EXHIBIT 99.13
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GUARANTY AND PLEDGE AGREEMENT
GUARANTY AND PLEDGE AGREEMENT (this "Agreement"), dated as of
February 15, 2001, among DynaGen, Inc., a Delaware corporation (the "Company"),
XxXxxxxx.xxx, Inc., a Delaware corporation ("Bazaar"), and the pledgors
signatory hereto (collectively, the "Pledgor"), and the pledgee signatory hereto
and its respective endorsees, transferees and assignees (the "Pledgee").
W I T N E S S E T H:
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WHEREAS, Bazaar and the Pledgee are parties to a Securities
Purchase Agreement, of even date herewith (the "Purchase Agreement"), pursuant
to which the Bazaar issued and sold to the Pledgee shares of its Series A
Convertible Preferred Stock (the "Bazaar Preferred Stock");
WHEREAS, the Company and the Pledgee are parties to an
Exchange and Purchase Agreement, of even date herewith (the "Exchange
Agreement"), pursuant to which the Pledgee may exchange all or a portion of the
Bazaar Preferred Stock for shares of the Company's 8% Series O Preferred Stock,
$.001 par value per share; and
WHEREAS, as a material inducement to the Pledgee to purchase
the Bazaar Preferred Stock, the Pledgee has required and the Pledgor has agreed:
(i) to unconditionally guarantee the timely and full satisfaction of all
obligations of: (A) Bazaar, whether matured or unmatured, now or hereafter
existing or created and becoming due and payable, under the Transaction
Documents (as defined in the Purchase Agreement), to any Purchaser (as defined
in the Exchange Agreement) and (B) the Company, whether matured or unmatured,
now or hereafter existing or created and becoming due and payable, under the
Transaction Documents (as defined in the Exchange Agreement), to any Purchaser
(as defined in the Purchase Agreement) (such obligations of Bazaar and the
Company are collectively the "Obligations") and (ii) to grant to the Pledgee a
security interest in an aggregate of the number of shares of common stock, $0.01
par value per share, of the Company, currently owned by the Pledgor and
reflected next to its signature on the signature page hereto (collectively, the
"Shares"), as collateral security for 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. Security. As collateral security for the punctual payment
and performance, when due, by the Company and Bazaar of all the Obligations, the
Pledgor, hereby pledges with, hypothecates, transfers and assigns to the Pledgee
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 referred to as the
"Collateral"). Simultaneously herewith, the Pledgor shall deliver to the Pledgee
the certificate(s) representing the Shares, stamped with a bank medallion
guarantee, along with a stock transfer
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power duly executed in blank by the Pledgor, to be held by the Pledgee as
security. Any other Collateral received by the Pledgor shall also be delivered
to the Pledgee together with any executed stock powers or other transfer
documents requested by the Pledgee, which request may be made at any time prior
to the date when the Obligations shall have been paid and otherwise satisfied in
full.
2. Voting Power, Dividends, Etc. and other Agreements.
(a) Unless and until an Event of Default (as set
forth in Section 3 hereof) has occurred, the Pledgor shall be
entitled to:
(i) exercise all voting and/or consensual
powers pertaining to the Shares or other Collateral, or any
part thereof, for all purposes;
(ii) receive and retain dividends paid with
respect to the Shares or other 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 Shares.
(c) The Pledgor and the Company jointly and severally
agree to pay all costs including all reasonable attorneys'
fees and disbursements incurred by the Pledgee in enforcing
this Agreement in accordance with its terms.
3. 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, of any
applicable cure period;
(ii) a breach in any material respect by the
Company of any of its representations or warranties in the
Transaction Documents (as defined in the Exchange Agreement);
(iii) a breach in any material respect by
Bazaar of any of its representations or warranties in the
Transaction Documents (as defined in the Purchase Agreement);
(iv) a breach in any material respect by the
Pledgor of any of its representations or warranties in this
Agreement; or
(v) the occurrence of a Triggering Event (as
defined in the Certificate of Designation (as defined in the
Exchange Agreement)).
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(b) the Pledgee 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 Shares or other Collateral;
(iii) the right to cause any or all of the
Shares or other 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 Pledgee; 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 Pledgee shall have
the right to deliver, assign and transfer to the purchaser
thereof the Collateral so sold. The Pledgee 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 Pledgee may fix in the notice of
such sale. The Pledgee 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 Pledgee until the
selling price is paid by the purchaser thereof, but the
Pledgee 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 Pledgee, however, instead of
exercising the power of sale herein conferred upon it, 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 Pledgee 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.
4. 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 Pledgee hereunder, shall be applied
by the Pledgee first to the payment of the reasonable costs of any such sale or
enforcement, then to reimburse the Pledgee for any damages, costs or expenses
incurred by the Pledgee as a result of an Event of Default, then to the payment
of the principal amount or stated value (as applicable) of, and interest or
dividends (as applicable) and any other payments due in respect of, the
Obligations. The remainder, if any,
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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.
5. Representations and Warranties.
(a) The Pledgor hereby represents and warrants to the
Pledgee that:
(i) the Pledgor has full power and authority
and legal right to pledge the Collateral to the Pledgee
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 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;
(iv) the Pledgor owns the Shares and other
Collateral relating thereto pledged by it hereunder free and
clear of all Liens; and
(v) the Pledgor is not an affiliate of the
Company (as defined in Rule 144(a)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act")) and
acquired the Shares on the date indicated next to its
signature.
(b) The Company represents and warrants to the
Pledgee 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.
6. No Waiver; No Election of Remedies. No failure on the part
of the Pledgee 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 Pledgee of any right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right,
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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 Pledgee 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.
7. Termination. This Agreement shall terminate on the date on
which all Obligations have been performed, satisfied, paid or discharged in
full.
8. 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.
9. 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, (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 service, 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: DynaGen, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile No.: (000)000-0000
Attn: Chief Financial Officer
With copies to: Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx Xxxxxxxx
If to Bazaar: XxXxxxxx.xxx, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000 0000
Attn: Xxxx Xxxxxxx
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With copies to: Chu, Ring & Xxxxx
00 Xxxxxxx Xx.
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx Xxxx
If to the Pledgor: Infusion Capital Investment Corporation, and
Ocean Marketing Corporation
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile No.: (000)000-0000
Attn: Xxxxxxx Xxxxxxx
If to the Pledgee: Kenilworth LLC
x/x Xxxxx Xxxxxxxx (Xxxxxx) Limited
Commercial Centre
P.O. Box 31106 SMB
Grand Cayman, Cayman Islands
British West Indies
Facsimile No.: (000)000-0000
With copies to: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000)000-0000 and (000)000-0000
Attn: Xxxx X. Xxxxx, Esq.
(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 principles 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
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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 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.
DYNAGEN, INC.
By:_____________________________________
Name:
Title:
XXXXXXXX.XXX, INC.
By:_____________________________________
Name:
Title:
PLEDGEE:
KENILWORTH LLC
By:_____________________________________
Name:
Title:
PLEDGORS:
INFUSION CAPITAL INVESTMENT CORPORATION
By:_____________________________________
Name:
Title:
---------------------------------------
Number of Shares subject to this plegde
---------------------------------------
Date on which such Shares were acquired
OCEAN MARKETING CORPORATION
By:_____________________________________
Name:
Title:
---------------------------------------
Number of Shares subject to this plegde
---------------------------------------
Date on which such Shares were acquired
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