PLEDGE AND STOCK PURCHASE AGREEMENT
Exhibit
10.2. Pledge and Stock Purchase Agreement dated as of January 15,
2010 between the Company and each of Xxxx Xxxxxxxxx, Xxx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxxxx Xxxxxxxxx and Xxxxx Xxxxx.
This Pledge and Stock Purchase
Agreement (“Agreement”) is entered into on the date(s) set forth in the
signature block below with the intention that it be effective as of January 15,
2010 (“Effective Date”) by Braintech, Inc., a Nevada corporation (“Braintech”)
and Purchaser.
Whereas:
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A.
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Braintech,
along with its subsidiaries Braintech Government & Defense, Inc. and
Braintech Industrial, Inc., has entered into a Loan and Security Agreement
(Term Loan) (“Term Loan Agreement”) with Silicon Valley Bank (“SVB”) for a
term loan (“Term Loan”) of up to
$2,200,000.00.
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B.
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Purchaser
and other parties (Purchaser and such other parties, collectively,
“Pledgors”) have each provided either cash or a letter of credit
(“Pledge”) to SVB as collateral security for the Term
Loan.
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C.
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Purchaser
has entered into a Subordination Agreement dated as of October 30, 2009 in
favor of SVB, and either a Non-Recourse Letter of Credit Agreement or a
Non-Recourse Pledged Account Agreement dated as of October 30, 2009 in
favor of SVB.
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D.
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Braintech
has executed a Note and Security Agreement dated as of even date herewith
(“Note and Security Agreement”) in favor of Purchaser and the other
Pledgors.
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E.
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This
Agreement, the Note and Security Agreement and other documents described
more specifically in the Note and Security Agreement are hereinafter
referred to collectively as the “Pledgor Loan Documents” (as defined in
the Note and Security Agreement).
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Now
therefore, in consideration of the actions described in the above recitals and
the terms and conditions of this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
| 11. |
For
each dollar of Pledge provided by Purchaser as collateral security for the
Term Loan on or before March 31, 2010, Braintech will issue to Purchaser
twenty (20) shares of Braintech common stock, $0.001 par value
(“Shares”). Minimum Pledge to be provided by any Purchaser is
$100,000.00.
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| 12. |
A
certificate representing the Shares will be delivered to Purchaser
promptly after execution of this Agreement by Purchaser and
Braintech.
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| 13. |
Braintech
may pay off or pay down the Term Loan as soon as possible at a faster rate
than that called for by the Term Loan Agreement, subject to the approval
of Braintech’s Board of Directors that the Company is adequately able to
pay off or pay down the Term Loan at that faster
rate.
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| 14. |
The
Pledgor Committee (as defined in Schedule A) has the right to review
and/or to ultimately approve or deny any debt financing proposed by
Braintech, but such approval shall not be unreasonably withheld,
conditioned or delayed.
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| 15. |
All
initial and ongoing expenses relating to the establishment transfer and/or
ongoing maintenance of the Pledge, if any, will be paid by Braintech
within 30 days of Braintech receiving notification of those expenses from
Purchaser.
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| 16. |
Purchaser
will rank pari passu with the other Pledgors with regard to all
transactions associated with the Term Loan and the Pledges and with regard
to all rights and obligations attendant thereto, including without
limitation the application of any proceeds received, whether directly from
Borrower or from the sale of assets or exercise of other remedies
following any default. Any Draw (as defined in the Note and
Security Agreement) shall be borne ratably among the Pledgors according to
their respective contributions to the total outstanding Pledges at the
time of such Draw, even if such Draw is not implemented ratably by
SVB. In addition, the Return that arises from any Draw shall be
distributed ratably among the Pledgors according to their respective
contributions to the total outstanding Pledges at the time of such
Draw. By way of example and not limitation, if Borrower
defaults under the Term Loan Agreement in the amount of $350,000 and SVB
takes $350,000 from the Pledged Account (as defined in the Note and
Security Agreement) of Pledgor Xxxxxxx Xxxxxx (“Xxxxxx”) and no other Draw
has been made, then each other Pledgor within three business days after
his Pledge has been released by SVB, shall pay Xxxxxx such other Pledgor’s
proportionate share of Xxxxxx’ $350,000 Draw, and Braintech shall owe each
Pledgor a proportionate share of the Return, all as shown in the following
table:
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EXAMPLE
- SVB TAKES $350,000 FROM PLEDGOR XXXXXXX XXXXXX
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Pledgor
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Pledge
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%
of Total
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Pledgor
Owes Xxxxxx
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Principal
and Return
Braintech
Owes Pledgor
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Xxxxxxxxx
X. Xxxxxxxxx
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$750,000
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48.39%
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$169,354.84
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$254,032.26
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Xxxxxxx
Xxxxxx
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$350,000
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22.58%
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$79,032.26
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$118,548.39
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Xxxxx
X. Xxxxx
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$250,000
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16.13%
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$56,451.61
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$84,677.42
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Xxxxxxxxx
X. Xxxxxxxxx
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$100,000
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6.45%
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$22,580.65
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$33,870.97
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Xxxxx
X. Xxxxx
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$100,000
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6.45%
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$22,580.65
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$33,870.97
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TOTAL
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$1,550,000
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$350,000.00
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$525,000.00
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| 17. |
The
Pledgors’ security interest will rank second only to SVB’s security
interest unless explicitly approved by the
Pledgors.
