EXHIBIT 10.6
PLEDGE AND ESCROW AGREEMENT
This Pledge and Escrow Agreement (the "AGREEMENT"), dated as of June
24, 2004, is made by and among VisiJet, Inc., a Delaware corporation (the
"PLEDGOR"), each of the Buyers set forth on the signature page of the Agreement
(as defined below)(each a "PLEDGEE" and collectively the "PLEDGEES"), and Xxxxxx
Xxxxxxx & Xxxxxx LLP (the "ESCROW AGENT") as agent for the Pledgees.
WHEREAS, the Pledgor and the Pledgees are parties to that
certain Securities Purchase Agreement, of even date herewith (the "PURCHASE
AGREEMENT"), pursuant to which the Pledgor has issued Convertible Debentures in
the aggregate principal amount of $1,000,000 payable to Pledgees (the
"DEBENTURES"); and
WHEREAS, as a material inducement to the Pledgees to enter
into the Purchase Agreement, the Pledgees have required and the Pledgor has
agreed to partially secure the timely and full satisfaction of all obligations
of the Pledgor, 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 Debentures and grant to
the Pledgees, their successors, endorsees, transferees or assigns a security
interest in 350,000 shares of Common Stock, par value $0.001 per share, of the
Pledgor (the "SHARES"), as collateral security for the Obligations.
NOW, THEREFORE, in consideration of the foregoing recitals,
and the mutual covenants contained herein, the parties hereby agree as follows:
1. PLEDGE AND SECURITY INTEREST. As collateral security for the full
and timely payment of the Obligations, the Pledgor herewith deposits, or has
caused to be deposited, and pledges with the Escrow Agent as agent for the
Pledgees, in form transferable for delivery, and grants to the Escrow Agent as
agent for the Pledgees, a security interest in the Shares and the certificates
or other instruments or documents evidencing same and such additional property
at any time and from time to time receivable by the Pledgees hereunder or
otherwise distributed in respect of, or in exchange for, any Shares (herein
collectively called the "PLEDGED SECURITIES" and together with the Shares, the
"COLLATERAL").
2. REPRESENTATIONS BY PLEDGOR. The Pledgor represents and warrants that
the Pledged Securities are, and will be on deposit hereunder, duly and validly
issued and duly and validly pledged with the Escrow Agent as agent for Pledgees
in accordance with all applicable laws and regulations, and agrees to defend the
Pledgees' right, title, lien and security interest in and to the Pledged
Securities against the claims and demands of all persons whomsoever.
3. VOTING RIGHTS, ETC.
(a) Unless and until the Pledgees shall have given notice to
the Escrow Agent pursuant to paragraph 6(a)(i) hereof that the Obligations have
become immediately due and payable, the Pledgor shall be entitled to receive and
retain for his own account any and all dividends (other than stock or
liquidating dividends) and interest at any time and from time to time declared
or paid upon any of the Pledged Securities.
(b) In the event that the Pledgees shall give such notice to
the Escrow Agent pursuant to paragraph 6(a)(i), the Pledgees shall thereafter be
entitled to exercise all voting power with respect to the Pledged Securities,
and to direct the Escrow Agent to so exercise such power, and the Escrow Agent
shall be entitled to receive and retain, as additional collateral hereunder, any
and all dividends and interest at any time and from time to time declared or
paid upon any of the Pledged Securities.
4. ADDITIONAL PROPERTY RECEIVABLE BY ESCROW AGENT. In case, upon the
dissolution or liquidation (in whole or in part) of the Pledgor, any sum shall
be paid as a liquidating dividend or otherwise upon or with respect to any of
the Pledged Securities, and in case any such sum shall be paid on account of the
principal of any of the Pledged Securities which shall be an obligation, such
sum shall be paid over to the Escrow Agent, to be held by the Escrow Agent as
additional collateral hereunder. In case any stock dividend shall be declared on
any of the Pledged Securities, or any shares of stock or fractions thereof shall
be issued pursuant to any stock split involving any of the Pledged Securities,
or any distribution of capital shall be made on any of the Pledged Securities,
or any shares, obligations or other property shall be distributed upon or with
respect to the Pledged Securities pursuant to a recapitalization or
reclassification of the capital of the issuer of the capital of the issuer
thereof, or pursuant to the dissolution, liquidation (in whole or in part),
bankruptcy or reorganization of the Pledgor, or to the merger or consolidation
of the Pledgor with or into another corporation, the shares, obligations or
other property so distributed shall be delivered to the Escrow Agent, to be held
by it as additional collateral hereunder, and all of the same (other than cash)
shall constitute Pledged Securities for all purposes hereof.
