PLEDGE AGREEMENT
Exhibit
10.4
Execution
Version
THIS
PLEDGE AGREEMENT (this “Agreement”), dated as
of September 16, 2009, is made by and among CAPRIUS, INC., a Delaware
corporation (“Caprius”), M.C.M.
ENVIRONMENTAL TECHNOLOGIES, INC., a Delaware corporation (“M.C.M.”), M.C.M.
ENVIRONMENTAL TECHNOLOGIES LTD., an Israeli corporation (“M.C.M. Israel”), the
Additional Pledgors (as defined in Section 14(k))
(together with Caprius, M.C.M. and M.C.M. Israel, collectively, the “Pledgors” and each
(including Caprius, M.C.M. and M.C.M. Israel) individually, a “Pledgor”), VINTAGE
CAPITAL GROUP, LLC, a Delaware limited liability company (together with its
successors and assigns, collectively, the “Secured Party”), as
an inducement to the Secured Party to enter into that certain Securities
Purchase and Sale Agreement of even date herewith (as may be amended, restated,
supplemented or otherwise modified from time to time, the “Purchase Agreement”)
and the transactions contemplated thereby. All Capitalized terms used
and not defined herein shall have the respective meanings assigned to them in
the Purchase Agreement.
A
G R E E M E N T
NOW,
THEREFORE, in consideration of the mutual promises, covenants, representations,
and warranties set forth herein and for other good and valuable consideration,
the parties hereto agree as follows:
1. Definitions and
Construction.
(a) Definitions. All
initially capitalized terms used herein and not otherwise defined herein shall
have the meaning ascribed thereto in the Purchase Agreement. As used
in this Agreement:
“Agreement” shall have
the meaning specified therefor in the preamble hereto.
“Bankruptcy Code”
means the United States Bankruptcy Code (11 U.S.C. § 101, et seq.), as amended,
and any successor statute.
“Code” means the
Uniform Commercial Code as in effect in the State of New York on the date
hereof; provided, however, that in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection, priority, or remedies with respect to Secured Party’s
Liens on any Pledged Collateral is governed by the Uniform Commercial Code as
enacted and in effect in a jurisdiction other than the State of New York, the
term “Code” shall mean the Uniform Commercial Code as enacted and in effect in
such other jurisdiction solely for purposes of the provisions thereof relating
to such attachment, perfection, priority, or remedies; provided further that
terms used herein which are defined in the Code as in effect on the date hereof
shall continue to have the same meaning notwithstanding any replacement or
amendment thereof except as the Secured Party may otherwise
determine.
“Chief Executive
Office” means the address of the chief executive office of Pledgor set
forth on Schedule B to
this Agreement.
“Debt” shall mean all
indebtedness for borrowed money owed to any Pledgor, whether or not evidenced by
any Instrument, including, without limitation, all indebtedness identified as
“Pledged Debt” on Schedule A (or
any addendum thereto), the instruments, if any, evidencing any of the foregoing,
and all interest, 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 foregoing.
“Equity Interests”
means all shares, units, options, warrants, interests, participations, or other
equivalents (regardless of how designated) of or in a corporation, partnership,
limited liability company, or equivalent entity, whether voting or nonvoting,
including general partner partnership interests, limited partner partnership
interests, limited liability company membership interests, common stock,
preferred stock, or any other “equity security” (as such term is defined in
Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC
under the Exchange Act); in each case whether constituting “general intangibles”
or “investment property” or otherwise under (and as defined in) the
Code.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and any successor
statute.
“Future Rights” shall
mean: (a) all Equity Interests (other than the Pledged Interests existing
on the Closing Date) of the Issuers, and all securities convertible or
exchangeable into, and all warrants, options, or other rights to purchase,
Equity Interests of any Person in which any Pledgor, after the date of this
Agreement, acquires a direct equity interest, irrespective of whether such
Person is or becomes a Subsidiary of Pledgor; (b) to the extent of each
Pledgor’s interest therein, all shares of, all securities convertible or
exchangeable into, and all warrants, options, or other rights to purchase Equity
Interests of each Issuer; (c) the certificates or instruments representing
such additional Equity Interests, convertible or exchangeable securities,
warrants, and other rights and all dividends, cash, options, warrants, rights,
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 Equity Interests; and (d) all Debt (other than the Pledged Debt
existing on the Closing Date).
“Holder” and “Holders” shall have
the respective meanings specified therefor in Section 3
hereto.
“Insolvency
Proceeding” means any proceeding commenced by or against any Person under
any provision of the Bankruptcy Code or under any other bankruptcy or insolvency
law, assignments for the benefit of creditors, or any other proceeding by or
against any person or its assets relating to, formal or informal moratoria,
compositions, marshaling, extensions generally with creditors, or seeking
reorganization, arrangement, or other similar relief.
“Issuer” and “Issuers” shall mean
each of the Persons identified as an Issuer on Schedule A
attached hereto (or any addendum thereto), and any successors thereto, whether
by merger or otherwise.
“Lender” and “Lenders” shall have
the respective meanings specified therefor in the recitals hereto.
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“Pledged Collateral”
shall mean the Pledged Interests, the Future Rights, the Pledged Debt and the
Proceeds, collectively.
“Pledged Debt” shall
mean all of the Debt identified as Pledged Debt on Schedule A
attached hereto (or any addendum thereto).
“Pledged Interests”
shall mean all of the Equity Interests identified as Pledged Interests on Schedule A
attached hereto (or any addendum thereto).
“Pledgor” shall have
the meaning specified therefor in the preamble hereto.
