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EXHIBIT 10.106
PLEDGE AGREEMENT
This PLEDGE AGREEMENT is by and among Xxxxxxx X. Xxxxx and Xxxxxxx
Xxxxxxx (the "PLEDGORS") and XXXXXX, LLC (the "PLEDGEE").
The Pledgee and Bioshield Technologies, Inc., a Georgia corporation
("BSTI") have entered into a series of agreements (the "SERIES A PURCHASE
AGREEMENTS") pursuant to which BSTI has agreed to sell to Pledgee, and Pledgee
has agreed to purchase, $4,000,000 of Series A Preferred Stock of BSTI (the
"SERIES A PREFERRED STOCK"), which is convertible into shares of common stock of
BSTI, no par value ("COMMON STOCK"). Pursuant to the Series A Purchase
Agreements, BSTI is required to have a registration statement covering the
Common Stock issuable upon conversion of the Series A Preferred Stock (the
"REGISTRATION STATEMENT") declared effective by the Securities and Exchange
Commission (the "SEC") by the date 100 days from the closing under the Series A
Purchase Agreements (the "DEFAULT DATE"). The Pledgee and BSTI have also entered
into a Private Equity Credit Agreement dated as of June 30, 1999, as amended
(the "EQUITY LINE AGREEMENT") and a related Registration Rights Agreement (the
"EQUITY REGISTRATION RIGHTS AGREEMENT"). Pursuant to the Equity Registration
Rights Agreement, BSTI is required to file a registration statement covering the
shares of Common Stock that may be issued pursuant to the Equity Line Agreement
(the "EQUITY LINE REGISTRATION STATEMENT"). As an inducement to the Pledgee to
purchase the Series A Preferred Stock, the Pledgors have agreed to deposit into
escrow shares of Common Stock owned by them, to serve as collateral for BSTI's
obligation to issue shares pursuant to the conversion rights of the Series A
Preferred Stock if neither the Registration Statement nor the Equity Line
Registration Statement has been declared effective by the SEC on or prior to the
Default Date (the "REGISTRATION OBLIGATION").
Accordingly, the Pledgors hereby agree with the Pledgee as follows:
SECTION 1. Pledge. As collateral security for performance of the
Registration Obligation, the Pledgors hereby pledge, hypothecate, assign,
transfer, set over and deliver unto the Pledgee, and grant to the Pledgee a
security interest in (i) an aggregate of 500,000 shares of Common Stock, (ii)
any additional Common Stock hereafter at any time delivered to the Pledgee,
including under Section 3 hereof, and (iii) any cash, additional shares or
securities or other property at any time and from time to time receivable or
otherwise distributable in respect of, in exchange for, or in substitution of,
any and all such stock, together with the proceeds thereof (all such shares,
capital stock, securities, cash, property and other proceeds thereof being
hereinafter collectively called the "PLEDGED COLLATERAL"). Upon delivery to the
Pledgee, (a) any securities now or hereafter included in the Pledged Collateral
(hereinafter called the "PLEDGED SECURITIES") shall be accompanied by duly
executed stock powers in blank and by such other instruments or documents as the
Pledgee or its counsel may reasonably request, and (b) all other property
comprising part of the Pledged Collateral shall be accompanied by proper
instruments of assignment duly executed by the Pledgors and by such other
instruments or documents as the Pledgee or its counsel may reasonably request.
Each delivery of certificates for such Pledged Securities shall be accompanied
by a schedule showing the
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number of shares and the numbers of the certificates therefor, theretofore and
then being pledged hereunder, which schedules shall be attached hereto as
Schedule I and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered. The Pledged Collateral is pledged,
hypothecated, assigned, transferred, sets over, and delivered to the Pledgee,
and the Pledgee is granted a security interest therein, together with all
rights, titles, interests, powers, privileges and preferences pertaining or
incidental thereto, subject only to the terms, covenants and conditions
hereinafter set forth.