5. INVESTMENT OF CASH COLLATERAL. Any cash received and retained by the
Escrow Agent as additional collateral hereunder pursuant to the foregoing
provisions shall continue to be held in escrow by Escrow Agent in accordance
with the terms hereof and shall be distributed and disposed of by Escrow Agent
in the same manner as Pledged Securities. Any such cash shall be held and
invested in any obligation of, or unconditionally guaranteed by, the United
States of America, entitled to its full faith and credit and interest bearing
deposits (including money market mutual funds and certificates of deposit)
issued by a bank which is a member of the Federal Reserve System and which
deposits are guaranteed by the Federal Deposit Insurance Company. Such
investments shall have a maturity of not more than one year.
6. DELIVERY OF THE PLEDGED SECURITIES.
(a) The Escrow Agent shall deliver the Pledged Securities in
the event of, and in accordance with, any of the following:
(i) If the Pledgees give notice to the Escrow Agent
and the Pledgor that the Obligations have become immediately due and
payable, which notice shall specify the amount outstanding under the
Obligations, the Escrow Agent shall deliver to the Pledgees the Pledged
Securities three (3) business days after receipt of such notice, unless within
such period Escrow Agent receives from Pledgor, with proof of the giving of a
copy thereof to Pledgees, the original canceled check, dated by the payor bank
after the date of this Agreement, in the amount not less than the principal
amount of the Debentures, indicating the respective Pledgee as the payor and
endorser thereon. In such event, Escrow Agent shall continue to hold the Pledged
Securities until it receives written instructions signed by Pledgor and Pledgees
directing Escrow Agent on the delivery or continued retention of the Pledged
Securities or a judgment of the kind described in paragraph 6(a)(ii). Upon
receipt of such written instructions or judgment, Escrow Agent shall comply with
the same.
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(ii) Upon receipt by the Escrow Agent of (A) a
certified judgment of a court of competent jurisdiction, together with (unless
the period for appeal shall have lapsed) a waiver or waivers of the Pledgor's or
the Pledgees' right or rights of appeal in form and substance satisfactory to
the Escrow Agent, or (B) a certified final judgment from a court of competent
jurisdiction, the Escrow Agent shall deliver the Pledged Securities as directed
by such judgment.
(b) If, pursuant to paragraph 6(a)(i), the Pledgees have given
notice that the Obligations have become immediately due and payable, the Escrow
Agent shall not deliver or pay the Pledged Securities except in accordance with
paragraph 6(a) or the joint instructions of the Pledgees and the Pledgor.
7. INSTRUCTIONS TO ESCROW AGENT. Notwithstanding any other provision of
this Agreement, upon receipt by the Escrow Agent of written instructions signed
by or on behalf of the Pledgor and the Pledgees, the Escrow Agent shall make any
other payment or delivery of the Pledged Securities then held hereunder as may
be specified in such instructions.
8. RIGHTS OF PLEDGEES ON DEFAULT.
(a) In the event that the Pledgees shall receive any Pledged
Securities pursuant to paragraph 6 hereof, the Pledgees, without obligation to
resort to other security, shall have the right at any time and from time to time
to sell, resell, assign and deliver, in its sole discretion, all or any of the
Pledged Securities, in one or more transactions, and all right, title and
interest, claim and demand therein and right of redemption thereof, on any
securities exchange on which the Pledged Securities or any of them may be
listed, or at public or private sale, for cash, upon credit or for future
delivery, and in connection therewith the Pledgees may grant options, the
Pledgor hereby waiving and releasing any and all equity or right of redemption.
If any of the Pledged Securities are sold by the Pledgees upon credit or for
future delivery, the Pledgees shall not be liable for the failure of the
purchaser to purchase or pay for the same and, in the event of any such failure,
the Pledgees may resell such Pledged Securities. In no event shall the Pledgor
be credited with any part of the proceeds of sale of any Pledged Securities
until cash payment thereof has actually been received by the Pledgees.
