Exhibit 10.4
FORM OF PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of March 28, 2000, among, ▇▇▇▇▇ ▇▇▇▇▇▇ (each
sometimes referred to herein as a "Grantor" and collectively as the "Grantors")
and SovCap Equity Partners, Ltd, a corporation organized under the laws of the
Bahamas, as Agent (the "Agent") for the purchasers (the "Purchasers") listed on
the Purchaser Signature Pages to the Purchase Agreement (as hereinafter
defined).
A. The Purchasers have agreed to purchase Secured Convertible Series 1
Bridge Notes (the "Bridge Notes") from Providential Holdings, Inc., a Nevada
corporation (the "Company") pursuant to, and subject to the terms and conditions
of, a Series 1 Bridge Note and Security Agreement (the "Purchase Agreement").
B. The obligations of the Company under the Bridge Notes are secured
pursuant to the terms of a by a guaranty agreement (the "Guaranty") dated of the
date hereof between from the Grantors and the Agent, as agent for the
Purchasers, of the obligations of the Company under the Bridge Notes.
C. The obligation of the Purchasers to purchase the Bridge Notes is
conditioned upon, among other things, the execution and delivery by the Grantors
of a pledge agreement to secure the Guaranteed Obligations (as defined in the
Guaranty).
D. Capitalized terms used herein and not defined herein shall have the
respective meanings assigned to such terms in the Purchase Agreement.
Accordingly, the Grantors and the Agent hereby agree as follows:
1. PLEDGE. As security for the payment and performance in full of
the Guaranteed Obligations, each Grantor hereby transfers, grants, bargains,
sells, conveys, hypothecates, pledges, sets over, endorses over, and delivers
unto the Agent, and grants to the Agent, for the benefit of the Purchasers, a
security interest in, (a) the shares of capital stock listed in Schedule I
annexed hereto next to such Grantor's name (the "Initial Pledged Stock") and any
additional shares of common stock of the issuer listed in Schedule I annexed
hereto obtained in the future by the Grantors (collectively, the Initial Pledged
Stock together with all such additional shares pledged in the future, the
"Pledged Stock"), and (b) subject to Section 5 below, all proceeds of the
Pledged Stock, including, without limitation, all cash, securities or other
property at any time and from time to time receivable or otherwise distributed
in respect of or in exchange for any of or all such Pledged Stock (the items
referred to in clauses (a) and (b) being collectively called the "Collateral").
Upon delivery to the Agent, any securities now or hereafter included in the
Collateral including, without limitation, the Pledged Stock (the "Pledged
Securities") shall be accompanied by undated stock powers duly executed in blank
or other instruments of transfer satisfactory to the Agent and by such other
instruments and documents as the Agent may reasonably request. Each delivery of
Pledged
Securities shall be accompanied by a schedule showing a description of
the securities theretofore and then being pledged hereunder, which schedule
shall be attached hereto as Schedule I and made a part hereof. Each schedule so
delivered shall supersede any prior schedules so delivered.
2. DELIVERY OF COLLATERAL. Each Grantor agrees to deliver
promptly or cause to be delivered to the Agent any and all Pledged Securities,
and any and all certificates or other instruments or documents representing any
of the Collateral (together with any necessary endorsement).