“Proceeds” shall mean
all proceeds (including proceeds of proceeds) of the Pledged Interests, Future
Rights and Pledged Debt including all: (a) rights, benefits,
distributions, premiums, profits, dividends, interest, cash, instruments,
documents of title, accounts, contract rights, inventory, equipment, general
intangibles, deposit accounts, chattel paper, and other property from time to
time received, receivable, or otherwise distributed in respect of or in exchange
for, or as a replacement of or a substitution for, any of the Pledged Interests,
Future Rights, Pledged Debt or proceeds thereof (including any cash, Equity
Interests, or other securities or instruments issued after any recapitalization,
readjustment, reclassification, merger or consolidation with respect to the
Issuers and any security entitlements, as defined in the Code, with respect
thereto); (b) “proceeds,” as such term is used in the Code;
(c) proceeds of any insurance, indemnity, warranty, or guaranty (including
guaranties of delivery) payable from time to time with respect to any of the
Pledged Interests, Future Rights, Pledged Debt or proceeds thereof;
(d) payments (in my form whatsoever) made or due and payable to Pledgor
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Pledged Interests,
Future Rights, Pledged Debt or proceeds thereof; and (e) other amounts from
time to time paid or payable under or in connection with any of the Pledged
Interests, Future Rights, Pledged Debt or proceeds thereof.
“Purchase Agreement”
shall have the meaning specified therefor in the recitals hereto.
“Secured Obligations”
shall mean all of the Pledgors’ present and future debts, obligations, and
liabilities of whatever nature to the Secured Party, including, without
limitation, (a) the Note and any PIK Notes (as defined in the Note) issued
or deemed to be issued pursuant to the Note, (b) all obligations of each
Pledgor arising from or relating to the Investment Documents, including, without
limitation, this Agreement, and (c) transactions in which the documents
evidencing the indebtedness refer to this grant of security interest as
providing security therefor.
“Voidable Transfer”
shall have the meaning specified therefor in Section 26
hereto.
(b) Construction.
(i) All
terms used in this Agreement which are defined in Article 8 or
Article 9 of the Code and which are not otherwise defined herein shall have
the same meanings herein as set forth therein.
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(ii) The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”. The word
“will” shall be construed to have the same meaning and effect as the word
“shall”. The term “or” has, except where otherwise indicated, the
inclusive meaning represented by the phrase “and/or”. Unless the
context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
restated, supplemented or otherwise modified (subject to any restrictions on
such amendments, restatements, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, (c) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Agreement, (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, and (f) any reference herein to the repayment
in fill of the Secured Obligations shall mean the repayment in full in cash of
all Secured Obligations other than contingent indemnification Secured
Obligations. References in this Agreement to “determination” by the
Secured Party include honestly made estimates by the Secured Party (in the case
of quantitative determinations) and honestly held beliefs by the Secured Party
(in the case of qualitative determinations). Any reference in this
Agreement or in any of the other Investment Documents to this Agreement or any
of the other Investment Documents shall include all alterations, amendments,
restatements, changes, extensions, modifications, renewals, replacements,
substitutions, and supplements, thereto and thereof, as
applicable. In the event of a direct conflict between the terms and
provisions of this Agreement and the Purchase Agreement, it is the intention of
the parties hereto that such documents shall be read together and construed, to
the fullest extent possible, to be in concert with each other. In the
event of any actual, irreconcilable conflict that cannot be resolved as
aforesaid, the terms and provisions of the Purchase Agreement shall control and
govern; provided, however, that the
inclusion herein of additional obligations on the part of the Pledgors and
supplemental rights and remedies in favor of the Secured Party, in each case in
respect of the Collateral, shall not be deemed a conflict with the Purchase
Agreement. Any reference herein to a Person shall be construed to
include such Person’s successors and assigns. Any requirement of a
writing contained herein or in the other Investment Documents shall be satisfied
by the transmission of a Record and any Record transmitted shall constitute a
representation and warranty, as the accuracy and completeness of the information
contained therein.
(iii) All
of the schedules and exhibits attached to this Agreement shall be deemed
incorporated herein by reference.
2. Pledge. As
security for the prompt payment and performance of the Secured Obligations in
full by Pledgors when due, whether at stated maturity, by acceleration or
otherwise (including amounts that would become due but for the operation of the
provisions of the Bankruptcy Code), and as security for the prompt performance
by each Pledgor of its respective covenants and duties under each Investment
Document to which such Pledgor is a party, each Pledgor hereby pledges, grants,
transfers, and assigns to the Secured Party, a security interest in all of such
Pledgor’s right, title, and interest in and to the Pledged
Collateral. Except as expressly set forth in the Purchase Agreement
or any other Investment Document, no Pledgor has any authority, express or
implied, to dispose of any item or portion of the Pledged
Collateral.
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3. Delivery and Registration of
Pledged Collateral.
(a) All
certificates, instruments or promissory notes representing or evidencing the
Pledged Collateral shall be promptly delivered by the Pledgors to the Secured
Party or the Secured Party’s designee pursuant hereto at a location designated
by the Secured Party and shall be held by or on behalf of the Secured Party
pursuant hereto, and shall be in suitable form for transfer by delivery, or
shall be accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to the Secured Party.
(b) Upon
the occurrence and during the continuance of an Event of Default, the Secured
Party shall have the right, at any time in its discretion and without notice to
the Pledgors, to transfer to or to register on the books of the Issuers (or of
any other Person maintaining records with respect to the Pledged Collateral) in
the name of the Secured Party or any of its nominees any or all of the Pledged
Collateral. In addition, the Secured Party shall have the right at
any time to exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or larger
denominations.
(c) If,
at any time and from time to time, any Pledged Collateral (including any
certificate or instrument representing or evidencing any Pledged Collateral) is
in the possession of a Person other than the Secured Party or a Pledgor (a
“Holder”), then
the Pledgors shall promptly cause such Pledged Collateral to be delivered into
the Secured Party’s possession pursuant to the Code or other applicable law
governing the perfection of the Secured Party’s security interest in the Pledged
Collateral in the possession of such Holder. Each such
notification/instruction and acknowledgment shall be in form and substance
satisfactory to the Secured Party.
(d) Any
and all Pledged Collateral (including dividends, interest, and other cash
distributions) at any time received or held by any Pledgor, shall be segregated
from other funds or property of such Pledgor, shall be so received or held in
trust for the Secured Party and shall be forthwith delivered to the Secured
Party in the same form as so received or held, with any necessary endorsements;
provided that cash dividends, cash interest or distributions received by any
Pledgor, if and to the extent they are expressly permitted by the Purchase
Agreement, may be retained by such Pledgor in accordance with Section 4 and
used in the ordinary course of such Pledgor’s business.