(b) No demand, advertisement or notice, all of which are
hereby expressly waived, shall be required in connection with any sale or other
disposition of any part of the Pledged Securities which threatens to decline
speedily in value or which is of a type customarily sold on a recognized market;
otherwise the Pledgees shall give the Pledgor at least ten business days prior
notice of the time and place of any public sale and of any private sale or other
disposition, which notice Pledgor agrees is reasonable, all other demands,
advertisements and notices (except those expressly provided herein) being hereby
waived. The Pledgees shall not be obligated to make any sale of Pledged
Securities if it shall determine not to do so, regardless of the fact that
notice of sale may have been given; provided that if no sale is made at the time
specified in such notice, no further sale shall be made until after similar
notice be given as to such further sale. The Pledgees 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, except as set forth above, be
made at the time and place to which the same was so adjourned. Upon each private
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sale of Pledged Securities of a type customarily sold in a recognized market and
upon each public sale, the Pledgees may purchase the Pledged Securities being
sold, free from any equity or right of redemption, which is hereby waived and
released, and may make payment therefor (by assignment without recourse) in the
form of the Obligations in lieu of cash to the amount then due thereon which the
Pledgor hereby agrees to accept. In the case of all sales of Pledged Securities,
public or private, the Pledgor shall pay all costs and expenses of every kind
for sale or delivery, including brokers' and attorneys' fees, and after
deducting such costs and expenses from the proceeds of sale, the Pledgees shall
apply any residue to the payment of the Obligations. The balance, if any,
remaining after payment in full of such the Obligations, shall be paid to the
Pledgor, subject to any duty of the Pledgees imposed by law to the holder of any
subordinate security interest in the Pledged Securities known to the Pledgees.
(c) The remedies provided herein in favor of the Pledgees
shall not be deemed exclusive, but shall be cumulative, and shall be in addition
to all other remedies in favor of the Pledgees existing at law or in equity.
(d) The Pledgees shall have the right, for and in the name,
place and stead of the Pledgor, to execute endorsements, assignments or other
instruments of conveyance or transfer with respect to all or any of the Pledged
Securities.
(f) The Pledgees shall have no duty as to the collection or
protection of the Pledged Securities or income thereon or as to the preservation
of any rights pertaining thereto, beyond the safe custody of any thereof
actually in Pledgees' possession. The Pledgor releases the Pledgees from any
claims, causes of action and demands at any time arising out of or with respect
to this Agreement, the Pledged Securities and/or any actions, taken or omitted
to be taken by the Pledgees with respect thereto.
(f) The Pledgor hereby appoints the Pledgees as the Pledgor's
attorney-in-fact for the purpose of carrying out the provisions of this
Agreement and taking any action and executing any instrument which either may
deem necessary or advisable to accomplish the purpose hereof.
(g) No delay on the part of the Pledgees in enforcing any of
Pledgees' options, powers or rights, or partial or single exercise thereof,
shall constitute a waiver thereof.
(h) Upon payment in full of the Obligations, the Pledgor shall
be entitled to the return of all of the Pledged Securities and of all other
property and cash which have not been used or applied toward the payment of the
Obligations. The assignment by the Pledgees or the Escrow Agent to the Pledgor
of such Pledged Securities and other property shall be without representation or
warranty of any nature whatsoever and wholly without recourse.
9. TERMINATION. This Agreement shall terminate at the time when all of
the Pledged Securities held hereunder have been delivered by the Escrow Agent as
provided in this Agreement.
10. ESCROW AGENT. The acceptance by the Escrow Agent of its duties
under this Agreement is subject to the following terms and conditions, which
shall govern and control with respect to its rights, duties, liabilities and
immunities:
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(a) The duties of the Escrow Agent are only such as are herein
specifically provided, being purely ministerial in nature. The Escrow Agent
shall incur no liability whatsoever to the Pledgees, the Pledgor or otherwise,
except for its own willful misconduct or gross negligence. All the parties
hereto hereby agree to jointly and severally indemnify, defend and hold harmless
the Escrow Agent, and each of its partners, employees and agents, from any
claims or proceedings brought against it as Escrow Agent.
