Exhibit 10.19
GUARANTY AND PLEDGE AGREEMENT
GUARANTY AND PLEDGE AGREEMENT (this "AGREEMENT"), dated as of
July 23, 2004, among FemOne, Inc., a Nevada corporation (the "COMPANY"), Xxxxxx
Xxxxxx (the "PLEDGOR"), and the pledgees signatory hereto and their respective
endorsees, transferees and assigns (collectively, the "PLEDGEES").
W I T N E S S E T H:
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WHEREAS, pursuant to a Securities Purchase Agreement, dated
the date hereof, between Company and the Pledgees (the "PURCHASE AGREEMENT"),
Company has agreed to issue to the Pledgees and the Pledgees have agreed to
purchase from Company certain of Company's 12% Callable Secured Convertible
Notes, due two years from the date of issue (the "NOTES"), which are convertible
into shares of Company's Common Stock, par value $.001 per share (the "COMMON
STOCK"). In connection therewith, Company shall issue the Pledgees certain
Common Stock purchase warrants (the "WARRANTS"); and
WHEREAS, as a material inducement to the Pledgees to enter
into the Purchase Agreement, the Pledgees have required and the Pledgor has
agreed (i) to unconditionally guarantee the timely and full satisfaction of all
obligations of the Company, whether matured or unmatured, now or hereafter
existing or created and becoming due and payable (the "OBLIGATIONS") to the
Pledgees, their successors, endorsees, transferees or assigns under the
Transaction Documents (as defined in the Purchase Agreement) to the extent of
the Collateral (as defined in Section 5 hereof), and (ii) to grant to the
Pledgees, their successors, endorsees, transferees or assigns a security
interest in the number of shares of Common Stock currently owned by the Pledgor
as set forth below the Pledgor's signature on the signature page hereto
(collectively, the "SHARES"), as collateral security for the Obligations. Terms
used and not defined herein shall have the meaning ascribed to them in the
Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals,
and the mutual covenants contained herein, the parties hereby agree as follows:
1. GUARANTY. To the extent of the Collateral, the Pledgor
hereby absolutely, unconditionally and irrevocably guarantees to the Pledgees,
their successors, endorsees, transferees and assigns the due and punctual
performance and payment of the Obligations owing to the Pledgees, their
successors, endorsees, transferees or assigns when due, all at the time and
place and in the amount and manner prescribed in, and otherwise in accordance
with, the Transaction Documents, regardless of any defense or set-off
counterclaim which the Company or any other person may have or assert, and
regardless of whether or not the Pledgees or anyone on behalf of the Pledgees
shall have instituted any suit, action or proceeding or exhausted its remedies
or taken any steps to enforce any rights against the Company or any other person
to compel any such performance or observance or to collect all or part of any
such amount, either pursuant to the provisions of the Transaction Documents or
at law or in equity, and regardless of any other condition or contingency. The
Pledgor shall have no obligation whatsoever to the Pledgees beyond the
Collateral pledged for the Obligations set forth herein.
2. WAIVER OF DEMAND. The Pledgor hereby unconditionally: (i)
waives any requirement that the Pledgees, in the event of a breach in any
material respect by the Company of any of its representations or warranties in
the Transaction Documents, first make demand upon, or seek to enforce remedies
against, the Company or any other person before demanding payment of enforcement
hereunder; (ii) covenants that this Agreement will not be discharged except by
complete performance of all the Obligations to the extent of the Collateral;
(iii) agrees that this Agreement shall remain in full force and effect without
regard to, and shall not be affected or impaired, without limitation, by, any
invalidity, irregularity or unenforceability in whole or in part of the
Transaction Documents or any limitation on the liability of the Company
thereunder, or any limitation on the method or terms of payment thereunder which
may now or hereafter be caused or imposed in any manner whatsoever; and (iv)
waives diligence, presentment and protest with respect to, and notice of default
in the performance or payment of any Obligation by the Company under or in
connection with the Transaction Documents.