SECTION 2. Termination of Pledge. This Pledge Agreement shall
terminate, and all Pledged Collateral remaining in pledge hereunder shall be
returned to the Pledgors, immediately upon the effectiveness under the
Securities Act of 1933, as amended, of either (a) the Registration Statement, as
required pursuant to the Series A Purchase Agreements, or (b) the Equity Line
Registration Statement, as required pursuant to the Equity Registration Rights
Agreement.
SECTION 3. Additional or Excess Collateral. On the Default Date, and
provided that this Agreement shall not have theretofore terminated pursuant to
Section 2 hereof, the Pledgee may, by written notice to each Pledgor, require
that the Pledgors immediately pledge hereunder additional shares of Common Stock
so that the total number of shares held in pledge hereunder shall be equal to
(i) the sum of $4,000,000 divided by (ii) the average of the Closing Bid Prices,
as hereinafter defined, for a share of Common Stock for the twenty consecutive
trading days ending on and including the trading day immediately prior to the
Default Date (such number of shares if Common Stock being referred to herein as
the "REQUIRED COLLATERAL"). "CLOSING BID PRICE" means, for any date, the last
closing bid price on the Nasdaq SmallCap Market(TM) (tHe "NASDAQ-SM") as
reported by Bloomberg Financial Markets ("BLOOMBERG"), or, if the Nasdaq-SM is
not the principal trading market for such security, the last closing bid price
of such security on the principal securities exchange or trading market where
such security is listed or traded as reported by Bloomberg (the "TRADING
MARKET"), or if the foregoing do not apply, the last closing bid price of such
security in the over-the-counter market on the pink sheets or bulletin board for
such security as reported by Bloomberg, or, if no closing bid price is reported
for such security by Bloomberg, the last closing trade price of such security as
reported by Bloomberg. If the Closing Bid Price cannot be calculated for such
security on such date on any of the foregoing bases, the Closing Bid Price of
such security on such date shall be the fair market value as reasonably
determined in good faith by the Board of Directors of BSTI (all as appropriately
adjusted for any stock dividend, stock split or other similar transaction during
such period). On the Default Date, if the number of shares of Common Stock held
in pledge hereunder shall exceed the Required Collateral, the Pledgee shall
immediately cause the excess number of shares of Common Stock to be released to
the Pledgors, including, without limitation, instructing the Escrow Agent
referred to in Section 9 hereof to effect such release. From time to time
following the Default Date, and provided that this Pledge Agreement shall not
have theretofore terminated, if the Pledgee shall duly execute and deliver a
valid notice of exercise of conversion of some or all the shares of Series A
Preferred Stock, and there shall be insufficient shares of Common Stock in the
Pledged Collateral to deliver all the shares of Common Stock deliverable
pursuant to such notice of conversion, the Pledgee may, at its option, by
written notice require the Pledgors to deposit additional shares of Common Stock
so that there are sufficient
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number of shares of Common Stock in the Pledged Collateral as are equal to the
number of shares of Common Stock deliverable pursuant to such valid notice of
conversion.
SECTION 4. Representations and Warranties. The Pledgors hereby
represent and warrant that, (i) except for the security interest granted to the
Pledgee, the Pledgors are the legal and equitable owner of the Pledged
Collateral and hold the same free and clear of all liens, charges, encumbrances
and security interests of every kind and nature; (ii) the Pledgors will make no
voluntary assignment, pledge, mortgage, hypothecation or transfer of the Pledged
Collateral so long as the Pledged Collateral is subject to this Pledge
Agreement; (iii) the Pledgors have good right and legal authority to pledge the
Pledged Collateral as provided herein; (iv) the Pledgors will defend their title
to the Pledged Collateral against the claims of all persons whomsoever except
those claiming hereunder; (v) no consent or approval of any governmental body or
regulatory authority, or of any securities exchange, was or is necessary to the
validity of the pledge provided herein which has not been obtained; (vi) the
pledge of the Pledged Collateral provided herein is effective to vest in the
Pledgee a valid, binding security interest in the Pledged Collateral as set
forth herein; and (vii) the capital stock of BSTI, including all of the Pledged
Collateral, has been duly and validly issued and is fully paid and
nonassessable.
