EXHIBIT 6.20
PLEDGE AGREEMENT
(Stock)
This PLEDGE AGREEMENT (this "Agreement") is made and entered into as
of May 25, 2001, by and between Dippy Foods, Inc., a Nevada corporation
("Secured Party"), each of the shareholders of Americas Favorite Food Corp., a
California corporation ("AFFC"), signatory hereto (collectively, the "Pledgors",
each, individually, a "Pledgor"), and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, a Law corporation
("Pledgeholder"), and is made with reference to the following facts:
A. Secured Party, AFFC and the Pledgors have heretofore entered into
that certain Stock Purchase and Share Exchange Agreement, dated as of the date
hereof (the "Exchange Agreement"), pursuant to which (i) each Pledgor, except
Hermann, has agreed to serve on the Advisory Board from the date of this
Agreement until the second anniversary hereof, or until such Pledgor becomes an
officer or director of Secured Party, whichever first occurs; provided, however,
that if a Pledgor (other than Hermann) becomes an officer or director of Secured
Party prior to the second anniversary of the date of this Agreement, such
Pledgor shall remain an officer or director of Secured Party (or otherwise an
Advisory Member if reappointed to the Advisory Board), until such second
anniversary date, and (ii) Hermann has agreed to serve on Secured Party's board
of directors and as Executive Vice President and Chief Operating Officer of
Secured Party from the date of this Agreement until the second anniversary
hereof((i) and (ii) are hereinafter collectively referred to as the "Advisory
Obligation");
B. Whereas, the parties hereto have determined to enter into this
Agreement in order to provide for the return of Dippy Common Shares to the AFFC
Shareholders in two equal installments, with the first and second installments
to occur upon the first and second anniversaries, respectively, of the Closing
Date, subject to satisfaction of the Advisory Obligation;
B. Pledgors, being all of the shareholders of AFFC, will benefit from
the transactions contemplated by the Exchange Agreement.
C. Capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in the Exchange Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and agreements hereinafter contained, the parties hereto hereby agree
as follows:
ARTICLE 1
GRANT OF SECURITY INTEREST
1.1 Pledge. As security for the obligations specified in Article 2
hereof, each Pledgor hereby pledges and grants to Secured Party a security
interest in and to the following (the "Collateral"): (a) the number of Dippy
Common Shares listed opposite such Pledgor's name in Column A on Schedule I
hereto (as to each Pledgor, the "Pledged Shares") and (b) all non-cash
distributions distributed in respect of or in exchange therefor.
1.2 Delivery. In furtherance of the pledge and grant of the security
interest referred to in Section 1.1 hereof, Pledgors shall deliver to
Pledgeholder, concurrently with the execution hereof, all certificates
representing the Pledged Shares, duly and properly endorsed in blank (or
accompanied by appropriate stock powers separate from certificate) or such other
instruments of assignment relating thereto as Secured Party may reasonably
require.
1
ARTICLE 2
OBLIGATIONS TO BE SECURED
The security interests herein granted shall secure the following
obligations (the "Secured Obligations"):
2.1 The Advisory Obligation.
2.2 The obligations of the Pledgors pursuant to this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PLEDGOR
Each Pledgor hereby represents and warrants to Secured Party that:
3.1 Validity of Pledged Shares/Title to Pledged Shares. Pledgor is the
sole legal and beneficial owner of the Pledged Shares, and, except for the
security interests granted to Secured Party herein, Pledgor has, and will at all
times during the term hereof have, good and marketable title to all and every
part of the Collateral, free and clear of any security interest, lien, pledge,
encumbrance, option, conditional sale contract, lease or other title retention
agreement, or any other adverse claim of any nature whatsoever, except as
otherwise permitted in Article 5.1.
3.2 Priority. Upon the execution and delivery of this Agreement by
each Pledgor and Pledgeholder's taking possession of the Pledged Shares, Secured
Party shall have a perfected security interest in and to the Collateral having
first priority therefor.
3.3 Binding Agreement. This Agreement constitutes the legal, valid and
binding obligation of Pledgor enforceable against such Pledgor in accordance
with its terms.