(e) If
at any time and from time to time any Pledged Collateral consists of an
uncertificated security or a security in book entry form, then each Pledgor
shall promptly cause such Pledged Collateral to be registered or entered, as the
case may be, in the name of the Secured Party, or otherwise cause the security
interest held by the Secured Party to be perfected in accordance with applicable
law.
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4. Voting Rights and
Dividends.
(a) So
long as (i) no Event of Default shall have occurred and be continuing, or
(ii) if an Event of Default has occurred and is continuing, the applicable
Pledgor shall not have received the written notice from the Secured Party and
described below in Section 4(b),
each Pledgor shall be entitled to exercise any and all voting, management and
other consensual rights pertaining to the Pledged Collateral applicable to it or
any part thereof for any purpose not inconsistent with the terms of the
Investment Documents and shall be entitled to receive and retain any cash
dividends or distributions paid in respect of the Pledged Collateral if and to
the extent they are expressly permitted by the Purchase Agreement.
(b) Upon
the occurrence and during the continuation of an Event of Default (i) the
Secured Party may, at its option, and in addition to all rights and remedies
available to the Secured Party under any other agreement at law, in equity or
otherwise, immediately exercise all voting rights and all other ownership or
consensual rights in respect to the Pledged Interests owned by such Pledgor, but
under no circumstances is the Secured Party obligated by the terms of this
Agreement to exercise such rights, and (ii) if the Secured Party duly
exercises its right to vote any of such Pledged Interests, each Pledgor hereby
appoints the Secured Party as Pledgor’s true and lawful attorney in fact and
IRREVOCABLE PROXY to vote such Pledged Interests in any manner the Secured Party
deems advisable for or against all matters submitted or which may be submitted
to a vote of shareholders, partners or members, as the case may
be. The power of attorney granted hereby is coupled with an interest
and shall be irrevocable until the termination of this agreement in accordance
with Section 25 at
which time such power of attorney shall automatically terminate.
(c) For
so long as any Pledgor shall have the right to vote the Pledged Interests owned
by it, such Pledgor covenants and agrees that it will not, without the prior
written consent of the Secured Party, vote or take any consensual action with
respect to such Pledged Interests which would materially adversely affect the
rights of the Secured Party or the value of the Pledged Interests.
5. Representations and
Warranties. Each Pledgor jointly and severally represents and
warrants to the Secured Party as follows:
(a) Each
Pledgor has taken all steps necessary or appropriate to be informed on a
continuing basis of changes or potential changes affecting the Pledged
Collateral (including rights of conversion and exchange, rights to subscribe,
payment of dividends, reorganizations or recapitalization, tender offers and
voting rights), and each Pledgor agrees that the Secured Party shall not have
any responsibility or liability for informing any Pledgor of any such changes or
potential changes or for taking any action or omitting to take any action with
respect thereto;
(b) All
of the information herein or hereafter supplied to the Secured Party by or on
behalf of any Pledgor in writing with respect to the Pledged Collateral is, or
in the case of information hereafter supplied will be, accurate and complete in
all material respects;
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(c) Each
Pledgor is and will be the sole legal and beneficial owner of the Pledged
Collateral purported to be owned by such Pledgor (including the Pledged
Interests and all other Pledged Collateral acquired by such Pledgor after the
date hereof) free and clear of any adverse claim, Lien, or other right, title,
or interest of any party, other than the Liens held by the Secured
Party;
(d) This
Agreement, and the delivery to the Secured Party of the Pledged Interests
representing Pledged Collateral to the extent evidenced by a certificate (or the
delivery to all Holders of the Pledged Interests representing Pledged Collateral
of the notification/instruction referred to in Section 3 of
this Agreement), creates a valid, perfected, and first priority security
interest in one hundred percent (100%) of the Pledged Interests in favor of
the Secured Party securing payment of the Secured Obligations, and all actions
necessary to achieve such perfection have been duly taken;
(e) Schedule A to
this Agreement (as amended in accordance with the terms hereof) is true and
correct and complete in all respects; without limiting the generality of the
foregoing: (i) all the Pledged Interests (to the extent
designated as such on Schedule A) are
in certificated form, and, except to the extent registered in the name of the
Secured Party or its nominee pursuant to the provisions of this Agreement, are
registered in the name of the applicable Pledgor; and (ii) the Pledged
Interests as to each of the Issuers constitute at least the percentage of all
the fully diluted issued and outstanding Equity Interests of such Issuer as set
forth in Schedule A to
this Agreement;
(f) The
Pledged Interests that are interests in general partnerships, limited
partnerships or limited liability companies (i) are not dealt in or traded
on securities exchanges or in securities markets, (ii) do not have terms
expressly providing that they are securities governed by Article 8 of the
Code, and (iii) are not investment company securities, and are not,
therefore, “securities” governed by Article 8 of the Code;
(g) There
are no presently existing Future Rights or Proceeds owned by any
Pledgor;
(h) The
Pledged Interests have been duly authorized and validly issued and are fully
paid and nonassessable;
(i) Neither
the pledge of the Pledged Collateral pursuant to this Agreement nor the
extensions of credit represented by the Secured Obligations violate
Regulation T, U or X of the Board of Governors of the Federal Reserve
System;
(j) Each
direct Subsidiary of each Pledgor is an Issuer of Pledged Interests that have
been pledged hereunder;
(k) No
consent, approval, authorization or other order or other action by, and no
notice to or filing with, any Governmental Authority or any other Person is
required (i) for the pledge by any Pledgor of the Pledged Collateral
pursuant to this Agreement or for the execution, delivery or performance of this
Agreement by any Pledgor, or (ii) for the exercise by the Secured Party of
the voting or other rights provided for in this Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Agreement, except as may be
required in connection with such disposition by laws affecting the offering and
sale of securities generally; and
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(l) This
Agreement has been duly authorized, executed and delivered by each Pledgor and
constitutes a legal, valid and binding obligation of each Pledgor enforceable
against such Pledgor in accordance with its terms.
6. Further
Assurances.