(b) The Escrow Agent shall be under no responsibility in
respect of any of the items deposited with it other than to follow the
provisions of this Agreement. The Escrow Agent may consult with counsel of its
own choice and shall be fully protected in any action taken or omitted in good
faith, in accordance with advice of such counsel.
(c) The Escrow Agent shall not be required to defend any legal
proceedings which may be instituted against it in respect of the subject matter
of this Agreement unless requested to do so by the Pledgees or the Pledgor and
fully indemnified by the requesting party or parties to its satisfaction against
the cost and expense of such defense. The Escrow Agent shall not be required to
institute legal proceedings of any kind.
(d) The Escrow Agent shall have no responsibility for the
genuineness, validity or value of any certificate, document or other item
deposited with or delivered to it, and the Escrow Agent shall be fully protected
in acting in accordance therewith.
(e) In the event that the Escrow Agent shall be uncertain as
to its duties or rights hereunder, or shall receive instructions from the
Pledgees or the Pledgor with respect to the Pledged Securities that, in its
opinion, are in conflict with any of the provisions of this Agreement, the
Escrow Agent shall be entitled to refrain from taking any action until it shall
be directed otherwise in writing by both the Pledgees and the Pledgor or by a
final order of a court of competent jurisdiction.
(f) Notwithstanding any provision to the contrary contained in
any other agreement (excluding any amendment to this Agreement) between any of
the parties hereto, the Escrow Agent shall have no interest in the Pledged
Securities except as provided in this Agreement.
(g) In the event that any of the terms and provisions of any
other agreement (excluding any amendment to this Agreement) between any of the
parties hereto conflict or are inconsistent with any of the terms and provisions
of this Agreement, the terms and provisions of this Agreement in respect of the
rights and duties of the Escrow Agent shall govern and control in all respects.
(h) Nothing in this Agreement shall be deemed to prohibit the
Escrow Agent from representing the one or all of the parties to this Agreement
in connection with any matter whatsoever.
(i) The Escrow Agent may at any time by written notice given
to all parties to this Agreement resign its position under this Agreement,
whereupon the other parties to this Agreement shall designate one or more
persons to act as a successor.
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11. EXPENSES OF ESCROW AGENT.
The Escrow Agent shall be entitled to reimbursement from the Pledgees
for all expenses (including reasonable counsel fees) incurred by the Escrow
Agent in the performance of its duties hereunder.
12. NOTICES. All notices, directions and communications hereunder shall
be in writing and shall be deemed given when delivered personally or when mailed
by certified mail, return receipt requested, or when deposited with a
nationally-recognized overnight courier, to the parties at the following
addresses (or such other address as a party may specify in a notice given
hereunder):
The Pledgor:
VisiJet, Inc.
Attention: Xxxxxxxx X. Xxxxxxxxx
000 Xxxxxxxxxx Xxxxx, Xxxxx X
Xxxxxx, Xxxxxxxxxx 00000
The Pledgees:
To the address set forth immediately below such Pledgee's name on the
signature pages to the Securities Purchase Agreement.
The Escrow Agent:
Xxxxxx Xxxxxxx & Xxxxxx LLP
Attn: Xxxxx X. Xxxxx, Esq.
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
13. CHOICE OF LAW. This Agreement and the rights and obligations of the
Pledgees and the Pledgor hereunder shall be construed in accordance with and
governed by the law of the State of New York, cannot be changed orally and shall
bind and inure to the benefit of the parties and their respective successors and
assigns.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Pledgor, the Pledgees and the Escrow Agent have
executed this Agreement as of the day and year first above written.
Pledgor:
VISIJET, INC.
By: /S/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
President
Pledgees:
BUSHIDO CAPITAL MASTER FUND L.P.
By: Bushido Capital Partners, Ltd.
By: /S/ XXXXX XXXXXX
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Xxxxx Xxxxxx
President
BRIDGES & PIPES LLC
By: /S/ XXXXX XXXXX
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Xxxxx Xxxxx
Managing Member
Escrow Agent:
XXXXXX XXXXXXX & XXXXXX LLP
By: /S/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
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