Exhibit 10.2
Pursuant to Item 601(b)(2) of Regulation S-K, the exhibits and schedules to this
agreement have been omitted. Axeda Systems Inc. agrees to supplementally furnish
such exhibits and schedules upon request from the Securities and Exchange
Commission.
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (this "Agreement"), dated as of October 5,
2004, among Laurus Master Fund, Ltd. (the "Pledgee"), Axeda Systems Inc., a
Delaware corporation (the "Company"), and each of the other undersigned pledgors
(the Company and each such other undersigned pledgor, a "Pledgor" and
collectively, the "Pledgors").
BACKGROUND
The Company has entered into a Securities Purchase Agreement, dated as of
October 5, 2004 (as amended, modified, restated or supplemented from time to
time, the "Securities Purchase Agreement"),(as amended, modified, restated or
supplemented from time to time, the "Security Agreement"), pursuant to which the
Pledgee provides or will provide certain financial accommodations to the
Company.
In order to induce the Pledgee to provide or continue to provide the
financial accommodations described in the Securities Purchase Agreement, each
Pledgor has agreed to pledge and grant a security interest in the collateral
described herein to the Pledgee on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Defined Terms. All capitalized terms used herein which are not defined
shall have the meanings given to them in the Securities Purchase Agreement.
2. Pledge and Grant of Security Interest. To secure the full and punctual
payment and performance of (the following clauses (a) and (b), collectively, the
"Indebtedness") (a) the obligations under the Securities Purchase Agreement and
the Related Agreements referred to in the Securities Purchase Agreement(the
Securities Purchase Agreement and the Related Agreements, as each may be
amended, restated, modified and/or supplemented from time to time, collectively,
the "Documents") and (b) all other indebtedness, obligations and liabilities of
each Pledgor to the Pledgee whether now existing or hereafter arising, direct or
indirect, liquidated or unliquidated, absolute or contingent, due or not due and
whether under, pursuant to or evidenced by a note, agreement, guaranty,
instrument or otherwise (in each case, irrespective of the genuineness,
validity, regularity or enforceability of such Indebtedness, or of any
instrument evidencing any of the Indebtedness or of any collateral therefor or
of the existence or extent of such collateral, and irrespective of the
allowability, allowance or disallowance of any or all of such in any case
commenced by or against any Pledgor under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code,
including, without limitation, obligations or indebtedness of each Pledgor for
post-petition interest, fees, costs and charges that would have accrued or been
added to the Indebtedness but for the commencement of such case), each Pledgor
hereby pledges, assigns, hypothecates, transfers and grants a security interest
to Pledgee in all of the following (the "Collateral"):
1
(a) the shares of stock set forth on Schedule A annexed hereto and
expressly made a part hereof (together with any additional shares of stock
or other equity interests acquired by any Pledgor, the "Pledged Stock"),
the certificates representing the Pledged Stock and all dividends, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of the Pledged Stock;
(b) all additional shares of stock of any issuer (each, an "Issuer")
of the Pledged Stock from time to time acquired by any Pledgor in any
manner, including, without limitation, stock dividends or a distribution in
connection with any increase or reduction of capital, reclassification,
merger, consolidation, sale of assets, combination of shares, stock split,
spin-off or split-off (which shares shall be deemed to be part of the
Collateral), and the certificates representing such additional shares, and
all dividends, cash, instruments and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares; and
(c) all options and rights, whether as an addition to, in substitution
of or in exchange for any shares of any Pledged Stock and all dividends,
cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all such options and rights.
Notwithstanding anything to the contrary, the Indebtedness shall not include any
liabilities or obligations that are not payment obligations or that arise under
or out of the Warrants or any other equity interests of the Company issued to
Laurus. Notwithstanding the foregoing, the Collateral shall not include any
equity interests issued by a Person if such person is a foreign corporation or
any equity interest of a Person that do not own more than 10% of the assets of
the Company calculated on a consolidated basis.