(a) Each
Pledgor jointly and severally agrees that from time to time, at its expense,
each Pledgor will promptly execute and deliver all further instruments and
documents, and take all further action that may be necessary or reasonably
desirable, or that the Secured Party may request, in order to perfect and
protect any security interest granted or purported to be granted hereby or to
enable the Secured Party to exercise and enforce its rights and remedies
hereunder with respect to any Pledged Collateral. Without limiting
the generality of the foregoing, each Pledgor will: (i) at the
request of the Secured Party, xxxx conspicuously each of its records pertaining
to the Pledged Collateral with a legend, in form and substance reasonably
satisfactory to the Secured Party, indicating that such Pledged Collateral is
subject to the security interest granted hereby; (ii) authorize such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or reasonably desirable, or as the
Secured Party may request, in order to perfect and preserve the security
interests granted or purported to be granted hereby; (iii) allow inspection
during reasonable hours of the Pledged Collateral by the Secured Party or
Persons designated by the Secured Party from time to time hereafter; and
(iv) appear in and defend any action or proceeding that may affect such
Pledgor’s title to or the Secured Party’s security interest in the Pledged
Collateral.
(b) Each
Pledgor hereby authorizes the Secured Party to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Pledged Collateral without the signature of such Pledgor where permitted by
law. A carbon, photographic, or other reproduction of this Agreement
or any financing statement covering the Pledged Collateral or any part thereof
shall be sufficient as a financing statement where permitted by
law.
(c) Each
Pledgor will furnish to the Secured Party, upon the request of the Secured
Party, (i) a certificate executed by an authorized officer of such Pledgor,
and dated as of the date of delivery to the Secured Party, itemizing in such
detail as the Secured Party may request, the Pledged Collateral which, as of the
date of such certificate, has been delivered to the Secured Party by such
Pledgor pursuant to the provisions of this Agreement; and (ii) such
statements and schedules further identifying and describing the Pledged
Collateral and such other reports in connection with the Pledged Collateral as
the Secured Party may request.
(d) Each
Pledgor will, upon obtaining ownership of any Future Rights, promptly (and in
any event within three (3) Business Days) deliver to the Secured Party a
Pledge Amendment, duly executed by such Pledgor, in substantially the form of
Schedule C
hereto (a “Pledge
Amendment”) in respect of any such Future Rights, pursuant to which such
Pledgor shall pledge to the Secured Party all of such Future Rights, and in
connection with such pledge, with respect to any Pledged Collateral evidenced by
certificates or instruments, provide evidence that such Pledgor shall have
complied with Section 3
hereof. The Pledge Amendment shall, from and after the delivery
thereof constitute part of Schedule A
hereto. Each Pledgor hereby authorizes the Secured Party to attach
each Pledge Amendment to this Agreement and agrees that all Pledged interests
listed on any Pledge Amendment delivered to the Secured Party shall for all
purposes hereunder be considered Pledged Collateral and such Pledgor shall be
deemed to have made the representations and warranties set forth in Section 5 hereof
with respect to Future Rights.
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(e) If
any Pledged Interests are or become evidenced by certificates or any other
instrument, each Pledgor shall immediately deliver all such certificates or
instruments to the Secured Party together with duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to the
Secured Party.
7. Covenants of
Pledgors. So long as any of the Secured Obligations shall
remain unpaid, each Pledgor jointly and severally covenants and agrees that it
will:
(a) Perform
each and every covenant in any of the Investment Documents applicable to such
Pledgor;
(b) At
all times keep at least one complete set of its records concerning substantially
all of the Pledged Collateral pledged by each Pledgor hereunder at such
Pledgor’s respective Chief Executive Office as set forth in Schedule B
hereto, and not change the location of such Chief Executive Office or of such
records without giving the Secured Party at least thirty (30) days prior
written notice thereof;
(c) Not
permit any of the Issuers to: (i) authorize the amendment of or
amend the certificate of formation, partnership agreement, limited liability
company agreement or other similar governing documents of such Issuer that is a
general partnership, limited partnership or limited liability company to provide
that the Capital Stock of such Issuer is governed by Article 8 of the Code,
or (ii) authorize the issuance of or issue certificates evidencing the
Capital Stock of such Issuer that is a general partnership, limited partnership
or limited liability company;
(d) To
the extent it may lawfully do so, use its best efforts to prevent the Issuers
from issuing Future Rights or Proceeds, except for cash dividends and other
distributions, if any, that are not prohibited by the terms of the Purchase
Agreement to be paid by any Issuer to Pledgor; and
(e) Upon
receipt by any Pledgor of any material notice, report, or other communication
from any of the Issuers or any Holder relating to all or any part of the Pledged
Collateral, deliver a copy of such notice, report or other communication to the
Secured Party as soon as possible, but in no event later than five (5)
Business Days following the receipt thereof by such Pledgor.
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8. The Secured Party as
Pledgors’ Attorney-in-Fact.
(a) Each
Pledgor hereby irrevocably appoints the Secured Party as such Pledgor’s
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor, the Secured Party or otherwise, from time to time
at the Secured Party’s discretion, to take any action and to execute any
instrument that the Secured Party may reasonably deem necessary or advisable to
exercise the powers, rights and remedies granted to the Secured Party hereunder,
including: (i) upon the occurrence and during the continuance of
an Event of Default, to receive, endorse, and collect all instruments made
payable to any Pledgor representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part thereof to the
extent permitted hereunder and to give full discharge for the same and to
execute and file governmental notifications and reporting forms in connection
therewith; (ii) to issue any notifications/instructions the Secured Party
deems necessary pursuant to Section 3 of
this Agreement; (iii) to file any claims or take any action or institute
any proceedings which the Secured Party may deem necessary or desirable for the
collection of any of the Pledged Collateral of such Pledgor or otherwise to
enforce the rights of the Secured Party with respect to any of the Pledged
Collateral; or (iv) upon the occurrence and during the continuance of an
Event of Default, to arrange for the transfer of the Pledged Collateral on the
books of any of the Issuers or any other Person to the name of the Secured Party
or to the name of the Secured Party’s nominee.