3. REPRESENTATIONS WARRANTIES AND COVENANTS. Each Grantor hereby
represents, warrants and covenants to and with the Agent that:
(a) except for the security interest granted to the Agent, each Grantor
(i) is and, subject to the provisions of the Purchase Agreement, will at all
times continue to be the direct owner, beneficially and of record, of the
Pledged Securities that it is pledging hereunder, (ii) holds the Collateral that
it is pledging hereunder free and clear of all Liens, charges, encumbrances and
security interests of every kind and nature, (iii) will make no assignment,
pledge, hypothecation or, subject to the provisions of the Purchase Agreement,
transfer of, or create any security interest in, the Collateral that it is
pledging hereunder, and (iv) subject to Section 5 below, will cause any and all
Collateral, whether for value paid by a Grantor or otherwise, to be forthwith
deposited with the Agent and pledged or assigned hereunder;
(b) each Grantor (i) has good right and legal authority to pledge the
Collateral it is pledging hereunder in the manner hereby done or contemplated,
(ii) will not amend, modify or supplement any Pledged Security without the prior
written consent of the Agent, and (iii) will defend its title or interest
thereto or therein against any and all attachments, liens, claims, encumbrances,
security interests or other impediments of any nature, however arising, of all
persons whomsoever;
(c) no consent or approval of any governmental body or regulatory
authority or any securities exchange was or is necessary to the validity of the
pledge effected hereby;
(d) by virtue of the execution and delivery by each Grantor of this
Agreement, when the certificates, instruments or other documents representing or
evidencing the Collateral are delivered to the Agent in accordance with this
Agreement, the Agent will obtain a valid and perfected first lien upon and
security interest in such Collateral as security for the repayment of the
Guaranteed Obligations, prior to all other liens and encumbrances thereon and
security interests therein;
(e) the pledge effected hereby is effective to vest in the Agent the
rights of the Agent in the Collateral as set forth herein; and
(f) all representations, warranties and covenants of the Grantors
contained in this Agreement shall survive the execution, delivery and
performance of this Agreement until the termination of this Agreement pursuant
to Section 14 hereof.
4. REGISTRATION IN NOMINEE NAME; DENOMINATIONS. Upon the
occurrence and during the continuance of an Event of Default, the Agent shall
have the right (in its sole and absolute discretion with subsequent notice to
the Grantors) to transfer to or to register the Pledged Securities in its own
name or the name of its nominee. In addition, the Agent shall at all times have
the right to exchange
the certificates representing Pledged Securities for certificates of smaller or
larger denominations for any purpose consistent with this Agreement.
5. VOTING RIGHTS; DIVIDENDS; ETC.
(a) Unless and until an Event of Default hereunder shall have occurred
and be continuing:
(i) Each Grantor shall be entitled to exercise any and all
voting and/or consensual rights and powers accruing to an owner of
Pledged Securities or any part thereof for any purpose not inconsistent
with the terms of this Agreement and the Purchase Agreement provided
that such action would not adversely affect the rights inuring to the
Agent or the Purchasers under this Agreement or the Purchase Agreement
or adversely affect the rights and remedies of the Agent or the
Purchasers under this Agreement or the Purchase Agreement or the
ability of the Agent or the Purchasers to exercise the same.
(ii) The Agent shall execute and deliver to the Grantors, or
cause to be executed and delivered to the Grantors, all such proxies,
powers of attorney, and other instruments as the Grantors may
reasonably request for the purpose of enabling the Grantors to exercise
the voting and/or consensual rights and powers which they are entitled
to exercise pursuant to subparagraph (i) above.
(iii) The Grantors shall be entitled to receive and retain any
and all cash dividends paid on the Pledged Securities only to the
extent that such cash dividends are permitted by, and otherwise paid in
accordance with the terms and conditions of, Section 7.3 of the
Purchase Agreement and applicable laws. Any and all (a) noncash
dividends, (b) stock or dividends paid or payable in cash or otherwise
in connection with a partial or total liquidation or dissolution, and
(c) instruments, securities, other distributions in property, return of
capital, capital surplus or paid-in surplus or other distributions made
on or in respect of Pledged Securities (other than dividends permitted
by this Section 5(a)(iii)), whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or
any part thereof, or in redemption thereof, as a result of any merger,
consolidation, acquisition or other exchange of assets to which such
issuer may be a party or otherwise, shall be and become part of the
Collateral, and, if received by the Grantor, shall not be commingled by
any Grantor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of
the Agent and the Purchasers and shall be forthwith delivered to the
Agent in the same form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Grantor to receive any dividends which such Grantor
is authorized to receive pursuant to paragraph (a)(iii) of this Section 5 shall
cease, and all such rights shall thereupon become vested in the Agent, which
shall have the sole and exclusive right and authority to receive and retain such
dividends. All dividends which are received by any Grantor contrary to the
provisions of this Section 5(b) shall be received in trust for the benefit of
the Agent, shall be segregated from other property or funds of such Grantor and
shall be forthwith delivered to the Agent as Collateral in the same form as so
received (with any necessary endorsement). Any and all money and other property
paid over to or received by the Agent pursuant to the provisions of this Section
5 shall be retained by the Agent in an account to
be established by the Agent upon receipt of such money or other property and
shall be applied in accordance with the provisions of Section 8 hereof.