3. Delivery of Collateral. All certificates representing or evidencing the
Pledged Stock shall be delivered to and held by or on behalf of Pledgee pursuant
hereto and shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to Pledgee. Each
Pledgor hereby authorizes the Issuer upon demand by the Pledgee to deliver any
certificates, instruments or other distributions issued in connection with the
Collateral directly to the Pledgee, in each case to be held by the Pledgee,
subject to the terms hereof. Upon an Event of Default (as defined below) under
the Note that has occurred and is continuing beyond any applicable grace period,
the Pledgee shall have the right, during such time in its discretion and without
notice to the Pledgor, to transfer to or to register in the name of the Pledgee
or any of its nominees any or all of the Pledged Stock. In addition, the Pledgee
shall have the right at such time to exchange certificates or instruments
representing or evidencing Pledged Stock for certificates or instruments of
smaller or larger denominations.
4. Representations and Warranties of each Pledgor. Each Pledgor jointly and
severally represents and warrants to the Pledgee (which representations and
warranties shall be deemed to continue to be made until all of the Indebtedness
has been paid in full and each
2
Document and each agreement and instrument entered into in connection therewith
has been irrevocably terminated) that:
(a) the execution, delivery and performance by each Pledgor of this
Agreement and the pledge of the Collateral hereunder do not and will not
result in any violation of any agreement, indenture, instrument, license,
judgment, decree, order, law, statute, ordinance or other governmental rule
or regulation applicable to any Pledgor;
(b) this Agreement constitutes the legal, valid, and binding
obligation of each Pledgor enforceable against each Pledgor in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
the enforcement of creditor's rights, and general principals of equity that
restrict the availability or equitable or legal remedies;
(c) (i) all Pledged Stock owned by each Pledgor is set forth on
Schedule A hereto and (ii) each Pledgor is the direct and beneficial owner
of each share of the Pledged Stock;
(d) all of the shares of the Pledged Stock have been duly authorized,
validly issued and are fully paid and nonassessable;
(e) no consent or approval of any person, corporation, governmental
body, regulatory authority or other entity, is or will be necessary for (i)
the execution, delivery and performance of this Agreement, (ii) the
exercise by the Pledgee of any rights with respect to the Collateral or
(iii) the pledge and assignment of, and the grant of a security interest
in, the Collateral hereunder;
(f) there are no pending or, to the best of Pledgor's knowledge,
threatened actions or proceedings before any court, judicial body,
administrative agency or arbitrator which may materially adversely affect
the Collateral;
(g) each Pledgor has the requisite corporate power and authority to
enter into this Agreement and to pledge and assign the Collateral to the
Pledgee in accordance with the terms of this Agreement.
(h) each Pledgor owns each item of the Collateral and, except for the
pledge and security interest granted to Pledgee hereunder and Permitted
Encumbrances, the Collateral shall be, immediately following the closing of
the transactions contemplated by the Documents, free and clear of any other
security interest, pledge, claim, lien, charge, hypothecation, assignment,
offset or encumbrance whatsoever (collectively, "Liens").
(i) there are no restrictions on transfer of the Pledged Stock
contained in the certificate of incorporation or by-laws (or equivalent
organizational documents) of the Issuer or otherwise which have not
otherwise been enforceably and legally waived by the necessary parties.
3
(j) none of the Pledged Stock has been issued or transferred in
violation of the securities registration, securities disclosure or similar
laws of any jurisdiction to which such issuance or transfer may be subject.
(k) the pledge and assignment of the Collateral and the grant of a
security interest under this Agreement vest in the Pledgee all rights of
each Pledgor in the Collateral as contemplated by this Agreement.
(l) The Pledged Stock constitutes one hundred percent (100%) of the
issued and outstanding shares of capital stock of each Issuer listed on
Schedule A hereto as of the date hereof, except to the extent set forth in
such Schedule A .
5. Covenants. Each Pledgor jointly and severally covenants that, until the
Indebtedness shall be satisfied in full and each Document and each agreement and
instrument entered into in connection therewith is irrevocably terminated:
(a) Subject to Section 6.12 of the Securities Purchase Agreement or
the Master Security Agreement, no Pledgor will sell, assign, transfer,
convey, or otherwise dispose of its rights in or to the Collateral or any
interest therein; nor will any Pledgor create, incur or permit to exist any
Lien whatsoever with respect to any of the Collateral or the proceeds
thereof other than that created hereby and Permitted Encumbrances.