(b) In
addition to the designation of the Secured Party as such Pledgor’s
attorney-in-fact in subsection (a),
each Pledgor hereby irrevocably appoints the Secured Party as such Pledgor’s
agent and attorney-in-fact with power to make, execute and deliver any and all
documents and writings which may be necessary or appropriate for approval of, or
be required by, any regulatory authority located in any city, county, state or
country where such Pledgor or any of the Issuers engage in business, in order to
transfer or to more effectively transfer any of the Pledged Interests or
otherwise enforce the rights granted hereunder to the Secured Party for the
benefit thereof, exercisable only at such time as an Event of Default has
occurred and is continuing.
9. Remedies upon
Default. Upon the occurrence and during the continuance of an
Event of Default:
(a) The
Secured Party 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 on default under the Code
(irrespective of whether the Code applies to the affected items of Pledged
Collateral), and the Secured Party may also without notice (except as specified
below), sell the Pledged Collateral or any part thereof in one or more parcels
at public or private sale, at any exchange, broker’s board or at any of the
Secured Party’s offices or elsewhere, for cash, on credit or for future
delivery, at such time or times and at such price or prices and upon such other
terms as the Secured Party may deem commercially reasonable, irrespective of the
impact of any such sales on the market price of the Pledged
Collateral. To the maximum extent permitted by applicable law, the
Secured Party may be the purchaser of any or all of the Pledged Collateral at
any such sale and shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Pledged Collateral sold at any such public sale, to use and apply all or any
part of the Secured Obligations as a credit on account of the purchase price of
any Pledged Collateral payable at such sale. Each purchaser at any
such sale shall hold the property sold absolutely free from any claim or right
on the part of any Pledgor, and each Pledgor hereby waives (to the extent
permitted by law) all rights of redemption, stay, or appraisal that it now has
or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Each Pledgor agrees that, to the
extent notice of sale shall be required by law, at least ten (10) calendar
days notice to such Pledgor of the time and place of any public sale or the time
after which a private sale is to be made shall constitute reasonable
notification. The Secured Party shall not be obligated to make any
sale of Pledged Collateral regardless of notice of sale having been
given. The Secured Party may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned. To the maximum extent permitted by law, each Pledgor
hereby waives any claims against the Secured Party arising because the price at
which any Pledged Collateral may have been sold at such a private sale was less
than the price that might have been obtained at a public sale, even if the
Secured Party accepts the first offer received and does not offer such Pledged
Collateral to more than one offeree. All cash proceeds received by
the Secured Party in respect of any sale of collection from or other realization
upon all or any part of the Pledged Collateral shall be applied against the
Secured Obligations in the order set forth in the Note. In the event
the proceeds of Pledged Collateral are insufficient to satisfy all of the
Secured Obligations in full, the Pledgors shall remain jointly and severally
liable for any such deficiency.
10
(b) Each
Pledgor hereby agrees that any sale or other disposition of the Pledged
Collateral conducted in conformity with reasonable commercial practices of
banks, insurance companies, or other financial institutions in the County of Los
Angeles, State of California in disposing of property similar to the Pledged
Collateral shall be deemed to be commercially reasonable.
(c) Pledgor
hereby acknowledges that the sale by the Secured Party of any Pledged Collateral
pursuant to the terms hereof in compliance with the Securities Act, as well as
applicable “Blue Sky” or other state securities laws may require strict
limitations as to the manner in which the Secured Party or any subsequent
transferee of the Pledged Collateral may dispose thereof. Each
Pledgor acknowledges and agrees that in order to protect the Secured Party’s
interest it may be necessary to sell the Pledged Collateral at a price less than
the maximum price attainable if a sale were delayed or were made in another
manner, such as a public offering under the Securities Act. Each
Pledgor has no objection to a sale made in such a manner and agrees that the
Secured Party shall have no obligation to obtain the maximum possible price for
the Pledged Collateral. Without limiting the generality of the
foregoing, each Pledgor agrees that, upon the occurrence and during the
continuation of an Event of Default, the Secured Party may, subject to
applicable law, from time to time attempt to sell all or any part of the Pledged
Collateral by a private placement, restricting the bidders and prospective
purchasers to those who will represent and agree that they are purchasing for
investment only and not for distribution. In so doing, the Secured
Party may solicit offers to buy the Pledged Collateral or any part thereof for
cash, from a limited number of investors deemed by the Secured Party, in its
reasonable judgment, to be institutional investors or other responsible parties
who might be interested in purchasing the Pledged Collateral. If the
Secured Party shall solicit such offers, then the acceptance by the Secured
Party of one of the offers shall be deemed to be a commercially reasonable
method of disposition of the Pledged Collateral.
(d) If
the Secured Party shall determine to exercise its right to sell all or any
portion of the Pledged Collateral pursuant to this Section, each Pledgor agrees
that, upon request of the Secured Party, such Pledgor will, at its own
expense:
11
(i) use
its best efforts to execute and deliver, and cause the Issuers and the directors
and officers thereof to execute and deliver, all such instruments and documents,
and to do or cause to be done all such other acts and things, as may be
necessary, or in the opinion of the Secured Party, advisable to register such
Pledged Collateral under the provisions of the Securities Act, and to cause the
registration statement relating thereto to become effective and to remain
effective for such period as prospectuses are required by law to be furnished,
and to make all amendments and supplements thereto and to the related
prospectuses which, in the opinion of the Secured Party, are necessary or
advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission applicable
thereto;
(ii) use
its best efforts to qualify the Pledged Collateral under the state securities
laws or “Blue Sky’’ laws and to obtain all necessary governmental approvals for
the sale of the Pledged Collateral, as requested by the Secured
Party;
(iii) cause
the Issuers to make available to their respective security holders, as soon as
practicable, an earnings statement which will satisfy the provisions of
Section 11(a) of the Securities Act;
(iv) execute
and deliver, or cause the officers and directors of the Issuers to execute and
deliver, to any person, entity or governmental authority as the Secured Party
may deem necessary or appropriate, any and all documents and writings which, in
the Secured Party’s reasonable judgment, may be necessary for approval, or be
required by, any regulatory authority located in any city, county, state or
country where such Pledgor or the Issuers engage in business, in order to
transfer or to more effectively transfer the Pledged Interests or otherwise
enforce the Secured Party’s rights hereunder; and
(v) do
or cause to be done all such other acts and things as may be necessary to make
such sale of the Pledged Collateral or any part thereof valid and binding and in
compliance with applicable law. Each Pledgor acknowledges that there
is no adequate remedy at law for failure by it to comply with the provisions of
this Section and that such failure would not be adequately compensable in
damages, and therefore agrees that its agreements contained in this Section may
be specifically enforced.