(c) Upon the occurrence and during the continuance of an Event
of Default, all rights of any Grantor to exercise the voting and consensual
rights and powers which it is entitled to exercise pursuant to Section 5(a)(i)
shall cease, and all such rights shall thereupon become vested in the Agent,
which shall have the sole and exclusive right and authority to exercise such
voting and consensual rights and powers.
6. ISSUANCE OF ADDITIONAL STOCK. Each Grantor agrees that it will
cause the Company not to issue any stock or other securities, whether in
addition to, by stock dividend or other distribution upon, or in substitution
for, the Pledged Securities or otherwise.
7. REMEDIES UPON EVENT OF DEFAULT. If an Event of Default shall
have occurred and be continuing, the Agent may sell or otherwise dispose of all
or any part of the Collateral, at public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery as the Agent shall deem appropriate. Each such purchaser at any such
sale shall hold the property sold absolutely, free from any claim or right on
the part of any Grantor, and each Grantor hereby waives (to the extent permitted
by law) all rights of redemption, stay and appraisal which such Grantor now has
or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted.
The Agent shall give the applicable Grantor 10 days' written notice
(which each Grantor agrees is reasonable notice within the meaning of Section
9-504(3) of the Uniform Commercial Code as in effect in New York on the date
hereof) of the Agent's intention to make any sale of Collateral. Such notice, in
the case of a public sale, shall state the time and place for such sale and, in
the case of a sale at a broker's board or on a securities exchange, shall state
the board or exchange at which such sale is to be made and the day on which the
Collateral, or portion thereof, will first be offered for sale at such board or
exchange. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Agent may fix and
state in the notice (if any) of such sale. At any such sale, the Collateral, or
portion thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Agent may (in its sole and absolute discretion) determine. The
Agent shall not be obligated to make any sale of any Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such
Collateral shall have been given. The Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Agent until the sale price is paid by the purchaser or purchasers thereof, but
the Agent shall not incur any liability in case any such purchaser or purchasers
shall fail to take up and pay for the Collateral so sold and, in case of any
such failure, such Collateral may be sold again upon like notice. At any public
sale made pursuant to this Section 7, Agent or any Purchaser may bid for or
purchase, free (to the extent permitted by law) from any right of redemption,
stay or appraisal on the part of any Grantor (all said rights being also hereby
waived and released to the extent permitted by law), with respect to the
Collateral or any part thereof offered for sale and Agent or any such Purchaser
may make payment on account thereof by using any claim then due and payable to
Agent or any such Purchaser from such Grantor as a credit against the purchase
price, and Agent or any such Purchaser may, upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to such Grantor therefor. For purposes hereof, a written
agreement to purchase the Collateral or any portion thereof shall be treated as
a sale thereof; the Agent shall be free to carry out such sale and purchase
pursuant to such agreement, and no Grantor shall be entitled to the return of
the Collateral or any portion thereof subject thereto, notwithstanding the fact
that after the Agent shall have entered into such an agreement all Events of
Default shall have been remedied and the Guaranteed Obligations paid in full. As
an alternative to exercising the power of sale herein conferred upon it, the
Agent may proceed by a suit or suits at law or in equity to foreclose this
Agreement and to sell the Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver.