(b) Each Pledgor will, at its expense, defend Pledgee's right, title
and security interest in and to the Collateral against the claims of any
other party in all material respects.
(c) Each Pledgor shall at any time, and from time to time, upon the
written request of Pledgee, execute and deliver such further documents and
do such further acts and things as Pledgee may reasonably request in order
to effect the purposes of this Agreement including, but without limitation,
delivering to Pledgee upon the occurrence and continuance of an Event of
Default irrevocable proxies in respect of the Collateral in form
satisfactory to Pledgee. Until receipt thereof, upon an Event of Default
that has occurred and is continuing beyond any applicable grace period,
this Agreement shall constitute Pledgor's proxy to Pledgee or its nominee
to vote all shares of Collateral then registered in each Pledgor's name.
(d) No Pledgor will consent to or approve the issuance of (i) any
additional shares of any class of capital stock or other equity interests
of the Issuer; or (ii) any securities convertible either voluntarily by the
holder thereof or automatically upon the occurrence or nonoccurrence of any
event or condition into, or any securities exchangeable for, any such
shares, unless, in either case, such shares are pledged as Collateral
pursuant to this Agreement.
6. Voting Rights and Dividends. In addition to the Pledgee's rights and
remedies set forth in Section 8 hereof, in case an Event of Default shall have
occurred and be continuing, beyond any applicable cure period, the Pledgee shall
(i) be entitled to vote the Collateral, (ii) be entitled to give consents,
waivers and ratifications in respect of the Collateral (each Pledgor
4
hereby irrevocably constituting and appointing the Pledgee, with full power of
substitution, the proxy and attorney-in-fact of each Pledgor for such purposes)
and (iii) be entitled to collect and receive for its own use cash dividends paid
on the Collateral. No Pledgor shall be permitted to exercise or refrain from
exercising any voting rights or other powers if, in the reasonable judgment of
the Pledgee, such action would have a material adverse effect on the value of
the Collateral or any part thereof; and, provided, further, that each Pledgor
shall give at least five (5) days' written notice of the manner in which such
Pledgor intends to exercise, or the reasons for refraining from exercising, any
voting rights or other powers other than with respect to any election of
directors and voting with respect to any incidental matters and this sentence
shall not apply to actions taken that are permitted by the Securities Purchase
Agreement and the Master Security Agreement. Following the occurrence and
continuance of an Event of Default, at the Pledgee's request, all dividends and
all other distributions in respect of any of the Collateral, shall be delivered
to the Pledgee to hold as Collateral and shall, if received by any Pledgor, be
received in trust for the benefit of the Pledgee, be segregated from the other
property or funds of any other Pledgor, and be forthwith delivered to the
Pledgee as Collateral in the same form as so received (with any necessary
endorsement).
7. Event of Default. An Event of Default shall be deemed to have occurred
and may be declared by the Pledgee upon the happening and continuance of any of
the following events:
(a) An "Event of Default" under any Document shall have occurred and
be continuing beyond any applicable cure period;
(b) Any Pledgor shall default in the performance of any of its
obligations under any agreement between any Pledgor and Pledgee, including,
without limitation, this Agreement, and such default shall not be cured for
a period of fifteen (15) business days after the occurrence thereof;
(c) Any representation or warranty of any Pledgor made herein, in any
Document or in any agreement, statement or certificate given in writing
pursuant hereto or thereto or in connection herewith or therewith shall be
false or misleading in any material respect and if subject to cure, shall
not be cured for a period of thirty (30) days after the occurrence thereof;
(d) Any portion of the Collateral is subjected to levy of execution,
attachment, distraint or other judicial process; or any portion of the
Collateral is the subject of a claim (other than by the Pledgee or a
Permitted Encumbrance) of a Lien or other right or interest in or to the
Collateral and such levy or claim shall not be cured, disputed or stayed
within a period of fifteen (15) business days after the occurrence thereof;
or
(e) Any Pledgor shall (i) apply for, consent to, or suffer to exist
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, liquidator or other fiduciary of itself or of all or a substantial
part of its property, (ii) make a general assignment for the benefit of
creditors, (iii) commence a voluntary case under any state or federal
bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a
bankrupt or insolvent, (v) file a petition
5
seeking to take advantage of any other law providing for the relief of
debtors, (vi) acquiesce to, or fail to have dismissed, within sixty (60)
days, any petition filed against it in any involuntary case under such
bankruptcy laws, or (vii) take any action for the purpose of effecting any
of the foregoing.