3. RELEASE. The obligations, covenants, agreements and duties
of the Pledgor hereunder shall not be released, affected or impaired by any
assignment or transfer, in whole or in part, of the Transaction Documents or any
Obligation, although made without notice to or the consent of the Pledgor, or
any waiver by the Pledgees, or by any other person, of the performance or
observance by the Company or the Pledgor of any of the agreements, covenants,
terms or conditions contained in the Transaction Documents, or any indulgence in
or the extension of the time or renewal thereof, or the modification or
amendment (whether material or otherwise), or the voluntary or involuntary
liquidation, sale or other disposition of all or any portion of the stock or
assets of the Company or the Pledgor, or any receivership, insolvency,
bankruptcy, reorganization, or other similar proceedings, affecting the Company
or the Pledgor or any assets of the Company or the Pledgor, or the release of
any property from any security for any Obligation, or the impairment of any such
property or security, or the release or discharge of the Company or the Pledgor
from the performance or observance of any agreement, covenant, term or condition
contained in or arising out of the Transaction Documents by operation of law, or
the merger or consolidation of the Company, or any other cause, whether similar
or dissimilar to the foregoing.
4. SUBROGATION.
(a) Unless and until complete performance of all the
Obligations to the extent of the Collateral, the Pledgor shall not be entitled
to exercise any right of subrogation to any of the rights of the Pledgees
against the Company or any collateral security or guaranty held by the Pledgees
for the payment or performance of the Obligations, nor shall the Pledgor seek
any reimbursement from the Company in respect of payments made by the Pledgor
hereunder.
(b) In the event that the Pledgor shall become
obligated to perform or pay any sums hereunder, or in the event that for any
reason the Company is now or shall hereafter become indebted to the Pledgor, the
amount of such sum shall at all times be subordinate as to lien, time of payment
and in all other respects, to the amounts owing to the Pledgees under the
Transaction Documents, and the Pledgor shall not enforce or receive payment
thereof until all Obligations due to the Pledgees under the Transaction have
been performed or paid. Nothing herein contained is intended or shall be
construed to give to the Pledgor any right of subrogation in or under the
Transaction Documents, or any right to participate in any way therein, or in any
right, title or interest in the assets of the Pledgees.
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5. SECURITY. As collateral security for the punctual payment
and performance, when due, by the Company of all the Obligations, the Pledgor
hereby pledges with, hypothecates, transfers and assigns to the Pledgees all of
the Shares and all proceeds, shares and other securities received, receivable or
otherwise distributed in respect of or in exchange for the Shares, including,
without limitation, any shares and other securities into which such Shares may
be convertible or exchangeable (collectively, the "ADDITIONAL COLLATERAL" and
together with the Shares, the "COLLATERAL"). Within five (5) days from the date
of this Agreement, the Pledgor shall deliver to the Pledgees the certificate(s)
representing the Shares, stamped with a bank medallion guarantee, along with a
stock transfer power duly executed in blank by the Pledgor, to be held by the
Pledgees as security. Any Collateral received by the Pledgor on or after the
date hereof shall be immediately delivered to the Pledgees together with any
executed stock powers or other transfer documents requested by the Pledgees,
which request may be made at any time prior to the date when the Obligations
shall have been paid and otherwise satisfied in full.
6. VOTING POWER, DIVIDENDS, ETC. AND OTHER AGREEMENTS.
(a) Unless and until an Event of Default (as set
forth in Section 7 hereof) has occurred, the Pledgor shall be entitled to:
(i) Exercise all voting and/or consensual
powers pertaining to the Collateral, or any part
thereof, for all purposes;
(ii) Receive and retain dividends paid with
respect to the Collateral; and
(iii) Receive the benefits of any income tax
deductions available to the Pledgor as a shareholder
of the Company.
(b) The Pledgor agrees that it will not sell, assign,
transfer, pledge, hypothecate, encumber or otherwise dispose of the Collateral
unless and until it is released by the Pledgees pursuant hereto.
(c) The Pledgor and the Company jointly and severally
agree to pay all costs including all reasonable attorneys' fees and
disbursements incurred by the Pledgees in enforcing this Agreement in accordance
with its terms.
7. DEFAULT AND REMEDIES.
(a) For the purposes of this Agreement, "EVENT OF
DEFAULT" shall mean:
(i) default in or under any of the
Obligations after the expiration, without cure or
waiver, of any applicable cure period;
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(ii) a breach in any material respect by the
Company of any of its representations or warranties
in the Transaction Documents; or
(iii) a breach in any material respect by
the Pledgor of any of its representations or
warranties in this Agreement.