3.4 No Default or Required Consent. Neither the execution or delivery
of this Agreement by Pledgor nor the effectuation by Secured Party of any of its
rights or remedies herein, whether upon default or otherwise, will result in a
breach of or constitute a default under any agreement or instrument to which
Pledgor is a party or by which any of the Collateral is bound, or violate any
law or any rule or regulation of any administrative agency or any order, writ,
injunction or decree of any court or administrative agency, nor does any of the
foregoing require the consent of any person, entity or governmental agency or
any notice or filing with any governmental or regulatory body.
3.5 No Litigation. To his knowledge, after reasonable inquiry, there
is no action, legal, administrative or other proceeding pending or threatened
against Pledgor's title to or interest in the Collateral or against Pledgor's
pledge of the Collateral hereunder, nor does Pledgor know of any basis for the
assertion of any such claim.
2
ARTICLE 4
AFFRMATIVE COVENANTS
Each Pledgor covenants that until such time as all of the Secured
Obligations are indefeasibly satisfied in full or this Agreement has expired by
its own terms, unless Secured Party shall otherwise consent in writing:
4.1 Protection of Security and Legal Proceedings. Pledgor shall, at
his own expense, take any and all actions necessary to preserve, protect and
defend the security interest of Secured Party in the Collateral and the
perfection and priority thereof against any and all adverse claims, including
appearing in and defending any and all actions and proceedings which purport to
affect any of the foregoing; promptly reimburse Secured Party for any and all
sums, including costs, expenses and reasonable attorneys' fees, which Secured
Party may pay or incur in defending, protecting or enforcing its security
interest in the Collateral or the perfection or priority thereof, or in
discharging any prior or subsequent lien or adverse claim against the Collateral
or any part thereof, or by reason of becoming or being made a party to or
intervening in any action or proceeding affecting the Collateral or the rights
of Secured Party therein.
4.2 Notification. Pledgor shall promptly notify Secured Party in
writing of any levy of any legal process against the Collateral and the adoption
of any order, arrangement or procedure affecting the Collateral, whether
governmental or otherwise.
4.3 Further Assurances. Pledgor shall from time to time make, execute,
acknowledge and deliver all such further documents, instruments and assurances
and take such further acts as may reasonably be requested by Secured Party to
perfect or preserve the security interest created by and to carry out the intent
of this Pledge Agreement.
ARTICLE 5
NEGATIVE COVENANTS
Each Pledgor covenants that until such time as all of the Secured
Obligations are satisfied in full or this Agreement expires by its terms,
without the prior written consent of Secured Party:
5.1 Sale or Hypothecation of Collateral. Pledgor shall not directly or
indirectly, whether voluntarily, involuntarily, by operation of law or otherwise
(a) exchange, sell, encumber or dispose of the Collateral or any part thereof,
or any of Pledgor's rights therein, or grant any option with respect thereto,
nor (b) cause, suffer or permit the Collateral to be affected by any
encumbrance, security interest, option or adverse claim of any kind or nature
whatsoever, other than the security interest in favor of Secured Party.
3
ARTICLE 6
ADDITIONAL COVENANTS OF PLEDGOR
6.1 Attorney-In-Fact. Each Pledgor hereby appoints Secured Party its
attorney-in-fact with full power of substitution, to do any and all acts which
Pledgor is obligated by Section 4.1 of this Agreement to do and for the purpose
of carrying out the purposes of such Section 4.1 and taking any action and
executing any instruments which Secured Party may deem reasonably necessary or
advisable to accomplish the purposes of Section 4.1, which appointment as
attorney-in-fact is irrevocable and coupled with an interest.
ARTICLE 7
RIGHTS INCIDENT TO PLEDGED SHARES
7.1 Irrevocable Proxy/Voting Rights. To the extent Secured Party has
not taken possession of and retained the Pledged Shares pursuant to Article 9
hereof, Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Shares or any part thereof for any
purpose not inconsistent with the terms of this Agreement.
7.2 Rights to Distributions. To the extent Secured Party has not taken
possession of and retained the Collateral, Pledgor may receive and retain for
his own uses all cash distributions made in respect of any Pledged Shares.
ARTICLE 8
EVENTS OF DEFAULT
The occurrence of any of the following shall constitute an event of
default ("Event of Default") hereunder:
8.1 Resignation.
(i) An Advisory Member (also a Pledgor) elects to resign from
the Advisory Board, without simultaneously accepting appointment to an office of
Secured Party or the board of directors of Secured Party, or otherwise elects to
resign from office of Secured Party or the board of directors of Secured Party
without simultaneously accepting reappointment to the Advisory Board, on or
prior to the second anniversary of the date of the Exchange Agreement.