SECTION 5. Voting Rights; Dividends, etc:
(A) The Pledgors shall be entitled to exercise any and all voting
and/or consensual rights and powers accruing to an owner of the Pledged
Securities or any part thereof for any purpose not inconsistent with the terms
of this Pledge Agreement.
(B) The Pledgors shall be entitled to retain and use any and all cash
dividends paid on Pledged Securities, but any and all stock and/or liquidating
dividends, other distributions in property, return of capital or other
distributions made on or in respect of Pledged Securities, whether resulting
from a subdivision, combination or reclassification of outstanding capital stock
of any corporation the capital stock of which is pledged hereunder or received
in exchange for Pledged Securities or any part thereof or as a result of any
merger, consolidation, acquisition or other exchange of assets or on the
liquidation, whether voluntary or involuntary, of any issuer of the Pledged
Securities, or otherwise, shall be and become part of the Pledged Collateral
pledged hereunder and, if received by the Pledgors, shall forthwith be delivered
to the Escrow Agent, as provided in Section 9 hereof to be held as collateral
subject to the terms of this Pledge Agreement.
(C) The Pledgee shall execute and deliver to the Pledgors, or cause to
be executed and delivered to the Pledgors, as appropriate, all such proxies,
powers of attorney, dividend orders and other instruments as the Pledgors may
reasonably request for the purpose of enabling the Pledgors to exercise the
voting and/or consensual rights and powers which the Pledgors are entitled to
exercise pursuant to paragraph (i) above and/or to receive the dividends which
the Pledgors are authorized to retain pursuant to paragraph (ii) above.
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SECTION 6. Remedies upon Default. If an Event of Default shall occur
and be continuing, and if the Pledgee shall duly execute and deliver a valid
notice of exercise of conversion of some or all the shares of Series A Preferred
Stock, the Pledgee may, at its option, in lieu of requiring BSTI to deliver
shares of Common Stock in connection with such notice of conversion, take
possession of the number of shares of Common Stock from the Pledged Collateral
as are equal to the number of shares of Common Stock deliverable pursuant to
such valid notice of conversion. If the Pledgee shall so opt to take possession
of a portion of the Pledged Collateral, the Pledgee may deliver such Pledged
Collateral at public or private sale or on any securities exchange, for cash,
upon credit or for other property, for immediate or future delivery, and for
such price or prices and on such terms as the Pledgee in its sole discretion
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 the
Pledgors, and the Pledgors hereby waive (to the extent permitted by law) all
rights of redemption, stay and/or appraisal which the Pledgors now have or may
at any time in the future have under any rule of law or statute now existing or
hereafter enacted. The Pledgee shall give the Pledgors five days' written notice
(which the Pledgors agree is reasonable notification within the meaning of
Section 9-504(3) of the Uniform Commercial Code as in effect in the State of
Georgia) of the Pledgee's intention to make any such public or private sale or
sale on any such securities exchange. Such notice, in case of public sale, shall
state the time and place for such sale, and, in the case of sale on a securities
exchange, shall state the exchange at which such sale is to be made and the day
on which the Pledged Collateral, or portion thereof, will first be offered for
sale at such 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 Pledgee may
fix and shall state in the notice or publication (if any) of such sale. At any
such sale, the Pledged Collateral, or portion thereof to be sold, may be sold in
one lot as an entirety or in separate parts, as the Pledgee may (in its sole and
absolute discretion) determine. The Pledgee shall not be obligated to make any
sale of the Pledged Collateral if it shall determine not to do so, regardless of
the fact that notice of sale of the Pledged Collateral may have been given. The
Pledgee 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 without further notice. In
case sale of all or any part of the Pledged Collateral is made on credit or for
future delivery, the Pledged Collateral so sold may be retained by the Pledgee
until the sale price is paid by the purchaser or purchasers thereof, but the
Pledgee shall not incur any liability in case any such purchaser or purchasers
shall fail to take up and pay for the Pledged Collateral so sold and, in case of
any such failure, such Pledged Collateral may be sold again upon like notice. At
any public sale made pursuant to this Pledge Agreement, the Pledgee may bid for
or purchase, free from any right of redemption, stay and/or appraisal on the
part of the Pledgors (all said rights being also hereby waived and released to
the extent permitted by law), any part of or all the Pledged Collateral offered
for sale, and thereafter, the Pledgee may, upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to the Pledgors therefor.