(b) the Pledgees shall have the following rights upon
any Event of Default:
(i) the rights and remedies provided by the
Uniform Commercial Code as adopted by the State of
New York (the "UCC") (as said law may at any time be
amended);
(ii) the right to receive and retain all
dividends, payments and other distributions of any
kind upon any or all of the Collateral;
(iii) the right to cause any or all of the
Collateral to be transferred to its own name or to
the name of its designee and have such transfer
recorded in any place or places deemed appropriate by
the Pledgees; and
(iv) the right to sell, at a public or
private sale, the Collateral or any part thereof for
cash, upon credit or for future delivery, and at such
price or prices in accordance with the UCC (as such
law may be amended from time to time). Upon any such
sale the Pledgees shall have the right to deliver,
assign and transfer to the purchaser thereof the
Collateral so sold. The Pledgees shall give the
Pledgor not less than ten (10) days' written notice
of its intention to make any such sale. Any such
sale, shall be held at such time or times during
ordinary business hours and at such place or places
as the Pledgees may fix in the notice of such sale.
The Pledgees may adjourn or cancel any sale or cause
the same to be adjourned from time to time by
announcement at the time and place fixed for the
sale, and such sale may be made at any time or place
to which the same may be so adjourned. In case of any
sale of all or any part of the Collateral upon terms
calling for payments in the future, any Collateral so
sold may be retained by the Pledgees until the
selling price is paid by the purchaser thereof, but
the Pledgees shall incur no liability in the case of
the failure of such purchaser to take up and pay for
the Collateral so sold and, in the case of such
failure, such Collateral may again be sold upon like
notice. The Pledgees, however, instead of exercising
the power of sale herein conferred upon them, may
proceed by a suit or suits at law or in equity to
foreclose the security interest and sell the
Collateral, or any portion thereof, under a judgment
or decree of a court or courts of competent
jurisdiction, the Pledgor having been given due
notice of all such action. The Pledgees shall incur
no liability as a result of a sale of the Collateral
or any part thereof. All proceeds of any such sale,
after deducting the reasonable expenses and
reasonable attorneys' fees incurred in connection
with such sale, shall be applied in reduction of the
Obligations, and the remainder, if any, shall be paid
to the Pledgor.
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8. APPLICATION OF PROCEEDS; RELEASE. The proceeds of any sale
or enforcement of or against all or any part of the Collateral, and any other
cash or collateral at the time held by the Pledgees hereunder, shall be applied
by the Pledgees first to the payment of the reasonable costs of any such sale or
enforcement, then to reimburse the Pledgees for any damages, costs or expenses
incurred by the Pledgees as a result of an Event of Default, then to the payment
of the principal amount or stated valued (as applicable) of, and interest or
dividends (as applicable) and any other payments due in respect of, the
Obligations. The remainder, if any, shall be paid to the Pledgor. As used in
this Agreement, "PROCEEDS" shall mean cash, securities and other property
realized in respect of, and distributions in kind of, the Collateral, including
any thereof received under any reorganization, liquidation or adjustment of debt
of any issuer of securities included in the Collateral.
9. REPRESENTATIONS AND WARRANTIES.
(a) The Pledgor hereby represents and warrants to the
Pledgees that:
(i) the Pledgor has full power and authority
and legal right to pledge the Collateral to the
Pledgees pursuant to this Agreement and this
Agreement constitutes a legal, valid and binding
obligation of the Pledgor, enforceable in accordance
with its terms.
(ii) the execution, delivery and performance
of this Agreement and other instruments contemplated
herein will not violate any provision of any order or
decree of any court or governmental instrumentality
or of any mortgage, indenture, contract or other
agreement to which the Pledgor is a party or by which
the Pledgor and the Collateral may be bound, and will
not result in the creation or imposition of any lien,
charge or encumbrance on, or security interest in,
any of the Pledgor's properties pursuant to the
provisions of such mortgage, indenture, contract or
other agreement.
(iii) the Pledgor is the sole record and
beneficial owner of all of the Shares; and
(iv) the Pledgor owns the Collateral free
and clear of all Liens.
(b) The Company represents and warrants to the
Pledgees that:
(i) it has no knowledge that any of the
representations or warranties of the Pledgor herein
are incorrect or false in any material respect;
(ii) all of the Shares were validly issued,
fully paid and non-assessable; and
(iii) the Pledgor is the record holder of
the Shares.
