[EXHIBIT 10.2 GUARANTY AND PLEDGE AGREEMENT]
GUARANTY AND PLEDGE AGREEMENT
This GUARANTY AND PLEDGE AGREEMENT (this "Agreement"), dated as of March
22, 2005 is entered into by and among ▇▇▇▇▇▇▇ ▇▇▇, an individual residing at
▇▇-▇▇▇ ▇▇▇▇▇▇▇ Apartment Chamsil-Dong, Songta-gu, Seoul, Korea, ▇▇▇▇ ▇ ▇▇▇, an
individual residing at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ park, N.J.
07010, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III, an individual residing at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (collectively, the "Pledgors"), and
WINWIN GAMING, INC., a Delaware corporation, (the "Secured Party"), with
reference to the following:
WHEREAS, the Pledgors are stockholders of PIXIEM, INC., a Delaware
Corporation (the "Company");
WHEREAS, the Secured Party has agreed to lend money to the Company
pursuant to the terms of a Loan and Security Agreement (the "Loan Agreement") of
even date herewith, which has been secured by an lien on the Company's assets in
favor of the Secured Party and which is evidenced by a Promissory Note of even
date herewith (the "Note");
WHEREAS, in order to induce the Secured Party to make the loans evidenced
by the Note, the Pledgors agree to execute and deliver this Agreement as
additional security for the payment and performance obligations set forth in the
Note (collectively, the "Secured Obligations");
WHEREAS, the Pledgors beneficially own all of the outstanding capital
stock of the Company now or hereinafter acquired (the "Pledged Stock"); and
WHEREAS, the Pledgors desires to pledge, grant, transfer, and assign to
the Secured Party a security interest in the Pledged Stock to secure the Secured
Obligations.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, and warranties set forth herein and for other good and valuable
consideration, the parties hereto agree as follows:
ss.1. GUARANTY.
Each Pledgor irrevocably, absolutely and unconditionally jointly and
severally guarantees to the Secured Party the full and prompt payment and
performance of any and all Secured Obligations including, without limitation,
the punctual payment of the Note, all principal and interest due thereunder, and
any other sums due under the Note. Notwithstanding anything else to the
contrary: (i) any judgment or decree in any action brought to enforce the
obligations of any Pledgor to pay or perform any of its obligations hereunder
shall be enforceable only against such Pledgor's Pledged Stock; and (ii) the
Secured Party shall have no recourse to any other assets of any Pledgor, it
being understood that this Pledge Agreement is being delivered to Secured Party
solely and exclusively to provide recourse in favor of the Secured Party in the
Pledgor's Pledged Stock.
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ss.2. PLEDGE.
As security for the Secured Obligations, each of the Pledgors hereby
pledges, grants, transfers, and assigns to the Secured Party a security interest
in all of such Pledgor's right, title, and interest in and to the Pledged Stock.
ss.3. DELIVERY AND REGISTRATION OF PLEDGED STOCK.
(a) All certificates or instruments representing or evidencing the Pledged
Stock shall be promptly delivered by the Pledgors to the Company and shall be
held on behalf of the Secured Party pursuant hereto.
(b) Each Pledgor hereby authorizes the Secured Party to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Pledged Stock.
ss.4. REMEDIES UPON DEFAULT.
Upon the failure of any Pledgor to satisfy any obligation under Section 1,
the Secured Party may exercise in respect of the Pledged Stock all the rights
and remedies of a secured party on default under the Uniform Commercial Code as
in effect in the State of New Jersey from time to time (the "Code")
(irrespective of whether the Code applies to the affected items of Pledged
Stock), including, without limitation, any or all of the following rights, which
the Pledgors hereby agree to be commercially reasonable: (i) to receive all
dividends, distributions and other amounts payable in respect of the Pledged
Stock otherwise payable to the Pledgors, (ii) to transfer all or any part of the
Pledged Stock into the Secured Party's name or the name of its nominee; and
(iii) to vote all or any part of the Pledged Stock (whether or not transferred
into the name of the Secured Party) and give all consents, waivers and
ratifications in respect of the Pledged Stock and otherwise act with respect
thereto as though it were the outright owner thereof (each Pledgor hereby
irrevocably constituting and appointing the Secured party the proxy and
attorney-in-fact of such Pledgor, with full power of substitution to do so).
ss.5. REPRESENTATIONS.
Each Pledgor represents and warrants that: (i) it has the full power,
authority and legal right to pledge its Pledged Stock pledged by him or her
pursuant to this Agreement; (ii) the execution, delivery and performance of this
Agreement will not violate any mortgage, deed of trust, indenture, lease, loan
agreement, credit agreement or such other contract or instrument to which such
Pledgor is a party and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on the Pledged Stock
(except as contemplated by this Agreement) and (iii) that each Pledgor resides
at the address specified in the preamble to this Agreement as its principal
residence.
ss.6. GOVERNING LAW.
THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER,
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REFERENCE TO THE CHOICE OF LAW PRINCIPLES THEREOF).
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ss.7. NOTICES.
All notices shall be given in the same manner as is required under the
Loan Agreement and to the Pledgors at their respective addresses as specified
above.
ss.8. PREJUDGMENT REMEDY.
EACH PLEDGOR (A) ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS AGREEMENT
IS A PART IS A COMMERCIAL TRANSACTION AND (B) TO THE EXTENT PERMITTED BY ANY
STATE OR FEDERAL LAW, WAIVES THE RIGHT HE OR SHE MAY HAVE TO PRIOR NOTICE OF AND
A HEARING ON THE RIGHT OF THE SECURED PARTY OR ANY OF ITS SUCCESSORS AND ASSIGNS
TO ANY REMEDY OR COMBINATION OF REMEDIES THAT ENABLES THE SECURED PARTY OR ANY
OF ITS SUCCESSORS OR ASSIGNS, BY WAY OF ATTACHMENT, FOREIGN ATTACHMENT,
GARNISHMENT OR REPLEVIN, TO DEPRIVE ANY PLEDGOR OF ANY OF HIS OR HER RESPECTIVE
PROPERTY, AT ANY TIME, PRIOR TO FINAL JUDGMENT IN ANY LITIGATION INSTITUTED IN
CONNECTION WITH THIS AGREEMENT.
ss.9. JURY TRIAL WAIVER.
EACH OF THE PLEDGORS AND THE SECURED PARTY IRREVOCABLY WAIVE ALL RIGHT TO
A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER INSTITUTED BY OR AGAINST SUCH
PLEDGORS OR THE SECURED PARTY IN RESPECT OF THIS AGREEMENT OR ARISING OUT OF ANY
OTHER DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING THE LIABILITIES SECURED BY
THIS AGREEMENT.
ss.10. HEADINGS.
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
or be given any substantive effect.
ss.11. COUNTERPARTS; TELEFACSIMILE EXECUTION.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same Agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed counterpart of
this Agreement by telefacsimile also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, or binding effect
hereof.
[Signature page follows]
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IN WITNESS WHEREOF, each of the Pledgors and the Secured Party have caused
this Agreement to be duly executed and delivered by their officers thereunto
duly authorized as of the date first written above.
PLEDGORS:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇
(Social Security #: ▇▇▇▇▇▇-▇▇▇▇▇▇▇)
By: /s/ Sung Bom ▇▇▇
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Name: Sung Bom ▇▇▇
(Social Security #: ###-##-####)
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
(Social Security #: ###-##-####)
SECURED PARTY:
WINWIN GAMING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and
Chief Executive Officer
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