JOINDER AGREEMENT
Exhibit 10.1
THIS JOINDER IN STOCK PLEDGE AGREEMENT, SECURITY AGREEMENT AND INTELLECTUAL PROPERTY SECURITY
AGREEMENT (this “Joinder”) is executed as of January 14, 2008, by GT Acquisition Sub,
Inc., a Minnesota corporation (“Joining Party”), and delivered to Xxxxxxx Corporation, a
Delaware corporation (the “Purchaser”). Except as otherwise defined herein, terms used herein and
defined in the Security Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Digital Angel Corporation, a Delaware corporation (the “Company”), certain
Subsidiaries of the Company and the Purchaser, have entered into a Security Agreement, dated as of
August 31, 2007 (as amended, modified or supplemented from time to time, the “Security
Agreement”), providing for the issuance of the Note and the Warrant and the execution of the
Ancillary Agreements referred to in the Security Agreement; and
WHEREAS, the Joining Party is a direct or indirect Subsidiary of the Company and desires, or
is required pursuant to the provisions of the Security Agreement, to become an Eligible Subsidiary
under the Security Agreement, a Pledgor under the Stock Pledge Agreement and a Grantor under the IP
Security Agreement;
NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to the Joining
Party, the receipt and sufficiency of which are hereby acknowledged, the Joining Party hereby makes
the following representations and warranties to the Purchaser and hereby covenants and agrees with
the Purchaser as follows:
NOW, THEREFORE, the Joining Party agrees as follows:
1. By this Joinder, the Joining Party becomes (i) an Eligible Subsidiary under the Security
Agreement, (ii) a Pledgor under the Stock Pledge Agreement, and (iii) a Grantor under the IP
Security Agreement.
2. The Joining Party agrees that, upon its execution hereof, it will become a Pledgor under,
and as defined in, the Stock Pledge Agreement, and will be bound by all terms, conditions and
duties applicable to a Pledgor under the Stock Pledge Agreement. Without limitation of the
foregoing and in furtherance thereof, as security for the due and punctual payment of the
Indebtedness (as defined in the Stock Pledge Agreement), the Joining Party hereby pledges,
hypothecates, assigns, transfers, sets over and delivers to the Purchaser grants to the Purchaser a
security interest in all Collateral (as defined in the Stock Pledge Agreement), if any, now owned
or, to the extent provided in the Stock Pledge Agreement, hereafter acquired by it.
3. The Joining Party agrees that, upon its execution hereof, it will become an Eligible
Subsidiary under, and as defined in, the Security Agreement, and will be bound by all terms,
conditions and duties applicable to an Eligible Subsidiary under the Security Agreement.
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Without limitation of the foregoing and in furtherance thereof, as security for the due and
punctual payment of the Obligations (as in the Security Agreement), the Joining Party hereby
pledges, hypothecates, assigns, transfers, sets over and delivers to the Purchaser and grants to
the Purchaser a security interest in all Collateral (as defined in the Security Agreement), if any,
now owned or, to the extent provided in the Security Agreement, hereafter acquired by it.
4. The Joining Party agrees that, upon its execution hereof, it will become a Grantor under,
and as defined in, the IP Security Agreement, and will be bound by all terms, conditions and duties
applicable to a Grantor under the IP Security Agreement. Without limitation of the foregoing and
in furtherance thereof, as security for the due and punctual payment of the Obligations (as defined
in the IP Security Agreement), the Joining Party hereby pledges, hypothecates, assigns, transfers,
sets over and delivers to the Purchaser and grants to the Purchaser a security interest in all
Collateral (as defined in the IP Security Agreement), if any, now owned or, to the extent provided
in the IP Security Agreement, hereafter acquired by it.
5. In connection with the grant by the Joining Party, pursuant to paragraphs 3 and 4 above, of
a security interest in all of its right, title and interest in the Collateral (as defined in each
of the Security Agreement, the IP Security Agreement and the Stock Pledge Agreement) in favor of
the Purchaser, the Joining Party (i) agrees to deliver to the Purchaser, together with the delivery
of this Joinder, each of the items specified in Section 3 of the Stock Pledge Agreement, (ii)
agrees to execute (if necessary) and deliver to the Purchaser such financing statements, in form
acceptable to the Purchaser, as the Purchaser may request or as are necessary or desirable in the
opinion of the Purchaser to establish and maintain a valid, enforceable, first priority perfected
security interest in the Collateral (as defined in each of the Security Agreement, the IP Security
Agreement and the Stock Pledge Agreement) owned by the Joining Party, (iii) authorizes the
Purchaser to file any such financing statements without the signature of the Joining Party where
permitted by law (such authorization includes a description of the Collateral as “all assets and
all personal property, whether now owned and/or hereafter acquired” of the Joining Party (or any
substantially similar variation thereof)) and (iv) agrees to execute and deliver to the Purchaser
assignments of United States trademarks, patents and copyrights (and the respective applications
therefor) to the extent requested by the Purchaser.
6. Without limiting the foregoing, the Joining Party hereby makes and undertakes, as the case
may be, each covenant, representation and warranty made by, and as (i) each Eligible Subsidiary
pursuant to the Security Agreement (ii) each Pledgor pursuant to the Stock Pledge Agreement and
(iii) each Grantor pursuant to the IP Security Agreement, in each case as of the date hereof
(except to the extent any such representation or warranty relates solely to an earlier date in
which case such representation and warranty shall be true and correct as of such earlier date), and
agrees to be bound by all covenants, agreements and obligations of a Eligible Subsidiary, Pledgor
and Grantor pursuant to the Security Agreement, Stock Pledge Agreement and the IP Security
Agreement, respectively, and all other Ancillary Agreements to which it is or becomes a party.
7. Certain Schedules of the Security Agreement are hereby amended by supplementing such
Schedules with the information for the Joining Party contained on Annex I attached hereto.
Schedule A to the Stock Pledge Agreement is hereby amended by supplementing such Schedule with the
information for the Joining Party contained on Schedule A attached hereto as Annex II. In addition, Schedules I, II and III to the IP Security
Agreement is hereby amended by supplementing such Schedule with the information for the Joining
Party contained on Schedule A attached hereto as Annex III.
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8. This Joinder shall be binding upon the parties hereto and their respective successors and
permitted assigns and shall inure to the benefit of and be enforceable by each of the parties
hereto and its successors and permitted assigns, provided, however, the Joining
Party may not assign any of its rights, obligations or interest hereunder or under the Security
Agreement or any Ancillary Agreement without the prior written consent of the Purchaser or as
otherwise permitted by the Security Agreement or any Ancillary Agreement. THIS JOINDER SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Joinder may be executed in any number of counterparts, each of which shall be an original, but all
of which shall constitute one instrument. In the event that any provision of this Joinder shall
prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other
provisions of this Joinder which shall remain binding on all parties hereto.
9. From and after the execution and delivery hereof by the parties hereto, this Joinder shall
constitute an “Ancillary Agreement” for all purposes of the Security Agreement and the Ancillary
Agreements.
10. The effective date of this Joinder is January 14, 2008.
* * *
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IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly executed as of the
date first above written.
| GT Acquisition Sub, Inc. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||||
| Name: Xxxxxxxx X. Xxxxxx | ||||||
| Title: CEO | ||||||
| Accepted and Acknowledged by: | ||||||
| XXXXXXX CORPORATION | ||||||
By:
|
Laurus Capital Management, LLC | |||||
| as investment manager | ||||||
By:
|
/s/ Xxxxx Xxxxxxxxx | |||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Authorized Signatory | ||||||