8. APPLICATION OF PROCEEDS OF SALE. The proceeds of any sale of
Collateral, as well as any Collateral consisting of cash, shall be applied by
the Agent in the following order:
(a) to the expenses incurred in effecting such recovery or in enforcing
any right or remedy under this Agreement, the Guaranty or any of the other
Transaction Agreements, and any other expenses theretofore incurred by the Agent
and not previously reimbursed by the Company;
(b) to accrued interest, payable by the Company, according to
Purchaser's Proportionate Share of the accrued interest on the Bridge Notes; and
(c) to the unpaid principal of the Bridge Notes with each Purchaser
receiving such Purchaser's Proportionate Share of such principal.
(d) after all amounts required to be paid pursuant to this Agreement
have been paid in full, to the payment to the Grantors or their heirs,
executors, administrators, successors or assigns, or as a court of competent
jurisdiction may direct, of any surplus then remaining.
9. AGENT APPOINTED ATTORNEY-IN-FACT. Each Grantor hereby appoints
the Agent its attorney-in-fact for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which the
Agent may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. Without limiting the
generality of the foregoing, the Agent shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in the Agent's name or in the name of such Grantor, to ask
for, demand, ▇▇▇ for, collect, receive receipt and give acquittance for any and
all moneys due or to become due and under and by virtue of any Collateral, to
endorse checks, drafts, orders and other instruments for the payment of money
payable to the applicable Grantor representing any interest or dividend, or
other distribution payable in respect of the Collateral or any part thereof or
on account thereof and to give full discharge for the same, to settle,
compromise, prosecute or defend any action, claim or proceeding with respect
thereto, and to sell, assign, endorse, pledge, transfer and make any agreement
respecting, or otherwise deal with, the same; provided, however, that nothing
herein contained shall be construed as requiring or obligating the Agent or the
Purchasers to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Agent or the Purchasers, or to
present or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken by the Agent or the
Purchasers or omitted to be taken with respect to the Collateral or any part
thereof shall give rise to any defense, counterclaim or offset in favor of any
Grantor or to any claim or action against the Agent or the Purchasers in the
absence of the gross negligence or willful misconduct of the Agent or the
Purchasers.
10. NO WAIVER. No failure on the part of the Agent to exercise,
and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Agent preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. The
Agent and the Purchasers shall not be deemed to have waived any rights hereunder
or under any other agreement or instrument unless such waiver shall be in
writing and signed by such parties.
11. REGISTRATION, ETC. Each Grantor agrees that, upon the
occurrence and during the continuance of an Event of Default hereunder, if for
any reason the Agent desires to sell any of the Pledged Securities at a public
sale, it will, at any time and from time to time, upon the written request of
the Agent, take or to cause the issuer of such Pledged Securities to take such
action and to prepare, distribute and/or file such documents, as are required or
advisable in the opinion of counsel for the Agent to permit the public sale of
such Pledged Securities. Each Grantor further agrees to indemnify, defend and
hold harmless the Agent and the Purchasers and any underwriter and their
respective officers, directors, affiliates and controlling persons (within the
meaning of Section 20 of the Securities Exchange Act of 1934) from and against
all loss, liability, expenses, costs, fees and disbursements of counsel
(including, without limitation, a reasonable estimate of the cost to the Agent
of legal counsel), and claims (including the costs of investigation) which they
may incur insofar as such loss, liability, expense or claim arises out of or is
based upon any untrue statement of a material fact contained in any prospectus
(or any amendment or supplement thereto) or in any notification or offering
circular, or arises out of or is based upon any omission to state a material
fact required to be stated therein or necessary to make the statements in any
thereof not misleading, except insofar as the same arises out of any untrue
statement or omission based upon information furnished in writing to the
applicable Grantor or the issuer of such Pledged Securities by the Agent, any
Purchaser or the underwriter expressly for use therein. The Agent (with respect
to such information furnished by it) or such Purchaser (with respect to such
information furnished by it) shall indemnify, defend and hold harmless the
Grantor or the issuer or such Pledged Securities and their respective officers,
directors, affiliates and controlling persons (within the meaning of Section 20
of the Securities Exchange Act of 1934) upon the same terms as are applicable to
the Grantor pursuant hereto. Each Grantor further agrees to use its best efforts
to qualify, file or register, or cause the issuer of such Pledged Securities to
qualify, file or register, any of the Pledged Securities under the blue sky or
other securities laws of such states as may be requested by the Agent and keep
effective, or cause to be kept effective, all such qualifications, filings or
registrations. Each Grantor will bear all costs and expenses of carrying out its
obligations under this Section 11. Each Grantor acknowledges that there is no
adequate remedy at law for failure by it to comply with the provisions of this
Section 11 and that such failure would not be adequately compensable in damages,
and therefore agrees that its agreements contained in this Section 11 may be
specifically enforced.