SECTION 7. Pledgee Appointed Attorney-in-Fact. The Pledgors hereby
constitute and appoint the Pledgee as their due and lawful attorney-in-fact for
the purpose of (i) carrying out the provisions of this Pledge Agreement and all
of the rights and powers granted to the secured party
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hereunder and (ii) taking any action and executing any instrument which the
Pledgee may deem necessary or appropriate to accomplish the purposes hereof
and\or carry out the rights and powers of the secured party hereunder. The
appointment of the Pledgee as attorney-in-fact of the Pledgors is irrevocable
and is coupled with an interest. Without limiting the generality of the
foregoing, the Pledgee shall have the right, after the occurrence of an Event of
Default, with full power of substitution either in the Pledgee's name or in the
name of the Pledgors, to (i) ask for, demand, xxx for, collect, receive, receipt
and give acquittance for any and all moneys due or to become due under and by
virtue of any Pledged Collateral, (ii) endorse checks, drafts, orders and other
instruments for the payment of money payable to the Pledgors, representing any
interest or dividend or other distribution payable in respect of the Pledged
Collateral or any part thereof or on account thereof, (iii) give full discharge
for the same, to settle, compromise, prosecute, or defend any action, claim or
proceeding with respect to the Pledged Collateral and to execute any release,
settlement agreement, or other document or instrument reasonably necessary or
appropriate in connection therewith, (iv) sell, assign, endorse, pledge,
transfer and make any agreement respecting, or otherwise deal with, the Pledged
Collateral and to execute any agreement, xxxx of sale, stock power, stock
transfer or other document or instrument reasonably necessary or appropriate in
connection therewith, (v) execute any Uniform Commercial Code financing
statement (UCC-1) and continuation statement to perfect and continue the
perfection of any security interest granted hereunder, and (vi) give any
instructions, advice, certificates, affidavits or the like to the Escrow Agent.
Notwithstanding anything contained in the foregoing to the contrary, the Pledgee
shall have no obligation to take any action, make any commitment or make any
inquiry with respect to the Pledged Collateral or any rights, dividends or
distributions with respect thereto, including without limitation any inquiry as
to the nature or sufficiency of any payment received by it, or to present or
file any claim or notice, or to take any action to assert or perfect a claim
with respect to the Pledged Collateral or any part thereof or any monies due or
to become due in respect thereof or any property included therein, and no action
taken by the Pledgee or omitted to be taken with respect to the Pledged
Collateral or any part thereof shall give rise to any defense, counterclaim or
offset in favor of the Pledgors or to any claim or action against the Pledgee.
SECTION 8. Event of Default Defined. For purposes of this Pledge
Agreement, an "Event of Default" shall exist hereunder upon the happening of any
of the following events:
(a) The SEC shall not have declared either the Registration
Statement or the Equity Registration Rights Agreement effective by the
Default Date;
(b) any written representation or warranty made in connection
with this Pledge Agreement shall prove false and misleading in any
material respect;
(c) the Pledgors shall fail to deliver to Pledgee any
dividend, distribution or property with respect to the Pledged
Collateral which the Pledgors are obligated to so deliver under the
terms hereof; or
(d) the Pledgors shall fail to comply with any provision of
this Pledge Agreement.