(e) EACH
PLEDGOR EXPRESSLY WAIVES TO THE MAXIMUM EXTENT PERMITTED BY
LAW: (i) ANY CONSTITUTIONAL OR OTHER RIGHT TO A JUDICIAL HEARING
PRIOR TO THE TIME THE SECURED PARTY DISPOSES OF ALL OR ANY PART OF THE
COLLATERAL AS PROVIDED IN THIS SECTION; (ii) ALL RIGHTS OF REDEMPTION,
STAY, OR APPRAISAL THAT IT NOW HAS OR MAY AT ANY TIME IN THE FUTURE HAVE UNDER
ANY RULE OF LAW OR STATUTE NOW EXISTING OR HEREAFTER ENACTED; AND
(iii) EXCEPT AS SET FORTH IN SUBSECTION (a)
OF THIS SECTION, ANY REQUIREMENT OF NOTICE, DEMAND, OR ADVERTISEMENT FOR
SALE.
10. Application of
Proceeds. Upon the occurrence and during the continuance of an
Event of Default, any cash held by the Secured Party as Pledged Collateral and
all cash proceeds received by the Secured Party in respect of any sale of,
collection from, or other realization upon all or any part of the Pledged
Collateral pursuant to the exercise by the Secured Party of its remedies as a
secured creditor as provided in Section 9 shall
be applied to the Obligations in accordance with the Note.
12
11. Duties of the Secured
Party. So long as the Secured Party complies with its
obligations, if any, under the Code, the Secured Party shall not in any way or
manner be liable or responsible for: (a) the safekeeping of the
Pledged Collateral; (b) any loss or damage thereto occurring or arising in
any manner or fashion from any cause; (c) any diminution in the value
thereof; or (d) any act or default of any carrier, warehouseman, bailee,
forwarding agency, or other Person. All risk of loss, damage, or
destruction of the Pledged Collateral shall be borne by the
Pledgors. The powers conferred on the Secured Party hereunder are
solely to protect its interests in the Pledged Collateral and shall not impose
on it any duty to exercise such powers. Except as provided in
Section 9-207 of the Code, the Secured Party shall have no duty with
respect to the Pledged Collateral or any responsibility for taking any necessary
steps to preserve rights against any Persons with respect to any Pledged
Collateral
12. GOVERNING
LAW. THIS AGREEMENT AND THE OTHER INVESTMENT DOCUMENTS (UNLESS
EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER INVESTMENT DOCUMENT IN RESPECT OF
SUCH OTHER INVESTMENT DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK.
13. CONSENT TO JURISDICTION,
SERVICE OF PROCESS AND VENUE. AS PART OF THE CONSIDERATION FOR
NEW VALUE RECEIVED, AND REGARDLESS OF ANY PRESENT OR FUTURE DOMICILE OR
PRINCIPAL PLACE OF BUSINESS OF THE PLEDGORS OR THE SECURED PARTY, EACH OF THE
PLEDGORS HEREBY CONSENTS AND AGREES THAT THE STATE COURTS OF CALIFORNIA, OR, AT
THE OPTION OF THE SECURED PARTY, THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE PLEDGORS AND THE SECURED PARTY
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT. THE PLEDGORS EXPRESSLY SUBMIT AND CONSENT IN ADVANCE
TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE
PLEDGORS HEREBY WAIVE ANY OBJECTION WHICH THE PLEDGORS MAY HAVE BASED UPON LACK
OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. THE PLEDGORS HEREBY WAIVE PERSONAL SERVICE
OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT
AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE
BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE PLEDGORS PURSUANT TO SECTION 7 HEREOF
AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF THE
PLEDGORS’ ACTUAL RECEIPT THEREOF OR THE NEXT BUSINESS DAY IF SENT BY A
NATIONALLY RECOGNIZED COURIER FOR NEXT BUSINESS DAY DELIVERY. NOTHING
IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF THE SECURED
PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO
PRECLUDE THE ENFORCEMENT BY THE SECURED PARTY OF ANY JUDGMENT OR ORDER OBTAINED
IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME
IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
13
14. WAIVER OF JURY TRIAL,
ETC.
(a) TO
THE EXTENT PERMITTED AND ENFORCEABLE UNDER APPLICABLE LAW, EACH PLEDGOR AND THE
SECURED PARTY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. THE
PLEDGORS AND THE SECURED PARTY REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS TO THE EXTENT
PERMITTED AND ENFORCEABLE UNDER APPLICABLE LAW FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, AND SUBJECT TO THE
ENFORCEABILITY OF THE FOREGOING WAIVER, A COPY OF THIS AGREEMENT MAY BE FILED AS
A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(b) IN
THE EVENT THE WAIVER PROVIDED IN SECTION 14(a) IS
DEEMED INEFFECTIVE, TO GIVE EFFECT TO THE PARTIES’ DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE OR RETIRED JUDGE APPLYING THE APPLICABLE LAW, THE PARTIES
AGREE TO REFER, FOR A COMPLETE AND FINAL ADJUDICATION, ANY AND ALL ISSUES OF
FACT OR LAW INVOLVED IN ANY LITIGATION OR PROCEEDING (INCLUDING, WITHOUT
LIMITATION, ALL DISCOVERY AND LAW AND MOTION MATTERS, PRETRIAL MOTIONS, TRIAL
MATTERS AND POST-TRIAL MOTIONS (E.G. MOTIONS FOR RECONSIDERATION, NEW TRIAL AND
TO TAX COSTS, ATTORNEY FEES AND PREJUDGMENT INTEREST)) UP TO AND INCLUDING FINAL
JUDGMENT, BROUGHT TO RESOLVE ANY DISPUTE (WHETHER SOUNDING IN CONTRACT, TORT,
UNDER ANY STATUTE OR OTHERWISE) BETWEEN AND AMONG ANY OF THE PARTIES HERETO, TO
A JUDICIAL REFEREE WHO SHALL BE APPOINTED UNDER A GENERAL REFERENCE PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638. THE REFEREE’S
DECISION WOULD STAND AS THE DECISION OF THE COURT, WITH JUDGMENT TO BE ENTERED
ON HIS/HER STATEMENT OF DECISION IN THE SAME MANNER AS IF THE ACTION HAD BEEN
TRIED BY THE COURT. THE PARTIES HERETO SHALL SELECT A SINGLE NEUTRAL
REFEREE, WHO SHALL BE A RETIRED STATE OR FEDERAL JUDGE WITH AT LEAST FIVE YEARS
OF JUDICIAL EXPERIENCE IN CIVIL MATTERS. IN THE EVENT THAT THE
PARTIES HERETO CANNOT AGREE UPON A REFEREE, THE REFEREE SHALL BE APPOINTED BY
THE COURT. WITHOUT LIMITING OR AFFECTING ANY INDEMNITIES AVAILABLE TO
THE SECURED PARTY, THE SECURED PARTY, ON THE ONE HAND, AND THE PLEDGORS, ON THE
OTHER HAND, SHALL EQUALLY BEAR THE FEES AND EXPENSES OF THE REFEREE (50% BY THE
SECURED PARTY AND 50% BY THE PLEDGORS) UNLESS THE REFEREE OTHERWISE PROVIDES IN
THE STATEMENT OF DECISION.