(ii) Hermann (also a Pledgor) elects to resign from office of
Secured Party and from Secured Party's board of directors, without
simultaneously accepting appointment to the Advisory Board, or otherwise resigns
from the Advisory Board without accepting appointment to an office of Secured
Party or the board of directors of Secured Party, prior to the second
anniversary of the date of the Exchange Agreement.
8.2 Breach. A breach by Pledgor of his obligations under this
Agreement that is not curable or, if curable, is not cured by Pledgor within
thirty (30) days following notice of such breach by the Pledgor.
4
ARTICLE 9
REMEDIES OF SECURED PARTY
9.1 First Anniversary. Upon the occurrence of any single Event of
Default on or before the first anniversary of the date of this Agreement, the
sole remedy of Secured Party shall be to take possession of (a) all of the Dippy
Common Shares listed opposite the defaulting Pledgor's name in Column B on
Schedule I hereto, and (b) all of the Dippy Common Shares listed opposite the
defaulting Pledgor's name in Column C on Schedule I hereto.
9.2 Second Anniversary. Upon the occurrence of any single Event of
Default after the first anniversary but before the second anniversary of the
date of this Agreement, the sole remedy of Secured Party shall be to take
possession of and retain all of the Dippy Common Shares listed opposite the
defaulting Pledgor's name in Column C on Schedule I hereto.
9.3 Notice. Secured Party shall give Pledgeholder notice of its
intention to take possession of and retain the Collateral, or a portion thereof.
Upon receipt of the notice from Secured Party, Pledgeholder shall promptly
notify each Pledgor of Secured Party's intention to take possession of and
retain the Collateral, or a portion thereof, and shall deliver the Collateral,
or a portion thereof, to Secured Party, unless the Pledgors contest Secured
Party's retention of the Collateral, or a portion thereof, within five (5) days
of such notice from Pledgeholder. In the event such that Secured Party's
retention of the Collateral, or a portion thereof, is contested by the Pledgors,
such portion of the Collateral representing the amount in dispute shall be held
back in escrow by Pledgeholder until such amount in controversy shall be settled
by the parties.
ARTICLE 10
RETURN OF COLLATERAL
Secured Party shall cause Pledgeholder to return all Collateral then
held by Pledgeholder to the Pledgors or their designee(s) according to the
following milestone provisions:
10.1 First Anniversary. Upon the first anniversary of the date of this
Agreement ("Milestone I"), Secured Party shall cause Pledgeholder to return to
each Pledgor the number of Dippy Common Shares listed in Column B opposite such
Pledgor's name on Schedule I hereto, plus all non-cash distributions distributed
in respect of or in exchange therefor; provided, however, that if any Advisory
Member has resigned from the Advisory Board, without simultaneously accepting
appointment to an office of Secured Party or the board of directors of Secured
Party (or otherwise elects to resign from office of Secured Party or the board
of directors of Secured Party without simultaneously accepting reappointment to
the Advisory Board), or Hermann has resigned from office of Secured Party and
from Secured Party's board of directors without simultaneously accepting
appointment to the Advisory Board (or otherwise resigns from the Advisory Board
without accepting appointment to an office of Secured Party or the board of
directors of Secured Party), on or prior to Milestone I, then Secured Party
shall have the remedy provided in Section 9.1 above.
10.2 Second Anniversary. Upon the second anniversary of the date of
this Agreement ("Milestone II"), Secured Party shall cause Pledgeholder to
return to each Pledgor the number of Dippy Common Shares listed in Column C
opposite such Pledgor's name on Schedule I hereto, plus all non-cash
distributions distributed in respect of or in exchange therefor; provided,
however, that if any Advisory Member has resigned from the Advisory Board,
without simultaneously accepting appointment to an office of Secured Party or
the board of directors of Secured Party (or otherwise elects to resign from
office of Secured Party or the board of directors of Secured Party without
simultaneously accepting reappointment to the Advisory Board), or Hermann has
resigned from office of Secured Party and from Secured Party's board of
directors without simultaneously accepting appointment to the Advisory Board (or
otherwise resigns from the Advisory Board without accepting appointment to an
office of Secured Party or the board of directors of Secured Party), on or prior
to Milestone II, then Secured Party shall have the remedy provided in Section
9.2 above.
