
$0.01
|
1,000
|
|
Sequiam
Corporation
|
Constellation
Biometrics
Corporation
|
Common
|
6
|
NO
PAR
|
1,000
|
|
Constellation
Biometrics
Corporation
|
Biometric
Security (Pty) Ltd.
|
Common
|
3
|
1
Rand
|
100
|
|
Sequiam
Corporation
|
Sequiam
East, Inc. (f/k/a Magstone Innovation, Inc.)
|
Common
|
As
set forth in Chapter 3, Article 8 of the Bylaws
|
No
PAR
|
80%
|