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10. NO WAIVER; NO ELECTION OF REMEDIES. No failure on the part
of the Pledgees 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 by the Pledgees of any right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein provided are cumulative and are not exclusive of any
remedies provided by law. In addition, the exercise of any right or remedy of
the Pledgees at law or equity or under this Agreement or any of the documents
shall not be deemed to be an election of Pledgee's rights or remedies under such
documents or at law or equity.
11. TERMINATION. This Agreement shall terminate on the date on
which all Obligations have been performed, satisfied, paid or discharged in
full.
12. FURTHER ASSURANCES. The parties hereto agree that, from
time to time upon the written request of any party hereto, they will execute and
deliver such further documents and do such other acts and things as such party
may reasonably request in order fully to effect the purposes of this Agreement.
The Pledgees acknowledge that they are aware that Pledgor shall have no
obligations whatsoever to the Pledgees beyond the Collateral pledged for the
Obligations set forth herein, and no request for further assurance may or shall
increase such Obligations.
13. MISCELLANEOUS.
(a) MODIFICATION. This Agreement contains the entire
understanding between the parties with respect to the subject matter hereof and
specifically incorporates all prior oral and written agreements relating to the
subject matter hereof. No portion or provision of this Agreement may be changed,
modified, amended, waived, supplemented, discharged, canceled or terminated
orally or by any course of dealing, or in any manner other than by an agreement
in writing, signed by the party to be charged.
(b) NOTICE. Any and all notices or other
communications or deliveries required or permitted to be provided hereunder
shall be in writing and shall be deemed given and effective on the earliest of
(i) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Section prior to
6:30 p.m. (New York City time) on a Business Day (as defined in the Purchase
Agreement), (ii) the Business Day after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in this Agreement later than 6:30 p.m. (New York City time) on any
date and earlier than 11:59 p.m. (New York City time) on such date, (iii) the
Business Day following the date of mailing, if sent by nationally recognized
overnight courier services, or (iv) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and
communications shall be as follows:
If to the Company: FemOne, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With copies to: August Law Group, P.C.
The Atrium
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. August, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Pledgor: Xxxxxx Xxxxxx
c/o FemOne, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Pledgees: AJW Partners, LLC
AJW Offshore, Ltd.
AJW Qualified Partners, LLC
New Millennium Capital Partners II, LLC
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxx
With copies to: Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 Xxxxxx Xxxxxx, 00xx Xx.
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esquire
(c) INVALIDITY. If any part of this Agreement is
contrary to, prohibited by, or deemed invalid under applicable laws or
regulations, such provision shall be inapplicable and deemed omitted to the
extent so contrary, prohibited or invalid, but the remainder hereof shall not be
invalidated thereby and shall be given effect so far as possible.
(d) BENEFIT OF AGREEMENT. This Agreement shall be
binding upon and inure to the parties hereto and their respective successors and
assigns.
(e) MUTUAL AGREEMENT. This Agreement embodies the
arm's length negotiation and mutual agreement between the parties hereto and
shall not be construed against either party as having been drafted by it.
(f) NEW YORK LAW TO GOVERN. This Agreement shall be
governed by and construed and enforced in accordance with the internal laws of
the State of New York without regard to the principals of conflicts of law
thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and Federal courts sitting in the city of New York, borough of
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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 or that 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 in effect for 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Guaranty and Pledge Agreement to be duly executed by their respective authorized
persons as of the date first indicated above.
FEMONE, INC.
By: /S/ Xxx X. Xxxxx, Xx.
-------------------------------------
Xxx X. Xxxxx, Xx.
Chief Executive Officer
PLEDGEES:
AJW PARTNERS, LLC
By: SMS Group, LLC
By: /S/ Xxxxx X. Xxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW OFFSHORE, LTD.
By: First Street Manager II, LLC
By: /S/ Xxxxx X. Xxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW QUALIFIED PARTNERS, LLC
By: AJW Manager, LLC
By: /S/ Xxxxx X. Xxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxx
Manager
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: First Street Manager II, LLC
By: /S/ Xxxxx X. Xxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxx
Manager
[Signatures Continued on Following Page]
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PLEDGOR:
/S/ Xxxxxx Xxxxxx
--------------------------------------------------
Xxxxxx Xxxxxx
Number of Shares subject to this pledge: 3,691,792
Date such Shares were acquired: September 1, 2003
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