14
15. Amendments;
Etc. No amendment or waiver of any provision of this Agreement
nor consent to any departure by any Pledgor herefrom shall in any event be
effective unless the same shall be in writing and signed by the Secured Party
and such Pledgor and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
16. No Waiver; Remedies,
Etc. No remedy under this Agreement, under the Purchase
Agreement, or any other Investment Document is intended to be exclusive of any
other remedy, but each and every remedy shall be cumulative and in addition to
any and every other remedy given under this Agreement, under the Purchase
Agreement, or any other Investment Document, and those provided by
law. No failure on the part of the Secured Party to exercise, and no
delay in exercising any right under this Agreement, any other Investment
Document, or otherwise with respect to any of the Secured Obligations, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right under this Agreement, any other Investment Document, or otherwise with
respect to any of the Secured Obligations preclude any other or further exercise
thereof or the exercise of any other right. The remedies provided for
in this Agreement or otherwise with respect to any of the Secured Obligations
are cumulative and not exclusive of any remedies provided by law.
17. Notices. Unless
otherwise specifically provided herein, all notices and other communications
hereunder to the Secured Party shall be in writing and shall be mailed, sent or
delivered in the manner provided for in the Purchase Agreement and all notices
and other communications hereunder to any Pledgor shall be in writing and shall
be mailed, sent or delivered, in care of such Pledgor, in accordance with the
Purchase Agreement.
18. Continuing Security
Interest. This Agreement shall create a continuing security
interest in the Pledged Collateral and shall: (i) subject to
Sections 24 and
25, remain in
full force and effect until the payment in full in cash of the Secured
Obligations; (ii) be binding upon each Pledgor and its successors and
assigns; and (iii) inure to the benefit of the Secured Party and its
successors, transferees, and assigns. Subject to Sections 24 and
25, upon the
full and final payment in cash of the Secured Obligations, and the full and
final termination of any commitment to extend any financial accommodations under
the Purchase Agreement, the security interests granted herein shall
automatically terminate and all rights to the Pledged Collateral shall revert to
the Pledgors.
19. Security Interest
Absolute. To the maximum extent permitted by law, all rights
of the Secured Party, all security interests hereunder, and all obligations of
the Pledgors hereunder, shall be absolute and unconditional, irrespective
of:
(a) any
lack of validity or enforceability of any of the Secured Obligations or any
other agreement or instrument relating thereto, including any of the Investment
Documents, any change in the time, manner, or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other amendment or
waiver of or any consent to any departure from any of the Investment Documents
or any other agreement or instrument relating thereto;
15
(b) any
exchange, release, or non-perfection of any other collateral, or any release or
amendment or waiver of or consent to departure from any Investment Document;
or
(c) any
other circumstances that might otherwise constitute a defense available to, or a
discharge of, any Pledgor.
To the
maximum extent permitted by law, each Pledgor hereby waives any right to require
the Secured Party to: (A) proceed against or exhaust any
security held from Pledgor; or (B) pursue any other remedy in the Secured
Party’s power whatsoever.
20. Section
Headings. Headings and numbers have been set forth herein for
convenience only and shall not constitute a part of this Agreement, or be given
any substantive effect. Unless the contrary is compelled by the
context, everything contained in each section applies equally to this entire
Agreement.
21. Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
22. Counterparts;
Execution. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same Agreement. Delivery of an
executed counterpart of this Agreement by facsimile or electronic mail shall be
equally as effective as delivery of an original executed counterpart of this
Agreement. Any party delivering an executed counterpart of this
Agreement by telefacsimile or electronic mail also shall deliver an original
executed counterpart of this Agreement but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, or binding
effect hereof
23. Waiver of
Marshaling. Each Pledgor and the Secured Party acknowledges
and agrees that in exercising any rights under or with respect to the Pledged
Collateral, the Secured Party: (i) is under no obligation to
marshal any Pledged Collateral; (ii) may, in its absolute discretion,
realize upon the Pledged Collateral in any order and in any manner it so elects;
and (iii) shall apply the proceeds of any or all of the Pledged Collateral
to the Secured Obligations in accordance with the Purchase
Agreement. Each Pledgor and the Secured Party waive any right to
require the marshaling of any of the Pledged Collateral.
24. Termination;
Release. When the Secured Obligations have been paid in full
in accordance with the terms of the Purchase Agreement, this Agreement shall
terminate (subject to Section 25) and
all rights in the Pledged Collateral shall revert to the
Pledgors. The Secured Party, at the request and sole expense of the
Pledgors will promptly execute and deliver to the Pledgors the proper
instruments as the Pledgors shall reasonably request (including Uniform
Commercial Code termination statements) acknowledging the termination of this
Agreement, and will duly assign, transfer and deliver to the Pledgors, without
recourse, representation or warranty of any kind whatsoever, such of the Pledged
Collateral as may be in possession of the Secured Party and has not theretofore
been disposed of, applied or released.