8. Remedies. In case an Event of Default shall have occurred and be
continuing and be declared by the Pledgee, the Pledgee may:
(a) Transfer any or all of the Collateral into its name, or into the
name of its nominee or nominees;
(b) Exercise all corporate rights with respect to the Collateral
including, without limitation, all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to any
shares of the Collateral as if it were the absolute owner thereof,
including, but without limitation, the right to exchange, at its
discretion, any or all of the Collateral upon the merger, consolidation,
reorganization, recapitalization or other readjustment of the Issuer
thereof, or upon the exercise by the Issuer of any right, privilege or
option pertaining to any of the Collateral, and, in connection therewith,
to deposit and deliver any and all of the Collateral with any committee,
depository, transfer agent, registrar or other designated agent upon such
terms and conditions as it may determine, all without liability except to
account for property actually received by it; and
(c) Subject to any requirement of applicable law, sell, assign and
deliver the whole or, from time to time, any part of the Collateral at the
time held by the Pledgee, at any private sale or at public auction, with or
without demand, advertisement or notice of the time or place of sale or
adjournment thereof or otherwise (all of which are hereby waived, except
such notice as is required by applicable law and cannot be waived), for
cash or 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 may determine, or as may be required by applicable law.
Each Pledgor hereby waives and releases any and all right or equity of
redemption, whether before or after sale hereunder to the extent permitted
by applicable law. At any such sale, unless prohibited by applicable law,
the Pledgee may bid for and purchase the whole or any part of the
Collateral so sold free from any such right or equity of redemption. All
moneys received by the Pledgee hereunder whether upon sale of the
Collateral or any part thereof or otherwise shall be held by the Pledgee
and applied by it as provided in Section 10 hereof. No failure or delay on
the part of the Pledgee in exercising any rights hereunder shall operate as
a waiver of any such rights nor shall any single or partial exercise of any
such rights preclude any other or future exercise thereof or the exercise
of any other rights hereunder. The Pledgee shall have no duty as to the
collection or protection of the Collateral or any income thereon nor any
duty as to preservation of any rights pertaining thereto, except to apply
the funds in accordance with the requirements of Section 10 hereof. The
Pledgee may exercise its rights with respect to property held hereunder
without resort to other security for or sources of reimbursement for the
Indebtedness. In addition to the foregoing, Pledgee shall have all of the
6
rights, remedies and privileges of a secured party under the Uniform
Commercial Code of New York regardless of the jurisdiction in which
enforcement hereof is sought.
9. Private Sale. Each Pledgor recognizes that the Pledgee may be unable
to effect (or to do so only after delay which would adversely affect the value
that might be realized from the Collateral) a public sale of all or part of the
Collateral by reason of certain prohibitions contained in the Securities Act,
and may be compelled to resort to one or more private sales to a restricted
group of purchasers who will be obliged to agree, among other things, to acquire
such Collateral for their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor agrees that any such private sale
may be at prices and on terms less favorable to the seller than if sold at
public sales and that such private sales shall be deemed to have been made in a
commercially reasonable manner. Each Pledgor agrees that the Pledgee has no
obligation to delay sale of any Collateral for the period of time necessary to
permit the Issuer to register the Collateral for public sale under the
Securities Act.