5
10.3 Removal; Death; Incapacity. Notwithstanding anything herein to the
contrary, if, during the term of the Advisory Obligation, (i) an Advisory Member
is removed from the Advisory Board without simultaneously being appointed to
Secured Party's board of directors or an office of Secured Party, or is
subsequently removed or terminated from such appointment without Cause (as
defined below), or (ii) if Hermann is removed from office of Secured Party and
from Secured Party's board of directors, without Cause, or (iii) an Advisory
Member or Hermann dies or becomes completely incapacitated, , then the Advisory
Obligation shall be deemed satisfied as to such Advisory Member or Hermann, as
the case may be, and all of the Collateral then held by Pledgeholder in respect
of such Advisory Member or Hermann, as the case may be, shall be returned to
such Advisory Member or Hermann, as the case may be, or his estate or
beneficiaries, in accordance with the terms hereof. Cause shall mean (i) any act
of fraud or dishonesty by the Pledgor involving the Secured Party; (ii) an
uncured material breach of any provision of this Agreement by the Pledgor; (iii)
the conviction of the Pledgor of any felony; (iv) a violation by the Pledgor of
any material federal, state, or local law or regulation applicable to the
business of the Secured Party; or (v) any willful act by the Pledgor that
adversely affects the Secured Party, its financial condition or its business
reputation.
10.4 Condition Precedent. It shall be a condition precedent to the
achievement of Milestone I and Milestone II, and the return of any Collateral
pursuant to Sections 10.1 and 10.2, respectively, that the Business Development
Agreement attached to the Exchange Agreement as Exhibit B, and the Aseen
Contract and Hain Contract (each as defined in such Business Development
Agreement), shall each be in full force and effect at Milestone I and Milestone
II; provided, however, that if any such contract is unilaterally terminated by a
party other than USFI, and USFI has performed its obligations thereunder in good
faith, then this condition precedent shall not apply.
ARTICLE 11
CUMULATIVE RIGHTS; NO WAIVER
The several rights and remedies of Secured Party hereunder or referred
to herein shall, to the full extent permitted by law, be construed as
cumulative, and no one of them is exclusive of the others. No delay or omission
of Secured Party in exercising any right or remedy created by, connected with or
provided in this Agreement or arising from any Event of Default hereunder shall
be construed as or deemed to be an acquiescence therein or a waiver of such
default or a waiver of or limitation upon the right of Secured Party to
exercise, at any time and from time to time thereafter, any right or remedy
under this Agreement. No waiver of any breach of any of the covenants or
conditions of this Agreement shall be construed to be a waiver of or
acquiescence in or consent to any preceding or subsequent breach of the same of
any other condition or covenant.
6
ARTICLE 12
PLEDGEHOLDER' S POSSESSION OF COLLATERAL
Pledgeholder, by its signature hereto, consents to act as Pledgeholder
hereunder upon the express understanding that it shall be responsible solely for
the physical holding of the Collateral, and shall deliver said Collateral to
Secured Party in the event of an Event of Default as hereinabove provided. It is
expressly understood that the duties and obligations of the Pledgeholder are
solely ministerial in nature and are to be limited strictly to the foregoing,
and the parties acknowledge that they hereby hold Pledgeholder free and harmless
from any and all liability, costs, and expenses, including attorneys' fees, by
reason hereof, and that the parties hereby indemnify Pledgeholder therefrom. Any
instructions given to Pledgeholder by Secured Party hereunder shall be in
writing and shall be signed by Secured Party. Pledgeholder shall perform its
duties hereunder without charge to any party hereto.
ARTICLE 13
ASSIGNMENT OF OBLIGATIONS
Secured Party may not transfer any Secured Obligation without the
approval of Pledgor except by operation of law.
ARTICLE 14
ARBITRATION
Any claim or controversy arising out of or relating to this Agreement
shall be settled by arbitration in Los Angeles, California, in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and
judgment on the award rendered by the arbitrators may be entered in any court
having jurisdiction. Each party shall pay the fees of its own attorneys, the
expenses of its witnesses and all other expenses connected with presenting its
case. Other costs of the arbitration, including the cost of any record or
transcripts of the arbitration, administrative fees, the fee of the third
arbitrator, and all other fees and costs, shall be shared equally among the
parties.