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| 18. |
In
the event of a default under the Term Loan Agreement, those Pledgors who
are not already on Braintech’s Board of Directors (“Board”) will be
immediately invited to the Board. At least two directors who are not
Pledgors will serve on the Board. Thereafter, the decisions of
the Board will be established by a simple majority vote of the
Directors.
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| 19. |
Braintech
and the Pledgors agree that Xxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxx
and Xxxxx Xxxxx be appointed as members of the Pledgor Committee (as
defined in Schedule A), with Xxxxxxx Xxxxxx serving as Chairman of the
Pledgor Committee.
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| 20. |
This
Agreement includes the terms of the attached Schedule A, General
Provisions and the Investor Questionnaires, which are incorporated herein
by reference and made a part
hereof.
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In witness whereof, the parties have
executed this Agreement as of on the date(s) set forth in the signature block
below with the intention that it be effective as of the Effective
Date.
PURCHASER BRAINTECH,
INC.
_______________________________________ By:______________________________________
Signature Xxxx
Xxxxxxxxx, CEO
Date:___________________________________
Date:_____________________________________
Schedule
A
Establishment
of Pledgor Committee and Appointment of Members
| 1. |
Braintech
and the Pledgors agree that Xxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxx
and Xxxxx Xxxxx are hereby appointed as members of a committee ("Pledgor
Committee"), with Xxxxxxx Xxxxxx serving as the Chairman of the Pledgor
Committee. The Pledgor Committee shall operate by unanimous
vote and, following consultation with the other Pledgors, shall have the
right to manage the affairs of the Pledgors as they relate to Braintech,
subject to the terms hereof. If the Pledgor Committee is unable
to reach a unanimous vote on a particular issue within ten (10) business
days, the issue shall be decided by the Majority Pledgors (as hereinafter
defined).
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| 2. |
Purchaser
hereby irrevocably appoints Xxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxx
and Xxxxx Xxxxx as members of the “Pledgor Committee”, as the true
representatives of Purchaser for and in the name of or otherwise on behalf
of Purchaser with full power to do and execute any and all acts, consents
and/or waivers, that are requested by Braintech to be given under this
Agreement and to receive any notices from Braintech that are required to
be given under this Agreement. The Pledgor Committee shall act
in the best interest of all of the Pledgors, collectively, and shall use
its best efforts to consult with the other Pledgors prior to taking any
action or issuing any consent or waivers and shall promptly forward copies
of any notices or other documents it receives from Braintech to the other
Pledgors. Without the consent, approval or concurrent action of
Pledgors who have provided over fifty percent (50%) of the then
outstanding Pledges (“Majority Pledgors”), the Pledgor Committee shall
not: (1) reduce the interest rate due under the Note and
Security Agreement or otherwise reduce the amounts due in connection with
the Note and Security Agreement; (2) forgive any principal or the Returns
due under the Note and Security Agreement; (3) increase the maximum amount
of the Pledges or any other Pledgor Loan Documents; (4) extend the
maturity date of the obligations under the Note and Security Agreement or
the date of any interest payment thereunder; (5) consent to or accept any
cancellation or termination of any Pledgor Loan Document, or agree to a
transfer or termination of any instrument now or hereafter assigned to it
as security for the Pledgor Loan Documents; (6) release, partially or
fully, any collateral given as security for the Pledgor Loan Documents,
except as authorized in therein; (7) release, partially or fully, any
party liable on any guaranty or materially amend any guaranty (including,
restricting the amount of the right of recovery thereunder); or (8) waive
any default involving the payment of a Return, principal or interest which
is an event of default under the Pledgor Loan
Documents.
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| 3. |
Each
Purchaser agrees and acknowledges that so long as the members of the
Pledgor Committee act in good faith and without willful misconduct, the
members of the Pledgor Committee shall not be liable for any action taken
in respect of the Shares, the Pledges, or financings or operations of
Braintech, or Purchaser’s rights under this Agreement and the Pledgor Loan
Documents, and Purchaser and Braintech will indemnify and save harmless
the members of the Pledgor Committee from all acts or omissions undertaken
as a representative of Purchaser without limitation; provided, however,
that in no event shall Borrower, the members of the Pledgor Committee or
any of the other Purchasers be liable for any special, consequential,
exemplary damages or lost profits.
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| 4. |
The
Pledgor Committee expires once SVB releases all of the Pledges and no
monies are owing to Purchasers by
Braintech.
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