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SECTION 9. Escrow Agreement. An escrow agent (the "ESCROW AGENT") shall
hold the Pledged Collateral pursuant to the terms of an Escrow Agreement of even
date herewith between the Escrow Agent, the Pledgors, and the Pledgee. The
Pledgee shall deliver the Pledged Collateral to the escrow agent simultaneously
with the execution of this document. The Escrow Agreement shall be in the form
annexed hereto as Exhibit "A" and incorporated herein by this reference.
SECTION 10. Notice. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
prepaid, or by courier or overnight carrier, to the persons at the addresses set
forth below (or at such other address as may be provided hereunder), and shall
be deemed to have been delivered on the date receipt is confirmed by telefax
confirmation, return receipt, or otherwise, or if delivered by regular mail
three (3) days after mailing:
As to Pledgee: Sovereign Partners, L.P.
Executive Pavilion
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
As to Pledgors: Bioshield Technologies, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Copy to Pledgor's Counsel: Xxxx Xxxx Xxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000
1000 Xxxxxxxxx Road, N.E.
Xxxxxxx, Xxxxxxx 00000
ATTN: Xxxxxxx X. Xxxx, Esq.
Rejection or other refusal of delivery to a party or to any officer, partner,
agent, or employee of such party at its address herein shall constitute receipt.
Rejection or other refusal to accept or inability to deliver because of a
changed address for which no notice has been properly given also shall
constitute receipt. Notwithstanding the foregoing, no notice of change of
address shall be effective until ten (10) days after the date of receipt
thereof.
SECTION 11. Further Assurances. The Pledgors agree that they will join
with the Pledgee in executing and will file or record such notices, financing
statements or other documents as may be necessary to the perfection of the
security interest of the Pledgee hereunder, and as the Pledgee or its counsel
may reasonably request, such instruments to be in form and substance
satisfactory to the Pledgee and its counsel, and that Pledgors will do such
further acts and things and execute and
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deliver to the Pledgee such additional conveyances, assignments, agreements and
instruments as the Pledgee may at any time reasonably request in connection with
the administration and enforcement of this Pledge Agreement or relative to the
Pledged Collateral or any part thereof or in order to assure and confirm unto
the Pledgee its rights, powers and remedies hereunder.
SECTION 12. No Waiver. No failure on the part of the Pledgee to
exercise, and no delay on its part 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 preclude any other or the 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.
SECTION 13. Governing Law; Amendments. This Pledge Agreement has been
executed and delivered in the State of Georgia and shall in all respects be
construed in accordance with and governed by the laws of said State. Venue shall
lie in the state or federal courts located in Xxxxxx County, Georgia. This
Pledge Agreement may not be amended or modified nor may any of the Pledged
Collateral be released or the security interest granted hereby extended, except
in writing signed by the parties hereto.
SECTION 14. Binding Agreement; Assignment. This Pledge Agreement, and
the terms, covenants and conditions hereof, shall be binding upon and inure to
the benefit of the Pledgee and to all holders of the indebtedness secured hereby
and their respective successors and assigns and to the Pledgors and their
successors, legal representatives and assigns, except that the Pledgors shall
not be permitted to assign this Pledge Agreement or any interest herein or in
the Pledged Collateral, or any part thereof, or any cash or property held by the
Pledgee as collateral under this Pledge Agreement.
SECTION 15. Headings. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration in
interpreting this Pledge Agreement.
SECTION 16. Counterparts. This Pledge Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which when taken together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be executed as of this 13th day of January, 2000.
XXXXXXX X. XXXXX ("Pledgor")
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX XXXXXXX ("Pledgor")
/s/ Xxxxxxx Xxxxxxx
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XXXXXX LLC ("Pledgee")
By: Navigator Management Ltd.
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Name: By: Xxxxx X. Xxxx
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Title: Director
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SCHEDULE I
TO PLEDGE AGREEMENT
NUMBER OF SHARES CERTIFICATE NUMBERS
250,000 0306
250,000 0309
10