10. Proceeds of Sale. The proceeds of any collection, recovery, receipt,
appropriation, realization or sale of the Collateral shall be applied by the
Pledgee as follows:
(a) First, to the payment of all costs, reasonable expenses and
charges of the Pledgee and to the reimbursement of the Pledgee for the
prior payment of such costs, reasonable expenses and charges incurred in
connection with the care and safekeeping of the Collateral (including,
without limitation, the reasonable expenses of any sale or any other
disposition of any of the Collateral), the expenses of any taking,
attorneys' fees and reasonable expenses, court costs, any other fees or
expenses incurred or expenditures or advances made by Pledgee in the
protection, enforcement or exercise of its rights, powers or remedies
hereunder;
(b) Second, to the payment of the Indebtedness, in whole or in part,
in such order as the Pledgee may elect, whether or not such Indebtedness is
then due;
(c) Third, to such persons, firms, corporations or other entities as
required by applicable law including, without limitation, Section
9-504(1)(c) of the UCC; and
(d) Fourth, to the extent of any surplus to the Pledgors or as a court
of competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery, receipt,
appropriation, realization or sale are insufficient to satisfy the
Indebtedness, each Pledgor shall be jointly and severally liable for the
deficiency plus the costs and fees of any attorneys employed by Pledgee to
collect such deficiency.
11. Waiver of Marshaling. Each Pledgor hereby waives any right to compel
any marshaling of any of the Collateral.
7
12. No Waiver. Any and all of the Pledgee's rights with respect to the
Liens granted under this Agreement shall continue unimpaired, and Pledgor shall
be and remain obligated in accordance with the terms hereof, notwithstanding (a)
the bankruptcy, insolvency or reorganization of any Pledgor, (b) the release or
substitution of any item of the Collateral at any time, or of any rights or
interests therein, or (c) any delay, extension of time, renewal, compromise or
other indulgence granted by the Pledgee in reference to any of the Indebtedness.
Each Pledgor hereby waives all notice of any such delay, extension, release,
substitution, renewal, compromise or other indulgence, and hereby consents to be
bound hereby as fully and effectively as if such Pledgor had expressly agreed
thereto in advance. No delay or extension of time by the Pledgee in exercising
any power of sale, option or other right or remedy hereunder, and no failure by
the Pledgee to give notice or make demand, shall constitute a waiver thereof, or
limit, impair or prejudice the Pledgee's right to take any action against any
Pledgor or to exercise any other power of sale, option or any other right or
remedy.
13. Expenses. The Collateral shall secure, and each Pledgor shall pay to
Pledgee on demand, from time to time, all reasonable costs and expenses,
(including but not limited to, reasonable attorneys' fees and costs, taxes, and
all transfer, recording, filing and other charges) of, or incidental to, the
custody, care, transfer, administration of the Collateral or any other
collateral, or in any way relating to the enforcement, protection or
preservation of the rights or remedies of the Pledgee under this Agreement or
with respect to any of the Indebtedness.
14. The Pledgee Appointed Attorney-In-Fact and Performance by the Pledgee.
Upon the occurrence and during the continuance of an Event of Default, each
Pledgor hereby irrevocably constitutes and appoints the Pledgee as such
Pledgor's true and lawful attorney-in-fact, with full power of substitution, to
execute, acknowledge and deliver any instruments and to do in such Pledgor's
name, place and stead, all such acts, things and deeds for and on behalf of and
in the name of such Pledgor, which such Pledgor could or might do or which the
Pledgee may deem necessary, desirable or convenient to accomplish the purposes
of this Agreement, including, without limitation, to execute such instruments of
assignment or transfer or orders and to register, convey or otherwise transfer
title to the Collateral into the Pledgee's name. Each Pledgor hereby ratifies
and confirms all that said attorney-in-fact may so do and hereby declares this
power of attorney to be coupled with an interest and irrevocable. If any Pledgor
fails to perform any agreement herein contained, the Pledgee may itself perform
or cause performance thereof, and any costs and expenses of the Pledgee incurred
in connection therewith shall be paid by the Pledgors as provided in Section 10
hereof.
15. Waivers.
(a) EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OTHER
AGREEMENT EXECUTED OR DELIVERED BY THEM IN CONNECTION HEREWITH, OR THE
8
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE
AND EACH PARTY HERETO HEREBY AGREES AND CONSENTS THAT ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY,
AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH PARTY TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
16. Recapture. Notwithstanding anything to the contrary in this Agreement,
if the Pledgee receives any payment or payments on account of the Indebtedness,
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver, or any other party under the United States
Bankruptcy Code, as amended, or any other federal or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors' rights generally, common law or equitable doctrine,
then to the extent of any sum not finally retained by the Pledgee, each
Pledgor's obligations to the Pledgee shall be reinstated and this Agreement
shall remain in full force and effect (or be reinstated) until payment shall
have been made to Pledgee, which payment shall be due on demand.