ARTICLE 15
MISCELLANEOUS
15.1 Notices. All written notices, demands and requests of any kind
which either party may be required or may desire to serve upon the other party
hereto in connection with this Agreement may be delivered by courier or other
means of personal service, by registered or certified mail or by telex or
telecopy. Any such notice or demand so delivered by registered or certified mail
or courier shall be deposited in the United States mail, or in the case of
courier, deposited with the courier, with postage thereon fully prepaid. All
notices shall be addressed to the parties to be served as follows:
If to Secured Party:
Dippy Foods, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, a Law corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to Pledgors:
See Schedule I with each Pledgor's address
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to Pledgeholder:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, a Law corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
7
Service of any such notice or demand so made shall be deemed complete on the day
of actual delivery thereof as shown by the addressee's registry, certification
receipt or other evidence of receipt, or on the third day after mailing, if
mailed, whichever is earlier. Either party hereto may from time to time by
notice in writing served upon the other as aforesaid designate a different
mailing address or a different or additional person to which all such notices or
demands thereafter are to be addressed.
15.2 Time of Essence. Time is hereby declared to be of the essence of
this Agreement and of every part hereof.
15.3 Entire Agreement: Waiver: Construction. This Agreement, and all
instruments or documents delivered pursuant hereto or thereto, together with all
exhibits thereto contain the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof. Each of the parties hereto
acknowledges that no other party, or agent or attorney of any other party, has
made any promise, representation, or warranty whatsoever, express or implied,
not contained herein concerning the subject matter hereof, to induce the other
party to execute this instrument, and each party hereto acknowledges that it has
not executed this instrument in reliance upon any such promise, representation,
or warranty not contained herein. This Agreement may not be altered or amended
except by the written agreement of the parties hereto. No provision of this
Agreement or right of Secured Party hereunder can be waived nor can any Pledgor
be released from his obligations hereunder except by a writing duly executed by
Secured Party. Each of the parties hereto hereby acknowledges that it has been
represented by independent counsel of its own choice throughout all negotiations
which have preceded the execution of this document and that it has executed the
same with the consent and upon the advice of said independent counsel. All
parties and their respective counsel have cooperated in the drafting and
preparation of this Agreement, such that it shall be deemed to be their joint
work product and may not be construed against any party by reason of its
preparation. Any amendment of this Agreement by the Secured Party and any action
or waiver to be taken hereunder on behalf of the Secured Party shall be made
only upon authorization of the board of directors and at least a majority of the
shareholders of Secured Party.
15.4 Binding on Successors. This Agreement shall remain in full force
and effect until each of the obligations hereby secured has been fully
performed, and each of the provisions hereof shall inure to the benefit of and
bind, as the case may be, the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
15.5 Severability, Should any one or more provisions of this Agreement
be determined to be illegal or unenforceable, all other provisions of this
Agreement nevertheless shall be effective.
8
15.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15.7 Headings. The headings of the several paragraphs hereof are
included only for the convenience of reference and are not intended to govern,
construe or modify any provisions of the several paragraphs hereof.
15.8 Applicable Law. This Agreement is to be governed by and construed
in accordance with the laws of the State of California.
9
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement as of the date first
written above.
SECURED PARTY:
Dippy Foods, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: Secretary
PLEDGEHOLDER:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, a Law corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: Associate
PLEDGORS:
/s/ ▇▇▇▇ Place
------------------------------
▇▇▇▇ Place
/s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇ ▇▇▇
------------------------------
▇▇▇▇ ▇▇▇
/s/ Min Shim
------------------------------
Min Shim
/s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
10
SCHEDULE I
---------------------- ------------------- ---------------- ----------------
CLOSING MILESTONE I MILESTONE II
PLEDGOR COLUMN A COLUMN B COLUMN C
---------------------- ------------------- ---------------- ----------------
▇▇▇▇ Place 333,334 333,333 333,333
Address:
▇▇▇▇▇ ▇▇▇▇ 333,334 333,333 333,333
Address:
▇▇▇▇▇ ▇▇▇ 333,334 333,333 333,333
Address:
▇▇▇▇ ▇▇▇ 333,334 333,333 333,333
Address:
Min Shim 333,334 333,333 333,333
Address:
▇▇▇ ▇▇▇▇▇▇▇ 333,334 333,333 333,333
Address:
▇▇▇▇▇ ▇▇▇ 333,334 333,333 333,333
Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 333,334 333,333 333,333
Address:
11