12. SECURITY INTEREST ABSOLUTE. All rights of the Agent hereunder,
the grant of a security interest in the Collateral and all obligations of the
Grantors hereunder, shall be absolute and unconditional irrespective of (i) any
lack of validity or enforceability of any of the Transaction Agreements, any
agreement with respect to any of the Guaranteed Obligations or any other
agreement or instrument relating to any of the foregoing, (ii) any change in
time, manner or place of payment of, or in any other term of, all or any of the
Guaranteed Obligations, or any other amendment or waiver of or any consent to
any departure from any of the Transaction Agreements or any other agreement or
instrument, (iii) any exchange, release or nonperfection of any other
collateral, or any release or amendment or waiver of or consent to or departure
from any guarantee,
for all or any of the Guaranteed Obligations or (iv) any other circumstance
which might otherwise constitute a defense available to, or a discharge of, any
Grantor in respect of the Guaranteed Obligations or in respect of this
Agreement.
13. AGENT'S FEES AND EXPENSES. The Grantors shall be jointly and
severally obligated to, upon demand, pay to the Agent the amount of any and all
reasonable expenses, including the reasonable fees and expenses of its counsel
and of any experts or agents which the Agent may incur in connection with (i)
the administration of this Agreement, (ii) the custody or preservation of, or
the sale of, collection from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights of the Agent hereunder,
or (iv) the failure by any Grantor to perform or observe any of the provisions
hereof. In addition, Grantors jointly and severally indemnify and hold the Agent
and the Purchasers harmless from and against any and all liability incurred by
the Agent or the Purchasers hereunder or in connection herewith, unless such
liability shall be due to the gross negligence or willful misconduct of the
Agent or the Purchasers, as the case may be. Any such amounts payable as
provided hereunder or thereunder shall be additional Guaranteed Obligations
secured hereby and by the Purchase Agreement.
14. TERMINATION. This Agreement shall terminate when all the
Bridge Notes and the other Guaranteed Obligations have been fully and
indefeasibly paid in cash, at which time the Agent shall reassign and deliver to
the Grantors, or to such person or persons as the Grantors shall designate,
against receipt, such of the Collateral (if any) as shall not have been sold or
as is otherwise still be held by it hereunder, together with appropriate
instruments of reassignment and release; provided, however, that all indemnities
of the Grantors contained in this Agreement shall survive, and remain operative
and in full force and effect regardless of, the termination of this Agreement.
Any such reassignment shall be without recourse to or warranty by the Agent and
at the expense of the Grantors.
15. NOTICES. Any notice, consent, waiver, or other communication
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered (a) upon receipt, when
delivered personally, (b) upon receipt, when sent by facsimile, provided, that a
copy is mailed by U.S. certified mail, return receipt requested, (c) three (3)
days after being sent by U.S. certified mail, return receipt requested, or (d)
one (1) day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
(a) if to ▇▇▇▇▇ ▇▇▇▇▇▇, c/o Providential Holdings, Inc., ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, in each
case with a copy (which shall not constitute notice) to ▇▇▇▇▇▇▇▇▇ & Associates,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
(b) if to the Agent, c/o Sovereign Capital Advisors, LLC, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; with a copy (which shall not constitute notice) to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & Kuh, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; and
(c) if to any Purchaser, at the address set forth below its name on
such Purchaser's Signature Page to the Purchase Agreement, with a copy (which
shall not constitute notice) to the such Purchaser's legal counsel as set forth
on such Purchaser's Signature Page to the Purchase Agreement.