17. Captions. All captions in this Agreement are included herein for
convenience of reference only and shall not constitute part of this Agreement
for any other purpose.
18. Miscellaneous.
(a) This Agreement constitutes the entire and final agreement among
the parties with respect to the subject matter hereof and may not be
changed, terminated or otherwise varied except by a writing duly executed
by the parties hereto.
(b) Upon the payment in full of all Obligations arising in connection
with the Note, this Agreement and the security interest granted hereby
shall terminate and all rights to the Collateral shall revert to the
applicable Assignors. Upon any such termination Laurus will, at Assignors'
expense, execute and deliver to Assignors such documents as Assignors shall
reasonably request to evidence such termination. In addition, upon the
proposed sale or other disposition of any Collateral by an Assignor that is
not otherwise prohibited hereunder or by the Securities Purchase Agreement
for which such Assignors desires a security interest release from Laurus,
shall grant such release at Assignors' expense. In furtherance but not in
limitation of the foregoing, in the event that any Assignor (other than the
Company), is liquidated or dissolved or such Assignor (other than the
Company) is no longer a direct or indirect subsidiary of the Company as a
result of a transaction permitted by the Securities Purchase Agreement,
then the obligations of such Assignor under this Agreement shall terminate
and be of no further force or effect and Laurus will, at Assignors'
expense, execute and deliver to Assignors such documents as any Assignor
shall reasonably request to evidence such termination.
9
(c) No waiver of any term or condition of this Agreement, whether by
delay, omission or otherwise, shall be effective unless in writing and
signed by the party sought to be charged, and then such waiver shall be
effective only in the specific instance and for the purpose for which
given. No amendment, modification, termination or waiver of any provision
of this Agreement, and no consent to any departure by any Assignor
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the holders of more than 50% of the aggregate
outstanding principal amount of the Notes and, in the case of any such
amendment or modification, by Assignors. Any such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which it was given.
(d) In the event that any provision of this Agreement or the
application thereof to any Pledgor or any circumstance in any jurisdiction
governing this Agreement shall, to any extent, be invalid or unenforceable
under any applicable statute, regulation, or rule of law, such provision
shall be deemed inoperative to the extent that it may conflict therewith
and shall be deemed modified to conform to such statute, regulation or rule
of law, and the remainder of this Agreement and the application of any such
invalid or unenforceable provision to parties, jurisdictions, or
circumstances other than to whom or to which it is held invalid or
unenforceable shall not be affected thereby, nor shall same affect the
validity or enforceability of any other provision of this Agreement.
(e) This Agreement shall be binding upon each Pledgor, and each
Pledgor's successors and assigns, and shall inure to the benefit of the
Pledgee and its successors and assigns.
(f) Any notice or other communication required or permitted pursuant
to this Agreement shall be given in accordance with the Securities Purchase
Agreement.
(g) This Agreement shall be governed by and construed and enforced in
all respects in accordance with the laws of the State of New York applied
to contracts to be performed wholly within the State of New York.
(h) EACH PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF
EACH COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE OF NEW YORK FOR
ALL PURPOSES IN CONNECTION WITH THIS AGREEMENT. ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING
OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT SHALL BE BROUGHT ONLY
IN A STATE COURT LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. EACH
PLEDGOR FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR
PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER
APPLICATION TO EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR
ANY NOTICE IN CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED
INSIDE OR OUTSIDE OF THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW
YORK BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY
PERSONAL SERVICE
10
PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER
MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. EACH PLEDGOR
WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR
VENUE OR BASED UPON FORUM NON CONVENIENS.
(c)[sic] This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which when taken
together shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed an original
signature hereto.
[Remainder of Page Intentionally Left Blank]
11
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first written above.
AXEDA SYSTEMS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
Title: Chief Executive Officer
LAURUS MASTER FUND, LTD.
By: /s/ ▇▇▇▇▇ Grin
Name: ▇▇▇▇▇ Grin
Title: Fund Manager
12