16
25. Revival and Reinstatement of
Secured Obligations. If the incurrence or payment of the
Secured Obligations by any Pledgor or the transfer by any Pledgor to the Secured
Party of any property of such Pledgor should for any reason subsequently be
declared to be void or voidable under any state or federal law relating to
creditors’ rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, and other voidable or recoverable payments
of money or transfers of property (collectively, a “Voidable Transfer”),
and if the Secured Party is required to repay or restore, in whole or in part,
any such Voidable Transfer, or elects to do so upon the reasonable advice of its
counsel, then, as to any such Voidable Transfer, or the amount thereof that the
Secured Party is required or elects to repay or restore, and as to all
reasonable costs, expenses, and attorneys fees of the Secured Party related
thereto, the liability of each Pledgor automatically shall be revived,
reinstated, and restored and shall exist as though such Voidable Transfer had
never been made.
26. Interpretation. Neither
this Agreement nor any uncertainty or ambiguity herein shall be construed or
resolved against the Secured Party or the Pledgors, whether under any rule of
construction or otherwise. On the contrary, this Agreement has been
reviewed by all parties and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish the purposes and
intentions of all parties hereto.
17
IN
WITNESS WHEREOF, the Pledgors and the Secured Party have caused this Agreement
to be duly executed and delivered by their respective officers as of the date
first written above.
|
PLEDGORS:
CAPRIUS,
INC.
|
|||
|
|
By:
|
/s/Xxxxxx
Xxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx
Title:
Chief Executive
Officer
|
|||
|
M.C.M.
ENVIRONMENTAL TECHNOLOGIES, INC.
|
|||
|
By:
|
/s/Xxxxxx Xxxxxx
|
||
|
Name:
Xxxxxx Xxxxxx
Title:
Chief Executive
Officer
|
|||
|
M.C.M.
ENVIRONMENTAL TECHNOLOGIES LTD.
|
|||
|
By:
|
/s/Xxxxxx
Xxxxx
|
||
|
Name:
Xxxxxx Xxxxx
Title:
Chairman
|
|||
|
SECURED
PARTY:
VINTAGE
CAPITAL GROUP, LLC
|
|||
|
|
By:
|
/s/Xxxx X.
Xxxxx
|
|
|
Name:
Xxxx X. Xxxxx
Title:
Chairman
|
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SCHEDULE A
TO
PLEDGED
INTERESTS
|
PLEDGOR
|
ISSUER
|
NUMBER
AND CLASS
OF
SHARES
|
CERTIFICATE
NUMBER
|
PLEDGOR’S
PERCENTAGE
OWNERSHIP
|
JURISDICTION
OF
FORMATION
|
PLEDGED
DEBT
|
PLEDGOR
|
ISSUER
|
ORIGINAL
PRINCIPAL
AMOUNT
|
OUTSTANDING
PRINCIPAL
BALANCE
|
ISSUE
DATE
|
MATURITY
DATE
|
SCHEDULE
B
CHIEF
EXECUTIVE OFFICE
SCHEDULE C
PLEDGE
AMENDMENT
This
Pledge Amendment, dated ____________, ______ is delivered pursuant to
Section 6(d) of the Pledge Agreement referred to below. All
defined terms herein shall have the meanings ascribed thereto or incorporated by
reference in the Pledge Agreement. The undersigned hereby certifies
that the representations and warranties in Section 5 of the
Pledge Agreement are and continue to be true and correct, both as to the
instruments, shares and limited liability company interested pledged prior to
this Pledge Amendment and as to the instruments, shares and limited liability
company interests pledge pursuant to this Pledge Amendment. The
undersigned further agrees that this Pledge Amendment may be attached to that
certain Pledge Agreement, dated as of September 16, 2009, among the
signatories thereto, as Pledgors, and Vintage Capital Group, LLC, as Secured
Party (as amended, supplemented or otherwise modified prior to the date hereof,
the “Pledge
Agreement”) and that Pledged Collateral listed on this Pledge Amendment
shall be and become a part of the Pledged Collateral referred to in said Pledge
Agreement and shall secure all Secured Obligations referred to in said Pledge
Agreement. The undersigned acknowledges that any instruments, shares
and limited liability company interests not included in the Pledged Collateral
at the discretion of the Secured Party may not otherwise be pledged by the
undersigned to any other Person or otherwise used as security for any
obligations other than the Secured Obligations.
|
[NAME
OF PLEDGOR]
|
||||
|
|
By:
|
|||
|
Name:
|
||||
|
Title:
|
||||
Pledged
Interests
|
PLEDGOR
|
ISSUER
|
NUMBER
AND CLASS OF
SHARES |
CERTIFICATE
NUMBER
|
PLEDGOR’S
PERCENTAGE
OWNERSHIP
|
JURISDICTION
OF
FORMATION |
Pledged
Debt
|
PLEDGOR
|
ISSUER
|
ORIGINAL
PRINCIPAL
AMOUNT
|
OUTSTANDING
PRINCIPAL
BALANCE
|
ISSUE
DATE
|
MATURITY
DATE
|
STOCK
POWER AND ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE
RECEIVED, the undersigned, _______________________, a _________ corporation,
does hereby sell, assign and transfer unto _______________________________,
_____ (___) shares (the “Shares”) of the
[Common] Stock of ______________________, a Delaware corporation (the “Company”), standing
in the undersigned's name on the books of the Company, represented by
Certificate Number __ herewith, and the undersigned does hereby irrevocably
constitute and appoint ______________________________________ as
attorney-in-fact and transfer agent to transfer said Shares on the books of the
Company, with full power of substitution in the premises.
IN
WITNESS WHEREOF, the undersigned has executed this Stock Power and Assignment
Separate from Certificate as of _______________.
|
__________________________________
a
______________________________
|
||||
|
|
By:
|
|||
|
Name:
|
||||
|
Title:
|
||||