Each party shall provide five (5) days prior written notice to the other party
of any change in address or facsimile number.
16. FURTHER ASSURANCES. Each Grantor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Agent may at any time reasonably
request in connection with the administration and enforcement of this Agreement
or with respect to the Collateral or any part thereof or in order better to
assure and confirm unto the Agent its rights and remedies hereunder.
17. BINDING AGREEMENT; ASSIGNMENTS. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, except that
no Grantor shall be permitted to assign this Agreement or any interest herein or
in the Collateral, or any part thereof, or otherwise pledge, encumber or grant
any option with respect to the Collateral, or any part thereof, or any cash or
property held by the Agent as Collateral under this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the state and federal courts
sitting the City of New York, borough of Manhattan, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
19. ENTIRE AGREEMENT; WAIVER OF JURY TRIAL, ETC.
(a) This Agreement and the other Transaction Agreements constitute the
entire contract between the parties hereto relative to the subject matter
hereof. Any previous agreement among the parties hereto with respect to the
transactions contemplated by the Purchase Agreement is superseded by this
Agreement, the Purchase Agreement and the other Transaction Agreements. Except
as expressly provided herein or in the other Transaction Agreements, nothing in
this Agreement or in the other Transaction Agreements, expressed or implied, is
intended to confer upon any party, other than the parties hereto, any rights,
remedies, obligations or liabilities under or by reason of this Agreement the
other Transaction Agreements.
(b) Except as prohibited by law, each party hereto hereby waives any
right it may have to a trial by jury in respect of any litigation directly or
indirectly arising out of, under or in connection with this Agreement and the
other Transaction Agreements.
(c) Except as prohibited by law, each party hereto hereby waives any
right it may have to claim or recover in any litigation referred to in paragraph
(b) of this Section 19, any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to, actual damages.
(d) Each party hereto (i) certifies that no representative, agent or
attorney of the Agent or any Purchaser has represented, expressly or otherwise,
that the Agent or such Purchaser would not, in the event of litigation, seek to
enforce the foregoing waivers and (ii) acknowledges that it has been induced to
enter into this Agreement or the other Transaction Agreements, as applicable,
by, among other things, the mutual waivers and certifications herein.
20. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective heirs, executors, administrators,
successors and permitted assigns of each Guarantor, the Agent and the
Purchasers.
21. WAIVERS, AMENDMENTS, ETC. The provisions contained herein are
for the benefit of the Purchasers and their respective successors and assigns
and may not be rescinded or canceled or modified in any way, nor, unless
otherwise expressly provided for herein, may any provision of this Agreement be
waived or changed without the express prior written consent thereto of the
Agent.
22. FURTHER ASSURANCES. Each Grantor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Agent may at any time reasonably
request in connection with the administration and enforcement of this Agreement
or in order better to assure and confirm unto the Agent its rights and remedies
hereunder.
23. SURVIVAL. All covenants, agreements, representations and
warranties made by each Grantor herein and in the certificates or other
instruments prepared or delivered in connection with this Agreement shall be
considered to have been relied upon by the Purchasers and shall survive the
purchase by the Purchasers of Bridge Notes and the execution and delivery to the
Purchasers of the Purchase Agreement.
24. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective when copies hereof which, when taken together, bear the signatures of
each of the parties hereto shall be delivered to the Agent. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be effective as delivery of a manually executed signature page hereto.
25. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the remaining provisions contained herein shall not in any way be
affected or impaired.
26. JOINT AND SEVERAL OBLIGATIONS. The obligations of each of the
Guarantors contained herein shall be joint and several.
27. SECTION HEADINGS. Section headings used herein are for
convenience of reference only and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge
Agreement as of the day and year first above written.
GRANTOR SIGNATURE PAGE
TO
PLEDGE AGREEMENT
GRANTORS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
▇▇▇▇▇ ▇▇▇▇▇▇
AGENT SIGNATURE PAGE
TO
PLEDGE AGREEMENT
AGENT:
SOVCAP EQUITY PARTNERS, LTD, AS AGENT
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
